ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-15-20282
DATE: 20151027
BETWEEN:
Children’s Aid society of toronto
Appellant
– and –
A.G.
Respondent
Simon Fisch and Nicole Horwitz, for the Appellant
A.G., acting in Person
HEARD at Toronto: October 13, 2015
On appeal from the decision of Justice R. Zisman, 2015 ONCJ 331
C. Horkins J.
Introduction
[1] The Children’s Aid Society (“the Society”) appeals in part the order of Justice R. Zisman (“the motion judge”) dated June 12, 2015. The respondent is the mother of four children who are now ages eight, seven, six and three.
[2] On May 14, 2015, the Society brought a motion for summary judgment pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99. The motion judge granted the Society's motion, in part. The children were made Crown wards and placed in the care of the Society. On this issue, the motion judge found that there is no genuine issue requiring a trial. This order has not been appealed.
[3] The motion judge found that there is a genuine issue requiring a trial regarding access. The Society appeals this part of the order.
[4] The biological father of the three eldest children did not participate in the motion or appeal. The biological father of the youngest child was found not to be a parent within the meaning of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”).
Respondent’s Adjournment Refused
[5] At the start of the hearing, the respondent mother asked the court to adjourn the appeal so that she could have her lawyer present. The lawyer in question is Sharon Shartal Levinthal. She represented the respondent on the summary judgment motion in the Ontario Court of Justice. The respondent’s request was denied for the following reasons.
[6] The four children have been in the Society’s care for a period of time that exceeds the statutory limit. The three eldest children have been in care two years and ten months. The youngest child has been in care for one year and six months.
[7] The decision under appeal was issued on June 12, 2015. The respondent was served with the Society’s notice of appeal on July 9, 2015. The Society’s appeal record and factum were served on the respondent on July 29, 2015. The respondent has never filed any responding material.
[8] A status hearing in this court was held before Justice Kiteley on August 17, 2015. The respondent appeared without counsel. Justice Kiteley recorded the following: “[the respondent] has told her lawyer Ms. Levinthal that she received the documents but she has not provided the material to her yet.”
[9] Justice Kiteley fixed October 5, 2015 for the appeal. She ordered that the respondent “or her counsel shall file responding material no later than September 18, 2015”. This deadline was not complied with.
[10] A second status hearing was held on September 21, 2015 before me. The respondent did not attend. No explanation for the respondent’s absence was available. The respondent knew about the second status hearing and never indicated to the Society that she would not be attending. The respondent had not complied with the September 18 deadline for filing responding material on the appeal. To ensure that she had one last opportunity to do so, I extended the deadline for serving and filing responding material to September 28, 2015. In my endorsement I recorded that the respondent does not have counsel and that the Society was told on September 11, 2015 that Ms. Levinthal was not representing the respondent. I also recorded that the appeal would go ahead on October 5, 2015.
[11] The Society served a copy of my endorsement on the respondent. The respondent did not take advantage of the extra time to file responding material on the appeal. There was no communication between the Society and the respondent to indicate that the respondent was looking for a lawyer or that she wanted to adjourn the appeal.
[12] The appeal proceeded on October 5 and the respondent was not present. The court waited 30 minutes before commencing the appeal. The court paged the respondent several times and staff went outside the courtroom to look for her. The name of the appeal was posted on the board with the courtroom number. The appeal concluded shortly before the 1 p.m. lunch break. The respondent never appeared. My decision was placed under reserve.
[13] On October 6, 2015, the court received a fax from the Society that transcribed a voicemail they had received from the respondent at 12:02 pm on October 5. According to the voicemail, the respondent was at the courthouse at 393 University Avenue and could not find the courtroom. She wanted to know what had happened on the appeal.
[14] Upon receipt of this information, I decided that the appeal would be re-argued. I issued an endorsement dated October 7, 2015 fixing October 13 for the hearing of the appeal. A copy was delivered to the respondent.
[15] On October 13, the respondent appeared and asked for an adjournment so that she could have her lawyer present. The Society had no advance notice of this request for an adjournment.
[16] The respondent could not say if Ms. Levinthal was going to act for her or if she was going to hire another lawyer. The respondent knew that Ms. Levinthal was no longer acting for her because she had received Ms. Levinthal’s September email that clearly stated this fact.
[17] The respondent has taken no steps to find a new lawyer. When Justice Kiteley issued her endorsement after the first status hearing, she ordered the respondent or her counsel to file material. In other words, the hearing of this appeal did not depend on the respondent having counsel. This court has given the respondent ample time to file responding material and to hire a lawyer to assist her, should she choose to have one.
[18] I denied the request for an adjournment in these circumstances because further delay in the hearing of this appeal is not in the best interests of the children. As the court stated in C.M.E.M. v. Children's Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612 at paras. 34‑35, “timeliness” is important in a child welfare case:
34 That requires, among other things, that assessment reports be prepared with dispatch; that Children's Aid Societies make decisions in accordance with statutory timelines about how to proceed in a particular case; that meaningful case management occur in which timetables are set and witness lists are fully canvassed; that trials be scheduled so that trial days are not stretched over months; and that trial judges receive adequate time to prepare reasons in a timely fashion.
35 We acknowledge that additional factors may contribute to delay in particular cases. It is our hope, however, that all those involved in the child welfare system will do their part to minimize delay and promote finality for children. The children involved in this system deserve better.
[Emphasis added.]
[19] Two meaningful status hearings were conducted. The respondent was given extra time to file material, even though she failed to attend and did not ask for an extension. The children require finality and it is the obligation of this court to do its part to minimize delay. In the circumstances of this case, I found that further delay could not be justified and proceeded to hear the appeal.
background
[20] The Society's involvement with the family began in July 2009, after a hospital social worker reported concerns about the respondent’s lack of pre‑natal care prior to the birth of the third child and inadequate housing. Once the Society became involved, additional concerns emerged relating to the respondent’s neglect of the children's medical and dental needs and her failure to provide them with a safe and hygienic home.
[21] Despite the significant number of services involved with the respondent on a continuous basis from July 2009 onwards, the children were apprehended by the police on April 20, 2011, after the second child fell from his parents' second floor balcony after he and his siblings were left there to play on their own. At the time of the children's apprehension, the respondent was "in crisis and spiraling downwards." At this point, the fourth child was not born.
[22] When the three children came into the Society's care they required extensive dental treatment due to the state of their gums and teeth and all were showing developmental delays. The parents did not utilize the services recommended to them for the care of the children.
[23] On June 1, 2011, the three children were found to be in need of protection due to the "risk that the children were likely to suffer physical harm inflicted by the person having charge of them or resulting from that person's failure to adequately care for, provide for, supervise or protect them child (s. 37(2)(b)(i) or pattern of neglect in caring for, providing for, supervising or protecting them (s. 37(2)(b)(ii))". On August 7, 2014, the fourth child was found to be in need of protection pursuant to s. 37(2)(b) of the CFSA.
[24] The children remained in the Society's care on consecutive court orders from April 2011 until August 2013, when they were returned to their parents' care on a supervision order with extensive terms and conditions requiring them to work with numerous service providers, ensure that the children attended school and medical/dental appointments and have no contact with their maternal grandfather without the Society's approval. By this point the respondent had given birth to the fourth child.
[25] Almost immediately after the children were returned to the parents, concerns emerged with respect to their overall compliance in many areas.
[26] Leading up to March 2014, the parents struggled to meet the Society's expectation that they access supports and services and concerns emerged with respect to their care of the children in almost every area. The respondent was also unable to meet the children's needs and was leaving them with unsafe caregivers in direct violation of the court order.
[27] This culminated in the children's apprehension from the respondent’s care on March 28, 2014, at which time the Society learned that in addition to the other protection concerns, the respondent was breaching the court order and exposing the children to significant risk by allowing unauthorized contact with the maternal grandfather.
[28] Shortly after the children's return to the Society’s care in March 2014, the Society amended its pleadings to seek an order that they be made Crown wards, with no order for access, as the plan was to seek permanency for the children by way of adoption.
[29] In September 2014, the three eldest children underwent psychological assessments with child psychologist, Dr. Daniel Fitzgerald, Ph.D., C. Psych. Dr. Fitzgerald found that the first child was relieved that her needs and the needs of her younger siblings were being met in the Society's care, but she worried about her parents' lack of funds to buy food as well as their fighting. Dr. Fitzgerald also found that the first child harboured considerable anger and resentment about her parents' failure to provide the children with a safe and nurturing home environment. He found that she was not comfortable expressing this anger, thus the anger is internalized and there is a risk of serious emotional and behavioural issues.
[30] Dr. Fitzgerald found that the second child’s overall cognitive functioning was in the borderline range and that his level of adaptive functioning was extremely limited. He was extremely dependent on adult direction and support in order to manage most aspects of his life. In addition, Dr. Fitzgerald found that the use of effective behaviour management strategies at home and at school would be beneficial for this child.
[31] Dr. Fitzgerald found that the third child’s overall cognitive functioning was in the low range and her communication and non‑verbal reasoning skills were in the average range. Dr. Fitzgerald found that this child displayed symptoms of hyperactivity, impulsivity and distractibility consistent with a diagnosis of Attention Deficit Hyper Activity Disorder. The child was also found to be impulsive by nature, lacking in judgment and foresight and her distraction placed her at risk of greater difficulties for her learning, safety and well‑being.
[32] The respondent was represented by counsel on the summary judgment motion. She did not dispute Dr. Fitzgerald’s findings. Further, the respondent did not demonstrate any ability to follow Dr. Fitzgerald's recommendations in how best to interact with the children or ensure that their emotional needs were supported during access visits. While the children were in the Society's care, there were ongoing significant concerns related to the respondent’s access and the impact of her behaviour on the children.
[33] Notwithstanding the Society’s ongoing efforts to work with the respondent to focus her attention on the children and not to expose them to conflict and harm, the respondent was unable to prioritize her children's needs during her access visits. Her visits with the children were loud and largely chaotic. She struggled to manage the children's behaviours and generally gave into their demands. Further, the respondent continuously texted or checked her cell phone rather than playing with the four children whom she was unable to properly supervise. Safety concerns arose during the visits with the fourth child frequently leaving the access room or area without anyone noticing.
[34] The respondent also failed to focus on the children's needs during her visits and continuously spoke to the father or Society staff about her extreme dissatisfaction with the children's care in the foster home while the children were present or within hearing distance. Further, she reacted defensively to any suggestion made by Society staff as to how to improve the quality of the visits.
[35] The respondent did not address, deny or explain the numerous concerns that the Society raised about her access visits with the children except to state that she believed her visits became more successful when they were separated from the father's visits.
[36] On the Society’s summary judgment motion, the motion judge made the children Crown wards and placed them in the care of the Society. This order has not been appealed. The motion judge found that there is a genuine issue requiring a trial regarding access. It is this order that the Society appeals.
[37] These children have been made wards of the Crown. The Society submits that an order requiring a trial on access is delaying permanency planning for the children. Specifically, it is delaying their placement in a permanent adoptive home. The Society asks this court for two orders:
(i) A finding that the motion judge erred in law in finding a genuine issue requiring a trial on the issue of access.
(ii) An order pursuant to s. 134 of the Courts of Justice Act R.S.O. 1990, c. C.43 (“CJA”) that there be no order for access regarding the children.
Grounds of Appeal
[38] The Society argues that the motion judge made the following two errors in law:
Incorrectly importing considerations related to post‑adoption openness into the legal test for access; specifically into the test of whether there is a meaningful and beneficial relationship to the children.
Failing to adhere to the statutory pathway set out in s. 59(2.1) of the CFSA.
[39] A third alternative error is alleged, if the court finds that the statutory pathway was followed. The Society argues that it was an error in law to find on the facts of this case that the respondent met the burden of proving a genuine issue requiring a trial on access.
[40] The standard of review on questions of law is correctness (see Housen v. Nikolaisen, 2002 SCC 33.) This standard of appellate review applies in child protection cases on appeals from a motion for summary judgment.
[41] The motion judge’s reasons are clear and detailed. However, in the process of her reasons I find that she made errors of law.
The errors of Law
1. Importing Openness Considerations
[42] The focus of the appeal is on the interpretation and application of s. 59(2.1) of the CFSA. This section creates a two‑step test. The court may make an access order with respect to a Crown ward if both steps of the test are satisfied.
59(2.1). A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child's future opportunities for adoption.
[43] This appeal focuses on the first step: is the relationship between the mother and children beneficial and meaningful to the children? In the context of the summary judgment motion, the issue was whether the respondent met the burden of proving that there is a genuine issue requiring a trial on this first step.
[44] In Children's Aid Society of Toronto v. T.L., 2010 ONSC 1376 at para. 27, Perkins J. described the statutory scheme set out in s. 59(2.1).
[45] It is accepted that "beneficial" means "advantageous” and "meaningful" has been held to mean "significant". The person seeking access to the child must prove that his or her relationship with the child brings a significant positive advantage to the child (see Children's Aid Society of the Niagara Region v. C.T., 2015 ONSC 32).
[46] There is a presumption against access where a child has been made a Crown ward. The party seeking access has the onus to rebut that presumption. The requirements in s. 59(2.1) of the CFSA are clearly conjunctive.
[47] The beneficial and meaningful relationship must exist at the time of the hearing (see Catholic Children's Aid Society of Toronto v. A.M.Y., 2014 ONSC 6526, aff’d 2015 ONCA 493).
[48] The motion judge correctly set out the two step test in s. 59(2.1) of the CFSA. However, she then erred by importing openness considerations into step one of the test.
[49] Openness is a concept that arises when a Society begins planning for the adoption of a child who is a Crown ward.
[50] An openness order is a court order made for the purpose of facilitating communication or maintaining a relationship that is meaningful and beneficial to a child, between the child who is adopted and various individuals, including a birth parent.
[51] In 2011, the CFSA was amended and the former prohibition preventing adoption where access existed was repealed.
[52] At paras. 123‑124 of the reasons, the motion judge refers to the 2011 amendments to the CFSA. She erred when she connected the benefits of an openness order with the beneficial and meaningful test in s. 59(2.1) of the CFSA.
[53] The 2011 amendments have not altered the two step test in 59(2.1) of the CFSA and the onus that rests on the parent.
[54] Similarly in Kawartha‑Haliburton Children's Aid Society v. J.R., 2015 ONSC 2054, the court confirmed that the onus remains on the parent.
[55] Lastly, in Catholic Children's Aid Society of Toronto v. N.A., 2013 ONCJ 271, aff’d 2014 ONCA 437, Justice Spence affirmed that the onus to satisfy the two step test remains on the person seeking access.
[56] The motion judge relied on Children’s Aid Society of Toronto v. M.M. to support her position that openness was a relevant consideration. This interpretation was rejected.
2. Failure to Follow the Statutory Pathway
[57] This ground of appeal is really a continuation of the first ground of appeal.
[58] The statutory pathway set out in s. 59(2.1) of the CFSA is clear and mandatory.
[59] After reviewing the undisputed evidence about the access visits, the motion judge skipped the first prong of the test and considered step two: whether an order for access would impair the children's future opportunity for adoption.
[60] The motion judge acknowledged that the respondent has the burden to prove that there is a genuine issue requiring a trial on access. However, she stated that she “did not have sufficient evidence”.
[61] Rule 16 is mandatory.
[62] Where there is no genuine issue regarding the meaningful and beneficial relationship, the disposition must be Crown wardship, with no order for access.
[63] In this case the motion judge imported the concept of openness and focused on adoptability. This was an error in law.
[64] Given the above errors in law, it is not necessary to consider the alternative ground of appeal.
[65] In summary I find that the motion judge erred in law in finding a genuine issue requiring a trial on the issue of access.
A substitute order
[66] The Society seeks an order pursuant to s. 134 of the Courts of Justice Act that there be no order for access regarding the children.
[67] Pursuant to s. 134, this court may make orders including making any order that ought to or could have been made.
[68] Subsection 134(6) states that a court shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.
[69] In the child protection context, whenever possible on a child protection appeal, a substitute order rather than a direction for a new trial should issue whenever reversible error is found.
[70] An order for no access is an order that ought to or could have been made by the motion judge.
[71] The motion judge described numerous concerns with the respondent’s ongoing access visits.
[72] The respondent believed that when visits were separated from the father they were more successful.
[73] The motion judge found that the mother did not address or explain the concerns.
[74] The only positive aspects identified were that the children knew their mother, called her “mom”, were affectionate, and appeared happy during visits.
[75] This evidence is not evidence that the relationship is beneficial and meaningful to the children.
[76] I agree with the statement in C.J. v. K.E., 2013 ONSC 63 that the genuineness of an issue must arise from more than a heartfelt desire.
[77] The relationship must be assessed as it exists at the time of the hearing and not on speculation of future improvement.
[78] The respondent presented no evidence that her relationship with the children is beneficial and meaningful to them.
[79] The Society has had an open file with the respondent since July 9, 2009 and the children have been in care beyond statutory limits.
[80] All four children have been found to be in need of protection and Crown wardship is in their best interests.
[81] As the Court of Appeal stated in C.M.E.M. v. Children's Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612, courts must minimize delay and promote finality for children.
[82] Pursuant to s. 134(1)(a) of the Courts of Justice Act, I make the following order: There shall be no order for access regarding the children.
[83] I make no order as to costs on this appeal.
C. Horkins J.
Released: October 27, 2015
COURT FILE NO.: FS-15-20282
DATE: 20151027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid society of toronto
Appellant
– and –
A.G.
Respondent
REASONS FOR JUDGMENT
C. Horkins J.
Released: October 27, 2015