Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., 2015 ONSC 2496

CITATION: Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., 2015 ONSC 2496

COURT FILE NO.: FS-492-14

DATE: 2015/04/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of the Regional Municipality of Waterloo

Respondent

– and –

A.M.

Appellant

COUNSEL:

Jeffrey Boich, for the Children’s Aid Society

Amy A Green, for the Appellant

HEARD: April 10, 2015

Restriction on Publication

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.

REASONS FOR JUDGMENT ON APPEAL

A. J. GOODMAN J.:

[1] This is an appeal of a final Order reflecting the June 17, 2014 judgment of K.S. Neill J. of the Ontario Court of Justice.

[2] The Order proclaimed that the child of the parent appellant, T. born […], 2012, be made a Crown ward without access for the purposes of adoption.

[3] Principally, the appellant is seeking to set aside the final Order due to several errors allegedly committed by the motions judge and predominately because there were genuine issues requiring a trial.

[4] The Father, J.W., was noted in default on December 12, 2013 and is not a party to this appeal.

Background:

[5] The child, T., was born on […], 2012 and was thereafter apprehended by the respondent, Children’s Aid Society of the Regional Municipality of Waterloo (“CAS”). T. was in their care for approximately 19 months at the time of the hearing of the motion for summary judgment.

[6] On August 29, 2012, CAS commenced a protection application seeking a final order for Crown wardship without access to the parents.

[7] Following T.’s apprehension, an interim without prejudice order was made placing T. in the care of the CAS with supervised access to the parents, which order was made interim on October 2, 2012.

[8] At the summary judgment hearing, CAS’s position regarding A.M. can be summarized as:

a) Concerns about A.M.’s use of marijuana while caring for the child;

b) Domestic conflict between the Mother and her partners and inappropriate choices of partners;

c) Concerns regarding the Mother’s chaotic living environment;

d) Lack of follow through with services and lack of cooperation with the Society;

e) Concerns regarding interaction with Mother’s older child, D., born […], 2009 during access visits, lack of nurturing skills and inability to read the child’s cues; and

f) The mother’s self-focused personality that required years of committed therapy.

[9] Previously, CAS brought a Protection Application due to the concerns regarding A.M.’s ability to parent her older child, D. A.M. was the subject of a court ordered Parenting Capacity Assessment (“PCA”) conducted by Dr. Kathleen McDermott, dated May 27, 2011, specific to the child, D. Dr. McDermott’s opinion was that A.M. could not parent D. and the legal ties with him should be severed, without ongoing access.

[10] The Protection Application with respect to D. proceeded to trial in April 2012 with a final decision rendered by Hardman J. on October 31, 2013. The judge ruled that D. was found in need of protection and was made a crown ward without access to his parents.

[11] The appellant provided a detailed plan of care with respect to T.

Positions of the Parties:

[12] The appellant submits that the motions judge erred as she failed to make rulings respecting the admissibility of evidence and failed to apply or applied inappropriate weight to the evidence. Furthermore, the motions judge made an error of law in failing to correctly apply the legal principles to arrive at sound conclusions based on the evidence before her.

[13] The appellant says that the motions judge failed to make a finding on the admissibility of the previous order of Hardman J. of the Ontario Court of Justice (“the Hardman Order”), as there are no reasons given with respect to its weight, the degree of relevance or any discussion as to the purpose or use. The Hardman Order triggered section 50 of the Child and Family Services Act; however, following its introduction the motions judge proceeded to describe the evidence it reviewed in the continuing record and documents on consent in the support of the summary judgment; but made no mention of the Hardman Order.

[14] The appellant submits that the PCA regarding her first child D. was limited to the factual underpinnings of that particular child. In this regard, the motions judge failed to consider the abundance of progress the Appellant made since the date of the apprehension of the child T. at birth.

[15] The applicant also submits that the motions judge relied on the previous findings of fact as evidentiary basis that so overwhelmed the summary proceedings that the appellant never had a fair opportunity to be heard on her evidence. The prejudicial effect of the prior decision, and the unchallenged and dated PCA for another child, created a chilling prejudicial effect that overshadowed the appellant evidence. In her appreciation of the evidence the judge reversed the onus requiring the appellant to demonstrate a triable issue. Consequently, as there was conflicting evidence, without proper weighing, there was a genuine issue for trial and the matter ought to be remitted back to court.

[16] The respondent submits that given the seriousness of the order, namely a disposition of crown wardship and no access, all the criteria under section 37(3) must be taken into account against the entire evidentiary record before the Motions Judge on a summary judgement motion. The respondent says that the motions judge did not do so and no error was made and there was no genuine issue requiring a trial.

Issues:

[17] There are four issues on this appeal:

a) What is the standard of review governing the appellate court?

b) Whether the learned Motion Judge erred by unduly relying upon a judgment of October 31, 2013 as evidence of past parenting pursuant to section 50(1) of the Child and Family Services Act without making a finding as to its admissibility.

c) Whether the learned Motion Judge erred in applying the provisions of Rule 16 of the Family Law Rules respecting Summary Judgments in particular Rule 16(6) when the learned Motion Judge found that there was no genuine issue requiring a trial?

d) Whether the learned Motion Judge erred when she failed to properly apply the best interest of the child criteria set out in section 37(3) of the Child and Family Services Act?

Analysis:

[18] Different standards of review apply in an appeal from a motion for summary judgment in child protection cases. On pure questions of law, the standard of review is correctness. On findings of fact, the reviewing court ought not to interfere unless it is established that there has been a palpable and overriding error. On questions of mixed fact and law, the palpable and overriding error standard applies unless there is an extricable error of law: Housen v. Nikaisen, 2002 SCC 33, Archer v. Archer, 2005 CarswellOnt 1515 (Ont. C. A.) Catholic Children’s Aid Society of Hamilton v. R. (C.), 2009 CanLII 34047 (ON SCDC), 2009 CarswellOnt 3850 (Ont. Div. Ct.)

[19] The determination of whether there is a genuine issue requiring a trial is a legal issue. Where the appellate court determines that the motion judge correctly applied the legal test for determining whether to grant summary judgment, any factual determinations by the motion judge in deciding the motion will attract a review on the deferential standard of palpable and overriding error.

[20] The leading case for summary judgment as it applies in the civil proceedings in Ontario is that of Hryniak v. Mauldin, 2014 SCC 7, [2014] SCJ No. 7. While Hryniak has still not been formally adopted by Rule 16 of the Family Law Rules, there is some burgeoning jurisprudence touching on its applicability to proceedings in family law. While there is a trifling argument that the decision may only apply to civil proceedings per se, at minimum, the principles arising from the case are sound and instructive.

[21] I do not accept the appellant’s position that summary judgment is only to be exercised in the clearest of cases and with extreme caution. For example, P. Jones J. in Children’s Aid Society of Toronto v. O.G., [2015] O.J. No. 1124 (C.J.) discussed how a court ought to approach summary judgment cases in child protection proceedings post Hryniak. Justice Jones stated at para 41:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable timely and just adjudication of claims.

b) The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize the new models of adjudication can be fair and just.

c) Judges must actively manage the legal process in line with the principles of proportionality.

d) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that he or she can fairly resolve the dispute without a trial.

e) There is not genuine issue requiring a trial if the judge is able to reach a fair and just determination on the merits on the evidence before him or her.

[22] In Catholic Children’s Aid Society of Toronto v. L.M., 2011 ONCJ 146, [2011] O.J. No. 1361 (C.J.), three of the mother’s five children had been made Crown wards in previous summary judgment motions. Justice Sherr of the Ontario Court of Justice heard the summary judgment motion for L.M. on January 25, 2011. The mother argued that the past parenting evidence was historic and had little relevance to the issues in the case. However, Justice Sherr regarded the past parenting evidence of considerable probably value due to the extent of the history as well as the fact that the decisions were made relatively recently.

[23] In the case, at paras. 6 to 10, Sherr J. succinctly set out the law on motions for summary judgment in child protection cases:

On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine whether there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. See Children's Aid Society of Hamilton v. M.N. and H.S.N., 2007 CanLII 13503, 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 CarswellOnt 24533, (Ont. Fam. Ct.).

Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future. See Jewish Family and Child Service of Toronto v. R.A. and J.G. (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No. 47, 2001 CarswellOnt 73 (Ont. S.C.); affirming Jewish Family and Child Service of Toronto v. R.A. and J.G., 2000 CanLII 22546, [2000] O.J. No. 6045, 2000 CarswellOnt 5169 (Ont. C.J.).

A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. See Children's Aid Society of Toronto v. K.T. and C.W., 2000 CanLII 20578, 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 CarswellOnt 4827 (Ont. C.J.).

The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. See Children's Aid Society of Toronto v. K.T. and C.W., supra; and Children's Aid Society of Waterloo Region v. T.L.H. and D.S.C., 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, [2005] O.J. No. 2371, 2005 CarswellOnt 8104 (Ont. C.J.).

As Justice Alex Pazaratz stated at paragraph [43] of Children's Aid Society of Niagara Region v. S.C. and B.M., 2008 CanLII 52309, 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5929 (Ont. Fam. Ct.): "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."

[24] Although the motions judge is permitted to rely upon findings of fact and reasons in a previous judgment pursuant to section 50(1) of the Child and Family Services Act, (“CFSA”), it may do so as the court considers it relevant to the proceeding. Section 50(1) allows the court to (a) consider the past conduct of a person toward any child of that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and (b) any oral written statement or report including a transcript, exhibit or finding or the reasons for decision in an earlier civil or criminal proceeding. Such evidence is admissible in these types of proceedings.

[25] In Children’s Aid Society of Simcoe (County) v. D. (B.), [2014] O.J. No. 1641 (Div. Ct.), Czutrin J. on behalf of the panel, reviewed s. 50(1) where the motions judge relied on a previous judgment following a lengthy trial. At para 33, Czutrin J. held:

Although the purpose of subsection 50(1) of the Act is to ensure that the court hearing a protection matter has before it information of a party’s past conduct towards children, this should not involve a detailed review of all of the evidence previously taken into account…the earlier decision forms the backdrop necessary from which to measure change. To allow admission of the same evidence that has already been dealt with would be invite re-litigation of many of the points previously raised.

[26] In a crown wardship proceeding, the burden is on the society as the moving party, to demonstrate that there is no triable issue.

[27] In child protection proceedings, the court may admit into evidence “any oral or written statement or report that the court considers relevant to the proceeding”, including the reasons for judgment of a previous proceeding.

[28] Turning again to the proposition offered by the Divisional Court in Children’s Aid Society of Simcoe County, Czutrin J. quotes a decision of the Manitoba Court of Appeal, in Manitoba (Director of Child and Family Services) v. A. (J.M.), [2009] MBCA 48, in which it states, “Common sense says that an earlier decision about a parent’s ability to care for a child is very relevant in a subsequent child protection trial involving the parent.”

[29] At para 32 of Children’s Aid of Simcoe, Czutrin J. stated that not only was it appropriate for the motions judge to rely on a previous trial judgment as evidence of past parenting, but also that “[t]his was contradicted evidence, not matters requiring any weighing of evidence or credibility findings”. He quotes passages from describing the ability for an earlier decision to be tendered into evidence and the relevance of an earlier decision regarding a parent’s ability to care for a child to a subsequent child protection proceeding; although it should not involve a detailed review of all of the evidence, the earlier decision forms the backdrop necessary from which to measure change.

[30] Dr. Kathleen McDermott provided an opinion of A.M’s parenting ability with respect to the child D, in May 27, 2011. This evidence was admitted on consent at the summary judgment hearing before Neill J. The appellant now says that it ought not be considered or its weight diminished because it was not tested under cross-examination as to its reliability and credibility concerning the appellant and the child in question, T. Furthermore, it is submitted that the undue reliance on the Hardman Order was in light of evidence and findings on the appellant’s past parenting of D. that occurred before T. was born. I do not accept this argument.

[31] The report was admitted on consent and is relevant to the proceedings. It is true that such evidence may not determinative of the issues regarding T., albeit its relevance is a subject of weight and due consideration. Such evidence can serve to be an important factor in a constellation of factors to be considered by the motions judge. In my view, in reviewing the entirety of the Reasons, the motions judge undertook such an analysis.

[32] In her decision, Justice Neill noted that “[a]s in this case of Children’s Aid Society of Halton v. K.C.L., the Society also relied on s. 50 of the Child and Family Services Act that permits a court to consider…a past judgment made in the same child protection proceeding.” Similar to the decision rendered in Children’s Aid Society of Halton v. K.C.L., [2014] ONCJ 468, Neill J. compared the protection concerns identified in the previous decision with the conditions as she determined them to be at the time of her decision.

[33] In the case at bar, the previous trial judgment was appropriately considered by the motions judge, and was of considerable probably value to her. Though it related to a difference child, the trial decision dated October 31, 2013, related to the same issue of the mother and maternal grandparents’ ability to parent, and was released less than eight months prior to the hearing of the motion for summary judgment.

[34] I disagree with the appellant’s assertion that the learned motions judge failed to give sufficient consideration and weight to the positive steps the appellant had taken, and failed to apply the provisions of Rule 16(6) of the Family Law Rules correctly. The motions judge averted to the evidence including the appellant’s efforts taken to seek and obtain treatment and assessments to deal with the outstanding mental health, psychological or other issues that existed to address her personal problems and the factors the led to T.’s apprehension. In a plain reading of the Reasons for Judgment the learned motions judge did not err in applying the best interest criteria pursuant to section 37(3) of the Child and Family Services Act.

[35] On a review of the reasons, Neill J. considered the evidence of positive parenting and appropriate care of T. in access visits, and the close parent/child bond and attachment that exists between T. and the appellant. The weight to such consideration is a matter of judicial discretion and the learned motions judge exercised her discretion including the assessment of the Plan of Care proposed by the appellant.

[36] In child protection cases, the existence of a genuine issue for trial must arise from something more than a heartfelt expression by a parent of a desire to resume care of the child. There must be an arguable point based on the parent’s evidence that the parent faces some better prospects than those that existed at the time of the Society’s initial involvement, and has developed some new ability as a parent. Various courts have highlighted the importance of additional considerations in summary judgment motions brought in the context of child protection cases. These include the nature of the evidence on the motion, if any mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in issues to the case. In addition, the analysis must be undertaken under the umbrella of the paramount purpose of the CFSA, which is to promote the best interests, protection and well-being of the children.

[37] As mentioned, in the proceeding relating to the older child, D., A.M. was subject of a PCA conducted by Dr. McDermott. Despite the recommendation contained in the PCA that A.M. undertake therapy, the appellant has not offered any cogent evidence of attending any sort of therapy. While A.M. did apparently attend for one appointment with Dr. Paul Singleton on June 13, 2013, she was unable to obtain a report. A.M. completed one parenting course called “Parenting Your Baby” in November 2013 and signed up to take another court at the Early Years Centre called “Beyond the Basics” commencing on March 20, 2014. There is limited or no information about the course, its objectives and the scant information provided is unhelpful. It is trite law that the onus is on the moving party to present its best case for summary judgment and provide all of the relevant evidence it intends to rely on in support of its position on appeal. There is little or no cogent evidence to substantiate the appellant’s bald assertions in addressing the concerns raised by the professionals and addressed by Neill J. in her reasons. I find that this dearth of evidence does not enhance the appellant’s position at first instance or on appeal.

[38] Moreover, T. remained in care in Waterloo Region; the mother moved to Hamilton and became involved in a relationship with a man, F.S., who had a history of sexual offences against children. The mother described her relationship with F.S. as casual, not serious. She denied ever living with him but acknowledged posting online that she loves him, that he often drove her to access visits and they spent time together. At the same time, A.M. indicated that she is agreeable to restricting F.S.’s contact with her children should T. or D. be placed with her “if that is required by the Court.” It is clear to me from the record that there appears to be some minimization of their relationship and the appellant’s evidence about her involvement with F.S. and their background is somewhat misleading and tends to be self-serving.

[39] The appellant submits that the motions judge erred in not providing reasons for the admissibility of the Hardman Order and on a clear reading of the decision the findings under the Hardman Order were determinative of the issues before the Motions Judge. I am not persuaded that the judge’s use of those findings and reasons so overwhelmed the current summary proceedings that it cannot be said to have formed “backdrop necessary from which to measure change.” Justice Neill was entitled to draw reasonable inferences from the evidence on the material issues that are found in her Reasons. In my opinion, the appellant has not established the prejudicial effect of the use of the past parenting history of the appellant unfairly shifted the onus from the CAS to the appellant by requiring her to demonstrate the change.

[40] The respondent submits that the motions judge in this case also correctly recognized and applied the onus and she did not reverse the onus on to the mother. I agree. On the record before her and notwithstanding the bald assertions provided by the appellant in her affidavit, exclusively or predominately without substantiation, Neill J. made her determinations of fact based on uncontroverted or admitted evidence. A prima facie case advanced by the CAS falls to A.M. to demonstrate changes in her lifestyle to counter the valid concerns raised by the evidence. I am persuaded that the motions judge was alive to that very issue.

[41] If the Hryniak approach to summary judgement is fully applicable to family law summary judgment motions, I am persuaded that Neill J. applied the appropriate test and for the reasons provided, with the cogent evidence adduced at first instance, did not need to avail herself of the expanded powers as set out in Hryniak in order to arrive at her ultimate determination. Even if the learned motions judge had been required to conduct a limited weighing of the evidence, in my view, the results and final order flowing from the Reasons would have been unassailable.

[42] The final question raised by the appellant is whether the motions judge failed to properly apply the “best interests of the child” criteria. The test for considering the best interests of the child is set out in CFSA s. 37(3). Section 57 sets out the considerations for the court in making an order of disposition once a court has determined that the child is in need of protection. In oral argument, it was conceded that the child is in need of protection. The issue is whether the order is appropriate to address those concerns in the absence of a full hearing.

[43] In considering the best interests, protection and well-being of T., the following facts can be gleaned from the materials filed: T. was apprehended at birth, namely on […], 2012 and has remained in the care of CAS Waterloo continuously since that date, which at the date scheduled for the hearing of this appeal will be 971 days. After the apprehension, on […], 2012 an interim interim without prejudice order placing the child in the care of CAS was made. This order was made interim on October 2, 2012. The summary judgment motion was heard on March 5, 2014 and resulted in a judgment and final order dated June 17, 2014 of Crown Wardship with no right of access. A.M. served a Notice of Appeal on July 15, 2014. A.M. did not perfect the appeal until January 29, 2015 and the appeal was set for hearing on April 10, 2015.

[44] While Neill J. does not specifically identify each of the enumerated factors in the best interests section of the CFSA, it is clear in the Reasons that she addressed the relevant dispositions in her analysis of the best interests test. For example, Neill J. considered the degree of risk that would exist if the child is returned to the mother at paragraph 65 – s. 37(3) 11 & 12; the merits of the plan being put forward by the mother and grandparents at paragraph 69 and 70 – s. 37(3) 8. Justice Neill identified that the child has no identified special needs at paragraph 78 – s. 37(3) 1 and 2. There was no evidence was before Justice Neill about the child’s cultural or religious background – s. 37(3) 3 & 4, or views and preferences – s. 37(3) 9.

[45] Clearly, Justice Neill considered the issue of delay – s. 37 (3) 10. Indeed, time is an important consideration in the Child and Family Services Act and a child is not to be kept in limbo while a parent having difficulties attempts to straighten out her life.

[46] In a child protection proceeding, it is appropriate to consider prejudice to the child in the same way that it is appropriate to address the prejudice to the other party that has resulted from the delay. The harm that can be presumed from prolonged temporary care is reflected in the time limit prescribed for orders of society wardship under the CFSA of 12 months for a child less than six years of age. In this case, unfortunately, that time has been exceeded.

[47] In this appeal, counsel agree that I can properly consider fresh evidence filed on behalf of both parties and I have reviewed the affidavits with supporting materials. I note that in September 2014, A.M. and F.S. had one child together, M, and that they were unable to care for the child. They decided to turn over the care of this child to the Hamilton CAS under a Voluntary Care Agreement. Interestingly, the parents acknowledged that they were not in a position to care for the child, M. -and by inference any other child- until March 29, 2015, when the appellant advised Hamilton CAS that she was in a position to care for the child, and to her credit, was granted the opportunity to do so. The appellant has had no contact with the child, T since July 10, 2014. The fresh evidence filed by the appellant for this review does not persuade me that any change to the Order with regards to T. is in the best interests of the child.

[48] The child, T. has been with her present family for 809 days and they are prepared to adopt her. According to para. 36 of Rachel Devos’ affidavit, not only is T. benefiting from the profound security and love of her foster family, but clearly she is flourishing in her current environment. I am satisfied that it is in T.’s best interests to continue to remain in her current situation under the terms provided for by Neill J. with the view to adoption in the future.

Conclusion:

[49] In my opinion, Neill J. provided a thorough and reasoned analysis addressing all of the material issues and did not commit any overriding or palpable error. There is no reason to disturb her summary judgement finding to the effect that there was no genuine issue requiring a trial.

[50] For all of the aforementioned reasons, the appeal is dismissed.

[51] If the parties cannot agree on the issue of costs, I will consider brief written submissions. These cost memoranda shall not exceed three pages in length, (not including any bill of costs or offers to settle). The respondent shall file their costs submissions within 15 days of the date of this endorsement. The appellant may file her costs submissions within 15 days of the receipt of the respondent’s materials. The respondent may file a brief reply within five days thereafter.

A. J. Goodman, J.

Released: April 17, 2015

CITATION: Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., 2015 ONSC 2496

COURT FILE NO.: FS-492-14

DATE: 2015/04/17

ONTARIO

SUPERIOR COURT OF JUSTICE

Children’s Aid Society of the Regional Municipality of Waterloo

Respondent

– and –

A.M.

Appellant

REASONS FOR JUDGMENT ON APPEAL

A.J. Goodman, J.

Released: April 17, 2015