COURT FILE NO.: C1252 /13/02 DATE: 2016/06/16
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Children’s Aid Society of London and Middlesex Mr. B. Leschied for the Society Applicant
- and -
S.E., L.I., D.N., L.N. S.T., J.T. and Oneida Nation of the Thames Mr. R. Cunningham for S.E. J.T. and S.T. on their own L.I., L.N. and D.N. not appearing Mr. P. VanMeppelen for OCL Ms. Dockstader for the Band Respondents
HEARD: April 27, 2016 McSORLEY J.
Introduction:
[1] The matter before the court involved a motion for summary judgment brought by the applicant society in status review proceedings, concerning one child, T.J.E. (T.E.) born in 2002. In January 2016, the court dealt with a preliminary motion brought by the mother S.E. to strike certain paragraphs of the society’s material. A decision was rendered on February 3, 2016. On April 27, 2016, the court heard the balance of the motion.
[2] In its motion, the society sought an order that T.E. be placed in the custody of J.T. and S.T., pursuant to s. 57.1(1) of the CFSA with reasonable access by the mother subject to the child’s wishes. J.T. is the child’s godfather and cousin. S.T. is J.T’s wife. T.E. has resided in the care of his godfather and wife since February 27, 2014.
Background:
[3] The society was involved with the mother on approximately 10 different occasions between 2002 and 2011. On each occasion the society closed its file at the intake level. In June 2011, concerns were raised about domestic violence between the mother and her then partner C.P. C.P. was eventually arrested and the mother ended her relationship with him in October 2011.
[4] The mother entered into a new relationship with F.H. in February 2012. The mother denied any domestic violence in her relationship with F.H. As a result, the society file was closed on March 19, 2012.
[5] The society became involved again with this family in July 2013. At that time it was reported that T.E. was residing with maternal cousins, L.N. and D.N. A referral was made regarding the care T.E. was receiving from L.N. and D.N. During the investigation, T.E. disclosed concerns regarding his safety around F.H. as well as disclosing that domestic violence had occurred in the home. The society felt that T.E. could not be returned to his mother’s care. The society commenced a protection application, seeking a supervision order with L.N. and D.N. Following the hearing of an interim motion, Mitrow J. expressed concerns regarding L.N.’s and D.N.’s history and ordered the child into the care of the society on January 23, 2014.
[6] On February 27, 2014, the society sought an interim supervision order of T.E. in the care of his godfather (J.T.) and his wife (S.T.), which was granted. T.E. has continued to reside in the home of J.T. and S.T., has excelled academically and continues to participate in church activities and extracurricular activities.
[7] On September 4, 2014, Henderson J. found the child to be in need of protection and granted an 8 months’ supervision order leaving the child in the care of J.T. and S.T. with reasonable access to the mother as negotiated between the parties.
[8] In the fall of 2015, T.E. started refusing to spend time with his mother or to speak with her on the telephone. T.E.’s apparent reason for his refusal to visit or speak with his mother was that she had continued to be in a relationship with F.H. and had held up the proceedings, such that his life was on hold.
Issues:
[9] The issues before the court are as follows:
(i) Are there any genuine issues for trial regarding placement of the child pursuant to a custody order or with respect to access to the child by the mother?
Position of the Parties:
[10] The society’s position was that there were no genuine issues for trial on the matter of placement of the child pursuant to a custody order or on the matter of access. They specifically requested a custody order because there were no protection issues related to the child in the care of J.T. and S.T. Their evidence was that T.E. has been out of his mother’s care for approximately 3 years; he has refused to have contact with her at times; he is well cared for in the custody of J.T. and S.T.; is thriving in their care; and he wishes to remain there.
[11] The Band agreed with the society’s position and indicated that T.E. should remain where he was.
[12] The OCL’s position, on behalf of T.E., was that the facts of the case were clear and not in dispute; and that in accordance with the Hyrniak case, there were no genuine issues for trial. Further the OCL took the position that the motion for summary judgment was the most expeditious manner in which to deal with the issues of disposition and access. Additionally, the OCL noted that T.E. was very strong in his views and preferences on where he wished to live.
[13] The care giver’s position was that T.E. needed finality and permanency; that the matter had been going on for more than two years; and simply placing him in their care would not give the child the finality and permanency he so needed.
[14] The mother’s position was that she did not oppose placement of T.E. with J.T. and S.T. She acknowledged that he was not unhappy and was doing well in their care. However, her position on access was that the court should order specific access to the child, including at least 3 hours per week and telephone access. Her position was that if the court was not prepared to order specific access, the issue of access should go to trial.
The Law:
[15] Rule 16 of the Family Law Rules provides that after a respondent has served an Answer or after the time for serving an Answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made in the case. R. 16(4) provides that the party making the motion shall serve an affidavit or other evidence that sets out specific facts showing there is no genuine issue requiring a trial.
[16] Rule 16(4.1) also provides that 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. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[17] In 2010, Rule 20 of the Rules of Civil Procedure was amended to give the court the power to weigh the evidence, evaluate the credibility of the parties and draw any reasonable inferences from the evidence filed on motions for summary judgment. (See Children’s Aid Society of London and Middlesex v. R.L.T. 2014 ONSC 5974, [2014] O.J. No. 5053. 2014 ONSC 5974). In 2015 Rule 16 was also amended to include provisions that mirror those in Rule 20. The effect of the amendments was that the court was given jurisdiction to apply the expanded evidentiary powers on motions for summary judgment brought under Rule 16 and to apply both the stage one and stage two analyses to the determination of the motion.
[18] A party answering a motion for summary judgment cannot rest on bald denials; but must put his/her best foot forward; and show that there is a genuine issue for trial. See Children’s Aid Society of Toronto v. K.T. and C.W., 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 CarswellOnt 4827 (Ont. C.J.) Assertions of quite improbable things, when completely unsupported by any corroborative, documentary or other evidence, are not sufficient to create genuine issues, see Evans v. Evans (2000), 2000 CarswellOnt 1317 (Ont. S.C.J.), affirmed (2000), 2000 CarswellOnt 3161 (Ont. C.A.).
[19] Pursuant to rule 16(6) the test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact requiring a trial. No genuine issue for trial exists where there is no realistic possibility of an outcome other than that sought by the applicant. See Children’s Aid society of Niagara Region v. S.C. and B.M., 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5029 (Ont. Fam.Ct.)
[20] The Supreme Court of Canada clarified the test for determining whether there is a genuine issue for trial in Hyrniak v. Mauldin, 2014 SCC 7, 2014 SCC 7, 2014 CarswellOnt 640, 2014 CarswellOnt 641, [2014] 1 S.C.R. 87. 21 B.L.R. (5th) 248, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 46 C.P.C. (7th) 217, 366 D.L.R. (4th) 641, 95 E.T.R. (3d) 1, 37 R.P.R. (5th) 1, 453 N.R. 51, 314 O.A.C. 1, [2014] A.C.S. No. 7, [2014] S.C.J. No. 7 (S.C.C.) . when it stated:
“There will be no genuine issue requiring a trial when the Judge is able to reach a fair and just determination on the merits of 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 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.”
[21] In Children’s Aid Society of Ottawa v. K.A. 2015 ONSC 3378, 2015 CarswellOnt 7873, Minnema J. outlined the approach to be used on motions for summary judgment following the amendment to the rules. At paragraph 4, Minnema J. stated:
(a) “If there is no genuine issue requiring a trial of a claim or a defence, the court shall make a final order accordingly” --- Rule 16(6).
(b) If there appears to be a genuine issue requiring a trial, the court shall determine if the need for a trial can be avoided by using the new powers (which are now set out in Rules 16(6.1) and (6.2)). These involve weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided they do not run contrary to the interests of justice.
(c) There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure.
(d) If after the above analysis there is a genuine issue requiring a trial, the court still has discretionary powers to give directions, specify the issues, identify which facts are not in dispute, and to impose conditions (Rule 16(9)).
Analysis:
[22] Is there a genuine issue regarding custody of T.E. that requires a trial for a just and fair determination?
[23] On the second part of the motion, the mother changed her position and indicated that she was no longer disputing placement of T.E. with J.T. and S.T. The mother was less clear on the issue of custody. Counsel argued that T.E. should be “placed” with J.T. and S.T., but under a joint custodial order with the mother. He argued that no one had disputed that the mother and J.T. and S.T. could make decisions regarding the child together. However, the mother had never raised the issue of joint custody in her pleadings or in her affidavit evidence filed for the motion for summary judgment. Her material did not provide evidence of joint decisions being made by the mother and J.T. and S.T. She gave no notice to the other parties that she was asking the court to make a joint custodial order. The first time such a suggestion was made was on the date the motion for summary judgment was argued, April 27, 2016. The parties had no opportunity to consider the issue or to respond to it. A motion for summary judgment should not be derailed by a litigant suddenly seeking an order that had never been contemplated before the date of the hearing.
[24] There are several facts that are not in dispute:
a) T.E. has not resided in his mother’s care for three years;
b) T.E. has been living with J.T. and S.T. for more than 2 years;
c) T.E. is happy and doing very well socially, physically, emotionally and academically in the care of J.T. and S.T.;
d) The primary protection issue that led to society intervention (the risk posed by F.H. to T.E.) remains in place;
e) Mr. F.H. has an extensive criminal record including convictions for sexual assault, (for which he was incarcerated for 18 months) and break, enter and commit (for which he was incarcerated for 4 years);
f) The mother continues to reside with and have a relationship with F.H.;
g) The mother has provided no evidence that she has taken any steps to mitigate the protection concerns;
h) There is no evidence that F.H. has completed any programming to address the protection concerns;
i) T.E. made disclosures that F.H. had physically harmed him while T.E. was in his mother’s care;
j) T.E. has made it clear that he does not wish to have any contact with the mother’s partner, F.H.;
k) T.E. is now 14 years of age and has provided clear instructions regarding his views and preferences as to where he wishes to live;
l) T.E. has currently refused to have contact with his mother due to what he perceives to be her delay in having these proceedings concluded; and
m) T.E.’s life and future have been in limbo for more than three years and he deserves finality and permanency in a timely fashion.
[25] The matter comes to the court by way of a status review application of the order made in September 2014. That order is almost 2 years old. The paramount purpose of the CFSA is to promote the best interests, protection and wellbeing of children. In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. [1994] 1 S.C.R. 693, [1994] SCJ 37, Justice L’Heureux Dube stated:
“I share Macdonald J.’s concern with regard to the importance of reaching a speedy resolution of matters affecting children. The Act requires it and common sense dictates it. A few months in the life of a child, as compared to that of adults, may acquire great significance. Years go by crystallizing situations that become irreversible.”
[26] The timelines set out in the Rules regarding CFSA matters are designed to compel the parties and the court to deal with child protection cases quickly and with as little delay as possible. Hearings are to be held within 120 days of a matter being commenced. While the courts are often unable to meet that particular time line, it is imperative that the court use all of its resources to deal with these cases as fairly and efficiently as possible. If this matter was placed on a trial list, it would not be reached until November or December of this year. The status review application has been outstanding since March 2015. The motion for summary judgment was first before the court in January 2016, but was delayed for months in order that the court could deal with evidentiary objections raised by the mother. T.E. deserves finality and the knowledge that his placement is secure and will not be disrupted every year with new status review proceedings. The case before the court is an excellent example of why the rules regarding summary judgment exist.
[27] In this case, the mother has agreed that T.E. can remain with J.T. and S.T. The society has no protection concerns regarding T.E. in the care of J.T. and S.T. There is no reason for the society to continue to supervise the care that is being provided to T.E. by his care givers, because it has been exceptional. T.E. is happy and healthy and has no wish to live with his mother. The court is required to make an order under s. 57. The society seeks to terminate their involvement and asks the court to grant a custody order under s. 57.1. If there is no reason for society involvement and no reason for a society wardship or supervision order, there cannot be an order for something called “placement”. Such orders do not exist. The word ‘placement’ is only used in orders made under s. 57 where the society is asking the court to place the children in someone’s care under a supervision order, society wardship order, or Crown wardship order.
[28] Where there is no need for continued society intervention and the child is not being returned to a parent, the court must make a custody order in the child’s best interests. Such orders are necessary so that the caregivers can make decisions regarding the child’s welfare, health, education, and social activities. A person entitled to custody of a child has the rights and responsibilities of a parent and must exercise those rights and responsibilities in the best interests of the child.
[29] In this case, the evidence is overwhelming that the best interests of T.E. require that a custody order be granted in favour of J.T. and S.T. J.T. and S.T. have been T.E. caregivers for more than two years; T.E. is well cared for; T.E. wishes to remain in their custody; and wants an end to these court proceedings. There are no genuine issues for trial on the matter of custody.
[30] With respect to the issue of access, the mother seeks a specific access order including telephone access and a minimum of three hours per week. The society, OCL and caregivers are all agreeable to reasonable access subject to T.E.’s wishes. The mother argued that if access were subject to T.E.’s wishes, the access would not be facilitated. The mother relied on the case of Godard v. Godard [2015] O.J. No. 4073, 2015 ONCA 568, 123 W.C. B. (2d) 442, 256 A.C.W.S. (3d) 86, 387 D.L.R. (4th) 667, 65 R.F.L. (7th) 265; 337 O.A.C. 9, 2015 CarswellOnt 11572, a decision of the Ontario Court of Appeal.
[31] In that case, a mother appealed an order finding her in contempt of an order granting access by the father to the child S. On the return of the motion for contempt, the motion judge dismissed the motion because the access arrangements differed from the existing order. However, the motions judge also noted serious concerns that the applicant had engaged in a pattern of behavior designed to alienate S. from her father. The motions judge made an order for summer access on the basis of agreed dates. Despite this the father did not have access to his daughter in the summer nor every second weekend after the summer ended. In October 2014, a new order was made requiring the mother to drop the child off at her paternal grandparent’s house on Fridays at 6:30 p.m. every second weekend. The mother did not drop the child off on any Friday following the order. The father brought a second contempt motion.
[32] The mother argued that she had done her best to facilitate access but that the child had persistently refused to see the father. The motion judge found that the second order was clear and unequivocal as to what the mother was required to do and that she had not done it. The motion judge found that the mother was trying to encourage the child to visit with her father, but that she had left it up to the child to decide whether or not she would attend visits and that at times, the child’s refusal to visit her father had resulted in positive consequences for her. The motion judge found that the mother had abdicated her parental authority on the issue of access and concluded that she was in contempt of the access order.
[33] At paragraph 28, the Court of Appeal stated:
“Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, [2008] O.J. No. 4734 (Ont. S.C.J.) at para. 8.”
[34] The court went on to state at paragraph 29:
“No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order”.
[35] The court does not disagree with the principles laid out in the case above. There are however differences from the case at bar. In the case above the child was 12 at the time of the alleged contempt. T.E. is now over 14 years of age. In the case above, S. refused to have access for undetermined reasons. In this case, the material indicates that T.E. started to refuse to see his mother in the late fall of 2015, when she made it clear, that she intended to continue to fight to have him placed in her care. T.E. advised a worker at that time, that:
“Right now I am not talking to my mother, nor do I wish to because I believe she’s being very frustrating with this whole situation as far as S. and J. getting custody. Right now I don’t wish to see her or talk to her. Maybe in the future. Maybe if she breaks up with F. it will be sooner.”
[36] As noted, T.E. has been out of his mother’s care for more than 3 years. He reported physical abuse by F.H. He made it clear to his mother, the workers and his lawyer that he wanted to live in the custody of J.T. and S.T. The statement made by T.E. in October 2015 illustrated his frustration with the delay in the ongoing proceedings; his mother’s failure to accept what he wanted; and her failure to end a relationship with a person who physically abused him. There can be no doubt that T.E. believes his mother has chosen F.H. over him. T.E. has not refused to see his mother for undetermined reasons. He has made his reasons clear.
[37] This is not a case like the Godard decision above. In paragraph 28, the Court of Appeal clearly stated that a child’s wishes should certainly be considered by a court prior to making an access order. In that case the order had been made and the mother did not comply with it. In this case, no access order has been made. T.E. is two years older than S. in the Godard decision and has articulated specific reasons for not seeing his mother currently. He has not indicated that he will never see her again, but is hoping that changes will be made. This judgment may go a long way in removing T.E.’s frustration about his living situation by providing finality and permanency for him. That may be enough to open the door to contact with his mother. The issue with F.H. is only one that the mother can repair.
[38] In terms of a genuine issue for trial regarding access, if this matter went to trial in the late fall or early winter of 2016, a decision could well be delayed until 2017 when T.E. is 15 years of age. If T.E. continued with his position regarding access, no court order, specific or otherwise could ensure T.E.’s attendance at access. The court must have regard to his wishes when they have been so consistent and so clearly articulated. The facts in this case are clear and for the most part, undisputed. Having regard to the history of this matter, the child’s age, his consistent views and preferences; and that fact that he is happy, healthy and well cared for, summary judgment is proportionate, more expeditious and a less expensive way to achieve a fair and just determination of the issues.
[39] For these reasons, the court finds that there are no genuine issues on the questions of custody and access. There will be an order that the motion for summary judgment is allowed; that J.T. and S.T. have custody of the child T.E.; and that the mother have reasonable access including telephone access to T.E., but that such access will be subject to the wishes of T.E. Additionally, the custodial caregivers, J.T. and S.T. are to encourage T.E. to have contact with his mother on a reasonable basis.
[40] A final order will issue as follows:
- The supervision order of September 4, 2014 regarding the child T.E. will be terminated.
[41] A separate final order shall be issued in the protection file, maintaining the same file number, but showing J.T. and S.T. as the applicants and S.E. as the respondent. (Full names of the parties and the child can be shown on the separate order.)
[42] This separate order will provide the following:
The applicants J.T. and S.T. will have custody of the child T.E. born in March 2002.
The respondent mother, S.E. will have reasonable access, including reasonable telephone access to the child T.E., subject to the wishes of the child.
The custodial caregivers J.T. and S.T. will encourage T.E. to have reasonable contact with his mother.
This order is deemed to be made pursuant to the Children’s Law Reform Act, and any variation application of this separate order will be brought under the CLRA.
“Justice Margaret A. McSorley” Justice Margaret A. McSorley
Released: June 16, 2016
COURT FILE NO.: C1252/13-02 DATE: 2016/06/16
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: Children’s Aid Society of London and Middlesex Applicant
- and - S.E., L.I., D.N., L.N. S.T., J.T. and Oneida Nation of the Thames Respondents REASONS FOR JUDGMENT McSORLEY J.
Released: June 16, 2016