ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 4176
DATE: 20150630
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
D.D.
Appellant
– and –
Children’s aid society of toronto
Respondent
Venna Pohani, for the Appellant
Anthony Macri, for the Respondent
Nancy J. Thompson, for the Child
HEARD at Toronto: June 23, 2015
On appeal from the decision of Justice Carole Curtis dated December 17, 2014
C. Horkins J.
[1] On December 17, 2014, Justice Curtis granted the Children’s Aid Society of Toronto’s (“Society”) summary judgment motion and made the child S.S. born on […], 2005 ("the child") a Crown ward without access. The appellant, D.D. is the mother of the child and she is appealing this order.
Overview of the Facts
[2] The appellant was born in Romania and came to Canada in 1995. She worked in the adult entertainment business and as a sex trade worker. The father of the child was the appellant’s client. They were not involved in a romantic relationship and the father has no contact with the child.
[3] The child has been in the Society's care and custody since July 19, 2011 when the appellant voluntarily placed him in the Society's care under a Temporary Care Agreement. The appellant no longer wished to parent her child. She was experiencing some mental health issues, including anxiety and homicidal ideation, and there was a concern that she might harm herself or the child.
[4] After the child’s admission into care, the appellant had phone access with the child until April 2012 when phone access was terminated. During these phone conversations, the appellant had inappropriate conversations with the child which caused him to be anxious and worry for his mother. The child asked that the phone calls cease and they did. Shortly thereafter the child stopped biting his fingernails.
[5] On September 12, 2012, it was the appellant's position that she did not want the child returned to her care, but she wished to continue with access visits. The Society increased access to twice weekly for two hours. At some point in September 2012, the appellant advised the child that he would be returning home to her care. This upset the child and caused him to regress in his learning. The child’s behaviour at school deteriorated. He became unfocused, distractible, and disruptive and his grades began to slip.
[6] On December 17, 2012, the parties consented to a finding that the child was in need of protection pursuant to s. 37(2)(b) and (i) of the Child and Family Services Act, R.S.O. 1990, c. C.11. Specifically, there is a risk that the child is likely to suffer harm inflicted by the person having charge of the child or caused by that person's failure to adequately care for, provide for, supervise or protect the child and the child is in a residential placement and the child's parent refuses or is unable or unwilling to resume care and custody of the child. The child was made a Society ward for a period of four months with access at the Society's discretion.
[7] The child’s access with the appellant revealed concerns. The child had a Christmas visit with the appellant in 2012, following which he urinated on and soiled his bed and he suffered a decline in school. Also, he forgot his routines at the foster home and he became listless. The child felt that the Society was not listening to him and respecting his wishes about where he wants to live.
[8] On January 23, 2013, the child told the Society's Children's Services Worker that he does not want to return to his mother, that he wishes to remain at the foster home and only visit his mother.
[9] After a visit on March 14, 2013, the child was extremely agitated, crying, shaking and sweating and he could not sleep. The child informed his foster mother and the Society's Children's Services Worker that the appellant was upset with him for soiling the pajamas that she bought for him. The child expressed that he was scared that his mother would come to the foster home and take him away. While the appellant denies making any such statement, it is not disputed that this was the child’s reaction to the events.
[10] The Society continued with a reintegration plan that saw access increase to all day visits on March 23, 2013 and April 13, 2013. Following the April 13, 2013 visit, the child advised that the appellant became upset with him and she used obscene language when his toys were noisy. The child expressed that he did not feel safe and he did not wish to visit his mother at her home anymore. The child requested that visits remain at the Society's office. While the appellant denies this incident, it is still the case that the child requested that home visits cease.
[11] Following this April incident, the Society stopped all visits at the appellant's home. Despite the cessation of home visits, the appellant took the child to her home on three occasions.
[12] A number of mental health professionals were involved to try and address the child’s needs and identify the supports that would be required for reintegration with the appellant.
[13] The Society had observed some positive interactions between the child and the appellant. However, the views of the child remained the same. He did not want to return to his mother’s care and his fears and behaviour escalated. The Society had the child assessed by Dr. Fitzgerald.
[14] Dr. Fitzgerald concluded that the child "appears to be struggling with the residual impact of the disorganizing and cumulative trauma that he experienced while going through important and very formative stages of his development." He went on to recommend that the child would benefit from individual psychotherapy. Dr. Fitzgerald also commented that the child is clear he does not want to return to his mother's home, although he did want to continue access visits.
[15] During the assessment process, Dr. Fitzgerald also met with the appellant. During this process, she admitted that the child had been traumatized because: "She beat him up a few times and he didn't like it." The appellant does not deny making this statement, but states that it was a poor choice of words and she "did not mean that she was excessively violent with him but only that I spanked him."
[16] On the recommendation of Dr. Fitzgerald, the child was referred to individual psychotherapy with Carol Cowan-Levine. Ms. Cowan Levine indicated that the child was very consistent in his belief that "it is not safe for me to go home".
[17] A referral was also made to Aisling Discoveries for treatment. The therapist assigned to the child, Lisa Milligan, had raised the possibility of doing a joint meeting with the child and his mother. Her record indicates that "[a]t that point [the child] became visibly stressed and indicated he was not comfortable with this." Based on his reaction, Ms. Milligan stated that she could not recommend proceeding with this treatment.
[18] Ms. Cowan-Levine continued to provide therapy for the child. In the course of the therapy, the child made a number of disclosures of physical, sexual and emotional abuse. He said that he was regularly hit by his mother, that he was tied to a bed with a skipping rope, had his mouth washed out with soap and was made to kneel in a corner for a long period of time. As a result, access between the child and his mother was suspended as of December 10, 2013 while the police and Society conducted their investigation. During this investigation, the child consistently stated that he did not want to go back home to his mother.
[19] On December 17, 2013, the appellant went to the child’s school, visited with him in the school yard and gave him Christmas gifts. She also gave him a note with her telephone number, email and Facebook name. The child told his Child Protection Worker that this school visit caused him to feel scared and unsafe because he feared that his mother would take him away. The child stated that he only felt safe inside the school. He repeated that he does not feel safe with his mother and he does not wish to return to live with her. The child said that he does not wish to have visits with his mother in the community and wants all future visits to be supervised at the Society's office. The appellant's attendance at school was a violation of the existing court order. Following this incident, access was reduced to once every two weeks.
[20] The Society was concerned that the appellant had exposed her son to sexual abuse. The child reported details to his therapist and the police. No charges were laid, but the appellant’s access visits were suspended. The appellant has not seen the child since February 18, 2014.
[21] On July 20, 2014, the child’s therapist, Ms. Cowan-Levin, reported that:
[The child] has spoken consistently of the turmoil inside of him, fueled by his enormous anxiety in the presence of his mother, and the containment of the many details surrounding his sexual abuse. Sleep disturbance, inability to concentrate, and some increasing non-compliance were behavioural indicators of the turmoil in [the child] as he struggled with thoughts of the past and uncertainties of the future.
As visits with [the child’s] mother reduced, and then access, even supervised access was stopped, the emotional tornado inside [the child] diminished.
[The child’s] fears of retaliation from his mother, even without access, continues; eg. finding him at school at recess (which did occur), hearing details in court, learning where he currently resides, all becoming so concerning that arrangements were made for [the child] to have only indoor recess at school.
[22] Since the suspension of access in February 2014, the child’s behaviour in school improved and his last report card showed an "A" average, the best he has ever achieved.
[23] The Society proceeded with its motion for summary judgment. The Society had no reason to believe that an adoptive placement would not be found for the child. However, evidence was presented on the motion to explain that if the appellant was granted access to the child following an order of Crown wardship, such access would adversely affect the child’s prospects for adoption.
[24] On the motion, the appellant was not seeking to have the child returned to her care immediately. She wanted the child returned to her care "once he has been cleared to do so by professional therapists". If the child was made a Crown ward, the appellant stated that she was seeking an order that is "silent on access" so that if and when during the therapeutic process the child wishes to see her, and continue their relationship, he may.
The Standard of Review
[25] It is agreed that the standard of review on questions of law is correctness and on questions of fact it is 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: see Housen v. Nikolaisen, 2002 SCC 33.
[26] This standard of appellate review applies in child protection cases on appeals from a motion for summary judgment. See Catholic Children's Aid society of Hamilton v. C.R., 2009 34047 (ON SCDC), [2009] O.J. No. 2778 (Div. Ct.)
The Appellant’s Position
[27] The appellant argues that the motion judge made two errors as follows:
(i) The motion judge applied the wrong test on the summary judgment motion. She states that there were triable issues that should have been dealt with at a trial.
(ii) The motion judge placed too much emphasis or weight to the hearsay evidence of the child.
Analysis
[28] The motion judge correctly applied the test for summary judgment set out in Rule 16 of the Family Law Rules, O. Reg. 114/99. The Rule provided that if there is no genuine issue requiring a trial, the court shall make a final order.
[29] The appellant argues that the motion judge erred in law because she did not use the expanded powers in Rule 20 in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. She argues that this rule would have allowed the motion judge to scrutinize the evidence and, in particular, call oral evidence to test the evidence of the child as reported to the professionals that are involved in his care.
[30] The Society acknowledges that courts have varied on whether the expanded powers in Rule 20 should be used for motions brought under Rule 16 of the Family Law Rules. As the Society points out many cases suggest that the expanded powers in Rule 20 of the Rules of Civil Procedure should not be used in motions brought under Rule 16 of the Family Law Rules. Catholic Children's Aid Society of Toronto v. A.M.Y., 2014 ONSC 6526 at para 29; Children's Aid Society of London and Middlesex v. R.L.T., 2014 ONSC 5974 at para 4-6.
[31] It was not an error in law for the motion judge to rely on Rule 16 of the Family Law Rules. Even if Rule 20 had been applied, it would not have made a difference to the outcome. The first stage of the analysis under Rule 20 requires the court to decide if there is a genuine issue requiring a trial. This is to be decided on the evidence before the judge, without using any of the expanded fact-finding powers. If the motion judge finds that there is no genuine issue requiring a trial then summary judgment is granted. If the judge concludes that there is a genuine issue requiring a trial, the motions judge moves to the second stage of the analysis. At this point, the judge asks if the need for a trial can be avoided using the expanded powers available under Rule 20. (See Hryniak v. Mauldin, 2014 SCC 7 at para 66).
[32] The motions judge concluded that there was no genuine issue requiring a trial. Whether she had proceeded under Rule 16 or Rule 20, summary judgment would have been granted.
[33] The motion judge provided detailed reasons. The following evidence made it plain and obvious that there was no genuine issue requiring a trial:
(a) The child had been in the care of the Society for three and a half years. For the majority of that time, the appellant recognized that she was unable to have him returned to her care. On the motion, the appellant was not seeking return of her child.
(b) Section 70(1)(b) of the Child and Family Services Act provides that the Court cannot make an order that results in the child being a Society ward for a period of more than 24 months. By the time this motion was determined, the child had been in care for over 41 months.
(c) It is undisputed that the child was refusing to return to his mother's care. From 2013 onwards, the child consistently told the professionals that he wanted to remain in the care of the Society.
(d) The Society put considerable resources into trying to determine why the child felt so strongly about refusing to return to his mother's care and to try and address the relationship. However, the child continued to maintain that he wanted to remain in foster care.
(e) The Society attempted to support joint counselling between the child and his mother, but the therapist did not believe the child was able to handle the joint sessions and advised that she could not proceed.
(f) At the time Justice Curtis rendered her decision on the motion for summary judgment, the appellant had not seen her child in over ten months.
(g) It was plain and obvious that a court would not return a child to a parent when there had been no contact for close to a year; the child had been in care for three and a half years; the child had continued to refuse to attend any access; and the parent did not pursue a motion for access prior to the trial.
[34] If the matter had proceeded to a trial, the motion judge would have been left with a decision to either return the child to the mother, or make the child a Crown ward. There was no other plan before the court and the timelines under s. 70(1)(b) of the Child and Family Services Act did not provide for a further period of Society wardship. On the basis of undisputed facts, the result was clear and obvious: the child could not be returned to his mother’s care and an order of Crown wardship was inevitable. There was no triable issue.
[35] The appellant also argues that the motion judge erred in law because she placed too much emphasis or weight on the hearsay evidence of the child. It is agreed that the motion judge was entitled to rely on this evidence.
[36] This ground of appeal is rejected. The motion judge considered the extensive efforts of the Society to try and reintegrate the child with his mother. Numerous professionals were retained to assist this process and help identify the wishes of the child. The motion judge carefully reviewed all of the evidence. Most of this evidence was not disputed.
[37] The appellant takes issue with the evidence of the child respecting the sexual assault that he described. The motion judge recognized that the child’s reports did not result in criminal charges being laid. She did not place undue weight on this evidence. Aside from this concern of sexual assault, there was ample undisputed evidence to support the motion judge’s finding that there was no genuine issue requiring a trial.
[38] In summary, the motion judge did not err in law. I agree with her conclusion.
[39] The appeal is dismissed and I make no costs order.
___________________________ C. Horkins J.
Released: June 30, 2015
COURT FILE NO.: 4176
DATE: 20150630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.D.
Appellant
– and –
Children’s aid society of toronto
Respondent
REASONS FOR JUDGMENT
C. Horkins J.
Released: June 30, 2015