ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-231-00AP
DATE: 20131212
BETWEEN:
THE BRUCE-GREY CHILD AND FAMILY SERVICES
Mr. C. Hutton, for the Applicant
Applicant/Respondent on Appeal
- and -
T.G. and E.C.
Ms J. Gamble, for T.G.
Mr. S. Vining, for E.C.
Respondents/T.G. the Appellant
Mr. D. Lovell for the Office of the Children’s Lawyer
HEARD: December 10, 2013
REASONS FOR DECISION
ON MOTION FOR STAY PENDING APPEAL
Conlan J.
Introduction
[1] The mother, T.G., has appealed the final Order of Harrison J. of the Ontario Court of Justice made in Owen Sound on 30 September 2013.
[2] That decision of Harrison J. granted the motion for summary judgment brought by Bruce Grey Child and Family Services (hereinafter referred to as the “Society”).
[3] The child, a girl born on […], 2011, was found to be in need of protection under subsections 37(2)(b)(i) [risk of physical harm] and 37(2)(g) [risk of emotional harm] of the Child and Family Services Act.
[4] The disposition was an Order that the child be made a Crown ward without access to either parent, for purposes of adoption.
[5] Each parent was represented by separate counsel before the lower Court. Each parent opposed the motion by the Society.
[6] In the Court below, counsel for the child supported the Society’s motion for summary judgment.
[7] On December 10, 2013, I heard a motion by the appellant mother to stay the Order of Harrison J. made on 30 September 2013 and permit access between the mother and the child pending the disposition of the appeal itself. The mother’s motion is supported by her affidavit sworn on November 8, 2013.
[8] In response to the appellant mother’s motion, the Society has filed affidavits sworn by two child protection workers, an affidavit sworn by the foster parents and an affidavit sworn by the family resource worker.
[9] The appellant mother is just 18 years old. Prior to the Order under appeal, the mother was having supervised access with the child.
[10] Since the end of March 2011, so for nearly all of the child’s life, the girl has lived with the same foster parents. Those foster parents are prepared to adopt the child.
[11] Before me on the motion, the appellant mother was represented by new counsel. The father, who supports the mother’s motion and who supports her appeal, was represented by a new lawyer agent. The child was represented by the same counsel as in the Court below; and that counsel opposes the mother’s motion and her appeal. The Society, through its counsel, opposes the motion for a stay brought by the appellant mother and her appeal.
The Test for a Stay of the Order Pending Appeal
[12] Under subsection 69(4) of the Child and Family Services Act, I “may, in the child’s best interests, make a temporary order for the child’s care and custody pending final disposition of the appeal…”
[13] In my opinion, Mr. Hutton as counsel for the Society is correct when he submits that there has been somewhat of an evolution in the jurisprudence regarding the test to be applied in the circumstances of this motion brought by the appellant mother.
[14] In the past, it seemed rather settled that, in determining whether to permit access between the appellant parent and the child pending appeal, the Court ought to consider:
(i) the merits of the appeal so as to ensure that there is a serious issue to be litigated;
(ii) whether the appellant parent would suffer irreparable harm if the stay is refused; and
(iii) an assessment of which of the parties would suffer greater harm from the granting or the refusal of the stay requested pending a final disposition of the appeal on its merits.
[15] Of course, the paramount consideration remained whether the relief sought is in the best interests of the child. Children’s Aid Society of the Districts of Sudbury and Manitoulin v. B.(S.), 2006 14961 (ON SC), [2006] O.J. No. 1808 (S.C.J.).
[16] Further, the jurisprudence emphasized that an order regarding access (or no access) should not be stayed pending appeal in the absence of a viable argument that an error was committed by the lower court Justice or new circumstances being shown. Children’s Aid Society of Metropolitan Toronto v. M.(R.), 1985 1908 (ON SC), [1985] O.J. No. 1571 (Dist. Ct.).
[17] Today, I prefer the approach taken by Justice Ricchetti in Children’s Aid Society of the County of Bruce v. D.J., [2011] O.J. No. 4762 (S.C.J.). I rather slavishly adopt the language of Ricchetti J. at paragraph 33 of that decision:
“… these motions should be approached in the following manner:
(i) The appellants must show there is a serious issue to be determined in the appeal; and
(ii) based on a consideration of all relevant factors set out in the Act as to what is in the Children’s best interests, what interim order pending the appeal would be in the Children’s best interests?”
[18] In my view, this two-pronged analysis is simpler. It is also more consistent with the language of the legislation itself which mentions only best interests in section 69(4) referred to above. And it is more consistent with the jurisprudence generally that child protection matters must be focussed on the child and not on the parties.
[19] The following five grounds of appeal are advanced in the mother’s Notice of Appeal dated 16 October 2013.
That with the greatest of respect, the Honourable Justice S.P. Harrison shifted the evidential burden onto Ms G. to prove a genuine issue for trial, while the evidential burden always remains on the Society to prove the non-existence of a genuine issue for trial.
That with the greatest of respect, the Honourable Justice S.P. Harrison made his determination that there was no genuine issue for trial, largely on the basis of Affidavit evidence of Society workers, including some hearsay comments in the Society’s Affidavits, which if struck at trial, could affect the disposition.
That the Honourable Justice S.P. Harrison relied on incorrect information contained in the Parenting Capacity Assessor’s report concerning the alternative plan of Ms T.G. to have her mother, P.G. have care of the child. The incorrect information contained in the Assessment of Dr. Louise Sas concerned the state of the home of Ms P. G. This is an issue that requires a trial as all of the other evidence concerning Ms P.G.’s home is contrary to Dr. Louise Sas’ findings of the home, and yet Justice Harrison relied very heavily on Dr. Sas’ findings.
That Justice S.P. Harrison did not have any direct evidence (i.e. hair strand analysis) of present drug and/or alcohol abuse on the part of Ms T.G. and he relied simply on the hearsay evidence in the Society worker’s Affidavits to conclude there was a present drug and/or alcohol abuse problem. This is a matter that requires a full hearing to determine.
That as this is a child protection matter where the issue of protection had not been determined prior to the Summary Judgment motion, under the Child and Family Services Act, the presumption is that the child should be returned to the party who had charge of the child prior to the intervention. There was no direct evidence that the child had ever been harmed physically or emotionally, nor was there any direct evidence that the child was at risk of physical or emotional harm. It is respectfully submitted that Justice S.P. Harrison was not able to discharge his duty under section 53(d)(ii) of the Child and Family Services Act and his reasons for why the child could not be adequately protected by Ms T.G. were inappropriate as they were based on evidence that requires a trial of the issues.
Analysis
[20] The appellant raises a preliminary objection as to the admissibility of the affidavit sworn by the child’s foster parents, filed by the Society in response to the mother’s motion.
[21] That objection is dismissed. The affidavit of the foster parents is admissible on this motion. Whether it is admissible at the hearing of the appeal proper is another inquiry – that depends on whether the Society seeks and obtains leave of the Court to file further or fresh evidence on the appeal.
[22] In my view, the test for the admissibility of fresh evidence on appeal of a Crown wardship, no access order does not strictly apply to a motion brought to stay the order and reinstate access pending the appeal. By its very nature, such a motion will almost inevitably include evidence that was not before the Justice who made the order under appeal.
[23] In fact, in this case the affidavit of the appellant mother in support of her own motion contains evidence that was not before Harrison J.
[24] The appellant mother has not satisfied me on balance that the Order of Harrison J. ought to be stayed and access between the mother and the child reinstated pending a final disposition of the appeal.
[25] Most important, I am not persuaded on balance that the relief sought by the appellant mother would be in the best interests of the child.
[26] On the question of whether the appeal has merit, I am cognizant that the threshold is not a high one for the appellant mother to meet. It is not a heavy onus but merely one which requires me to conclude that the appeal is not frivolous or devoid of merit and, thus, has an arguable chance of success.
[27] On the record before me, despite the able arguments of Ms Gamble on behalf of the appellant mother, I am not so satisfied.
[28] Taking the grounds of appeal raised one by one, first, I find not a trace of evidence in the Reasons of Harrison J. that His Honour shifted the burden of proof in any way from the Society to the mother, except where His Honour comments, quite correctly in law, that the onus is on the parents to demonstrate that continued access in the face of a Crown wardship order would be beneficial and meaningful for the child.
[29] Second, I have no reason to doubt the lower court Justice when His Honour states explicitly in His Reasons that hearsay evidence on the summary judgment motion brought by the Society is inadmissible and not to be considered. Nothing in the Reasons or in the record before me suggests that His Honour departed from that principle very clearly stated near the start of the decision.
[30] Third, in my review of the Reasons, the state of the home of P.G. played no part at all in the ultimate decision to grant summary judgment in favour of the Society, regarding either the findings in need of protection or the disposition.
[31] Fourth, in my review of the Reasons, drug and/or alcohol abuse on the part of the appellant mother (as opposed to the father or the grandmother) played no part at all in the ultimate decision to grant summary judgment in favour of the Society, regarding either the findings in need of protection or the disposition.
[32] Fifth, there was cogent evidence before Harrison J. in the form of undisputed facts (summarized thoroughly at pages 8 through 14 of the Reasons) which amply support the protection findings that there existed a risk of physical and emotional harm to the girl in the care and custody of her mother. Further, commencing at page 17 of the Reasons, the Justice outlined numerous factors as to why the child could not be adequately protected in the care and custody of the mother.
[33] Finally, although not pleaded in the Notice of Appeal, out of fairness to the mother I will deal with the oral submission by counsel before me on the motion that the strongest arguments are that Justice Harrison
(i) improperly weighed the evidence and made credibility findings against the mother, and
(ii) granted summary judgment when a trial was required to cross-examine the expert assessor and explore further the doctor’s finding that the child was attached to the mother.
[34] On the former, I see nothing in the Reasons to suggest that the Justice did what is being alleged. Again, many of the conclusions drawn by His Honour were based on undisputed evidence, including the remark that the mother is a person capable of deceit.
[35] On the latter, it must be remembered that the expert assessor also recommended Crown wardship without access. The doctor found a strong attachment between the child and the foster parents. The doctor opined that to sever the bond between the mother and the child would not be contrary to the girl’s best interests, while to do so regarding the connection between the girl and her foster parents would be nothing short of traumatic for the child.
[36] In that more amplified context, I see no arguable chance of success in the argument on appeal that a trial was required to make better sense of the evidence of Dr. Sas.
[37] Frankly, even on a generous assessment, I see no arguable chance of success in any of the grounds of appeal raised by the mother. As such, the motion for a stay of the Order of Harrison J. must be dismissed as having failed to satisfy on balance the first criterion.
[38] If I am wrong in that conclusion, I find as well that the second criterion has not been established on balance – it would not be in the best interests of the child to reinstate access between her and her mother pending the appeal.
[39] Although I acknowledge that the mother had generally positive supervised access with her daughter prior to the Order under appeal having been made, it is also true that Justice Harrison specifically found that continuation of such access would not be beneficial to the child. That finding has not been challenged on appeal.
[40] It would seem passing strange, therefore, to grant access now pending the disposition of the appeal on a final basis.
[41] Besides, the evidence before me as contained in the affidavit of the foster parents speaks of increasing problems and anxiety with the child regarding access with the mother in the months immediately preceding the Order of Harrison J.
[42] Even accounting for the fact that the foster parents are interested “parties” in this proceeding, their evidence in that regard is worth consideration.
[43] In addition, the foster parents speak of the child being more settled since access with the mother was terminated.
[44] In short, to grant the relief sought by the mother on this motion would not be in the best interests of the child. That I am quite convinced of.
[45] As such, the motion by the appellant mother fails.
Conclusion
[46] The motion brought by the appellant mother is dismissed.
[47] This is not an appropriate case for costs. No costs ordered.
[48] The appellant mother shall perfect the appeal as soon as possible so as to ensure that the appeal is listed for hearing without undue delay.
[49] As the Local Administrative Justice, I direct that this appeal be given priority by the Trial Coordinator in terms of scheduling. All counsel and all parties shall cooperate in accommodating a hearing date for the appeal in the near future, in the best interests of the child.
[50] The longer this appeal process takes, the more that works against the mother. The mother deserves a lot of credit for maintaining an active interest in the life of her daughter. She has put forward a good faith effort to litigate her appeal. Her appeal cannot be allowed to be prejudiced by delay in the court system.
[51] I must add a final remark. I have decided this motion with the benefit of very competent submissions by counsel and upon reviewing the jurisprudence filed, but without facta, books of authorities and full argument on the “nitty gritty” of the grounds of appeal.
[52] It may be that, if I hear the ultimate appeal, I may come to a different opinion on the merits of the arguments advanced on behalf of the mother. If, however, the parties object to me hearing the appeal because I have presided on this motion, I will respect that objection and have the appeal hearing scheduled before another Justice, likely Justice Thompson.
[53] I direct that this matter be placed on the Assignment Court list in Owen Sound on February 3, 2014 at 10:00 a.m., before Thompson J. By then, I expect that the appeal may have already been heard, however, that appearance is directed to monitor the progress of the matter.
[54] I thank all counsel for their assistance.
Conlan J.
Released: December 12, 2013
COURT FILE NO.: 13-231-00AP
DATE: 20131212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRUCE-GREY CHILD AND FAMILY SERVICES
Applicant/Respondent on Appeal
- and -
T.G. and E.C.
Respondents/T.G. the Appellant
REASONS FOR DECISION ON MOTION FOR STAY PENDING APPEAL
Conlan J.
Released: December 12, 2013