Court File and Parties
COURT FILE NO.: FC-16-787 DATE: 2018/04/10
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
BETWEEN:
The Children’s Aid Society of Ottawa Applicant
– and –
R.J. (Mother) Respondent
-and-
J.J. (Father) Respondent
Counsel: Alison Reed, for the Applicant Selim Levy, for the Respondent (Mother) Audra Bennett, for the Respondent (Father)
HEARD: March 22, 29, 2018
Endorsement
J. Mackinnon J.
[1] The Society brings a motion for summary judgment with respect to the respondents’ two children, currently ages three and four years. The judgment sought is pursuant to an amended protection application for a custody order to the mother under section 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), and for an order that the father have supervised access to the children, the supervision to be approved by the Society in advance.
[2] The initial Application was issued on May 4, 2016. It sought a finding that the children were in need of protection due to risk of physical harm and/or risk of emotional harm arising from their exposure to domestic disputes between their parents. The order sought was a six month supervision placement to the mother on terms and conditions, with supervised access to the father, leaving the frequency, location and duration of his access to the Society’s discretion.
[3] The parents separated on April 29, 2016 when the mother left the home with the children. Each parent delivered an Answer and Plan of Care. The order asked for by the father was to reconcile with his wife and to live with her and the children. The mother asked that the children be returned to her. She also claimed custody under section 57.1.
[4] In February 2017 the Society amended its Application to seek a section 57.1 custody order to the mother. The father amended his Answer, but the order he sought remained the same, namely to be allowed to reconcile with his wife.
[5] Since May 4, 2016 the children have resided in the care of their mother subject to terms of a temporary supervision order. That order also provided supervised access to the father.
[6] This summary judgment motion had several unusual aspects. The Society’s affidavit material included inadmissible hearsay. This was acknowledged. The Society submitted it could meet its onus relying only on the admissible evidence. The mother did not deliver an affidavit in support of the motion and was not present in court for the hearing. Two affidavits previously delivered by her were referred to during oral argument. Her counsel was present. He made submissions on her behalf on disposition only. He took no position on the finding or the issue of the father’s access.
[7] The father opposed the motion. He submitted he should not be denied the opportunity to defend a pending criminal trial first, before addressing this child protection matter. In July he will be tried on a charge that on May 27, 2017 he uttered a threat to cause bodily harm to the mother.
[8] The father submitted that the Society could not demonstrate that there was no genuine issue for trial on direct evidence and without a supporting affidavit from the mother. He submitted there was a genuine issue requiring trial as to the mother’s credibility. However, given his desire to defend the criminal trial first, the father’s affidavit does not address a plan of care either with respect to custody of or access to the children.
[9] Family Law Rules, O. Reg. 114/99, rule 16 addresses motions for summary judgment. The pertinent subsections of the rule are set out here:
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.
(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. O. Reg. 114/99, r. 16 (5).
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).
[10] The onus is on the Society to establish on a balance of probabilities that there is no genuine issue that would require a trial. Here, the issues are whether the children are in need of protection, whether intervention by a court order is necessary to protect them in the future and whether the disposition sought is in the best interests of the children. Provided the Society makes a prima facie case that there is no genuine issue requiring a trial then the evidentiary onus shifts to the respondent to provide evidence of specific facts showing a genuine issue for trial. Ultimately the burden of persuasion remains upon the Society.
Impact of the Criminal Trial
[11] Corollary to FLRs rule 16 (4.1), on a motion for summary judgment the court will not speculate as to what possible evidence may be adduced at trial. The motion must be decided on the sufficiency of the evidence as disclosed by the affidavits before it: see Catholic Children’s Aid Society of Hamilton v. B.W.B., 2015 ONSC 7621.
[12] The respondent father has not provided a full evidentiary record in support of his opposition to the motion, preferring to defend the pending criminal trial before doing so. The specific charge relates to one event alleged to have occurred about a year after the commencement of the protection application and the order by which the children have lived in the sole care of their mother. The father suggests that he will be acquitted and that the mother will not be a credible witness. These suggestions remain speculative at this point.
[13] The father relies upon Children’s Aid Society of Ottawa v. C.R., 2016 ONSC 1590. There, a motion for summary judgment was dismissed. The court delayed the CFSA trial for a set period of time to enable the parents to try conclude their criminal matter. There are a number of significant distinctions between C.R. and the case at bar.
[14] First, in C.R. the factual foundation underlying the criminal charges and the protection application were the same. That is not the situation here.
[15] Second, in C.R. most of the Society’s evidence with respect to the foundational facts of its case was hearsay. The complainant was an adult child. The allegations she made were that the parents had mistreated her in ways that if proven could put the other children still in the home at risk. The Society did not tender any direct evidence from the adult complainant. The parents not only denied her allegations, they also set out specific facts supporting their allegation that the complainant had a motive to lie. The absence of direct evidence from the complainant denied the parents the opportunity to test the credibility of her allegations by cross-examination in advance of the motion.
[16] These are not the facts here. The Society is not relying on inadmissible hearsay to prove the underlying facts of its case.
[17] Next, in C.R. the Society had not brought a motion under CFSA section 74 for production of a video recorded police interview of two other children of the parents who were already Crown wards. Instead the Society relied on notes taken by one of its social workers as to what was said during the police interview. The court was critical of that approach, noting that obtaining production of the police video would have removed at least one hearsay danger, namely accuracy and completeness of the proferred testimony. The court stated at paragraphs 18 and 19:
18 Section 74 of the CFSA authorizes the court to order the production of third-party records, on the Society's motion or application. In considering whether to order the requested production, the court will first determine whether the record "may be relevant" to the child protection proceeding. This test is not onerous and is based on the factual context (Children's Aid Society of Algoma v. D.P., (2007), 2007 CanLII 39363 (ON SC), 42 R.F.L. (6th) 144 (Ont. S.C.), at para. 31). If the record "may be relevant", the court will determine whether to order the production by weighing the public interest in supporting the work of children's aid societies, promoting the administration of justice through full access to relevant information for litigants and having CFSA cases fairly and appropriately adjudicated, against countervailing issues including privacy interests, privilege and the public interest in maintaining the integrity of criminal investigations (D.P. v. Wagg, (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229).
19 The court has ordered the production of Crown briefs under s. 74 notwithstanding ongoing criminal proceedings: Children's Aid Society of the District of Thunder Bay v. S.D., 2011 ONCJ 100, 2 R.F.L. (7th) 202, and Children's Aid Society of Algoma v. B. (S.), 2008 ONCJ 358, 55 R.F.L. (6th) 221.
[18] C.R. is also distinguishable on this point. The Society has not tendered hearsay evidence in lieu of direct or “better” evidence it could have obtained from the Crown Brief. Here the father states there is evidence in the Crown Brief that he needs to defend the CFSA case but it is he who has chosen not to seek production of that Brief.
[19] Finally, in C.R. the court concluded it would be unfair to proceed on the motion for summary judgment where the parents were trying to have the criminal case disposed of in their favour in the remaining months in which their children could remain in care as temporary wards. If accomplished in time, one or both parents could present a plan for the return of the children that could not be presented earlier having regard to their terms of criminal release.
[20] The charge this father faces does not create a legal impediment preventing him from putting forward a plan for custody of or access to his children. Nor has he set out evidence of specific facts to show that the outcome of the criminal trial may have a significant impact on the outcome of this case. He has chosen to prefer his defence of the criminal charge rather than to provide a full evidentiary record for this motion. He has not established the extraordinary and exceptional circumstances that warrant a stay of a child protection hearing pending the outcome of a criminal trial as required by the decision in the Catholic Children’s Aid Society of Metropolitan Toronto v. O.(L.M.) (1995), 9 O.F.L.R. 165 (OCJ).
Consideration of the Substantive Evidence
[21] In April and May 2016, Society workers attended the parents’ home. On at least one occasion the worker observed the parents arguing with each other in the presence of the children. The argument surrounded the father’s allegations that the mother was having an affair, which she denied. The husband called her a hooker and questioned whether the children were his. The mother eventually started to cry. The worker observed that the children had no apparent reaction to the arguing or crying.
[22] During these same months each parent made statements against interest to the Society. On April 11, 2016, the father contacted the Society complaining the mother had left the children home alone, had been yelling at them for about three months and had slapped them with a shoehorn. The mother told the social worker that marital problems had begun approximately one month early. She acknowledged she had been yelling but said it was in response to her husband’s accusing her of infidelity. She described a recent dispute between them in which she broke his telephone and she said in response he had punched her in the eye. In his pleading the father said that the older child had been awakened by this fight. The mother also acknowledged to the worker that the children had been exposed to previous verbal disagreements between their parents.
[23] On April 29, a Society worker went to the home. She observed the mother and children in the mother’s vehicle. The worker saw a small superficial scratch above the mother’s left eyebrow. She saw the father arrive in his vehicle, and park behind the mother thereby preventing her from leaving. He told the social worker that his wife was going out in the middle the night with men and was unfit.
[24] The Society worker assisted the mother to leave with the children on this occasion.
[25] On May 2, the mother told another Society worker about a dispute between herself and her husband. She said he had followed her from room to room resulting in the children waking up and crying. The next day the father told this same worker that the mother had been “f…ing around” and was corrupt.
[26] Direct evidence provided by a Society worker establishes that in April 2016 the children appeared closely attached to the mother. The mother was observed to be attentive to their needs. There is no dispute that the children have resided full time with their mother since the parents’ separation in April 2016.
[27] Both parents have admitted relevant facts in their pleadings. The father admitted the police had been called by his wife due to occasional disputes between them. He admitted that he had felt it was wrong when he saw her spanking one child lightly with his shoehorn. The father admitted in his pleading that in the last few months they had argued because of his suspicions that she was having an affair, and over money.
[28] The father admitted that it is detrimental for the children to see their parents arguing. He said he tends to leave to de-escalate the situation. He also admitted that he had warned her many times to cease her behaviour because it would damage the children emotionally if she did not.
[29] In her pleading, the mother admitted the truth of the contents of the affidavit of Society worker Ms. Willbond dated May 3, 2016, that the mother had personal knowledge of. This affidavit included a description of the parents arguing in the presence of Ms. Willbond and the children about the father’s accusations against and name calling of the wife. It also references another argument between the parents where the older child was present and was yelling for them both “to stop it, stop it.”
[30] The Society also tendered direct evidence in the form of Ottawa Police Occurrence Reports. These are admissible as business records. These reports establish that the OPS were called to the house on five occasions before this application issued, commencing April 11, 2014.
[31] On April 11, 2014, the police observed the mother and child outside on the front lawn with two suitcases. The mother did not report physical violence but asked for assistance to go to a shelter, which the police provided.
[32] The police were called to the house twice on December 20, 2014 for “partner disputes”. No offences had been committed.
[33] On June 26, 2015, the police were called to the house. Both parents appeared calm. The father said there had been a verbal argument. The police saw him leave the residence and he stated he would go to a hotel. The police made a report to the Society because the children were present and because they had been to the house for numerous similar occurrences.
[34] On April 17, 2016, the police were called. On arrival they found both parents on the front lawn. The children were inside sleeping. The mother said she had arranged a sitter for the children because she was going out and was scared of the father and did not want to leave the children with him alone. She returned home when the father had told the sitter to leave. The father confirmed this, adding that he had not known the sitter had been arranged. Both parents told the police they were seeking a divorce. Both refused to leave the home.
[35] On April 29, 2016, the police attended the home on information received from the Society. On arrival they observed the wife on the front steps with suitcases and two small children. The children did not appear to be upset, nor did the wife seem overly excited. After one hour the Society arrived. The wife said her husband had scratched her eyelid while he was grabbing her luggage from her. She said the injury was inadvertent. A small scratch was observed. The police observed the children to be well kept, clean and well fed. The mother stated she wanted to leave the house. The father said she could leave anytime, but could not take the children. It is reasonable to infer that the children were present. The Society worker was observed leaving with the mother and children.
[36] The social worker who was present observed the father to arrive home in his vehicle and park behind the wife’s so she could not leave. He told the worker that his wife went out in the middle of the night with men and was unfit. On this day, the mother also told the social worker she no longer feels safe in the house.
[37] The parents continued to involve the police after the separation. On May 10, 2016, the police attended at the shelter where the mother and children were staying. The mother complained to the police that her husband had said he would take the children to Lebanon. She also alleged that he had transferred 1.5 million dollars to Hezbollah during the past five years.
[38] On June 24, 2016, the father called the police to report that he had been threatened on two occasions by a male person on the telephone. The father thought he recognized the voice and provided a name to the police. The police contacted this individual and then asked the father to bring in or forward to them the voice recordings he said he had of these calls, so that they could compare the recorded voice to that of the individual they had spoken to. The father did not comply.
[39] On November 29, 2016, the father reported to police that his home had been broken into. He said that his laptop, cell phone and $2,500 in cash were missing. He also said he believed his wife was responsible. The police contacted her the same day. She said she had been in the house because he had asked to see the children. She denied the theft. On December 5 as part of a further investigation the investigating officer noted the break in had been on November 4 and the husband said he had called his wife about it on November 27. On December 5 he also told the officer that the day before, his wife had returned the computer and phone, and he told her to keep the money. Then, on January 25, 2017, he told the police that his wife had called his sister the day after the police spoke to her. He said she told his sister where in the house she had hidden the money and the laptop, and with this information he located these items.
[40] On May 23, 2017, the husband reported receiving a total of four threatening letters starting on April 25. The letters related to his wife’s involvement with other men. The husband told the officer he had given the first three letters to his wife, but he still had the fourth letter. He also reported that on May 23 a man in a red Kia had driven by his house and told him to keep away from his wife.
[41] The fourth letter was never brought in to the police by the husband. The wife denied having any of the letters.
[42] On June 3, 2017, the police were called to the wife’s house, arriving at 11:33 p.m., where they observed her motor vehicle had been set on fire and had substantially burned. The car was a Ford Focus registered to her but the plate on the rear belonged to a Mazda. Two days later the police were called back, arriving at 12:24 a.m. They observed her friend’s vehicle, a red Kia, fully engulfed in flames. Given the timing of these events, one infers the children were in the house. The mother expressed fear to the police.
[43] The Society tendered a statement made by the oldest child when she was 2.5 years old for its truth. The child pointed to a shoe horn and when asked if anyone hit her with it, tapped it on her leg and pointed to her father. This statement is offered to show the father had hit her with the shoe horn. I concluded the threshold requirements were not met having regard to uncertainty as to the child’s verbal skills and facility with Arabic and/or English, and because of the ambiguity between her tapping motion and the word, “hit” in the question posed to her.
[44] The Society worker has been to the mother’s current address and attests that it is suitable for the children and that they continue to be well cared for by their mother. The social worker reports that the mother is meeting the children’s educational and medical needs. There is no contrary evidence. The mother has been protective of the children and is co-operative with the Society. They intend to work voluntary to continue to provide support to her.
[45] In her Plan of Care the mother noted that she was residing with the children in a shelter, and had applied for subsidized housing. She planned to live alone with the children. They would attend Hawthorne Meadows Nursery School. She described activities she would arrange for the children and the community support that would be available to her.
[46] There is evidence that the mother has been dating in an ongoing relationship. There is no evidence she is cohabiting. The father pointed to a police report dated January 10, 2018 as evidence the mother is living in a volatile relationship to which the children are exposed. The police attended a public location where the mother had been taken ill. A friend approached wanting to see her, and was told, he could not. He spoke aggressively, called the police racists, and then left when asked to do so. The inferences the father drew from this report are not warranted.
[47] The father attended supervised access to the children at the Society from May 20 to June 30 2016. He provided various reasons for not attending visits thereafter, and did not attend further visits at the Society until fourteen months later, in August 22, 2017.
[48] It is acknowledged that the mother allowed the father to see the children twice in the community in July 2016 and again in November 2016. The mother did not report concerns to the Society with how the community visits went. She was present at a visit in his home in November 2016. This visit led to the November 29 police report.
[49] In February 2017 the Society was aware that the mother was allowing occasional voice and Face Time calls between the father and the children. She did not report any concerns with these contacts to the Society.
[50] The father resumed supervised access in late August 2017. Except for two weeks in November he attended regularly until December 14, 2017. He has not seen the children since then. He said he would not do so until a new worker was assigned to supervise the visits. He was advised to bring his concerns to the supervisor’s attention but had not done so.
[51] In his own affidavit the father expresses concerns about the small size of the access room, which he refers to as being “caged” for visits. He objects to the observation of the visits. He did not think the supervisor reported all the positive elements that occurred during access. He also believes supervised access will harm his daughters emotionally. He said he decided to forego access in these conditions rather than add to the children’s stress.
[52] The access supervisors reported that there were strengths shown by the father during visits, including being playful with the children, bringing them food and gifts, and showing interest by asking them about what they had been doing and activities they were involved in. The children were usually happy to see him but were observed on occasions to pull away from his hugs.
[53] Concerns about his parenting during visits were also noted. These included not setting limits or consequences for the children. The children were observed jumping off furniture, or yelling at their father without him intervening. It was also observed that he had difficulty paying sufficient attention to both children during visits. The father had on occasion told the children he would cry or would be sad if they did not hug him, in an effort to get them to do so. The supervisor also observed he was reluctant or unwilling to take cues or direction from her in relation to his parenting.
[54] The access supervisor deposed that in December 2017 the children asked her two or three times a week if it was time to leave or if they could go see their mother.
[55] The father explained his absences due to his dental surgery and other family issues taking him out of the country.
Is There a Genuine Issue of Credibility
[56] Not every issue of credibility constitutes a genuine issue requiring a trial. The test set out in Irving Ungerman Ltd. v. Galanis, (1991) 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545 (C.A.) asked whether “the tendered evidence is in its nature too incredible to be accepted by reasonable minds, or that in conceding its truth, it is without legal probative force.” In Royal Bank of Canada v. Feldman, (1995) 1995 CanLII 7060 (ON SC), 23 O.R. 3d 798 (Gen. Div.) the court held that the judge on a summary judgment motion must ask whether an important issue of fact turns on credibility, or whether there is a genuine issue with respect to credibility that requires oral testimony in a trial context in order to properly assess credibility.
[57] More recently the following cases illustrate a genuine issue of credibility that prevented the success of a motion for summary judgment:
- In Chaves v. Shum, 2004 MBCA 56, paragraph 15 the court found that “the failure of counsel for the plaintiffs to recognize and deal with the patent and critical conflict in the testimony of his two clients” constituted a genuine credibility issue that required a trial on the merits to resolve.
- In George Weston Limited v. Domtar Inc., 2012 ONSC 5001, paragraph 27, the court held that summary judgment should not be granted where there is conflicting evidence on key issues requiring credibility determinations, and/or the absence of reliable documentary yardsticks against which to assess credibility.
- In Cranston v. Cranston, 2010 ONSC 6429, a trial was required to determine whether an oral transaction constituted a gift or loan, which put the parties’ credibility directly at issue.
[58] Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, [2014] O.J. No 2745 (C.A.), framed the issue by asking whether the evidence in the record established a clear conflict in evidence on factual matters. If so the summary judgment motion judge should consider whether the powers provided under the summary judgment rules ought to be employed in resolving the conflict.
[59] The father made submissions that there was a genuine issue of credibility with respect to the mother that required a trial. He points to the two affidavits she deposed in this case. In the first she refers to information she says she received from community members, saying her husband said he would kill her, and that he had offered $50,000 for each child to anyone who could get the children away from her. In her second affidavit she said that while she had believed it at the time, she now had reason to believe that the person or persons who provided this information had ulterior motives and had either exaggerated or fabricated their stories. She said she had been unable to contact these people and thought they were avoiding her because they had been untruthful.
[60] The mother’s credibility is not impaired by her second affidavit. To the contrary it shows that she has set the record straight in a timely fashion. The father could have cross-examined her on these affidavits but did not do so.
[61] On April 11, 2014, the mother told the police her husband had not been physically violent to her in the past. Although she left that day, by December 20 she was home again. Returning home does not impair her credibility. Her statement to the police on December 20 that she was afraid of her husband is said to be inconsistent with her refusal to turn his car keys over to him. This does not raise a genuine issue of fact or credibility requiring trial. She called the police for help leaving home again on June 26, 2015. She again denied physical violence. There is a suggestion by both spouses to the police that she wanted $50,000 from her husband. The husband suggests the court should infer she was calling the police to lever him into paying her, and that this suggestion calls her credibility into question. This is speculative. Nor would I draw such an inference in the absence of evidence within the husband’s ability to provide, namely whether she may have a legal entitlement to that sum of money arising from the marriage breakdown.
[62] The father seems to suggest that the mother’s statements to the police that he was not physically violent are inconsistent with other statements that she is afraid of him. I disagree.
[63] He relies on the Mazda plate being found on the wife’s Ford vehicle at the time of the arson as odd and suggested it is some evidence that she set up the arson for her own purposes. I reject his theory. There is no advantage the wife could obtain by muddying the water as to the ownership or identity of the vehicle that was burned. In his own affidavit the husband states that she traded in her Mazda for the Ford. A much more probable inference is that she was using her old plate on the new vehicle.
[64] The father describes the allegations the mother made on May 10, 2016 with respect to him funnelling money to Hezbollah as “escalation” to achieve her ends. He puts her statements that he threatened to take the children to Lebanon in the same category. These allegations have not been proven. I agree that the issues in this motion must be decided without assigning any weight to these statements. The Society did not ask the court to do so.
[65] An officer present on April 17, 2016 formed a dim view of the wife’s credibility as to what occurred on that date. The father invites the court to rely on this impression to find that there is a genuine issue of credibility requiring a trial. Whether the husband hit her on that occasion is not a key issue in the context of this case. Nor did the husband provide substantive evidence about the events of that date himself.
[66] The father’s final submission was that without a detailed affidavit from the mother the court was unable to assess her credibility, and therefore a trial should be required. The difficulty for the father here is that he has not provided evidence of specific facts sufficient to demonstrate a factually conflicting record that would require a trial to resolve.
Conclusion
[67] The court must proceed with caution on a motion for summary judgment in a child protection case. Courts have used phrases such as, “no chance of success”, “the outcome is a forgone conclusion”, or is “plain and obvious”, or where there is “no realistic possibility of an outcome other than that sought by the moving party” in describing the approach to be taken: Catholic Children’s Aid Society of Hamilton v. B.W.B. et al, at paragraphs 84 and 85.
[68] As stated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 paragraph 49:
49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This 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.
[69] I conclude that this is a proper case to grant summary judgment. There is sufficient admissible evidence to establish that the children were in need of protection as claimed by the Society, even without additional evidence from the mother. Based on the direct evidence, the parents’ admissions and the police reports, the children were at risk of physical and emotional harm arising from ongoing exposure to parental conflict.
[70] The basic facts to support the Society’s case are not in dispute: prolonged marital discord, verbal arguments in the presence of the children, multiple police attendances, a mother on her own providing well for the children for two years, a father who does not avail himself of many, many access opportunities with his children, who when he does exhibits some behaviours indicative of a need for supervision.
[71] Without determining whether or not the father was involved in the arson, I do note that he had the opportunity to produce his passport to prove that he was in Lebanon at the time the vehicles burned, but did not do so. He made two separate complaints to the police that he was being threatened. On neither occasion did he bring them the hard evidence he said he had to support the complaints. He reported the mother to the police after the visit she facilitated with the children in his home. The information he provided the police in that regard was notably contradictory. His omission to provide clear proof that is readily available to him, together with the record of past marital conflict and the husband’s disbelief that his wife does not want to reconcile with him, lead me to conclude that a court order is necessary to protect the children in the future.
[72] It is readily apparent that there is only one viable plan before the court, namely the mother’s plan, supported by the Society. The children have lived solely in their mother’s care for almost two years now, and are well cared for. The father’s desire to reconcile with his wife is not a plan.
[73] The father poses many questions and suggests the possibility of additional or different evidence at trial. So doing does not raise a genuine issue requiring trial.
[74] For these reasons the motion for summary judgment is granted. The final order will issue in these terms:
- A finding that the children, M.J. (DOB: May 23, 2013) and M.J. (DOB: July 30, 2014), are in need of protection under ss. 37 (2)(b)(i); 37 (2)(b)(ii); and 37 (2)(g) of the Child and Family Services Act;
- An order placing the children, M.J. and M.J. in the custody of their mother, R.J. under s. 57.1 of the Child and Family Services Act;
- An order that access to the father, J.J. shall be at a supervised access centre, or supervised by a third party agreed upon by the parties and approved in advance by the Society.
J. Mackinnon J.
Released: April 10, 2018