Court File and Parties

Perth Court File No.: 605/15 Date: 2016-09-21 Ontario Superior Court of Justice

Between: Family and Children’s Services of Lanark, Leeds and Grenville, Applicant

And: J.M. and P.M., Respondents

Before: Trousdale J.

Counsel: Nicola Edmundson, for the Applicant Wendy D. Rogers, for the Respondent J.M. P.M. self-represented Yvonne Lee, OCL counsel for the children

Heard: July 28, 2016

Publication Prohibition

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Endorsement on Motion for Summary Judgment

[1] Family and Children’s Services of Lanark, Leeds and Grenville (herein “the Society”) seeks an order pursuant to Rule 16 of the Family Law Rules for summary judgment for a final order for:

a) A finding that that the two children A.P.M., born […], 2003 (age 13) and S.M. born […], 2010 (age 6) are in need of protection pursuant to Section 37 (2) (a)(i) and (ii), Section 37 (2)(b)(i), and Section 37 (2) (g) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as am. (herein “the Act”);

b) An order that the Respondent father, P.M. (herein “the father”) have custody of the children pursuant to Section 57.1 of the Act; and

c) An order that the Respondent mother, J.M. (herein “the mother”) have access to the children as arranged directly with P.M. in keeping with any criminal release or sentence conditions of J.M., in the children’s best interests and taking into account their wishes where appropriate.

[2] Both parents were present at the hearing of the Society’s motion for Summary Judgment. The mother was represented by counsel at the hearing. The father represented himself. The children were represented by counsel on behalf of the Office of the Children’s Lawyer.

[3] The Society submits that the children are doing well in the care of the father and that the Society has no protection concerns regarding the father. The Society argues that there is no genuine issue requiring a trial and that the order sought by the Society should be made without the need for a trial.

[4] The father supports the position of the Society and consents to the Final Order requested by the Society. He maintains that the children have done well in his care for the last 14 months and that he should have custody of the children. He argues that the mother has never been able to handle the stress of caring for the children full time. He believes that the mother’s access should be supervised at this time. He states that the elder child does not wish to see the mother at this time.

[5] The mother opposes the motion and seeks that the issues of whether the children are in need of protection and if so, the disposition of the matter pursuant to Section 57 of the Act be determined after a full trial. The mother’s position is that the father and the Society have colluded against her to take the children away from her. The mother submits that the Society has turned a blind eye to the father’s alcohol problems. She argues that the court needs to fully hear all the evidence tested by cross-examination prior to coming to a decision.

[6] Ms. Lee, Counsel for the Office of the Children’s Lawyer supports the position of the Society and submits that it is in the best interests of the children that the father have custody of the children with access to the mother, although the eldest child A.P.M. is choosing to not see her mother at this time. Ms. Lee states that the younger child, S.M. very much wants access with the mother.

Background

[7] The mother and the father have had a difficult relationship for many years. There were allegations of domestic abuse going both ways, of abuse of alcohol by the father with driving while impaired convictions including most recently in March, 2015, of mental health concerns regarding the mother, and of the mother’s abuse of marijuana. The mother and the father have also had a couple of custody/access disputes.

[8] In or about 2012, the mother and the father agreed to shared parenting of the two children. At one point the elder child was residing with the father and the younger child was residing with the mother. Subsequently, the two children were residing with each parent on a week on /week off basis. In early 2015, the father was convicted of driving while under the influence of alcohol, which was not his first conviction. The father was incarcerated and the mother was looking after the children full-time for a period of time. Rather than tell the children that the father was incarcerated, the mother and the father agreed to tell the children that the father was working up north.

[9] On May 28, 2015, the Society received a report from A.P.M.’s school that A.P.M. had reported to school staff that she had been struck on the face by her mother earlier that day. A.P.M. reported that the mother hit her on the head and face, her hair was grabbed and she was pushed. A.P.M. stated that her mother called her a derogatory name. A.P.M. further stated that her mother followed her onto the school bus and yelled at her in front of the bus driver and other children. The Society apprehended the children that day and placed the children in a place of safety with the father.

[10] On June 2, 2015, the children were placed by court order in the temporary care and custody of the father subject to the supervision of the Society and subject to supervised access by the mother a minimum of twice per week for two hours each visit, and subject to other conditions. The children have been in the care of the father since that time.

[11] On June 3, 2015, the mother was charged with three counts of assault on the children.

[12] On November 12, 2015, the court ordered that the mother’s access to the elder child, A.P.M. be subject to the child’s wishes.

[13] The mother’s criminal trial took place during the week of March 21, 2016. The child A.P.M. testified at the trial. The mother was found guilty of one assault in May, 2015 on the child, S.M. The mother was found guilty of two counts of assault in May, 2015 on the child, A.P.M.

[14] The mother had not yet been sentenced at the date of the hearing of this summary judgment motion.

[15] The mother was charged with breach of her criminal release conditions in November, 2015 due to an allegation that she provided a letter regarding the assault charges to the child, A.P.M. in a notebook passed to that child at a supervised visit in November, 2015.

[16] The child, A.P.M. has chosen not to have access with the mother since the criminal trial in March, 2016. The child, A.P.M. is upset that the mother maintains that A.P.M. did not tell the truth at the mother’s criminal trial.

[17] The mother states that she is appealing the three assault convictions.

Issues

[18] Should there be an order for summary judgment as requested by the Society and supported by the father and counsel for the children?

[19] Should the children be found to be in need of protection?

[20] Is it in the best interests of the children to be placed in the care and custody of the father pursuant to Section 57.1 of the Act?

[21] Is access to the children by the mother in the best interests of the children. If so, what should the access by the mother to the children be?

The Law

[22] Rule 16 of the Family Law Rules provides for summary judgment motions including in a child protection case.

[23] Rule 16(4) provides that 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.

[24] Rule 16(4.1) provides that the responding party to a summary judgment 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.

[25] Rule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[26] Section 1(1) of the Act provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.

[27] Section 1(2) of the Act provides that another purpose is to recognize that the least disruptive course of action that is available and is appropriate in a particular case to help the child should be considered.

[28] Summary motions require the Court to take a hard look at the merits of the case to determine whether there is a genuine issue to go to trial. See Children’s Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.).

[29] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. The test for granting summary judgment is met when the moving party satisfies the Court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. See Children’s Aid Society of Toronto v. T.(K), [2000] O.J. No. 4736 (Ont. C.J.).

[30] Summary judgment is a tool with which to contain and control a child’s drift in litigation. A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. See [Children’s Aid society of London and Middlesex v. L.A. and H.C. (No. 2), [1999] O.J. No. 4830].

[31] In child protection proceedings, the genuineness of an issue must arise from something more than the heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernible from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent. See Children’s Aid Society of London and Middlesex v. L.A. and H.C. (No. 1), [1999] O.J. No. 5839 (Ont. Fam. Ct.).

Analysis and Decision

[32] On the evidence before me, I find that the mother was having some mental health issues from at least January, 2015 to May, 2015 which culminated in the mother being charged with assaulting the children in May, 2015. The mother was convicted of the three assault charges in March, 2016. The mother was to provide a psychological assessment to the Society but has failed to do so. The mother has not co-operated with the Society at times.

[33] The father’s driving while under the influence conviction in early 2015 is of concern to the court. This is not the first time that the father has had issues with alcohol. The mother alleges that this is the 5th time the father has been charged with driving under the influence.

[34] The mother and the father do not get along with each other and the hostility between the parents impacts the children. In the past there has been domestic violence between the parents going both ways.

[35] On the evidence before me, I find that there is no genuine issue requiring a trial that the children are in need of protection pursuant to Section 37 (2)(a)(i) and (ii), Section 37 (2)(b)(i) and Section 37 (2)(g) of the Act. I find that the children are in need of protection pursuant to the aforesaid sections of the Act and that summary judgment should be granted in that regard.

[36] With respect to the issue of disposition, the Society seeks that the father be granted custody of the two children pursuant to Section 57.1 of the Act, with access by the mother to be arranged directly with the father in keeping with any criminal release or sentence conditions of the mother in the children’s best interests and taking into account their wishes where appropriate.

[37] The father argues that the twice weekly visits of two hours each for the younger child were too much for her as she was jumping back and forth too much. He sought less frequent visits for a longer period of time such as one visit every two weeks for 6 to 7 hours on a supervised basis. He did not put forward any proposal as to who would supervise the visits. With respect to the older child, he stated he would not allow visits now with the mother as the mother has resentment regarding the older child testifying against her.

[38] Counsel for the children states that the younger child very much wants to see the mother. The child misses the mother and wants to spend time with both parents. However, the child does sometimes feel scared at the mother’s home.

[39] Counsel for the children states that the older child wishes to visit the mother subject to the older child’s wishes. At this time she does not wish to see the mother. The older child has been taking counselling which is positive.

[40] The mother argues that if the father is granted custody, he will continue to try to take the children away from her so that there is no relationship between the mother and the children. She argues that she and the father do not get along and that they will be unable to work out access between them.

[41] At this time, the mother’s sentence and/or conditions of release are unknown so it is not possible to predict what access would be suitable.

[42] I find that there is a great deal of hostility between the father and the mother which would likely make it impossible for the mother to work out access directly with the father. In that case, there would likely be no access between the mother and either of the children even though the younger child really wishes to see the mother.

[43] At the present time, the younger child’s access with the mother is supervised by a Society worker, and the evidence before me is that the mother goes to all the visits. Supervised access at the local supervised access centre (The Rose Garden), may not be available in this case as the mother’s access was terminated by that centre as they thought the mother was taping visits contrary to their rules, although the mother states she was not made aware of the rule until after the centre terminated her access there. At this time there is no firm plan put forward by the Society and by the father as to who would supervise access if supervision is necessary.

[44] I find that there is a genuine issue for trial. There are disputed issues regarding each parent’s ability to care for the children. If it is determined the children should remain in the care of the father as they have been since May, 2015, there is no solid plan for access in place for the mother with agreed-upon supervision if required. The Society’s plan for access by the mother is vague and may be unworkable. The court needs to determine if it is in the best interests of the children that there be a Section 57.1 custody order to the father, or is it in the best interests of the children that the Society continue to stay involved in this matter by way of a supervision order, including by supervising access to the mother, if that is found to be necessary.

[45] Accordingly, the Society’s motion with respect to summary judgment on the issue of disposition is dismissed and this matter shall proceed to trial on the issue of disposition.

Conclusion

[46] Order to go accordingly.

Justice Anne C. Trousdale Date: September 21, 2016