The Children’s Aid Society of Ottawa v. M.A., E.E. & D.D.
COURT FILE NO.: FC-10-1932 DATE: 2018/06/06
COURT OF ONTARIO SUPERIOR COURT OF JUSTICE, FAMILY COURT
RE: The Children’s Aid Society of Ottawa, Applicant AND: M.A., E.E. & D.D., Respondents[^1]
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Deborah E. Bennett, for the Society Jonathan Nadler, for the mother Cheryl Hess, for the daughters Danielle Dworsky, for the son
HEARD: June 5 & 6, 2018
Note: Pursuant to s. 87 (8) of the Child, Youth and Family Services Act, 2017 no person shall publish or make public information that has the effect of identifying a child who is a subject of this proceeding, or the child’s parent or foster parent or a member of the child’s family.
ENDORSEMENT
[1] The Society brings this motion for summary judgment in respect of two of the children. Specifically, the Society seeks a finding that the daughters, A.B. and B.C.[^2] are children in need of protection and should be placed under the extended care of the Society (what was known as Crown wardship under the predecessor legislation). The issue of access by the mother would remain to be determined at the trial. The issues with respect to the eldest child have apparently been resolved. In any event they do not form part of the motion.
[2] The matter before the court is an application for child protection started on September 23rd, 2016 following an apprehension that took place on September 19th, 2016. The circumstances are in dispute but the Society’s application was based on a history of prior protection proceedings, reported suicidal ideation by the mother, ongoing issues with addiction on the part of the mother, exposure to domestic violence, inappropriate sexual behaviour between the children, and admissions by the mother that she was incapable of providing care at the time.
[3] The children have been in temporary care since September of 2016. This matter has now greatly exceeded the maximum time permitted for an application under the Family Law Rules. For purposes of this motion I need not attempt to analyze the reasons for the delay. A trial was at one time scheduled to begin in April and is now scheduled to begin in two weeks.
[4] This motion was scheduled for a full day but it spilled into a second day. Given the impending trial date, I advised counsel that I would deliver brief reasons today. That is the purpose of this endorsement. Brevity and the need to deliver an immediate decision do not allow me to give comprehensive reasons.
[5] In Hryniak v. Mauldin[^3], the Supreme Court mandated a culture change for all justice system participants. Classic trials are not to be viewed as the default procedure and summary procedures are to be adopted when it is fair and just to do so. This will be the case if the summary process permits the necessary findings of fact, permits the judge to apply the law to those facts and if a motion is a proportionate, more expeditious and less expensive means to achieve a just result. The focus is on justice and not on the right to “the most exacting procedure” and in assessing justice, considerations of proportionality, expense and use of judicial resources are important. This does not mean that fairness and justice are to be replaced by expediency. To the contrary, summary judgment is a tool to be used when it is just to do so.
[6] Although I am extremely concerned with the delays in this proceeding and I recognize the needs of the children for finality and stability are not being met, that does not mean that summary judgment is appropriate. In this case, the mother disputes that the children remain in need of protection and she disputes the need for extended care effectively terminating her status as a parent. That is not a reason to refuse summary judgment if the result at trial is a foregone conclusion of course and parental rights are secondary to the best interests of the children.[^4] It is nevertheless a factor because summary judgment must be used appropriately.
[7] I decline to grant summary judgment for a number of reasons. Firstly, there is the fact that the motion is on the eve of trial and is only for partial summary judgment. I have considered the following:
a. The evidence that will be called to establish the best interests of the children in relation to the mother’s access will be much the same evidence that would be required in respect of determining that the children are in need of protection and crown wardship is appropriate. I am not persuaded the trial would be dramatically shortened.
b. In Butera v. Chown, Cairns LLP[^5], the Court of Appeal has indicated that partial summary judgment should be used sparingly as it may well not be in the interests of justice. Amongst the concerns, the court highlighted the possibility of further delays if the motion is appealed and the spectre of inconstant findings of fact if the same evidence is assessed by different judges, once on a paper record and once in a viva voce hearing.
c. These concerns are exacerbated if the motion is brought on the eve of trial. In fact courts have refused to schedule summary judgment motions in those circumstances and summary judgment has been denied because the prospect of reserves and appeals would render the intended advantage of a summary judgment motion illusory.
d. Summary judgment in these circumstances may not achieve the intended result of a more efficient streamlined process. It may have the opposite result.
[8] There are also fairness considerations. I have considered the following:
a. The mother has recently retained new counsel. The need to retain new counsel and for counsel to prepare for dates that had been already fixed is not the fault of the mother. While material was filed in opposition to the motion and it was argued by Mr. Nadler, this is a date on which Mr. Nahum was not available and the response to the motion had to be prepared in a matter of weeks.
b. The Society relies heavily on admissions by the mother made to workers at the Society or recorded in the family court clinic assessment. While the Society’s records may well be business records admissible under s. 35 of the Ontario Evidence Act, no notice under the Act has been served. Giving notice in an affidavit is not the proper way to give notice under s. 35. Similarly, while the FCCA is evidence pursuant to s. 98 (12) of the Act, it is true that neither the report nor earlier affidavits found in the continuing record are listed in the Notice of Motion (although they were subsequently referred to in the confirmation form).
c. In any event, provisions that render hearsay evidence admissible do not speak to weight and of course inferences to be drawn from records or reports may be refuted by direct evidence. I am not equipped to weigh the evidence and assess credibility in the context of this motion and it would be inappropriate to conduct a mini-trial on the eve of the actual trial.
[9] None of these considerations are by themselves dispositive. Taken together however, they lead me to the conclusion that justice is not served by granting the motion.
[10] While the trial will now proceed on all of the issues, I reiterate my concern that counsel should not be approaching this matter in a highly technical or adversarial manner. The legislation mandates a child centred approach. No one will be well served if the trial is unnecessarily burdened with evidentiary or procedural challenges and if facts are disputed that should be admitted.
[11] In conclusion, the motion for summary judgment is dismissed.
Mr. Justice C. MacLeod
Date: June 6th, 2018
COURT FILE NO.: FC-10-1932 DATE: 2018/06/06
ONTARIO SUPERIOR COURT OF JUSTICE
RE: The Children’s Aid Society of Ottawa, Applicant AND: M.A., E.E. & D.D., Respondents[^6]
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Deborah E. Bennett, for the Society Jonathan Nadler, for the mother Cheryl Hess, for the daughters Danielle Dworsky, for the son
HEARD: June 5 & 6, 2018
Endorsement
Mr. Justice Calum MacLeod
Released: June 6, 2018
[^1]: Pseudonyms for purposes of publication [^2]: See note 1 [^3]: 2014 SCC 7, [2014] 1 S.C.R. 87 [^4]: See my decision in CAS Ottawa v. SH & MB, 2017 ONSC 3906 for example [^5]: 2017 ONCA 783 [^6]: Pseudonyms for purposes of publication