Court File and Parties

COURT FILE NO.: FC-11-1690 DATE: 2017/06/26 SUPERIOR COURT OF JUSTICE – ONTARIO

In the matter of the Child and Family Services Act

RE: THE CHILDREN’S AID SOCIETY OF OTTAWA, Applicant AND: S.H. and M.B., Respondents

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Marie-Josée Ranger, counsel, for the Society Sandra Jones, counsel for the respondent father Pauline El-Tenn, counsel for the respondent mother

HEARD: June 22, 2017

Note: Section 45 (8) of the Child and Family Services Act prohibits any person from publishing or making public information that has the effect of identifying a child who is the subject of the proceeding or the child’s foster parent or member of the child’s family.

Endorsement

[1] This is a motion for summary judgment brought by the Society under Rule 16 of the Family Law Rules. This is in the context of an Amended Status Review Application relating to the child, H.L. who is currently 3 years, 8 months old. The matter is scheduled for trial in September of 2017 but the Society submits that a trial is not necessary and there is sufficient evidence in the record to decide the matter.

[2] For the reasons that follow, I agree that summary judgment is appropriate. The Society seeks a final order granting custody to the kin with whom the child is currently residing. The Society proposes an order that the father have access in the discretion of the custodial kin but leave open the exact nature of the mother’s access until after a mediation. This disposition is supported by the respondent father and strongly resisted by the respondent mother. She wishes to argue that the child be returned to her care.

The nature of summary judgment under the Family Law Rules

[3] Before turning to the merits and the evidence, it is important to emphasize that summary judgment is not intended as a means to deprive parties of justice. To the contrary, it is intended as a means to achieve justice in a more efficient manner if a fair and just decision can be made by the court without putting the parties to the expense, delay and hardship of a full blown traditional trial. As we are told by the Supreme Court of Canada, “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.” Further, it is the law in Canada that simplified and proportionate procedures for adjudication can be fair and just and are no less legitimate than the conventional trial. See Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at paras. 4, 27.

[4] Consistent with this approach, Rule 16 of the Family Law Rules requires the court to grant a final order whenever the motion materials demonstrate that there is no genuine issue requiring a trial of a claim or a defence. There will be no need for a trial when the facts can be determined by the evidence in the motion materials. A trial will only be useful if the fact finding exercise cannot fairly be accomplished without the judge having the opportunity to hear the witnesses give oral evidence and to observe how that evidence withstands cross examination within the structure of a classic trial.

[5] To enhance the capacity of judges to grant summary judgment, Rule 16 was amended to articulate that the judge sitting in family court has the same enhanced fact finding powers that were previously adopted under Rule 20 of the Rules of Civil Procedure. In particular, the judge hearing a motion under Rule 16 may weigh evidence, make findings of credibility and if necessary may hear oral evidence. This amendment also means that cases such as Catholic Children’s Aid Society v. A.M. and A.A., 2007 ONCJ 743 cited by the mother and which predate the amendment must be read with caution. See para. 10 for example.

[6] I make this point, not because enhanced fact finding powers are needed in this case. I do not believe they are. I make the point simply to reassure the respondent mother that the court has the same capacity to fairly consider her objections to the Society’s position that it would have at trial and that I have given her evidence due consideration. Justice of course does not demand that the court adopt or agree with the position advanced by the respondent but only that she have adequate opportunity to put her position to the court and to introduce her evidence in support of that position. If that can be accomplished on the motion, then the motion judge is in the same position as a trial judge and deferring the decision to a trial is only postponing the inevitable. Delaying the decision is not just to any party. Moreover it extends the period of uncertainty in the life of the child. And it is the best interests, protection and well being of the child which form the primary mandate of the legislation, the Child and Family Services Act, R.S.O. 1990, c. C.11.

[7] It is important to understand that except in limited circumstances where evidence cannot be available for reasons outside the control of the responding party, it is not an adequate response to a summary judgment motion to argue that better evidence may be available when the trial arrives. This approach is either wishful thinking or it ignores the obligation on the responding party set out in Rule 16 (4.1) of the Family Law Rules. That subrule states that the responding party may not rest on mere allegations or denials but must set out in an affidavit or other evidence “specific facts showing that there is no genuine issue for trial”. This principle is often referred to as the need to put your “best foot forwards”. If there is relevant evidence, the time for that evidence is now and not at a hypothetical trial sometime in the future. The court is entitled to assume that the evidence presented on the summary judgment motion is the best evidence the party can muster.

Facts and Analysis

[8] The situation is this. The child has already been found in need of protection. For most of her young life she has been in care starting with the first temporary order in August of 2014. Since that time, the child has been in the care of the Society, a paternal uncle, both parents (for 3 months at the start of last year), her father (under supervision) and for the past 9 months in the current kin placement. The respondent mother has not been in a parental caregiver role and indeed has not had any significant access with the child since April of 2016.

[9] It is clear that various efforts were made to find a meaningful way to keep the respondent involved in a parental role but they were unsuccessful for reasons set out in the evidence. For the better part of a year the child has been in a stable and loving relationship through an identified kin placement and she appears to be flourishing. On the other hand the mother has not been in a position to exercise access much less return to a custodial role. There is no possibility that the child can be returned to her care today and very little prospect a return to full custody would be entertained in September even if delaying until then in the hope that with time the evidence may improve is regarded as a legitimate reason to withhold judgment. It is not. See Children’s Aid Society of Hamilton v. M.A., [2007] O.J. No. 2454 (SCJ), at paras. 62-65.

[10] The respondent has been unable to fulfill her parental role in large part due to her ongoing battle with addiction but also due to lack of insight, lack of realism and lack of recognition of the negative effects of alcohol abuse, instability and separation on the child. These are reflected in her years of failed attempts to live alcohol free and her demonstrable lack of parenting capacity during most of the child’s life. This is set out in detail in the affidavits and in the Family Court Clinic Assessment ordered by Justice Doyle. That report together with its recommendations is before the court. See Child and Family Services Act, R.S.O. 1990, c. C.11, Subsection 54 (6). There is nothing in the affidavit evidence tendered on behalf of the respondent mother which casts any doubt on the findings or recommendations in the report. She has taken no steps that would be necessary if she wished to challenge the report through expert evidence or otherwise. Nowhere in her evidence does she suggest that the psychologist who conducted the assessment was in error in his observations, descriptions, findings or recommendations at the time the report was written. The findings in the report are supported by the affidavit evidence and by the court record reflecting the orders made in the previous four proceedings leading up to this one.

[11] What the respondent has put before the court is new evidence. That evidence discloses that earlier this year she enrolled in a three month alcohol rehabilitation program in Windsor. She has just successfully completed it and returned to Ottawa. She indicates that she has re-established contact with her three older daughters and she expresses her intention to remain sober with the support of AA and local recovery resources here in Ottawa.

[12] Of course the respondent should be commended for taking these steps towards sobriety and for expressing a resolve to overcome her addiction. This is absolutely necessary if she is to play any kind of meaningful role in the child’s life. But this evidence is far too little to persuade a court to place the child back in her care. A trial will not change that. The steps she is now taking can at best be viewed as preconditions to regular access and reintegration into the life of the child.

[13] As the respondent has no doubt been counselled during her rehabilitation program, addiction is a complex disease that affects brain function and behaviour. There is no “cure” for addiction and no single treatment is right for everyone. Effective treatment ordinarily requires long term sustained effort using a variety of strategies which must be reviewed and adjusted over time. She will no doubt be familiar with the directive to build upon hard won sobriety day by day. Every journey starts with the first step. If she is successful in her ambition to reform her life then she may manage to play an important parental role in the future. Sadly, however, no matter how much the court might will her to be successful, the court is not in the business of gambling or speculating about the best interests of a child.

[14] The evidence before the court fully supports a custody order in favour of the current care giver. The proposed order provides for ongoing involvement of the father and the mother but postpones determination of the precise role of the mother until after mediation. Deferring a decision on the nature of access will allow her to show she can sustain the effort and to devise an access regime with appropriate safeguards.

[15] I am entitled to assume that on a summary judgment motion, the responding party has put her best foot forwards and presented the court with all of the evidence she has available. That evidence is insufficient to resist the order sought by the Society even if I give it as much weight as possible. The Society and the care giver recognize the importance of a relationship between the child and her natural parents and in appropriate circumstances they are prepared to ensure regular access between the child and the respondent mother. The proposed order leaves open that possibility as well as the possibility of returning to court if an acceptable access regime cannot be agreed upon.

Decision

[16] In conclusion summary judgment is appropriate. There will be a final order granting custody to the current kin on the terms proposed by the Society.

[17] I have avoided using the names of the parties in these reasons to preserve the anonymity and privacy of the child. Of course the formal order will include the necessary details.

Mr. Justice Calum MacLeod Date: June 26, 2017