CITATION: The Children’s Aid Society of Ottawa v. C.R. and A.F., 2016 ONSC 1590
COURT FILE NO.: FC-15-472
DATE: 20160304
SUPERIOR COURT OF JUSTICE - ONTARIO
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of A.M.R.F. and C.E.R.F.
RE: The Children’s Aid Society of Ottawa v. C.R. and A.F.
BEFORE: Madam Justice Mackinnon
COUNSEL: Judith Hupé, for The Children’s Aid Society of Ottawa
Karen Leef, for the Respondent C.R.
Dominique Smith, for the Respondent A.F.
HEARD: February 4, 2016
E N D O R S E M E N T
[1] The Society moves for summary judgment seeking Crown wardship for the purpose of adoption with respect to the respondents’ two children, A.M.R.F, aged five years, and C.E.R.F., aged one and a half years.
[2] The respondent father has two other biological children, namely D.R.L., aged 16 years, and G.R.L., who is just shy of 15 years old. On November 16, 2015, Crown wardship was ordered on consent with respect to D.R.L. and G.R.L.
[3] The respondent father also had custody of two other children (the biological children of the mother of D.R.L. and G.R.L.). One of these children, B.P.-L., now aged 18, lived with the respondents for many years.
[4] In March 2015, B.P.-L. made allegations of physical and sexual abuse against the respondents and also alleged that both respondents abused drugs. B.P.-L.’s allegations resulted in the four younger children being apprehended on March 6, 2015 and in criminal charges against both respondents. The charges include failing to provide the necessaries of life, administering a noxious substance, forcible confinement, assault, sexual assault and sexual interference. It appears that the charges do not relate to the two children who are the subject of this summary judgment motion, but this is not clear on the record before me. D.R.L. and G.R.L. initially denied the allegations, but later gave corroborating statements to the Society and the police.
[5] The respondents were each released from custody after several weeks, subject to conditions including that there be no contact between them or with any of the children. In June 2015 the mother obtained a variation of her conditions to enable her to exercise access with A.M.R.F. and C.E.R.F., which she has since done. Although there have been some concerns with the mother’s access, it appears to have been generally positive. The father has also recently had the no-contact condition varied. He has not had any contact with the children in approximately a year, but wants to have access now.
[6] The Society’s position is that the respondents have essentially admitted that the two children are in need of protection by consenting to Crown wardship for D.R.L. and G.R.L. Accordingly, the Society says, only the question of disposition remains. Relying on both the duration of time these young children have been in care and the fact that neither parent is able to offer an immediate plan or placement for the children because of their criminal release conditions, the Society submits that summary judgment should be granted for Crown wardship.
[7] The parents submit that the Society has not met its evidentiary onus on this motion because it has tendered unnecessary hearsay and because B.L.-P.’s evidence is unreliable. They have denied the charges against them and seek to have the children returned to their care.
[8] The parents further state that summary judgment should not be granted in advance of their criminal trial, provided they can have it concluded before September 2016 (being 18 months after the children were taken into care; the maximum time permitted for children of this age, including the six-month extension permitted in exceptional circumstances by s. 70(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [CFSA]). Preliminary hearing dates have been set for July 2016 and both parents have instructed their criminal defence counsel to waive the preliminary hearing and to seek the Crown’s consent to use the preliminary hearing dates for the trial. The parents say it would be in the interests of justice and the best interest of the children to schedule a peremptory trial now, to take place at the end of the eighteen-month period, to enable them to attempt to have their criminal charges disposed of in their favour, thereby enabling them to propose a plan for the immediate return of the children to their care.
[9] The mother has provided letters from her and her children’s healthcare providers and a school principal addressing her parenting and the health and well-being of the children. She has also provided evidence of significant counselling and other programming (parenting, anger management, substance abuse) she has undertaken since the apprehension, demonstrating her commitment to the children and her motivation to regain care and custody of them.
[10] I have concluded that the motion should be dismissed.
[11] I do not accept the Society’s assertion that the parents have admitted that these children are in need of protection by consenting to a Crown wardship order for D.R.L. and G.R.L. That order was based on a consent finding under s. 37(2)(l) of the CFSA which is not applicable to A.M.R.F. and C.E.R.F.
[12] Based on the timing of the motion and the evidentiary deficiencies in the record this is not in my view an appropriate case for summary judgment. The Supreme Court provided the following guidance for courts deciding summary judgment motions in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 49-50:
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.
[13] In my view summary judgment on the basis of an evidentiary record that consists largely of hearsay is not a proportionate means to achieve a just result in this case given the upcoming criminal trial, the availability of a six-month extension to the time limit for the children to be in care, peremptory trial dates and the constraint on the parents’ ability to defend against the older children’s allegations at this juncture. It is in the children’s best interests if possible in a reasonably timely way to know if the outcome of the criminal case will permit a reunification of the family, or part of it.
[14] The evidence tendered by the Society in connection with the facts underlying the criminal charges is virtually all hearsay. No direct evidence is provided from B.P.-L. She is an adult. No explanation was provided for this omission. The parents place her credibility and reliability in issue. They were deprived of the opportunity to cross-examine her prior to the hearing of the motion because she did not depose an affidavit.
[15] Hearsay evidence was also provided by a Society worker, with respect to recent statements made by A.M.R.F. in the foster home. The Society did not provide an affidavit deposed by the foster parent who would then have been available for questioning by the parents’ counsel with respect to issues of threshold reliability.
[16] The Society assumed that the hearsay statements of D.R.L. and G.R.L. would meet the threshold of necessity. Given the ages of those children that is not a ruling that can necessarily be taken for granted. Justice O’Connell considered whether children’s hearsay evidence should be admitted under the principled approach to the hearsay rule (i.e. if it is both necessary and reliable) in Children’s Aid Society of Halton Region v. J.O., 2013 ONCJ 191, 31 R.F.L. (7th) 490 [J.O.]. With respect to the criterion of “necessity”, she stated:
However, in almost all of the cases relied upon by counsel for the children that they submit adopt a relaxed approach to the issue of necessity, there was expert testimony or therapeutic evidence that the children would suffer trauma, in some cases, extreme trauma, if they had to testify in the child protection proceedings. This meets the requirement of ‘reasonable necessity’, as defined by Justice McLachlin in Khan. (para. 35)
[17] The Society did not provide evidence tending to show that these complainants would suffer harm if required to depose an affidavit for this motion. Moreover, although they were interviewed by the police (in the presence of a Society worker) and their statements were audio- and video-recorded, the Society did not obtain the recordings. Instead, it relied on its workers’ notes of what was said during the police interviews.
[18] Section 74 of the CFSA authorizes the court to order the production of third-party records, on the Society’s motion or application. In considering whether to order the requested production, the court will first determine whether the record “may be relevant” to the child protection proceeding. This test is not onerous and is based on the factual context (Children’s Aid Society of Algoma v. D.P. (2007), 2007 39363 (ON SC), 42 R.F.L. (6th) 144 (Ont. S.C.), at para. 31). If the record “may be relevant”, the court will determine whether to order the production by weighing the public interest in supporting the work of children’s aid societies, promoting the administration of justice through full access to relevant information for litigants and having CFSA cases fairly and appropriately adjudicated, against countervailing issues including privacy interests, privilege and the public interest in maintaining the integrity of criminal investigations (D.P. v. Wagg (2004), 2004 39048 (ON CA), 71 O.R. (3d) 229).
[19] The court has ordered the production of Crown briefs under s. 74 notwithstanding ongoing criminal proceedings: Children’s Aid Society of the District of Thunder Bay v. S.D., 2011 ONCJ 100, 2 R.F.L. (7th) 202, and Children’s Aid Society of Algoma v. B. (S.), 2008 ONCJ 358, 55 R.F.L. (6th) 221.
[20] The Society could have moved for production of the police recordings of the older children’s statements pursuant to s. 74 of the CFSA, thereby removing at least one of the dangers of hearsay, namely the accuracy and completeness of the Society workers’ note-taking. It chose not to do so.
[21] Credibility is an important issue in this trial. The parents deny the allegations and set out a factual foundation for their allegation that B.P.-L. has motivation to be hostile towards them. They also show a factual opportunity for her to have influenced the corroborating statements subsequently given by D.R.L. and G.R.L. The parents have not had an opportunity to test the credibility of the allegations through cross-examination. (See J.O., supra, at paras. 46-48.)
[22] I have also considered that at present the Society has no permanent placement planned for these children; as such, the effect of the dismissal of this motion is not to delay or deny any specific plan.
[23] An order will go dismissing the motion for summary judgment and directing that trial dates shall be scheduled as close to August 15, 2016 as the court can provide, peremptory, as proposed by the parents, regardless of the stage or status of the criminal trial at that date. The parents appear to be well aware of the expected outcome if for whatever reason they are unable to propose a plan for the return of the children to their care capable of implementation at that time.
[24] In closing I note that this case illustrates a recurring, systemic issue caused by a lack of scheduling coordination between criminal court and family court. Communication between the two courts is particularly important in CFSA proceedings where the statutory timeline is very tight. There should be a process whereby each court can provide parallel criminal and family matters with schedules which attend to the need for procedural fairness in criminal cases and to children’s need for timely resolution of family cases. This would help to avoid delays to the finalization and implementation of permanency planning for young, vulnerable children. Such a process is especially vital where the absence of a coordinated trial schedule could lead to the result that children and parents may be permanently separated as a consequence of scheduling.
The Honourable Madam Justice Mackinnon
DATE: March 4, 2016
CITATION: The Children’s Aid Society of Ottawa v. C.R. and A.F. 2016 ONSC 1590
COURT FILE NO.: FC-15-472
DATE: 20160304
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Children’s Aid Society of Ottawa v. C.R. (father) and A.F. (mother)
BEFORE: Madam Justice Mackinnon
COUNSEL: Judith Hupé, for The Children’s Aid Society of Ottawa
Karen Leef, for the Respondent C.R.
Dominique Smith, for the Respondent A.F.
ENDORSEMENT
J. Mackinnon J.
DATE: March 4, 2016