Court File and Parties

Court File No.: C253/16-01 Date: April 6, 2017 Superior Court of Justice – Ontario Family Court

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

Re: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant And: S.D.1, N.C. and S.D.2, respondents

Before: Henderson J.

Counsel: Sandra E. Welch, for the Society Leonard G. Reich, for S.D.1 Sharon Hassan, for N.C. Bayly Guslits, for S.D.2

Heard: March 10, 2017

Endorsement

[1] This matter was argued as a motion for summary judgment. On the day the motion was heard, the parties consented to an order pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) that the parents share joint custody of their daughter, ED-C, born in […] 2014. They further agreed that the child shall reside in the primary care of the father, with specified access to the mother (“SD1”), as set out in the mother’s factum at paragraph 64. An order shall therefore issue in accordance with the consent.

[2] The mother’s cousin (“SD2”) did not consent to a finding of a child in need of protection. Nevertheless, I found at the time that there was overwhelming evidence of such a finding such that there was no genuine issue for trial for the purposes of R. 16 of the Family Law Rules, O. Reg. 114/99. I therefore found the child to be in need of protection.

[3] Before proceeding further, I make the statutory findings regarding the child as set out in the application.

[4] The outstanding issues concern SD2’s separate motion for an assessment pursuant to s. 54 of the CFSA and access and, on these issues, I reserved my decision. The child’s parents and the Children's Aid Society of London and Middlesex (the “Society”) take the position there should be no s. 54 assessment nor access to SD2.

[5] I will address first the s. 54 assessment request and then access. Before I proceed, however, some background is required.

[6] At the time of the child’s birth, the mother was 16 years old and the father 18. Both were in high school.

[7] The child was born with a condition called Gastroschisis in which the child’s intestines and stomach were outside her body at birth. She has, as a result, required intensive medical intervention which continues.

[8] Because of the circumstances of the parents, and the child’s medical issues, SD2 assumed care and custody of the child.

[9] Even after the initial release of the child from hospital, she was readmitted several times. However, the doctors became increasingly concerned that the child’s condition was not as SD2 reported. The child was not developing as she should. Her condition became serious enough to prompt the intervention of the Society and the child was apprehended and, on March 3, 2016, placed in the care of the Society.

[10] The child remained in Society care until July 25, 2016 when Mitrow J. ordered that she be moved to the care of the father and his mother, where she has remained.

[11] Since the child has been out of the care of SD2, she has gained weight and many of her health issues have dissipated. She has met her developmental milestones, aside from her speech, which is being addressed.

[12] SD2 currently exercises access supervised at the Society three times per week, for a total of five and a half hours.

[13] Section 54 governs assessments. They are ordered at the discretion of a judge and may be requested by a party in the position of SD2.

[14] The section sets out certain procedural requirements if an order is issued but reference must also be had to Ontario Regulation 25/7 (court ordered assessments) for the requirements that have to be met for the court to exercise its discretion. According to that regulation, the court may order an assessment if the court is satisfied:

1. an assessment is necessary for the determination of the issue; and
2. the evidence sought from an assessment is not otherwise available to the court.

[15] SD2 seeks an assessment to be conducted by either a private psychologist, who she says should be paid by the Society, or by the Child Advocacy and Assessment Program (CAAP) at McMaster University in Hamilton, Ontario. The fee for that report would be paid by OHIP.

[16] She argues that there is insufficient evidence before the court on the issue of access by her. An assessment would provide evidence which would assist the court in determining what, if any, access should occur and provide recommendations for SD2 by way of, for example, programming she might pursue so access terms might be liberalized.

[17] In her factum, SD2 states that the only medical or clinical evidence is from the child’s specialists, not hers. None of those have evaluated, assessed or treated her. She vehemently opposes their allegations against her. In this context, SD2 believes a s. 54 assessment is both necessary and the evidence is simply not available.

[18] I am not convinced a s. 54 assessment should be ordered for the following reasons:

1. Assessments are intrusive, costly and time-consuming. Courts have to be ever mindful of the timelines set out in the CFSA and the Family Law Rules. These reports are also expensive and, at a certain level, a cost/benefit analysis must be undertaken to determine whether the expenditure of money and time is proportional to any benefits obtained. One must keep in mind that the only issue before the court is access by a non-parent party (I do acknowledge her role as custodial caretaker for two years). I am not convinced that the report can be completed in a timely fashion in view of the fact the matter already extends beyond the time limit in s. 70 of the CFSA.

2. In the context of Ontario Regulation 25/7, I do not find the assessment either necessary or that the evidence otherwise is unavailable. In the evidence before the court now, there is abundant, consistent, independent and probative evidence that speaks directly to the issue of access by SD2.

   There are two major sources of evidence that are relevant to this issue. First, the Society has an extensive history with SD2 dating back 17 years. The Society’s records disclose prior occurrences with protection concerns focussing on physical harm, verbal abuse and inadequate finances. The records also show an unwillingness to cooperate with the Society.

   There are also the medical records of the child’s medical team. It is important to note that the specialists that comprise the team are those of the child and, hence, independent of all parties. Their only interest is the health of their patient. Further, since the child’s birth, the team has had a close association with the child’s principle caretakers, her parents and SD2. As a result, they are in the best position to draw reasonable inferences from the interaction of these parties and the health of the child. Their recommendations are made only with the long-term health of the child in mind.

   Finally, I do not find on the facts of this case that simply because SD2 “vehemently opposes [the child’s] medical teams’ allegations against her” (paragraph 14 of SD2’s factum), that would be sufficient grounds to order a s. 54 assessment.

   SD2 relies on the decision of Kukurin J. in Children’s Aid Society of Algoma v. C.D., K.D. and N.F., 2000 ONCJ 22873, [2000] O.J. No. 5617 (O.C.J.). In that decision, Kukurin J. gave as one reason for ordering a s. 54 assessment that the evidence regarding a cousin’s ability to parent the subject child was conflicting. One can only surmise that the evidence in that case, though not specified, had to go beyond the Society and mother saying one thing and the cousin denying it.

   In the context of the present case, I was pointed to no medical evidence which, even on a peripheral basis, challenged the conclusions of the medical team. The fact that SD2 disagrees with their conclusions is not sufficient to order a s. 54 assessment, particularly where the only issue is access by a non-parent.

[19] For these reasons, I decline to order a s. 54 assessment and dismiss SD2’s motion.

[20] The remaining issue concerns SD2’s access to the child. The parents’ position is that SD2 shall have no access. SD2, in her motion, seeks access to the child and an order that the Society provide her with a comprehensive list of expectations that the Society and the child’s medical team would require of SD2 so her access could be unsupervised at some point.

[21] The parents, with the consent of the Society, request my decision be made pursuant to R. 16 of the Family Law Rules, the relevant parts of which read as follows:

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

EVIDENCE REQUIRED

(4) 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.

EVIDENCE OF RESPONDING PARTY

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

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(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.

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise); (b) give directions; and (c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).

(10), (11) Revoked: O. Reg. 69/15, s. 5 (4).

[22] When applying the principles laid out in R. 16, R. 2 remains of considerable importance (McEown v. Parks, 2016 ONSC 6761, Vogelsang J.). Rule 2 reads: “The primary objective of these rules is to enable the court to deal with cases justly.”

[23] The Family Law Rules, in particular R. 16, were amended as of May 2, 2015. These amendments were part of the fallout of the Supreme Court of Canada decision in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 interpreting the summary judgment provisions set out in R. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[24] In McEown v. Parks, supra, Vogelsang J. laid out the Supreme Court of Canada’s rationale behind its decision which has been described as a culture shift in the approach to summary judgment and motions. Starting at para. 12, Vogelsang J. wrote:

[12] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court explained how undue, protracted trials, and attendant unnecessary expense and delay, could result in a process disproportionate to the nature of the case and the issues, thereby obviating a fair and just result. The Court discussed the new powers granted in rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and heralded a required “shift in culture.”

[13] As the amendments to r. 16 of the Family Law Rules now effectively mirror the changes to summary judgment under the Rules of Civil Procedure, the statements of Karakatsanis J. represent a call for a significant and general change to determine family law claims at an earlier state, geared to avoid the almost inevitable prolixity, cost and frustration – it is what she says, a wide cultural shift in which we as judges have to participate:

4 In interpreting these provisions, the Ontario Court of Appeal placed too high a premium on the "full appreciation" of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants. In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

5 To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

[25] In addition to the provisions of the Family Law Rules, in a child protection matter, the CFSA also comes into play. Prior to the amendments, Pazaratz J., in Children’s Aid Society of the Niagara Region v. S.C., 2008 ONSC 52309 (Ont. S.C.J.) observed at para. 41:

[41] In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the Child and Family Services Act, and also the best interests of the child. In arriving at such a decision, the court must give paramount consideration to the best interests test which would include, among other factors, as certain a future as possible. (Children’s Aid Society of Algoma v. L.P., 2002 ONSC 22873 page 4).

[26] Section 58 of the CFSA speaks to SD2’s request for access. It provides that any person may apply for access in the context, among others, of a s. 57.1 order. The court may make such an order in the child’s best interests and impose such terms and conditions as appropriate.

[27] Relying on the principles in R. 16 and the case law set out above, I find there is no genuine issue for trial. Further, on the basis of the evidence, I find that it is in the child’s best interests that SD2 shall have no access to her.

[28] SD2 argues that, despite the concerns of the medical team and the Society, she has a close bond with the child. This was recognized by Dr. Erin Peebles, general academic paediatrician and a member of the child’s medical team in a letter to the Society dated February 22, 2016. SD2 also emphasized she exercises frequent supervised access at the Society during which it is conceded there have been no major concerns. She also appears willing to do whatever necessary and required by the Society to be able to move to unsupervised access. The question is whether this is sufficient to order access? The answer is no.

[29] As I stated in my decision on March 10, 2017, with respect to finding the child was in need of protection, the medical evidence is overwhelming that the child was subject to abuse. In the letter from Dr. Peebles above, she listed several concerns regarding the child’s care by SD2. Dr. Peebles, under headings “Unnecessary hospital admissions”, “Inconsistency with caregiver report necessitating invasive medical testing”, “Poor weight gain” and “Negative effects on development”, provided a litany of troubling developments regarding the child’s care.

[30] On the basis of this disclosure, the Society apprehended the child and by court order dated March 3, 2016, she was placed in Society care. Within a matter of two months, Dr. Atkinson, another senior member of the medical team, was able to report to the Society by letter dated May 10, 2016 that the child’s “progress has been remarkable” since she went into care. The empirical medical evidence supported his conclusion and the child has continued her improvement, hitting her developmental milestones to the point where her feeding tube was removed in early March of this year.

[31] I find, based on the medical evidence, that there is a clear causal connection between SD2’s care and the child’s declining health. As early as the end of March 2016, the medical team was noticing improvement in the child’s condition and it was drawing the same conclusion. In a letter dated March 30, 2016, Dr. Peebles wrote:

The dramatic medical response to a change in caregiver, in addition to the previously identified concerns, is characteristic of that seen in children affected by medical child abuse. It would be in [the child’s] best interest to remain in care.

[32] I find that SD2 subjected the child to abuse and it is in that context I have made my decision regarding her request for access.

[33] SD2 says she has a close relationship with the child and would do whatever the Society would ask her to do so she could have unsupervised access.

[34] Not all relationships are healthy. An important point to bear in mind is that SD2’s involvement was never likely going to be permanent. She is not a parent of the child. She stepped in at a time when neither parent was in a position to care for their medically fragile daughter. They were young and immature, lacking the skills to maintain their relationship, let alone commit themselves to the care of their daughter.

[35] Since the child was apprehended, they have both matured. The father’s situation has stabilized living with his mother. The child has continued to thrive under his care with the support of his mother. The mother, for her part, has taken a variety of courses and sought counselling at Vanier Children’s Centre and Merrymount Children’s Centre. The parents have improved their ability to communicate, even though they have no intention of resuming cohabitation.

[36] The mother attributes part of her improvement to her withdrawal from SD2’s influence. In her evidence, she accused SD2, who had been her caregiver since she was very young, of being physically and emotionally abusive. SD2 disputes this.

[37] Despite the conflicting evidence, some facts are uncontroverted. The mother and SD2 are estranged, for whatever reason. The mother feels insecure in SD2’s presence, who she says undermines her confidence. There is some objective evidence that supports the mother’s abuse allegations. I have already referred to the long history of the Society’s involvement with SD2 and her family. Until the mother reached 15, she had changed schools 11 times. The longest time they stayed in one location was 18 months. This was unchallenged and consistent with some of the Society’s historical concerns.

[38] The mother must be given every opportunity and support to enable her to become the best mother she can be to her daughter. I find any continued involvement by SD2 would be to inhibit the mother’s development and, therefore, not be in the child’s best interests.

[39] SD2’s current access schedule itself is a problem. As the child grows older, her needs also change. Now that her medical condition has stabilized, it is important that she be given more opportunity to socialize with other children. She will be starting school soon. Her parents should be given priority as well. Among these demands, the child has ongoing medical appointments. At best, SD2’s time has to be severely curtailed, to a point where it should not be accommodated.

[40] Even if time were arranged, I cannot conceive of any scenario in which supervised access would be recommended. In a letter dated June 22, 2016, Dr. Atkinson described the matter as one of trust:

As a team, we have grave concerns with previous caretaker [SD2] even having unsupervised visits with [the child]. Our experience with [SD2] from 2014 until [the child’s] placement in foster care has been characterized by lies and manipulations.

[41] I find, therefore, on the basis of the evidence before me, there is no genuine issue for trial on the question of SD2’s access. For the reasons given, I find it to be in the child’s best interests that SD2 have no access.

[42] The parties shall have 30 days to make brief submissions regarding costs.

“Justice Paul J. Henderson” Justice Paul J. Henderson Date: April 6, 2017