Confidentiality Warning

WARNING The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — 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.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.

Court File and Parties

COURT FILE NO.: 4114/18 DATE: 2018-12-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA Appellant – and – L.G. -and – R.C. (R.) Respondents

Counsel: Anthony Marrato, Counsel for the Appellant George Florentis, Counsel for L.G. Eric D. McCooeye, Counsel for R.C. (R.) Andre L.J. Berthelot, Counsel for The Office of The Children’s Lawyer

HEARD: November 27, 2018

GAREAU J.

REASONS ON APPEAL

[1] The Children’s Aid Society of Algoma appeals the decision of Lalande J. of the Ontario Court of Justice made on April 23, 2018 wherein he dismissed the Society’s application for summary judgment.

[2] By way of brief background, there are three children, ages 8, 12 and 14, who are subject to this child protection application. The children are the biological children of the respondent L.G.. The respondent R.C.(R.) is the maternal aunt of the children. On July 4, 2011, Justice R. Villeneuve of the Ontario Court of Justice made a finding that the children were in need of protection and made an order placing the children with Ms. L.G., their mother, under a supervision order for a period of 12 months. On October 9, 2011, the Children’s Aid Society of Algoma observed a breach of the supervision order and as a result apprehended the three children and placed them in foster care. The status review application proceeded to trial before Villeneuve J. who on July 8, 2013 made a final order that the children be placed in the care of their mother subject to a 12-month supervision order. A status review application was brought by the Children’s Aid Society on May 14, 2014. Pending the final determination of the status review application all three children were apprehended from their mother on November 28, 2014 and have remained in Society care since that date. The motion before Lalande J. brought by the Society sought a final order for Crown wardship without necessity of a trial in the status review proceeding.

[3] It is clear from the material that was before Lalande J. and before this court that all three children have expressed a desire to return to live with their mother. This was the position taken by the Office of the Children’s Lawyer both on the motion for summary judgment before Lalande J. and on this appeal before me.

[4] All counsel agree that the standard of review on the appeal brought by the Society is whether the learned judge made a palpable and overriding error in his application of Rule 16 of the Family Law Rules, which is the rule governing the application for summary judgment.

[5] I have reviewed Justice Lalande’s reasons, which are extensive, covering 26 pages and 134 paragraphs.

[6] Justice Lalande’s reasons are thorough and thoughtful. In those reasons he correctly sets out and applies the summary judgment rule in light of the evidence and the applicable jurisprudence. The reasons of Lalande J. are more than sufficient to provide a roadmap outlining how he arrived at his decision and the reasons for the decision he arrived at.

[7] Justice Lalande, in his reasons, embarks on a thorough review of the evidence brought forward by the Society (see paras. 24 to 33 inclusive of his reasons). Justice Lalande is sensitive to what the Society indicates that this evidence points to. His reasons, at paragraphs 34 and 35 read as follows:

[34] In the Society’s submission, the children deserve a permanent home and a solid lifestyle. This cannot be attained with any degree of certainty if they are returned to the mother’s care. Moreover, in the Society’s submission, placing the children in kinship care with the maternal grandmother or the maternal aunt and her husband is not, in all of the circumstances, a viable option. From the Society’s viewpoint, it is time to place the importance of permanency planning for the children at the forefront. Inherent in the Society’s position is that further delay toward permanency planning will not be beneficial to the children.

[35] In the Society’s view when all the evidence is looked at as a whole, there is no genuine issue requiring a trial. In other words, given the totality of the evidence provided there is no realistic possibility of an outcome much different than that as sought by the Society.

[8] In his reasons, Justice Lalande then went on to review the evidence of the mother, including commenting on the findings made by Justice Villeneuve in the earlier child protection proceedings. (See paras. 36 to 46 of his reasons.)

[9] Justice Lalande also reviewed the evidence related to the maternal aunt and her position and plan with respect to the children. (See para. 47 to 67 of his reasons.)

[10] It cannot be said by any stretch of the imagination that Justice Lalande ignored the evidence or that he did not adequately consider the evidence. At paragraph 94 of his reasons, Justice Lalande states that,

I have done my best to scrutinize the evidence which counsel pointed to in their respective submissions. I have not, for the purpose of these reasons, attempted to refer to all of the evidence. The evidence is simply too voluminous. I have done my best to consider all the evidence relevant to the decision to be made on the motion.

Justice Lalande indicates that he has reviewed the evidence and, in my view, it is clear from his reasons that he has done so.

[11] In his reasons, Justice Lalande clearly highlights the evidence in a summary fashion at paragraph 100 in leading him to the conclusion that he finds that there is a genuine issue for trial. In paragraph 100 of his reasons, Justice Lalande states that,

In these circumstances, however, based on the evidence as a whole (including the history of the Society’s involvement, the mother’s lack of diligence in following recommendations, the nature of the two relationships engaged in by the mother, the conflicting evidence surrounding the last apprehension, the mother’s current improved lifestyle, the mother’s relationship with the children, the mother’s homemaking skills and her plans to positively move forward) I do find that there exists a genuine issue for trial.

[12] From paragraphs 13 to 16 inclusive of his reasons, Justice Lalande discusses the applicable law (Rule 16) and the jurisprudence that has considered that rule. I can find no error in Justice Lalande’s recitation of the law in his reasons. At paragraph 101 of his reasons, Justice Lalande clearly sets out how he has applied the law to the facts, when he states,

I have considered subsection 37(3) of the Child and Family Services Act including factors such as continuity of care, the current status of the children, their emotional ties to their mother and extended family, the merits of the plans put forth, the wishes of the children and importantly the issues of delay. I have also considered the powers set out in Rule 16(6.1) permitting me, in my discretion, to weigh some or all of the evidence, evaluate credibility and draw reasonable inferences in order to determine if the needs for a trial can be avoided.

[13] Justice Lalande goes on to conclude at paragraphs 102 and 103 of his reasons,

I have taken a hard look at the merits of the case. Given the nature of the relief sought, the viability of the mother’s position, the position taken by the maternal aunt and the children (also opposing the Society’s motion) I must conclude, notwithstanding the discretionary powers set out in Rule 16(6.1) that there exists a genuine issue for trial.

In the final analysis, despite the Society’s persuasive representations it has not shown that here is no genuine issue for trial. Correspondingly the mother (who’s [sic] position on the summary judgment motion does not conflict with the position of the maternal aunt or the children) has provided sufficient evidence to establish that she has a real chance of success. There is a genuine issue for trial because there does exist a realistic possibility of an outcome in favour of the mother. Generally speaking it appears that the mother may be facing better future prospects in her life than what existed at the time of the last apprehension.

[14] In my view, there is no reason to interfere on appeal with this conclusion reached by Justice Lalande after a thorough review of the applicable rule (Rule 16), the jurisprudence and the facts before him on the application.

[15] Justice Lalande’s decision is entitled to deference which should not be overturned absent palpable and overriding error.

[16] I am not persuaded that the statement by Justice Lalande that he was not going to review the maternal aunt’s evidence as set out in paragraph 104 of his reasons amounts to a palpable and overriding error. The fact is that Justice Lalande did review in detail the evidence relating to the maternal aunt and the position put forward by her in paragraphs 47 to 67 of his reasons, referred to earlier in this decision. As set out in paragraph 101 of his reasons, Justice Lalande clearly considered the children’s emotional ties with “extended family”.

[17] It is not up to this court sitting in appeal to substitute its own decision for that of the summary judgment motion judge despite the best attempts by counsel for the Children’s Aid Society of Algoma to re-argue the matter before me.

[18] I can find no basis, on the material before me, to conclude that Justice Lalande made a palpable and overriding error in his consideration or application of the law or in his application of the facts to the law.

[19] Accordingly, the Society’s appeal is dismissed. With this disposition, the matter should proceed to trial in the Ontario Court of Justice.

Gareau J.

Released: December 4, 2018

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA - and - L.G. -and – R.C. (R.) REASONS ON APPEAL Gareau J. Released: December 4, 2018