This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Hamilton
Imran Kamal, for the Applicant
Applicant
- and -
A.T.
Nicole Matthews, for the Respondent Mother
Respondent Mother
M.I.
Respondent Father
Susan Sullivan, for the Respondent Father
HEARD: September 22, 2017
JUDGMENT
THE HONOURABLE MR. JUSTICE A. PAZARATZ
A realistic “Agreed Statement of Facts” could probably pre-empt a lot of CAS summary judgment motions – and lead to focussed trials in which parents might actually have a better shot at keeping their kids.
Clearly, “the state” always has the onus to prove its case. In criminal law. And in child protection.
But sometimes a few admissions – a few candid acknowledgements of where you’re strong and where you’re not – can provide the court with invaluable indicators of credibility and parental insight.
Blanket denials are rarely helpful. Sometimes it’s smarter to pick your battles.
INTRODUCTION
- This was a summary judgment motion under Rule 16 of the Family Law Rules (“the Rules”) brought by the Catholic Children’s Aid Society of Hamilton (“the Society”) seeking the following relief:
a) The female child A.S.I. born […], 2015 shall be made a ward of the Crown and placed in the care of the Society.
b) There shall be no access to the child.
The mother A.T., 34, and the father M.I., 53, both filed responding materials requesting the Society’s motion for summary judgment be dismissed.
The mother has an older child now age 10 who was made a Crown ward without access in 2007. He is not the subject of this application.
The father has a 22 year old daughter, C.I. He had no Society involvement with respect to that first child.
MOTION FOR RECUSAL
At the outset of the hearing, M.I.’s counsel brought an oral motion that I consider recusing myself. The Society said there was no basis for recusal. The mother’s counsel took no position.
The issue related to the fact that on July 4, 2016 this matter came before me as a Settlement Conference in relation to this same child. On that date I received and accepted final minutes of settlement. By coincidence Mr. Kamal and Ms. Matthews were also acting as counsel at that time. The father was represented by a different lawyer.
My very brief typed endorsement on that date simply stated: “Final order per minutes.”
The Society’s position, supported by an affidavit filed by a worker, was that my only involvement on July 4, 2016 was to accept minutes of settlement and that I did not participate in any settlement discussions, nor did I make any comment on the evidence or the credibility of any of the parties.
Ms. Matthews was understandably reluctant to be placed in the position of giving evidence. But she indicated her general recollection was that on July 4, 2016 the parties engaged in extensive settlement discussions – before entering the courtroom – and that ultimately the minutes were simply presented to me, already signed. She did not recall my participating in any settlement discussion.
Ms. Sullivan quite candidly acknowledged that if all I did was accept minutes of settlement, there is no basis for my recusing myself. But she submitted that if I did anything more than accept minutes, then that additional involvement in the context of a settlement conference would require that I consider recusing myself.
In addition to receiving submissions, I considered CAS of Brant v S.C.(K.) M.R. 2010 ONSC 5846 (SCJ) referred to by the father’s counsel. I also considered two related decisions submitted by the Society: Justice Carpenter-Gunn’s June 28, 2016 Reasons for Ruling in CCAS v S.L.B. DC-16-692; and the October 7, 2016 decision of a three-panel Divisional Court in 2016 ONSC 6435 in relation to the same matter.
As counsel are aware – and as is evident from the fact that my July 4, 2016 endorsement was typed – I use a laptop in the courtroom to make all notes and to type endorsements (which are then printed immediately on a printer in the courtroom, for distribution to counsel and parties). I maintain a permanent record of all files I am involved with, and if a file subsequently comes before me again, I add to my prior notes in relation to that file. Accordingly, I maintain a continuous record of any involvement I have had on each file.
While I cannot pretend to have a specific recollection of discussions at the Settlement Conference on July 4, 2016, based on my permanent notes on my laptop, there is no indication that I had any discussion with either counsel or the parties on July 4, 2016, other than accepting the minutes which had already been signed. As counsel will know, even in case management, I make contemporaneous notes of each party’s submissions, and I generally make additional notes for myself, to record what was said and any comments or opinions given.
In making my ruling on the preliminary motion, I advised counsel and the parties that my file on my laptop does not include any record of any discussion in the context of a settlement conference. The space on my notes in which settlement discussions would be summarized is completely blank. That signifies to me that I did not participate in any settlement discussions or conduct a settlement conference – either before or after receiving the minutes of settlement.
On July 4, 2016 – before any settlement conference commenced -- I was simply handed the settlement document which I reviewed and accepted.
In that context I do not believe I “conducted” a Settlement Conference on that occasion – or on any occasion in relation to this file.
I am mindful of the importance of this issue to the parents, and of the importance that there be no reasonable apprehension of bias. I am reluctant to expect the parents to accept my word for what is or isn’t in my notes. But quite apart from my description of my recollection, the evidence of the Society is that I did not conduct a settlement conference; this is not contradicted by Ms. Matthews who was present; and the brevity of the endorsement is entirely consistent with my not having conducted a settlement conference.
The father’s counsel was not actually alleging that I had conducted a Settlement Conference on July 4, 2016. She was simply raising the issue that I had presided over what had been scheduled to be a Settlement Conference, and she had no submissions as to what actually occurred that day.
As a result, I dismissed the oral motion that I recuse myself, on the basis that there can be no reasonable apprehension of bias. Argument of the summary judgment motion then proceeded.
MATERIALS FILED
The Society relied on the following materials:
March 17, 2017 Susan Camara affidavit (Child Protection Worker) (Counsel agreed on which paragraphs I was to read).
June 14, 2017 Notice of Motion
April 5, 2017 Tamm McAllister affidavit (Child Protection Worker)
May 18, 2017 Rachel Henry affidavit (Child Protection Worker)
June 14, 2017 Becca Kadar affidavit (Child Protection Worker)
June 12, 2017 Carron Nisbet affidavit (Family Resource Worker)
May 3, 2017 Cindy Key affidavit (Family Resource Worker)
June 9, 2017 Joel Thompson affidavit (Child Protection Worker)
July 27, 2017 Cindy Key affidavit (Family Resource Worker)
August 2, 2017 Becca Kadar affidavit (Child Protection Worker)
August 28, 2017 Notice of Intention to File Business Records
September 13, 2017 Becca Kadar affidavit (Child Protection Worker)
September 13, 2017 Vanessa Jones affidavit (Child Protection Worker)
September 13, 2017 Cindy Key affidavit (Family Resource Worker)
September 21, 2017 Becca Kadar affidavit (Child Protection Worker)
Society Factum
Society Book of Authorities
The father relied on the following materials:
September 6, 2017 father’s affidavit
September 8, 2017 affidavit of the father’s sister, A.P.
September 8, 2017 affidavit of the father’s sister-in-law, A.I.
September 7, 2017 affidavit of the father’s 22 year old daughter, C.I.
September 20, 2017 affidavit of Carmen Senra (Legal Assistant)
Father’s Factum
Father’s Book of Authorities
The mother filed an affidavit dated September 8, 2017, but no factum or book of authorities.
Unlike the father, the mother did not attend the hearing of the motion. Her lawyer explained:
The mother was aware of the court date. Counsel had no explanation for her failure to attend.
The mother is in a drug rehab program.
She is not advancing a plan to care for A.S.I..
The mother supports the father’s plan.
Whatever happens, the mother wants access to A.S.I..
SUMMARY JUDGMENT FRAMEWORK
Rule 16 allows a party to bring a motion for summary judgment without a trial — on all or part of a claim — after the Respondent has served an Answer or after the time for serving an Answer has expired.
Rule 16(2) specifically allows for summary judgment in child protection proceedings. The onus is on the Society to show there is no genuine issue requiring a trial. The rule does not preclude such a motion in cases in which the Society requests Crown wardship.
Pursuant to Rule 16(4) the party bringing the motion must serve an affidavit, or provide other evidence, that sets out specific facts establishing that there is no genuine issue that requires a trial.
Rule 16(4.1) provides that a responding party must also set out by way of affidavit or other evidence specific facts establishing that there is a genuine issue that requires a trial.
A party answering a motion for summary judgment must put their "best foot forward" in responding to the case for the moving party. When presented with a prima facie case for summary judgment, the onus shifts to the responding party to provide evidence of "specific facts showing that there is a genuine issue for trial". Mere allegations or blanket denials contained in self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial are insufficient to defeat a claim for summary judgment. CAS of Toronto v. T. (K.), 2000 20578 (OCJ); CAS of Haldimand & Norfolk v. V. (S.), 2015 ONCJ 147 (OCJ); Children & Family Services for York Region v. J.V. and N.B., 2017 ONSC 4770 (SCJ).
I am satisfied that the Society materials set out a prima facie case in relation to all relief sought.
Rule 16(6) sets out that the test is whether there is a genuine issue requiring a trial of a claim or defence. The rule is mandatory. If the court concludes that there is no genuine issue requiring a trial, the court shall make a final order accordingly. CAS of Toronto v. R. (T.), 2017 ONCJ 252 (OCJ); Kawartha-Haliburton CAS v. A.K., 2016 ONSC 586 (Divisional Ct).
Rule 16(8) states that if the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. This provision is also mandatory.
On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue requiring a trial. The court must consider the reasonableness of any potential plans, particularly in the context of statutory time frames. CCAS of Hamilton v. T.B., 2013 ONSC 6300 (SCJ).
"No genuine issue requiring a trial" has been equated to "no chance of success", "when the outcome is a foregone conclusion", "plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome other than that sought by the Applicant." CCAS of Toronto v. M. (S.,) 2015 ONCJ 651 (OCJ); CAS of Niagara Region v. C. (S.), 2008 52309 (ON SC), [2008] O.J. No. 3969 (SCJ).
The court must proceed cautiously on a motion for summary judgment and ensure absolute fairness to the parties – particularly since the stakes are so high in child protection proceedings. CAS of Toronto v. M. (P.), 2002 53206 (ON CJ), [2002] O.J. No. 2321 (OCJ); CAS of Toronto v. L.S., 2017 ONCJ 506 (OCJ). But summary judgment is not limited to or granted only in the clearest of cases. CAS of Peel v. P. (I.), 2016 ONCJ 318 (OCJ).
Considerations of due process, statutory requirements and the best interests, protection and well-being of the children will ultimately determine the appropriateness of summary judgment. CAS of Waterloo v. S. (T.,) 1999 14252 (ON CJ), [1999] O.J. No. 5561 (OCJ).
While it is not appropriate to bypass a hearing just to ensure a speedy resolution, where the process is fair and the necessary evidence is available, the best interests of children and their particular needs should be addressed in a timely way. CAS of Waterloo v. S. (R.), 2000 22902 (ON CJ), [2000] O.J. No. 4880 (OCJ).
A summary judgment motion is a tool that can contain and control a child's drift in litigation. A child's need for permanency planning within 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. CAS of Toronto v. H. (R.), 2000 3158 (ON CJ), [2000] O.J. No. 5853 (OCJ); CAS of Ottawa v. I.C., A.D., and A.T., 2016 ONSC 4792 (SCJ).
Delay in the litigation process in child protection matters must be measured from the child's perspective. The court must consider the impact of delay on the best interests of the child. CAS of Toronto v. T. (L.), 2016 ONCA 146 (OCJ); CAS of Ottawa v. F. (L.), 2016 ONSC 4044 (Divisional Ct).
In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that the child faces some better prospect than what existed at the time of the Society's removal of the child from the parent, and that the parent has developed some new ability as a parent. CAS of London & Middlesex v. A. (L.), 1999 20470 (Ont. Gen. Div.); CAS of Toronto v. H. (R.), (supra).
It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of parents are secondary to the best interests of the children. Worthington v. Worthington, 2000 22469 (SCJ).
In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine whether - in that evidence - there are specific facts to support a triable issue in any of the determinations required to be made by the court. CAS of Waterloo v. S. (R.), (supra); CCAS of Hamilton v. T.B., (supra).
The court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial.
In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on — and evaluate — the sufficiency of the evidence as disclosed by the affidavits. CAS of Toronto v. H. (C.), 2004 ONCJ 224 (OCJ); CAS of Hamilton v. R. (C.),2006 7934 (SCJ); Kawartha-Haliburton CAS v. A.K., (supra).
The test on a motion for summary judgment is whether there is a need for a trial to establish the material facts that are necessary to the determination of the application. CAS of Waterloo v C.A.D. & T.S., 2011 ONCA 684 (Ont C.A.). Not every disputed fact or question of credibility gives rise to a genuine issue requiring a trial. The fact must be material. CAS of Toronto v. S.A. and O.E.A., 2013 ONCJ 367 (OCJ).
The court can consider hearsay evidence if it meets the criteria of necessity and reliability. CAS of Hamilton v. N. (M.), 2007 13503 (ON SC), [2007] CarswellOnt 2453 (SCJ). But the rule in relation to hearsay on summary judgment motions is stricter than Rule 14(19) applying to motions generally. Under Rule 16(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. This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and how much weight to give it. Jewish Family & Child Service v. K. (S.), 2015 ONCJ 246 (OCJ).
In light of the serious consequence of a child protection proceeding, the court must be cautious not to rely on flawed evidence. There is no justification for a lower standard of admissibility for evidence on a summary judgment motion. Generally the evidence on a summary judgment motion should be of the same level and quality to meet the same standards as at a trial. CAS of Toronto v. W. (C.J.), 2017 ONCJ 212 (OCJ).
In determining if there is a genuine issue requiring a trial, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. CAS of Dufferin (County) v. R. (J.), 2002 45514 (ON CJ), [2002] O.J. No. 4319 (OCJ); CAS of Toronto v. W. (C.J.), (supra).
As part of the summary judgment analysis, the court must consider the strict guidelines governing the child protection procedure under the Act and also the best interest of the child. In determining whether a genuine issue exists requiring a trial, the court must give paramount consideration to the best interest test which would include, among other factors, as certain a future as possible. CAS of Algoma v. L.P. [2002], OJ No. 2895 (SCJ); Children and Family Services for York Region v. J.V. and N.B., (supra).
On May 2, 2015 the Family Law Rules were amended to broaden the powers of the court on a summary judgment motion:
16(6.1) Powers
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:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
16(6.2) Oral Evidence (Mini-Trial)
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.
- In Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.) the Supreme Court of Canada clarified the court's expanded summary judgment powers:
a. The court should first determine if there is a genuine issue requiring a trial based on the evidence presented, without using the new fact-finding powers. There will be no genuine issue for trial if the summary judgment process provides the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
b. If there appears to be a genuine issue for trial, the court should then determine if the need for a trial can be avoided by using the new powers under Rules 16(6.1) and (6.2).
Accordingly, the first step in dealing with a summary judgment motion is to determine if there is a genuine issue for trial based on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility. CAS of Toronto v. G. (A.), 2015 ONCJ 331 (OCJ).
The expanded powers are not to be employed by the judge hearing the summary judgment motion unless he or she determines, on the evidence before the court, that there is a genuine issue requiring a trial. Hryniak (supra); CAS of Toronto v. S. (L.), 2015 ONCJ 527 (OCJ).
If the expanded powers are utilized, the quality of the evidence on the summary judgment motion need not be equivalent to the evidence at a trial. The evidence on the motion must be sufficient to give the court confidence that a fair resolution of the dispute or issue can be determined without a trial. CAS of Toronto v. G. (O.), [2015] O.J. No. 1124 (OCJ).
The Supreme Court in Hryniak endorsed that if a summary judgment motion is dismissed then the motion judge should, if possible, be seized as the trial judge. This permits the judge to use the insight gained from hearing the summary judgment motion to craft a trial procedure that will resolve the dispute in a way that is sensitive to the complexity and importance of the issue.
The process set out in Hryniak is consistent with Rule 2 of the Family Law Rules which sets out that the primary objective is to enable the court to deal with cases justly. This includes:
a. Ensuring that the procedure is fair to all parties;
b. Saving expense and time;
c. Dealing with the case in ways that are appropriate to its importance and complexity; and
d. Giving appropriate court resources to the case, while taking account of the need to give resources to other cases.
The principles in Hryniak have been applied to summary judgment motions in many child protection cases since the amendments to Rule 16 came into effect. CAS of Toronto v. L.S., (supra).
The court must also consider the strict timelines that govern child protection proceedings, and section 1(1) which sets out that the paramount purpose the Act is to promote the best interests, protection and well-being of children. M. (C.) v. CAS of Waterloo, 2015 ONCA 612 (Ont CA); CAS of Ottawa v. B.H., 2017 ONSC 4799 (Divisional Ct).
Summary judgment rules should be interpreted broadly, to allow proportionate and fair access to affordable, timely and just resolutions. Undue process and protracted trials with unnecessary expense and delay can prevent a fair and just resolution of matters. Summary judgment allows individuals – and perhaps most importantly children -- to move on with their lives.
c) Hryniak v. Mauldin (supra); CCAS of Hamilton v. B.L.S., G.K.J., G.J. & S.D. [2014] O.J. No. 4422 (SCJ).
- I will review the evidence and submissions of the parties, within the context of this summary judgment framework:
THE COMPETING THEMES
The Society’s basic theme:
The mother A.T. has a long-standing, serious and unresolved drug addiction problem which precludes her from safely parenting this young, vulnerable child.
While the father M.I. verbalizes that he understands the risk, and that he will protect A.S.I. from A.T., history has shown that the father lacks the inclination and/or ability to detach from A.T., and to keep A.S.I. safe from A.T.’s inappropriate behaviour and lifestyle.
The Society previously entrusted M.I. with A.S.I. on the strict condition that he ensure that A.T. is kept away from the child – and that he notify the Society if he learns that the mother has relapsed with drug use.
The Society says the father has failed to keep A.T. away, and he has failed to notify the Society when A.T. has relapsed.
As a result, the Society had no alternative but to apprehend A.S.I., who has now been in foster care 18 months – longer than permitted under s.70 of the Act.
The child cannot be returned to the care of A.T. because of her overwhelming unresolved problems with drug addiction.
The child cannot be returned to the care of M.I. because A.T. still appears to be an ongoing presence in his life (and in his residence). Supervision would not provide any reassurance, because A.T. and M.I. have both been dishonest with the Society about their ongoing relationship.
There are no kin options available. M.I.’s sister was recently proposed as having some involvement in his plan, but she has been uncooperative.
The Society has other lesser concerns about M.I.. It readily acknowledges that those lesser concerns could likely be safely addressed by way of a supervision order.
But the Society’s main concern – and the main issue on this case – is whether M.I. can terminate (or regulate) his relationship with A.T.; whether he can protect A.S.I. from the mother; and whether he can be trusted to advise the Society of any problems in a timely and truthful manner.
The child remains in need of protection.
Crown wardship for the purpose of adoption is the least intrusive and only realistic option.
And there should be no access because the relationship between A.S.I. and the parents is not beneficial and meaningful, and they cannot establish that an access order would not impair A.S.I.’s opportunities for adoption.
There is no genuine issue requiring a trial on any issue. Summary judgment should be granted to expedite permanency planning for the child.
The father’s basic theme:
He has always fully appreciated the magnitude of A.T.’s drug problem, and the serious risk it poses for his young daughter.
He has done his best to juggle twin responsibilities. Toward A.T. (helping with her struggle to overcome drug addiction). And toward A.S.I. (keeping her safe).
He has been unfairly criticized with allegations that he has prioritized his sense of obligation to A.T., thereby putting A.S.I. at risk. He insists he has never allowed A.S.I. to be at risk, and he would never jeopardize her safety in the future.
He has always been forthright with the Society. He has always done what they asked, and there is no reason to believe he wouldn’t cooperate and be amenable to supervision in the future.
While he acknowledges that he has had difficulty detaching himself from A.T. – largely because she won’t leave him alone – he is prepared to take decisive steps to keep her away, including seeking a restraining order against her.
He is able to care for his daughter. And he will have help from his family, particularly his sister A.I.
There is a genuine issue for trial on all issues.
The mother’s basic theme:
She knows she has screwed up completely and can’t be trusted with the child.
She has made a commitment to overcoming her drug addiction and is in rehab.
In the meantime, she supports M.I.’s proposal that A.S.I. remain in his care.
Whatever happens, she wants ongoing contact with the child.
There is a genuine issue for trial on all issues.
I will briefly review the evidence:
MAY 2015 FATHER CALLS POLICE
On May 25, 2015, the Hamilton Police Service contacted the Children’s Aid Society of Hamilton (“CAS”). M.I. told them A.T. was pregnant with his child and he expressed concerns about the unborn baby as he felt A.T. was using drugs.
On May 7 and 12, 2015 – while she was pregnant – A.T. tested positive for cocaine and for Levamisole, a veterinary drug for worms.
Between May 2015 and February 2016 A.T. maintained sporadic and inconsistent periods of sobriety.
The Society refers to this initial phase as demonstrating how serious and long-standing A.T.’s drug problems are.
The father emphasizes that from the very beginning, he was the one who sought out assistance, to protect A.S.I. even before she was born.
FEBRUARY 2016 FATHER CALLS SOCIETY
A.S.I. was born […], 2015.
On February 29, 2016 the father contacted Society child protection worker Rachel Henry and advised the mother had relapsed with drugs.
a. He explained that he had stayed at her home overnight and was sleeping on the couch.
b. He said A.T. had snuck out of the apartment in the middle of the night and when she returned he confronted her.
c. He said the mother admitted to having used drugs and having relapsed and that she had been using drugs for the past few weeks.
d. He advised that she left the apartment again and she did not return.
e. M.I. explained that he left the apartment with A.S.I. and he would not be returning there with the child.
f. He explained that he was very disappointed in A.T. and he believed that she needed to attend for drug testing regularly in order to stay sober.
SAFETY PLAN
- The Society created a safety plan with A.T. and M.I.:
a. A.S.I. was to remain with the father. The mother was not to be alone with the child.
b. Any sitter needed to be pre-approved by the Society.
c. A.T. was not to have any access until the worker followed up with the concerns. After that any access would be supervised at the Society and the mother could not see the child elsewhere.
- On March 7, 2016, Child Protection Workers, Rachel Henry, and Jacquie Shoreman, met with both parents at the Society.
a. The concerns regarding A.T.’s relapse were reviewed.
b. M.I. indicated that he and A.T. had reconciled and that he wanted the mother to have contact with A.S.I. once again because the child needed her mother.
c. M.I. was advised that as long as he was supervising A.T.’s contact with A.S.I., that would be appropriate.
d. Shoreman advised both parents that if the Society received any information to indicate that the father was not following the plan, they would no longer consider him abiding by the safety plan.
e. M.I. indicated that in the past he had called to check on A.T. and A.S.I.. He was advised that that was not appropriate.
f. M.I. says as soon as the Society’s expectations were clarified for him, he complied.
g. It was agreed that A.T. would start drug testing twice a week at her doctor’s office again. M.I. would care for A.S.I. in his home and A.T. could not have access unless he was present.
But on March 14, 2016 the Society confirmed that A.T. had not attended for any drug testing.
The Society’s materials set out the following concerns in relation to A.T.’s drug use.
a. A.T. admitted to relapsing on crack cocaine in February of 2017. This is similar to what happened in March 2016 when A.S.I. had to be brought into care. The Society says history keeps repeating itself.
b. A.T. has not engaged in services to address her longstanding substance abuse issues since her relapse in February 2017.
c. There have been positive urine screens confirming that A.T. is still using drugs and A.T. continuously admits to using crack cocaine.
d. A.T.’s now 10 year old son was made a Crown Ward in 2007 primarily due to her substance abuse.
M.I. says he understands A.T.’s addiction issues:
He says he has never seen A.T. smoke crack cocaine or ingest other illegal substances.
But he has seen her under the influence of drugs.
He says he helped (A.T.) get clean from drugs quite some time before she got pregnant with A.S.I..
He has tried to be supportive in her ongoing efforts to get off drugs.
The Society has expressed some concern that M.I. may also have substance abuse issues. But M.I. adamantly denies abusing alcohol or drugs. He says:
The only person who has reported concerns about M.I. having substance abuse issues is A.T..
The evidence is clear that there are issues with A.T.’s credibility and honesty.
When A.T. is mad at M.I. and/or under the influence of crack cocaine, she makes false statements about M.I..
M.I. insists there is nothing about his lifestyle or personal situation which jeopardizes his ability to care for A.S.I..
He says his mental health is stable.
His residence and financial situation are stable.
He had no child welfare involvement in relation to his now 22 year old daughter, C.I. He played a meaningful role in raising her, and they continue to have a close and loving relationship.
He says his only criminal record is for some less serious offences a long time ago -- when he was 27 years old. (The Society counters that he’s had a lot of recent interaction with the police as a result of conflict with A.T..)
MARCH 2016 BABYSITTING
The Society expressed disapproval that in March 2016 M.I. allowed another person to supervise A.T.’s time with the child.
The Society points to this as an indicator of his poor judgment and refusal to follow directions.
M.I. says he thought that since the babysitter had been approved by the Society, it was also all right for that babysitter to monitor A.T.’s contact with A.S.I..
He says as soon as the Society’s clarified that he personally had to monitor A.T.’s contact with A.S.I., he complied.
He emphasizes that he was honest with the Society about what had happened. In his view it was an innocent misunderstanding.
MARCH 2016 APPREHENSION
- The Society’s materials set out the events leading up to A.S.I. being apprehended:
a. On March 15, 2016, a Hamilton police officer contacted a Society After-Hours Emergency Service worker to report a verbal dispute between A.T. and M.I..
b. The officer reported that M.I.’s neighbours had called police to report that A.T. was at his apartment and they could hear arguing.
c. The officer stated that when he arrived A.T. had already left the address. M.I. told police that A.T. had attended at his home around midnight and that they had been arguing over the custody of A.S.I.. A.T. was requesting the child go and stay with her sister.
d. The officer said he observed A.S.I. and that she had been asleep in a playpen in the living room during the argument between A.T. and M.I..
e. The officer noted that the home had a strong smell of cigarette smoke and he suspected that M.I. was smoking inside the home.
f. The officer reported that the bathtub was not working and was full of water.
g. The officer observed women's belongings in the home such as purses; however, there was no one else present in the home.
- On March 15, 2016, Society workers Tamm McAllister and Susan Camara attended at the mother’s home.
a. A.T. admitted that she was high and had just used crack cocaine. She said she was upset about her daughter not being with her and admitted to buying and using a “40 piece” of crack cocaine.
b. A.T. disclosed that ever since her meeting Henry on March 7, 2016 she had been actively using drugs.
c. A.T. reported that she had been attending at M.I.’s home to care for her daughter because M.I. had been unable to look after A.S.I..
d. She admitted that she had been the one who had been caring for her daughter since she was removed from her care.
e. A.T. admitted that she was at M.I.’s home the previous Wednesday to drop off her daughter’s bathtub and other belongings that her daughter would need. She said that there had been a babysitter there but she was the one who had been caring for her daughter by bathing her, feeding her, and doing what was needed.
f. A.T. indicated that she was also taking care of M.I. and that she cleaned his home. She admitted that she had been staying at M.I.’s apartment to care for their daughter.
g. A.T. said the plan was for her to move into the apartment building next to M.I. so she could take care of their daughter on a daily basis while M.I. worked.
- On March 15, 2016 McAllister and Camara attended at M.I.’s apartment.
a. M.I. denied that A.T. had been staying with him to care for A.S.I..
b. M.I. was unable to provide any information regarding the child’s doctor's appointments and medical needs. He had little knowledge of A.S.I.’s development.
c. M.I. acknowledged that he was unfamiliar with many details about A.S.I. because he had only cared for his older daughter for short periods of time and he had not been her sole caregiver.
d. M.I. said the previous Monday, A.T. was pounding on the apartment door because she had the key to his building, but not his apartment door.
e. He said A.T. had been yelling and screaming while pounding on the door so his neighbours had called the police.
f. He said that he told police that A.T. had been bothering him and he asked that she not be allowed around his home.
g. He said that he told her at the door that he did not want her in the home and he did not want contact with her. He said he sent a text to her that day advising her of that.
h. He admitted that he allowed A.T. contact with A.S.I. on March 9, 2016 because she attended the home to bring some of the baby’s things.
i. He admitted that she attended the home on March 10, 2016 when the babysitter was in the home caring for A.S.I..
j. He denied that she had been left alone with the baby. He said his adult daughter C.I. had been a caregiver for A.S.I. on the weekend of March 12, 2016.
- While the Society workers were interviewing the father, a building superintendent attended at the apartment to speak with M.I..
a. When M.I. requested that he return at another time, as he was meeting with the Society, the superintendent came into the apartment and stated he wanted to speak with the Society workers.
b. The superintendent told M.I. that he was returning a $100.00 deposit because they would not be renting an apartment to A.T..
c. The superintendent then provided a paper with notice that A.T. was not allowed on the premises.
d. The superintendent said that on March 10, 2016, between 3:30 a.m. and 4:00 a.m., A.T. was standing in the hallway screaming and yelling.
e. He said that on March 13, 2016, M.I. had a female guest who, was identified as Ms. M., who was stumbling around the building under the influence of something. Ms. M. was also inside the apartment yelling very loudly while caring for A.S.I..
f. The superintendent said that on March 14, 2016, Ms. M. was again under the influence and disturbing other tenants.
g. He said that on March 15, 2016, the police were called because A.T. was screaming from outside of the building and inside of the building. The superintendent informed M.I. that unless this behaviour stopped, he would be evicted as of April 7, 2016.
h. The superintendent informed the Society workers that A.T. had been seen by him and other tenants as the caregiver for the baby and he was not going to lie for M.I..
i. He said A.T. had been alone with the baby and living in the apartment.
j. One of the Society workers said M.I. admitted he had been having a hard time caring for the baby.
A.S.I. was apprehended because the Society concluded the child was unsafe.
M.I.’s lawyer submits the legitimacy of the Society’s decision to apprehend A.S.I. is a triable issue. The father insists A.S.I. was being well cared for, and that apprehension was rash and unwarranted. I disagree that a trial is required on this topic:
I have disregarded the hearsay information reported by the superintendent, as having originated from unnamed other tenants in M.I.’s building.
However, the superintendent’s reports as to his own observations; combined with the acknowledgements by M.I. and (especially) A.T.; combined with the evidence of the workers -- all make it clear that the Society had valid reason to fear for the safety of A.S.I..
M.I. insists that periodically – whenever she is mad at him – A.T. lies to get him in trouble. She fabricates allegations, primarily that he is abusing substances (which he denies).
But M.I.’s own evidence confirms that both before and after the apprehension – as recently as July 2017 – A.T. was regularly attending at his residence. At one point he described it as weekly.
And I am satisfied that A.T. was not only coming around M.I.’s residence – she was permitted to come around A.S.I. and to assume an inappropriate amount of care and responsibility for her.
A.S.I. was also exposed to conflict between the tumultuous couple.
I accept the Society’s evidence that on various occasions M.I. has lied to the Society – sometimes pathetically – when they confronted him with evidence that clearly demonstrated A.T. was attending at his home. (For example, on one occasion a worker spotted a purse on his bed and asked him who it belonged to. M.I. replied “what purse?” pretending that he couldn’t see that there was a purse on the bed. Eventually he admitted there was a purse on the bed and it probably belonged to A.T.)
The Society’s evidence in relation to the circumstances leading up to the apprehension is comprehensive and overwhelming. It is not denied by A.T. in her extremely brief affidavit. M.I.’s explanation is unresponsive to some of the allegations and amounts to a blanket denial.
The Society has established that there is no genuine issue for trial in relation to the following findings which I make:
The Society acted reasonably and appropriately in deciding to apprehend the child in March 2016.
The father had been allowing the mother to inappropriately assume direct responsibility for the care of the child, in circumstances in which he had been advised that this was inappropriate, and in any event he should have known that it was inappropriate.
The father allowed the child to be exposed to an excessive level of conflict between the parties and volatile behaviour by the A.T., at a time when he should reasonably have anticipated that A.T. was likely to behave inappropriately in the presence of the child, to the potential detriment of the child.
I suspect most parents will never accept that judges don’t like granting summary judgment, especially in Crown wardship applications. Sometimes we have to resort to microscopic analysis, hoping to find a genuine issue for trial. But that task isn’t made any easier when parents take a shotgun approach and insist that everything is a triable issue.
I will attempt to focus on the reality of this case, to determine whether any genuine issues exist which require a trial – and if so, how that trial should be structured.
SUBSEQUENT COURT PROCEEDINGS
On March 18, 2016, the Society commenced a Protection Application. This court ordered that the child be placed in the care of the Society with access in the discretion of the Society.
On July 4, 2016, this court made findings pursuant to Minutes of Settlement that the child be found to be in need of protection pursuant to section 37(2)(l); to be of the Roman Catholic faith; and not native. This court also made a Final Order, pursuant to Minutes of Settlement, that the child be made a Society ward for a period of six months with access in the discretion of the Society.
On January 4, 2017, the Society commenced a Status Review Application seeking an Order for Society wardship for a period of six months.
FEBRUARY 2017
February 2017 was an important month with respect to the issues raised on this summary judgment motion.
A.S.I. was still in care.
At that point, the Society was still only requesting Society wardship.
The parents were having access in the discretion of the Society.
A.T.’s access was fully supervised.
On February 6, 2017, M.I. was provided with a letter from the Society outlining the agency’s expectations.
a. The Society says this was an extremely important letter because it specifically confirmed a basic and important requirement: “Should A.T. relapse M.I. will call the Society immediately.”
b. The Society says within weeks of receiving that letter, M.I. failed to comply with these terms he had agreed to.
On February 13, 2017, Justice Lafrenière made a final Order, pursuant to Minutes of Settlement, that child be made a Society ward for a period of six (6) months with access in the discretion of the Society.
The mother A.T. relapsed on crack cocaine a few days after that Final Order was made. The Society says M.I. knew she had relapsed but he concealed the information from the Society – thereby jeopardizing A.S.I.’s safety. Specifically, the Society says:
a. M.I. knew as of Friday February 17, 2017 that A.T. was again using crack cocaine. He eventually revealed to the Society that she had left home and didn’t return until Sunday February 19, 2017.
b. The Society says pursuant to the February 6, 2017 Society letter, the father had an obligation to call the Society and advise them of this development immediately.
c. Instead, the father didn’t call to advise a Society worker until the morning of Tuesday February 21, 2017.
d. As it happens, at the moment the father made the call, the child was already being transported by the Society for a visit with A.T.. Until it received the father’s call, the Society had no reason to suspect that A.T. was on drugs again. Without any reason to suspect she had relapsed, the Society would have dropped the child off for access, and the child’s safety would have been jeopardized.
e. The Society says that fortunately it received word about the relapse just in time to prevent the visit. Just in time to avert potential disaster.
- The father insists he did what he was supposed to do.
a. He says he texted society worker Cindy Key on Monday February 21, 2017 – which was Family Day, a statutory holiday.
b. But the Society says Cindy Key was not M.I.’s worker. The father had never exchanged texts with Cindy Key on any prior occasion. Cindy Key has no record of ever having received such a text. And even though the father’s affidavit materials included many attachments, he provided no proof of any such text ever having been sent.
The father says he acted reasonably and in good faith by calling his worker on Tuesday morning.
It was a holiday weekend.
The Society office was closed Monday.
He learned of the relapse at the beginning of the weekend, and he called the Society on the morning of the next business day.
He said it was never explained to him that he should call an after-hours emergency number, or that he should call his worker on her cell phone. He was given no clear instructions on how he was to get in touch with the Society.
The Society says M.I. only reported A.T.’s relapse on the Tuesday because he’d had contact with the police over the weekend concerning A.T..
1. They
say he only called his worker because police told him they were
going to advise the Society about A.T.’s relapse. At that point M.I.
knew he’d look bad if he didn’t call, because the Society was going to
find out anyway.
2. M.I.
says that’s not true. He called the Society because he had undertaken to
do so. He wasn’t thinking about whether police were going to tell the
Society. He was being forthright, not strategic.
- The Society says by waiting until Tuesday to report A.T. was using drugs again, M.I. put the child at great risk because he knew A.T. was supposed to have a visit that same day.
1. The
father says the risk is being overstated. A.T.’s visit was going to take
place at a supervised facility, so the mother was never going to be alone
with A.S.I..
2. But
the Society says if A.T. had been high on drugs – and if the visit
supervisor had no reason to suspect it -- an accident or injury to the
young child could have happened in a split second.
- The significance of this Family Day weekend issue cannot be overstated.
1. Soon
afterward, on April 12, 2017 the Society commenced an Early Status Review
Application seeking an Order for Crown wardship without access.
2. And in
this summary judgment motion the Society has cited the father’s belated
Tuesday morning call as an important indicator that he is unreliable; he
cannot be entrusted to protect A.S.I. from A.T.; and he cannot be trusted
to be honest and report problems in a timely way.
- The factual determinations about what the father did or didn’t do that weekend; when he took action; and what motivated him – all of those factual determinations are potentially an important part of the overall narrative which will determine the disposition of this case. The determination of A.S.I.’s life.
1. The
Society says the Family Day weekend incident is a powerful example of why
M.I. can’t be entrusted to be candid or report problems in the future.
2. But the
evidence is clear that on a number of other occasions – as far back as
A.T.’s pregnancy – M.I. took the initiative and reported concerns about
A.T. and about A.S.I.’s well-being. At times he sought out help even
before he was under any specific instruction or legal obligation to do
so.
3. The
Society’s evidence in relation to Family Day weekend is quite strong.
Logical. Consistent. And concerning.
4. M.I.’s
evidence about Family Day is less satisfactory. In its best light, his
evidence provides a reminder of A.T.’s serious problems, and his ongoing
struggle to deal with them.
5. But
overall, the evidence suggests at times M.I. has been dishonest. At
times he has been quite honest.
6. At times
he has shown poor judgment in relation to A.S.I. and keeping her
protected from A.T.. At times he has shown initiative and insight.
- In the circumstances, I find that there is a genuine issue requiring a trial with respect to:
1. Whether
M.I. recognizes and fully appreciates the danger to A.S.I. posed by
A.T..
2. Whether
M.I. can be entrusted to consistently and reliably report or disclose to
the Society problems or issues concerning A.T..
3. Whether
M.I. can protect A.S.I. from the danger posed by A.T. (and in particular
her drug addiction).
- For clarity, I am not making a finding in favour of M.I. on any of these issues. But I am not satisfied that the Society has established that there is no genuine issue requiring a trial with respect to certain specific issues. As noted by Wildman, J. in CAS of Simcoe v. T.D. 2012 ONSC 6737, [2012] O.J. No. 5780 (SCJ): “Even if it is unlikely that a parent will be successful at trial, summary judgment for Crown wardship should not be granted when the parent has raised a triable issue, which, if resolved in the parent’s favour, could result in any order other than Crown wardship without access”.
MOTHER’S ACCESS
- The Society’s materials set out ongoing concerns about the mother’s access:
a. A.T.’s access was suspended due to safety concerns surrounding her care of the child and her continued use of substances.
b. For example, on May 4, 2017 A.T. was observed to be under the influence of drugs during her access visit. She put her fingers on A.S.I.’s eye and pressed roughly.
c. On June 9, 2017, Society worker Becca Kadar told A.T. that she could not be around A.S.I. the way she had been, that it was negatively impacting upon A.S.I. and the Society could not continue to allow it to occur.
d. The Society has clearly advised A.T. that she has to demonstrate sustained progress and clean drug tests. The mother has acknowledged that this is a fair expectation.
e. However, the mother has not yet shown a sustained period of abstinence from drugs.
f. As well, A.T. has not been able to maintain a stable residence.
- I find that the Society has established that there is no genuine issue requiring a trial with respect to the following finding:
The mother A.T. has a serious, unresolved problem with drug addiction which has previously jeopardized the well-being of A.S.I., and precludes any possibility that the child could be safely placed in the care of A.T. (alone or with any other person) even under supervision.
FATHER’S ACCESS
- The Society acknowledges that for the most part it has no concerns about M.I.’s relationship with A.S.I., his ability to care for her, or how his access visits have gone.
1. The
Society does not dispute M.I.’s claim that prior to A.S.I.’s
apprehension, he was the primary caregiver for the child.
2. Following
apprehension, for a period of time his visits were taking place in his
home, uneventfully.
3. During
the summer, his visits had to be returned to take place at the Society,
due to concerns about A.T. being in his home; and due to concerns about
the child being exposed to conflict between M.I. and A.T..
4. M.I.
was upset about his visits being returned to the Society, and cancelled
his visits for about a week (including A.S.I.’s birthday).
5. However,
his access is back on track, and the Society has few complaints.
6. The
Society admonished M.I. for allowing A.T. to have telephone access during
one of his visits. M.I. says he didn’t think letting A.S.I. speak to her
mother on his cellphone was against the rules. He stopped when they told
him to.
7. On
July 12, 2017, M.I. was falling asleep during a visit. The Society said
he looked exhausted and dishevelled so they ended the visit. M.I. denies
actually falling asleep, but admits he was up all night doing some
painting. He says in retrospect he should have cancelled the visit, but
he went in his fatigued state because he didn’t want to miss any time
with his daughter. This appears to be an isolated incident.
- As noted above, the Society isn’t concerned about M.I.’s relationship with A.S.I.. It is concerned about M.I.’s relationship with A.T. – and how that tumultuous relationship might jeopardize the child’s wellbeing.
PARENTAL CONFLICT
- The Society’s materials set out that there has been significant conflict between the parents.
a. M.I. and A.T. have had many police occurrences due to domestic violence between them.
b. M.I.’s counsel objected to the Society labelling it “domestic violence”, explaining that most of the police involvement has been for verbal altercations. However, the Society noted a police report which referred to A.T. slapping M.I.. I consider their conflict cumulatively to constitute domestic violence.
c. On March 13, 2017, a Hamilton police officer advised the Society that M.I. had called them to have A.T. removed from his home that day. He said that she had attended at his home before the visit with A.S.I.. He left the home, then attended for his visit with A.S.I., returned home to find A.T. was still there and he called police to have her removed. She was sleeping when the police arrived. A.T. told them that she had last used drugs two weeks prior but had been drinking the previous evening. The officer said that A.T. was unsteady on her feet. M.I. did not smell of alcohol. A.T. left peacefully; there were no issues. The officer said she was calling to report the incident as she was aware A.S.I. was in the Society's care.
d. As recently as July 28, 2017, the Society received an After-Hours report from Hamilton Police Services regarding a domestic dispute between A.T. and M.I..
- I find that the Society has established that there is no genuine issue requiring a trial in relation to the following finding:
1. M.I.
and A.T. have a history of an unstable and volatile relationship,
requiring multiple police attendances to deal with both verbal and
physical conflict.
2. It
is not in A.S.I.’s best interest to be exposed to the nature and extent
of conflict inherent in the relationship between M.I. and A.T..
PARENTAL CONTACT
- The Society’s materials set out that M.I. has maintained consistent contact with A.T. – so much so that it is impossible to have any confidence that he will not continue to maintain regular contact with A.T. in the future – or that he would be able to safely regulate any such contact, and keep A.S.I. safe from A.T..
a. Until at least early August 2017, M.I. regularly allowed A.T. into his home.
b. On July 12, 2017 he admitted to the Society that A.T. was at his residence at least once each week, even though he had repeatedly insisted they were permanently separated.
c. He gave her a key to his residence.
d. He had her belongings in his home until August 2017.
e. As noted above, on July 10, 2017 he tried to pretend to a Society worker visiting his home that A.T.’s belongings weren’t in his home, even though it was embarrassingly obvious that her belongings were visible to the worker. After stumbling with a denial and then an explanation, M.I. acknowledged the items were “probably” A.T.’s. He then added that he had been packing her stuff.
f. Notably, he kept allowing her to come around even when he knew she was relapsing with drugs; even though he knew her attendances would lead to conflict resulting in police intervention; and even though he knew the Society’s major concern was that A.T. not be in his residence.
g. The police report A.T. has also attended at the club when M.I. volunteers. She was given a trespass notice by the club, but she kept coming around. The Society says M.I. should have been more diligent keeping her away from the club. M.I. says he didn’t want her there, but he lacked the authority to determine who can attend at a club he doesn’t control.
h. At an April 2017 family meeting convened by the Society, M.I.’s adult daughter C.I. (who supports her father’s position) commented that from her observations M.I. will never be able to say no to A.T..
i. A.T.’s belongings were only removed after pointed discussion between counsel at a Settlement Conference (not before me) in August 2017.
M.I. now claims he has taken concrete steps to distance himself from A.T. and to make it clear that his plan for A.S.I. does not include the mother. He says he can keep A.T. out of the picture and that he can keep his distance from her.
The Society says there are other things M.I. could have done to ensure A.T. stays away from his residence. For example, he could move. But M.I. says there are financial reasons why he remains at that residence.
The Society says even if M.I. is correct about having cut ties with A.T., at best that was only about a month ago. Given the parents’ track record of not being able to stay away from one another, the Society says it is too late for M.I. to ask for one last chance to prove himself.
In August 2017, M.I. amended his Answer to seek a restraining order against A.T..
1. The
Society notes M.I. waited until the eve of the summary judgment motion to
file his amendment seeking a restraining order. And having amended his
claim, he hasn’t actually brought a motion to obtain a restraining order.
2. Beyond
that, the Society says a restraining order can only be effective if
violations of the order are reported to the police. The Society says it
is highly unlikely M.I. will call authorities if A.T. misbehaves.
- This of course gets us back to the earlier issue of whether M.I. can be counted on to notify authorities when there is trouble.
1. Sometimes
he does. Sometimes he doesn’t.
2. I
have already determined that his reliability to report problems to
authorities is a triable issue.
I find that there is a genuine issue requiring a trial with respect to whether M.I. will have the ability to stay away from A.T., and to make sure that she stays away from him (and particularly his residence) in the future.
However, I find that the Society has established that there is no genuine issue requiring a trial on the following findings which I make:
1. The
mother A.T.’s drug addiction and related problems are so severe that she
must never reside at or attend at any residence where the child resides
or is present.
2. The
child A.S.I. cannot be safely placed in A.T.’s care, or in a residence in
which A.T. resides or attends.
3. If
A.T. is ever allowed access (and I make no determination at this time) it
must be fully supervised; it is never to be in the presence of the M.I.;
and it is certainly never to be supervised by him.
- M.I. needs to be clear about all of this:
1. I am very
skeptical of him.
2. I am
skeptical of his commitment to be candid with the Society and consistently
report problems when they arise.
3. I am
skeptical of his reliability when he now promises that he will keep A.T.
away.
4. And I
certainly have no faith that A.T. will do her part in staying away from
M.I. and his residence. Compliance will be entirely up to M.I..
5. But
skepticism is not the test on a summary judgment motion.
6. The stakes
are high. And the father has provided sufficient evidence that –
reluctantly – I am finding in his favour that there is a narrow list of
triable issues.
7. But the
father should not misperceive – or waste – this “last chance” that he is
being given.
8. M.I.’s
plan to care for A.S.I. is a non-starter if he intends that A.T. will be
part of that plan in any way.
9. M.I. will
have to make his choice: A.T. or A.S.I..
10. And he’s
going to have to make his choice immediately.
M.I. claims he’s been cooperative with the Society. Whatever he’s been doing, it’s not enough. He’s going to have to be much more cooperative.
Pending further order:
1. M.I.
shall not allow A.T. to attend at his residence for any reason, even
momentarily. If she attends at his residence, even uninvited, M.I. shall
notify the Society immediately (even if she simply knocks at his door and
he doesn’t let her in) using the Society’s after-hours emergency number
if necessary.
2. He
shall not allow any of A.T.’s belongings to be in his residence.
3. M.I.
shall notify the Society immediately if he has any contact with A.T. of
any nature, including telephone, e-mail or any other form of
communication (including indirect messages conveyed through other
persons).
4. M.I.
shall notify the Society immediately if he has contact with police for
any reason.
5. M.I.
shall do all things reasonably possible to ensure that all of these
requirements are strictly complied with.
6. In
the event that any evidence arises that M.I. has breached any of these
terms, the Society may bring a further summary judgment motion
(irrespective of the proximity of any pending trial date) returnable
before me. Any such future motion shall be determined based upon the
materials filed on this summary judgment motion; any supplemental affidavits;
and the contents of this judgment.
SERVICES
The Society has asked M.I. to engage in services that would educate him about A.T.’ addiction. M.I. declined those services and he said that he does not see a benefit in them. However he completed other programs or services which he considered more helpful. This does not appear to be a major component of the Society’s case.
However, the evidence is clear that the Society has made diligent efforts to provide the child and both parents with services.
The Society has established that there is no genuine issue requiring a trial in relation to the following finding:
The Society has fulfilled its requirement pursuant to s.57(2) of the Act to provide services and to assist the parents and the child A.S.I..
FAMILY SUPPORTS
- The Society submits that while M.I.’s Answer and Plan of Care rely heavily on family supports, particularly his sister A.P., his family has been minimally involved in engaging with the Society and M.I. has been resistant in accepting assistance from his family.
1. The
affidavit evidence – including affidavits from family members – clearly
establishes that the Society has been trying very hard to work with this
family.
2. Even
some of M.I.’s family members have expressed surprise about how the
father let things get to the stage where the Society wants to take A.S.I.
away. It would appear that more family assistance might have been
available to him earlier. This is another situation in which he’s now
promising to do what he should have been doing all along.
3. As
well, I specifically accept the Society’s evidence that it made
unreciprocated efforts to communicate with M.I.’s sister A.P. Again,
this is strange and disappointing, given that A.P is adamant that she
sincerely wants to help.
4. Nonetheless,
I accept M.I.’s description that he has “tremendous support” from his
family and that they are “good people”. They don’t have criminal records
or prior involvement with child welfare authorities.
I agree with the Society that it has done everything it could to follow up on and encourage community and family options for the care of A.S.I. – possibly in a co-parenting arrangement with M.I. – and that the family has thus far been quite unhelpful.
I also agree with the Society that M.I.’s most recent plan entails a significant sharing of time and responsibility with his sister. Insufficient particulars have been provided, and in any event it seems to entail a lot of “back and forth” for the child, between two households.
Nonetheless, given the fact that no final order is yet being made in relation to the disposition of this case, hopefully M.I. and his family supports will use the brief interval between now and the trial to further explore kin or family involvement.
I find that kin or family participation in a plan for A.S.I. remains a genuine issue requiring a trial.
CHILD’S CURRENT SITUATION
- All of this must be considered from A.S.I.’s perspective. The Society has described her situation:
1. A.S.I. has
maintained the same foster home placement since her admission to care. A.S.I. is well-placed in his foster home. She remains
well-connected to both foster parents and their children and seeks them
out for affection and attention. She participates in family activities
and appears to be happy in their care.
2. A.S.I. is
doing very well overall. She is a healthy and happy child. She is seen
for regular medical check-ups and immunizations. She is currently
up-to-date with no health concerns. She has been seen on an ongoing
basis since admission by the foster family’s physician.
3. A.S.I. is
a happy and social child with no concerns. The foster mom states that she
is a very smart and observant child; very sweet and affectionate and
smiles and laughs often. She is currently into everything as she loves to
explore. She is active and loves playing and interacting with people. She
loves books and being read to and playing with toys. She does well with
playing with toys, she likes to figure out how they work, but it is not
her preference. She would prefer to explore rather than play with toys,
as she is very interested in what is around her. A.S.I. continues to
learn age appropriate skills and is doing well.
4. Overall,
A.S.I. seems to be doing very well in care. There are no behavioural
concerns. She can tantrum at times, but is easily redirected or
comforted. She is on a good routine and schedule, so she does not tantrum
often.
TIME IN CARE
The Society has emphasized – and I would be mindful in any event – that A.S.I. has now been in care since March of 2016. That’s 18 months, longer than the time permitted pursuant to s.70 of the Act.
I agree with the Society that in weighing all of the considerations on a summary judgment motion, the impact of further delay in achieving permanency is a strong consideration.
However, I do not quite agree with the Society’s submission that in this case delay should be given heightened primacy because no trial date has yet been scheduled.
1. The
Society knew as far back as April 12, 2017 (when it amended its claim)
that it felt Crown wardship with no access was the appropriate
disposition for A.S.I..
2. As soon as
a Society takes that position, the onus is on the Society to ensure that
the court process is expedited and that opportunities for a determination
of permanency are scheduled as quickly as possible.
3. The
Society started preparing affidavits in support of this motion in May
2017.
4. The
Society’s Notice of Motion seeking summary judgment was dated June 14,
2017.
5. The fixed
date for the hearing of this motion on September 22, 2017 was selected
early in the summer.
6. In short:
the Society has known for many months that it was seeking Crown wardship
with no access, and that the parents would be opposed.
7. The
Society should never presume that it will be successful on a summary
judgment motion.
8. A trial
date should have been set long ago, as a contingency in the event that
summary judgment was not granted.
In this case I am not satisfied that the unquestionable benefit of early determination for A.S.I. outweighs procedural and statutory requirements with respect to fairness.
But as it happens, since the result of this summary judgment motion will be a more focussed, less time-consuming trial, hopefully this will allow the Trial Co-ordinator to find an earlier timeslot, to reduce any further delay in reaching trial.
CONCLUSION
I have utilized the provisions of Rule 16 to identify those limited areas in which the Society has not established that there is no genuine issue requiring a trial.
With respect to the triable issues, I have been unable to make any determination using the expanded powers available. A focussed trial will be required on those issues.
I have also identified those aspects of the case in which the Society has established that there is no genuine issue requiring a trial.
Neither of the parents provided any evidence on the issue of post-Crown wardship access, and the conjunctive test under s59(2.1) of the Act. However, that issue only arises after a Crown wardship determination has been made. It is premature to deal with post-Crown wardship access.
However, based on all the evidence I find that there is no genuine issue requiring a trial with respect to the following additional findings:
1. A.S.I.
continues to be in need of protection.
2. The
Society is granted summary judgment as against the mother in relation to
all issues other than possible access by A.T. (whether in the context of
post-Crown wardship access or otherwise).
For ease of reference I have underlined the main determinations herein. Other determinations should likely be clear from a contextual analysis.
Given my extensive review of the evidence and the determinations I have made herein, for the sake of consistency and to ensure that an appropriate trial procedure is crafted and maintained, I will remain seized of the trial.
The Trial Co-ordinator is to schedule a date for counsel to attend before me as soon as possible, to address scheduling or any other consideration (including issues relating to this judgment).
Apart from any specific determinations herein, any previous existing order is to continue.
Pazaratz, J.
Released: September 28, 2017
CITATION: Catholic Children’s Aid Society of Hamilton v. A.T. and M.I., 2017 ONSC 5706
COURT FILE NO.: C-2242-06
DATE: 2017-09-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Hamilton
Applicant
- and -
A.T.
Respondent Mother
M.I.
Respondent Father
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: September 28, 2017