CITATION: Children’s Aid Society of London and Middlesex v. S.M.B., 2015 ONSC 2389
COURT FILE NO.: C251/12-2
DATE: April 21, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Children’s Aid Society of London and Middlesex
Applicant
- and -
S.M.B. and N.B.B.
Respondents
Jill Scrutton-Fulford for the applicant
R. Jonathan McKinnon for the respondents
Salim Khot, Children’s Lawyer for B.B.
Therese Landry, Children’s Lawyer for R.B. and S.B.
HEARD: February 20, 2015
MITROW J.
INTRODUCTION
[1] The applicant, the Children's Aid Society of London and Middlesex (“Society”), brings a motion for summary judgment seeking an order of Crown wardship for three children, B.B. (“B”), R.B. (“R”) and S.B. (“S”), who are sometimes collectively referred to as “the children”; at the time of the hearing of the summary judgment motion, the children were, respectively, ages 13, 10 and 7.
[2] The respondents, S.M.B. and N.B.B., are, respectively, the mother and father of the children (and for convenience are referred to as “mother” and “father”). There is also an elder sibling, K.B., who was age 16 at the time of the hearing of the summary judgment motion.
[3] Although all four children were placed in the temporary care and custody of the Society in April 2012, in February 2013, K was returned to her parents pursuant to an interim supervision order and later that order was terminated.
[4] As a result, K, who continues to reside with her parents, is no longer a subject of any protection proceeding.
[5] In its factum, it was the position of the Society that the order of Crown wardship, if granted, should be silent regarding access. However, at the hearing, the Society advised that it did not oppose sibling access. The parents were opposed to a Crown wardship order being made on the summary judgment motion, and in the alternative, they sought access.
[6] For reasons that follow, the Society’s request for Crown wardship of the children is granted; an order is made for sibling access on an interim basis; and a trial of an issue is ordered with respect to the issue of access between the children and the parents, and also the issue as to the terms of the final sibling access order.
THE RELEVANT FACTS
[7] Reference to “children,” in relation to relevant facts, is a reference to all four children unless indicated otherwise.
[8] The Society and other community organizations have provided the parents and children with substantial services over a number of years. It is the position of the Society, that despite these efforts, the parents have made few if any gains, that the parents are unable to parent the children and that the only order that is in the best interests of the children is Crown wardship. Accordingly, it is important to review the background facts including the services that have been provided to this family.
A. The Evidence of the Society
[9] The parents originally came from Bhutan. They resided in a refugee camp in Nepal prior to coming to Canada in March 2010.
[10] All four children were born in Nepal. All the children had been residing in the care of both parents until they were placed in Society care pursuant to an interim order in April 2012. There is a paternal uncle who resides in the home. The mother and the paternal uncle are deaf.
[11] The father is medicated for epilepsy and has developmental delays. The Society evidence is that the mother has mental health issues, but the evidence in support of that allegation is quite vague and I do not rely on it.
[12] The Society has been consistently involved with this family since June 2010. This file was transferred to society protection worker Maureen Kirwin in August 2010. It is Ms. Kirwin’s evidence that the eldest child K had cared for her siblings and that K was the only member of the household who could read, write or use a computer or telephone. It was evident to Ms. Kirwin that K had taken on the role of the adult in the home.
[13] London Cross Cultural Learner Centre was a community service that provided assistance to the family from June 2010 onward.
[14] A settlement worker was assigned to the family when they first came to Canada in March 2010. This settlement worker and also a housing worker helped to establish the family in a residence. A responsibility of the settlement worker included helping the family to integrate into Canadian culture. The parents were invited to attend groups to meet with other immigrants of their same culture.
[15] The role of the settlement worker was to teach the family life skills including, according to Ms. Kirwin’s evidence, how to use the mail system, where to get groceries, information about city transit, information about doctors and dentists and schools, and also information regarding personal hygiene.
[16] The assistance offered by the settlement worker included such basics as teaching the family how to use a toilet, the bath and the shower. Ms. Kirwin deposes that the parents “struggled” with the idea of using the toilet and the whole concept of running water.
[17] When the children began attending school, all of the children were taught by an ESL teacher (English Second Language). Those children who were school-age started school in April 2010. Ms. Kirwin describes that there were almost “monthly meetings” to assist the father and to teach him the importance of school attendance, ensuring the children were properly attired for the weather, ensuring the children had food to eat for breakfast and lunch, ensuring that the father understood his responsibility to pick up his children after school at the end of the day.
[18] The family relocated to a different community neighbourhood in the spring of 2011. It was hoped that being in this community with a larger population of people of Nepali and Bhutanese origin would assist the family. This necessitated a school change.
[19] Ms. Kirwin deposes that meetings were held that involved the principal, vice-principal, resource teachers, school social worker and the children’s settlement worker from London Cross Cultural Learner Centre.
[20] Ms. Kirwin identifies a number of issues that were of concern that included the following: the children were not making the bus on time; the children were coming to school tired; the children were not appropriately dressed for the weather; the children’s clothing was dirty; the children had head lice; and they were hoarding food in their clothing.
[21] Ms. Kirwin further deposes that the children had to be taught personal hygiene. There was also aggression being exhibited between the siblings amongst themselves in the school yard. There was also an issue that the children had not been coming to school with proper lunches.
[22] The family also had the assistance of the London Urban Services Organization (LUSO) for the period June 2010 to April 2012.
[23] A settlement worker from LUSO began working with the children once they were enrolled in school after the family moved. The responsibilities of the settlement worker included working with the children and the school. Ms. Kirwin dealt primarily with the ESL teacher, and various school principals.
[24] The family also received assistance from “LINC” (Language Instruction for Newcomers) from June 2010 onwards.
[25] Ms. Kirwin deposes that the LINC classes are designed specifically for new immigrants to teach them English and some elementary education. The parents are taught such basics as days of the week, how to read a calendar and how to tell time.
[26] Ms. Kirwin deposes that, despite the availability of these classes, the parents did not attend regularly until after the children were apprehended.
[27] Ms. Kirwin deposes that the father continues to use the LINC service and that in 2014 the mother started alternative classes that were designed for her needs, facilitated through the Hearing Society.
[28] Ms. Kirwin deposes that the parents had been asking her and other organizations to assist in getting their citizenship. It was Ms. Kirwin’s evidence that the parents were discouraged from doing this because they would lose their immigrant status and would not be able to participate in LINC and some other services that they require. Ms. Kirwin also added that in her view the parents could never apply for citizenship on their own as they must have “level 4 literacy” which they could never attain due to disabilities.
[29] Ms. Kirwin also described individuals that had emigrated from the Nepali refugee camp before the B’s and who knew of the family. Ms. Kirwin’s evidence was that immigrants can work with a settlement worker from the London Cross Cultural Learner Centre for up to three years. There were volunteers who were connected to the London Cross Cultural Learner Centre and who volunteered to work with the family with interpreting and also any other way that they could help. Those individuals finished their involvement in early 2012.
[30] Ms. Kirwin referred to the “lice squad and public health unit” that assisted the family from August 2010 to December 2011 to treat infestations of the children’s hair and also to educate the parents about lice prevention and treatment. Also the family was educated about “life skills including: medical/dental care for the children, personal hygiene such as bathing and tooth brushing, how to pay bills, and how to ensure healthy meals.” Later the Society provided a family support worker to assist the family, in place of the public health nurse.
[31] The Canadian Hearing Society assisted the family from May 2011 until present. The Canadian Hearing Society had involvement with the family to ensure that they had a smoke detector and doorbell for the hearing impaired and they were also responsible to ensure that the equipment was in working order.
[32] Ms. Kirwin deposes that The Canadian Hearing Society played an important role in coordinating services for the mother. Ms. Kirwin described that there are immigrants coming to Canada who cannot be taught ASL (American Sign Language) because they are “deaf, mute and/or have no knowledge of any formal language.”
[33] The B’s were described by Ms. Kirwin as being the first Bhutanese/Nepali refugees with their distinct problems to come to London and that in response to their need, the Canadian Hearing Society organized and developed a specific program to assist such persons. This program is offered through the LINC program. Ms. Kirwin deposes that the mother attends ASL classes with other Nepali people who have similar challenges. The class includes a deaf interpreter who works in coordination with the ASL instructor. Ms. Kirwin described that the deaf interpreter interprets to the student what is being taught by the ASL instructor with the aim that the student will learn to associate the ASL sign with what is communicated by the deaf instructor. These services became available to the mother in April 2014.
[34] The family also received assistance through the Life Resource Centre from May 2011 to December 2011. This community service offers “emergency food, clothing and ESL conversation circles”. Ms. Kirwin deposes that this agency ended its involvement as the parents declined to attend meetings with them and were not accepting their assistance.
[35] Ms. Kirwin also described the family receiving assistance from Children’s Aid Society Educational Consultants from November 2011 onwards. These consultants are retired teachers who work with the Society and liaise with the school and the Society to help ensure that the children’s educational needs are being met. These consultants would also attend school meetings.
[36] Ms. Kirwin deposes that the Hindu Cultural Centre became involved with the family in 2011 until early 2012. This community organization held cultural events that the B family would be familiar with. Volunteers from the Hindu Cultural Centre assisted the family with clothing and invited the family to functions and festival celebrations; there was also assistance offered by the volunteers to take care of the home.
[37] The London Intercommunity Health Centre assisted the family from August 2011 to April 2012 and from September 2014 onwards. Ms. Kirwin deposes that this community organization had an “Ethnal-Racial Mentoring Program”. This program was initiated with the children; and specifically with B and K on the basis that the social networks would help those children with “the development and maintenance of health and emotional well-being”. An outreach worker was specifically involved with K.
[38] Ms. Kirwin deposes that in the neighbourhood where the children were living information was received by the property manager about complaints regarding the B family, including the children not being supervised, climbing on cars and staying out late. When the parents were spoken to about these issues it appeared that there were no changes. As a result a London Police Diversity officer became involved with the family.
[39] Daycare services were accessed for S in 2012 through the YMCA.
[40] Ms. Kirwin identified a number of specific intensive Society services that were provided by the Society to assist the family.
[41] Ms. Kirwin deposes to having meetings with the family and with the settlement worker present to speak to the parents about feeding the children. Ms. Kirwin deposes as follows at para. 38:
… the parents had to be taught that in Canada parents must ensure that their children are fed first. This is because it had become apparent that a pot of rice would be cooked, the father would eat first, then the other adults, then the children in descending order of age. At one point the settlement worker had bought food and sectioned off an area of the fridge and told the parents that section was specifically for food for the children’s lunches.
[42] Ms. Kirwin described the family as being difficult to meet with because the adults in the home were “routinely” unaware of the day of the week and unable to keep track of appointments or daily routines without intensive assistance. The language barrier was an ongoing issue even with the use of an interpreter.
[43] Ms. Kirwin described ongoing protection concerns that included “repeated issues of inadequate supervision, truancy and a lack of consistent structure and/or routine in the home”. The children’s lack of regular bedtime routine, including staying out late resulted in the children missing school and if they did attend the children would sleep through much of the day. Ms. Kirwin did depose that over time there was some improvement as the children were reported to attend school more regularly, being dressed more appropriately and appeared better rested.
[44] Ms. Kirwin advocated for the school to allow S, when he was in junior kindergarten to attend full days. The concern was that S was home with two individuals who are deaf during the half-days when he was not in school. During this time, the father was attending ESL classes. The Society was unsuccessful in having S attend junior kindergarten on a full-time basis, but the Society was able to secure a daycare space for him.
[45] Ms. Kirwin deposes to ongoing issues of inadequate food in the home, coupled with the distribution of food, previously referred to, where the parents and uncle would eat first and the children were given whatever was left over, also being fed from the eldest to the youngest. Ms. Kirwin explained that this resulted in inadequate food for the children. The parents were provided with education regarding nutrition and ensuring that the children had adequate amounts of food each day.
[46] Notwithstanding the issues regarding proper nutrition, and the efforts of the Society, Ms. Kirwin deposes that there continued to be ongoing issues, stating at paragraph 45 that “the father was eating the available food in the home and despite repeated intervention in this regard his response was to simply state he was hungry and to blame the eldest child, K, when there was inadequate food, stating she was supposed to have shopped if the mother had not”. Ms. Kirwin described that eventually some progress was made regarding adequate food but the progress was described as very slow and painstaking. It was in early 2012 that the family was able to learn to eat food with utensils.
[47] The mother had received hearing-aids from service providers in an effort to assist in developing a plan to allow her to communicate. Ms. Kirwin deposes that the mother did not wear the hearing-aids consistently.
[48] Financial issues were also a concern. The family was not able to manage their finances. Ms. Kirwin deposes that they were repeatedly under threat of eviction or having utilities disconnected.
[49] There were concerns about cleanliness and the condition of the home; the residence sustained damage as the family members were “urinating and defecating in corners of the residence” (paragraph 49). The Society was concerned about the inability of the father to implement any positive changes, and the Society was concerned that the children in essence were fending for themselves.
[50] In early February 2012, K was transported to hospital by ambulance, from school, exhibiting symptoms of vomiting, lethargy and abdominal pain. It was only after the father provided some vague explanations regarding why K was exhibiting these symptoms, that he finally admitted that he had given K the wrong medication – that he had given her his own Phenobarbital prescription medication for his epilepsy.
[51] In discussions with the father, through the assistance of an interpreter, he was not able to provide an explanation as to why he had given K the wrong medication, notwithstanding the education he had received regarding differences in medication. Also, according to Ms. Kirwin, despite instructions “on multiple occasions” to the father that he was to administer K’s medication two times daily, the father stated that K was supposed to receive her medication once each day in the morning.
[52] Ms. Kirwin deposes that the Society prepared a protection application seeking a supervision order initially returnable in April 2012. When Ms. Kirwin first met with the family to review the protection concerns, the father acknowledged that he was unable to read a calendar or tell time, despite having been taught these skills many times; the father stated that he kept track of days by counting the number of “sleeps”.
[53] Ms. Kirwin met with the family again on April 17, 2012. An interpreter was present. Ms. Kirwin deposes she attempted to explain that a judge may not agree with the children remaining in the home, and may order the children into care. As Ms. Kirwin attempted to explain what this meant, the father became distressed, apparently thinking he would never see the children again; however, when he realized there would be access, and efforts would continue to address protection concerns, Ms. Kirwin deposes that the father’s demeanour changed and that he now wanted the children to come into care, recognizing that he was not able to care for the children while also looking after his wife and his brother.
[54] Ms. Kirwin did address, at paragraph 71, the difficulties understanding the father, even through an interpreter.
[55] In mid-April 2012, a temporary care and custody order was made placing all four children with the Society. Regarding the three youngest children, the application has remained on adjournment since then. Regarding the eldest child, K, she was placed with the parents pursuant to a 12 month supervision order in February 2013, and in May 2014, this order was terminated. The orders that were made regarding K were preceded by K’s increasingly non-compliant behaviour in the foster home such that, in late October 2012, K ran from the foster home to her parents’ home and refused to return to the foster placement. At that time, K was almost 14 years of age.
[56] In December 2012, B was placed in the same foster home as R and S. No dispute is raised that B, R and S are thriving in the foster home.
[57] Kelly Powers, who was the children’s worker, addresses R’s medical issues. On coming into care, R was observed to suffer from seizure-like symptoms. Currently, R is described as continuing to struggle with the seizures. The seizures are described as “invisible seizures” where R will appear “flat and vacant” for brief moments during the day. These occurrences had a reported frequency of 30 to 35 per day but have reduced to approximately 10 per day. R takes medication to control seizures and is followed by a physician. R is also described as attending regularly at the hospital to manage her symptoms.
[58] B is described as being in good health. Both B and R receive ESL instruction at school. However, S is described by Ms. Kirwin as not being in need of ESL instruction, and that his English is excellent.
[59] Effective September 2014, all three children were being home-schooled by their foster mother. The Society consented to this and also secured the parents’ approval for home-schooling.
[60] Ms. Kirwin’s undisputed firsthand evidence is that the parents have made no progress in their ability to provide adequate care for the children. The parents require assistance from community service providers to assist them with their own care, including medical and dental appointments. A settlement worker continues to assist the parents with managing medical appointments and also with bill payments. Ms. Kirwin deposes that the father has accrued a terrible credit rating because of internet and phone costs.
[61] A psychological assessment dated February 5, 2013 was prepared regarding the father. This report was prepared with the assistance of an interpreter. The report concludes that the father’s perceptual reasoning and processing speed are within the moderate range of intellectual disability, and that it is unlikely that he would be able to live independently without significant support. The report also concludes that the father is not a candidate for competitive, sustainable employment, and that he is not employable and is likely to remain so.
[62] This report provides some corroboration in respect of the Society’s concerns about the inability of either or both parents to function without outside help and assistance.
[63] The assessment report summarized statements from the father that he had never attended school and had never learned to read or write in his native language. The father’s English was reported as speaking only a few words of English. However, the father continues to attend school to learn to read and write English.
B. The Evidence of the Parents
[64] It is important to note the difficulty faced by Mr. McKinnon in trying to obtain affidavit evidence from his clients, the parents. Mr. McKinnon attended at the parents’ residence on three occasions: in October 2012, August 2013 and April 2014. On those occasions, an interpreter provided interpretation services in the Nepalese language between Mr. McKinnon and the father. However, communication and translation directly with the mother was not achieved. This is not surprising, given the evidence that the mother requires the assistance of both a deaf interpreter and an ASL interpreter, and that it has only been during the last year or so that the services of a deaf interpreter have been available to the mother to assist her in learning ASL.
[65] The respondents’ affidavit material consists of a brief affidavit from Mr. McKinnon’s assistant, and the main evidence relied on comes from a lengthy email, attached as an exhibit, from Ms. Kirwin. Ms. Kirwin’s email includes a description of two meetings, in June 2014 and July 2014, that Ms. Kirwin had attended with the parents, and in the presence of a deaf and ASL interpreter and also a Nepali interpreter.
[66] In relation to the meeting in July 2014, it was explained in Ms. Kirwin’s email, in relation to communications with the mother, that the ASL interpreter was communicating to the deaf interpreter, who in turn communicated with the mother.
[67] During the course of that meeting, the mother became very emotional, repeatedly indicating that she wanted the children home, that she can take care of them, and that she can feed them and put them to bed. The mother was reported as saying that both she and the father are in school but that they would not do that, so they could be home to care for the children. The father indicated that he wanted the visits to be like they were before (referring to initial access visits on Saturdays and Sundays of each weekend).
DISCUSSION
A. The Legal Test
[68] The Society brings its motion pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99. Subrules 16(2), (4), (4.1), (5), (6) and (9) are relevant and are reproduced below:
16(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
(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.
(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may also,
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise to prevent injustice);
(b) give directions; and
(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).
[69] Given the amendments to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that provided judges with increased powers on a motion for summary judgment, including weighing the evidence and evaluating the credibility of a deponent, and given the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.), the debate has continued as to whether the expanded powers available to a judge under r. 20 are also available to a judge hearing a summary judgment motion under r. 16 of the Family Law Rules.
[70] A number of recent decisions have canvassed this topic again.
[71] In Children's Aid Society of London and Middlesex v. M.(L.), 2014 ONSC 5813 (S.C.J.), released October 10, 2014, I had occasion to review this issue and stated as follows at paras. 117 – 119:
[117] I proceed on the basis that the amendments to r. 20 of the Rules of Civil Procedure, allowing a court on a motion for summary judgment to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence, do not apply to a motion for summary judgment under r. 16. There is ample jurisprudence to support this approach: Children’s Aid Society of Toronto v. T.H., 2012 ONSC 3916 (S.C.J.); Children’s Aid Society of the County of Simcoe v. O.P., 2012 ONSC 2349 (S.C.J.); Children's Aid Society of London and Middlesex v. K.B.P., 2013 ONSC 5 (S.C.J.); and Catholic Children’s Aid Society of Hamilton v. T.B., 2013 ONSC 6300 (S.C.J.).
[118] Two recent decisions of the Court of Appeal for Ontario have mentioned, but did not decide, the applicability of r. 20 of the Rules of Civil Procedure to motions for summary judgment pursuant to r. 16 of the Family Law Rules: in Virc v. Blair, 2014 ONCA 392 (C.A.), at paras. 49 and 50, both parties on the appeal were in agreement that the expanded powers in r. 20 do not apply to r. 16, and accordingly, the appeal was dealt with on the assumption, but without deciding, that the expanded powers are not applicable under r. 16, with the court noting that the availability of the expanded powers under r. 20 in family law motions for summary judgment “should await a case where the issue is fully argued”; in Gallacher v. Friesen, 2014 ONCA 399 (C.A.), at paras. 13 – 20, being a case decided just after Virc, supra, the court acknowledged, and cited, the competing case law as to whether the expanded powers in r. 20 applied to r. 16; but given the specific facts of the case, the court disposed of the appeal without deciding the issue as to whether the expanded powers in r. 20 apply to r. 16.
[119] The case at bar is governed by the jurisprudence as to the meaning of “genuine issue for trial” developed prior to the amendments to r. 20, and which was often applied to motions for summary judgment pursuant to r. 16 because of the similar “genuine issue for trial” test. Accordingly, a court hearing a motion for summary judgment pursuant to r. 16 is not to assess credibility, weigh the evidence or find the facts; the genuine issue must relate to material facts and the onus is on the moving party to demonstrate that there is no genuine issue requiring a trial; “no genuine issue for trial” has been equated with “no chance of success” or “plain and obvious that the action cannot succeed”: see Children's Aid Society of London and Middlesex v. K.B.P., supra, at para. 21; and Catholic Children’s Aid Society of Hamilton v. T.B., supra, at paras. 31 – 51.
[72] In Children's Aid Society of London and Middlesex v. T.(R.), [2014] O.J. 5037 (S.C.J.), Leach J., in a comprehensive decision released August 18, 2014, extensively reviewed the relevant jurisprudence, and concluded that the expanded powers under r. 20 were not available on a summary judgment motion pursuant to the Family Law Rules.
[73] In CAS v. T.(R.L.), 2014 ONSC 5974 (S.C.J.), released October 21, 2014, Vogelsang J. referred, inter alia, to Children's Aid Society of London v. M.(L.), supra, and to the “lengthy and careful reasons” of Leach J. in Children's Aid Society of London and Middlesex v. T.(R.), supra, and adopted the conclusions reached in those cases as to the non-availability of expanded powers on a summary judgment motion pursuant to the Family Law Rules.
[74] In Children's Aid Society of London and Middlesex v. L.(H.B.), 2014 ONSC 6291 (S.C.J.), released October 30, 2014, Aston J. also canvassed this issue and arrived at the same conclusion relying on the decision of Vogelsang J. (in Children's Aid Society of London and Middlesex v. T.(R.L.), supra), stating at paras. 7 – 8 as follows:
7 Recently, in Children's Aid Society of London & Middlesex v. R.L.T., 2014 ONSC 5974, Vogelsang, J. reviewed the plethora of cases on this point quoting selectively from decisions by Leach, J. in Children's Aid Society of London & Middlesex v. T. et.al., 2014 ONSC 4788 (Sup. Ct.), Mitrow, J. in Children's Aid Society of London & Middlesex v. L.M., 2014 ONSC 5813 (Sup. Ct.), and Pazaratz, J. in Catholic Children's Aid Society of Hamilton v. T.B., 2013 ONSC 6300, 2013 O.J. No. 4592 (Sup. Ct.), which cases in turn quoted many other precedents on the interplay between FLR 16 and rule 20 of the Rules of Civil Procedure.
8 I cannot usefully add to the analysis of Vogelsang, J. and I adopt his conclusions on the nature of the test for summary judgment in a child protection proceeding in which the Society seeks both a finding that the child is in need of protection and a summary disposition of Crown wardship without the necessity of a trial. In short, the test is governed by the jurisprudence as to the meaning of "genuine issue for trial" developed prior to the amendments to Rule 20. Accordingly, a court hearing a motion for summary judgment under Rule 16 is not to assess credibility, weigh the evidence or make findings of fact that are controversial. The words "no genuine issue for trial" have been equated with "no chance of success" or "plain and obvious that the action cannot succeed".
[75] It is acknowledged that there are some cases that have applied the expanded powers to a motion for summary judgment under the Family Law Rules: see, for example, Abdollahpour v. Banifatemi, 2014 ONSC 7273 (S.C.J.), released December 31, 2014. Notwithstanding some cases to the contrary, I find, however, that the weight of the jurisprudence supports the conclusion that the “expanded powers” in r. 20 are not available on a summary judgment motion pursuant to r. 16 of the Family Law Rules.
B. Statutory Findings
[76] Pursuant to s. 47(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] (“the Act”), I find as follows:
a) The children’s names and dates of birth are B.B., age 13; R.B., age 10; and S. B., age 8;
b) There is no statement as to the religious faith the children are being raised in, in the material filed on the summary judgment motion;
c) None of the children is an Indian or native person; and
d) All three children were removed from the parents’ residence in London, Ontario and placed in Society care in April 2012.
C. Protection Finding
[77] I find that there is no dispute in relation to the material facts relevant to a protection finding. This includes evidence that the father wanted the children taken into care.
[78] The Society has established pursuant to r. 16(6) that there is no genuine issue requiring a trial in relation to the protection finding. As asked by the Society, all three children are found to be in need of protection pursuant to s. 37(2)(b)(i) and (ii) of the Act.
D. Disposition
[79] The paramount purpose of the Act is to promote the best interests, protection and wellbeing of children: s. 1(1).
[80] A disposition in the present case must be made pursuant to s. 57 and must be made in each child’s best interests. In determining a child’s best interests, the court shall take into consideration the relevant factors listed in s. 37(3).
[81] The Society’s evidence, including the lengthy affidavit of Ms. Kirwin, establishes that the parents are not capable of parenting the three youngest children. I find that the material facts relating to disposition are not in dispute.
[82] The parents have benefited from substantial services provided by the Society and also numerous other community agencies. The undisputed evidence supports the finding, which I make, that the parents have difficulty meeting their own needs without community assistance and support. Further, this has remained the case, notwithstanding the many services provided to the parents. The father has been assessed as falling within the moderate range of intellectual disability, and more importantly, a finding was made in the assessment report that it is unlikely that the father would be able to live independently without significant support. There is no evidence disputing the conclusions contained in the assessment report.
[83] The child, R, despite some improvements in the management of her seizures, does still struggle with this medical issue. Further, she requires regular and timely doses of prescribed medication that would be beyond the parents’ ability to manage.
[84] As noted earlier, the children are thriving in foster care. The Society evidence is that the children are in a “view-to-adopt” foster home.
[85] In assessing what is in the best interests of the children, the important factors in the present case center around the children’s physical and emotional needs, medical attention in relation to R, and permanency planning and a stable residence.
[86] The undisputed evidence does not support a finding that the children’s need for a stable residence and their physical and emotional needs can be met by the parents. I find also that the children’s educational needs are best met while in Society care.
[87] The children’s cultural background is important. The children currently have ongoing access to their older sibling and their parents that has been facilitated by the foster parents. The foster parents are described as wanting to learn about the children’s culture, including a desire to attend events that will assist the children in learning about Nepal, and perhaps at some time travelling to that destination.
[88] Although K does reside with her parents, it is noteworthy that there is uncontradicted evidence from Ms. Kirwin that, after returning to her parents’ care, K had academic issues at school, K was described as essentially taking care of herself, and that K, along with her parents, had significant dental issues related in part to the fact of poor dental hygiene at home. Although the supervision order regarding K was terminated on May 1, 2014 by Garson J. at a time when K was age 15, it is instructive to note that the reasons for doing so, as endorsed by Garson J., included: the fact that K consented to same and wanted to be with her parents; and the fact that Garson J. was reassured that “… the Society will continue involvement with the family and are working cooperatively with the family …”
[89] Ms. Landry submitted that the facts support an order of Crown wardship for R and S; Ms. Landry further submitted that R and S are doing exceptionally well, that they have a close bond with the foster parents and that they identify the foster parents as their home and recognize the foster parents as their parents.
[90] Mr. Khot, on behalf of B, supported an order of Crown wardship for her, submitting that B understands that she cannot return to live with her parents. Mr. Khot further submitted that B knows she is in a “good place” with her foster parents, but she also acknowledges her parents’ love and is concerned about maintaining ties with her parents.
[91] The Society, on the evidentiary record, has demonstrated that there is no genuine issue for trial in relation to the Society’s request for Crown wardship. I have taken into account the practical difficulty that the parents have in communicating and giving evidence; however, the Society’s evidence in relation to the issue of Crown wardship is very strong.
[92] I find that an order of Crown wardship is in the best interests of all three children.
E. Access
[93] There is a statutory presumption against access to a Crown ward as set out in s. 59(2.1) of the Act as follows:
(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for adoption.
[94] The often-quoted decision of the Divisional Court in Children's Aid Society of Niagara Region v. C.(J.), 2007 CanLII 8919 (ON SCDC), 2007 CarswellOnt 1680, is a leading authority on the interpretation of that section. The onus is on the person seeking access to prove on the balance of probabilities that the conditions set out in s. 59(2.1) have been met. In dealing with the condition in s. 59(2.1)(a), that the relationship between the child and the person is beneficial and meaningful to the child, the Divisional Court stated that “beneficial” has been held to mean “advantageous,” and that “meaningful” has been held to mean “significant.” In applying these definitions to the facts before it, the Divisional Court stated at para. 29:
29 "Beneficial" has been held to mean "advantageous". "Meaningful" has been held to mean "significant" (Children's Aid Society of the Niagara Region v. M.J., supra, at para. 45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother's relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified.
[95] It was Society evidence that the parents initially received unsupervised access each Saturday and Sunday for approximately eight hours. However, this access was later reduced to 1.5 hours twice weekly (as a result of alleged lack of proper supervision). In April 2013, this was decreased further to once per week for 1.5 hours, prompted in part by concerns that the father was not present at all times. In May 2013, the access visits were moved to the home of the foster parents and the access visits have continued there since that time.
[96] Ms. Landry submitted that R and S should maintain contact with the parents, and that the ongoing relationships with the parents would promote those children’s cultural heritage. Ms. Landry further submitted that R and S’s access to their parents should be once per month and that their access to their sister, K, should also be monthly, and that the sibling access should be “bilateral,” meaning K should have access to her siblings and that her siblings should have access to her.
[97] Mr. Khot submitted that B should have access to her parents and that no access would be negative for her. Mr. Khot submits that B goes to cultural Hindu events. Mr. Khot added that access for B to her parents should remain flexible and, as a minimum, should preserve attendance at Hindu cultural events, as these are “happy” events that include exchanges of gifts; Mr. Khot submitted that B wants to see her parents and K. It was also Mr. Khot’s submission that the access frequency should include six visits during a six month period and that this should include Hindu festivals. Mr. Khot also made a request that sibling access should be “bilateral.”
[98] All three children, and also their sibling K, are of sufficient age to have established bonds with their parents in varying degrees based on their respective ages. K asserted her independence by running away from the foster home. It is not surprising that Mr. Khot and Ms. Landry are urging access between the children and their parents, and also K.
[99] Mr. McKinnon, on the issue of access to the parents, requested every Saturday and Sunday from 9:00 a.m. to 7:00 p.m.
[100] The Society submits that the parents have failed to discharge the onus on them to prove that the access is “beneficial and meaningful” to each child.
[101] I find that the evidence proffered by the Society, as to the issue of access between the parents and the children, is substantially inadequate. The burden is not on the parents to demonstrate a triable issue in relation to access, rather the burden is on the Society, the moving party, to show there is no triable issue in relation to access between the children and the parents: Children’s Aid Society of Halton (Region) v. A.(K.L.), 2006 CanLII 33538 (ON CA), 2006 CarswellOnt 5997 (Ont. C.A.) at para. 19.
[102] Ms. Kirwin’s affidavit had 115 paragraphs. The evidence summarizing access issues was contained primarily, if not exclusively, in 5 paragraphs (109 – 111, and 83 – 84). Surprisingly, the evidence of Kelly Powers, who is the children’s worker, says nothing about access between the three children and the parents.
[103] Much of the Society evidence about access was hearsay, in particular, the hearsay evidence as to the foster mother reporting certain problems in relation to access at the foster home. This evidence was relied on by the Society as part of its submission that the order should be silent as to access between the parents and the children.
[104] To the extent that counsel for the children made submissions from the “counsel table” as to the wishes and preferences of the children to see their parents, and/or maintain a relationship with their parents, there was no issue taken by the Society (or the parents). Accordingly, I view the Society and parents as consenting to this process. Given this consent, any statements made by counsel as to the children’s wishes and preferences can be considered: see Strowbridge v. Strowbridge, 1994 CanLII 875 (ON CA), 1994 CarswellOnt 400 (Ont. C.A.) at para. 27.
[105] The issue of access is fundamentally important in the somewhat unusual facts of this case. The Society was aware that the children, given their various ages and the background history, would most likely have some desire or need, perhaps to varying degrees, to maintain contact with their parents. Certainly, that point would have been keenly “driven home” to the Society by K’s actions. Accordingly, the Society would have, or should have, been aware that this case presented a not insignificant potential of there being a triable issue in relation to access. It is noted that affidavit evidence as to the children’s wishes and preferences, which could assist the court, is virtually non-existent.
[106] It is unacceptable, on this issue, that the Society relies largely on brief, mainly hearsay evidence, in particular, the evidence of the foster mother. While this evidence is technically admissible on a summary judgment motion, I place very minimal weight on it and I draw an adverse inference against the Society for resorting to hearsay evidence on this issue: r. 16(5).
[107] Accordingly, on the evidentiary record, taking into account also the submissions of counsel for the children, I find that the Society has failed to establish even a prima facie case that there is no triable issue relating to access between the parents and the children. Accordingly, that issue needs to go to trial.
[108] In relation to sibling access, the Society has agreed with that access and also the Society has submitted that monthly sibling access would not impair opportunities for adoption.
[109] There is no opposition from the parents as to sibling access.
[110] On the facts of this case, and considering also the consent of the parties, I find that access between all the children is beneficial and meaningful for each child, and this includes K. I also find that such access is in each child’s best interests. I agree that the sibling access should be “bilateral.”
[111] However, I also find that there is a dearth of evidence as to what the sibling access should be; in particular, there is very little information from the foster parents. Given the lack of sufficient evidence, and considering that the issue of access to the parents has to go to trial, the order below provides that the sibling access is interim.
[112] The order below also provides that I am seized with the trial of the access issues, and provides for various directions.
[113] It would be my expectation that none of the children will be “placed” for adoption by the Society until all access issues are finalized; and, further, it would be my expectation that pending trial the Society will ensure that there is some access between the children and the parents.
[114] The parties are encouraged strongly to make all reasonable efforts to come to a resolution as to the remaining access issues.
ORDER
[115] For reasons set out above, the following order shall issue:
B, R and S (“the children”) are each found to be in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(b)(ii).
Separate orders shall issue for each of B, R and S, providing that the child is made a ward of the Crown and placed in the care of the Society.
There shall be a trial of the following issues and I am seized with the trial:
a) should there be access between the parents and the children, B, R and S;
b) if so, what should that access be; and
c) what should the final order be for sibling access between B, R, S and K?
- The following directions shall apply to the trial:
a) all Society evidence in-chief shall proceed via affidavit;
b) The Children’s Lawyer is requested, but not ordered, to give consideration as to whether it is appropriate to authorize a social work assist to provide evidence as to the wishes and preferences of the children, B, R and S, in relation to access between them and their parents.
The application is adjourned before me to Friday, May 22, 2015 at 10:00 a.m. to be spoken to and to set a trial date. Counsel should ensure that they have available dates for an interpreter for the father and for the deaf interpreter and ASL interpreter for the mother.
There shall be sibling access on an interim basis as follows:
a) B, R and S shall have access to K, and K shall have access to each of B, R and S, and this access shall be at least once per month;
b) as between B, R and S, if any of those children should live in a different foster home, or if all those children should live in a different foster home, then there shall be access between each sibling and the remaining two siblings at least once per month; and
c) the location and duration of access shall be determined by the Society.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: April 21, 2015
CITATION: Children’s Aid Society of London and Middlesex v. S.M.B., 2015 ONSC 2389
COURT FILE NO.: C251/12-2
DATE: April 21, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Children’s Aid Society of London and Middlesex
Applicant
- and -
S.M.B. and N.B.B.
Respondents
REASONS FOR JUDGMENT
MITROW J.
Released: April 21, 2015