Court File and Parties

Court File No.: 3512-16 Date: 20160602 Superior Court of Justice – Ontario

Between: L.F., Appellant And: Children’s Aid Society of Algoma, Respondent

Before: A.D. Kurke J.

Counsel: T. Frederick Baxter, for the Appellant Jennifer Mealey, for the Respondent

Heard at Sault Ste. Marie: May 30, 2016

Endorsement

[1] The Appellant appeals against the January 6, 2016 decision of Kwolek J. in the Ontario Court of Justice, granting Summary Judgment to the Respondent, and ordering Crown wardship of the child J.F., born […], 2005, and no access to the child by L.F. except in the discretion of the Children’s Aid Society (“CAS”) or by further order of the court.

[2] The evidence in the case amply established that J.F., who was 10 years old at the time Summary Judgment was granted, was a very high special needs child, diagnosed with ADHD, PTSD, and attachment issues. Psychiatric evidence recommended structure, routine, and predictability in the child’s life.

[3] The child had lived for a period of time with his maternal grandparents, and then with his great aunt and great uncle from 2009 until September 2013. In that month, the CAS apprehended the child when his great aunt and uncle were unable to continue caring for him, because of his increasing behavioural issues. The CAS obtained an order for interim care, and the child was placed with his grandparents in August 2014 under a kin in care placement. The grandparents cooperated with the CAS and with the child’s many service providers, and the child began to stabilize in their home.

[4] L.F. has had no involvement in the child’s life since January 2009. In his past were allegations of abuse of the child’s mother, and a criminal record involving offences of violence, drugs and drinking and driving charges. He was distrustful of and uncooperative with the CAS. For its part, the CAS attempted to work cooperatively with L.F., and to assess his ability to care for the child, after he moved to gain access or a supervision order following the September 2013 apprehension. However, as the Motions judge noted, L.F. has accumulated no criminal convictions since 2007, and has been steadfast in his desire to care for his child. He is in a stable and positive long-term relationship, and has accommodations suitable for his child.

[5] The CAS determined that the best plan of care would be to apply for Crown wardship, and to place the child with his maternal grandparents, who were willing to do their best to care for the child, so long as they continued to receive the supports that the CAS could offer.

[6] As there was a finding in January 2015 that J.F. was in need of protection, the live issue before Kwolek J. was “whether there is any triable issue regarding the Society’s request that this child be made a Crown ward with no access to the father except in their discretion” (para. 13).

[7] The Motion judge, on the evidence before him, determined that Crown wardship and placement with the maternal grandparents were appropriate. Counsel to J.F. argued that the Motion judge erred by choosing wardship and placement with the grandparents rather than a supervision order and access for J.F. However, the Motion judge found that the need for permanence and stability for the child, and the assistance needed by the grandparents and available to them on a wardship finding, were driving factors in favour of the wardship option. It was preferable to the option of placement with or immediate access by a father who was virtually a stranger to this high needs child. Moreover, J.F.’s unwillingness to cooperate with the CAS and his open hostility to it made a supervision order an impossibility. I see no error in that decision by the Motion judge, even though Crown wardship should be the option of last resort: Catholic Children’s Aid Society of Hamilton v. M.A.M., [2003] O.J. No. 1274 (Sup. Ct.), at para. 12; Catholic Children’s Aid Society of Toronto v. N.B., 2009 ONCJ 648, [2009] O.J. No. 5774 (C.J.), at para. 9.

[8] The appellant also argues that the Motions judge should have chosen a supervision order with the grandparents rather than wardship, as the appellant’s chances at access would be better in that circumstance. However, on the evidence before him, the Motion judge found that access currently was not available as an option. For one thing, the appellant was uncooperative with the CAS. In addition, psychiatric opinion accepted by the Motion judge recommended against introduction of the appellant into J.F.’s life at the time of the hearing. Rather, in an attempt to accommodate and encourage the appellant, the Motion judge crafted a hybrid situation involving Crown wardship and the potential for future access for the appellant at CAS discretion (paras. 54-60). If there was legal error in this approach, it benefitted the appellant, and is of no consequence on this appeal.

[9] The appellant also complains that it was contrary to the best interests of the child and a denial of his “human rights” that the Motions judge permitted counsel from the Office of the Children’s Lawyer (“OCL”) to withdraw and that the child was not made aware of L.F.’s interest in seeking custody of him. As the Motion judge observed, the OCL’s inability to stay on record was driven by the psychiatric recommendation that the child not be made aware of L.F.’s position, so as not to introduce a stranger too soon into the vulnerable child’s life and thinking. Further, counsel to L.F. was not opposed to that withdrawal (paras. 10-11). The child’s mental health and wellbeing were constant concerns in the Motion judge’s Judgment, and his concern for the best interests of the child is reflected in this decision as well. I see no ground of appeal in this complaint.

[10] Counsel to L.F. further argued that the Motion judge erred in not finding that, among other things, the issues of wardship and access required a trial, and that Summary Judgment was inappropriate, as premature. Delay would have allowed the child more time to stabilize and get to know L.F.

[11] The Motions judge properly instructed himself on the law relating to Summary Judgment and Rule 16 of the Family Law Rules (paras. 14-17). He recognized that the onus was on the CAS to show that there was no genuine issue requiring a trial (para. 32). He was attentive to the best interests of the child. He appears to have appropriately applied the law relating to Summary Judgment in the circumstances of this case: see, e.g., Children’s Aid Society of Simcoe County v. B.D., [2014] O.J. No. 1641 (Div. Ct.), at para 35.

[12] There is no indication that the Motion judge overlooked or failed to consider any countervailing evidence or argument or material facts that could have given rise to an issue requiring a trial. On the evidence before him, the Motions judge found no triable issues with respect to:

a. The fact that the child could not be placed “at this time” with the father under a supervision order or under any other order (para. 34); b. The fact that CAS wardship was not an option, given how long the child had been in CAS care already (para. 36); c. Whether any issue existed about placement under s. 57(4) of the Child and Family Services Act (“CFSA”), on consent of a willing family member, so as to block Crown wardship. The evidence was that the grandparents would not consent to placement with them except under Crown wardship, as they required the supports available on Crown wardship, and “the child currently requires the involvement of an extensive network of supports to maintain stability in his life” (para. 37). Counsel’s argument that s. 30 of the CFSA could have been invoked to provide these supports by way of “Special Needs Agreement” does not appear to have been raised before the Motion judge, and amounts to nothing more than a speculative remedy, given the broad discretion inherent in its application; d. The age and physical health of the maternal grandparents, with whom the child was placed (para. 38); e. The fact that it is not necessary to test the psychiatric evidence at trial (para. 41); f. Crown wardship, placement with the maternal grandparents, and access (paras. 42-55, 59-60).

[13] The appellant further asserts that in proceeding by Summary Judgment, the Motions judge disregarded the best interests of the child with respect to the issues of placement and access, and whether the case should be adjourned to permit reintegration of L.F. into the child’s life. To the contrary, at paras. 45-53 of his Reasons, the Motions judge appropriately considered the statutory criteria concerning the best interests of the child, as set out in s. 37(3) of the CFSA, as he was required to do in order to make a determination under s. 57(1): cf. Children’s Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (Sup. Ct.), at paras. 35-36.

[14] Counsel to L.F. raised many issues in his Factum and argument relating to findings of the Motion judge with which he disagreed or issues that he asserted the Motions judge improperly ignored. As counsel for the CAS observed, triable issues for the purposes of Summary Judgment relate to material facts in dispute, rather than remote facts, or arguments or legal positions: Jewish Family and Child Services v. S.K., [2015] O.J. No. 2353 (C.J.), at paras. 236-238. On a correctness standard, I see no errors in the Motion judge’s determination of the material issues on Summary Judgment, and it is not my place to retry the case.

[15] For the above reasons, the appeal is dismissed.

Date: June 2, 2016 A.D. Kurke J.