2015 ONSC 4491
KINGSTON COURT FILE NO.: 10-518
DATE: 2015/07/15
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Family and Children’s Services of Frontenac, Lennox and Addington
Applicant
– and –
A. L. and D.L.
Respondents
Counsel for Office of the Children’s Lawyer
Deborah Souder, for the Applicant
Stephen Zap, for A.L.
Self-represented
Deborah Swartz
HEARD: May 28, 2015
REASONS FOR DECISION
POLOWIN J.
[1] The Family and Children’s Service of Frontenac, Lennox and Addington (the “Society”) has brought this motion for summary judgment with respect to an amended Status Review Application dated November 26, 2014. The Society seeks an order terminating the Supervision Order of Justice Byers, dated April 25, 2014, and an order for weekly specified supervised access to the father to the children through a supervised access facility. Counsel for the Children’s Lawyer supports the position of the Society. The mother also supports the Society’s motion but requests that supervised access be ordered on a once every two week basis.
Factual Background
[2] A.L. and D.L. are the parents of four children: A.E.J.L., born […], 2004, J.D.L., born […], 2005, L.D.L., born […], 2008 and B.L., born […], 2009. The couple separated on July 15, 2010.
[3] The Society has been involved with this family since July 10, 2010. The reported concerns of the Society at that time were: isolation of the children and parents in the community; reports by Ms. L of domestic violence in the home, specifically with respect to Mr. L intimidating Ms. L and threatening to move to Alberta with the children; Mr. L’s mental health and what may be considered rigid religious belief; and the family’s physical environment and its sustainability for habitation. The home was on a farm property. Ms. L reported that it had no hydro, no running water, and no bedrooms. The family had lived in the main room in the home and the home had remained unfinished for the previous eight years.
[4] The children have resided with their mother in a suitable home since separation. The Society has no concerns about her care of the children. At first, the children were placed with their mother under the supervision of the Society pursuant to the Temporary Order of Justice Trousdale dated September 16, 2010. An Order was made on that date for a Family Court Clinic Assessment. On October 5, 2010 Justice Robertson found the children to be in need of protection pursuant to section 37 (2)(g) of the Child and Family Services Act, R.S.O. 1990, c C.11 (the “CFSA”) and continued the children’s placement with their mother under the supervision of the Society. On June 18, 2012, on a motion for summary judgment, Justice Robertson made an Order placing the four children in the custody of their mother pursuant to section 57.1 of the CFSA but reserving the issue of Mr. L’s access to the children for trial. The trial proceeded for eight days in April 2014 before Justice Byers and he released his decision on April 25, 2014. A copy of that decision and the Order taken out is attached at Appendix A. (Not attached as it contains identifying information.)
The Decision of Justice Byers
[5] Justice Byers noted that the children want and need to see their father on a regular basis. It was agreed before him that they have enjoyed their visits with him particularly at their grandfather’s home (a farm property) where Mr. L resided. Justice Byers also noted that the then existing order which provided for supervised access had failed. There were not enough supervisors approved by the Society and the few that were, found the job of supervising Mr. L to be too much to handle. As a result, the access was not regular and consistent, although the visits that did take place were good visits. The position of the Society before Justice Byers was that supervision of the access must continue, but not by them. The Society submitted that the access should be supervised by the Salvation Army in Sharbot Lake. Justice Byers did not accede to this request. He stated that he was not prepared to let the Society abandon its duty to facilitate access and at the same time to keep the children safe. He saw the Sharbot Lake plan as a last resort and not in the children’s best interests. It was apparent in his decision that he viewed access “in a room in Sharbot Lake” as not optimal and that access at the farm, where the children were familiar and comfortable to be better access for them.
[6] Justice Byers turned to the issue of whether the access needed to be supervised and determined that it did. While he noted that Mr. L has no history of violence and would never knowingly put his children at risk, he has mental health issues which could not be so easily dismissed. He noted that Mr. L thinks he is absolutely right on everything; he has no insight and cannot imagine he might be the problem. Justice Byers further stated that Mr. L is obsessive compulsive but that “all that pales when we start talking about hallucinating and delusions.”
[7] Mr. L’s treating psychiatrist, Dr. Feakins, gave evidence at the trial. He said that Mr. L has a strong sense of right and wrong and good Christian values which bodes well for his ability to parent. But, he also testified that Mr. L suffers from a delusional disorder. Mr. L believed strongly that his wife is a psychopath who tried to poison him. Dr. Feakins testified that he wants to prescribe anti-psychotic drugs for Mr. L but fears that Mr. L will not take such medication. Dr. Feakins also cautioned that such drugs might not work for some time, or not at all. Dr. Feakins opined that, at that point, the safer option is to continue supervision.
[8] Mr. L told Justice Byers during the trial that he had proof beyond a reasonable doubt that his wife is a psychopath who tried to poison him and if he can just get his wife arrested then he can get custody of his children. However, in closing submissions, Mr. L surprised Justice Byers and said he would take any medication recommended by Dr. Feakins. Justice Byers stated the following at paragraph 16:
…He better just do that [take medication] Mr. L needs to understand that his mental illness is not his fault but if he fails to get treatment for it, he will eventually lose contact with his children and they will grow up without their father in their lives and that will be his fault.
[9] Justice Byers ordered that Sunday access would continue at the farm to be supervised by the Society. While he appreciated the financial burden on the Society, he saw this as a special case. The mid-week two hour supervised access was cancelled, Justice Byers noting that the burden on the children was too much, but he ordered the Society to make all reasonable efforts at substituting at least some of the lost time with occasional pre-planned unsupervised access at public events in the community. Justice Byers also ordered that Mr. L was not to speak ill of Ms. L in front of the children.
[10] In addition, Justice Byers ordered that access at the request of Mr. L was not to be revisited for at least six months and that no filings in this regard were to be accepted at the Family Law counter.
[11] In his written reasons, Justice Byers made no mention of a supervision order. He noted that the children were in the care of their mother who had custody and stated “the fact that the children are doing well is a credit to her.” Justice Byers made no mention of any protection concerns with respect to the mother or that the children were in need of protection. However, in the Order taken out, there included a finding that the children continue to be children in need of protection pursuant to section 37(2)(g) of the CFSA and that they be placed in the care of their mother for a period of six months, subject to the supervision of the Society pursuant to section 57(1)1 of the CFSA on the following terms and conditions:
(a) Ms. L shall make the children available for access, supervised by the Society every Sunday from 12:30 p.m. to 5:00 p.m., such access shall continue at the grandfather’s farm where Mr. L currently resides;
(b) Ms. L shall make the children available at the request of the Society for approved, additional, occasional, preplanned, unsupervised access at public events in the community, such access is intended to be in substitution for at least some of the lost time due to the cancellation of the midweek access visit;
(c) Ms. L shall permit the Society access to the children on an announced and unannounced basis;
(d) Mr. L will attend for assessment and treatment of his mental health issues with Dr. Martin Feakins or another qualified Psychiatrist approved of by the Society in the event that Dr. Feakins is unable or unwilling to continue his involvement with Mr. L and Mr. L will follow the treatment recommendations made by the Psychiatrist;
(e) If and when access is revisited, Mr. L shall supply a report from his treating psychiatrist, outlining what progress if any has been made, and what medications Mr. L has in fact taken.
(f) Mr. L shall sign consent forms permitting for open disclosure between the Society and all relevant service providers and in particular Dr. Feakins or any other qualified Psychiatrist involved in his treatment.
(g) Mr. L shall work cooperatively with the Society and the access supervisor.
[12] Apparently, Justice Byers had been made aware that to establish jurisdiction for his Order directing the Society to supervise Mr. L’s access, the access provisions had to be pursuant to a supervision order placing the children in the care of Ms. L under the supervision of the Society. The only terms of the supervision order that relate to Ms. L concern access to the children by Mr. L and the Society. I note in this regard that Ministry Regulations mandate that a Society must visit children on a once a month basis when they are subject to a supervision order. It is apparent from Justice Byers’ Reasons for Judgment that he had no protection concerns with respect to the mother.
What Has Occurred Since the Order of Justice Byers
[13] Unfortunately, things did not go well. Mr. L does not appear to have followed up with an assessment and treatment of his mental health issues and remains resistant to taking medication. On July 31, 2014, Justice Abrams made a temporary without prejudice Order suspending Mr. L’s access. On December 2, 2014, on consent of the parties, Justice Robertson ordered that the temporary without prejudice order of Justice Abrams continue in effect. The following sets out in fuller detail what has occurred since the Order of Justice Byers.
[14] The Society had supervised access on every Sunday since the April 25th Order of Justice Byers with the following exceptions:
a. Sunday June 1, 2014 as Mr. L was in hospital for abdominal surgery and Ms. L did not permit the children to visit their father in the hospital;
b. Sunday June 8, 2014 as Ms. L was on holidays with the children;
c. Sunday June 14, 21, and 28, 2014 due to the request of the Sharbot Lake OPP that access not occur as they were completing a firearms investigation at the family farm and the matrimonial home.
d. Sunday, July 19 and 26, 2014 as Mr. L had been arrested and was being held in custody pending a bail hearing.
[15] Apparently, there were no difficulties with the supervised access during the visits, although Mr. L was not amendable to requests from the worker to have the children wear bicycle helmets or seat belts while on the farm. Otherwise, access went well.
[16] The Affidavit of Selene Renee-Walker Donegan, the child protection worker assigned to the file, dated July 29th, 2014, set out the circumstances which led the Society to request that Mr. L’s access be suspended. Firstly, it was noted that Mr. L had only attended one appointment with Dr. Feakins in May 2014 and Dr. Feakins reported that Mr. L remained resistant to trying medication to manage his mental health and did not believe that he is or was unwell. Dr. Feakins also reported that at that last appointment, Mr. L was still stating that he had a sample of the substance that he believed Ms. L attempted to poison him with and he wanted to have this substance analysed. Further, the child protection worker contacted Mr. Doug McLean on June 12, 2014. Mr. McLean is Mr. L’s mental health worker through Frontenac Community Mental Health Services. Mr. McLean reported that he had not had contact with Mr. L. since the end of the trial in April, 2014.
[17] Ms. Donegan also noted that on May 22, 2014 Justice Sheffield made an order transferring the matrimonial property (the farm) to Ms. L as the sole and exclusive owner with the immediate right to sell the property in satisfaction of all outstanding child support arrears and for prospective child support. The family property has been in the family for generations. On July 19, 2014, the Society was advised by Ms. L that Mr. L was arrested and was being held pending a bail review.
[18] The Society was concerned for the children’s safety due to Mr. L’s untreated mental health issues, the Court Order that resulted in him losing his home to Ms. L, his physical health problems and his subsequent arrest and detention. Ms. Donegan stated that Mr. L “may feel that he has lost everything.” She stated at paragraph 17 of her July 29, 2014 Affidavit:
Until Mr. L is engaged in treatment for his delusional disorder and his psychiatrist has had the opportunity to assess Mr. L’s mental state in light of the additional stresses which have occurred since the trial in April, 2014, it is unknown whether Mr. L poses a danger to the children or a danger to the access supervisor. Access occurs at Mr. L’s father’s farm which is in the country near Godfrey, this is a remote location, with poor cellphone coverage and is in an area where response time from the OPP in an emergency may be slow due to the geographical distances. In these circumstances, it would be difficult for the access supervisor to protect the children or themselves should Mr. L engage in inappropriate or dangerous behaviour.
[19] Mr. L was released on bail conditions on August 20, 2014. He met with Alicia Dornan, a Manager with the Society, on August 26, 2014. According to Ms. Dornan, Mr. L’s purpose in attending the Society office was to discuss his concerns regarding Ms. L. Mr. L wanted Ms. Dornan to listen to an audio recording of his interaction with Ms. L and her family. He explained to Ms. Dornan that it was important that she understand the verbal abuse occurring in Ms. L’s family. This was a pattern that concerned him. He further advised her of the following as set out at paragraph 15 of her Affidavit dated September 19, 2014:
a. Mr. L confirmed that he had not seen Dr. Feakins since May 2014. He also reported that he had not followed-up with Mr. McLean. Mr. L indicated that he intended to follow-up but maintained that he was not delusional and was not willing to take medication because of his concern Ms. L poisoned him.
b. Mr. L explained that he was convinced that any allegations regarding delusional diagnoses were not accurate as he believed it was actually Ms. L who was suffering from mental health issues. Mr. L added that he believed she had poisoned him and that he will not take any psychiatric medication because he is concerned that he does not know the interaction it might have with the poison. Mr. L added that he has been growing and keeping his finger nail clippings as proof, explaining that the police will be able to test more accurately his finger nails. D.L became teary eyed when explaining that because the Society will not allow the children to be placed with him that he does not want to have his nails tested as it will prove Ms. L poisoned him and she will be arrested leaving his children to go into foster care. Although expressing concerns about Ms. L, Mr. L stated that he did not want his children in foster care.
c. Throughout my conversation with Mr. L I attempted to focus the conversation on the Society’s current concerns. I explained that the Society would not support access until he was able to follow-up with a psychiatric assessment and the recommendations of that assessment. Although, Mr. L stated he planned to make appointments with Dr. Feakins and Mr. McLean Mr. L stated clearly and repeatedly that he intended getting custody and access to the children and that Justice Byers “broke the law” and that there will be a re-trial.
[20] Mr. L has continued to raise his concerns with respect to Ms. L. On March 13, 2015 he met with Ms. Dornan and Ms. Donegan. The meeting was arranged as Mr. L reported that he had further information about Ms. L that he felt the Society should be aware of. That information including the following:
a) When they were building their home, Ms. L was supposed to wet the concrete, but she never did this;
b) He wanted bigger windows in the home but she did not;
c) She refused to work outside the home when A.E.J.L. was born;
d) Family business ventures (a garlic farm business and breeding rabbits) were not successful because she did not assist as she should have;
e) Ms. L was inflicting psychological abuse on the children. He stated that this abuse was characterized by her power and control. As an example of her power and control he noted that Ms. L mismatched the socks his mother had knitted for him when she did the laundry, prior to their children being born;
f) While Ms. L reported being fearful of him, when she was looking for a home near his father’s residence;
g) The gifts Ms. L purchased for him a few years ago for Christmas on behalf of the children were not suited to him – the pants were too small, the shirt was too big, and the cashews had historically caused him migraines;
h) Since separation Ms. L has not followed numerous court orders;
i) Ms. L is a sociopath. Mr. L reported that Ms. L is able to bond with certain people and has no empathy for other groups. His rationale for this statement was that Ariel who is the only girl of the four children, is doing extremely well at school whereas the boys are just doing average. Mr. L explained that this is an example of Ms. L being able to attach herself more to one group of people, females as opposed to males, and that is why he believed she was a sociopath.
[21] Ms. Dornan advised Mr. L that the information he was sharing were not child protection concerns. Mr. L stated that what he had spoken about on that day was only a “primer” but he did not disclose other concerns.
[22] The Society did make efforts to assist Mr. L during this period of time. As a result of his bail conditions, Mr. L has been barred from entering Central Frontenac. While there is no term of release that would prevent Mr. L from seeing Dr. Feakins in his Kingston office, the Society was advised that Dr. Feakins refused to do so and suggested to Mr. L that he meet with Dr. Hillen.
[23] In late December 2014, Counsel for the Society, Ms. Souder left voice mail messages with Mr. Blais (Mr. L’s counsel in the criminal law matter) and Mr. Ecclestone (Mr. L’s then counsel in the children protection matter) offering to advocate with the Crown Attorney’s office for a change in Mr. L’s bail conditions so as to allow Mr. L to attend in Sharbot Lake with his surety for the purpose of meeting with Dr. Feakins. She also sent two letters to both counsel, dated January 13, 2015 and February 18, 2015 to the same effect. Neither counsel responded to the voice mail message or to the letters.
[24] On February 11, 2015 the Society wrote to Dr. Feakins, Dr. Hillen and Lennox and Addington Community Health advocating for mental health services for Mr. L. Dr. Feakins did not respond to the letter. On February 13, 2015, Lennox and Addington Community Mental Health advised that they were unable to provide services to Mr. L but would reroute the letter to the Providence Care Centre. However, Dr. Hillen contacted the Society on March 17, 2015 indicating that he could provide services to Mr. L if Mr. L registered with one of the clinics he served. Dr. Hillen requested Ms. Donegan contact him to further discuss the matter. Ms. Donegan called Dr. Hillen on March 17, 2015 but he did not respond to the call.
[25] In correspondence dated February 23, 2015, Mr. McLean thanked Ms. Souder for her efforts to support the amendment of Mr. L’s bail conditions. He noted that it was far more preferable from a healthcare perspective for Mr. L to continue to see Dr. Feakins. However, he also advised that Mr. L has been provided with an appointment to see Dr. Hillen on May 7, 2015.
[26] With respect to Ms. L, the Society has indicated that she has provided a stable residence and consistent care of the four children. Society workers visited her and the children many times since the Order of Justice Byers. Ms. L has actively engaged in support services which have included the Women’s Program and the Child Care Centre. According to the Society, Ms. L is aware that not having access to their father has had an impact on the children. To that end she has sought the advice of the Child Care Centre in Sharbot Lake to assist her in discussing with the children what mental health is, how it can impact a family and more specifically how it has impacted their family. Further, according to the Society, Ms. L has expressed a willingness to facilitate access for Mr. L at a supervised access facility.
[27] It is the evidence of the Society that there are no concerns about the care the children are receiving from their mother and no referrals or expressions of concern have been received from the children’s school. On visits to the home, the children appear happy, well cared for and with an appropriate relationship with their mother and each other. The Society has consistently stated, in all of the Affidavits sworn by its workers referred to in this motion, that there are no known children protection concerns in relation to Ms. L.
[28] Ms. L provided an Affidavit to the Court dated November 27, 2014. She stated that she has been the sole caregiver of the children since she separated from Mr. L in the summer of 2010. She noted that Mr. L has provided no child support since the Order made in 2012 and only minimal child support prior thereto. Outstanding child support was resolved by way of a vesting order of Sheffield, J., vesting the matrimonial home in her name only. However, she stated that Mr. L and his family have stymied the sale of the property. She has raised these issues to underscore that she is of extremely modest means and does not have the ability to continue litigation with Mr. L in perpetuity.
[29] Ms. L stated that she does fear for the safety of her children. She stated that Mr. L does not recognize his serious delusional disorder. She attached to her Affidavit a copy of a Threat Assessment Report that was submitted at the trial before Justice Byers. It is her view that Mr. L is still at risk to harm both her and the children. She has proposed that access be facilitated through the Salvation Army Supervised Access Centre for a period of one to two hours, once every two weeks either in Kingston or an area where Mr. L is able to travel to and attend. This would allow the children to continue to maintain a relationship with their father, but in a safe and secure surrounding.
[30] It is Mr. L’s position that the Order of Justice Byers should be continued in full effect until such time as he has had time to meet with his psychiatrist Dr. Feakins and have an assessment. Appended to his Affidavit dated March 13, 2015 is a copy of a letter from the Sharbot Lake Family Health team which set out his appointments with Dr. Freakins (May 28, June 18, August 27, September 24, October 8 and November 26, 2013 and January 14, February 25, and May 20, 2014.) Ms. L had appointments scheduled July 22, November 25 and December 16, 2014. He could not attend the July 22, 2014 appointment as he was incarcerated. He could not attend the November and December 2014 appointments due to his bail condition prohibiting him from being in Sharbot Lake.
[31] The remainder of Mr. L’s above noted Affidavit referred to financial issues relating to his separation from Ms. L. He attached the transcript of the proceedings before Justice Sheffield on May 22, 2014 in the family law proceeding, disputing the information provided to the Court by Ms. L. He noted that Ms. L removed from the farm property farm equipment in excess of $66,000, construction equipment in excess of $46,000 and personal property in excess of $38,000. Lists of the equipment and personal property are attached.
[32] Mr. L also attached to his Affidavit a partial transcript of “four audio documents captured July 12, 2015” as Mr. L “was attempting to prevent a massive theft of my personal properties”. The transcript depicts a confrontation between Mr. L, Ms. L and a number of adults with Ms. L including Jim Embury, Brandon Embury, Donna Embury and Syrene Embury. The police were called by Ms. L and officers arrived. According to Mr. L this transcript demonstrates “the level of intimidation, discrimination, threats, abuse and violence that occurs behind closed doors in the children’s home environment but which has been projected on me.” It is my understanding that it is from this incident that the criminal charges pending against Mr. L now stem.
[33] Mr. L provided another Affidavit dated May 26, 2015. He stated that Ms. L has followed a pattern of blatant disregard for the directions of the Society and Court Orders. I will not detail all the matters that he has raised. Suffice it to say that they refer to matters that occurred in October 2010(removal of a freezer), Christmas 2010 (Christmas gifts), Spring 2012 (attendance at the children’s soccer games), access to the children by Mr. L (August, 2013) and Ms. L’s request to be present when a representative of the Society interviewed the children (November, 2013). He also noted that Ms. L did not really fear him as she had taken the children to a farm next door to his father’s farm sometime prior to January 2013 and they saw Mr. L’s goats. Further, Mr. L referred to a letter written to the OPP and Mr. Zap dated May 6, 2015 requesting the immediate return of several hundred plastic and clay flower pots removed from the matrimonial home by Ms. L in May/June 2014. He required the pots to facilitate the cultivation of verified genetically pure, bittersweet seedlings. He enclosed two sheets regarding the genetic testing that has been conducted on this tree.
[34] Mr. L also stated that Ms. L has engaged in a pattern of isolation tactics. He noted that she allowed the children a one-half hour visit with his father on Boxing Day in 2014 and eliminated A.E.J.L.’s best friend Ashley from her life. In addition, Mr. L stated that Ms. L uses emotional abuse on adults, noting in this regard the Christmas cards the children sent him, his brother, and his brother’s wife this past Christmas. Mr. L concluded his Affidavit by stating these “are only a very small amount of the hundreds of instances of abuse contained now in the thousands of pages comprising this file.
[35] In his submissions at the motion, Mr. L detailed in support of his allegations of abuse perpetrated by Ms. L that she had the children give him gifts of cashews knowing it caused him migraines, and a hunting hat, while she was trying to have his firearms removed for a period of two years. Moreover, Mr. L is still steadfast in his belief that Ms. L has attempted to poison him. He stated that both Justice Byers and Dr. Feakins have encouraged him to test the substance that he found in May 2011, but if he did his children would be in foster care. Mr. L said that he could not go into detail because it could jeopardize the criminal investigation.
[36] Mr. L provided a Memorandum of Facts and Respondents Book of Authorities for the Summary Judgment motion. Mr. L referred in this unsworn document to the appointment he had with Dr. Hillen on May 7, 2015. Mr. L stated that Dr. Hillen told him that Delusional Disorder, if he does have it, is difficult to treat, not responding to medication for long periods of time, if at all, and that it would be best for him to engage in weekly counselling sessions with Doug MacLean. Mr. L directed the Court to a letter from Dr. Hillen attached to his May 26, 2015 Affidavit. No such letter is attached. As such, there is no actual evidence which can be relied upon by the Court with respect to Dr. Hillen’s opinion or treatment plan.
The Law
[37] Rule 16 of the Family Law Rules, provides in part:
WHEN AVAILABLE
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).
AVAILABLE IN ANY CASE EXCEPT DIVORCE
(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. O. Reg. 114/99, r. 16 (2).
EVIDENCE REQUIRED
(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. O. Reg. 114/99, r. 16 (4).
EVIDENCE OF RESPONDING PARTY
(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. O. Reg. 91/03, s. 5.
EVIDENCE NOT FROM PERSONAL KNOWLEDGE
(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. O. Reg. 114/99, r. 16 (5).
NO GENUINE ISSUE FOR TRIAL
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).
POWERS
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).
ORAL EVIDENCE (MINI-TRIAL)
(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more of the parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5 (1).
ORDER GIVING DIRECTIONS
(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1(7.2),
(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)
(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). O. Reg. 114/99, r. 16 (9).
[38] The test for summary judgment under Rule 16 of the family law rules is whether there is a “genuine issue requiring a trial of a claim or defence.”
[39] A number of principles have emerged from the jurisprudence with respect to summary judgment in the child protection context and can be set out as follows:
Rule 16 mandates the Court to make a final order where there is no genuine issue requiring a trial. This is clearly indicated by the use of the word “shall” in sub-rule 16(6) of the Family Law Rules. (see Children’s Aid Society of Ottawa v. C.(S.) 2003 CanLII 67754 (ON SC), 2003 CarswellOnt 9373 paras. 6-8 (Ont S.C.)[C.(S.)]; and, Children’s Aid Society of Toronto v. M.(P.) 2002 CanLII 53206 (ON CJ), 2002 CarswellOnt1883, at para. 5 (Ont. C.J.) [M.(P.)]).
The Court must proceed cautiously in a motion for summary judgment and ensure absolute fairness to the parties. (see C.(S.) (para. 9); and M.(P.) (para. 7).
A “genuine issue” must relate to a material fact or facts. (see B.(F.) v. G.(S.) (2001), 199 D/:/R/ (4th) 554, at para. 26 (Ont. S.C.) [B.(F.)]).
The Court must review all of the evidence to determine if there is a basis for the final order sought. A proper consideration of “a full evidentiary record” is necessary for a “good hard look” at the evidence of the motion (see C.(S.) at para. 11; and, B.(F.) at para 28).
Appellate jurisprudence in the area of child welfare has expanded the scope of summary judgment beyond the “clearest of cases.” (see Jewish Family and Child Services v. A.(R.). 2001 CarswellOnt 73, at para. 20 (Ont. S.C.)).
Where the moving party presents a prima facie case for summary judgment, the onus is on the responding party to provide evidence to rebut that case (see C.(S.) at para. 13).
A responding party must not rest on the mere allegations or denials of the party’s pleadings, but must set out in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial (see C.(S.) at para. 13).
[40] Prior to the recent amendments to Rule 16 of the Family Law Rules there was a divide in the jurisprudence as to whether the Court in a summary judgment motion, in the child protection context, had the ability to weigh evidence, evaluate the credibility of deponents and draw reasonable inferences of fact. With the amendments to the Rules it is now clear that the Court possesses such powers.
[41] Finally, I note the commentary of the Supreme Court of Canada in Hryniak v. Mauldin et al., 2014 SCC 7, [2014] 1 S.C.R. 87 [Hryniak], with respect to summary judgment:
There will be no genuine issue requiring a trial if the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable, and proportionate procedure (para. 66);
If the judge is of the view that sufficient evidence has been presented on all relevant points to allow him/her to draw the inferences necessary to make dispositive findings, summary judgment may be granted (para. 94).
[42] Justice Karakatsanis stated the following in Hryniak at paras. 49 and 50:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
Determination
[43] I am satisfied on the evidence before me that there is no genuine issue requiring a trial in this matter.
[44] In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 the Supreme Court of Canada set out the test to the applied on a status review application. The Supreme Court stated that it is not the function of the status review hearing to retry the original need for protection. The first question to be evaluated by a Court on a status review is whether there is a need for a continued order for protection. To ensure that the objectives of the Act are being met, the Court should assess whether State intervention is required. The Court must first decide whether the child continues to be in need of protection and then consider the best interests of the child.
[45] There are no protection issues with respect to Ms. L. This was implicitly recognized by Justice Robertson when she made her Order dated June 18, 2012, on a motion for summary judgment, placing the four children in the custody of their mother pursuant to section 57.1 of the CFSA. Justice Byers, in his Reasons for Judgment also made no finding that these children are, or continue to be, in need of protection. He found no protection concerns with respect to the mother. He simply stated “the fact that the children are doing well is a credit to her.”
[46] The Society has continued to meet with Ms. L and the children on a monthly basis since the order of Justice Byers. She has provided a stable residence and consistent care of the children. She has actively engaged with community resources to provide supportive services to her and the children. Recognizing that not having access to their father has had an impact on the children she has engaged with a community resource to obtain advice on how to deal with this issue with the children.
[47] The Society has indicated that there are no concerns about the care the children are receiving from their mother. No referrals or expressions of concern have been received from the children’s school. The Society has noted that the children appear to be happy, well cared for and with an appropriate relationship with their mother and each other.
[48] Mr. L has raised a number of concerns, outlined above, with respect to Ms. L. He has submitted that Ms. L is a psychopath, a sociopath, an abuser (engaging in emotional. abuse) that she has engaged in parental alienation and that she tried to poison him. The evidence is fueled, quite frankly, by his mental health issues. Much of the evidence also relates to financial issues with respect to the farm property. Concerning the incident which occurred on July 12, 2014 with respect to which Mr. L attached a “partial transcript” of four audio documents, this court notes that the “transcript” prepared by Mr. L obviously lacks authentication. However, even if accepting same as reliable, the transcript depicts a verbal dispute between Mr. L and Ms. L’s family, largely related to the family’s view that Mr. L has failed to support his family. The children were not present when this incident occurred.
[49] In summary, there is simply no evidence before the Court that these children continue to be in need of protection. They are in the full time care of their mother, she appropriately meets all of their needs and she provides a warm and loving home for them. The children are happy and well cared for. There are no child protection concerns with respect to the mother. No finding can be made that these children are in need of protection in the circumstances of this case.
[50] There is also no doubt however, that if Mr. L is to have access to the children, this access must be supervised. Mr. L has stated and appears to still believe that Ms. L is a psychopath, a sociopath and that she attempted to poison him. He claims to have a “substance” as proof. Mr. L has stated that Ms. L is emotionally abusive and engages in parental alienation. According to Dr. Feakins Mr. L suffers from a delusional disorder and he continues to hold those delusions. If access to the children would be unsupervised there would be nothing to stop Mr. L from sharing his views and delusions with respect to Ms. L with the children. It would be most detrimental to the emotional wellbeing of these children to be so exposed to the delusions and views of Mr. L, fueled by his mental illness, with respect to the parent who provides them with love, comfort and physical and emotional stability.
[51] The issue which remains is whether this access must be supervised by the Society. It is clear that Justice Byers viewed access on the farm as more enjoyable for the children than in the Salvation Army Supervised Access Facility. I do not disagree. However, I also note that Mr. L told Justice Byers he would take any medication recommended by Dr. Freakins. Justice Byers made clear to Mr. L that “he better just do that”, warning him that if he fails to get treatment, he will eventually lose all contact with his children. Unfortunately, soon after the decision of Justice Byers was released Mr. L saw Dr. Feakins and refused medication. At this point, we do not know if Mr. L will ever agree to take medication or follow the recommendations of his treating physician with respect to his delusional disorder. Mr. L’s access could potentially have to be supervised for many years to come.
[52] The Society has been involved with this family for five years. Social workers have been assigned to this family over this time. There has been significant court involvement throughout. This family has tapped Society resources for these many years. However, Society resources are not limitless. What is unnecessarily expended on one family is not available to another. If this Court were to make another supervision order, even if it were solely for the purpose of providing supervised access to the children for Mr. L, the Society would still be required by virtue of the Ministry Regulations to visit with Ms. L and the children on a monthly basis, in addition to the cost of having a child protection worker transport the children and supervise the access at the farm. This has been a significant cost and as noted above could potentially continue for many years to come. I must also note that there are legitimate worker safety concerns with respect to the supervised access. The farm is isolated without reliable cell phone coverage.
[53] This Court can only make an order that the Society supervise the access through the vehicle of a supervision order. The evidence does not support that these children are in need of protection in the present circumstances. Without a finding that the children are in continuing need of protection, this Court lacks the jurisdiction to direct the Society to supervise the access. It is simply not appropriate to subject the mother to further Court supervision where Justice Robertson granted custody to her pursuant to section 57.1 in 2012 and Justice Byers stated “that the fact that the children are doing well is a credit to her.” There are no child protection concerns with regards to the mother.
[54] A children’s aid society is not to be used by the Court as a supervised access facility. While a society may as an adjunct to the services it provides to families, provide supervised access, its mandate, its raison d’etre is to provide services to families where children are or may be in need of protection (see Section 15 of the CFSA). At this juncture, this is not such a family.
[55] Ms. L recognizes that it is important to the children that they see their father and is willing to facilitate such access. That access should occur however in a structured supervised access facility. The Salvation Army is such a facility. It would allow the children to continue to maintain a relationship with their father, but in a safe and secure environment. This is, in fact, the mandate of such a facility. Mr. L knows what he has to do, should he wish to have unsupervised access to his children in a more normalized context in the future.
[56] The Society and the Children’s Lawyer submit that supervised access should occur weekly at the Salvation Army Supervised Access facility in Kingston. The Children’s Lawyer has submitted that the children enjoy their access with their father, especially the two older children. However, while it is important for these children to maintain a relation with their father, I am not prepared to order access on a weekly basis. This mother is singlehandedly raising these four children and has received little if no financial support. They live in Godfrey some 45 minutes to one hour from Kingston. She and the children lead active, busy lives and she has strived to maintain some normalcy for them. Mr. L has done little, if anything, to address his mental health issues. He has advised both Dr. Feakins and the Society that he will not try medication for his delusional disorder. It seems to me both unfair and inappropriate to require Ms. L. to make those lengthy drives every weekend to support Mr. L’s access. Again, Mr. L knows what he has to do should he wish to have a more normalized access regime with his children.
[57] Justice Robertson made a custody order to Ms. L pursuant to s. 57.1 of the CFSA in 2012. By virtue of s. 57.2 that order is deemed to be an order under s. 28 of the Children’s Law Reform Act (R.S.O. 1990, c C. 12 as am) (the “CLRA”) at the instant it is made. By virtue of the statutory regime, a CLRA order is stayed when a protection application and resulting order is made under the CFSA. However, while the CLRA order is stayed or held in abeyance during child protection proceedings, it is an order that survives the child protection proceedings. Once the child protection proceedings terminate, the CLRA order remains in existence and applies. By terminating Justice Byers’ Supervision Order, the Order of Justice Robertson granting custody to the mother is now again in effect.
[58] In summary, for the reasons given, summary judgment is granted in this matter. There is no genuine issue requiring a trial in this matter. It is ordered as follows:
The Supervision Order made by Justice Byers on April 25, 2014 is terminated.
The Order of Justice Robertson placing the children in the custody of their mother, dated June 18, 2012 is now again in effect, pursuant to section subsection 57.1(2) of the CFSA.
Mr. L shall have supervised access to the children A.E.J.L., born […], 2004, J.D.L., born […], 2005, L.D.L., born […], 2008 and B.L., born […], 2009 on the following terms:
(a) All such access shall take place at a supervised access facility or at such other place as Ms. L in her sole discretion may direct;
(b) Such access to occur on a bi-weekly basis for a minimum of two hours each, provided a two hour visit can be accommodated by the supervised access facility.
(c) Both Mr. L and Ms. L will participate in any intake process required by the supervised access facility.
(d) Ms. L will be responsible for ensuring that the children are transported to the supervised access facility.
(e) Mr. L will be solely responsible for any costs which the supervised access facility might impose.
(f) While exercising access to the children, Mr. L shall not make any negative comments to the children about Ms. L or members of her extended family, nor shall he talk to the children about any court matters, either completed or ongoing, including criminal court matters.
(g) Mr. L shall require leave of the Court on notice to Ms. L and the Office of the Children’s Lawyer prior to commencing a Motion to Vary a Final Order under the C.L.R.A.
(h) Such Motion for Leave shall include a letter from a qualified Psychiatrist setting out the assessment and treatment that Mr. L has received or is receiving, including confirmation of what medications, if any he has been prescribed, and an opinion of his level of compliance with the prescribed treatment and an opinion of what progress, if any, is being made in treating Mr. L’s mental health issues.
(i) A copy of these Reasons for Decision and the Order shall be forwarded to Dr. Feakins and Dr. Hillen by the Society.
(j) The Order may be taken out by the Society without seeking the approval of Mr. L.
Polowin J.
Released: July 15, 2015
2015 ONSC 4491
KINGSTON COURT FILE NO.: 10-518
DATE: 2015/07/15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Family and Children’s Services of Frontenac, Lennox and Addington
Applicant
– and –
A.L. and D.L.
Defendants
REASONS FOR DECISION
Polowin J.
Released: July 15, 2015