SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: FS-13-1300-AP
DATE: 20140703
RE: THE OFFICE OF THE CHILDREN’S LAWYER, Moving Party/Children’s Lawyer
AND
FAMILY AND CHILDREN SERVICES OF RENFREW COUNTY, Respondent
AND
G.C., Appellant
AND
P.B., Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL:
Thomas Prince, for the Office of the Children’s Lawyer/Moving Party
B. Lynne Felhaber, for Children’s Aid Society of Renfrew County
G.C., Self‑represented
HEARD IN PEMBROKE: May 16, 2014
ENDORSEMENT
[1] The Office of the Children’s Lawyer brings this motion to quash the Appellant’s appeal pursuant to s. 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). Alternatively, the Children’s Lawyer seeks an Order for Summary Judgment dismissing the appeal pursuant to Rule 38(28) of the Family Law Rules, O. Reg. 114/99 (“Family Law Rules”).
Background
[2] This proceeding involves an appeal of the decision of Justice Selkirk dated December 3, 2013 granting a Motion for Summary Judgment brought by the Children’s Aid Society of the County of Renfrew (“the Society”). In that decision, Justice Selkirk ordered that the children, N.B., born […], 2002 and A.B., born […], 2008 be Crown Wards with access to the parents to be in the discretion of the Society and access to occur between the children. Access to the Appellant was to be supervised. Justice Selkirk’s Reasons for Judgment were appealed by the Appellant. The mother, P.B. did not oppose the Crown Wardship Order.
[3] At the hearing of this motion to quash, the Society supported the relief sought by the Office of the Children’s Lawyer. The Appellant, G.C., is now self-represented and opposed the motion. The mother, P.B., did not attend and did not file any documents. In response to the motion, the Appellant filed an unsworn affidavit dated May 5, 2014. In support of his appeal, the Appellant filed a Factum dated February 8, 2014.
[4] For the purpose of this motion and in consideration of the fact that the Appellant is no longer represented by counsel, I have considered all of the documents filed by the Appellant being a letter to the Society dated April 7, 2014, the unsworn affidavit dated May 5, 2014 and the Appellant’s Factum to give full consideration to all the Appellant’s grounds for appeal and arguments in support of his position.
Position of the Moving Party
[5] The Application is made under the Child and Family Services Act, R.S.O. 1990, c. C.11, as am. (“CSFA”) for an Order that both N.B. and A.B. are children in need of protection and an order that they be made Crown Wards. During the proceedings, a s.54 assessment was conducted by Dr. Nitza Perlman and there were numerous affidavits filed by the Society which set out the challenges faced by the children and their parents. These documents formed part of the record before Justice Selkirk at the motion for summary judgment.
[6] The Children’s Lawyer contends that the Notice of Appeal does not list any grounds of appeal or allege any errors of law and/or fact by the Motion Judge upon which the appeal could be granted. There are no references to the material filed on the Motion for Summary Judgment and there is no indication of the Order being requested on appeal.
[7] The Children’s Lawyer states that the Notice of Appeal and Factum contain broad statements to the effect that the Society is lying about the Appellant, that he thinks he is a good father, broad denials about the Society’s concerns and broad denials of the Appellant’s past violent behaviour.
[8] The Children’s Lawyer relies on s. 134(1) of the CJA as the authority to quash this appeal in the circumstances.
[9] Alternatively, the Children’s Lawyer moves under Rule 38(28) of the Family Law Rules for summary judgement without the hearing of the appeal. It is argued that the same test applies as under Rule 16 and that the provisions of Rule 16 be adapted to the appeal stage.
[10] The Children’s Lawyer relies on Children’s Aid Society of the County of Simcoe v. S.T.1 2009 57458 (ON SCDC), [2009] OJ No.4402 (“Children’s Aid Society of the County of Simcoe v. S.T.1”) in advancing the following standard to be applied for summary judgment on appeal:
a. The onus remains on the moving party to satisfy the court that there is no genuine issue in dispute requiring a hearing;
b. The concept of “no genuine issue” is the equivalent of “no chance of success” or “plain and obvious that the appeal cannot succeed”. Accordingly, the onus is on the moving party to satisfy the court that it is plain and obvious that the appeal cannot succeed;
c. The parties have an obligation to put their best foot forward on the motion. The appellant cannot rest merely on the grounds of appeal set out in the Notice of Appeal, but should be able to demonstrate that the grounds are supported by the record before the court; and,
d. The motions judge should take a good, hard look at the merits of the appeal, having regard to the applicable standards of appellate review.
[11] The Children’s Lawyer acknowledges that while the court’s jurisdiction to grant summary judgment in child protection cases should only be exercised in the clearest of cases, this is one of those cases and I should exercise my discretion in these circumstances.
[12] Finally, the Children’s Lawyer states that the children are in need of finality. While the delay leading up to the August 6, 2014 scheduled appeal hearing date is not significant, there is the possibility of further delay. The pending appeal only goes to delay permanency planning for the children.
Position of the Society
[13] The Society supports the submissions of the Office of the Children’s Lawyer. It takes issue with the Appellant’s Factum and the evidence of the Appellant contained therein. The Appellant’s facts have not properly been adduced as evidence and are not properly before the Court.
[14] The Society relies upon a number of affidavits filed in the Appeal Book of the Children’s Lawyer which were before the Motion Judge to challenge the evidence referred to in the Appellant’s Factum. In particular, the Society relies on the following evidence:
a. The children were apprehended in August 2011 following an incident of domestic violence and the Appellant was charged and convicted of assaulting P.B.;
b. The children were found in need of protection in March 2012 and placed in the care of P.B. with supervised access to the Appellant;
c. The children were again apprehended in September 2012 from the care of P.B. with the Society having concerns about P.B. being unable to address the needs of the children and particularly the medical needs of A.B.;
d. Since the initial apprehension, the Appellant has only had supervised access with the children. He has been hostile and shown threatening behaviour towards Society workers and engaged in inappropriate adult discussions with the children;
e. From Early November 2011 to early February 2012, the Appellant was not exercising access with the children as he did not feel his access should be supervised;
f. The Appellant was uncooperative with Society workers and refused to speak or communicate with the worker assigned to the family from August 2012 to October 2013.
[15] The Society further relies upon the parenting capacity assessment ordered under s. 54 of the CFSA which makes the following findings:
a. The Appellant loves his children but denies or minimizes the problems caused by inadequate parenting;
b. The children’s attachment to their parents is insecure at best;
c. The Appellant has been observed to have aggressive outbursts, sometimes in the presence of the children. He tends to deny fault and his insight is poor. His fragile coping abilities and his vulnerability to outbursts of anger are of concern;
d. Both children have significant special needs and require skilled caregivers to overcome their difficulties and realize their potential. Since coming into care, the children have made significant progress;
e. The parents are “unlikely to be able to make significant changes in the foreseeable future” to meet the needs of the children.
[16] In the end, the Society states that the Appellant has never fully engaged with the Society to demonstrate an ability to care for the children. The plan of care is a basic one which does not recognize the special needs of the children. The Society supports the conclusion of Dr. Perlman whereby the Appellant is unlikely to be able to meet the needs of the children.
Position of the Appellant
[17] The Appellant’s position is set out in the Notice of Appeal, the Factum, an unsworn affidavit dated May 5, 2014 and a letter directed to the Society which is dated April 7, 2014.
[18] The information in the Appellant’s documents is not significantly different than that which is stated in his affidavit dated October 15, 2013. His affidavit was before the Motion Judge. While the Appellant makes numerous statements and allegations in trying to address the issues raised by the Society and the Children’s Lawyer, his main issues are as follows:
a. He is not a violent person, he never lies and the children would never be in danger in his presence. He is a good parent;
b. The Society has repeatedly lied in its materials about him and misinterprets his words so he comes off looking angry or violent. He denies all allegations made against him by way of broad denials;
c. The witnesses at his criminal trial lied to the court and he denies that he was ever violent with P.B.. He wanted N.B. to testify about certain matters relating to the criminal proceedings. He was represented by counsel at his criminal trial;
d. He disagrees that he demonstrates violent behaviours, that he is unpredictable or that he has poor mental health;
e. He is aware of the children’s special needs and will work with all services to assist them in their development;
f. He feels that the children are not properly represented by the lawyer appointed by the Office of the Children’s Lawyer and seeks a new appointment;
g. He disagrees with the findings of the assessment of Dr. Perlman that the children’s attachment to their parents is insecure. He denies the findings of her assessment.
[19] In addition, the Appellant’s unsworn affidavit states that he opposes the finding that the children are in need of protection. In essence, the Appellant’s appeal contests that the Motion Judge preferred the evidence of the Society over his own.
[20] The Appellant’s Factum makes reference to a number of sections of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”) without setting out in sufficient detail the nature of the alleged Charter breaches.
[21] In argument at the motion before me, the Appellant repeated most of the above statements from his documents and argued that the hearing before the Motion Judge was based on untruths although he was represented by counsel at the Motion for Summary Judgment. The Appellant was asked to specifically address the errors of the Motion Judge but was unable to do so. As such, the only ground which has been put forward on the appeal is based on error of fact that the Motion Judge preferred the evidence of the Society over his evidence.
Analysis
Issue One: Should the appeal be quashed, pursuant to s. 134(3) of the CJA on the basis that there are no grounds for appeal and it is manifestly devoid of merit?
[22] The authority to quash an appeal is found under s. 134(3) of the CJA. In the family law context, an appeal which is “manifestly devoid of merit or without grounds is a proper case for quashing an appeal” (Fernbach v. Fernbach, [2004] OJ No 1188 (Sup Ct J) at para. 29.
[23] It is arguable that the standard to be applied on this motion to quash should be no different given that the Appellant is self-represented on this appeal and has obviously drafted his own documents without assistance. However, I am of the view that the Court must be mindful of the challenges that face unrepresented litigants and particularly where they are asked to present legal arguments which must meet a legal threshold. In these circumstances, I have reviewed all of the Appellant’s documents in an attempt to determine if the issues raised by the Appellant can be construed as grounds upon which the appeal could succeed. This position is supported by the findings of the Divisional Court in Cicciarella v. Cicciarella (2009) 34988 (ON SCDC) where the Court stated that leeway is allowed for a self-represented part, especially as it relates to procedural matters. In the present case, I interpret this as meaning that the Court may look at the Appellant’s documents and interpret what the Appellant is trying to say and how it relates to the legal issues. However, I must keep in mind that this must be done fairly while maintaining judicial neutrality.
[24] The main issue raised by the Appellant is that the Motion Judge granted summary judgement based upon a faulty evidentiary record. While the Appellant does not frame his position as alleging incorrect findings of fact, it is in essence what he has done. The Applicant’s position is that the findings made were based upon affidavits which included false statements about him. He is therefore attacking the evidentiary record which was before the Motion Judge and the conclusions which formed part of the decision to grant summary judgment.
[25] While the language used in the Notice of Appeal does not express the grounds for appeal in a typical fashion, I am unable to conclude that a challenge to the findings of fact made by the Motion Judge does not represent a ground of appeal. In addition, the Appellant did file an affidavit which was before the Motion Judge and as such I cannot conclude that there is no merit in the grounds raised. I am of the opinion that while the merits of the appeal are very limited, they are not “devoid of merit” as they do raise the issue of errors in findings of fact by the Motion Judge.
[26] The Children’s Lawyer’s motion to quash the appeal is therefore denied.
Issue Two: Should the appeal be determined by way of summary judgment, pursuant to Rule 38(28) of the Family Law Rules, as it is plain and obvious that the appeal cannot succeed?
[27] Rule 38(28) of the Family Law Rules provide the authority to grant summary judgment on appeal. The rule states:
After the notice of appeal is filed, the respondent or any other person who is entitled to be heard on the appeal may make a motion for summary judgment or for summary decision on a legal issue without a hearing of the appeal, and rule 16 applies to the motion with necessary modifications.
[28] Rule 16(2) of the Family Law Rules further confirms that the Court may grant summary judgment in child protection proceedings.
[29] The law relating to a motion for summary judgment at the appellate level is well summarized in Children’s Aid Society of the County of Simcoe v. S.T.1 at para. 46. The moving party must demonstrate that it is plain and obvious that the Appeal cannot succeed. The Appellant must put his best foot forward and the Court must take a hard look at the appeal record and determine if there are merits having regard to the applicable standards of appellate review.
[30] In analysing the relevant legal principles, I am mindful that in child protection cases, the granting of summary judgment is only to be exercised in the clearest of cases and with extreme caution (M.S.V. v. Children’s Aid Society of Algoma, 2009 85329 (ON SC), [2009] OJ No. 6192 (Sup Ct J) at para. 10). The Court must weigh the Appellant’s right to be heard on appeal and the best interests of the children.
[31] At the appellate level, I am not to question the facts which were before the Motion Judge. Determinations of credibility have been made by the Motion Judge and in the absence a misapprehension of the evidence, the findings of fact by the Motion Judge are not open to challenge (see Children’s Aid Society of the County of Simcoe v. S.T.1 at para. 13).
[32] As previously stated, the Appellant’s grounds are that the Society lied in its affidavits and that the Appellant is a good parent who loves his children and wants to provide for them. The only interpretation that can be given to the Appellant’s documents is that he challenges the findings of fact made by the Motion Judge. The Appellant’s documents raise no errors of law or errors of mixed fact and law. As such the legal standard to which the appeal must be evaluated is that the Motion Judge’s findings of fact cannot be overturned absent palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).
[33] This Court has reviewed the affidavits of the Society which were before the Motion Judge which includes the Appellant’s affidavit dated October 15, 2013. The findings of the Motion Judge are supported by the affidavit evidence of the Society and the content of the report of Dr. Perlman. There was overwhelming evidence to support the findings of the Motion Judge. Even in considering the additional documents provided by the Appellant which have not properly been put in evidence and affording them the most generous of interpretations, the Appellant is unable to raise any issue upon which the appeal could be granted.
[34] The Motion Judge makes clear reference to the evidence before him at paras. 13 to 24 of the Reasons for Decision. The evidence of the Society was weighed against the evidence of the Appellant. The Motion Judge concludes that he agrees with the findings of Dr. Perlman whereby the Appellant does not have the capacity to parent or the insight to change. These are findings made by the Motion Judge based on his assessment of the evidence and the Appellant has not raised any palpable and overriding error in these findings. It is plain and obvious that the appeal cannot succeed and the Children’s Lawyer has satisfied the onus for granting summary judgment.
[35] Finally, while the period before the scheduled appeal is short, there is no reason for further delaying permanency placement for these children. It is not in the best interest of these children to allow this appeal to proceed.
[36] For the above reasons, the request for summary judgment by the Office of the Children’s Lawyer is granted.
Conclusion
[37] In the result, the motion to quash the appeal is denied and the request for summary judgment is granted.
[38] As neither the Office of the Children’s Lawyer or the Society has requested costs of this motion, there shall be no order as to costs against the Appellant.
Mr. Justice Marc R. Labrosse
Date: July 3, 2014
COURT FILE NO.: FS-13-1300-AP
DATE: 20140703
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: G.C., Applicant
AND
FAMILY AND CHILDREN SERVICES OF RENFREW COUNTY, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Thomas Prince, for the Office of the Children’s Lawyer/Moving Party
B. Lynne Felhaber, for Children’s Aid Society of Renfrew County
G.C., Self‑represented
ENDORSEMENT
Labrosse J.
Released: July 3, 2014