CITATION: CAS v. C.P., 2017 ONSC 7465
COURT FILE NO.: FC-11-25-4
DATE: 2017/12/13
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, c. C.11
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant (Moving Party)
– and –
C.P. (Mother) M.G. (Father) Respondents
COUNSEL:
Brian Fisher, Counsel for the Applicant
Wendy Rogers, Counsel for the Respondent Mother Cedric Nahum, Counsel for the Respondent Father
HEARD: November 28, 2017
REASONS FOR JUDGMENT
SHEARD J.
[1] The Children’s Aid Society of Ottawa (the “Society”) brings a Motion for Summary Judgment for an order finding that the children: A.P., born […], 2008; J.G., born […], 2010; and A.G. born […], 2014 are in need of protection and placing the children in the care and custody of their mother, subject to the supervision of the Society for a period of six months. Paragraph
[2] The respondent mother, C.P., (“Mother”) consents to the order sought. The respondent father, M.G., (“Father”) is the biological father of the Mother’s two younger children, and has been in the role of father to her oldest child. The Father agrees that the children should be placed with Mother, but otherwise opposes the motion.
[3] The children have been in the care and custody of the Mother and subject to Supervision Orders dating back to 2010. The terms of the Supervision Orders have varied. Since 2015, the Father has been prohibited from living in the home, and from having access to it or to the children, without the prior approval of the Society and his access was to be supervised. Except for a brief period in early 2017, since December 2015, the Father has declined to exercise supervised access and has chosen to limit his contact with the children to telephone “FaceTime” visits.
[4] The motion before the Court is in respect of the 2015 protection application.
Preliminary Matter
[5] The Father brought a motion returnable on November 28, 2107, for an order striking out portions of the Society’s affidavits that contain hearsay evidence, except for statements made to the Society by the Mother or Father. The Father relied upon Rule 23 (21) of the Family Law Rules[^1] (“FLR”). Those rules apply to evidence at trial, and are not applicable here.
[6] The Father also relied upon the decision of Justice Mackinnon in the Children’s Aid Society of Ottawa v. J.B. and H.H.[^2] in which Mackinnon J. considered whether hearsay evidence could be put before the court for use on a motion for summary judgment on a Crown Wardship Application. She considered Rules 14(17) and 16(5) of the FLR. The latter rule specifically applies to summary judgment motions. Mackinnon J. concluded that hearsay evidence is presumptively inadmissible and should not be admitted unless it falls within an exception to the hearsay rule.
[7] Mackinnon J. concluded that hearsay would be admissible if it related to relevant historical evidence and could meet the threshold test of necessity and reliability. For example, hearsay evidence could be admissible when it was offered to provide a backdrop against which to consider the current situation or when there were numerous previous workers and other information sources involved, it was difficult to obtain that evidence from those witnesses directly.
[8] To a significant extent, the hearsay evidence in the Society’s affidavits falls under a hearsay exception: it provides an historic backdrop against which to measure the current situation and/or refers to information received by the Society from witnesses, such as hospital personnel, whose evidence would be difficult to gather.
[9] To address the concerns raised by the Father that the evidence in the Society affidavits did not fall within a hearsay exception, the Society delivered a number of affidavits from workers whose observations and interactions were referenced in in the affidavits of Christy O’Meara and Robin MacEwen. The workers confirmed that their observations and interactions were accurately set out in the O’Meara and MacEwan affidavits. The Society also conceded that if the hearsay evidence did not fall within any exception to the hearsay rule, then the Court is free to give it little or evidentiary weight. Indeed, that appears to be what is contemplated by Rule 16(5) of the FLR, which allows the use of hearsay on a summary judgment motion, but permits the Court to draw an adverse inference.
[10] The Father submitted that the Court ought not to accept the Society’s new affidavits, filed over the Bench on the motion. The Society responds that the Father was a day late in delivering his motion, which left the Society little time to respond. The Father argues that the late delivery of these affidavits and the hearsay evidence in the previous affidavits, deprived him of the opportunity to cross-examine the source of the evidence and put him at a disadvantage. In fact, the Father at no time sought to cross-examine on any of the Society’s affidavits nor did he seek an adjournment of this motion to conduct cross-examinations.
[11] For the reasons set out above, I conclude either that: i) the hearsay evidence is admissible by reason of the exception to the hearsay rule; ii) it has been cured by the filing of affidavits from other Society workers confirming the accuracy of the “hearsay’ in the O’Meara and MacEwan affidavits; or, iii) the hearsay need be given no weight. Accordingly, I am satisfied that the Father will suffer no prejudice or unfairness by allowing the Society’s affidavits to be before the Court on this motion and I dismiss his motion to strike.
Issues on the Motion:
[12] The Court has to determine the following issues:
Is there a genuine issue for trial as to whether A.P., J.G. and A.G., are children in need of protection pursuant to sections 37(2)(b)(i) and/or 37(2)(b)(ii) (risk of physical harm) of the Child and Family Services Act[^3] (“CFSA”)?
If there is a finding that the children are in need of protection, is there a genuine issue requiring a trial as to what order is in the best interests of the children?
If not, is it in the best interests of the children that they remain in the care and custody of the Mother subject to the Supervision Order as sought by the Society? In particular, should a Supervision Order be made, should it include a term that access by the Father be at the discretion of the Society?
Positions of the Parties
[13] The Society and the Mother agree that the children are in need of protection and that it is in the children’s best interests that they be placed in the care and custody of the Mother, subject to the supervision of the Society, for a period of six months.
[14] The Father agrees that the children should be placed in the care and custody of the Mother but disputes that the children are in need of protection, that a supervision order is needed, and that his access should be at the discretion of the Society.
Issue #1: Is there a genuine issue for trial as to whether the children are in need of protection?
[15] Rule 16 of the FLR permits the Society to move for summary judgment. Rules 16 (4) and (4.1) state that the evidence shall be by way of affidavit and that the party responding to the motion may not rest on “mere allegations or denials” but shall set out by way of affidavit or other evidence “specific facts showing that there is a genuine issue for trial”.
[16] As set out in Hyrniak v. Mauldin[^4], there will be no genuine issue for trial if the judge is able to reach a fair and just determination on the merits of a motion for summary judgment as will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[17] Without minimizing the importance to the parties of this motion, when considering the third of the Hyrniak factors, it must be recognized that the order sought is for a six-month period of supervision, and, if granted, will preserve the status quo that has been in place for a number of years.
[18] The Society’s materials provide an ample and compelling record of the parents’ conflict, to which the children were and are exposed, and the Father’s negative behaviours, which have put the health of the Mother and of a child at risk. The Family Court Clinic Report of December 21, 2016 (the “FCC Report”) provides evidence that the Father’s controlling behaviour of the Mother and his animosity towards the Mother’s family, have exposed the children to conflict and the risk of physical and emotional harm.
[19] The Society has had a long involvement with this family, but MacEwan only assumed carriage of this file in October 2014. Her affidavit of November 21, 2015 provides useful background information.
[20] By Order of September 11, 2015, the children were placed in the temporary care and custody of the Mother, subject to the supervision of the Society and certain conditions, including that: the Mother and Father cooperate with the Society; the Mother ensure that the children’s physical, mental, and emotional needs were met; the home be kept in a hygienic, safe, and appropriate condition; the children attend school; and the Mother’s parents (the “MGP”) be permitted to care for the children when the children’s medical needs required it. The Order also directed that the Father not live in the home, and that his access be exercised at the Society’s discretion.
[21] On visits to the home after September 11, 2015, MacEwen found it to be unclean – smelling of cigarettes and urine; that A.P. had not seen a dentist and the cavities in her teeth were visible; that J.G., then five, was urinating and defecating in her pants and wearing diapers to school. On the later visit, the Mother reported that the family had been evicted, and that the issues identified on the earlier visit remained unresolved.
[22] MacEwen’s affidavit of November 21, 2015, documents that on her attendances at the home in November 2015, she again found it to be in poor condition; the children were unclean; pet litter boxes were overflowing and she saw A.P. put a filthy toothbrush in her mouth. Also, for most of this visit, the Mother was on the phone to the Father. He asked to speak to MacEwan and told her that he was upset that she visited and that he cleaned the house “top to bottom” daily. MacEwan’s evidence is largely undisputed by the Father, who did acknowledge that he found the whole experience to be upsetting because, in his view, the Society forced the Mother to “sign something” against her will.
[23] The Father’s behaviours and throughout his responding affidavit, the Father conveys the notion that he best understands the Mother’s wishes and that the Mother is manipulated by her family and the Society, who seek to bend her to their will. Even in submissions on this motion, the Father, through his counsel, asserted that the Mother was not free to participate in this motion and capitulated to the Society’s request because she is “conflict-adverse”. In fact, the Mother has fully participated in this hearing and was represented by senior counsel. What is apparent is that the Father was unhappy that the Mother was consenting to the order sought by the Society, with which he disagrees.
[24] The MacEwen affidavit documents the Father’s abusive and controlling behaviour toward the Mother that has interfered with the Mother’s ability to work with the Society. For example, in November 2015, the Society sought to schedule a family safety meeting. The Mother did not attend and confirmed that she would not attend because the Father did not want her to go. The Father told MacEwen that the meeting was not necessary because he did not agree with any of the Society’s concerns.
[25] MacEwen concluded that the Mother and Father continued to be resistant to engaging with the services or acknowledging Society’s concerns; displayed an unwillingness to address medical and dental needs of the children, despite the serious heart conditions of two of the children; struggled to meet the basic needs of the children; and, showed little insight into the health and safety risks the condition of the home presented. MacEwen also identified that the Father’s abusive and controlling behaviour over the Mother was also affecting the social-cognitive development of the children.
[26] Based, in part, upon the MacEwen affidavit, an interim Order was made on December 22, 2015, prohibiting the Father from living with the Mother and the children, and requiring his access to be supervised.
[27] The evidence set out in the MacEwen affidavit of November 24, 2015 was almost entirely first-hand.
2016
[28] From mid-November 2015 until September 2016, the children and the Mother lived with the MGP. During that time, Mother and the children appeared to do better. The school principal reported that A.P. and J.G. were the “best they had ever been” and no longer appeared unclean and smelling of urine. Child Protection Worker, Julie Conquest (“Conquest”) spoke with the family’s doctor, Dr. Wu, who believed that the Mother was well-supported by her mother (the “MGM”) who attended with her on the January 20, 2016 medical appointment. As of February, 2016 no concerns were reported at the CHEO Child Protection Clinic with respect to J.G. The Mother and the maternal grandfather (“MGF”) also reported that things were going well and the children were improving.
[29] As at June 2016, the Father was still not seeing the children because he refused to agree to supervised access. The Mother wanted him to start seeing the children and as of the end of July 2016, the Mother reported that she and the Father were not really “together”.
[30] The children also reported positive change when they moved in with the MGP. J.G. reported that her parents used to fight a lot and that the Father was “mean” but that she was doing better with MGP. In March 2016, J.G. reported to Conquest she liked living with the MGP as “everyone got along”, was nice to each other and she never heard yelling. J.P. reported that in the old house, she would hear her parents yelling a lot when she was in bed.
[31] In July 2016, A.P. also reported that things were going well at the home of the MGP. She reported that she had not spoken to the Father in a long time and that it made her feel “kinda good, because we don’t have to listen to him and mommy fighting all the time”
[32] The MGP reported positive changes in the Mother as of March 2016: she was patient, enjoying her children and more engaged with them. The Father was not welcome at the home of the MGP by reason of historical conflict with the MGP and with the Mother.
[33] In March 2016, the Father remained unwilling to agree to society-supervised access. According to the Society affidavits, no supervised access was acceptable to the Father unless supervised by the MGM, who was unwilling, or by the Mother, whom the Society did not feel suitable.
[34] In June 2016, the Father reported that he continued to see the Mother on weekends and that he felt that her family was too involved in their business. In his affidavit sworn November 24, 2017, the Father expressed his belief that the Society wanted him out of the home so that it “can control and manipulate [the Mother] into whatever they want her to do”.
[35] In a meeting in June 2016 with Conquest, the Society identified its concerns about the Father’s controlling behaviour and his putting his needs and comfort for that of the Mother, which reflected the power imbalance between them. The Society spoke to the Father about the children’s reports of hearing him yell at the Mother when they lived together. According to Conquest, the Father did not acknowledge this power and control dynamic would not accept information given to him. The Father does not specifically respond to this meeting in his affidavit.
[36] Further attempts were made with the Society and the Father to facilitate his access. In August 2016, a male Child and Youth Counsellor was able to offer supervised access. Partly because the Father would not accept any restrictions on where he could exercise access, this access did not proceed.
The FCC Report
[37] The parties agreed to take part in Family Court Clinic Assessment which was completed by December 21, 2016. Pursuant to the FLR,[^5] the Family Court Clinic Report dated December 21, 2016 (the “FCC Report”), is evidence, and may be used as such on this motion.
[38] The 58-page FCC Report identified numerous parenting concerns and concerns regarding the “volatile and dysfunctional” relationship between the Mother and the Father. It describes the home environment provided to the children as “a toxic one, where they were seemingly exposed to conflict between their parents as well as between” the Father and the Mother’s family.
[39] The FCC Report identifies that the Mother has ongoing difficulties with assertiveness and dependency that appear to be associated with low self-esteem and self-confidence and that she will go along with what the Father wants to avoid an argument with him even though it means repressing her own needs and wants. The FCC Report suggested that the Order prohibiting the Father from residing in the home allowed the Mother to indirectly assert herself without having to implement boundaries or voice her own concerns. The FCC Report stated that the Mother demonstrated good parenting skills and that her homelife has had less chaos or drama in the past year which, the FCC Report speculated, might have been due to the absence of the Father from the home and children.
[40] The FCC Report comments on the Father’s behaviours that put the health of the Mother and A.G. at risk when he interfered with their getting necessary medical treatment. The FCC Report credits the Father’s paranoia with his threatening the staff of the children’s family doctor; threatening to fire the doctor; and his complaint about the family doctor to the College of Physicians and Surgeons.
[41] The FCC Report notes positives with the Father, who appears to have his children’s best interests at heart. However the FCC Report also notes that the Father’s paranoia and acrimonious relationship with the Mother’s family stands in the way of the Father’s ability to work with professionals involved with the children and exposes the children to conflict with the Mother’s family or expressing negative views of her family. The FCC Report states that the Father would benefit from a structured anger management program such as that offered in the Anger Disorders Clinic at the Royal Ottawa Hospital and, also, that he would benefit from receiving education on the negative impact that anger and conflict can have on children’s self-esteem.
[42] The FCC Report also comments on the special needs of two of the children who have been diagnosed with Ehlers-Danlos Syndrome. It is the opinion of Dr. Wood that A.G. and J.G. should be viewed as special needs children due to this diagnosis. Dr. Wood identifies that these children will require increased medical attention and ongoing follow-up with their family physician and other medical specialists and a healthy lifestyle, including dental hygiene, so as to reduce and/or delay future complications.
[43] The FCC Report further states that, despite an obvious attachment to both their parents, the children had reported previous exposure to the Father’s anger and were somewhat ambivalent about the Father moving back into the home due to possible ongoing conflict with the Mother. The children also endorsed a close relationship with the maternal family, and the FCC Report identified the risk of conflicted loyalties if the Father were to interfere with this relationship.
[44] The FCC Report recommended a Supervision Order by which all three children would be in the primary care of the Mother and that the Father’s access begin with some level of supervised access.
[45] The Society moves for judgment that is in keeping with the recommendations in the FCC Report.
[46] The FCC Report is almost one year old. The Court must therefore consider the family situation as it now exists to determine whether or how much reliance may be put on the FCC Report.
2017
[47] In the early part of 2017, the Mother struggled to meet the needs of the children. By April 2017, the children had missed more than 25 days of school.
[48] In February 2017, A.P. reported fighting between her parents on the phone. The Mother stated that she did not want the Father in the home. In June 2017, the Mother advised O’Meara that she and the Father had broken up because he was angry that she had taken the children on a family trip to Toronto with her family. The Mother again confirmed that she did not want the Father back in the home. The Mother has maintained that view, while acknowledging that she has ongoing contact with the Father.
[49] In his responding affidavit, the Father agreed that the Mother did not want him living in the home in August 2017 but that if he were to change, the Mother would want him to return. The Father asserts that the Mother was pressured by the Society and her extended family to end things with the Father and to isolate him from the family.
[50] Unless and until the Father is prepared and able to recognize and address his behaviours, it is difficult to predict how or when he will be able to “change”.
Medical Issues
[51] The Mother, A.P., and J.G. have all been diagnosed with vascular Ehlers-Danlos Syndrome, a genetic condition that could be fatal if not properly managed. All are considered to be medically fragile by healthcare providers. In 2015, the Mother had a heart attack, as well as a “near” heart attack. The parenting history as set out in the Society’s materials, and which was acknowledged by the Father, documents that the Father interfered with the hospital medical care being given to the Mother, because the caregiver was a man. The Father acknowledged that he had jealousy concerns. The Father’s actions put the Mother’s health and, quite possibly, her life at risk.
[52] In his responding affidavit, the Father acknowledged that his actions were wrong, that he made a mistake, and that he showed a lapse in judgment. In fact, the Father acknowledges many of the behaviours and/or concerns identified by the Society and in the FCC Report, including that:
i) he has anger issues;
ii) he is critical of the Society, who he believes seem to be working more closely with the Mother’s family than with the Mother or the Father;
iii) he did put J.G.’s wellbeing at risk when she was sick and he was slow to get her to the hospital, but that this was a one-time lapse in judgment;
iv) he has opinions about the Mother’s family and “never shied away from sharing those with the Mother” and that he has expressed his disapproval at the children seeing Mother’s extended family every weekend and at the Mother’s family being at our home every weekday;
v) he was jealous in the past, but has learned from his behaviour;
vi) he behaved poorly when the Mother was in the hospital and seriously ill, and that his behaviour “could have had a negative effect on the Mother’s medical condition”;
vii) he refused to partake in an addictions assessment;
viii) the Society has asked him to take courses that he did not and still does not believe are relevant such as courses relating to domestic violence;
ix) when he threw away the gifts given to his children by the MGP, he did so because he saw them as undermining the decisions he and the Mother made for the children and their parenting; and
x) he acknowledged that he pleaded guilty to assault after he had head-butted the Mother’s mother while holding a child in his arms and that he took an anger management program, which was a term of his probation, although the Father is clear that he did not ask for a program;
[53] The Father’s involvement in the Mother’s and children’s medical issues is important. The Father acknowledges that he has, in the past, become verbally aggressive with medical staff such as the medical staff of the family doctor who treats the Mother and the children. This admission is consistent with the (admittedly) hearsay evidence about the Father’s behaviour when the Mother was in the hospital, that he now acknowledges was inappropriate, and with the other Society evidence that the Father put his child’s health at serious risk, which the Father asserts was a lapse in judgment.
[54] The Father’s affidavit is filled with hearsay and his opinion evidence. In particular, the Father offers his own opinion about Ehlers-Danlos Syndrome, obtained through hospital medical personnel, and claims that Society workers do not understand the condition. Given the position taken by the Father respecting the use of hearsay on this motion, his “opinion” evidence can be given no weight.
No Face-to-Face Contact with the Children
[55] The Father acknowledges that since late 2015, his only contact with the children has been through the phone. He blames the Society for his lack of access, despite that the Society has offered to facilitate supervised, as required by court order, which he has refused. The Father’s hostility toward the Society is also demonstrated in the language he uses in communications with Society workers. For example, in his emails to O’Meara of March 3, 2017 the Father uses profanity; he also refers to a Society worker as a “moron”; states that it his “right” to request a male worker to supervise access and that he does not feel safe in the presence of a female worker.
[56] In his emails with the Society in May 2017 and August 2017, the Father continues to express his views of the Society in a negative and assertive way. For example, in his email of August 8, 2017 the Father accuses the worker of not doing her job, violating his privacy and suggests that the Society worker should get off her ‘FAT ASS’. The angry and aggressive tone of the Father’s emails to the Society continue into October, 2017.
[57] The Father’s emails conflict with his assertion that he does not have anger issues or that he has learned from his past mistakes. Rather, they corroborate the evidence of the Society that he has work to do to manage his anger.
[58] The stance taken by the Father that he alone knows the Mother’s wishes and that he is being isolated from the Mother so that those around her can influence her and bend her to their will is consistent with the Father’s behaviour documented by the Society and referenced in its affidavit material. The evidence on this motion is overwhelming that the Father has behaved in a controlling manner toward the Mother, interfered with the help and support offered by the Mother’s extended family; interfered with the mother and his daughter’s ability to obtain necessary medical treatment; undermined the Mother’s self-esteem, and interfered with her ability to develop into a self-confident parent.
[59] It is reasonable to conclude, which I do, that had she believed the evidence before the Court to be inaccurate in any significant or material way, the Mother would have sworn an affidavit correcting any important inaccuracies. By consenting to the order sought, I conclude that the Mother generally accepts the evidence put forth by the Society and, specifically, accepts that the Order is in the best interests of the children. That conclusion is supported by the FCC Report that suggested that, the Mother and the children benefit from the absence of the Father’s influence in the home. Most importantly, the children are protected from the harm that comes from being exposed to the conflict and fighting between the Father and the Mother and her family, and have become happier as a result.
[60] The reasons given by the Society for its request for a supervision order is to protect the children from the risk of harm including harm arising from parental conflict, Father’s controlling behaviour; both parents’ inability to meet the children’s needs; chronic neglect of their medical and dental care; the unclean and unsafe condition of the home; and the children’s poor hygiene and school attendance.
[61] The evidence provides a comprehensive record of past-parenting together with current, first-hand evidence. The admissions of the Father support many of the key allegations found in the Society’s affidavits and in the FCC Report. The Father’s refusal to see the children except on his own terms is also troubling given, that the hope and expectation has been that his access would proceed quickly to unsupervised access. By disputing the need to take the courses recommended by the FCC or the Society and opposing or criticizing the supports offered to his children, the Father stands in his own way of moving to unsupervised access. The Father acknowledges these unresolved areas of conflict, yet has done next to nothing to change his behaviour.
Analysis and Disposition of Issue #1
[62] The evidence on this motion is sufficient to allow the Court to make the necessary findings of fact, to apply the law to the facts, and, is a proportionate, more expeditious and less expensive means to achieve a just result.
Issue #2: Is there a genuine issue for trial as to whether the children are in need of protection pursuant to sections 37(2)(b)(i) and (ii)of the CFSA?
[63] Sections 37(2)(b)(i), 37(2)(b)(ii), 37(2)(e), and 37(2)(g) of the CFSA, state that a child is in need of protection where,
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(e) the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment; and
(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;
[64] Subclauses 37 (2)(f)(i)-(v) state:
(f) the child has suffered emotional harm, demonstrated by serious,
(i) anxiety,
(ii) depression,
(i) withdrawal,
(iv) self-destructive or aggressive behaviour, or
(v) delayed development,
and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.
[65] As set out above, there is ample evidence to support the findings under the above sections. That evidence is both historical and current.
[66] The Mother has continued to struggle with keeping the house in a sanitary condition and properly caring for the children’s hygiene. With the involvement of the Society, the situation has improved, but has not completely resolved. The O’Meara affidavit of November 8, 2017 that contained first-hand observations of the home and of the children was unchallenged on the motion.
[67] There is also no evidence to contradict that the children told O’Meara about their feelings toward the Father; their observations of ongoing fighting between the Mother and the Father; their clearly stated wishes that they do not want the Father to resume living with them; and the importance to the children of their relationship with the MGP.
[68] On a motion for summary judgment, the responding party may not rest on mere allegations or denials but must set out specific facts showing that there is a genuine issue for trial. The Father has not done that. To a significant extent the Father’s response to the Society’s observations is that they were wrong. Moreover, as the Father has not had access to the children for almost two years, he is not in a position to offer any first-hand observations of them.
[69] I conclude that there is ample evidence to support a conclusion that there is a risk that the children are likely to suffer emotional harm as a result of the conflict between the Father and the Mother and between the Father and the Mother’s extended family.
[70] Also, the history of the Father interfering with the Mother and a child receiving proper hospital and medical care give rise to a risk of harm. While the Father acknowledges that his behaviour was wrong, he offers no evidence to support his claim that he has learned from his behaviour and that it will not be repeated.
[71] There is both historical and current evidence that the Father engages in conflict with the Mother and that the children continue to be exposed to his anger, some of which is even directed at the children directly. For example, A.P. reported that in June 2017, the Father threatened to take away her hamster and cat if she went on a trip to Toronto with the MGP.
[72] The Father has not taken the courses recommended to him and denies that they are suited to his issues. In his responding affidavit, the Father stated that he has recently enrolled in an 11-week parenting course, “Parenting with Confidence”, and had been to the first class, which was held on November 20, 2017.
[73] The Father acknowledges that he has had anger issues; that he was verbally abusive with medical staff at the reception of the family doctor; yet denies understanding why his children would believe that he had been yelling in the home or why they would describe him as “mean”.
[74] The Father’s efforts to exert control over the Mother were observed and/or reported to be ongoing through the summer of 2017 and into the fall.
[75] In his responding affidavit, the Father asserts that the children were happy to see him in November 2016 when they were assessed by the FCC. The FCC Report also stated that the children had an obvious attachment to both parents, even though the Father had not physically interacted with them for over a year as at November 2016. However, despite noting the “positive quality of the [Father’s] interactions with his children” the FCC Report concluded that before allowing unsupervised to the Father he should: have some period of supervised access; demonstrate that he is able to work cooperatively with the Society and other professionals who have been involved with the children’s lives; enrol in an anger management program; and obtain education on the negative impact anger and conflict can have on children’s self-esteem, etc.
[76] Throughout his responding affidavit, in the face of the compelling evidence that the Mother and Father have continued to be involved in a conflictual relationship throughout these proceedings and the concerns about him identified in the FCC Report, the Father either denies the observations of Society workers and/or the validity of the concerns found in the FCC Report or blames his behaviour on the Society and others.
[77] The relationship between the Mother and the Father was described by the FCC Report as “volatile and dysfunctional” leading to a “toxic” home environment for the children. The Father’s affidavit supports a conclusion that there is a real risk that the Mother and the Father will resume or continue their relationship thereby putting the children at risk of suffering emotional harm as a result of the actions, inactions or pattern of neglect on the part of one or both of the Mother and the Father. As a sign of apparent insight, the Father states that he ended and the Mother ended their relationship several weeks before the hearing of this motion. However, the Father then makes a request for access to the children in the Mother’s home on Christmas Day and states that he is “open” to having further access in the Mother’s home.
Disposition on Finding in Need of Protection
[78] The evidence on the motion, not all of which is referred to above, is sufficient for a finding that there is a risk that the children are likely to suffer physical and/or emotional harm from the actions, failure to act, or pattern of neglect on the part of one or both of the Father and the Mother. I therefore find that all three children: A.P., and J.G. and A.G. are in need of protection.
Issue #3: If a trial is not required, is it in the best interests of the children that they remain in the care and custody of the Mother subject to the Supervision Order as sought by the Society? In particular, should a Supervision Order be made, should it include a term that access by the Father be at the discretion of the Society?
[79] The Mother and Father agree, in part, on the answer to the first question: it is in the best interests of the children that they remain in the care and custody of the Mother.
[80] The Mother agrees that she should be subject to a Supervision Order and the evidence supports a finding that, without the assistance of a court order that prevents the Father from being in the same home as the Mother and the children, and requires that the Father’s access be supervised:
(i) the children are likely to suffer physical harm by reason of the failure of the Mother and/or the Father to adequately care for, provide for, supervise or protect the children and/or that they will resume a pattern of neglect in caring for, providing for, supervising or protecting the children; and
(ii) there is a risk that the children will suffer emotional harm by reason of the actions, and/or failure to act on the part of the Mother and/or the Father.
[81] The evidence supports a finding that the Order that gave the care and custody of the children to the Mother under the supervision of the Society was in the best interests of the children. It permitted the Society to work with the Mother, and to assist her in accessing the family and other supports and services that she needs to properly care for the children. The children have shown great improvement in their health and happiness. The Order has reduced the Father’s negative influence over the Mother and has limited his ability to interfere with the MGP and the Mother’s extended family, upon whom the Mother has relied, and the children have benefited.
[82] The Father has failed to take any meaningful steps to address the concerns and issues outlined in the FCC Report and identified by Society workers, the Mother and the children.
Analysis
[83] On a motion for summary judgment, the parties must put their best foot forward. Rule 16 of the FLR requires more than mere allegations and denials. The Society has the onus to show that there is no genuine issue for trial but once it has established a prima facie case then the onus shifts to the respondents. As the Mother has consented to the order sought, the onus is on the Father to demonstrate that there is a genuine issue requiring trial as to what order is in the best interests of the children.
[84] The Father has failed to meet the onus to demonstrate that there is a genuine issue for trial. It is not enough for the Father to deny the protection problems, when the evidence clearly shows otherwise. It is not enough for the Father to assert that access need not be supervised, when the FCC Report addressed this very issue and suggested steps that should be taken by the Father, which he has refused or failed to take.
[85] The evidence, including admissions by the Father, shows that the protection concerns related to the Father have remained unaddressed by him. That he has now enrolled in a parenting class is a positive first step toward possible unsupervised access. However, it is a first step. As set out in the FCC Report, before unsupervised access can be achieved, the Father must engage in a period of supervised access and show that he can behave appropriately. He should also cooperate with the Society and continue with the parenting program as well as the other recommended educational programs.
Disposition
[86] The Society’s motion for summary judgment is granted as follows:
there is a finding that the children, A.P., J.G. and A.G. are children in need of protection under sections 37 (2)(b)(i); 37 (2)(b)(ii); and, 37 (2)(g) of the CFSA;
the children shall be placed in the care and custody of the Mother, C.P., Subject to the supervision of the Society, for a period of six (6) months; and
access to children by the Father, M.G., shall be supervised and in the discretion of the Society.
L. Sheard J.
Released: December 13, 2017
CITATION: CAS v. C.P., 2017 ONSC 7465 COURT FILE NO.: FC-11-25-4 DATE: 2017/12/13
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
BETWEEN:
The Children’s Aid Society of Ottawa Applicant
– and –
C.P. (Mother)
- and -
M.G. (Father) Respondents
REASONS FOR JUDGMENT
L. Sheard J.
Released: December 13, 2017
[^1]: O. Reg. 114/99, as. Am. [^2]: 2016 ONSC 2757 [^3]: RSO 1990, c. C. 11, as a.m. [^4]: 2014 SCC 7,[2014] 1 SCR 87, at para 49 [^5]: S. 54(6)