CITATION: Simcoe Muskoka Child, Youth and Family Services v. L.V., 2016 ONSC 7039
ORILLIA COURT FILE NO.: FC-15-4-00
DATE: 20161114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SIMCOE MUSKOKA CHILD, YOUTH AND FAMILY SERVICES
Applicant
– and –
L.V. and D.H.
Respondents
J. Wallace, for the Applicant
J. Herbert, for L.V.
S. Sands, for D.H.
J. Winter for R.H.
HEARD: October 7 and November 7, 2016
REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION
QUINLAN J.:
Introduction
[1] Simcoe Muskoka Child, Youth and Family Services (the Society) has brought a motion for summary judgment pursuant to Rule 16 of the Family Law Rules, seeking a finding that the child R.H., born […], 2003, is in need of protection. The Society seeks a deemed custody Order placing the child in the care and custody of the Respondent mother L.V. with access to the Respondent father D.H. only through written communication. The mother and counsel for the child support the motion. The father opposes the motion.
Background
[2] The child has primarily resided with the mother since the parties separated in January 2006. On January 9, 2009 an Order was made under the Children’s Law Reform Act (CLRA) providing that the mother and father have joint custody of the child, with the child’s primary residence with the mother. As a result of concerns raised by the mother in 2011, the Society became involved. It commenced a protection application on March 29, 2011 with respect to concerns of risk of emotional harm by the father. On March 31, 2011, Mr. Winter was appointed to represent the child who was then almost eight years old. At that time there were issues between the parents, with the father raising concerns of “parental alienation syndrome” (referred to by the father as “PAS”) and the mother raising concerns of inappropriate conduct by the father. After a period of approximately one year when the father voluntarily did not exercise access to the child, and shortly after the father’s summary judgment motion to dismiss the Society’s application was dismissed, Mr. Winter was involved in visits between the father and the child. At that time, the child wanted to see the father. On December 22, 2011, the Society withdrew its protection application and the parents returned to the joint custodial regime with primary residence to the mother and specified parenting time to the father.
[3] In 2013, the father commenced a lawsuit on the child’s behalf against the Society and certain of its employees arising from his concerns surrounding the 2011 investigation by the Society.
[4] In June and July 2014, reports from a medical professional regarding the father’s parenting of the child were directed to the Children’s Aid Society of the District of Nipissing and Parry Sound (Nipissing CAS) in view of the father’s litigation against the Society.
[5] The father had several periods of extended parenting time scheduled with the child during the summer of 2014. In July 2014, the child threatened suicide when in the charge of the father. On August 18, 2014, the child was again in the charge of the father. After the father repeatedly pressed the child about his belief that she was the subject of PAS, the child grabbed a knife and threatened the father’s wife and then turned the knife on herself. The father called 911, “tackled” the child and wrestled the knife away from her. The child was taken to the hospital and the Society was contacted. After the emergency physician determined that the child was not suicidal or homicidal, the child was released into the care of the mother. The child has not had any access with the father since that day.
[6] On October 6, 2014, following an investigation completed by Nipissing CAS, the Society commenced another protection application. On October 30, 2014, the child was placed in the custody of the mother, subject to Society supervision, where she has been residing since. Mr. Winter was again appointed to represent the child.
[7] The concerns of the Society involve the father and his wife using inappropriate language and making disparaging remarks to the child, the father preventing the child from taking allergy medication while at his home, physical conflict between the child and the father resulting in the child being transported to the hospital, excessive consumption of alcohol by the father and inappropriate discipline by the father. The Society takes the position that the father has not acknowledged or taken any steps to address these concerns. The Society remains concerned with respect to the father’s ability to consistently provide for the child’s physical safety and emotional well-being during access. The Society and the child’s lawyer note that the child has consistently expressed that she does not wish to see the father.
[8] On consent, the following statutory findings with respect to the child were made at the motion:
(a) the subject child is R.H., born […], 2003; and
(b) the child is Catholic and non-Native.
Law on Summary Judgment Motions
[9] To succeed on a summary judgment motion, the applicant must prove on a balance of probabilities that there is no genuine issue requiring a trial. "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed": Children's Aid Society of Oxford (County) v. J. (J.), 2003 CanLII 2388 at para. 8 (Ont. S.C.). Other courts have held that there is no genuine issue for trial when the “outcome is a foregone conclusion” or when there is “no realistic possibility of an outcome other than that as sought by the applicant”: Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), 1996 CanLII 7271 at para. 80 (Ont. S.C.); Children’s Aid Society of the Niagara Region v. S.C., 2008 CanLII 52309 (ON SC), 61 R.F.L. (6th) 328 at para. 43 (Ont. S.C.). Rule 16 is mandatory: if the court concludes that there is no genuine issue requiring a trial of a claim or defence, the court must make a final order.
[10] The burden is on the applicant to set out evidence of specific facts showing that there is no genuine issue requiring a trial. However, once the applicant makes out a prima facie case, an evidentiary onus shifts to the respondent. The respondent must then point to evidence of specific facts showing that there is a genuine issue for trial: Children’s Aid Society of Northumberland v. K.S., 2012 ONSC 6847 at para. 28 (Div. Ct.). The respondent must put his/her best foot forward, and cannot rest on mere allegations or denials: Rule 16(4.1) of the Family Law Rules; Children’s Aid Society of Hamilton v. K.F., 2014 ONSC 576 at para. 37.
[11] The court must consider the full evidentiary record and is entitled to assume that the record contains all the evidence that the parties would present at trial: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614 at para. 5. The evidence tendered must be evidence that would be admissible at trial: Children’s Aid Society of Hamilton v. M.N., 2007 CanLII 13503 at para. 30 (Ont. S.C.).
[12] Hearsay evidence can only be admitted when it meets the criteria of necessity and reliability: M.N. at para. 30. The court can and should examine the evidence to decide whether it meets the threshold test of reliability: K.F. at para. 34. The court is entitled to draw an adverse inference against a party whose evidence is not based on the personal knowledge of the person swearing the affidavit: Rule 16(5).
[13] As of May 2, 2015, the court’s powers at a summary judgment motion have been expanded in line with similar amendments made previously to the Rules of Civil Procedure. The newly amended Rule 16 of the Family Law Rules provides the following additional powers:
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
(i) Weighing the evidence;
(ii) Evaluating the credibility of a deponent; and
(iii) Drawing any reasonable inference from the evidence.
(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[14] Courts must be cautious in granting summary judgment in child protection cases, since the stakes for the family are high, and granting summary judgment deprives the parent of the procedural safeguards of a trial: C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357.
Issues
[15] This court must determine if the Society has demonstrated that there is no genuine issue for trial with respect to the following issues:
a. A finding that the child is a child in need of protection pursuant to ss.37(2)(b)(i), 37(2)(f), 37(2)(f.1), 37(2)(g) and/or 37(2)(g.1) of the Child and Family Services Act (CFSA); and, if so
b. That the child should be placed in the custody of the mother pursuant to a deemed custody Order and that access by the father to the child be only by way of written communication.
The Dispositions Being Sought
[14] As noted, the Society is seeking a finding that the child is a child in need of protection, pursuant to ss. 37(2)(b)(i), 37(2)(f), 37(2)(f.1), 37(2)(g) and 37(2)(g.1) of the CFSA. The issue of protection must be addressed on a holistic basis, not only as of the date of the apprehension. It may extend to the commencement of proceedings or trial: Children’s Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754 (S.C.J.).
Section 37(2)(b): Risk of physical harm
[15] The Society must prove that the risk of harm is real and likely, not speculative: Children’s Aid Society of Niagara Region v. P.T., (2003) 2003 CanLII 2397 (ON SC), 35 R.F.L. (5th) 290 at paras. 62-64 (Ont. S.C.). The Society does not need to prove that the parent intended to cause harm in order to find that the child is in need of protection: Jewish Family and Child Service v. R.K., 2008 ONCJ 774 at para. 28. Physical harm caused by neglect or error in judgment is still physical harm: P.T. at para. 65.
Section 37(2)(f), s.37(2)(f.1), s.37(2)(g) and s.37(2)(g.1): Emotional harm and risk of emotional harm.
[16] Section 37(2)(f)-(g) set out the circumstances in which the court can find that a child is in need of protection on the basis that the child has suffered or there is a risk that the child will suffer from emotional harm that is caused by the person having charge of the child.
[17] The Society must present evidence of serious emotional harm demonstrated by the behaviours set out in ss. 37(2)(f)(i)-(v): anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development. It is not enough to simply speculate that the child has suffered emotional harm.
[18] When the Society relies on the risk of emotional harm, the Society must establish on a balance of probabilities that there is a real likelihood that the child will suffer the type of emotional harm demonstrated by the behaviours enumerated in ss. 37(2)(f)(i)-(v): Children’s Aid Society of the District of Rainy River v. C.B., 2006 ONCJ 458 at para. 26; Children's Aid Society of Ottawa v. P.Y., 2007 CanLII 14325 at paras. 13-14. Expert evidence will sometimes be required to establish a risk of emotional harm, but it is not a necessary prerequisite: P.Y. at paras. 27-32.
[19] The Society must prove causation. However, the Society does not need to prove that the parents intended to cause emotional harm: R.K. at para. 29.
Evidence
[20] The parties agreed that the child’s counsel could provide evidence on this summary judgment motion. The child stated that she was feeling constant stress and pressure in her relationship with the father and having unsafe feelings in his care. She reported that the father would say bad things about the mother. She stated that on August 18, 2014 the father invited her to hit him. He then told her she would be charged with assault and that the police would take her and she would be “institutionalized”. She put a knife to her throat. The father tackled her and she went to the hospital. Since that day, she has not wanted to have anything to do with the father. She was clear and consistent that she did not want to go back to the father’s care. The child stated that even if the father said he would change, he would only “do it for show” and “then he would go back”.
[21] The child’s counsel advised the court that from his first meeting with the child in April 2011, the child has clearly and consistently closely identified with the mother and raised concerns about her relationship with the father. Although the child has been clear and consistent in her wish to have no physical contact with the father, the child would agree that they could communicate in writing.
[22] In his affidavits, in e-mails filed and in the course of cross-examination, the father admitted the following:
a. In February 2013, the father explained “toxic parenting” and “PAS” to the child;
b. As early as July 2014, the child did not want to attend for access with him;
c. In July 2014, the father refused to provide the child her inhaler, despite finding a note from a nurse practitioner indicating it was required. He testified at his cross-examination that the child did not need the inhaler; she did not have difficulty breathing. He viewed the student nurse practitioner as having been “duped” by the mother and testified that the mother was either trying to help the Society to create new concerns or was mentally unstable;
d. On July 16, 2014, “[the child] was emotionally distraught [during an access visit] and told [him] she wanted to just kill herself.” The father did not take the child to see a medical professional, call the child’s therapist, the hospital, the police or the mother. Instead, the father wrote to the child’s therapist and to the child’s counsel and litigation guardian in the action he initiated against the Society;
e. On August 16, 2014, the father and his wife picked up the child for his summer parenting time. The child told them she did not want to attend for the access visit. After she reluctantly got in the car, she immediately started hitting the father’s wife in the arm, calling her an “asshole” and a “bitch” and telling her that she hated her. The father pulled over and locked the child in the car while he discussed with his wife what to do. After they got back in the car, the child continued to assault the father’s wife by hitting her in the arm. Although his wife wanted to return the child to the mother, the father wanted to try and “work with” the child.
f. Two days later, on August 18, 2014, the child became agitated early in the day. The father contacted some medical professionals and continued “off and on” through the day to try to “reach” the child. At his cross-examination, the father testified that he had been talking to the child about PAS that day in a “lengthy discussion” and that he tried to explain to the child “that her bad behaviour and expressions of hatred were not real, but something that was being put on her…there was a name for it…PAS.” The child wrote a note that said, “I am not PAS”. The father acknowledged that the child was aware of his conversations about having her institutionalized. During dinner, the child became hostile and told the father how much she hated him. The father told the child to show him and she punched him in the face a number of times. When she finished, the father asked the child if he should call the police: he told her it was wrong to assault people and that she had assaulted both he and his wife that weekend. The child went to the knife rack, removed a “razor sharp knife” which she wielded at the father’s wife, telling her she hated her. The child then pointed the knife at her own chest/throat area, started crying and said she was going to kill herself. The father called 911. The father appended a photograph to his affidavit showing him tackling the child to get the knife away from her. The police and emergency services personnel took the child to the hospital. The father’s wife drove him to the hospital because he was concerned he might have been over the legal limit due to his consumption of alcohol. There was a beer bottle in his vehicle when he went to the hospital. The father did not agree that his alcohol consumption could have contributed to the conflict between him and the child;
g. Following the incident on August 18, 2014, the father emailed the child’s counsellor and revoked his consent for counselling; and
h. The father has not followed any of the Society’s recommendations concerning treatment or counselling and is unwilling to work with the Society if it continues its protection application.
Response to the Father’s Submissions
[23] The father seeks to have the motion for summary judgment dismissed and to have a trial to demonstrate that the child is not in need of protection from him. He argued that a trial will demonstrate that the mother has been engaged in alienating behaviour. At his request, I permitted the father to personally make submissions in addition to the submissions made by his counsel. His concerns about the mother’s behaviour were the focus of his argument and his materials. He presented as obsessed with his belief that the mother has been engaged in alienating behaviour and unable to comprehend the possibility that his behaviour in repeatedly speaking to the child about PAS could be emotionally harmful to the child.
[24] The father relied on his affidavits, various documents filed on the motion and the cross-examinations of the mother and the protection workers to support his position that the actions of the mother and the Society caused the child’s emotional breakdown. The father’s position is that there is no direct evidence that he did anything other than “what he has admitted”, and that much of the evidence relied on by the Society is hearsay. The father blamed the child’s “emotional meltdown” on August 18, 2014 on his lawsuit against the Society: he claimed the child’s behaviour was “a direct result of pressure put on a child to participate in an adult scheme to mitigate damages against themselves”. He blamed the child’s behaviour on PAS caused by the mother: his materials and submissions focused on the many complaints the mother has made against him since the parents separated more than a decade ago. I have considered the evidence on which the father relied to support his argument. I find nothing untoward in the investigation or actions of Nipissing CAS or the Society. I find no evidence to support that the actions of the Society or the mother were the impetus for the child’s behaviour or for the conflict between the father and the child. I find it is reasonable to infer that the father’s actions led the child to become hostile, aggressive and assaultive and threaten self-harm. I find no evidence from which to find or infer that that the actions of the mother and/or the Society either caused or contributed to the child’s behaviour.
[25] The father’s position is that the nurse practitioner’s reported concerns are suspect and must have been made because she was “an unquestioning advocate for the mother”. He relied on the timing of the child’s appointments with the nurse practitioner and the counsellor and argued that because the child saw both professionals on the same days and the counsellor reported no concerns, there must be no validity to the concerns of the nurse practitioner. He argued that a trial is necessary so that both the nurse practitioner and the child’s counsellor can be cross-examined. Even if the child saw the two professionals on the same days, there is nothing to connect this to a triable issue that would have a bearing on the outcome of the trial. The father admits that he refused to give the child her inhaler. It is not necessary to consider the evidence of the nurse practitioner or the counsellor for the purpose of deciding this motion: see Catholic Children’s Aid Society of Hamilton v. B.W.-B., F.M. and S.B., 2015 ONSC 4707 at para. 90.
[26] The father also relied on the fact that the child’s allergist did not refer to the need for the inhaler prescribed by the nurse practitioner in her November 2014 report. I see no relationship between these two events: because the child did not need an inhaler in November does not lead to the inference that she did not need one in July.
[27] The father seeks to demonstrate at trial through various witnesses that he appropriately cared for the child and her step-sister. However, such evidence would not change the fact that, by his admission, there was significant conflict between him and the child in the summer of 2014 during which time she twice threatened suicide while in his care.
[28] The father’s position is that there was no risk of physical or emotional harm to support the finding that the child is in need of protection because, as the child told the medical professionals and the police, she was “bluffing” when she threatened self-harm on August 18, 2014. However, if I am to consider this argument, the child’s statements to various professionals that night must be considered in their entirety. The child also stated that she was scared about being locked away, that her father had tricked her into hitting him and that threatening to harm herself was the way she used to get out of his house. She asked to go home with the mother as she felt safe with her. Even accepting that the child was bluffing, there was a risk of physical harm when the child held the “razor sharp knife” to herself leading to the need for the father to wrestle it away; there was a risk of emotional harm demonstrated by the child’s aggressive behaviour, all of which I find resulted from the father’s actions.
Is There a Genuine Issue for Trial with respect to the Statutory Findings?
[29] I am satisfied that I can rely on the evidence of the father about his various discussions with the child about PAS, the events that took place in July and August 2014, and his unwillingness to work with the Society as set out above. The concept of “self-incrimination” does not apply to child protection proceedings because they can be distinguished from criminal law proceedings: Family & Children’s Services of St. Thomas & Elgin v. F.(W.), 2003 CanLII 54117 at paras. 344-45, 347-48 (ONCJ). It is more accurate to describe the evidence given by the father as an admission adverse to his interest: para. 169. The father could have chosen to remain silent. As was the case in F.(W.), at paras. 156 and 170, “[a]n admission by parents…cannot be ignored by the court, but must be considered…that information is needed to enable the court to make the best decision in the interests of the children”.
[30] To decide this summary judgment motion, I find I am able to come to the necessary findings without considering the evidence to which the father objects. In addition to my consideration of the father’s admissions, I have considered the evidence on which the father relied and the evidence of the child as conveyed to the court on consent. On the basis of that evidence, I make the following findings.
[31] As early as 2013, the father began talking to the child about his belief that the mother was engaged in alienating behaviour toward him. In the course of his summer 2014 parenting time with the child, the conflict between the child and the father escalated to dangerous levels. The child no longer wanted to spend time with the father. She was feeling constant stress and pressure in her relationship with the father and having unsafe feelings in his care. The child was aggressive and assaultive towards the father’s wife. She twice threatened her own life while in the father’s charge. On the first occasion, the father took no steps to obtain professional medical help for the child. On the second occasion, the father repeatedly pressed the child to acknowledge that the mother was engaged in alienating behaviour. The child responded by writing a note denying that she was “PAS”. The child was aware of the father’s plans to “institutionalize” her. She told the father she hated him and he invited her to hit him. After she did so he threatened to call the police. The child grabbed a large knife, wielded it at the father’s wife and then turned it on herself. As she held the knife to her chest/throat area, she said she was going to kill herself. The father called 911 and wrestled the knife away from her. The father had consumed alcohol to the point where he was concerned about his legal ability to drive. The child was taken to the hospital. The day after, the father revoked his consent for the child to participate in counselling with her therapist.
[32] I infer that the child’s aggressive actions and her behaviour in threatening self-harm were the child’s reaction to the father’s relentless attempts to make her say what he wanted to hear: that she was suffering from PAS caused by the mother.
[33] The father has refused to engage in services with the Society and will not do so as long as the Society continues with its protection application.
[34] Based on the arrangement between the parties pursuant to the joint custody order, at the time the protection issues arose the father had charge of the child. If there is no finding that the child is in need of protection, the parties would revert to the joint custodial arrangement that was in existence in August 2014 and the father would remain a person in charge of the child, continuing to put the child at risk. I find that the father has done nothing to address the protection issues. He remains obsessed with his view that the mother has alienated the child. He has no insight into the physical danger in which he put the child. He has no insight into the emotional harm he has caused the child by repeatedly trying to get her to acknowledge his belief that she is the subject of PAS. He has no insight into the emotional harm that would result from revoking his consent for her counselling.
[35] Based on the father’s admissions, there was significant conflict between the father and the child that escalated to the point that the child was threatening self-harm. His obsessive focus on his belief as to the genesis of the conflict between them has resulted in his inability to act in a way that would foster a positive and safe relationship with the child. His fixation on proving that the child suffers from PAS has placed the child at risk of physical and emotional harm and caused her emotional harm. The father has been unable to consistently provide for the child’s physical safety and emotional well-being during the time the child is in his charge. He has been unable to control the child and keep her safe. The child cannot be adequately protected in the care of the father due to the conflict between the child and the father.
[36] The father alleged that the protection concerns arise from the mother and the PAS she has fostered in the child. I reject that contention. The father has led no evidence from any independent agency, medical practitioner or the child’s counsel to support that the child suffers from “PAS” or that the actions of the mother have caused any protection concerns. The evidence is that the child is doing exceptionally well. Contrary to the father’s submissions, the report from the child’s counsellor and the notes from the child’s doctor do not support that the child suffers from “PAS”. As with much of the evidence, the father’s perceptions are distorted by his belief that the mother is alienating the child. I find that is it reasonable to infer that the actions of the mother have been attempts to protect the child from a toxic situation. I find no concerns with respect to the mother’s care of the child.
[37] There is no genuine issue for trial: the evidence satisfies me that the child is in need of protection pursuant to ss. 37(2)(b)(i), 37(2)(f), 37(2)(f.1), 37(2)(g) and 37(2)(g.1). On the basis of my findings on the evidence as set out above, I find that the child is in need of protection and there is no genuine issue for trial with respect to the following:
a. there is a risk that the child is likely to suffer physical harm resulting from the father’s actions and his failure to adequately care for the child;
b. the child has suffered emotional harm, demonstrated by serious self-destructive and aggressive behaviour and there are reasonable grounds to believe that the emotional harm she suffered results from the father’s actions and the father has revoked his consent for treatment or counselling to alleviate the harm; and
c. there is a risk that the child is likely to suffer emotional harm, demonstrated by serious self-destructive and aggressive behaviour resulting from the father’s actions and his revocation of consent for treatment or counselling to alleviate the harm.
Disposition
[38] Now that I have made the finding that the child is in need of protection, I must determine what available disposition is in the child’s best interest. Section 37(3) of the CFSA sets out some of the factors that the court can consider in determining what disposition is in the best interests of the child. This list is non-exhaustive, and the court can consider any other circumstance it deems relevant. The factors laid out in s. 37(3) are:
The child’s physical, mental, and emotional needs, and the appropriate care or treatment to meet those needs;
The child’s physical, mental and emotional level of development;
The child’s cultural background;
The religious faith, if any, in which the child is being raised;
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;
The child’s relationships and emotional ties to a parent, sibling, relative, other member of a child’s extended family or member of the child’s community;
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;
The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent;
The child’s views and wishes, if they can be reasonably ascertained;
The effects on the child of delay in the disposition of the case;
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent;
The degree of risk, if any, that justified the finding that the child is in need of protection; and
Any other relevant circumstance.
[39] The Society has asked the court to make a custody order in favour of the mother. Section 57.1 of the CFSA allows the court to make an order granting custody of a child to one or more persons if it is in the best interest of the child to do so and the person consents. The mother consents to the deemed custody order.
[40] Pursuant to s.58 of the CFSA, the court may, in the child’s best interest, when making an order such as a deemed custody order, make an order with respect to access. In doing so, the court is again to consider the best interests of the child.
[41] The evidence satisfies me that the childs physical, mental and emotional needs are met in the mother’s care. The child has resided primarily with the mother since separation. The mother has been taking the child to school and supporting her medical treatment. The mother’s Plan of Care is supportive of the childs well-being. It involves the child living with her and her husband, attending school, having the support of medical practitioners and being involved in extracurricular activities. The report cards filed as exhibits show that the child is doing exceptionally well in the mother’s care. Her educators speak of her in glowing terms, both with respect to her scholastic achievements and her extra-curricular and leadership involvement and activities. The child has indicated to professionals and to her lawyer that she feels safe with the mother. The child’s views and preferences are clear and have been in existence since at least July 2014. She does not wish to see or spend time with the father.
[42] In view of the father’s actions during his parenting time with the child in July and August 2014, it is clear that the father has been unable to consistently provide for the child’s physical safety and emotional well-being when she is in his charge. There have been lengthy periods of time where the father has not exercised access to the child, including for approximately one year in or about 2011 and since August 18, 2014. The father has taken no steps to recommence any contact with the child in more than two years. He states that the child requires professional care and supervision because she threatened adults with a “razor sharp knife” and threatened suicide. He maintains that intense and focused treatment for PAS is required and that the child can only return to his care upon successful completion of inpatient mental health treatment. The two facilities the father set out in his Amended Plan of Care no longer offer treatment for PAS. The father was unable to provide details about the potential treatment facilities he suggested in British Columbia and Texas, including information about duration of treatment, availability and success rate. The father is not prepared to have the child return to his home before she receives treatment because he is fearful of his and his wife’s safety: he stated in his cross-examination that if the child came to his home before she had “been treated” or “deprogrammed”, he and his wife would be “sleeping with one eye open”. The father has no plan for the child’s care in the interim. His plan is incomplete and unrealistic. He is unwilling to work with the Society if it continues its protection application. If he is successful at trial, he intends to reinitiate the child’s civil litigation against the Society.
[43] The child’s counsel acknowledged that there has been an estrangement from the father. Even considering this, he submitted that it would be inconceivable and traumatic for the child to be taken out of the mother`s care and institutionalized. I agree. Her counsel noted that although the child has strongly, independently and consistently indicated her wish to have no physical contact with the father, the child would agree that they communicate in writing.
[44] I have considered the factors set out in s. 37(3), in particular s. 37(3)1, 5, 6, 7, 8, 9, 11 and 12. It is in the child’s best interest that there be a deemed custody order in favour of the mother and access to the father only by way of written communication. The Society has met its burden and the father has not pointed to any evidence of specific facts to show that there is a genuine issue for trial with respect to disposition.
Conclusion
[45] For the foregoing reasons, I am satisfied on a balance of probabilities that there is no genuine issue for trial. There is clear evidence supporting a finding that the child is a child in need of protection. In all of the circumstances it is in the child’s best interest to place the child in the mother’s care pursuant to a deemed custody order and to order that access with the father be only through written communication, such communication not to exceed one time per month and to include the provision by the father of gifts for special occasions.
[46] If this matter went to trial, I am satisfied that this result would be a foregone conclusion.
Orders
[47] Accordingly, this court orders that:
a. Summary judgment be granted in relation to the child, R.H. born […], 2003, on behalf of the Society, pursuant to its Amended Protection Application and Rule 16 of the Family Law Rules;
b. The Style of Cause be amended effective immediately to reflect that the applicant is now known as Simcoe Muskoka Child, Youth and Family Services;
c. The subject child is R.H., born […], 2003;
d. The child is Catholic and non-Native;
e. The child is need of protection pursuant to s.37(2)(b)(i), s.37(2)(f), s.37(2)(f.1), s.37(2)(g) and s.37(2)(g.1) of the Child and Family Services Act, as amended;
f. The child be placed in the deemed custody of the mother, L.V., pursuant to s.57.1 of the Child and Family Services Act, as amended; and
g. Access by the child to the father, D.H., shall only be by way of written communication, not to exceed one time per month and to include the provision of gifts for special occasions.
QUINLAN J.
Released: November 14, 2016