S.S. v. Children’s Aid Society of Algoma, 2016 ONSC 7081

S.S. v. CAS, 2016 ONSC 7081

COURT FILE NO.: 3154/14

DATE: 2016-11-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.S.

Appellant

– and –

CHILDREN’S AID SOCIETY OF ALGOMA

Respondent

T. Frederick Baxter, for the Appellant

Jennifer Mealey, for the Respondent

HEARD: November 17, 2016

RASAIAH j.

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published

REASONS FOR DECISION ON APPEAL

OVERVIEW

1The Appellant mother of two young children, L. and N., appeals the Orders of the Honourable Justice Paul Condon (“Justice Condon”) made August 13, 2014 (the “Orders”).

2The Orders were made following a motion for summary judgment, heard July 17, 2014.

3There are two Orders, one with respect to L. and one with respect to N. The Orders provide: 1. that each child be made a ward of the Crown and placed in the care of the Children’s Aid Society of Algoma; and 2. that there shall be no access to the child and all existing outstanding access orders are terminated.

4The Appellant is seeking an order setting aside the Orders and remitting the issue of disposition back to the Ontario Court of Justice for trial; or in the alternative if I find no error, that this Court order each child to be a ward of the Crown but with access to the Appellant.

5There have been no fathers participating. The Appellant in her materials filed states it’s either because they are unknown or have not taken part. The Respondent states that the Appellant identified the father of L. but that he has not been involved in the proceeding or the child’s life. As for N., the Respondent states the Appellant identified an individual as the father of N. and that this person is now deceased.

APPELLANT’S POSITION

6The position of the Appellant is that:

(a) Justice Condon erred in making an order for a claim that was not being made, namely Crown wardship without access, and therefrom arose a procedural unfairness to the Appellant;

(b) Justice Condon erred in that he did not consider and was required to consider whether placement with C.K. could have been made as a placement with a community person under section 57(4) of the Child and Family Services Act R.S.O. 1990, c. C.11, as am. (“CFSA”) before he made a Crown Wardship order;

(c) Justice Condon erred in failing to order a trial on the issue of whether the children should be placed with K.M. and S.M. under Section 57(1) CFSA;

(d) Justice Condon erred in that he did not have authority to refuse to make an access order if the Respondent was consenting to it; and

(e) Justice Condon erred in failing to order a trial on the issue of access.

RESPONDENT’S POSITION:

7The position of the Society is that:

(a) there was no triable issue in respect of placement with the mother or alternatives to Crown wardship;

(b) Justice Condon made no error of fact or law; correctly applied the law on summary judgment; correctly applied the law to the facts before him; and his decision should be afforded deference.

(c) even if there was an error and/or procedural unfairness, this matter requires conclusion.

8The Respondent requests that the appeal be dismissed, and if it is not, that this Court confirm the Orders given the fresh evidence filed, namely order that each child be made a ward of the Crown without access. The kin in care provider is ready and willing to adopt the children to provide them with permanency.

9The Respondent relies on the case of Children’s Aid Society of Toronto v. L.T., [2016] O.J. No. 991 to support a submission that even if a motion judge does not fully consider the merits of a request, if it is in the best interests of the child to bring the proceedings to a close and there is no merit to the request that would have an effect on an inevitable outcome, the proceedings should be brought to a close.

THE FACTS

10The Appellant is the mother of two children, L., currently age 12 and N., currently age 9.

11Child protection issues with this family commenced in 2004 and have continued since then in varying degrees.

12In paragraph [23] of his reasons, Justice Condon acknowledged the differing versions and perspectives of the parties regarding the history in this case, and he went on after in subsequent paragraphs to outline the lengthy ten year involvement of the Respondent with the Appellant in this case. I do not propose to repeat the earlier history.

13The Respondent’s materials identified the protection concerns as:

a) Poor conditions of the home;

b) Poor parenting skills;

c) Difficulty managing children’s behaviours;

d) Poor school attendance;

e) Untreated and unmanaged lice issues;

f) Dental and medical neglect;

g) Residence instability;

h) Use of inappropriate caregivers;

i) Poor choices in relationships and dysfunction in those relationships including domestic violence both by the mother and by others toward the mother;

j) Poor choices of associations;

k) Lack of positive supports;

l) Emotional dysregulation and inability to rationally address concerns;

m) Volatile behavior;

n) Mental health;

o) Failure to work cooperatively with the Society;

p) Demonstrated failure to make necessary changes;

q) Failure to attend recommended programs;

r) Refusal to address the concerns in any meaningful way and instead attempting to continue to engage in a negative lifestyle while attempting to prevent the Society from learning about it.

14The Appellant moved from Wawa, Ontario to Sault Ste. Marie, Ontario on or about 2008.

15A finding that the children were in need of protection was made June 17, 2009 by the Honourable Justice Kukurin (“Justice Kukurin”) and he made a final order placing the children in the mother’s care under a supervision order.

16Concerns continued and on a status review application, the Respondent made a request for an order placing the children in the care of the maternal grandmother due to the mother’s breaches of the existing supervision order; serious errors in judgment regarding alternative caregivers; poor choices of associations; and poor home conditions. Justice Kukurin made an interim order July 21, 2010 continuing the care of the children with the mother but also providing written reasons to impress upon the Appellant that she was expected to abide by all conditions.

17A final order was made placing the children with the Appellant November 3, 2010, namely a supervision order of 12 months in duration. The Appellant believed that the Respondent was initially planning to renew this order on status review but circumstances intervened to change this.

18The children were apprehended by the Respondent on December 1, 2011. They were placed in foster care and never returned to the Appellant’s care.

19The Respondent states that the said apprehension was based on an accumulation of factors and the ongoing failure to meet the needs of the children in multiple respects, despite clear terms of supervision and ongoing efforts by the Respondent. There was an observed ongoing failure of the Appellant to comply with the supervision Order.

20The Respondent states that the last straw was an episode on December 1, 2011 when it was learned that the mother was again breaching the supervision order by permitting unapproved persons to reside in the home. There was an incident involving verbal and physical aggression in the presence of the children as well as other risks to the safety and well-being of the children.

21The Respondent states the Appellant thereafter was provided with access supervised by the maternal grandmother K.M. but that the Appellant declined to continue attending at one point due to a breakdown in her relationship with K.M. The Respondent states the Appellant was also provided with unsupervised community access however did not follow the guidelines of the Respondent, namely, the Appellant had the children in the presence of her violent partner, L.T. contrary to the direction of the Respondent, and engaged the children in keeping this a secret. The mother eventually admitted this occurred. The Appellant’s access returned to fully supervised access as a result.

22The Appellant had fairly regular access to the children thereafter until July of 2013. Access then stopped for approximately ten months. Access resumed in the spring of 2014, namely May 8, 2014.

23The parties give different explanations as to why the access stopped.

24The affidavits of Renee Connolly set out that the Appellant did not attend access from July 10, 2013 to May 8, 2014. The Respondent learned the Appellant had been in an altercation with L.T. and had visible injuries/bruising she did not want the children to see. Further, the Appellant had been charged, advised she had been in jail and advised she might be returning to jail. In January, 2013, the Respondent received information about the Appellant assaulting a police officer and also being in a fight with another woman. In August 2013, the Appellant was indicating she was giving up all legal rights to the children.

25The Appellant’s main explanation for her absence from exercising access to the children was that she was in hiding from her former partner, L.T.. However, in paragraph 15 of her affidavit, sworn July 19, 2014, the Appellant acknowledged some of the facts the Respondent learned of as set out above.

26In respect of access, the quality of the interaction between the Appellant and the children was generally good and the relationship continued to be a positive one when the Appellant was on track.

27The maternal grandmother of the children, K.M. and her husband S.M. lived in Sault Ste. Marie and exercised regular access to L. and N. during the period they were in care. K.M. and S.M. applied to have the children placed with them as kin, but were rejected.

28February 19, 2014, the Respondent brought a motion for summary judgment seeking an order for Crown wardship with no access.

29Before the motion was heard, a kinship application by a relative of the children from Wawa, Ontario was made. C.K. had come forward. This was viewed by the Appellant as a big break for her since she thought this proposed kinship placement meant that she would be assured access to her children instead of having to fight what could be perceived as an uphill battle to remain in their lives.

30The Appellant states that while she would have supported placement with K.M. and S.M. despite her past issues with L.M. and S.M., the Appellant was pleased at the prospect of having the children placed with C.K. The Appellant had a definite preference for placement with C.K. The approval of C.K. opened the possibility of a supervision order placing the children with C.K. as kin with access to the Appellant.

31After some consideration, the Respondent, however, sought Crown wardship with access. The Appellant states that the reasons for this decision included the Respondent’s ability to provide C.K. with more support; and to safeguard C.K. and the stability of the placement in the event the Appellant became too demanding in respect of access. Further, the child N. was experiencing behavioural issues that could have affected the placement and certainty of the placement. It was so new and there was no way to predict how it would take. The foster care provider for N., unbeknownst to the Respondent, for reasons unknown to the Respondent, was hiding N.’s serious behaviour problems from the Respondent.

32The Respondent states that Respondent’s counsel advised Appellant’s counsel that the Appellant would be able to work out access with C.K., if C.K. was approved to care for and/or eventually adopted the children or obtained custody. Appellant’s counsel was advised that as an adoptive parent, the decision would be C.K.’s and would need to be based on the Appellant being appropriate, and access being in the best interests of the children.

33The Respondent states that the Appellant was advised of its position, namely Crown wardship with access, prior to the hearing of the motion. The Appellant acknowledges this.

34The formal claim on the record had been for Crown wardship without access since its amendment on April 9, 2014. The formal claim in the motion for summary judgment was also for Crown wardship without access. Neither the Appellant nor the Respondent took steps to formally amend either to seek Crown wardship with access.

35The motion was argued before Justice Condon on July 17, 2014.

36At the hearing Respondent’s counsel sought Crown wardship with access to the Appellant.

37The Appellant in argument, although loosely submitting alternatives, favoured placement with C.K. under a supervision order with access to the Appellant. The Appellant however states this position was taken under the assumption that access was not an issue or would be an issue given the understanding that the Respondent was seeking Crown wardship with access.

38The main focus of the argument was Crown wardship and the Respondent’s submissions that Crown wardship was in the best interests of the children. There were however arguments and submissions made on access.

39Justice Condon reserved.

40On August 13, 2014, Justice Condon delivered his decision from written reasons. He ordered that the Respondent’s motion for summary judgment was granted and that each child be made a Crown ward without access for the purpose of adoption. Respondent’s counsel who argued the motion was not in Court on the date the reasons were delivered. Another was there in her stead. Appellant’s counsel was present. He did not speak to the issue and/or inquire of Justice Condon on the issue of access or ask why it was not being granted when both sides had been seeking it.

41Under letter dated August 17, 2014 from Respondent’s counsel, Justice Condon was provide with a copy of a letter to Society counsel from resource supervisor of the Society dated August 6, 2014 indicating that the Kinship in Care home study had been completed and that C.K. was approved and the placement of L.S and N.S.

42Neither Respondent’s counsel nor Appellant’s counsel took any steps to seek to address Justice Condon’s Orders or seek clarification on the issue of the disposition of the access claims after the reasons were delivered.

43The Orders were taken out via the Registrar at the Court Filing Office. Each Order provides that there shall be no access to the respective child the Order refers to and that previous orders are terminated, as opposed to providing that the claims for access were dismissed and that previous orders are terminated.

44I made an order permitting the filing of fresh evidence on this appeal. In particular, the affidavit of K.S., sworn April 22, 2016.

45The Respondent confirmed that its formal position orally expressed at the summary judgment hearing was in support of an access Order and that such a position is outlined in the affidavit of Renee Jefferson, sworn July 17, 2014 (Appeal Record, Tab 10, page 5, paragraph 17.) The Respondent was surprised by the “without access” order.

46Subsequent to the receipt of Justice Condon’s decision the Respondent’s decision was that they would stand by the arrangement offered at the summary judgment hearing as set out in its letter to mother’s counsel dated September 4, 2014, namely to provide access arranged around the best interest of the children and in conjunction with C.K. The letter provides that it is anticipated at some point that C.K. would obtain custody or adopt the children and at such points, access can be worked out directly with C.K. The mother in this letter is suggested to get into contact with the Wawa worker and with Renee Connolly to discuss access arrangements.

47Respondent’s counsel could not locate any correspondence prior to the summary judgment hearing in regard to the mother’s access in the event of a kinship placement, whether kin in care or kin out of care.

48The Appellant on consent filed four letters from Respondent’s counsel. One letter expressed the surprise that was felt regarding the outcome of the summary judgment hearing and spoke to providing access and their position. One of the letters referred to the Appellant moving to Winnipeg and inquiring if this appeal was going to be pursued. Two of the letters referred to the Appellant not exercising the access that was being offered and that as such, the Respondent would be making a motion to file fresh evidence on the appeal and would not be supporting an access order.

49The Appellant on consent also filed an Ontario Court of Justice Trial Co-ordinator endorsement dated May 5, 2014 placing the case to June 10, 2014 and the endorsement of the Honourable Justice Gregson (“Justice Gregson”) dated June 10, 2014. Justice Gregson’s endorsement makes reference to a kin assessment that is underway and that the initial findings are positive. Based on same, the endorsement indicates that Appellant’s counsel was going to seek instructions from his client and C.K., and in light of the foregoing, the Appellant’s motions including seeking the involvement of OCL were adjourned to follow the summary judgment motion. These were filed to demonstrate that understandings were in place including that access would be supported by the Respondent, and that decisions were made by the Appellant not to pursue other steps based on those understandings.

50From the time the Orders of Justice Condon were made to date, the Appellant at her choice exercised very limited access.

51The Appellant has not sought to file any fresh evidence advising the Court of her current status and intentions.

LAW

SUMMARY JUDGMENT

52A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged, the responding party must prove that its defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court 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, par.5.

53Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future. See Jewish Family and Child Service of Toronto v. R.A. and J.G. (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No. 47,2001 CarswellOnt 73 (Ont. S.C.); affirming Jewish Family and Child Service of Toronto v. R.A. and J.G., 2000 22546 (ON CJ), 2000 22546, [2000] O.J. No. 6045, 2000 CarswellOnt 5169 (Ont. C.J.).

54A 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. See Children's Aid Society of Toronto v. K.T. and C.W., 2000 20578 (ON CJ), 2000 20578, 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 CarswellOnt 4827 (Ont. C.J.).

55The court must rely on and assess the sufficiency of evidence adduced in the affidavit materials submitted on the motion: Children’s Aid Society of Niagra Region v. S.J.W., S.W., M.B. and J.W., 20011 ONSC 5842.

56The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. See Children's Aid Society of Toronto v. K.T. and C.W., supra; and Children's Aid Society of Waterloo Region v. T.L.H. and D.S.C., 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, [2005] O.J. No. 2371, 2005 CarswellOnt 8104 (Ont. C.J.).

57Justice Alex Pazaratz stated at paragraph [43] of Children's Aid Society of Niagara Region v. S.C. and B.M., 2008 52309 (ON SC), 2008 52309, 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5929 (Ont. Fam. Ct.): "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant”.

58A child’s need for permanency planning with 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. In child protection cases, the existence of a genuine issue for trial must arise from something more than a heartfelt expression by a parent of a desire to resume care of the child. There must be an arguable point based on the parent’s evidence that the parent faces some better prospects than those that existed at the time of the Society’s removal of the child from their care and has developed some new ability to parent: Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.)

59Various courts have highlighted the importance of additional considerations in summary judgment motions brought in the context of child protection cases. These include the nature of the evidence on the motion, if any mandatory time frames are involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in issues to the case. In addition, the analysis must be undertaken under the umbrella of the paramount purpose of the CFSA, which is to promote the best interests, protection and well-being of the children.

STANDARD OF REVIEW OF A SUMMARY JUDGMENT ORDER

60The standard of appellate review of a summary judgment order is set out in SN-D v. Children's Aid Society of Ottawa, 2012 ONSC 1888,2012 ONSC 1888 (Div. Ct.), at par. 14:

In Catholic Children's Aid Society of Toronto v. Y.K., [2007] O.J. No. 3080 (S.C.), aff'd 2008 ONCA 27, [2008] O.J. No. 137, the Superior Court of Justice addressed the standard of review on an appeal of a summary judgment made under the Family Law Rules, O. Reg. 114/99, s. 16. In summary:

The standard of review on an appeal of a summary judgment order is correctness, as most issues arising out of a summary judgment hearing are errors in law. Where an error in fact is alleged, the standard of review is less deferential than palpable and overriding error but more deferential than correctness as the judge's decision is entitled to due respect.

61On questions of mixed fact and law, the palpable and overriding error standard applies unless there is an extricable error of law: Housen v. Nikaisen, 2002 SCC 33, Archer v. Archer, 2005 CarswellOnt 1515 (Ont. C. A.) Catholic Children’s Aid Society of Hamilton v. R. (C.), 2009 34047 (ON SCDC), 2009 CarswellOnt 3850 (Ont. Div. Ct.)

62In SN-D v. Children's Aid Society of Ottawa, supra, the Divisional Court added that in cases involving child custody, considerable deference must be given to the decision.

63Justice Goodman in Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., 2015 ONSC 2496 wrote at paragraph 19:

The determination of whether there is a genuine issue requiring a trial is a legal issue. Where the appellate court determines that the motion judge correctly applied the legal test for determining whether to grant summary judgment, any factual determinations by the motion judge in deciding the motion will attract a review on the deferential standard of palpable and overriding error.

The final question raised by the appellant is whether the motions judge failed to properly apply the “best interests of the child” criteria. The test for considering the best interests of the child is set out in CFSA s. 37(3). Section 57 sets out the considerations for the court in making an order of disposition once a court has determined that the child is in need of protection. In oral argument, it was conceded that the child is in need of protection. The issue is whether the order is appropriate to address those concerns in the absence of a full hearing.­­

64While a judge in the first instance may not have referred specifically to all of the evidence before him on an issue, he or she is not required to do so: Children’s Aid Society of Hamilton v. E.M. (Ontario Superior Court-Divisional Court) 2010 ONSC 6421, [2010] 280 O.A.C. 184.

65In D.D. v. Children's Aid Society of Toronto, 2015 ONCA 903, at paragraphs 27 to 30, the Court wrote:

27In Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, the Supreme Court of Canada noted at para. 13 the high standard of review for cases involving child custody:

Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge's decision… an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts.

28In that case, the Supreme Court also adopted for child custody appeals its comments in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at para. 12 that an appeal court is not entitled to intervene, “…simply because it would have made a different decision or balanced the factors differently.”

29This court has noted that deference is particularly compelling in child protection cases. As Justice Gillese noted at para. 19 of Children’s Aid Society of Ottawa v. S.N.-D., 2012 ONCA 590, “This court owes deference to factual determinations, a consideration that is particularly compelling in child protection proceedings”.

30See also Children’s Aid Society of Toronto v. V.L.., 2012 ONCA 890 at para. 16: “…the degree of deference owed to the trial judge is particularly high in child protection proceedings.”

SECTION 59(2.1) OF THE CFSA

66Section 59(2.1) deals with the question of access when a child has been made a Crown ward. It reads as follows:

A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

a) the relationship between the person and the child is beneficial and meaningful to the child; and

b) the ordered access will not impair the child’s future opportunities for adoption.

67In D.D. v. Children's Aid Society of Toronto, 2015 ONCA 903 paragraph 31 to 40, Pardu J. set out:

Focus on the Child

31Section 59(2.1) of the CFSA clearly places the focus of the test for access on the child’s perspective.

32The mother’s arguments that the Society was responsible for interruptions in her contact with S.S., that she did made requests for access, and that her parenting skills had improved, focus on the reasons for the current state of affairs and on the mother’s efforts. They do not speak directly to whether access would be meaningful and beneficial to the child.

33Accordingly, the motion judge was correct to focus on the child’s present best interests.

68In Children’s Aid Society of the Niagara Region v. J., 2015 ONCA 695, the court sets out:

In order to satisfy the first requirement, the party seeking access must prove, on a balance of probabilities, that his existing relationship with the child brings a significant positive advantage to the child. It is not sufficient that there are some positive aspects to the relationship.

69The Divisional Court commented on this section in Children’s Aid Society of the Niagara Region v. J.C. (2007), 2007 8919 (ON SCDC), O.J. No. 1058, at paragraph 29:

“Beneficial” has been held to mean “advantageous”. “Meaningful” has been held to mean “significant” (Children’s Aid Society of Niagara Region v. J.(M.) (2004) 2004 2667 (ON SC), 4 R.F.L. (6th) 245, 2004 Carswell 2800, at para.45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother’s relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was “beneficial” within the meaning of s.59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children’s emotional health, were identified.

70Justice J.W. Quinn dealt with the same issue in Children’s Aid Society of the Niagara Region v. M.J., K.S. and S.S. (2004), 2004 2667 (ON SC), O.J. No. 2872 at paras. 45 through 47. They read as follows:

45 What is “a beneficial and meaningful” relation in clause 59(2)(a)? Using standard dictionary sources, a “beneficial” relationship is one that is “advantageous.” A “meaningful” relationship is one that is “significant.” Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child.

46 I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

47 Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

71I do not purport to repeat but rely on the other legal considerations, which Justice Condon set out correctly in paragraphs [10] to [19] of his reasons.

PROCEDURAL UNFAIRNESS

72If the appearance of fairness has been undermined, a decision cannot stand on any standard: Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd., 1995 1069 (ON CA), 23 O.R. (3d) 362, [1995] O.J. No. 1268 (Ont. C.A.).

73Rule 2(3) of the Family Law Rules provides that dealing with cases justly includes ensuring that the procedure is fair to all parties. Rule 2(4) and (5) place a duty on the Court to promote the primary objective, namely to enable the court to deal with cases justly including procedural fairness.

ANALYSIS

Issue One: Did Justice Condon err in making an order for a claim that was not being made?

74The crux of this argument is based on procedural fairness.

75Appellant’s arguments:

a. The Appellant states that the Respondent’s motion had not been formally amended to seek Crown wardship with access, but that same was sought and was made known to Justice Condon both in the affidavit evidence submitted by the Respondent and in the submissions made at the hearing by Respondent’s counsel. The Appellant acknowledges that she could have pursued the amendment herself but did not expect it would be required given her understanding that access was being supported by the Respondent.

b. The Appellant submits that this “without access” claim caused Justice Condon to make an error and/or caused confusion as to what was being sought.

c. The change in the Respondent’s position to one of supporting access altered the whole basis on which the Appellant presented her case and the strategies that she and her counsel pursued in preparing for and arguing the motion. The Appellant states she would have said more and/or filed more or even more rigorously advanced her alternate positions.

76The Respondent’s submissions at the hearing included statements that although the Respondent was supporting an access order, it was arguable on the evidence, that the test was not met; that the evidence did not necessarily establish that access was meaningful and beneficial. The Appellant did not object. The Appellant explained that Appellant’s counsel did not appreciate the Respondent’s submissions to be an equivocal position on access because access was being sought. His focus was on the issue of Crown wardship.

77The Appellant raises, and I agree, that Justice Condon makes no reference to the fact that the Respondent was seeking and/or supporting access.

78I cannot speculate, but after reading the transcripts of the arguments, I do find based on the words used, and the manner in which the issues were addressed by both counsel, Justice Condon, through no fault of his own, could have been left with the impression that the Respondent was not strongly supporting an access order, both on the Respondent’s submissions for Crown wardship and access and that there was no understanding on access.

79In the transcript:

(a) The Respondent submitted “as much as we think that some access is good for the children, we feel very strongly that we need to be a barrier on behalf of the placement to ensure that that doesn’t become an overwhelming destabilizer”.

(b) The Respondent expressed concerns regarding the Appellant’s access and while the Respondent acknowledged that the Appellant was looking healthier, she had been “missing in action” for 8 months and they were uncertain as to ability to rely on her statements given her history and volatile behaviour.

(c) The Respondent set out before Justice Condon, concerns regarding the “on again off again” historical approach of the Appellant with the children. Focus was placed on past residence instability, criminal involvement, domestic violence issues, periods of poor health of the Appellant; and incidents of asking the children to keep secrets creating loyalty binds. The Respondent stated the foregoing: “can negatively affect children in terms of access and that they are things that can be destabilizing to children who already have high needs”.

(d) The Respondent made it clear in submissions that the Respondent was looking to ensure that the Appellant did not interfere with the children attaching to and forming a positive relationship with C.K.

(e) At page 11 of the transcript, starting at line one, the Respondent submitted:

As much as we recognize that the mother – the children love their mother, they want to see their mother, you know, we see some positives in the relationship but we have to be really careful to draw that line between trying to make sure that the children benefit from the positives the mother can bring and trying to make sure that they aren’t destabilized by the negatives she can bring.

(f) The Respondent pointed out how the Respondent was not in a position to agree with the Appellant that she had changed, since she had not worked with the Respondent or followed any recommendations or produced any information about any programming or efforts she had made, or who she was associating with to address the Respondent’s concerns, including drug and alcohol use issues. This created a struggle for the Respondent on putting any reliance on any information the Appellant was now giving the Respondent.

(g) The Respondent referred Justice Condon to the Appellants own information about her medication, namely Seroquel and that she had been diagnosed with a social anxiety disorder and in receipt of disability pension as a result but that no report of Dr. Leung was presented by the Appellant or a prescription history in answer to the motion.

(h) The Respondent was suggesting that any access could occur through a worker if the Appellant demonstrated positive change.

(i) The Respondent made a submission that the Appellant did not put her best foot forward in the preparation of her responding materials to the summary judgment motion.

(j) The Respondent appeared equivocal and seemingly invited the Court notwithstanding a submission supporting access to examine whether or not it really was positive on the evidence as was being submitted by the Appellant. The Respondent referred Justice Condon to the Blackwell assessment and in particular the negative comments about the way the Appellant interacts with the children and the Respondent pointed out serious issues the worker had with the Appellant and how access has not really been positive in the past.

80In respect of the arguments and submissions of Appellant’s counsel before Justice Condon: it is clear the placement of the children with C.K. was not being contested and that the Appellant believed it was in the children’s best interests to be placed with C.K. Crown wardship however was being contested in favour of a supervision order: with options of 3, 6, 9 or 12 months in duration, with access to the Appellant. The majority of the Appellant’s argument was focused on Crown wardship.

81Appellants counsel however advised Justice Condon that the Appellant wanted access. He pointed out evidence of access periods that were positive, that they went well and that this was acknowledged by the Respondent in the Respondent’s evidence.

82Appellant’s counsel however did not raise the issue of whether or not an access order should be made in the event of an order making the children Crown wards. However, he did make a submission that could be interpreted as follows: access is known (or should be found) in the best interests of the children (because) the Society was asking for access. He did not appreciate the equivocal submissions of the Respondent and there were no objections.

83Further, the Appellant’s counsel’s focus regarding access appeared to be an argument that Justice Condon could and should send the issue of access to a trial. He made a submission that what was not known was “how strong, how big, how much and what the parameters there should be and to what extent access should be hedged about” with restrictions. He seemed to be suggesting to Justice Condon that there was insufficient evidence and that further and better evidence on access was needed. He submitted that the access issue requires a hearing. The Appellant now explains these submissions were made because although access was agreed to, the particulars were not.

84The Respondent states on this appeal that the evidence filed in the affidavit in support of the summary judgment contained some considerable evidence which would suggest that access was neither meaningful nor beneficial, evidence which the Appellant largely did not respond to despite filing material in response. The Appellant’s affidavits in response were all filed prior to the Society determining or advising it would seek an access order. That being said, the Respondent does not deny that at the hearing, it sought an access order and there is no reference in the decision to tell me why this was not being granted despite the foregoing.

85It can be interpreted by the affidavit filed by the Appellant prior to the summary judgment hearing that she did not appreciate that access was an issue, which supports Appellant’s counsel’s position in terms of the strategies and the materials he prepared on her behalf. While not abundantly clear, the endorsement of Justice Gregson filed also seems to provide some support for Appellant’s counsel’s position.

86At the end of the day, I cannot find or determine that Justice Condon was uncertain about what was being sought as a result of the motion not being amended, the arguments presented and how they were presented. He does not mention in his reasons the fact that the Society was supporting access and why notwithstanding he wasn’t going to order it.

87In my view, after reading the transcript, I would not have interpreted the Respondent as whole heartedly supporting access. The Appellant’s arguments on access were not clear.

88Appellant’s counsel stated his high regard and respect for Justice Condon and was willing to acknowledge his part in the end result, in respect of things, he could have done or said to Justice Condon to make it clear.

89Both counsel have now have clearly set out what the state of affairs was at the time.

Issue Two: Did Justice Condon fail to consider, whether placement with C.K. could have been made as a placement with a community person under section 57(4) CFSA before making a Crown Wardship order?

90It is clear from the transcript that:

(a) The Respondent was seeking Crown wardship and submitted that they had exhausted all other options in their view in respect of disposition.

(b) The Respondent was seeking permanency planning, so that if a problem arose with respect to placement with the children with C.K. (“C.K. placement”) the Respondent would not have to return to litigation to resolve it. The litigation road had been long up to that point, the Respondent having being involved with the Appellant since 2004. It had been ten years at the time of the hearing.

(c) The Respondent was concerned that the C.K. placement could break down, including but not limited to N.’s behaviours, the costs and C.K.’s limited income, and C.K. already having two other children in her care. Crown wardship was presented by the Respondent as the best plan in the best interests of the children for these foregoing reasons. This plan would afford C.K. financial and service supports she might not have with a placement under supervision order.

91The Appellant claims that Justice Condon’s reasons did not advert to the enquiry required by section 57(4) CFSA, which enquiry is a necessary step in any full and proper determination of the matter according to law.

92I do not agree.

93Justice Condon correctly set out all of the applicable law and legal considerations in his reasons, including 57(4) of the CFSA. He titles the section “legal considerations”.

94Placement of the children with C.K. and with K.M. and S.M. were considered by Justice Condon as the plans that the Appellant put before the Court. This is clearly noted in his reasons. He understood what her plans were.

95In respect of not placing the children with C.K. under a supervision order, it is clear from his reasons in my respectful view that the reason was related to the support that C.K. would need given her own situation, the uncertainty, and the needs of the children, and more particularly, N.

96It was clear in the evidence that C.K. was new to the care of both of these children, and that it was not certain if this placement would be successful, both in terms of access that might be exercised by the Appellant and the behaviour of N. A familial access plan had broken down previously in the history of this case with the Appellant’s mother, K.M., who had become involved to assist in facilitating access.

97N. was exhibiting troubling behaviour and had high needs. For unknown reasons, the foster care provider of N. did not inform the Respondent, and at the time of the hearing, this was a relatively new factor to contend with.

98Considering the best interests of the children, the long standing history and the need for permanency, the evidence at the hearing supported a finding that the better less disruptive plan for the children was the kin in care arrangement and Crown wardship.

Issue Three: Did Justice Condon err in failing to order a trial on the issue of whether the children should be placed with K.M. and S.M. under s. 57(4) CSFA?

99The Appellant states the K.M. was far from an ideal parent, but she was a close relative who had built up a strong relationship with both children by having access with them in her home on a weekly basis for over two years. This, the Appellant states, was tantamount of an assessment by the Respondent that the relationship was worth preserving. K.M. was an experienced parent with other children, neither of whom was ever taken from her by the Respondent despite some history with respect to her son.

100The Appellant states that the placement with K.M. and S.M. would have negated the need for Crown wardship and the Appellant having to address the preconditions for an access order under a Crown wardship order.

101I do not agree. I find Justice Condon did not err on this issue.

102Justice Condon correctly set out all of the applicable law in his reasons, including summary judgment, sections 57(1) and 57(4) of the CFSA.

103Allegations had been made against S.M. by the Appellant dating back to when she was a girl, which resulted in a referral to Dr. Robert Salstone of North Bay, Ontario. Dr. Salstone ultimately provided S.M. with a clearance on the issue of possible deviant sexuality as a result of sexual preference testing but cautioned that the testing results were not clear. Dr. Salstone was concerned that some of S.M.’s responses regarding child molestation were of concern. Dr. Salstone was recommending a safety plan supervised by the Society and that S.M. not be permitted to be with any child under the age of 16 without another adult being present. Justice Condon directly referred to this report as part of the reason why placing the children with K.M. and S.M. would not be in the best interests of the children.

104The Report of Dr. Blackwell was also addressed directly by Justice Condon in paragraph [49] of his reasons as being relied on by him on this issue. There were two. One with respect to K.M. and S.M. and one with respect to the Appellant. The detailed report with respect to K.M. and S.M. resulted in the author stating that K.M. and S.M. could not be recommended on any level for parenting. The report prepared with respect to the Appellant contained a number of negative family history statements that the Appellant made about K.M. and S.M., including a reference to K.M. marrying the man who molested her (the Appellant).

105There was also an Internal Assessment conducted by the Respondent’s kinship assessment worker Rochelle Lavalle.

106The above reports and assessment were before Justice Condon. The evidence was strong evidence of unsuitability. There was no reasonable prospect of the outcome of the children being placed with K.M and S.M.

107Neither K.M. nor S.M. sought to be added as parties or opposed the order for Crown wardship in any way. There was no affidavit filed of either to contradict the Respondent’s summary of the assessment process and/or the reports filed.

108On this appeal, the neither K.M. nor S.M. nor the Appellant filed evidence to establish that there would have been or that there was other evidence that could have led to a conclusion that placement with K.M. and S.M. could have been a realistic possible outcome and/or a triable issue.

Issue Four: Did Justice Condon have authority to refuse to make an access order if the Respondent was consenting to such an order?

109My answer is yes. There is clear authority to refuse an access order. There is no question in my view. The Court is mandated, when it is making a child a ward of the Crown to examine the issue of access and not to make an access order or vary an access order unless satisfied that the elements of s. 59(2.1)(a) and (b) of the CFSA are met. The fact that both the Respondent and Appellant were seeking access is acknowledged, but at the end of the day the test the Court is required to follow is as set out by s. 59(2.1)(a) and (b) of the CFSA.

Issue Five: Did Justice Condon err in failing to order a trial on the issue of access under a Crown Wardship order if he was not prepared to make the order being requested by the Respondent?

110The way the arguments were made by both counsel and based on the evidence that was filed before Justice Condon, which he was entitled to rely on as the “best foot forward” by the parties, I am of the view the answer is no.

111I will not repeat them, but have set out some of the related evidence and arguments that were made under Issue One. I rely on my comments and findings under Issue One.

112Under this particular issue, Issue Five, the Appellant submits that the Respondent is an agency with special expertise in the area of child protection with great responsibility entrusted to it, and if the Court was not prepared to defer to its position then a trial ought to have been ordered.

113The Court is not required to defer to the Respondent and I give no effect to this argument. The Court was required once having decided that the children ought to be made Crown wards, to apply s. 59(2.1) of the CFSA and determine whether or not there was a genuine issue requiring a trial.

114Justice Condon considered s. 59(2.1) of the CFSA. While I am the view that it would have been preferable to have more particularized reasons on this issue under the section in his reasons where he was considering the issue, in reading his reasons, Justice Condon referenced that he was relying on his findings regarding the Appellant’s relationship and involvement with the children, and her ability to parent the children. These were all findings that he made in analysing her plans of care (which included placement with C.K. under supervision order with access to her). He wrote in paragraph [59] of his reasons, “Given what has been set out above…”.

115Looking at what he “set out above”, Justice Condon clearly acknowledged in paragraph [54] of his reasons: the changes the mother submitted she had made; that she clearly loved her children; that she appeared to no longer be in an abusive relationship (at least with Mr. L.T.); and that the mother felt that access has been positive. In paragraph [55] he examined and found that the evidence established that the mother did not have the parenting capacity to meet the physical, mental or emotion needs of either child; that she has been unable to maintain stability, that she has been unwilling to or unable to participate in programing; and that her short period of lifestyle modification was not adequate to offset her long history. Justice Condon found the Appellant’s plan to be only a little more than a plea for one more chance.

116Justice Condon refers to N.’s increasingly difficult behaviour, more than once in his reasons and directly in his consideration of s. 59(2.1) of the CFSA. Health issues of a child are a factor in this analysis. This analysis is to be from the child’s perspective.

117Justice Condon also examined the evidence that the children were adoptable. While he does not point out specifically the evidence he considered in this paragraph, he set out at the beginning of his reasons, all of the significant material he considered and relied upon. This material certainly supports the children were adoptable. This was not disagreed with on this appeal, namely that the children were adoptable.

118The evidence also set out the historical issues with access, and how the children were, or could be affected by an access order. On more than one occasion access had to be changed to supervised access because of the Appellant’s behaviour. The history indicated lack of cooperation with the Society on many issues including access. This evidence supported a finding that an access order would impair the opportunity for adoption. The context Justice Condon was dealing with included uncertainty as to whether or not the placement with C.K. would be successful. As such, the analysis of this issue was not limited solely to access with C.K. as the future caregiver.

119In fact, the Respondent submitted that if the plan involving C.K. did not work, then the Respondent needed to find the children an adoptive home. To this submission the Appellant’s counsel stated that the Appellant “just wants to be in a position that she can fight the idea of adoption with strangers, that’s all.”

120In my view, other than the fact that there was love and some positive visits, there was no evidence of significant positive advantage to the children to continue access in this context, or facts that would have raised a genuine issue requiring a trial on the date of the hearing.

121Again, at the time of the hearing, the Appellant clearly had been in and out of the children’s lives in respect of access, and had only recently recommenced access after a hiatus of ten months. There was very little filed by the Appellant on the advantages to the children to have access to her and nothing at the date of the hearing demonstrating that access would be a significant positive advantage.

122Society involvement at the time of the hearing was ten years in duration. Permanency and best interests of the children were forefront issues.

123Further, the history and evidence reflects that the Appellant’s time with the children has been with continuous concern and almost never without the Respondent’s involvement. Justices, and in particular Justice Kukurin, provided the Appellant an opportunity to appreciate the Respondent’s concerns by directing a portion of his reasons to the Appellant’s attention on what the Court would hope for her to achieve, and what the Court expected. That was in 2010.

124Lastly, in assessing Justice Condon’s decision, it is important to note that the Respondent made submissions in regard to the Appellant’s access which included references to concerns for emotional dysregulation, potential for destabilizing the children, and potential for straining C.K.’s ability to care for the children. The Respondent submitted, that although they were seeking an access order, the evidence did not necessarily support an access order, and that the court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion.

125My view of the transcript is that although the Respondent was seeking access, it certainly was not being sought strongly, and I would even go so far as to say that it can be interpreted that Justice Condon was being invited to determine whether or not access should really be ordered. The Appellant’s counsel did not address these submissions or object to them at the hearing, resulting in no alert to Justice Condon of any issue of misunderstanding as to what he was being asked to consider.

ALLOWING THE APPEAL

126Based on the above, I am allowing the appeal, however, solely in respect of the issue of access under s.59(2.1) of the CFSA. I do so only on the basis of the procedural unfairness argument. The manner in which this case was argued before Justice Condon and the lack of attempts to address any misunderstandings, in my view, ought not to be visited on the Appellant.

127Also, the actual wording of the Orders that were taken out in my view do not reflect what Justice Condon ordered through no fault of his. They were taken out through the Court Filing Office. It was not Justice Condon’s intention that the Orders state that there be no access to each child. His intention was that there be no access orders and the claims be dismissed. With there being no access orders, the Respondent would then be in a position to provide visits prior to adoption as he set out in his reasons.

ORDER

128On the issue of access, I find that it is not in the best interests of the children that the issue of access be remitted by to the Ontario Court of Justice for trial.

129This has been a long road for these children and their best interests require that this matter not be brought through a trial. I am also satisfied that there is ample evidence, including the fresh evidence before me and that there has been ample opportunity for the filing of any further fresh evidence.

130I find that the claim for access should be dismissed and that all previous access orders be terminated.

131Following the decision by Justice Condon, the Respondent made an offer to settle the matter, however counsel for the Appellant was unable to obtain instructions or locate his client. The Respondent attempted to assist in locating the Appellant and, in the meantime, continued to assess her circumstances in regard to her claims made at summary judgment, namely, that she was very stable, was relocating to Wawa so she could be a stable access parent and, as well being mindful of the best interests of the children. The Respondent offered the access that it had committed to at the hearing. The Appellant did not attend the offered access with any regularity and, as the children stabilized in the care of C.K., and the Appellant went longer and longer without contact, access began to present as more actively contrary to the best interests of the children. The updating affidavit sets out the impact on the children of access and the Appellant’s record of inability to maintain a consistent access schedule. C.K. is now presenting as ready to adopt the children and has demonstrated that she is able to manage them and care for them successfully.

132Further, the main focus of the procedural unfairness argument was that had the Appellant known access was not going to be ordered, she would have filed further evidence to establish a triable issue. Over two years later, she has not filed any further evidence despite the opportunity to do so.

133The fresh evidence filed does not demonstrate that the relationship between the Appellant and the children is meaningful and beneficial. There is no demonstrated significant positive advantage for the Appellant to have an access order.

134Despite being provided with ample opportunity to have access to the children following Justice Condon’s order, she failed to take advantage of that and has exercised very little access and has entered in and out of the children’s lives as she did prior to the summary judgment motion hearing. The Appellant has been unable to follow through with maintaining contact and working with the Respondent.

135L. is reported by C.K. to be very angry with the Appellant and scared of the Appellant and that since the Appellant has returned to Wawa, L. does not want to go out for fear of seeing the Appellant. L. has told the Society worker that she does not want to have access with the Appellant.

136The children ran into the Appellant unexpectedly in February of 2016 and L. was frightened by the Appellants appearance. She described the Appellant as having scabs and marks all over her face.

137The evidence sets out that N. has struggled with serious behaviours including violence and threatening violence towards others, self-harm, and threats of suicide.

138It is acknowledged that N. has been reported as missing the Appellant, but also she has presented as being very visibly upset, crying and having thoughts that the Appellant did not want her.

139Medical evidence filed indicates that it is a struggle for N. to reconnect to the Appellant and has been recommended for a detailed trauma assessment.

140The Appellant coming in and out of the lives of the children does not help or demonstrate commitment to the relationship she could have otherwise had with them. She missed birthdays, Easters, Christmases, Thanksgivings, Halloweens, and Thanksgivings without explanation.

141C.K. reports that in the time the children have been with her, they have grown, they have been able to relax, they have met new friends, and N. is getting the help she needs. With C.K. the children have enjoyed participating in summer camps, figure skating, and music lessons and dance lessons. They are showing some confidence in participating in performances and festivals.

142Accordingly, I set aside each paragraph 2 of each of Justice Condon’s Orders and order in respect of each of L. and N. that:

1. The claim for access to the child is dismissed.

2. Any and all existing orders for access to the child are terminated.

143With the above, it will still be open to the Respondent, as Justice Condon contemplated, to provide visits, if and when it may be in the best interests of the children, prior to any adoption.

Rasaiah J.