v. K.K. and J.K., 2015 ONSC 6461
COURT FILE NO.: 14-0673
DATE: October 19, 2015
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 Lanark, Leeds and Grenville Applicant
– and –
K.K. and J.K. Respondent
Heather Morrison, for the Applicant
Mr. Norman Lee, for the Respondent
HEARD: September 22, 2015
RULING ON MOTION FOR SUMMARY JUDGMENT
Johnston J.
[1] This is a ruling upon a motion for summary judgment commenced by Family and Children’s Services of Lanark, Leeds and Grenville (herein “the Society”) pursuant to Rule 16 of the Family Law Rules.
The Society seeks an order that the two children, C.C.K., born […], 2005, and E.T.K., born […], 2015, be found in need of protection pursuant to Section 37 of the Child and Family Services Act, R.S.O. 1990, c. C.11.
[2] Further, the Society seeks a ruling that the least intrusive order is placement of the two children with their father, J.K. (herein “the father”), for a period of nine months on terms and conditions.
[3] The father supports the C.A.S. motion; K.K. (herein “the mother”) opposes. The mother seeks an order of return of the children to her care.
Background
[4] The two children were placed with their father pursuant to the temporary order of Abrams J dated July 9, 2014. A subsequent order confirming this order, was made by Quigley J, dated August 26, 2014. The mother is permitted access pursuant to Quigley J’s order dated August 26, 2014; a minimum of six hours per week, and access to be unsupervised in the community at an agreed upon location. The frequency and/or duration of access may expand or decrease in the location and/or the level of supervision of access may change at the discretion of the Society.
[5] The mother is not permitted to bring the two children to her family home or to the Cardinal, Ontario area, without prior approval from the Society and, further, she will not include anyone else in access, unless there is advance approval by the Society.
[6] There has been history of involvement between the Society and the mother. The two children resided in the care of her mother during the period of July, 2009 to August of 2010.
[7] Child protection concerns which existed at the time the application was initiated included concerns of emotional harm to the children related to the harsh, punitive style of parenting in use in the mother’s home, concerns related to parental capacity and, in relation to the state of the home. The mother was no longer willing to work with the Society on a voluntary basis.
Issues
[8] The issues are:
Has the Society shown that there is no genuine issue requiring a trial in order to make the order that the two children, C.C.K. and E.T.K., are children in need of protection pursuant to Section 37(2)(b)(i)(ii), Section 37(2)(f) and Section 37(2)(f.1) of the Child and Family Services Act;
Has the Society shown that there is no genuine issue requiring a trial in order to make the order that it is in the children’s best interests to remain placed in the care and custody of their father, subject to supervision by the Society for a period of nine months on terms and conditions.
Law
[9] The paramount purpose of the Child and Family Service Act, R.S.O. 1990 c. 11 as amended, is to promote the best interest, protection and wellbeing of children and, accordingly, the focus of any case must be on the needs and interest of the child.
[10] An additional purpose of the Act is to consider the least disruptive course of action that is available and appropriate in the particular case to help a child.
[11] The Act identifies purposes in addition to the paramount purpose, but only to the extent that they are consistent with the best interest, protection and wellbeing of the child.
[12] A motion for summary judgment may be made in a child protection case such as this. The responding party when faced with a motion, may not rest upon mere denials or allegations, but must set out in an affidavit or in other evidence, specific facts showing there is a genuine issue requiring a trial.
[13] In the event a court determines that there is no genuine issue that requires a trial of a claim or a defence, the court shall make a final order accordingly. In determining whether there is a genuine issue requiring a trial, a court should consider the evidence submitted by the parties and the court may waive the evidence, evaluate the credibility of deponent of an affidavit, draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers only to be exercised at trial. (Rule 16(6.1))
[14] A triable issue is one which is relevant to the issues to be decided. The test is whether the question at issue is a “foregone conclusion”. There may be a factual dispute on an issue but that does not necessarily raise a triable issue, if the balance of the admitted evidence and undisputed evidence leads to an inevitable outcome. If it is a foregone conclusion, based on the admitted and undisputed evidence, the best interest of the child (children) require an order, then there is no genuine issue for trial. While there may be issues to be decided, the question is whether they are issues that require a trial. (JCJ-R v. CAS of Oxford County 2003 2388 (ON SC), [2003] OJ No. 2208 (ONT SCJ) @ paragraph 25)
[15] 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.
[16] 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 (Hyrniak v. Mauldin [2014] SCC 7 @ paragraphs 49-50).
Analysis
[17] For the reasons that follow, I find that there is no genuine issue requiring a trial as to whether the children, C.C.K. and E.T.K., are in need of protection. I find the children in need of protection at the time they were apprehended and continue to be in need of protection pursuant to Section 37(2)(b)(i)(ii), (2)(f)(f.1). The more difficult issue is whether there is a genuine issue requiring a trial upon the issue of what disposition is in the best interests of these two children. The children have been placed with the father since July, 2014 and appear to be doing well. However, the children have expressed a strong desire to return to the mother’s care. While the result is quite possibly predictable, I cannot conclude that the result at a trial is necessarily a “foregone conclusion”. Accordingly, there shall be a trial of an issue as to what disposition is in the children’s best interests.
Reason for finding of need for protection
[18] The Society involvement with mother is longstanding. The children resided outside of the mother’s care from July, 2009 to August, 2010, when they resided with her mother, the children’s maternal grandmother. Child protection concerns have continued up to the date the children were apprehended from the mother’s care.
[19] A clinician of the Office of the Children’s Lawyer prepared two reports in the context of a Family Law application involving the mother and father dated December 11th, 2013 and May 23rd, 2014. The reports identified concerns including parental estrangement: the boys are aware of custody issues and present as being coached (i.e. family meetings to strategize ways to eliminate the Society’s involvement; repetitive scripted comments about past issues they heard from their mother and her partner). The ongoing harsh and negative home environment created by mother’s partner, Mr. T. and his militant parenting style, with no intervention by mother despite in-home supports; the boys’ emotional instability, specifically C.C.K. exhibiting symptoms of depression and low self-esteem, requiring constant reassurance of his worth by caregivers; the physical state of the home. The clinician recommended that the parties have shared custody of the children with primary residence with mother, and that father have unsupervised weekend access on a weekly basis.
[20] In April, 2013, Dr. Helen Bienert also expressed concern that the environment in which the children were placed was too harsh, negative and punitive and that Mr. T., mother’s friend, calls the boys names. Dr. Bienert stated that in sessions with her, the boys would cry and sob as if out of despair. Dr. Bienert expressed concern that the boys spent too much time inside the family home and not enough outside and involved in activities. In November, 2013, Dr. Bienert reported that the child, E.T.K., continued to do better than C.C.K., who defined himself as a “bad kid”. In March, 2014, Dr. Bienert reported that C.C.K. had adapted the self-definition of seeing himself as a “bad kid”, that he is “disgusted” with himself because he is such a “bad person”. Dr. Bienert indicated that she wondered about depression for C.C.K.
[21] In May, 2013, Dr. O’Kelly reported that C.C.K. reported sad thoughts and that he was significantly depressed. She thought mother would benefit from in-home parenting to manage his behaviour.
[22] E.T.K.’s school principal, in May, 2013, reported that E.T.K. was emotionally needy, that C.C.K. was doing better. In March, 2014, the school principal, Mr. Bourne, reported C.C.K. to be withdrawn, having emotional breakdowns, and bizarre social interaction behaviours. In May, 2014, Mr. Bourne reported C.C.K. to be more withdrawn, almost antisocial, that he appeared alienated from peers, that the boys had been removed from the YMCA after school club, which they both enjoyed, by mother as a consequence of bad behaviour. It was reported to the worker, Ms. Redmond, that the school voiced its disagreement to mother with regard to this consequence.
[23] In February, 2013, the two boys spoke about excessive groundings with the child protection worker, Ms. Cynthia Redmond. In June, 2013, when the mother and her partner, Mr. T., were cautioned on using a harsh, punitive style of parenting, Mr. T. blamed the children for their behaviour. The mother and her partner, Mr. T., refused an in-home parenting program. In July, 2013, Mr. T. reported that C.C.K.’s behaviour was aggressive and very difficult to manage.
[24] In May, 2013, child protection worker, Ms. Redmond, noted that mother had a flat affect and “lethargic presentation”. Dr. Bhatt advised that the mother needed to take better care of herself and get physically active. In November, 2013, Dr. Morden recommended that the mother receive additional help at home two-three times per week. In February, 2014, the mother’s mental health counsellor, Sherry Gendron, told Ms. Redmond that mother would benefit from in-home support with the children due to comments mother had made about her children, how tough it was to parent them. According to the affidavit of Ms. Redmond, dated September 10, 2015, she met with the boys in November, 2013, at the Society offices and noted that they had poor hygiene and appeared very thin, that they had a bad smell from their clothes and/or their bodies. The worker also noted that mother looked dishevelled, her hair and skin were observed to be oily. According to the affidavit of Ms. Redmond dated September 10, 2015, Mr. T. told her on February 27, 2014 that the two boys are screwed up because of their father. Mr. T. said that he did not think that it was important for the boys to have a relationship with their father.
[25] During a March, 2014 visit, E.T.K. was observed to be looking sad and nervous and looking back and forth where he and the child protection worker sat to the back room where his mother and Mr. T. were. Ms. Redmond observed that the child’s answers seemed to be rehearsed and coached.
[26] On May 28, 2014, the mother and Mr. T. were provided with a new contract of expectation for voluntary service. On June 16, 2014, Mr. T. communicated to the Society that he would not allow the Society into his home, unless there was a court order and that all previous consents were revoked and they were refusing all contact with the Society.
[27] As a result, the Society initiated this Application and served a Notice of Motion seeking placement of the children in father’s care, returnable while the children were with the father on a weeklong visit, which started July 5th, 2014.
[28] Mother has not been cooperative with the Society through much of this process. It is clear that mother has a significant mistrust of the Society, or possibly misunderstands the role of the Society. Mother refused to provide signed consents until September 17, 2015. Mother has demanded that communication between the child protection workers and herself occur in writing via email. Mother has been avoidant in scheduling home visits. Further, while mother denies that she is in a relationship with Mr. T., he seems to be around a lot. Mother has indicated that she wants Mr. T. to be involved with the children and to resume the role that he was in before. In her own affidavit, sworn September 17, 2015, mother states that “I maintain that Mr. T. and I are not in a relationship. We are very good friends and confidants. He will provide me advice on the children but has always deferred to my decisions. He has been helpful with the children but he has not occupied the role as a parent for them. He can be obnoxious and opinionated with people (especially the Society), and from that, I believe people draw the wrong conclusions about him.” (paragraph 9).
[29] Mother denies using any physical discipline methods upon the children, despite their disclosures that these happened. The mother further states that she has never seen Mr. T. use such harsh discipline messages. Mother’s position is that the worker did not forensic interviewing skills, while interviewing the children. I reject mother’s evidence on this point as it is contradicted by other evidence.
[30] Based upon the foregoing, I have no difficulty concluding that the children are in need of protection. Statements made by the children to the protection worker, observations by the school principal at the children’s school and the comments of Dr. Bienert are overwhelming. There is no doubt that a judge after trial would find the children to have been in need of protection during the time they were in mother’s care and prior to their apprehension.
Dispostion
[31] As previously stated, the more difficult issue is what disposition is in the children’s best interests. The children have resided with their father since apprehension and placement with him July 9th, 2014. The children have now attended a new school and appear to be doing relatively well. There have been some issues while in father’s care. Father, according to the child protection workers, has been attentive to the needs of the children. Given the fact that mother denies any improper physical disciplining of the children and conduct by Mr. T. towards the children in the past, it is difficult to see how she would change in the future. There is no evidence that mother has come to the realization that as a result of her conduct, protection concerns have not only arisen but have manifested themselves in the behaviour of the children. Mother states that she has and will continue to abide by a court order, even if that means that Mr. T. cannot be around the children. Given the evidence of mother’s highly contentious and confrontational relationship with members of the Society, it is difficult to see that the children would be protected if returned to mother’s care with a supervision order. However, the largest issue as it relates to disposition is the more recent statements of the children to Dr. Helen Bienert.
[32] Section 37(3) of the CFSA directs court to take into consideration a number of factors, including a child’s physical, mental and emotional needs, the child’s relationships and emotional ties to a parent, the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, the merits of a plan for the child’s care proposed by the Society, the child’s views and wishes, the effects on a child of delay in the disposition of the case, the risk that the child may suffer harm through being removed from, kept away from, returned or allowed to remain in the care of a parent and the degree of risk that justified the finding that the child is in need of protection. Taking all of those circumstances into account, it is quite possible that the outcome of the disposition hearing is predictable. However, there is a genuine issue requiring a trial given the statements made to Dr. Bienert by the children. The wishes of the children by no means are determinative of outcome, however, they are such that it requires the court to more closely examine the issue and determine what order is in the children’s best interests. It may or may not be the case that at trial, a judge orders the children to continue with father. Another alternative is placement with father, with more contact with mother. In my view, these are all issues that need to be more fully explored at a trial with a judge that has the benefit of hearing from the parties and, possibly, Dr. Bienert.
[33] I come to the conclusion that there is a genuine issue requiring a trial on the issue of disposition largely upon the letters by Dr. Bienert to child protection worker, Ms. Maracle, dated June 29, 2015 and July 19, 2015. In her July 19th letter, Dr. Bienert stated that she met with the children on July 3rd, 2015, the first time since meeting with them on March 20th. She writes that the child, C.C.K., expressed frustration that the Society was overruling his wishes on matters of where he was to live. E.T.K. expressed agreement with this. On page 2 of her letter, Dr. Bienert states, “The message I hear from the children is consistent, Nadia. They certainly appear to want to live with their mom. Both C.K. and E.K. continue to consider their mother’s residence as home. Both children are certain to tell me that they love their dad and that they want to always have contact with him at his home, but they are consistently telling me that they want to return to their mother’s fulltime care. E.K. stated that in the July 3rd session that, “It should be the opposite of how it is. We should live with our mom and visit our dad on the weekends.”
[34] Further, on the last page of her letter, Dr. Bienert states, “Once again, Nadia, both C.K. and E.K. have been very consistent about their expressed wish to return to their mother’s primary care, and to Benson Public School in Cardinal. Similarly, both were determined to communicate to me that reports of Mr. T. having hit them with a belt were not true. I do not know how to interpret the fact that when I am being told is contrary to what the Society has recorded in its files. I can only comment on what was told to me. The children’s presentation on July 3rd was confident and consistent. There was nothing in the reports that suggested fabrication or lying. What they were communicating to me during the July 3rd session seemed genuine.”
Conclusion
[35] There is no genuine issue requiring a trial on the issue of child protection. I find both C.C.K. and E.T.K. are children in need of protection on the grounds sought by the Society. I find that there is a genuine issue for requiring a trial on the issue of disposition and order the trial to continue. A trial date is set for November, 2015 and shall continue. The parties are advised to consider further negotiation on this matter with a view to resolution. However, if the matter cannot be resolved, the trial shall proceed.
The Honourable Mr. Justice J.M. Johnston
Released: October 19, 2015
v. K.K. and J.K., 2015 ONSC 6461
COURT FILE NO.: 14-0673
DATE: October 19, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
B E T W E E N:
Family and Children’s Services of Lanark, Leeds and Grenville Applicant
– and –
K.K. and J.K. Respondent
RULING ON MOTION FOR SUMMARY JUDGMENT
Johnston, J.
Released: October 19, 2015