C.J. v. The Children’s Aid Society of the Districts of Sudbury and Manitoulin, 2013 ONSC 63

COURT FILE NO.: C-568-10 / AP-45-12

DATE: 20130103

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.J.

Appellant

– and –

The Children’s Aid Society of the Districts of Sudbury and Manitoulin

Cross-Appellant

– and –

K.E.

Respondent

Nicola S. Munro, for the Appellant

Patricia G. Sullivan, for the Cross-Appellant

Barbara Burton, for the Respondent

HEARD: September 7, 2012

DECISION ON APPEAL

hennessy j.:

1This is an appeal of an Order dismissing a motion for summary judgment brought by the Children’s Aid Society of the Districts of Sudbury and Manitoulin (the Society) for Crown Wardship of the child T.A.J. The motion judge found that there was a triable issue on the main question of Crown Wardship vis à vis the mother. The motion judge went on to make a number of orders with respect to the evidence and witnesses at trial, and the issue of the father’s participation in the trial and his future access if the child were ultimately placed with the mother. It is from these orders that the father now appeals. The Society brings a cross appeal with respect to the decision to dismiss the motion for summary judgement. Both parents are respondents.

2For reasons that follow, the cross appeal by the Society is successful and I dismiss the appeal by the father.

Background Facts

3The mother K.E. was 23 years of age at the time of the motion. She is now 24 years of age. The father C.J. was 21 years of age at the time of the motion. He is now 22 years old. The child T.A.J. was born […], 2010, and he is under two years of age. Both parents are aboriginal.

4The Society had an extensive history with both parents throughout their own childhoods. The mother spent most of her childhood in the care of the Society. Both parents have lengthy criminal records, which include convictions for breaching court orders in the criminal context and in the context of the protection proceedings.

5The Society received a referral from the hospital immediately prior to the birth of T.A.J. There were concerns about both parents’ behaviour including the mother’s drug addiction. The child was apprehended from the hospital and placed in foster care on December 22, 2010. Around this time the father was sentenced to a short period of incarceration.

6On October 15, 2010, the court ordered that the child remain in the care of the Society with specific access provisions for the mother, moving to unsupervised visits conditional upon her maintaining her sobriety and negative drug test results. The mother’s access to the child was expanded in April 2011 to include overnight visits in the absence of the father.

7In August 2011, as a result of the father’s conduct in the presence of health care providers, the Society worker, and the foster parent, the father’s access was terminated by the Society. On September 7, 2011, the father was taken into custody and as a result the mother cancelled a series of access visits with the child. On October 24, 2011, the court made a finding that the child was in need of protection because he was at risk of neglect and harm resulting from the domestic violence in his parent’s relationship, as well as their drug abuse problems and parenting deficiencies. Access visits then resumed on schedule with both parents.

Decision and Order on Motion for Summary Judgment

8The Society sought summary judgment on its application for an order that T.A.J. be made a Crown Ward and placed in the care and custody of the Society with no access to either parent.

9The motion judge made the following findings:

• The father continued to be in conflict with the law, and was in custody at the time of the hearing serving a sentence for a conviction for assault with a weapon. The father had a destabilizing effect on the mother, drawing her into his lifestyle and making it more likely that she would fail to attend the needs of the child.

• The lifestyle shared by the parents was one of domestic conflict, instability, drug use and conflict with authority.

• Although the mother used cocaine and oxycodone before and allegedly during her pregnancy, she appeared to be abstaining from drug use at the time of the motion.

• The mother’s use of marijuana appeared to be in the presence of the father and could be regarded as related to his difficulties and the impact they have on the mother.

• The mother’s experience with the criminal justice system arose in the context of the father’s ongoing difficulties.

• The problems which arose during access appear to have been triggered by events involving the father and reflected the difficulties he brought into the family.

• The mother failed to put her best foot forward in the motion for summary judgement.

• The case was about the child T.A.J. and how he could best be protected from a childhood of neglect at the hands of parents who may be incapable of nurturing him. The fact that the system may be to blame for the parent’s incapacity did not change the fact that they are incapable of parenting – unless the mother can satisfy the court that she has overcome those failings.

• The evidence supplied to date did not show that the mother had demonstrated that she could be responsible for herself and the child and that she could work productively with social agencies and her own community to ensure the child’s needs were met.

• There was no need for the Society to present further evidence at trial except as may be required to respond to the mother’s further evidence.

• That summary judgment was to issue against the father with respect to placement of the child and a provisional order made regarding access with the father.

10The motion judge ordered that the matter proceed to trial on the narrow issue of whether the child could be placed with the mother. He stated at paragraph 30 of his decision that the onus was to be on the mother to satisfy the court that she had the ability and commitment to care for the child.

11The motion judge further ordered:

• that the trial not exceed one-half day,

• that the findings of fact on the motion should apply at trial,

• that the mother should file affidavit evidence as to proposed residence and circumstances, parenting supports, her plan for meeting the needs of the child and managing her relationship with the father,

• that time lines be established for filing material and response material,

• that in the event that an order was made placing the child in the care of the mother, the court should make an order that the father should have supervised access with the child only upon establishing a material change and on terms approved by the Society; and

• that the father and his counsel should not be permitted to participate in the trial.

Statutory Framework

12Pursuant to sections 40 and 41 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the CFSA), a society may bring an application before the court for a hearing to determine whether a child is in need of protection as defined by section 37(2) of the Act and, assuming a finding is made, for a disposition pursuant to section 57.

13Rule 16 of the Family Law Rules O. Reg. 114/99 allows a party to bring a motion for summary judgment for a final order without a trial on all or part of any claim made of defence presented. Rule 16(2) specifically makes summary judgment available in child protection cases.

14Rule 16(6) states that the court shall make a final order if there is no genuine issue requiring a trial.

15Rule16(9) permits the judge hearing the motion to stipulate which facts are in dispute and which are not and give direction on how the case should be heard.

16Pursuant to section 69(1) of the CFSA, appeals from orders under that statute lie to the Superior Court of Justice.

17Pursuant to s. 39(1) of the CFSA, parents are rightly parties in child protection matters.

Standard of Review on Appeal

18The standard of review on an appeal of a summary judgement order is correctness: Catholic Children's Aid Society of Toronto v. Y.K.. [2007] O.J. No. 3080 at para. 42.

19Both the appeal by the father and the cross-appeal by the society argue that the motion judge made errors in law.

Motion to Admit Fresh Evidence

20The Society sought leave to file two supplementary affidavits pursuant to s. 69(6) of the CFSA, rule 38(29) of the Family Law Rules and s. 134 (4)(b) of the Courts of Justice Act. The affidavits of Society child protection worker Jennifer MacDonald, who has been the worker on this case since the birth of the child, were intended to provide the court with an update of the situation.

21The first affidavit, dated August 2, 2012, is an update on the mother and father since the hearing date and covers the father’s arrest and detention, the observations of the mother’s bruises, the birth of a second child to the mother and father, and the condition of the new infant. The second affidavit, dated August 16, 2012, is an update on the mother’s methadone records, which had been received by the Society since the date of the summary judgment motion.

22I heard the argument on the motion to admit the evidence and reserved pending hearing the full appeal.

23The parents both argue that the fresh evidence should not be admitted but that if it is admitted, the court should also admit an affidavit in reply from the mother.

24In Catholic Children's Aid Society of Metropolitan Toronto v. C.M. (“CAS Toronto v. C.M.”) 1994 83 (SCC), [1994] 2 S.C.R. 165 at para. 20 the Supreme Court held that in child protection proceedings, an appeal court should exercise its discretion to hear fresh evidence so long as it is relevant to a consideration of the best interests of the child. The traditional factors are still to be considered in light of the child-centred approach:

• Could the evidence have been adduced previously?

• Is the evidence highly relevant?

• Is the evidence potentially decisive to the best interest determination?

• Is the evidence credible?

25The first affidavit includes the information, which is not challenged by the parents, that the parents had a second child in May 2012 and that the new baby was apprehended following birth. The affidavit further includes observations and records of investigation by the Society that are challenged by the respondents, and the credibility and reliability of the information remains untested. The first affidavit is therefore not admitted.

26On a motion for summary judgement, the court is limited to the material that is before the court. On appeal, the court cannot revisit the decision on the summary judgment motion with the benefit of the fresh evidence. However, in protection proceedings, an appeal court can exercise its discretion to admit further evidence as long as it is relevant to a consideration of the best interests of the child: “The admission of up-to-date evidence is essential in such cases.” (CAS Toronto v. C.M.at para. 20.) It is not necessary to direct a new trial simply because the information on drug use has been updated: see Children's Aid Society of Peel v. W. (M.J.) (1995), 1995 593 (ON CA), 23 O.R. (3d) 174 (Ont. C.A.) A sufficiently flexible approach to fresh evidence is required where an accurate assessment of the situation of the parties is of crucial importance as it is here: Children's Aid Society of Halton Region v. K.L.A. 2006 33538 (ON CA), 32 R.F.L. (6th) 7 (Ont. C.A.).

27With respect to the second affidavit, the material from the records of the methadone clinic is credible on its face. It could not have been adduced earlier, as it did not exist before the motion. The evidence includes up to date records of positive cocaine tests from the mother in February and July 2012. This evidence is not on a new topic, and is highly relevant to the issue that was before the judge on the motion. I would have found this evidence admissible, however because this decision turns on the errors made by the motion judge based on the evidence before him, it is not necessary to be considered.

28The parents each sought to introduce fresh evidence only in the event the fresh evidence of the Society was admitted. The mother’s fresh evidence will not be admitted. For the most part it responds to material not admitted. Where it responds to the clinic records, it is untested evidence and in any event not necessary in light of the conclusions I have made.

Issues on Appeal and Cross Appeal

Appeal by the father

29Where a judge dismisses a motion for summary judgement by the Society, can the motion judge make additional orders:

• denying a parent the right to participate in a trial dealing with the question of placement and access of the child?

• with respect to the issues of access by the father where placement of the child vis à vis the mother is a question for the trial?

• setting out the required contents of the affidavit to be filed by the mother?

Cross Appeal by the Society

• did the judge err in law by failing to properly apply the test for summary judgement?

• are the findings of fact made by the motion judge inconsistent with the decision of the motion judge to allow the matter to proceed to trial?

Reasons of the Judge on the Motion

30The reasoning of the motion judge is found in the last four paragraphs of the decision (unnumbered) prior to the Order. These paragraphs are the 29^th to the 32^nd paragraphs of the decision and are excerpted below.

29. In this case, unless T.A.J. can be returned to the care of his mother, he must be made a Crown Ward. Although Crown Wardship is regarded as the most drastic form of intervention – there is nothing about it which makes it an inherently malign form of intervention. It is often a necessary form of intervention – which offers the best hope for a young child. But it is always drastic intervention from the point of view of the child’s family and heritage – and for that reason it is an option that has to be considered carefully, particularly in the context of a child of aboriginal heritage. Throughout my involvement in this case I have been aware of how easy it would be for K.E. to take the necessary steps to resume parenting T.A.J.. Essentially what was required was that she manage her relationship with C.J. in a mature way that would protect both herself and T.A.J. from being dragged down by his problems. What she needed to do was to stabilize her own life and demonstrate that she could be responsible for herself and the child and that she was able to work productively with social agencies and her own community to ensure that T.A.J.’s needs were met. The evidence she has supplied to date does not address these issues in a satisfactory way.

30. There is a triable issue, but it is a relatively narrow issue – whether K.E. can continue to develop parenting skills, respond to T.A.J.’s needs and manage the relationship with C.J. in a way that does not permit him to continue to destabilize the family unit if he continues with the lifestyle demonstrated in the evidence. If she is to be reasonably successful, K.E. must satisfy the Court that she has the commitment and ability to parent T.A.J. in safety and that she is prepared to work with supportive agencies – which must include the Society and other service providers, primarily First Nations agencies, and should include C.J..

31. The findings of fact relative to disposition are as set out above and in the event that Ms. K.E. fails to satisfy the Court that T.A.J. can be placed in her care subject to supervision; the only possible order is one of Crown Warship. There is, therefore, no need for the Society to present further evidence – except as may be required to respond to Ms. K.E.’s further evidence. C.J. shall not be permitted to participate in the hearing as a party. To date such participation has been more detrimental to Ms. K.E.’s case than helpful. In the event that T.A.J. is placed in Ms. K.E.’s care, the child’s right to a continuing relationship with his father shall be managed in the context of an order for supervised access, pending Mr. C.J. establishing a material change that would warrant expanded contact.

32. In the course of delivering these reasons I made clear that while I was effectively granting the motion for summary judgement against C.J. and resolving most of the factual issues that would support making a finding of Crown Wardship, I was reluctant to make the order as against K.E. without giving her a last chance to satisfy the Court that she is capable and committed to parenting T.A.J. – and that she will not allow her past difficulties and on-going relationship with C.J. to interfere with that primary obligation. In so doing, I was mindful that the trial is scheduled for the running list commencing March 26, 2011 – less than four weeks away – and that allowing Ms. K.E. this opportunity would not delay the completion of this matter unreasonably. I have canvassed this with counsel and I am assured that the trial shall proceed as scheduled – otherwise the Court will have to step in.

The appeal by the father

Access Issues

32The motion judge found that there was a narrow triable issue as between the claim of the Society for Crown Wardship and the position of the mother that the child should be returned to her care. The motion judge did not make a final order with respect to Crown Wardship vis à vis the mother. He ordered that this narrow issue proceed to trial.

33Counsel for the father, supported by counsel for the mother, argued that the trial judge went too far by making an order with respect to access rights of the father, given that the matter of placement with the mother was going to trial. The submission on behalf of the parents was that the motion judge was in effect imposing his decision on a matter which should have been left to the trial judge. The Society argued that the judge on the motion effectively granted summary judgment as against the father and that the only question for trial was whether there could be placement with the mother in lieu of Crown Wardship. As a result, the motion judge was making clear that although he was leaving the question of placement with the mother to the trial judge, there was no issue requiring a trial with respect to the placement or access with the father. I note that although the positions of the parents shifted during the proceedings, at one point, the father had sought placement of the child with him. At different times in the proceedings the parents sought an order that the child be placed with them together and later the mother took the position that the child should be placed with her alone. In this shifting landscape, the judge sought to narrow the question as strictly as possible.

34The motion judge was entitled to grant partial summary judgment as against the father per Rule 16(1). In para. 32 the motion judge said: “Although I am effectively granting the motion for summary judgement against C.J....”. This decision cannot support any other reading than that the motion judge granted partial summary judgement that the child could not be placed with the father. From the reasons of the motion judge I conclude that he found that there was no genuine issue of material fact requiring a trial with respect to placement or access with the father. He was entitled to do this.

Participation at Trial

35Counsel for the father further argued that the motion judge erred in law by making an order excluding the father from participating in the trial, especially on the issue of access and where placement should be made if it was not to be made with the mother. The father argued that as a parent he was a proper party to the litigation and that his participation in the trial should not be ousted by virtue of an order of summary judgment against him. He submitted that because the court left open the question of Crown Wardship, he remained entitled to participate in the hearing where the court could still make orders relating to terms of the placement of the child with the mother.

36The Society responded that the motion judge was entitled to make an order denying the right of the father to participate in the trial.

37I disagree with the position of the Society on this point. So long as the motion judge left open the issue of placement of the child with the mother, and the issue of access of the father, the father had a right to participate in the hearing, as per s. 39(1) of the CFS. In view of the ultimate result on this appeal, however, nothing turns on this point.

Requirements of Affidavit

38The parties concede that the third paragraph of the Order which sets out the required contents of the affidavit to be filed at trial was beyond the scope of orders contemplated by rule 16(9) of the CFSA. I do not necessarily agree, given the broad scope permitted by rule 16(9)(b) which permits the motion judge to give direction. However, nothing turns on this point and I will not address it further.

The Society’s Cross-Appeal

Test for Summary Judgment

39The onus is on the moving party in a summary judgment motion to prove on a balance of probabilities that there is no genuine issue that requires a trial for its resolution.

40In an analysis on a motion for summary judgment, the court is required to determine whether the moving party has met its onus. The Society must prove the non-existence of a genuine issue requiring a trial: Catholic Children's Aid Society of Hamilton v. M.A.(“CAS Hamilton v. M.A.”) 2012 ONSC 267, [2012] O.J. No 223. The best interests of the children remain paramount in this analysis; however, courts have been cautioned that the jurisdiction to grant summary judgment is to be exercised only in the clearest of cases and with extreme caution: Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.) (1996), 1996 7271 (ON SC), 139 D.L.R. (4th) 534 at para. 79.

41The responding party must put their best foot forward. This is not to say that the burden has shifted to the parents to show that there is a triable issue, simply that if they are responding to the motion, they must put forward their best evidence.

42I agree with Justice Chappel, who stated in CAS Hamilton v. M.A at para. 34: “The issue on a summary judgment motion brought pursuant to r. 16 is whether it is possible to conclude based on the materials contained in the motion record that the respondent has no realistic chance of success…[T]he court must ask the following fundamental question: can the full appreciation of the evidence and the issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”

43I agree with Chappel J. in the CAS Hamilton case above and with Perkins J. in Starr v Gordon that the expanded powers in the new Rule 20 have not been imported into Rule 16. Therefore, the summary motion judge is not permitted to resolve credibility issues, draw inferences from the evidence or weigh the evidence. The summary motion judge is limited to the material before the court.

44At para. 27 of his decision, the motion judge specifically stated that the mother did not put her best foot forward, notwithstanding that the court had specifically given counsel direction on how to do so in the fall of 2011.

45The judge did not say that the evidentiary record was incomplete in some way but rather that the mother had not taken the steps necessary to become a capable enough parent. He did not find that a trial was required for a full appreciation of the evidence.

46The motion judge stated that he wanted to provide the mother with another chance (emphasis mine) to satisfy the court of her ability and commitment to parenting. I take this to confirm again that the motion judge had found that the mother had not done so on the evidence that was before the court at that time.

47At para. 28, the motion judge stated: “The fact that the system may be to blame for the parent’s (sic) incapacity doesn’t change the fact that they are incapable of parenting—unless K.E. can satisfy the Court that she has overcome those failings.” From a full reading of this sentence, I conclude that the motion judge was referring to both parents in this statement.

48At para. 29, the judge listed the necessary steps the mother would be required to take in her life in order to be allowed to resume parenting:

• manage the relationship with the father of the child,

• stabilize her own life,

• demonstrate that she could be responsible for herself and her child,

• work productively with social agencies and her own community to ensure that T’s needs were met.

He concluded that the evidence she had supplied to date did not address these issues in a satisfactory way.

49In coming to his conclusion that the mother should have another chance, the judge appears to have been motivated by his belief that the mother’s many serious issues could be explained by and were attributable to her relationship with the father.

50From a reading of the reasons of the motion judge, it appears that he drew at best a highly speculative inference that the mother’s pattern of conduct; whether it was with respect to her drug use, her aggression, her immaturity or her neglect of her child, was attributable to her relationship with the child’s father. The motion judge was not permitted to make this inference on the material.

51The motion judge did not apply the proper test in determining this motion. Although he did not explicitly articulate that the Society had met its onus, everything in the reasons points to the unavoidable conclusion that the Society had met its onus. The motion judge referred to the parents “incapacity to parent” at para. 25, whether in the future the mother could “develop parenting skills” at para. 30 and “there is no need for the Society to present further evidence” at para.31. Finally, the motion judge said at para. 32, “ ... I was ... resolving most of the factual issues that would support making a finding of Crown Wardship, I was reluctant to make the order as against K.E. without giving her a last chance...”. I am satisfied that the motion judge did not apply the proper test on the summary judgment motion and thereby made an error in law.

Consistency between Findings of Fact and Disposition on the Motion

52At para. 30 of his decision, the motion judge defined what he called the relatively narrow triable issue, which was whether the mother could continue to develop parenting skills and manage the relationship with the father in a way that would not destabilize the family. The question itself confirms that the mother’s record before the court on the motion was not responsive to the assertion by the Society, supported by the record, that the mother had shown she was not capable of either of these two necessary steps.

53The findings and reasons of the trial judge suggest that the Society’s material before the court did support granting summary judgment against the mother and that the mother’s material before the court did not advance any specific evidence to defeat the claim. The motion judge did not expressly find that a trial was required to achieve a full appreciation of the evidence and of the issue relating to the protection claim made by the Society. Although he was not required to use any specific word or formula, I cannot find in his reasons any suggestion that a trial was required. What the motion judge found was that the mother deserved another chance to advance evidence to defeat the Society’s claim. The response to a motion for summary judgment cannot be a request to buy time to change the facts. Nor can the decision to dismiss a motion for summary judgment be made to permit the responding party a ‘last chance’ to show that she is capable of the very things that the Society’s evidence demonstrates that she has not been capable of doing or providing.

54In her response to the summary judgment motion and on this appeal, the mother focused on a series of minor and frequently irrelevant disputes she had with the Society. In the words of the motion judge at para. 28 of his decision, her responses simply reinforced the Society’s argument that “she just doesn’t get it—she would rather be right about minor disputes than take steps to get the child back in her full time care.”

55Regrettably for the mother, the summary judgment process is not a process to buy time. The philosophy behind the summary process is to provide as best as is possible a time-efficient resolution so that the child can be placed with some finality.

56I agree with Justice Keast in Children's Aid Society of Sudbury and Manitoulin v. T.S., 2011 ONCJ 745, [2011] O.J. No. 5883 at para. 12, that the genuineness of an issue for trial must arise from something more than a heartfelt expression of the parent’s desire to resume care of a child. The parental position cannot be based on conjecture or speculation as to better prospects in the future. The evidence must be based on the here and now and be in existence at the time of the motion. The same is true with respect to decisions made by motion judges; they cannot be based on speculation that better evidence will emerge if the party has one last chance to follow the direction provided by the court.

57The motion judge erred in basing his decision on the desire to provide the mother with one last chance to advance a better case. There was nothing in the record to suggest that she could do so or was asking to do so. Although the motion judge came to the conclusion that the mother’s relationship with the father was the source of all dysfunction, it is no response to the significant record before the court with respect to the mother’s drug use, her immature parenting and struggles with focusing on the needs of the child. Nor was there an evidentiary record on which to come to this conclusion; it was speculative that the mother would somehow overcome her many challenges if the father were out of her life. It was also speculative that the mother could keep a distance from the father once he was released from his most recent period of incarceration.

58The summary motion judge considered the fact that the child is of aboriginal heritage at para. 30. Both parents identify themselves with their home First Nation community. The summary motion judge noted that Crown Wardship of a child of aboriginal heritage should be considered carefully. I am satisfied that he did so. I agree with the summary motion judge that although Crown Wardship is a drastic intervention, it is sometimes a necessary form of intervention which offers the best hope for a young child. The evidence of the Society overwhelmingly demonstrated that there was no genuine issue requiring a full trial to determine that it was in the best interests of the child that T.A.J. be made a Crown Ward without access to either parent.

59The cross appeal succeeds. The decision of the motion judge is set aside. There will be summary judgment in favour of the Society for an order for Crown Wardship of T.A.J.