Nature of the Motion

[1] This is a motion by the Society for summary judgment in respect of two protection applications, seeking a finding and final order that four children are in need of protection pursuant to s. 37(2)(b)(i) and (ii), and s. 37(2)(d) of the Child and Family Services Act, R.S.O. c.C.11 (“the CFSA”). The Society seeks an order placing the children in the care of the respondent P.T., who is their biological mother, for a period of six months with terms of supervision set out in the application.

[2] The children are R.M. born […], 1999, L.M. born […], 2000, A.F. Jr. born […], 2010 and E.F. born […], 2012.

[3] The respondent fathers have been noted in default.

[4] The statutory provisions of the CFSA under which the Society seeks a finding that the children are in need of protection state:

37(2)(b). There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from the persons,

(i) Failure to adequately care for, provide for, supervise or protect the child, or

(ii) Pattern of neglect in caring for, providing for, supervising or protecting the child.

37(2)(d) There is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c).

37(2)(c) The child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child.

Motion by the Society (Volume 2, Tab 14)

Summary Judgment Pursuant to Rule 16 of the Family Law Rules

[5] This motion is brought pursuant to rule 16(1) of the Family Law Rules, O.Reg. 1114/99 (the “Family Law Rules”). While there has been some debate in the case law about whether the expanded powers of the court under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, apply to Rule 16 of the Family Law Rules, the weight of the case law is now slanted toward upholding the view that Rule 16 provides the legislative context within which summary judgment motions must be decided in the family law arena: Catholic Children’s Aid Society of Hamilton v. A(M.), 2012 ONSC 267 (Ont. S.C.J.); Starr v. Gordon, 2010 ONSC 4167 (Ont. S.C.J.); Children’s Aid Society of Toronto v. T.H. and R.A.R., 2012 ONSC 3916 and Virc v. Blair, 2012 ONSC 7104 (Ont. S.C.J.).

[6] Rule 16(6) sets out the test to be applied. It provides:

(6) If there is no genuine issue requiring a trial of the claim or defence, the court shall make a final order accordingly.

[7] The principles to be applied on a motion for summary judgment were considered in Virc v. Blair, paras. 14 to 16 as follows:

The law by which a motions judge is governed when considering Rule 16(6) was described in Children’s Aid Society of Toronto v. T.(K.), 2000 CanLII 20578 (Ont. C.J.) at paras. 12 and 13:

The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. See Irving Ungerman Ltd. v. Galanis (1991), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545, 50 O.A.C. 176, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, [1991] O.J. No. 1478 (Ont. C.A.). The relationship between a genuine issue for trial and a material fact was pointed out by Associate Chief Justice John W. Morden in Irving Ungerman Ltd. v. Galanis, supra, at page 550 [O.R.]:

If a fact is not material to an action, in the sense that the result of the proceeding does not turn on its existence or nonexistence, then it cannot relate to a "genuine issue for trial".

Clearly not every disputed fact or question of credibility gives rise to a genuine issue for trial; the fact must be material.

The role of the judge on a summary judgment motion is an important one, but is limited in scope. It is not for the judge at this stage to find facts, weigh evidence or draw factual conclusions once he finds that a genuine issue for trial exists. These are all functions reserved to the trial judge. However, the judge is carefully to assess the threshold issue of whether there exists a genuine issue as to material facts requiring a trial. See Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161, 107 O.A.C. 115, 156 D.L.R. (4th) 222, 17 C.P.C. (4th) 219, 1998 CanLII 954, [1998] O.J. No. 459, 1998 CarswellOnt 417 (Ont. C.A.). In determining this threshold issue, the court must review the evidentiary record carefully and give it a good hard look. At this stage, mere bare denials or self-serving affidavits without detailed facts and supporting affidavits are not sufficient to raise a triable issue. See Guarantee Co. of North America v. Gordon Capital Corporation, supra.

To these propositions must be added the following: the moving party bears the onus of establishing that there is no triable issue; however, the responding party on a motion for summary judgment must “lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 (C.A.), at p. 557. A party opposing a motion for summary judgment must show a “real chance of success” against the party seeking summary judgment: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at para. 27. Although the onus is on the moving party to establish the absence of a genuine issue requiring a trial, there is an evidentiary burden on the responding party, who may not rest on the allegations or denials in pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial. This is codified in Rule 16(4.1) of the Family Law Rules, which provides:

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

It is not sufficient for the responding party to say that their case requires a trial because more or better evidence will be, or possibly may be, available at trial. As stated in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.) at para. 17, “[t]he motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.”

[8] Also, in Catholic Children’s Aid Society of Hamilton v. A.(M.) at para. *, the court outlined that the issue on a summary judgment motion brought pursuant to Rule 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. The court must ask the following fundamental question: Can the full appreciation of the evidence in 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?

[9] Further, at para. *, the court indicated that not every disputed fact or question of credibility gives rise to genuine issue for trial. A genuine issue for trial must relate to a material fact or facts. To be relevant, the issue must relate to material facts that are critical to the determination that the court is called upon to make. Disputed facts, the existence of non-existence of which will not affect the outcome of the case, do not raise a genuine issue for trial.

[10] Given the law as it now exists in the family law contract, a judge must not attempt to resolve credibility issues on a summary judgment motion.

[11] Finally, germane to this motion, the Court of Appeal has directed that under the Family Law Rules, the admission of hearsay evidence is not prohibited on a motion for summary judgment: Catholic Children’s Aid Society of Toronto v. B.(N.), 2013 ONSC 472 (Ont. C.A.).

The Evidence

[12] The evidence provided by the Society is that the Children’s Aid Society of the County of Simcoe and the Frontenac Children’s Aid Society have had involvement with respect to the family dating back to 1999. Most recently, in June 2011, the Frontenac CAS became involved after L.M. disclosed that she had been sexually assaulted by A.F., who is the father of A.F. Jr. and E.F., who had not yet been born. P.T.’s evidence is that she was the one who contacted the CAS upon learning of the allegations from her daughter, which information is not disputed by the Society. The information disclosed by L.M. to the Society and the police was inconsistent, and the concerns were not verified at that time. A.F. was not charged in relation to that complaint.

[13] In November 2011 Frontenac CAS again became involved as a result of L.M.’s friend reporting that A.F. inappropriately sexually touched her during a sleepover at the home of P.T. and A.F.. A.F. pleaded guilty to the charges arising in connection with L.M’s friend, and was subject to terms of probation that were not before the court on this motion. Following the sexual assault on L.M.’s friend by A.F., the Frontenac CAS attempted to revisit L.M.’s allegations in an interview with P.T. and her daughter. The evidence of the Society is that the mother presented as uncooperative, refusing to have the worker re-interview L.M. in private, and indicating that L.M. has mental health issues and is highly manipulative. It is P.T.’s evidence that she believed that L.M. had lied with respect to the allegations against A.F. because the investigating detective indicated the same concern about the reliability of L.M.’s report.

[14] P.T. indicated to the Frontenac CAS that her relationship with A.F. was over, and the Frontenac CAS advised her that they would have serious concerns if the mother were to continue in a relationship with A.F. such that he was allowed to be in the presence of the children.

[15] On March 7, 2012 the Society received information from the Frontenac CAS indicating that P.T. and her three children had relocated to Barrie and there were concerns that they were residing with A.F.. On the same day, the Society attended at the mother’s home and confirmed that A.F. was residing a basement apartment.

[16] It is apparent that P.T. and A.F. were carrying on an intimate relationship in the early part of 2012, as their daughter E.F. was born on […], 2012.

[17] Upon attending at the mother’s address on March 7, 2012, the Society worker spoke to A.F. who indicated that he resided in the basement apartment, and that the three children were residing in the main and second floors of the home. A.F. indicated that the door leading from the basement to the main floor of the home is always locked.

[18] P.T. returned home on that same day and indicated that the children were with her mother. However, a short time later, L.M. appeared at the entrance of the basement stairs. Both the police and the Society worker discussed the concerns with respect to A.F. residing in the home. P.T.’s response, both on that day and at the time of the argument of this motion, was that A.F.’s probation officer had approved this living arrangement and that the mother was approved as being an appropriate adult to supervise A.F. when he was around the children.

[19] When questioned about the protection concerns and why the living arrangement was unacceptable to the Society, P.T. and A.F. became defensive and hostile. The mother indicated that she did not believe that A.F. sexually assaulted L.M., that the police also believed that L.M. was lying, that she loved her daughter but she had behavioural problems that included sexualized behaviours and lying. Also, she has stated that the friend who was the victim of the sexual assault for which A.F. was convicted had lifted up her top and was “throwing herself” at A.F., offering this as an excuse for his behaviour. P.T. further stated that A.F. needed her support and that as he is the father of A.F. Jr., that he needed to have an access relationship with his son.

[20] In her most recent affidavit sworn November 18, 2013, at para. 75, P.T. deposes:

I have always stated the facts that are true. L. DOES have behavioural issues. She has ALWAYS had behavioural issues from long before Mr. F. resided with us. This is documented even in proceedings ten years ago. L. is suspected of mental health issues. She is highly sexualized and always has been, in fact, I have received complaints from several adult males that they do not feel comfortable around her as SHE has attempted to inappropriately touch them. This does not mean that I do not support L. I always support L.

[21] On March 7, 2012, P.T. reluctantly agreed that the Society worker could meet privately with L.M.. At that time L.M. provided disclosure to the worker that A.F. had done something to her last year that involved touching. L.M. stated to the worker that she had forgiven him as he had experienced similar abuse as a child, and did not know it was wrong. L.M. stated that her mother was aware that she had forgiven A.F..

[22] P.T. has deposed in her most recent affidavit that she never left A.F. alone with the children after she knew of a risk. He lived in a completely different apartment from the children and herself, and he had no access to the children unless supervised by her. Her evidence is that she told the Society that she would make sure that A.F. was never left alone with the children and had never done so since March 7, 2012. P.T.’s evidence is that E.F. was conceived prior to March 7, 2012, and the contact between the two adults occurred when all of the children were visiting in the homes of extended family members. Her evidence is that she knew that A.F. would never be allowed back in the family, but she rationalizes that she wanted A.F. Jr. to have a sibling close to his age. She deposed that because R.M. and L.M. have the same father, she felt that A.F. Jr. should have a full sibling. She deposed that their contact was a “one time event and at no time did I think that we would ever live together again”. She deposed that she has no intention to ever reunite with A.F.. He has never seen E.F., and has had no contact with the other three children since the time of his arrest in March 2012.

[23] At the time of their investigation on March 7, 2012, the evidence of the Society is that the mother was unable to reassure them that A.F. would not be present in the home when the children were present.

[24] P.T. tells a different story. She indicates that A.F. left the basement apartment on March 7, 2012 when the concern was raised that he should not be living in the residence. He moved to Port McNicoll that evening. P.T. also followed the directive of the Society worker, who told her not to stay in the home with the children that night, but to go to her mother’s home, which she did. A.F. arranged with his probation officer on March 8, 2012 to reside at the residence of his parents in Port McNicoll. He moved out of the residence on March 8, 2012. P.T. returned with the children on March 9, 2012.

[25] It is her evidence that she advised the police that A.F. had moved out the previous day and asked the CAS worker and the police to contact his probation officer. They refused to do so in order to verify her information. Her evidence is that the police officers then proceeded to treat her roughly and aggressively. She was told that she would be arrested for obstruction of justice, but ultimately was taken to the police station and released without charges. P.T. has no criminal record.

[26] Ms. Jain on behalf of the Children’s Lawyer advised the court that the three children have consistently given her advice that they wish to return to be with their mother, ever since the date that she first became involved in this matter. On April 23, 2012, R.M. and A.F. Jr. were returned to their mother under an interim supervision order on consent. On that same date, L.M. was placed in the care of her maternal grandmother under an interim supervision order, on consent. L.M. was placed in the care of the Society and went into foster care on June 20, 2012, as a result of the maternal grandmother bringing L.M. to the Society’s office and stating that she was no longer able to care for her.

[27] On September 21, 2012 L.M. returned to the care of her mother under an interim supervision order. At present, all four children are in the care of their mother under an interim supervision order. The Society became aware of E.F.’s birth on attending the home on November 29, 2012 and seeing the child. Thereafter they began the second protection application, as it relates to E.F., on the grounds of 37(2)(d) of the CFSA.

[28] P.T.’s evidence is that she has cooperated with the Society throughout, but the Society has offered no substantive help to her family, but rather has been cruel and unresponsive. She has participated in the Partner Abuse Program offered by New Path. Correspondence dated July 29, 2013 from New Path indicates that she has willingly participated in individual sessions since June 3, 2013. She has provided a urine analysis showing, within the limits of that report, that no narcotics or opiates were detected. She provides another letter from New Path dated May 2, 2013 outlining her attendance over the past year in accessing youth and family counseling services for L.M. It indicates that since August 15, 2012, the family attended three family consultations, fourteen sessions and cancelled two sessions that were rebooked. At the time of the letter, L.M.’s file was to be closed to service. There is no indication in the letter whether the closure of service was something requested by P.T., or recommended by the youth and family therapist.

[29] Although Ms. Jain presents information to the court noting concerns about the extremely poor school attendance for both L.M. and R.M., such was not a concern outlined by the Society at any time in the first protection application, even as amended on August 24, 2012.

[30] The last, and perhaps most significant piece of evidence, is an assessment report from New Path Youth and Family Counselling Services dated February 15, 2013. In that report, its author states that P.T. “has expressed that she would like her children to have an ongoing relationship with A. in a safe, supervised way”.

[31] A.F. was arrested at the courthouse in March, 2012 as a result of the allegations raised by L.M.. By the time the trial was reached on June 25, 2012, L.M. refused to testify against A.F. A.F. was released from custody on that date.

[32] In its assessment report of February 15, 2013, New Path noted that L.M. appears to be quite shutdown and very resistant to trust, and stating that here response makes sense given her alleged history of sexual abuse within a familial setting. P.T.’s concerns for her daughter were expressed at that time on her daughter’s angry behaviour that tends to be directed towards her mother. P.T. was concerned that L.M.’s behaviours continue to escalate, and that she is increasingly non-compliant and disrespectful. In late fall 2012, L.M. got involved with the Elizabeth Fry Society on a diversion program for shoplifting. Although she does well in school according to the report, L.M. was refusing as of February 2013 to attend school and the school was requesting a behavioural consultant be involved with L.M.. The assessment report concluded that the family will likely require more intensive services beyond outpatient services, and residential programming has been discussed as a viable option. The goals and plan of service are set out in the report; it was noted in the report that the option for further support was discussed with the family, such as psychiatry or residential programming, and the family was choosing to think about these possible options. Given that the file was closed in May, 2013, it would appear that there has been no follow up to these recommendations.

Discussion

[33] At the heart of this motion is the question of whether there is a genuine issue for trial as to whether P.T. continued as of March 9, 2012 to expose the children to A.F.. It is only if the Society can show that there is no genuine issue for trial that P.T. intends to continue to expose the children to the clear risk of harm posed by A.F.’s presence, that this motion should succeed.

[34] Since I am not permitted to resolve issues of credibility where there is a genuine issue raised by the parties’ credibility, I find that this motion must fail.

[35] There is ample evidence which, if proven, could lead a trial judge to conclude that these children are all in need of protection as a result of the threat of P.T.’s inclination to involve A.F. in the lives of her children. Her inability from time to time to assess this situation through a child-focused lens, with a view to protecting her children from both emotional and physical harm, is evident. This has manifested by:

(i) disbelieving her daughter’s reports of A.F.’s sexual abuse;

(ii) suggesting that both of the young girls, who would have been 12 or 13 years old at the time, acted to invite the violations inflicted upon them;

(iii) lying to the Frontenac CAS that A.F. was out of their lives;

(iv) moving into a home with A.F. with her children after his conviction and release;

(v) consorting with A.F. in a sexual relationship and further entangling herself with him as a father to her newest child;

(vi) telling L.M. that it is up to her whether she wants to have a relationship with A.F.;

(vii) in all likelihood, interfering with L.M.’s willingness to testify at A.F.’s most recent trial;

(viii) not following through on providing L.M. with further therapeutic help in the face of her increasingly difficult behaviour;

(ix) allegedly reporting to the New Path assessor that she would like her children to have an ongoing relationship with A.F..

The mother presented no evidence about steps taken by A.F. to address his apparent pedophilia and the chances of him re-offending.

[36] In contrast, however, stands P.T.’s sworn evidence that she does not want A.F. to have contact with her children, and that there has been no contact for over one and half years. Also in issue is whether, as of March 9, 2012, A.F. had permanently left the home.

[37] While the hearsay evidence contained in the New Path letter of February 15, 2013 is a significant piece of evidence, I find that I should not rely on such hearsay where it is in direct contradiction to P.T.’s sworn testimony. Without the safeguards offered by a trial to test such evidence, it is, in my view, going too far to make a finding of protection with this statement as the “culminating evidence’ – there is too much riding on the written statement contained in the report without its author being subjected to cross-examination.

[38] For these reasons, I find that I must dismiss the Society’s motion and order that the motion be placed on the next available trial sittings for child protection matters.

This court orders that there shall be no costs of this motion, as the Society has acted within its statutory mandate in bringing it and has not acted unreasonably in the context of the motion.

HEALEY, J.

Date: December 2, 2013

The Children's Aid Society of the County of Simcoe v. P.T., 2013 ONSC 7414

Case Summary

Nature of the Motion

Motion by the Society (Volume 2, Tab 14)

Summary Judgment Pursuant to Rule 16 of the Family Law Rules

The Evidence

Discussion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 3