Court File and Parties

COURT FILE NO.: FS-15-332-00AP DATE: 2017 Apr 26

ONTARIO

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 A.P.E. born […], 2011.

B E T W E E N:

Highland Shores Children’s Aid Society F. Christopher Rous, for the Applicant Society (Respondent on Appeal) Applicant

- and -

C.S.D. (mother) T.M.E. (father) C.J.D. (maternal grandmother) Respondents

Mark A. Bumstead, for the Respondent Mother (Appellant) Noted in default Noted in default

HEARD at Belleville: April 12, 2017

On Appeal from the Order of the Honourable Mr. Justice D. K. Kirkland, Ontario Court of Justice, at Belleville, made August 12, 2015

TRANMER J.

REASONS FOR DECISION

[1] Following the hearing of a Summary Judgment motion brought by the CAS on August 12, 2015, the learned justice ordered Crown wardship for the purpose of adoption of the child A.P.E., born […], 2011.

[2] The child's mother born […], 1988, is the appellant.

[3] On February 17, 2015, on consent, the court found that the child was in need of protection.

[4] The child was apprehended on about May 14, 2014. She has been with the same foster parents since that time. The evidence now is that those foster parents will not be the adoptive parents. The motion judge was aware that the foster family was not necessarily going to be the adoptive family. The CAS has since the motion identified a couple who are interested in adopting A.P.E.. This family has spent some time with the child and their daughter, who is two years older than A.P.E., are friends as a result of such contact. The family lives in another jurisdiction which is not identified in these proceedings.

[5] The appellant has not had access to her daughter since August 18, 2015, as a result of the decision of the CAS to deny her access.

[6] On consent, new evidence was advanced on this appeal by the parties. The mother swears that she has corrected the deficiencies in her parenting that were referenced by the learned motions judge in his reasons, “a child's right to security and permanency is not to be held in abeyance while her parent engages in a period of experimentation to ameliorate existing deficiencies”. She has worked with Three Oaks to understand the warning signs of an abusive partner and how to avoid such relationships entirely, romantic or otherwise. She is no longer involved in the previous relationships that were problematic. She swears that she is involved in a relationship that is safe with no incidents of violence. This gentleman does not have a criminal record or a negative history with the CAS. He works full-time, flat roofing at a higher pay rate. He does not use drugs and drinks socially once or twice a month. Since the trial, she has been charged and convicted of mischief for which she received probation. She is staying with this gentleman while she looks for an apartment. She swears that she has not used drugs since March 2015 and drinks socially only one to two times per month. She has limited her social circle to her boyfriend and positive friends. She has a family doctor and is taking medicine for anxiety and depression. Her mother, who had withdrawn a support plan at the time of the motion, has filed a plan of care, offering the mother and child the opportunity to live with her. She lives with a man who is a problem for the CAS. She confirms that the mother has attended various programs and has learned appropriate social behavior and how to function in her personal life as well. She would support her daughter with respect to any programming that was required.

[7] The mother of the child proposes an alternative to living with her mother, namely supervision by her mother and by the CAS.

[8] New evidence from the CAS was also advanced. The worker says that the mother did not seek access until December 14, 2016. Because of the gap of time since the mother had last seen the child, the CAS denied access. The CAS regrets that there has been a frequent change in workers assigned to the child, which is preferred had not happened. They say the child has thrived. She was initially assessed to have significant delays in speech and socialization skills. They say that the child has received assessment and treatment through the Quinte children's treatment center and her family doctor and that the concerns have completely dissipated. The child has started school and has made great strides in her socialization and academic skills. The child has expressed significant attachment to her foster parents and has expressed that she does not want to move. Although the CAS identified the child's father, T.M.E., as being involved in domestic abuse of the mother, and the original CAS material indicated that the father did not have any access or express any interest in having any role in his daughter's life, the CAS has maintained access of the child with the paternal grandmother.

[9] There has been no access for the maternal grandmother.

[10] Although counsel for the CAS submits that it engages in “concurrent planning”, for example, in the face of the Order of Justice Deluzio to consider kin placement, it went ahead with adoptive planning, there has been no further investigation by the CAS of the mother or the maternal grandmother, in the almost two years since the Order being appealed from, for placement purposes, but rather, exclusively, a focus on finding new adoptive parents in the face of the current foster parents’ unwillingness to go ahead in that way.

RELEVANT LAW

Fresh evidence

[11] In the case of Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, the Supreme Court of Canada sets out the importance of fresh evidence on appeal, such as this, citing Genereux v. Catholic Children’s Aid Society of Metropolitan Toronto, (1985) 53 O.R. (2d) 163 (Ont. C.A.). The court states that receiving fresh evidence on appeal is “better suited to the child centered focus of the CFSA as it recognizes the importance of having accurate and up-to-date information on children whose fate often hangs on the determination by judges of their best interests….Although it might be more in line with usual procedures for the Court of Appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance”. The court endorses receipt of fresh evidence where it may affect the result of the appeal when considered with the other evidence.

Standard of Review

[12] The parties disagree as to the standard of review in this case.

[13] The appellant submits that it is on the basis of correctness because it submits that the learned motions judge erred in principle in his application of the test for summary judgment.

[14] The respondent CAS submits that the standard is one of palpable and overriding error.

[15] Hryniak v. Mauldin, [2014] 1 S.C.R. 87, para. 66, provides that on a motion for summary judgment, “the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure… If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under the Rule”.

[16] “Where the motion judge applies an incorrect principle of law or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard”. Para. 84.

[17] In this case, the learned motion judge's reasons disclose that he considered only the first prong of the test, concluding that there was no genuine issue for trial, without resorting to the expanded powers provided in the second prong of the test.

[18] In Hryniak, the Supreme Court of Canada held, para. 81, “absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under (the Rule), and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, the findings of mixed fact and law should not be overturned absent palpable and overriding error”.

[19] Accordingly in this case, the motion judge having not exercised the expanded powers and for the reasons that I set out below I find that the learned justice erred in principle, the standard of review must be correctness.

Analysis

[20] On the motion, the CAS filed the affidavit of the worker that consisted of 306 paragraphs and 188 pages of Exhibits. The appellant’s affidavit consisted of 1685 paragraphs plus 100 pages of exhibits.

[21] The reasons for the order deal very briefly, in 2 pages, with whether the mother was late or absent from access visits, whether she was bored and non-engaging on the final access visit, cognitive limitations, and domestic violence in the mother's past.

[22] The appellant sets out in her factum, paras. 31 to 36, issues of fact that the learned motions judge did not specifically address in his reasons, which includes a situation where the caseworker’s evidence contradicts itself. He did not address specifically the issue about the CAS “rule” for attendance by the mother at visits.

[23] As an aside, but relevant, the material contains the caseworker's notes of the final access visit between the mother and her daughter. These include editorial comment. The time has come, if not passed, for the CAS to consider videotaping these sorts of visits, unobtrusively, with notice to the parties, so that when necessary, a court can reach its own conclusions on the nature of the interaction between mother and child. A child’s future, with or without her mother, is significantly impacted by a worker’s interpretation of such interaction.

[24] The cases cited by the appellant cite the appropriate law to the effect that summary judgment should be granted in the clearest of cases and with extreme caution. The motions judge must exercise his or her discretion, with a high degree of caution only on the basis of compelling evidence and only after careful examination of possible alternative remedies. It must be plain and obvious that the mother’s case cannot succeed. The burden on the CAS in advancing its motion is probably higher than balance of probabilities. CAS Niagara v. DP, Quinn, J.

[25] In his reasons, the learned motions judge did not specifically consider the steps taken by the mother to improve her ability to parent her daughter as set out in particular at paragraph 1600 and onward in her original affidavit.

[26] With the greatest of respect, I must conclude on the basis of the reasons, that the learned motions judge did not engage the necessary analysis and apply the lawful test.

[27] Furthermore, as Justice Quinn points out, the court must consider what efforts the society or another agency or person has made to assist the child. The court must consider whether there are alternatives that are less disruptive to the child that would be adequate to protect the child. The court must also consider whether it is possible to place the child with a relative, neighbor or other member of the child's community or extended family. The learned motions judge, in his reasons, did not specifically advert to an alternative of care by the mother in conjunction with the grandmother and CAS supervision. With the greatest of respect, this failure in my view constitutes an error in principle.

DECISION

[28] Based on the two errors in principle that I have identified above, and in combination with the fresh evidence received by the court, and bearing in mind that the mother has not yet found proper housing for herself and her child, I grant the appeal. The order under appeal is set aside and the matter shall proceed to trial.

[29] I would add that it is shocking in the extreme that this appeal took 20 months before it was heard. Such delay is most unsatisfactory where the future of a young child remains uncertain. I would hope that the trial of this matter can be scheduled for an early date.

[30] As set out in the affidavit of the CAS worker, it is expected that access will be renewed immediately. Furthermore, it would seem most appropriate that the CAS engage in concurrent planning, and investigate alternatives to Crown wardship, including assessing and assisting this mother with the necessary resources.

The Honourable Mr. Justice G. Tranmer

Released: April 26, 2017

COURT FILE NO.: FS-15-332-00AP DATE: 2017 Apr 26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Highland Shores Children’s Aid Society Applicant - AND – C.S.D (mother) T.M.E. (father) – noted in default C.J.D. (maternal grandmother) – noted in default Respondents

Appeal from Order granting Summary Judgment for Crown Wardship Tranmer J.

Released: April 26, 2017