COURT FILE NO.: C-1446/16 DATE: 2019-04-05
WARNING 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 Family 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.
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton Martha Tweedie, for the Applicant Applicant
- and -
S.W. Respondent Mother J.A. Respondent Father Salvatore Garcea, for the Respondent Mother and the Respondent Father HEARD: March 6, 2019
OFFICE OF THE CHILDREN’S LAWYER Vicky Ringuette, for the Office of the Children’s Lawyer
Judgment
THE HONOURABLE MADAM JUSTICE L. MADSEN
[1] This is a motion for summary judgment brought by the Applicant Children’s Aid Society of Hamilton (“CAS” or “the Society”) within the “Amended as Fresh” Status Review Application returnable October 15, 2018.
[2] This matter involves three children: S.A., born […], 2002, who is 16; J.-L.A., born […], 2007, who is 11; and K.A., born […], 2015, who is 3 years old. For ease of reference, the children are referred to as “Sam”, “Jane”, and “Kathy” in this Judgment. The children have an older brother who is 18 years of age whom I will refer to as Coulter herein.
[3] As of the date of the hearing, Sam had been in society care almost 31 months. Jane and Kathy had been in society care approximately 14 months, and out of their parents’ care for over 30 months.
[4] The society has been involved with the family since 2011. The parents have been unable to make gains to put themselves in a position to parent their children.
[5] The society seeks an order finding that the children are not First Nations, Inuk, or Métis children, and that they be placed in extended society care. They seek an order that the parents have access to Sam and Jane in the society’s discretion taking into consideration the views of the children, and that the parents and Sam and Jane be access holders in respect of this access. The society also seeks an order that the parents have no access to the youngest child, Kathy. Finally, they seek an order for sibling access between the children in the discretion of the society, in consultation with the children, and that the children each be access holders in respect of this access.
Notice to the Parents
[6] On November 5, 2018, pursuant to Minutes of Settlement, the court set timelines for the service and filing of materials in relation to this motion. The parents were to file their materials by February 11, 2019. Facta were to be filed by February 25, 2019 and the matter was to be placed on the trial sittings commencing March 4, 2019.
[7] The society’s materials for the summary judgment motion were served on counsel for the parents on January 15, 2019.
[8] The parents were aware of the deadlines for filing materials which were set when they attended court on November 5, 2018. As of the hearing of this motion, no responding materials had been filed by the parents.
[9] The parents were in court when the matter was put to the March 4, 2019 trial sittings. The parents’ counsel advised that they were to speak to him on March 1, 2019, but did not do so. The parents did not attend for the summary judgment motion. The parents’ counsel had no instructions from his clients and no adjournment was sought.
Material Reviewed and Considered
[10] In determining this motion for summary judgment I have carefully reviewed and considered the following materials filed in the Continuing Record:
a. Status Review Application returnable September 20, 2017; b. Amended Status Review Application returnable April 20, 2018; c. Amended as Fresh Status Review Application returnable October 15, 2018; d. Answer and Plan of Care of the Society dated August 17, 2017; e. Answer and Plan of Care of the parents, signed September 6, 2017; f. Answer and Plan of Care of the Society dated May 30, 2018; and g. Notice of Motion dated January 14, 2019 seeking Summary Judgment.
[11] In addition, I have reviewed the following affidavit materials:
a. Affidavit of Child Protection Worker Kerren Klekner, sworn January 14, 2019; b. Affidavit of Children’s Services Worker Santosh Kuriakose, sworn January 14, 2019; c. Affidavit of Child Protection Worker Sasiga Sivasunthararasa, sworn January 14, 2019; d. Affidavit of Child Protection Supervisor Fiona Koopal, sworn January 14, 2019; and e. Affidavit of Family Visit Worker Patricia Reed, sworn January 15, 2019;
[12] As indicated above, neither the mother nor the father filed any responding materials to the motion for summary judgment.
[13] On the consent of the society and without objection from parents’ counsel, the lawyer for the children Sam and Jane advised the court of the views and preferences of Sam and Jane. This is discussed further below.
Litigation History
[14] The society brought a Protection Application originally returnable on September 27, 2016, seeking a protection finding and an order placing the children in society care for six months. At that time the children had been apprehended due primarily to alcohol abuse by the parents and related impacts on their ability to care for the children.
[15] On March 27, 2017, a final order was granted pursuant to Minutes of Settlement finding the children to be in need of protection under section 37(2)(l) of the previous legislation, the Child and Family Services Act [“CFSA”]. The non-subject child, Coulter, as well as Sam were placed in society care for six months. The younger children, Jane and Kathy, were placed in the care of the maternal great-aunt under society supervision for six months, with access and supervision in the discretion of the society.
[16] The society commenced a status review application returnable September 20, 2017, seeking a further six month society wardship order for Coulter and Sam; and a further six month supervision order with the maternal great-aunt for the younger children Jane and Kathy. On that day, the court made a temporary order continuing the existing order, and added the maternal great-aunt as a party.
[17] Due to health concerns, the maternal great-aunt was unable to maintain care of Jane and Kathy. On February 14, 2018, the court made a further temporary order, this time placing the younger children in the care of a maternal aunt and removing the maternal great-aunt as a party.
[18] On April 17, 2018, the parents requested that Jane and Kathy be removed from the care of the maternal aunt. The society brought an Amended Status Review Application returnable April 20, 2018 seeking an order that all of the children be placed in society care for six months, with access. On the same day, a temporary temporary order was granted placing Jane and Kathy in the care of the society with access.
[19] The society commenced an “Amended as Fresh” Status Review Application returnable October 15, 2018, seeking an order that the children be placed in the extended care of the society with access between the parents and the older children and no access between the parents and the youngest child Kathy.
[20] The mother and father filed an Answer and Plan of Care dated September 6, 2017. In that Answer they sought the return of the children to their care.
Findings of Fact
[21] I make the following findings of fact based on the undisputed evidence before the court:
a) The children are S.A., born […], 2002, who is 16; J.-L.A., born […], 2007, who is 11; and K.A., born […], 2015, who is currently 3 years old. They are referred to collectively as “the children.” As noted above, the children are referred to as “Sam”, “Jane”, and “Kathy”, for ease of reading. b) The mother is S.W., born […], 1983. She is 36 years old. S.W. is referred to in this Judgment as “the mother.” c) The father is J.A., born […], 1978. He is 41 years old. J.A. is referred to in this Endorsement as “the father.” d) The children’s older sibling is C.A. He is 18 years old and no longer a subject of this proceeding. He is referred to herein as “Coulter.” e) The evidence does not support a finding that the children are First Nations, Inuk, or Métis. f) The family has had involvement with several children’s aid societies. The family has been continuously involved with the Hamilton Children’s Aid Society since January 2015. g) The protection concerns relate to the following issues: the parents’ alcohol use, addiction, and lack of follow through with services; both parents’ ongoing mental health difficulties; adult conflict including domestic violence; extensive police involvement; an inability to manage the child Sam’s behaviours; and an inability to meet the children’s needs. These concerns are detailed more fully below.
Alcohol use
h) The children were apprehended from their parents’ care on September 22, 2016 due primarily to their parents’ excessive alcohol use and the consequences of this on their parenting. i) Since the society became involved, both parents have been unable to manage their use of alcohol in a manner compatible with safe and secure parenting. j) Both parents have been frequently intoxicated in public. In 2018 alone, the father was arrested on three separate occasions and charged with public intoxication. The police have also found the mother intoxicated in public. Numerous police reports refer to one or both parents being heavily intoxicated. k) The father has been aggressive towards police when intoxicated and the mother has reported to the society that he “rages” when intoxicated. In February 2016, while intoxicated, the father made serious threats towards the mother and children and the police used a taser to subdue him. The children witnessed this incident. l) The children have witnessed and are aware of their parents’ excessive alcohol use. In September 2018, Jane expressed concern to the Children’s Services Worker that her father would drink excessively if the children were returned. m) The parents have acknowledged needing assistance to address their alcohol use and are aware of programs available to assist them in tackling this issue. They have from time to time started programing and attended sessions to address the concerns but that programming has not been completed. As of November 2018, the parents told the Family Services Worker that they were no longer attending any addictions services.
Mental health issues
n) Both parents struggle with mental health concerns but have had difficulty following through on treatment. The seriousness of the concerns is evident in the police records which were obtained by the society and provided to the court as part of the motion materials. o) The mother has threatened to commit suicide. In the parents’ Answer, they indicate that the mother experiences depression. In April 2018, the mother was apprehended under the Mental Health Act when, while intoxicated, she walked into traffic threatening to “end it all.” p) The father has experienced suicidal ideation. The police records include an incident in February 2016 when the father threatened to kill two of the children and the mother, and then sent texts to the mother stating he was going to kill himself. The mother called the police. The father was located, became aggressive with the police and asked to be shot by them. He was subdued with a “taser” and then brought into custody. q) The parents have acknowledged that they need assistance to address mental health struggles but have not consistently followed through with services.
Adult conflict including domestic violence
r) There is significant conflict in the parents’ relationship, including serious incidents of domestic violence by the father against the mother. The children have been repeatedly exposed to this adult conflict. The mother expresses fear of the father. She continues to reside with him. s) The mother has at times sought safety in a shelter but resumes living with the father thereafter. She has been unable to separate herself from the father for a sustained period of time. t) When the mother is separated from the father, such as when he was in custody in the summer of 2018, she makes positive changes for herself. However, she has been unable to remain separate from the father when he is not in custody. u) In July 2018, the father was arrested due to violence against the mother. The police report indicates that the father threw the mother to the ground and choked her. The father later stated that he was intoxicated during this incident. Following this incident the mother reported fear of the father but gave her consent for him to contact her after his release from custody. v) In 2016 the father was convicted of “Uttering Threat to Cause Death or Bodily Harm.” w) As recently as September 23, 2018, the mother told the police that she is afraid of the father. x) Notwithstanding that domestic violence has been an ongoing concern and that the mother has repeatedly been victimized, she has declined programming related to violence against women.
Police involvement
y) The parents’ conflict and difficulties with alcohol have often led to the involvement of the police. From January 2016 to December 2018, the parents were involved with the police on numerous occasions. The police noted that the parents were intoxicated on almost all occasions. The police records include, for example, the following incidents: z) On September 22, 2016, the mother fell and broke her nose. The police noted that both parents were intoxicated and the children were unattended. The society was called; aa) On April 14, 2018, the mother was apprehended under the Mental Health Act, the father was noted to be intoxicated. He was seen trying to remove the mother’s restraints; bb) On June 1, 2018, the father was found by police to be intoxicated in public and charged under the Liquor Licence Act; cc) On September 23, 2018, the father was arrested for public intoxication. He was aggressive with the police and was carrying a pellet gun; on this occasion the mother revoked the consent to contact; dd) On October 31, 2018, the mother ran into a bar and was seen to have a one inch cut on her hand and a pink linear mark on her cheek. She said she and the father had had an argument. The police noted that the mother was intoxicated; ee) On December 5, 2018, the police responded to a domestic incident in which alcohol was involved.
Inability to meet the children’s needs
ff) The parents have had difficulty maintaining appropriate housing during the involvement of the society. gg) The parents are currently renting a bachelor apartment.
Sam’s challenges
hh) Sam is presently 16 years old. The parents have had significant difficulty managing Sam’s behaviours. He continues to engage in high risk behavior and while in foster care has frequently been “AWOL” from his foster placement or in custody. He experiences mental health issues and has not consistently followed through with any treatment. He uses alcohol and marijuana. ii) Sam often attends at his parents’ home while AWOL from the foster home. On one occasion in October 2018 he accompanied his parents to “fight” other individuals. This suggests a significant judgment lapse on the part of the parents in permitting him to be involved in the “fight”. The incident resulted in criminal charges against Sam. jj) Sam was arrested January 4, 2019 on charges related to theft and breach of probation. kk) Sam would like to live independently or with his parents, and his counsel states that he would work with the society through a voluntary youth service agreement (VYSA). He does not want to be in extended society care.
Jane’s circumstances
ll) Jane, who is 11, has also at times been AWOL from her foster placement. She has at times exhibited difficult behaviours at school such as swearing and running away. mm) However, after her foster placement changed in June 2018, her behaviours improved. She is healthy overall and has a good relationship with the foster parents. nn) Jane would also prefer to be in the care of her parents. She does not want to be in a foster home. Her counsel states that she understands her parents’ challenges in terms of caring for her and siblings, but is very adamant that she wishes to be returned to her parents’ care.
Kathy
oo) Kathy is presently 3 years old. There are no significant concerns related to her development. She may have a speech delay for which services will be accessed.
Access
pp) There was a gap in access with the parents between April and August 2018 as the parents were required to address issues with lice and bedbugs. Since then, access for Jane and Kathy to the parents is currently twice per week at the society and appears to go well. qq) Sam has had sporadic access in the community with his parents when not in custody and not AWOL from his foster placement. Because of this his access time with his siblings has been limited.
Kinship caregivers
rr) Both the maternal great aunt and the maternal aunt have been kin caregivers in this matter for Jane and Kathy. The maternal great aunt encountered a medical issue and was unable to maintain care of the children. The children were removed from the maternal aunt’s care at the parents’ request in April 2018. ss) The uncontested evidence of the society is that there are no other kin care options.
Services
tt) The agency has made consistent efforts to connect both parents with services both for mental health and addictions issues. The mother was encouraged to obtain a mental health assessment but did not do so. The mother was referred to services related to violence against women but has declined those services. uu) The society has also been willing to assist the parents with first and last months’ rent to obtain suitable accommodation. The parents are presently residing in a bachelor apartment. vv) Although the parents have intermittently made efforts to attend services to address the protection concerns, these efforts have not been sustained and have not resulted in a reduction of the child protection issues. For example, both parents engaged with the ADGS program for a period of time but ultimately neither completed the programming. The mother attended five sessions in 2018, but then missed a number of sessions and requested that her file be closed. The society also referred the parents to Suntrac Addictions Services.
The Law
[22] This is a motion for summary judgment in relation to a Status Review Application.
Status review application
[23] The following summary of the law to be applied on a status review application was set out in Catholic Children’s Aid Society v. S. (B.L.), 2014 CarswellOnt 12921 at para. 83 (Ont. S.C.J.):
a. In a status review hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made. b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection. c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165) d. Secondly, the court must consider the best interests of the child. e. The analysis must be conducted from the child's perspective.
[24] The court is governed by the provisions contained within the Child, Youth and Family Services Act, S.O., 2017, Chapter 14, Schedule 1 [“CYFSA”], which came into force on April 30, 2018. Under the transitional provisions set out in section 11(1) of Ontario Regulation 157/18, a proceeding commenced under Part III of the previous legislation, the Child and Family Services Act [“CFSA”], but not concluded prior to the coming into force of the CYFSA shall continue as a proceeding under the CYFSA.
[25] Section 114 of the CYFSA provides that where, as here, a status review application is made under section 113, a court may, in the child’s best interests:
a. vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order; b. order that the original order terminate on a specified future date; c. make a further order or orders under section 101; or d. make an order under section 102.
[26] Sections 101 and 102 of the CYFSA provide that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders:
- that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months;
- that the child be placed in interim society care and custody for a specified period not exceeding 12 months;
- that the child be placed in extended society care until the order is terminated under section 116 or expires under section 123;
- that the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months; or,
- that one or more persons be granted custody of the child, with the consent of the person or persons.
[27] Sections 101(2), 101(3) and 101(4) of the CYFSA require the court to consider additional factors when determining the issue of placement. These factors include whether there are any less disruptive alternatives such as community or extended family placements. The court must also consider what efforts the society has made to assist the child before intervention.
[28] The court’s decision must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations.
[29] The court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of children.
[30] The governing principle where considering the placement of a child is the “best interests of the child”. The factors to be considered in determining best interests of a child are contained in section 74(3) of the Act, which provides as follows:
74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
a. consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; b. in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and c. consider any other circumstance of the case that the person considers relevant, including, i. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, ii. the child’s physical, mental and emotional level of development, iii. the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, iv. the child’s cultural and linguistic heritage, v. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, vi. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, viii. the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, ix. the effects on the child of delay in the disposition of the case, x. the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and xi. the degree of risk, if any, that justified the finding that the child is in need of protection.
[31] Under section 105(5), an order for extended society care presumptively terminates access. Where there is an extended society care order, a court shall not make or vary an access order unless it is satisfied that the order would be in the child’s best interests.
[32] Section 104 of the CYFSA sets out the test respecting access orders, and provides as follows:
Section 105(6) provides that the court may, in the child’s best interests,
(a) when making an order under this part; or (b) upon an application under subsection (2),
make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
[33] When considering access to a child in extended society care, section 105(6) provides that the court shall consider whether such an order would be in the child’s best interests, including a consideration of whether the relationship between the child and the person is beneficial and meaningful to the child, and, if the court considers it relevant, whether access will impair the child’s future opportunities for adoption.
Summary judgment
[34] Rule 16 of the Family Law Rules, O. Reg. 114/99 as amended, permits a matter to be resolved by way of a motion for summary judgment. The rule is available in child protection matters.
RULE 16: SUMMARY JUDGMENT When available
- (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).
Available in any case except divorce (2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).
Evidence required (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.
Evidence of responding party (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.
Evidence not from personal knowledge (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.
No genuine issue for trial (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
Powers (6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
Oral Evidence (Mini-Trial) (6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[35] In its decision in Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada established a new approach to summary judgment motions.
[36] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2018 ONSC 2783 at paras 39 - 44, the court summarized the implications of Hryniak v. Mauldin as follows:
In Hryniak v Mauldin, 2014 SCC 7, the Supreme Court of Canada heralded a new approach to summary judgment to foster and enhance access to civil justice in Canada. The Supreme Court recognized that the cost and delays associated with lawsuits that proceed to trials were preventing people from being able to obtain a true measure of civil justice. Even if successful at trial, the court explained, that the cost and delay may be disproportionate and prevent the outcome of being a truly just one. The court called for a "culture shift" away from civil trials toward a more efficient, affordable, and proportionate civil dispute resolution process.
At para. 36 of Hryniak, Karakatsanis J. set out the key change in approach to summary judgment as follows:
These reforms embody the evolution of summary judgment rules from highly restricted tools used to weed out clearly unmeritorious claims or defences to their current status as a legitimate alternative means for adjudicating and resolving legal disputes.
The Court explained that using summary judgment simply as a tool to weed out the weakest claims leaving all other cases for trial was no longer an appropriate approach. Rather, summary judgment is recognized as its own, separate, alternative process to resolve cases. "The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial." Hryniak at para. 34. To find the faster, cheaper outcome, the test for determining whether there is a "serious issue requiring a trial" must now focus on whether a summary process will provide a fair outcome in the interests of justice. The goal is to avoid slow and expensive trials where it is fair and just to resolve the case without a trial.
The test for determining whether a matter can proceed by way of summary judgment, that is, whether there is a genuine issue requiring a trial, was set out by the court at para. 49 of Hryniak as follows:
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.
The process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial.
The Supreme Court of Canada laid out a specific roadmap detailing the questions to be asked by a judge in deciding whether the case is one that should be dealt with summarily. At para. 66 of Hryniak, Karakatsanis J. wrote:
...the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.... If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers.... She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[37] The court in Kawartha-Haliburton Children’s Aid Society, above, confirmed certain procedural guidelines that the court should follow in assessing a motion for summary judgment, stating:
There are procedural guidelines that have been developed to assist the court in making the determination of whether there is a genuine issue requiring a trial.
First, the burden of proof is on the party who moves for summary judgment. Sanzone v. Schechter, 2016 ONCA 566 at para. 30 …under Rule 16 (4) the moving party must "set out specific facts showing that there is no genuine issue requiring a trial." The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hryniak.
Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:
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.
In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, 242 A.C.W.S. (3d) 794, affirmed 2014 ONCA 878, Corbett J. confirmed the continued applicability of the rules requiring the responding party to "put its best foot forward" or "lead trumps or risk losing". Combined Air Mechanical Services v. Flesch, 2011 ONCA 764 at para 56; Bhakhri, v. Valentin, 2012 CarswellOnt 6667(S.C.J.), para. 7; Pizza v. Gillespie (1990). The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 at para. 30.
[38] Rule 16(6.1) provides that in determining whether there is a genuine issue requiring a Trial, the court shall consider the evidence submitted by the parties and may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.
[39] Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. Hryniak v. Mauldin, 2014 SCC 7 at paragraph 5.
[40] On a motion for summary judgment, the court may dismiss the motion, rule that only certain issues require a full hearing or determine the entire application: B.(F.) v. G.(S.), [2001] O.J. No. 1586 (S.C.J.) at 28.
Analysis and Discussion
[41] Having considered all of the evidence before the court, I find that it is in the interests of justice that this matter be determined summarily. This court is able, on the evidence, to make findings of fact and to apply the law to the facts. This court finds that this approach is a proportionate, more expeditious, and less expensive means to achieve a just result.
[42] In this matter, the court is able, with the evidence before it, to make a fair and just determination, without using the new authority to weigh evidence or assess credibility.
[43] The parents have tendered no evidence. The evidence of the society is uncontradicted. The parents’ counsel had no instruction and was not in a position to make submissions on the hearing of the motion.
[44] The final order of Justice Pazaratz dated March 27, 2017, pursuant to Minutes of Settlement, found the children to be in need of protection under section 37(2)(l) of the Child and Family Services Act. That section applied where a parent or the parents are “unable to care for the child and the child is brought before the court with the parent’s consent.”
Continued need of protection
[45] It is clear on the undisputed evidence that the children remain in need of protection.
[46] The factors that this court has considered in determining that there is no genuine issue for trial regarding the children’s continuing need of protection include the following:
a. The evidence is that the concerns which lead to the society’s involvement in 2014 and to the final order on March 27, 2017 have not diminished; b. The evidence is that there continue to be significant protection concerns related to the parents’ alcohol abuse and mental health challenges; c. The evidence is that there continues to be extensive conflict between the parents including domestic violence by the father against the mother; d. The evidence is that there continues to be extensive police involvement by both parents, with numerous police involvements since the final order of Justice Pazaratz on March 27, 2017; e. The evidence is that the parents have not followed through with services or programing which could help them address the child protection concerns; f. The evidence is that the parents do not currently have adequate housing to accommodate the children; g. The parents have had several years to address the serious protection concerns but have been unable to do so.
[47] In the circumstances, on the undisputed evidence of the society, the court finds that there is no genuine issue for trial on the issue of the continuing need for protection and concludes that that the children continue to be in need of protection.
Services provided to the parents
[48] The society has, as set out above, made numerous efforts to refer the parents to services which would assist them in addressing the protection concerns. Although, as set out above, the parents have at times taken steps to participate in services, this has not been sustained, and has not resulted in sufficiently addressing the protection concerns.
Plans of Care
[49] Under section 100 of CYFSA, the court is must to consider the Plans of Care of the parties before making a determination as to disposition. Under this section, the court is bound to receive and consider the society’s plan. C.A.S. of Toronto v. P.V., 2005 ONCJ 472, [2005] O.J. No 5585 at para. 8.
[50] As at the hearing of the motion for summary judgment on March 6, 2019, there was no current Plan of Care before the court reflecting the outcome sought in the Amended as Fresh Child Protection Application or in the “Order Sought” provided to the court. Two previous Plans of Care had been filed reflecting earlier positions taken by the Society.
[51] On March 8, 2019, the court notified the parties by endorsement that this document had not been filed and requested that an appointment be made to speak to the issue. At the appointment, on April 4, 2019, CAS counsel indicated that the Plan of Care had been served on all parties in accordance with the Rules. OCL counsel did not object to the filing of the plan of care.
[52] Former counsel for the parents, who advised that his retainer ended at the conclusion of the hearing of the motion for summary judgment, attended as a courtesy. The mother attended as well. She stated that she had not received the Plan of Care although mailed to her by the society. The Court stood the matter down for her former counsel to review the Plan of Care with her. Following her review of the document, the mother stated that she objected to the Plan of Care being filed because she did not agree with its contents. The father did not attend.
[53] The court permitted the Plan of Care to be filed, with reasons to follow.
[54] As stated, under section 100 of the CYSFA, the Court is obligated to consider the Plan of Care before making an Order.
[55] The Plan of Care reflecting the position in the Amended as Fresh Status Review Application should have been served on the parties and filed with the Court before the Motion for Summary Judgment was argued. However, in reviewing the Plan of Care, I find that it is consistent with the position of the society in the Amended as Fresh Status Review Application, as well as with the position taken in the motion for summary judgment and supporting affidavits which were properly served upon the parents and duly filed. In this case I find that there is no prejudice to the parents is permitting the Plan of Care to be filed late. They were aware of the position of the society and the plan for the children. Nothing in the Plan of Care, in the context of the other materials before the court on the motion for summary judgment, creates a triable issue which would prevent this matter being determined summarily.
[56] The society’s current Plan of Care for the children contemplates that Sam and Jane would be placed in extended society care, with access to the parents, and that Kathy would be placed in extended society care without access to the parents. The Plan of Care contemplates sibling access between all three children. In this respect the Plan of Care is less restrictive than the Amended as Fresh Status Review Application which did not contemplate access between Kathy and her older siblings.
[57] The parents’ Plan of Care seeks to have the children returned to their care jointly. Their plan involves both parents attending programing to address concerns regarding alcohol use and mental health challenges. They planned to reach out to the John Howard Society for assistance of the child Sam. Their plan involves cooperation with the society and seeking assistance as needed.
Disposition
[58] As set out above, sections 101 and 102 of the CYFSA provide for the placement options for the child in view of the finding in need of continued protection.
[59] On the evidence before the court, the appropriate disposition in this matter is that the children be placed in extended society care.
[60] In determining that this is the disposition under section 101 and 102 of the CYFSA, this court has carefully considered the best interests criteria set out in section 74 of the CYFSA. This court finds on a balance of probabilities that there is no triable issue in relation to the appropriate placement of the children at this time. The undisputed Affidavit materials establish, on a balance of probabilities that:
a. Placement of the children with either or both parents under a supervision order would not protect the children, given the extensive challenges the parents face. They are not in a position to parent their children given their abuse of alcohol, mental health issues, extensive adult conflict including domestic violence by the father against the mother, ongoing police involvement, and lack of adequate housing. b. Interim society care is not in the best interests of the children as there is no reasonable prospect that the parents would be able to put themselves in a position to parent within the duration of such an order. Further, for Sam, who has already been in care for almost 31 months, such an order is not available under the statute; for Jane and Kathy, who have been out of their parents’ care for over 30 months and in care for 14 months, they require permanency and stability at this time. An order for interim care would provide neither. c. The children have experienced significant instability and dislocation. Extended society care for all three children recognizes their need for permanence, stability, security, and sustained access to services. a. Kathy (age 3) has done well in foster care and there are no significant concerns regarding her development. Placement in extended society care will allow her to become part of a stable and secure family unit, likely through adoption. b. Since her removal from her parents’ care, Jane (age 11) has been in foster care, placed with two extended family members, and back in foster care since April 2018. She has presented with difficult behaviours, has at times been AWOL from her foster placement, and has at times been suspended from school. While she does not want to be in foster care and would prefer to be in the care of her parents, she requires the stability that an order for extended society care will provide; c. Sam (age 16) has expressed through his counsel a strong preference for being in the care of his parents or living independently, while entering into a voluntary youth service agreement (VYSA) rather than being placed in extended society care. His counsel stated that Sam is concerned in part about the stigma of an extended society care order. Sam has as noted frequently been AWOL from foster placements and in custody. The court accepts the society’s submission that Sam will have greater stability and access to services through an extended society care order and finds that the order sought is in Sam’s best interests.
[61] Based on the foregoing I find that placing Sam, Jane, and Kathy in extended society care is the least disruptive alternative on the evidence before the court and is the alternative that will best support their best interests.
[62] Although kin options have been tried, with both the maternal great aunt and a maternal aunt, at this time the evidence is that there is no other kin option available to these children.
Access
[63] In this case, the society and counsel for the two older children, Sam and Jane, are consenting to an order for access with the parents in the society’s discretion and in consultation with the children, and access as between the children. Counsel for the parents did not have instructions. The evidence is that access with the parents at the society has gone well.
[64] In addition, the society and OCL have also agreed that there should be sibling access between all three children, again in the discretion of the society and in consultation with the children.
[65] Counsel for the society seeks an order that the parents not have access to the youngest child, Kathy, on the basis that it is not in her best interests and would impair her future opportunities for adoption. OCL counsel does not represent Kathy and took no position on this issue. Counsel for the parents had no instructions.
[66] I find that the orders sought in respect of access for Sam and Jane (parents’ access and sibling access) are, in addition to being on consent, in the children’s best interests. The evidence suggests that Jane and Sam’s access with their parents is meaningful and beneficial for them and their counsel sought to safeguard this on their behalf. The court does not have evidence that adoption is contemplated in respect of Jane or Sam or that access would impair same.
[67] There is insufficient evidence to find that an order for access by the parents to the child Kathy is in her best interests. The parents did not file affidavit material. Kathy is very young and the society’s plan of care provides that the plan for her is that she be adopted. She has not been in the care of her parents’ since she was 14 months old. Given the criminal and other involvement of the parents, an order for access may impair an adoptive placement for Kathy.
Final Order:
[68] Based on the foregoing, this court makes the following final order:
- The children S.A. born […], 2002, J.-L.A. born […], 2007, and K.A. born […], 2015, shall be found not to be First Nations, Inuit, or Métis children.
- The children S.A. born […], 2002, J.-L.A. born […], 2007, and K.A. born […], 2015, shall be placed in Extended Society Care of the Children’s Aid Society of Hamilton.
- The mother, S.W., and father, J.A., shall have access with the children, S.A. born […], 2002, and J.-L.A. born […], 2007 at the discretion of the Society, taking into consideration the wishes of the children. Each of the mother, father, S.A. and J.-L.A. shall be access holders with respect to this access.
- The parents shall have no access to K.A. born […], 2015.
- The children S.A. born […], 2002, J.-L.A. born […], 2007 and K.A. born […], 2015, shall have access with one another at the discretion of the Society, taking into consideration the wishes of the children. Each of S.A., J.-L.A., and K.A. shall be access holders with respect to the access between siblings.
Madsen J. Date: April 5, 2019
COURT FILE NO.: FC 327/11 DATE: 2019-04-05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Children’s Aid Society of Hamilton Applicant
- and - B.K. Respondent Mother S.A. Respondent Father REASONS FOR JUDGMENT The Honourable Madam Justice L. Madsen Released: April 5, 2019