Children’s Aid Society of Ottawa v. K.A., 2016 ONSC 2200
CITATION Children’s Aid Society of Ottawa v. K.A.,2016 ONSC 2200
COURT FILE NO.: FC-05-2839
DATE: 2016/03/31
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROBHIBITED 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 D.A. born […], 2004,
BETWEEN:
Sheldon Cherner, for the Child
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant (Applicant on Motion)
– and –
K.A. (Mother)
E.T. (Father)
Respondents
Respondent (Respondent to the Motion)
Judith Hupé, for the Applicant (Applicant on Motion)
Cedric Nahum, for the Respondent, Mother
*Father noted in default and did not appear
HEARD: March 29, 2016
reasons on motion FOR SUMMARY JUDGMENT
SHEARD j.
[1] This motion for summary judgment was brought by the Children’s Aid Society of Ottawa (“the Society”) under Rule 16 of the Family Law Rules, O. Reg. 114/99 (“FLR”).
[2] The Society sought a final order of Crown wardship in respect of the child, D.A., […], 2004 (age 11), and with access to the Mother, K.A. at the discretion of the Society, taking into account the child’s wishes and best interests. As at the date of this hearing, he will have been in care for 1141 days, 799 consecutive days since his latest apprehension on January 12, 2014.
[3] Although it was not set out in the notice of motion, the effect of the Crown wardship order would allow for the child’s permanent placement planning and, if possible, adoption. At the time of this hearing, the Society did not have a permanent placement for the child. Counsel for the Society advised the Court that if the child were to be adopted, any access order granted in this application could cease by the Society giving notice to the Mother and to the child. In that event, should they so wish, either the Mother or the child would be permitted to bring an openness or other appropriate application.
[4] The Mother filed no responding materials on the motion. Although she opposed the Society’s motion, she conceded that without any responding material the Court would be likely to grant Crown wardship. Whether or not an order of Crown wardship is made, the Mother wishes to continue to have ongoing access to the child.
[5] The child’s Father had not filed an Answer and consented to the order sought by the Society. He has never cared for the child and had not put forward a Plan of Care.
[6] The child, represented by counsel, brought his own motion by which he also sought an order for Crown wardship but one that contained access provisions different from those sought by the Society. In particular, he sought an order granting him and his Mother mutual access rights.
[7] The Society submitted that there are no genuine issues requiring a trial in this case: the child and his father consented to the Crown Wardship Order, and in the course of the hearing, an agreement was reached with the Society and the child on the wording of the access provisions.
[8] Although the Mother did not file any responding materials on the motion, she was represented by counsel who advocated her wishes regarding the access provisions to be part of any order of Crown wardship. The Mother did not agree with the wording agreed to between the Society and the child: the Mother wanted the order to provide that access would be a minimum of four times per month, plus the cultural events that she attended with the child.
[9] Apart from the position put forward by the Mother in argument, and provided that the evidence filed by the Society could support an order for Crown wardship, no factual or legal issues were raised that would require a trial.
[10] After hearing submissions of counsel for the Society, the Mother, and the child, and receiving the draft wording regarding the Order and access that had been agreed to by the Society and the child, I granted the motion for summary judgment on those terms, with reasons to follow.
[11] My reasons for granting the application are set out below.
Background
[12] The child was born in […] 2004. The Society has been involved with this family since June 2005. The Society had had nine involvements prior to the latest apprehension. The Society’s affidavit material laid out a history of concerns of sexual abuse, criminal behaviour by the Mother, and physical harm and neglect of the child while in the care of his Mother.
[13] The child was first apprehended in June 2005. He was returned to the care of his Mother in May 2006 under supervision order. That supervision order was terminated in September 2007.
[14] Between 2007 and 2014 there were numerous “referrals” to the Society:
• August 2008 the Society received a report that the maternal grandmother advised that the Mother was using crack cocaine and not interested in caring for her child, then four years old;
• Anonymous and neighbour reports occurred in the ensuing years. There were reports that the Mother had been seen dragging her child, heard yelling at him, that the child’s cries and protests of “don’t touch me”, were heard through the walls of the Mother’s apartment;
• In 2009, responding to a neighbour’s complaints, the Ottawa police found the child in the care of his maternal grandfather, who was intoxicated. The Mother had left the child in her father’s care, while she was out with her boyfriend;
• In May 2010, following a dental screening, the child’s teeth were found to be filled with cavities and infected. At the age of five the child was referred to the Children’s Hospital of Eastern Ontario (“CHEO”) for emergency dental treatment and teeth extraction;
• Over the years, there were many anonymous reports that the Mother was drinking alcohol and smoking marijuana while caring for the child. The child himself reported that his Mother would get angry with him, which would make him fearful, and that she would hit him “all over”.
[15] The Society was hampered in its ability to investigate complaints as the Mother refused to allow entry and, apparently, the child had been coached by his Mother on what he should not discuss with Society child protection workers.
[16] The Society re-opened its file in December 2013 following an anonymous report from a professional in the community. At that time, there were again allegations of alcohol abuse by the Mother and of her verbal abuse toward the child. There was a new complaint that the child was exposed to the Mother’s sexual activity that she had with various men at the home.
[17] On December 20, 2013 a report was received from an anonymous source who had observed the Mother, who was intoxicated and had smoked a joint, to enter the child’s bedroom, while he was asleep, and to put her hands down her son’s underwear and massage his frontal and back area. Support workers from the Inuit community spoke to the Mother about this occurrence. The Mother admitted having used alcohol and marijuana but denied sexually touching the child.
[18] Following this report, a plan was put in place whereby support workers would check in with the Mother daily to confirm that she had not been drinking alcohol or smoking marijuana.
[19] On January 12, 2014, the Society received a call from an anonymous person reporting that the Mother had entered the child’s room where he was sleeping and started punching and kicking him on his “private parts” for no reason. She then passed out on his bed.
[20] The child was apprehended the following day and taken to CHEO. The matter was also referred to the Ottawa Police, Sexual Assault and Child Abuse section. In the course of the investigation, the Mother confirmed that, while she was intoxicated, she had pinched the child’s penis, causing him to wake up screaming in pain. She also admitted to punching the child in the head a week earlier. Both incidents were reported by the child and confirmed by the Mother. The Mother was charged criminally and was registered on the Child Abuse Registry.
[21] The Mother admitted to the Child Protection Worker that she hurt the child and that she had an alcohol addiction. She did not oppose the child’s apprehension. The child has remained in care since that apprehension.
Mother’s Efforts to address Her Addiction and Anger Management Issues
[22] The affidavit of the Child Protection Worker documents the efforts made by the Mother on and after January 2014, to seek treatment for anger management, drug and alcohol assessment and other counselling. Sadly, those effort efforts have been short-lived and unsuccessful. She continues to struggle with alcohol addiction and abuse.
[23] By Order made August 13, 2014 the child was found to be in need of protection. A temporary wardship order was made and the Mother was granted supervised access two times per week.
[24] The Society originally brought a motion for summary judgment (for Crown wardship) on April 24, 2015. The motion was heard by Justice Minnema. His seven-page endorsement chronicles the history of the Society’s involvement with this family.
[25] At the time of the hearing before Justice Minnema, the Mother had acknowledged most of the post-November 2013 difficulties but claimed that she had been sober for the two months prior to the hearing. The Society’s evidence, also before me, was that the Mother would leave voicemail messages for the worker with slurred speech.
[26] The Mother had been charged with assault on a woman on April 1, 2015, only weeks before the hearing before Justice Minnema. Based on the evidence available at that time, he concluded that alcohol was not involved in that assault. The evidence before me today, which included a redacted copy of the Ottawa police service report, states that the Mother had been drinking on April 1, 2015 and had advised the Officer that she was supposed to see the child that day for a supervised access visit and “had gotten a coffee to sober up”. (Affidavit of Annie Bellemare sworn October 15, 2015, continuing record, volume 1, Tab 2.)
[27] Justice Minnema declined to grant the motion for summary judgment. At para. 22 of his endorsement he stated:
In my view it is too early to give up on Ms. A. She has positives that she brings to the child, particularly related to his culture and heritage, and they have a long relationship. Her commitment to addressing her issues appears to me to be something more than just a heartfelt expression. In my view there is a genuine issue for trial as to whether Crown wardship versus Society wardship would be in D.A.’s best interests.
Having said that, I took particular note of the fact that the attempts to address the addictions issue have not included the residential treatment program recommended. I am troubled that I have not heard the Mother embracing that specific proposal. While she has shown commitment to remaining clean and sober, the evidence suggests that it will be very difficult without such a program. Time is quickly running out for her to resume a parenting role. (Minnema, J., Endorsement dated April 24, 2015 at paras. 22–23.)
[28] Unfortunately, by today’s hearing time had run out for the Mother. She did not enroll in the residential treatment program; she did not complete the anger management program for which she was approved through the Elizabeth Fry Society; she continues to abuse alcohol; she did not participate in the addiction counselling; and she did not follow up with the programs agreed-upon with the Society.
[29] The Mother’s alcohol addiction has also, occasionally, affected her access visits. On one occasion she attended her access visit under the influence of alcohol, which led to the cancellation of that access visit. She has cancelled other visits by reason of intoxication as observed through her slurred speech on her phone calls to cancel.
[30] On August 11, 2015 the Mother was convicted of assault and failure to comply with respect to an incident in which she assaulted a stranger while under the influence of alcohol.
Access Visits
[31] In September 2015, the Mother unilaterally decided to stop attending her Thursday visits and to reduce her visits to once per week and on special cultural events. From July 2015 to December 2015 out of 19 possible visits, the Mother missed four.
[32] In January of this year, she missed a number of visits without telephoning in advance. According to her counsel, the Mother lost hope because of the pending Crown wardship Application.
[33] In January 2016 the Society determined that, rather than bringing the child to the visits that the Mother would simply not attend, the Mother would be required to check in to confirm that she was physically present at the Tungasuvvingat Inuit Centre (the “TI Centre”) before the child would be brought for the visit. In February and March 2016 a number of visits were missed by reason of the Mother’s non-attendance or refusal to check in for the visit.
[34] At today’s hearing, counsel for the Mother stated that his client has resumed her regular weekly visits.
[35] The Society sought an order that access would include frequent and regular visits and a minimum of at least one visit per month. Counsel for the Mother sought an order that there be a minimum of at least one visit per week.
[36] By all accounts, the Mother’s visits with the child go well. He enjoys them and he wants to continue seeing his Mother. What is less clear, are his views on the frequency of those visits.
[37] Counsel for the child stated that his instructions were unclear: initially the child had wanted weekly visits with the Mother. However in March of this year, the child was less clear about how often he wanted those visits to occur. I conclude that the child has changed his mind about wanting weekly visits.
[38] Counsel for the Society has stated, and the record supports, that the Society and the child’s foster family have recognized the value and importance to the child of his cultural roots. The supervised visits take place in the Inuit community; the child attends March Break and summer camps offered through the Inuit community and his foster family has joined the child and the Mother at a number of Inuit cultural events.
[39] The Society resisted an order that prescribed a minimum of four visits per month. The Society wanted to avoid disappointment to the child in the event that the Mother failed to attend or cancelled her visit. Counsel for the Society and for the child agreed that if the language in the order included access on a “regular, frequent basis after taking into consideration the child’s wishes and best interests, which visits to be in addition to Inuit cultural events” it would not be necessary to provide for more than a minimum of one visit per month: the cultural events alone number an average of six or more per year and are to be in addition to the regular access visits.
[40] I accepted the submissions of the Society and the child with respect to the access terms. I did not grant the order sought by the Mother that the visits be a minimum of four per month. In making that order, I took into account the history of cooperation between the Society and the Mother with respect to facilitating the child’s visits and his attendance at cultural events; the behaviour of the Mother, who unilaterally reduced her visits to once per week and that in 2016 she missed a number of visits of her own accord. I also gave great weight to the age of the child. He 12 years old in July and as he gets older the frequency of access will be increasingly within his control, determination and choice.
[41] Counsel for the Mother submitted that the child does not have a real say in whether or not to have a visit with his Mother. However, counsel for the Society and for the child disagreed: they acknowledged that if a child of 13 or 14 years wants to have a visit with his Mother, it is in everyone’s interests to facilitate that visit rather than to have the child simply go “awol”.
The Law
Motion for Summary Judgment
[42] In making the order for Crown wardship, I considered the law and jurisprudence on motions for summary judgment.
[43] Rule 16 of the FLR governs motions for summary judgment, including those brought in child protection cases. Rule 16 of the FLR provides, in part, as follows:
(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).
(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.
(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).
(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).
[44] The language in r. 16(6) of the FLR, like that in r. 20 of the Rules of Civil Procedure, RRO 1990, Reg 194 is mandatory: “the court shall make a final order whenever the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[45] Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”) is the starting point for any analysis of the principles that apply on a summary judgment motion. Courts have held that the Hryniak principles are applicable to motions for summary judgment in child protection cases (See e.g. Children's Aid Society of Ottawa v. S.K., 2015 ONSC 4623; CAS v. Al-Wazzan (5 August 2015), Ottawa, FC-13-00002784 (Ont. Sup. Ct.).)
[46] Hryniak defines what is meant by a “genuine issue requiring a trial”:
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. (para. 49.)
[47] Hryniak sets out the following key principles respecting the standard for granting summary judgment:
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. (para. 50.)
[48] In considering the effect or consequence of the absence of responding materials from the Mother, I considered the well-accepted principle that: Parties must put their best foot forward; in other words, they “must lead trump or risk losing.” (Afolabi v. Fala, 2014 ONSC 1713, 46 R.F.L. (7th) 75, at para. 47, citing 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547, at p. 557.)
[49] Hryniak further provides:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. (para. 66)
Onus
[50] The above comments regarding R. 20 have application here, given the new summary judgment provisions now found in R. 16 of the FLR.
[51] The onus is on the Society to show that there is no genuine issue for trial. Once it has advanced a prima facie case then the onus shifts to the Respondent to show that there is a genuine issue requiring trial.
[52] Based on the facts before me, summarized in part above, I find that the Society has established a prima facie case that summary judgment should be granted and that an order of Crown wardship with access to the Mother, should issue. I find that the evidence advanced by the Society in support of its motion for summary judgment, referenced above, clearly establishes the ongoing existence of the Society’s protection concerns and supports the order sought by the Society.
[53] Having found that the Society has made out a prima facie case, the onus shifts to the Mother to demonstrate that there is a genuine issue requiring a trial. She has put no evidence forward and has failed to meet her onus.
Best Interests of the Child
[54] Applying the applicable legal principles to this case, the evidence allows me to find the facts necessary to conclude that an order for Crown wardship, with access to the Mother, for the purpose of adoption, is in the child’s best interests.
Order granted
[55] At the hearing, counsel were given an opportunity to agree on wording for the order. Counsel for the Society and the child reached an agreement and, on the motion, filed their handwritten agreement identified as “Schedule “A”. The agreed-upon terms are:
The child, D.A., is placed in the care and custody of the Society as a ward of the Crown.
The Mother, [K.A.], and child will have access to each other, taking into consideration the child’s wishes and best interests, on a regular, frequent basis, a minimum of one monthly access visit. In addition, they will have visits on special occasions, without limiting the generality of the foregoing, including Inuit cultural events.
The access regime will support the child maintaining his aboriginal [Inuit] cultural connections.
[56] I granted the Order as per the above terms and endorsed the record to state that the Order should be granted as per the draft filed in schedule “A” as per the above.
Sheard J.
Released: March 31, 2016
INFORMATION CONTAINED HEREIN IS PROBHIBITED 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
CITATION Children’s Aid Society of Ottawa v. K.A.,2016 ONSC 2200
COURT FILE NO.: FC-05-2839
DATE: 2016/03/31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant (Applicant on Motion)
– and –
K.A.
Respondent (Respondent to the Motion)
A.W. (Father)
*Father noted in default and did not
Appear
reasons on MOTION FOR SUMMARY JUDGMENT
Sheard J.
Released: March 31, 2016