COURT FILE NO.: C1544/12-02

DATE: 2014/08/18

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: THE CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, Applicant

AND:

R.T., P.W. and M.P., Respondents

BEFORE: Justice I. F. Leach

COUNSEL:
Sandra Welch, for the Applicant

David Winninger, for the Respondent R.T.

Robert Cunningham, for the Respondent P.W.

Paul Lepine, for the Respondent M.P.

HEARD: August 15, 2014

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

ENDORSEMENT

[1] Before me is a request for discrete determination of whether Rule 16 of Ontario’s Family Court Rules permits the court, in determining whether there is “no genuine issue requiring a trial of a claim or defence” pursuant to that rule, (so as to permit the granting of summary judgment in family and child protection matters), to exercise powers similar to those conferred by Rules 20.04(2.1) and 20.04(2.2) of Ontario’s Rules of Civil Procedure.

Background

[2] By way of context:

• This ongoing child protection proceeding is focused on the welfare of two children, “J.L.” (currently age 5) and “D.” (currently age 2).

• The underlying familial relationships and disputed events leading to the proceeding are somewhat complicated, and for present purposes need not be canvassed at length. Suffice it to say that the applicant Children’s Aid Society (CAS) is seeking a finding that the children are in need of protection, with consequential orders placing J.L. in the care and custody of her paternal grandmother, (for a period of 12 months and subject to specified terms of supervision by the CAS), and making D. a Crown ward placed in the care of the CAS. The granting of such relief is supported by J.L.’s paternal grandmother, (the respondent M.P.), and by J.L.’s father, (the respondent P.W.). Such relief is adamantly opposed by the children’s mother, (the respondent R.T.), who disputes the various allegations of child neglect effectively directed against her, and wants J.L. and D. returned to her care.

• The matter proceeded to a trial management conference in December of 2013, and assignment court in January of 2014. Commencement of trial, (with a duration estimate of 10 days), apparently was imminent. However, at a further trial management conference before Justice Templeton in late February of 2014, additional directions were made, one of which kept the matter on the trial list but delayed its being called to trial for a minimum of 14 days, “to allow CAS to determine if [a] motion for summary judgment will be served”.

• The contemplated trial apparently then fell by the wayside when the CAS did indeed then bring a motion pursuant to Rule 16 of the Family Law Rules, O.Reg. 114/99, seeking summary judgment granting the relief described above. That motion by the CAS is supported by M.P., (who has brought her own similar motion in relation to J.L.), and by P.W.. All now want the matter finally resolved in a summary way, without a prolonged trial. The motions are opposed by R.T., who desires a thorough exploration of the accusations against her by trial, before her children are taken away.

• At a further case management conference before Justice Templeton on June 5, 2014, substantive argument of the summary judgment motions was scheduled for August 15, 2014. Various additional directions were made, in an effort to move matters forward and ensure that the motions would proceed to hearing as contemplated. The last such judicial direction apparently was intended to provide all concerned with advance guidance as to how evidence and arguments should be framed, and read as follows: “The test to be applied at this hearing will be as set out by the SCC in Hryniak, failing the acquisition of a Ruling from the presiding justice prior to August 15, 2014”. This clearly was a reference to Hryniak v. Mauldin, [2014] 1. S.C.R. 87, a decision stemming from disputed application of Rule 20 of Ontario’s Rules of Civil Procedure, (as amended in January of 2010), which was released by the Supreme Court of Canada on January 23, 2014.

• All concerned agree that, further to the aforesaid direction, every effort was made, on a timely basis, to secure an advance ruling on “the test to be applied” prior to scheduled return of the summary judgment motion on August 15, 2014. Unfortunately, there was simply no special appointment time available between June 5, 2014, and August 15, 2014. On consent, and with further court approval, the parties therefore agreed to use the scheduled August 15th hearing date to make submissions directed only to the preliminary question of how Rule 16 should be interpreted and applied, with substantive arguments being reserved to a later date.

[3] In the result, when the matter came on for hearing before me, I was expressly asked to limit my considerations and ruling to determination of the manner in which Rule 16 of Ontario’s Family Law Rules was to be applied.

[4] More specifically, it was agreed by all parties that the real “preliminary” summary judgment dispute between the parties was limited to a question as to whether the “expanded powers” conferred by Rules 20.04(2.1) and 20.04(2.2) of Ontario’s Rules of Civil Procedure are also available under Rules 16 of Ontario’s Family Court Rules.

[5] The CAS, M.P. and P.W. say that they are. R.T. says they are not.

Analysis

[6] At the outset of my analysis, I note my agreement with the submissions of R.T.’s counsel that, despite the wording of Justice Templeton’s endorsement, a determination of the legal issue between the parties should not be approached on the basis of any presumption, to be rebutted by R.T., that the Hryniak decision has confirmed the court’s jurisdiction to apply the aforesaid expanded powers in determining summary judgment motions brought pursuant to Rule 16 of Ontario’s Family Law Rules.

[7] I read Justice Templeton’s direction as an attempt to provide the parties with a default position if neither side exhibited any desire or effort to bring the preliminary issue forward for determination in a timely way.

[8] That is not what happened, and determination of the legal issue should be approached from the perspective of striving for a correct answer to a question which may or may not have been authoritatively decided.

[9] As I pointed out to counsel at the outset of the hearing before me, I was not unfamiliar with the ongoing debate as to whether Rule 16 of the Family Law Rules should be interpreted and applied in the manner now being suggested by the CAS, M.P. and P.W..

[10] To the contrary, I had occasion to consider and explore similar issues at length eleven months ago, in the course of deciding Bruxer v. Bruxer, [2013] O.J. No. 4104 (S.C.J.), released on September 11, 2013. At the time, I decided, based on my review of the relevant authorities reported to date, that Rule 16 of the Family Law Rules did not permit resort to the expanded powers set out in Rule 20.04 of Ontario’s Rules of Civil Procedure.

[11] My reasons in that regard can be found at paragraphs 16 to 40 of the Bruxer decision, which for ease of reference read, in part, as follows:

During argument before me, considerable attention was focused on the manner in which the Court should determine whether or not there is a “genuine issue requiring a trial”, and the tools that may or may not be brought to bear in that regard.

In that regard, it was not really disputed that many of the Applicant’s arguments inherently and necessarily ask that I decide the motion in her favour by … weighing the evidence …; evaluating the credibility of a deponent …; and drawing reasonable inferences from the evidence … .

This raises a threshold question as to whether or not the Court has such powers in this particular context [applying Rule 16 of the Ontario Family Court Rules]; a question which unfortunately does not seem to have been authoritatively determined by our Court of Appeal.

Prior to January of 2010, the answer to that threshold question almost certainly was “no”. In particular, drawing analogies to authoritative interpretations of Rule 20 of the Rules of Civil Procedure dealing with summary judgment, (which at the time was worded in a manner similar to Rule 16 of the Family Law Rules), the authorities made it clear that Rule 16 did not permit evaluations of credibility, weighing of evidence, or the drawing of factual inferences, as these were all functions reserved for the trier of fact. See for example Yeomans v. Yeomans, [2001] O.J. No. 2174 (S.C.J.), and more importantly, Kallaba v. Bylykbashi, 2006 3953 (ON CA), [2006] O.J. No. 545 (C.A.).

If that law still governs the proper interpretation and application of Rule 16 of the Family Law Rules, then it seems clear to me that this particular matter cannot be approached in the manner requested by the Applicant, and in my view, I then would be unable to find there is no genuine requiring a trial of the Applicant’s claim and/or the Respondent’s defence. …

[Text continues verbatim in structure exactly as in the source decision through paragraphs 12‑53.]

Justice I. Leach

Date: August 18, 2014