ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-479-13

DATE: 2013-12-05

B E T W E E N:

The Children’s Aid Society of the Regional
Municipality of Waterloo

J.W. Boich, CAS Counsel (Kitchener), for the Applicant, Respondent on Appeal

Applicant/
Respondent on Appeal

• and -

K.V.

Brigitte Gratl, J.D., for the Respondent,
Applicant on Appeal

Respondent/
Applicant on Appeal

HEARD: October 4, 2013

THE HONOURABLE MR. JUSTICE G.A. CAMPBELL

REASONS FOR JUDGMENT

[1] This appeal, pursuant to s. 69 of the Child and Family Services Act (the “CFSA”), R.S.O. 1990, c. C.11, stems from a summary judgment order made by the Honourable Justice J.E. Allen of the Ontario Court of Justice on April 15, 2013. The appellant, K.V., is the biological Mother of the child, M.V., born […], 2007. The respondent is the Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”). The Society is empowered to perform certain functions, including child protection where necessary, under s. 15 of the CFSA.

[2] Justice Allen found that pursuant to s. 57.1 of the CFSA, and in the best interests of the child, that M.V.’s maternal grandparents be granted sole custody. The appellant Mother, K.V., appeals that decision.

FACTS

[3] Ms. K.V. is Mother to M.V., born […], 2007, and K.R.V., born […], 2012. K.R.V. remains under the care and custody of K.V., and is not subject to this appeal.

[4] Ms. K.V. is no longer in a relationship with M.V.’s biological Father, and he is not a participant in the proceedings with respect to M.V.

[5] Ms. K.V. has a history of cocaine use, and admitted to using the drug while pregnant with M.V. Following M.V’s birth, Ms. K.V. entered into a six-month voluntary service agreement with the Society. The service plan required random drug screens, no drug use, pre-approval of care-givers, updated residence information, and for Ms. K.V. to attend treatment/counselling. On November, 2, 2007, upon termination of the voluntary service agreement, Ms. K.V.’s file with the Society was closed.

[6] Between December, 2008 and November, 2010, the Society received a number of referrals with respect to Ms. K.V. Upon investigation by the Society, each of these files were subsequently closed.

[7] On May 19, 2011, a referral was received from Ms. K.V’s family doctor. The doctor disclosed that Ms. K.V. had tested positive for Methamphetamine following a urine screen. In order to seek treatment for drug addiction, Ms. K.V. immediately and voluntarily arranged for her parents, M.V.’s grandparents, to care for M.V.

[8] On June 15, 2011, Ms. K.V. verbally agreed to a six-month ‘period of service” proposed by the Society. Under this understanding (the terms of which were not documented), Ms. K.V. was expected to maintain a consistent access schedule with M.V., who was to remain in her parents care, attend Narcotics Anonymous meetings, submit to regular drug screening tests, and work co-operatively with the Society.

[9] Some time later, M.V.’s grandparents planned a fall visit to Europe and would not be bringing M.V. along on the trip. As a result, on August 22, 2011, prior to their departure, M.V. was proactively “apprehended” by the Society to thwart the possible return of M.V. to his Mother’s care. Despite that “apprehension”, M.V. was not taken into care, but remained living in the grandparents’ home, cared for by his maternal uncle for the duration of the grandparents’ to week European trip.

[10] The Society subsequently commenced an application for child protection, the initial effect of which was an interim care order made on August 25, 2011. On November 29, 2011, a supervision order was obtained “placing” M.V. in the care of his maternal grandparents. There was never any temporary care and custody hearing held with respect to M.V. and both temporary orders were unopposed.

[11] Ms. K.V. admitted to using cocaine on New Year’s Eve 2011/12. She then completed a 4-month relapse prevention program in April 2012. The result of a drug screening test taken on May 9, 2012 from a hair sample was negative for illegal substances. As a result, the Society then started to develop a plan to reintegrate M.V. into his Mother’s care.

[12] However, on […], 2012, Ms. K.V. gave birth to her second child, K.R.V. A meconium sample taken a day after K.R.V’s birth tested positive for methamphetamine. I am advised that this result is indicative of methamphetamine use during the third (and possibly second) trimester of pregnancy. Ms. K.V. denies using any illegal drugs while pregnant with K.R.V., and questions the accuracy of the test but Ms. K.V. did not voluntarily submit to any further drug testing.

[13] The Society filed a motion for summary judgment which was heard before the Honourable Justice Allen on March 14, 2013. Justice Allen found M.V. in need of protection pursuant to sections 37(2)(b)(i) and (ii) and 2(g) of the CFSA. Justice Allen ordered that M.V.’s maternal grandparents be granted sole custody.

[14] The appellant, K.V., appeals this Order.

APPELLANT’S POSITION ON APPEAL

[15] I have taken the liberty of summarizing the Appellant’s position on appeal under three broad headings: (1) Errors of Law, (2) Errors of Fact, and (3) Errors of Mixed Law and Fact.

(1) Errors of Law

(a) Bifurcated Hearing Process

The Appellant submits that Justice Allen erred in law by failing to follow the bifurcated hearing process contemplated under the CFSA. The Appellant submits that in doing so, Justice Allen inappropriately conflated the statutorily defined two-pronged approach whereby a child must be found to be in need of protection in accordance with subsection 37(2) of the CFSA prior to a section 57.1 order being made.

(b) Hearsay Evidence

The Appellant submits that Justice Allen erred in law by admitting affidavit evidence that included large segments of hearsay. She argues that to the extent that Justice Allen relied upon this inadmissible evidence, he erred in finding that there was no genuine issue for trial.

(c) Best Interests of Child

The Appellant’s position is that Justice Allen erred in law by failing to consider each of the listed criteria under s. 37(3) of the CFSA to ascertain the best interests of the child. One such criterion requires an examination of the merits of the Plan of Care proposed by the Society. The Appellant submits that Justice Allen failed to undertake this analysis, thereby contravening s. 56 of the CFSA which provides that the court shall, before making any disposition, obtain and consider the Society’s plan for the child.

(d) Findings of Credibility

The Appellant submits that Justice Allen erred in law by making findings of credibility based on the materials before him. The Appellant argues that this practice goes beyond the court’s mandate, which is to only take “a good hard look” at the evidence on the motion.

(e) Consent Requirement Where Custody Order is Made

The Appellant submits that Justice Allen erred in law by failing to obtain the consent of M.V.’s grandparents prior to granting them custody as is required under s. 57.1 of the CFSA.

(2) Errors of Fact

The Appellant submits that Justice Allen made palpable and overriding errors in his appreciation of the facts before him. The Appellant submits, for instance, that the evidence before Justice Allen did not support his finding that the Appellant is a “heavy drinker”, has an “affinity for violent men”, or is “mentally unstable”. I agree.

(3) Errors of Mixed Law and Fact

The Appellant submits that Justice Allen committed errors of mixed law and fact by not relating the evidence before him to his finding that M.V. is in need of protection pursuant to s. 37(2)(b)(i) and (ii) and 2(g) of the CFSA.

Further, the Appellant submits that the evidence by way of affidavit put forward in answer to the summary judgment motion creates triable issues to be resolved only by way of a viva voce hearing.

RESPONDENT’S POSITION

[16] The Society opposes the appeal. It submits that there was more than sufficient admitted (not denied) evidence before the motion Justice to support a finding that the child was in need of protection at the time of intervention pursuant to section 37(2)(b) of the CFSA. Further, the respondent also submits that there is more than sufficient evidence before the court to support the order made on disposition.

STANDARD OF REVIEW

[17] The Supreme Court of Canada addressed the standard of review of an appeal from a judge’s decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. In Housen, the Supreme Court held that on a pure question of law, the standard of review is that of correctness. With respect to findings of fact, including those that are based on inference, the reviewing court ought not to intervene unless it is established that the trial judge made a “palpable and overriding” error. Matters of mixed fact and law lie along a spectrum, but unless a legal principle is readily extricable, the trial judge’s findings are approached with deference. (See M.F. v. Family and Children Services of Lanark, Leeds and Grenville, 2013 ONSC 702 (Ont. Div. Ct)).

[18] In Children’s Aid Society of Toronto v. K.K., 2006 2755 (ON CA), 22 R.F.L. (6th) 342 (Ont. C.A), an appeal of an order for Crown wardship, the Court of Appeal held that interference with a trial judge’s conclusion is appropriate only where an error in principle has been made, evidence misapprehended, or a clearly unreasonable result reached.

ANALYSIS

Law of Summary Judgment in Child Protection Matters

[19] Under Rule 16 of the Family Law Rules, O. Reg. 114/99, a moving party is authorized to make a motion for summary judgment for a final order without a trial on all or part of any claim made, or any defence presented in the case. This rule is equally applicable to summary judgment motions in child protection matters.

[20] Rule 16(4) of the Family Law Rules provides that the party making the motion is required to serve an affidavit or other evidence to show that there is no genuine issue requiring trial. Under Rule 16(4.1), the responding party must not rely upon mere allegations or denials, but must instead set out in affidavit or other evidence the specific facts showing that a trial is necessary.

[21] The test for summary judgment, as articulated in Rule 16(6), is met when the moving party satisfies to the court that there is no issue requiring trial. In other words, summary judgment will be granted when there is no genuine issue of material fact requiring a trial for resolution.

[22] There has been significant debate as to whether recent amendments to Rule 20 of the Rules of Civil Procedure are applicable to family law summary judgment motions made under Family Law Rule 16(6). The revised Rule 20 provides additional powers to motions judges by permitting them to weigh evidence, make findings of credibility, and draw inferences based on the evidence before them.

[23] Although the Family Law Rules Committee has not adopted this language to date, some judicial colleagues have extended the reach of Rule 20 amendments beyond the civil context to assist them in coming to a disposition in family law summary judgment motions. They have done so by way of broad interpretation of Family Law Rule 1(7), which permits drawing upon the Rules of Civil Procedure where Family Law Rules do not cover a matter adequately. (For examples, see Steine v. Steine 2010 ONSC 4289, 2010, 91 R.F.L. (6th) 93 (Ont. S.C.J.); Children’s Aid Society of Ottawa v. B(C), 2010 ONSC 6961.)

[24] In Starr v. Gordon, 2010 ONSC 4167, Justice Perkins strongly rejected this proposition, providing that this “omission” perceived by some, may in fact be deliberate on the part of the Family Law Rules Committee. Justice Perkins was of the opinion that the absence of detail or content in the Family Law Rules, compared to the Rules of Civil Procedure, is not in itself indicative that the Family Law Rules are inadequate.

[25] Although Justice Allen did not explicitly state that he applied Rule 20 of the Rules of Civil Procedure in coming to his disposition, it is quite evident that he took a broader, more liberal approach to evaluate the evidence before him.

[26] For instance, in weighing the evidence, Justice Allen concluded that Ms. K.V’s materials did not, “suggest an alternative plausible history or a plausible alternative in terms of the ultimate result”. Justice Allen characterized Ms. K.V.’s response to the Society as “mere denials” and “assertions” evidently placing less weight on her evidence. On the evidence before him, I tend to disagree with this characterization. The position advanced by the Appellant in her affidavit materials includes specific and direct answers to the Society’s contentions.

[27] Justice Allen also obviously evaluated K.V.’s credibility, describing her materials as “patently unworthy of belief”, as compared to the consistent portrayal of Ms. K.V. by Society case workers and family members. I also have difficulty with this characterization. Regardless of the appropriateness of engaging in an assessment of credibility in this context, this particular finding is an exceedingly broad extrapolation of the evidence before him. Such a conclusion may be premature on affidavit evidence alone and without having been tested by cross-examination at trial.

[28] Justice Allen also drew significant inferences which are illustrated by his following statement regarding Ms. K.V’s ability to care for her children:

“While it is doubtful that K.V. could care for M.V. properly if he were all she had to deal with, the materials make it clear that two children overwhelm her.”

[29] Since there is absolutely no evidence whatsoever that K.V. ever had the full time care of two children, I am at a loss to ascertain just how Allen J. came to that particular conclusion.

[30] It is not for me to decide whether the Rules of Civil Procedure governing summary judgment may be appropriately imported into the Family Law Rules. To date, this practice has not been rejected by the Court of Appeal. I do find however that, as supported by the above examples, Justice Allen did indeed adopt the more liberal approach in reviewing the evidentiary record. I decline to be critical of him doing so.

Protection Finding and Disposition

[31] In child protection proceedings, the CFSA contemplates a bifurcated hearing process whereby a child must first be found to be in need of protection in accordance with ss. 47(1) and 37(2). If the child is found to be in need of protection, the court is then to determine whether an order is necessary to protect the child in the future. The way in which the process unfolded in this particular proceeding was indeed problematic.

[32] The evidence is clear that prior to his “apprehension” M.V. was not under the care and custody of Ms. K.V., but rather that of his grandparents. The purpose of the apprehension was to mitigate the possible risk of M.V. returning to his Mother’s care while the grandparents were vacationing. It appears that Justice Allen made the incorrect assumption that M.V. was in need of protection prior to his apprehension by the Society. There are two indications in Justice Allen’s oral ruling that this incorrect assumption was made. Firstly, Justice Allen stated the following:

“M. was the subject of a voluntary service agreement entered into on June 15th, 2011 after he was voluntarily placed with [Ms. K.V’s] parents. This did not work out and on August 22nd, 2011 he was apprehended.”

[33] Here, Justice Allen committed an error of fact. M.V. was not apprehended because the voluntary service agreement with K.V. “did not work out”. M.V. was not under the care of Ms. K.V. at the time of his apprehension and there is no evidence that the grandparents’ care of M.V. caused the Agency to “apprehend” him from them.

[34] Furthermore, Justice Allen makes the following statement:

“If the Society had no involvement in this case, Malakai would be in danger of physical and emotional harm pursuant to s. 37(2)(b)(i) and (i) and 2(g).”

[35] Again, this is indicative of Justice Allen’s incorrect assumption that the Society’s apprehension of M.V. was prompted by the Agency deciding that M.V. was in need of protection. After the technical apprehension there was never any temporary care/custody hearing held because he was never “removed” from his placement at the grandparents’ home, nor was he ever taken into care. In actuality, the summary judgment motion before Justice Allen was the first contested hearing with respect to the Society’s protection application.

[36] Nevertheless, I am puzzled how, on the evidence before him Justice Allen found that M.V. was at risk of physical harm under s. 37(2)(b) of the CFRA, as well as emotional harm under s. 37(2)(g). These clauses read as follows:

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 that person’s,

(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) (g) there is risk that the child is likely to suffer emotional harm of the kind described in sub-clause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

[37] I agree that K.V.’s evidence illustrates a history of cocaine use, an estranged relationship with family members, and prior involvement in abusive relationships. However, Justice Allen failed to recognize that three months earlier K.V. voluntarily placed her son with her parents, for his safety, while she sought treatment. This certainly does not amount to a “failure to adequately care for”, or, to present a “pattern of neglect” in caring for her child.

[38] Also, in support of his finding that M.V. was in need of protection under s. 37(2)(g) of the CFSA, Justice Allen’s states that Ms. K.V. has a history of “mental instability”. He cites Ms. K.V.’s “mental issues” as part of the basis for this finding.

[39] Justice Allen’s determination with respect to K.V.’s mental health is not supported by the evidence before him. Ms. K.V’s psychiatric assessment (which was before the court) provides a provisional diagnosis of “Attention Deficit Hyperactivity Disorder – Combined Type”, for which a treatment plan was provided. The characterization of Ms. K.V. as “mentally unstable” is overly broad, unfair and unsupported by the evidence.

[40] Section 37 2(b) and (g) of the CFSA together contemplate physical and emotional harm caused by the person having charge of the child. As established, Ms. K.V. did not have charge of the child at the time of M.V.’s apprehension. M.V. had resided out of her care for over three months. In that set of circumstances, M. was certainly not at risk or needed to be protected from K.V. Only if K.V. removed M. from her parents’ home would there then be created (by her unilateral action of removal) a possible, or potential risk, threat or danger to the child. Therefore, the Society’s protection application, which names Ms. K.V. as the Respondent, was entirely ill-founded. Justice Allen erred in both law and fact by not recognizing the faulty basis upon which the protection application was launched. This lack of any basis in fact for the apprehension and the following Protection Application in my view nullifies the protection finding upon which Justice Allen’s disposition is based.

Hearsay Evidence

[41] Family Law Rules 14(19) and 16(5) provide the court with discretion to accept or reject hearsay evidence in affidavit material. Despite this discretion, however, Rule 16(5) does attach a consequence where evidence is not from personal knowledge (“conclusions unfavourable to the party”).

[42] Generally speaking, evidence at a motion for summary judgment should meet the same test as oral testimony. In other words, evidence should be of a level and quality that could withstand the rigour of a trial. In order to admit hearsay evidence, it must pass the test of necessity and reliability. (See Huron-Perth Children’s Aid Society v. H. (C.), 2007 ONCJ 744; Children’s Aid Society of Hamilton v. N.(M)(2007), 2007 13503 (ON SC), 156 A.C.W.S. (3d) 1043 (Ont. S.C.J.); P.A.E. v. C.V.E. (1998), 1998 18228 (ON SC), 83 O.T.C. 154 (Ont. Fam. Ct)).

[43] I agree with MacKenzie J. at paragraph [27] in Huron-Perth (supra), where he comprehensively articulates the following test for the admission of hearsay evidence in affidavit materials before the court at paragraph [27]:

• First, the deponent should identify the source of the information and identify that the source must be the original source of the information, or that that person is the person with the personal knowledge or observation of the fact alleged;

• Second, the deponent must explain the reason why the original source of the information has not sworn his or her own affidavit and therefore why it would be necessary for the court to accept hearsay evidence or those facts as opposed to the direct evidence of those facts;

• Third, the deponent must explain the circumstances of how the hearsay evidence was obtained, why the source would have knowledge of the information and the full details of the information and the source so that the court can ascertain the soundness of the information and the source and assess some kind of level of reliability to that evidence;

• Last, the deponent must explain not only that they believe the evidence from the hearsay source, but they have got to give for every piece of hearsay evidence reasons why they and the court should believe the source and rely on that untested evidence.

[44] I also agree with Justice Sherr’s view in Children’s Aid Society of Toronto v. B.B. 2012 ONCJ 646, where he observes at paragraph [25]:

… I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination.

[45] The affidavit evidence before Justice Allen included large segments of hearsay, specifically where the deponent was not the original source of the information. Three illustrative examples of such evidence are:

(1) Evidence of Jennifer Evans, Child Protection Worker, at paragraph [10]:

On September 15, 2011, I received a voicemail from A.V., Ms. K.V’s sister-in –law, indicating that when [the grandparents] dropped M.V. off at their home they advised they did not want M.V. to return to their home when they returned from vacation.

(2) Evidence of Sherry Rehkopf, Kinship Services Worker, at paragraph [25]:

On January 24, 2013, Stephen Lott and I met privately with M.V. to discuss discipline techniques that were being used by [the grandparents]. M.V. did not disclose having time-outs in the garage. According to Stephen Lott, [the grandfather] informed him that they have used the time-outs in the garage when M.V. is really having issues. The grandfather said that M.V. is only there for a short period and he calms down very quickly as he really doesn’t like it. He also explained that he and his wife were always standing at the door to the garage to monitor him.

(3) Evidence of Heidi Slessor, Child Protection Worker, at paragraph [19]:

I was advised by Nancy Wigby and believe that on December 22, 2011, she addressed a duty call with Ms. K.V. regarding a Christmas visit. Ms. K.V. advised that she had been told she could have a Christmas visit with M.V., and threatened to attend the bus stop and take M.V., or attend on December 25, 2011 to see M.V. Nancy Wigby advised the paternal grandfather to pick M.V. up from school directly, the school was advised not to send M.V. on the bus, and the maternal grandparents were advised to contact the police should there be any problems with K.V. attending the home. K.V. was contacted regarding this.

[46] The above statements may be described as double and even triple hearsay. I find that Justice Allen erred in law by admitting and relying upon such evidence that could not “withstand the rigour of trial”. Given the nature of this summary judgment proceeding, the finality of the disposition imposed, and the impact upon all parties, evidence must be restricted to “admissible” evidence. The Appellant is, therefore, successful on this ground of appeal.

Consent Requirements under s. 57.1

[47] Under s. 57.1 of the CFSA, if a court finds that a custody order would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[48] The Appellant submits that such consent was not obtained from the grandparents prior to the custody order being made. Although the Appellant is technically correct, I am disinclined to grant the appeal on this ground. This objection is procedural in nature, and does not go to the substantive, paramount issue in this proceeding – the interests of the child. In any event, such “consent”, although not in writing could, in my view be safely inferred in light of the fact then (and now) that M. continued in the care of his grandparents.

Plan of Care

[49] Section 37(3) of the CFSA lists a number of considerations that must be taken into account to make an order or determination in the best interests of a child already found in need of protection. As held in Children’s Aid Society v. A. (R.E.) 2009 55338 (ON SC), 2009, 76 R.F.L. (6th) 316 (Ont. S.C.J.), while the preferred approach is for the trial judge to identify s. 37(3) and proceed to apply it, the trial judge’s failure to identify and quote this section does not mean that he failed to apply it, as he was required. There is no indication, however, that Justice Allen turned his mind to the considerations listed under s. 37(3) in coming to his disposition.

[50] The eighth listed required consideration under s. 37(3) reads as follows:

8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

[51] Justice Allen erred in law by not recognizing that there was no Plan of Care filed by the Agency with respect to the protection application before him.

[52] Also codified under s. 56 of the CFSA, the court shall, before making any disposition, obtain and consider the Society’s plan for the child. Given the absence of this key document, specifically required by the legislation, in the materials, this requirement was not fulfilled.

[53] Again, I am unwilling to grant the appeal on such a procedural ground alone and decline to do so.

ORDER

[54] Accordingly, the appeal succeeds, but the relief sought is denied. I do not direct a trial on any issue. Instead, I choose to dismiss the Society’s Protection Application in its entirety, since on the uncontroverted evidence, it was ill-founded (for the reasons described above). At the time of the apprehension and until the summary judgment motion hearing, the child was certainly not in need of protection from the respondent mother. The Agency case could never succeed.

[55] I therefore set aside the Order of Allen J. in its entirety and dismiss the Protection Application completely.

[56] This Order is stayed, however, for 10 days from the date of these reasons, in light of the impact of the Order on the litigants, and on the child’s extended family. This hiatus will allow K.V. and M.’s grandparents a brief time to assess their legal positions, obtain legal advice (if they so wish) and commence whatever C.L.R.A. application they deem necessary and/or appropriate.

Costs

[57] Although the Appellant is successful in this appeal, she is unsuccessful in the relief she sought. In light of the inordinate amount of time consumed at the hearing of this appeal, consumed mostly endeavouring to make sense of and to understand the Appellant Counsel’s submissions, the Appellant shall not be granted any costs.

[58] Also, although the Agency was successful in avoiding the trial of an issue, the Protection Application was itself ill-advised and dismissed. Therefore, the Agency should also not succeed in receiving a costs order.

[59] Accordingly, there shall be no order of costs to either party.

G.A. Campbell J.

Released: December 5, 2013

COURT FILE NO.: FS-479-13

DATE: 2013-12-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of the Regional
Municipality of Waterloo

Applicant/
Respondent on Appeal

-and-

K.V.

Respondent/
Applicant on Appeal

REASONS FOR JUDGMENT

G. A. Campbell J.

Released: December 5, 2013