Court File and Parties

COURT FILE NO.: FC-15-53 DATE: January 5, 2017

SUPERIOR COURT OF JUSTICE

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

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF E.S., born […], 2011; J.S. born […], 2012, and R.S., born […], 2013

BETWEEN:

Children’s Aid Society of Ottawa Applicant – and – J. S. S.T. R.S. and L.S. Respondents

Counsel: Judith Hupe, counsel for the Applicant Kimberley Pegg, counsel for J.S. Noted in default Steve Duplain, counsel for R.S and L.S.

HEARD: December 12, 2016 at Ottawa

REASONS FOR MOTION

ShelSton, J.

1The Children’s Aid Society of Ottawa (“Society”) seeks summary judgment in favour of the Society granting:

(a) an order placing the children E.S., J.S. and R.S.in the legal custody of the maternal grandparents L.S. and R.S. pursuant to section 57.1 of the Child and Family Services Act;

(b) access to the father will be at the discretion of the maternal grandparents, keeping with the best interests and wishes of the children;

(c) access to the mother, supervised by a third party, as agreed upon between the mother and her parents to ensure that the father does not attend the visits. The grandparents to have the discretion to reduce or eliminate the need for supervision if it is deemed in the children’s best interest; and

(d) any other order of this court deems just in the circumstances.

2The mother opposes the granting of summary judgment. She wishes the children be returned to her care, in the alternative, a supervision order or access two times per week.

3The maternal grandparents consent to the application by the Society. They have been caring for the children since January 2015.

4The father has been noted in default and has not participated in this proceeding.

Factual background and history of proceedings

5J.S. (“the mother”) and S.T. (“the father”) are the natural parents of the three children being E.S., born […], 2011, J.S. born […], 2012 and R.S., born […], 2013 (“the children”).

6On September 19, 2014, the children were apprehended from the care of the parents because the mother, the father and the three children were homeless, found living in a van and the van had a strong smell of marijuana. The parents agreed that the children would be placed in the care of the Society for four months pursuant to a Temporary Care Agreement.

7On September 19, 2014, the Ottawa Police Service and the Society worker raised concerns regarding the children’s physical health. Consequently, the children were taken to the Children’s Hospital of Eastern Ontario (“CHEO”) where they were seen by Dr. Ward. She found that the child E. S. had bruising on her buttocks, the child J. S. had bruising on her thighs and the child R. S. had two bumps on her head. Further, she found that the three girls presented as being very thin while the youngest child was not able to turn over or stand by herself and did not appear to be meeting her developmental milestones. Finally, Dr. Ward noted that all three girls did not appear healthy.

8On September 19, 2014, the father was arrested by the Ottawa Police Service for outstanding warrants in relation to two failures to comply with a probation order. He remained incarcerated until November 4, 2014.

9On September 19, 2014, a Society worker, the mother and the maternal grandmother met to discuss concerns about domestic violence between the mother and the father. The maternal grandmother indicated that she had seen three palm-sized bruises on her daughter’s body in the previous week.

10On September 26, 2014, the children were seen again by Dr. Ward where she concluded that all three girls were severely delayed with regards to their growth and developmental levels.

11On October 3, 2014, the Society referred the matter to the Sexual Assault and Child Abuse unit of the Ottawa Police Service.

12Between October 2014 and January 2015, the mother had supervised access with her children twice a week for two hours at the office of the Society. Even though she was offered 27 visits, she only attended 16. It was only after the father was released from being incarcerated that the mother started to miss visits.

13Despite being offered services, the mother only attended one counselling session at the Pinecrest Queensway community Centre on November 3, 2014, and did not return.

14On December 29, 2014, the mother told the child protection worker that she buys marijuana for the father. The same day, the Society worker provided the mother with resources available for child development but she did not follow up.

15On January 12, 2015, the mother advised the Society that she would no longer attend access visits with her children.

Initial protection application

16On January 19, 2015, the Society commenced the protection application seeking to place the three children in the care of their maternal grandparents subject to the supervision of the Society for a period of six months and that access to the parents be at the discretion of the Society.

17On January 22, 2015, the Honourable Justice Blishen granted an order placing the children in the temporary care and custody of the maternal grandparents, L. S. and R. S. subject to the supervision of the Society.

18The mother filed an Answer and Plan of Care. The father did not file any responding material and was noted in default on March 30, 2015.

19On March 25, 2015, the parents were charged with failure to provide necessities of life as well as criminal negligence causing bodily harm regarding the children. The mother’s bail conditions restricted her access to the children based on the discretion of the Society.

20Four days later, on March 29, 2015, the mother alleged that her father had sexually abused her in the past. These allegations were investigated by the Society and the Ottawa Police Service. The allegations were not verified and no charges were laid.

21Despite requests by the Society to resume access over the summer, the mother did not reply to the request. However, after seeing a new counsellor at Elizabeth Fry Society of Ottawa, the mother agreed to resume access in September 2015. The mother continued to indicate that she was still with the father.

22The mother resumed access on September 15, 2015. She has continued to exercise access since time.

23A motion for summary judgment was set for October 20th 2015. The mother did not attend the motion or file responding materials. Justice Doyle found the children to be in need of protection; granted a final four month supervision order placing the children in the care and custody of the maternal grandparents subject to supervision by the Society with terms and conditions and granted the mother access at the discretion of the Society.

Status Review Application

24On January 22, 2016, the Society filed a Status Review Application seeking an order that the children be placed in the custody of their maternal grandparents, L.S. and R.S. with access to the parents of the discretion of the maternal grandparents, keeping with the best interests and wishes of the children.

25The maternal grandparents support the application by the Society and consent to the motion for summary judgment.

26On March 3, 2016, the mother filed an Answer and Plan of Care seeking the return of the children to her sole custody with access to the natural father at her discretions; in the alternative; an order that the children be returned to her care under his supervision order and in the further alternative, that she have regular access in accordance with the specific schedule and not less than twice per week.

27The father was noted in default on March 30, 2016.

28On June 7, 2016, a motion for summary judgment was scheduled to proceed on September 6, 2016. On September 6, 2016, with the consent of all parties, the motion was adjourned to October 18, 2016. On October 18, 2016 the motion for summary judgment was again adjourned to December 12, 2016.

The legal framework

Summary Judgment

29On a motion for summary judgment under Rule 16 of the Family Law Rules, the question is whether or not there is a genuine issue that requires a trial. The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial as set out in s. 16 (4) of the Family Law Rules.

30In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denial, but shall set out in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial as set out in s. 16(4.1) of the Family Law Rules.

31The Court is directed that, if there is no genuine issue requiring a trial of a claim or defence, the Court shall make a final order accordingly as set out in s. 16(6) of the Family Law Rules.

32The Supreme Court of Canada in Hyniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, stated that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows a judge to make the necessary findings of fact, (2) allows a judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

33It is not an option for the court to speculate as to possible evidence the parents may call at trial. To suggest that the Society’s evidence must be tested through cross-examination is not enough. The parents must put their "best evidentiary foot forward" to demonstrate that material facts are in dispute and/or there is an issue of credibility; and thus, summary judgment is precluded (Children’s Aid Society of Hamilton v. A.(M.)).

34The responding party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. (Children’s Aid Society of Ottawa-Carleton v. A. C.).

35The Court is directed that the “genuine issue” must relate to material fact or facts; there must be a full evidentiary record before the court to make a proper analysis; that judgment should only be granted where the facts demonstrate that the children were “in need of protection” and that judgment should only be granted in the clearest of cases.

36In Combined Air Mechanical Services Inc. v Flesch 2011 ONCA 764, 2011 ONCA764 at paragraph 50, the Court of Appeal indicated as follows:

50. In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must asked the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of the trial?

37In Children’s Aid Society of Ottawa v. C. B. 2010 CarswellOnt 9899, a court must weigh the evidence, evaluate the credibility of the deponents, draw reasonable inferences to determine and weed out cases where no genuine issue requiring a trial exist.

38In addition to these principles, in child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (see CAS Ottawa v. C. (M)., 2003 CarswellOnt 9373.)

39On the Status Review Application, there are two factors that must be determined by the court. Firstly, do the children continue to be in need of protection and secondly, what is in the child’s best interests? (Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C. ), 113 D.L.R.(4th) 321(S.C.C.))

40On the first factor, the issue to be determined is whether the previous order made to protect the children continues to be required for the future protection of the children. It is not up to the court on the Status Review Application to review the rightness or wrongness of the original finding in need of protection. (Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C. ) supra)

41With respect to the second factor, Section 37 (3) of the CFSA sets out the circumstances, the court must consider when making a determination as to what is in the best interests of a child:

(1) The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

(2) The child’s physical, mental and emotional level of development.

(3) The child’s cultural background.

(4) The religious faith, if any, in which the child is being raised.

(5) The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

(6) The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

(7) The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

(8) 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.

(9) The child’s views and wishes, if they can be reasonably ascertained.

(10) The effects on the child of delay in the disposition of the case.

(11) 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.

(12) The degree of risk, if any, that justified the finding that the child is in need of protection.

42The best interests of children include a consideration of the time requirements in the CFSA, in a resolution that does not prolong the uncertainty of a child’s future (F.B. v. S.G. (2001), 16 R.F.L. (5th) 237 (Ont. S.C.).

Evidence at the motion for summary judgment

43The Society relies on the five affidavits being two child protection workers (“CPW”); a child and youth worker (“CYC”), whose primary role has been to supervise access, a kinship worker and an affidavit from the maternal grandmother.

44The mother has filed one affidavit where she replies to one of the CPW affidavits, describes her current situation and sets out her plan of care.

Position of the Society

45The Society submits that there is no genuine issue for trial set out herein as follows:

(a) The children have suffered physical injuries in the care of their parents. Despite the charge of criminal negligence causing bodily harm being dismissed at the preliminary hearing, the mother still faces a charge of failing to provide the necessities of life;

(b) The mother was a victim of domestic violence by the father but continues to be involved with him and has stated that she has no intention of ending the relationship;

(c) Further, the mother failed to abide by a noncontact order with the father;

(d) The concerns about the mother’s lack of supervision of the children, neglect of the children’s basic needs, substance abuse and parental capacity continue to exist;

(e) The plan proposed by the mother is not detailed and uncertain while the plan of the grandparents is certain, stable, provides continuity and the children are thriving;

(f) It is important for young children to establish permanency;

(g) The mother did not exercise access from January through up to and including September 13, 2015;

(h) The mother failed to engage in services such as counselling and courses on child development;

(i) The children have done extremely well in the care of the maternal grandparents and that the children’s emotional developmental needs have been met;

(j) The children have strong emotional ties between them and the children need a stable home which addresses all their needs including the special needs of the children; and

(k) The placement of the children with the maternal grandparents is the least disruptive plan.

46With respect to access, the Society submits that as a result of the allegations of historical sexual assault made by the mother in March 2015 against her father, which were not verified by the Society or the police, the relationship between the maternal grandparents and their daughter is very tense. All parties agree that if there is to be an access order, it is to be specific as to frequency and duration.

47The grandparents propose that all access be at the Supervised Access Program with Family Services Ottawa. During the course of the motion, I requested that counsel for the maternal grandparents provide me with information as to what is available at the Supervised Access Program. By letter dated December 13, 2016, counsel advised that the Supervised Access Program is limited to bi-weekly access visits for a period of two hours and that the visits are scheduled on weekends. Further, a court order for additional access visit would not supersede the limitation of the agency.

48The Society takes no position on access.

Mother’s position

49The mother makes two submissions. The first submission is that the initial apprehension on September 19, 2014 was based on the parties being homeless, the family sleeping in a van and the van smelling of marijuana. Once the children were seen by Dr. Ward, the allegations were that the children had suffered physical injuries, were not being properly fed and were not meeting their developmental milestones.

50The mother states that at the preliminary hearing, held in the summer 2016, regarding the criminal charges laid on March 25, 2015, Dr. Ward admitted that the only treatment that she recommended for the children was that they receive a daily multi-vitamin and that the children were not injured, delayed or suffering. The Society and maternal grandparents do not dispute the mother’s statement.

51The mother argues that since Dr. Ward has not filed an affidavit or a medical report. The mother is prevented from testing the doctor’s findings by cross-examination. The evidence of the child protection worker are hearsay and inadmissible.

52The second argument advanced by the mother is that once she was charged on March 25, 2015, she could only have access to the children at the discretion of the Society. However, in the summer 2016, at a preliminary hearing with respect to the two charges, the charge of criminal negligence causing bodily injuries to the children was dismissed and her bail conditions have been changed permitting her to have access to the children pursuant to the consent of the Society or a Family Court order. The mother submits that this is a significant material change from the original bail conditions that were imposed upon her as a result of the criminal charges.

53Now, she submits, that there is no impediment for a court to order the children returned to her care despite the fact that her trial for failing to provide the necessities of life is to be heard in October 2017. The mother argues that this change in her bail conditions permitting her to present a plan is a genuine fact that must be decided at trial.

Analysis

54On a Status Review Application, the court may, in the best interests of the child, vary or terminate the original order, order the original order to terminate in a specified future date, make further order orders under section 57 or make an order under section 57.1(s. 65 CFSA).

55To be able to make the factual determinations required in this proceeding, I must do so on admissible evidence. The Society has not provided a medical report prepared by Dr. Ward but relies on the affidavit of the child protection worker who repeats the findings made by Dr. Ward. The evidence of Dr. Ward was a significant factor in the laying of the criminal charges and subsequently the child protection application by the Society in January 2015.

56The mother states in her affidavit dated November 30, 2016 at paragraph 11, 12 and 13 the following:

11. The girls were apprehended and the Applicant Society claimed that the girls were not properly fed, that R. did not appear to be meeting her developmental milestones and that they had bruising. The fact is that my girls were healthy, they were not delayed in any way caused by me or their father and at my Preliminary Hearing Dr. Ward of CHEO admitted that the only treatment we were recommended was a daily multi-vitamin.

12. I want a trial in this trial protection proceeding. I want an opportunity to demonstrate that medical information relied on to remove my children has been put into context after cross-examination at my Preliminary Hearing and that the medical letters and opinions of the Society workers as to what the doctors apparently stated is not correct.

13. In paragraph 21 Ms. Chabot fails to mention that S. and I were both charged with the very serious Criminal Negligence Causing Bodily offense. She also fails to mention that we were successful at the Preliminary Hearing in having that charge dismissed and it was largely due to Dr. Ward admitting that the children were not injured, delayed or suffering.

57The mother relies on The Children’s Aid Society of Ottawa v. J. B., 2016 ONSC 2757, 2016 O. J. No. 2532 where Justice V.J. MacKinnon made the following comments which are instructive in this matter:

13. The starting point in addressing the admissibility of hearsay evidence is that it is excluded, unless the proponent of the evidence satisfies the court the two branches of necessity and reliability have met on a threshold basis.

14. In my view, the FLRs do not supplant the starting point of the exclusionary common-law rule that here see is inadmissible, but can be admitted if the twin requirements of necessity and reliability are met.

15. I agree with Justice Sherr were he stated in Children’s aid Society of Toronto small v. B. B., 2012 ONCJ 646:

16. My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chances of success. It is not an invitation to water down the rules of evidence in order to make that determination.

58Upon a review of the affidavit of the two child protection workers, their affidavits contain observations made by themselves, discussions that they had with the parents, child and youth counsellors, kinship workers and the maternal grandparents. Many of the statements provide a timeline for the evolution of the involvement of the Society and the interaction with the parents by the Society.

59However, in the affidavit of CPW Anne-Marie Chabot, she repeats observations and findings regarding the children made by Dr. Ward at CHEO on September 19, 2014 and on subsequent dates. This evidence is hearsay and is presumptively inadmissible. The Society’s position was that this evidence was presented in the protection application and was part of the basis of the final order of Justice Doyle on October 20, 2015 and consequently there is no necessity for the Society to present medical evidence in the form of a report or affidavit.

60One of the issues that I must decide is whether the children continue to be in need of protection. As part of the evidence in the initial order of Justice Doyle, the Society relied on the medical findings of Dr. Ward. However, there appears to be a change in her evidence based on the un-contradicted statements of the mother as to what transpired at the preliminary hearing.

61I find that there is a genuine issue as to whether the children remain in need of protection. I find that I do not have the full evidentiary record required to make a proper analysis on a motion for summary judgment. The issues as to the children’s initial physical injuries, lack of proper care and developmental issues are material facts in dispute as is the apparent contradiction in the evidence of Dr. Ward.

62Further, I note that the evidence from the CYC supervisor is that the access is very positive and specifically she mentions the following:

(a) the mother attends for the visits early and consistently;

(b) she continues to focus all of her attention on the children during the access visits and provide all of the children with attention over the period of time;

(c) she is able to meet her daughter’s needs before her own needs are met;

(d) she has worked well on goals set by the CYC workers and managed her visits with the three young children very well;

(e) she meets her goals on a regular basis and is open to reminders;

(f) she has celebrated birthday parties for all three children, Christmas and Easter at the offices of the Society. She has not let the physical environment take away from the celebrations and experiences with her children;

(g) she is very affectionate with her children, provides them with all opportunities for affection at the beginning of the visits, throughout the visit and at the end of the visit;

(h) she attempts to provide all the children with opportunities of attention and she tries to spend time with each of the girls on a one-to-one basis;

(i) she is positive with the children, offers them independent learning opportunities, provides them with positive verbal praise when they put their best effort forth and when they are successful with certain tasks; and

(j) she has demonstrated an ability to meet the child’s basic and emotional needs when she is supported any fully controlled environment.

63The only negative comments is that she is continually encouraged to follow through with expectations and limits for the girls, at times she appears distracted with one child and does not appear to fully supervise the other two children and was advised about bringing too much food to every visit.

64I do not find that the Society has met its evidentiary basis that there is no genuine issue for trial in this proceeding. The summary judgment procedure is properly applied to those cases with no chance of success. I do not find that the mother has no chance of success in this proceeding.

Disposition

65The Society’s motion for summary judgment is dismissed.

Mr. Justice Mark Shelston Released: January 5, 2017

COURT FILE NO.: FC-15-53 DATE: January 5, 2017

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF E.S., born […], 2011; J.S. born […], 2012, and R.S., born […], 2013