COURT FILE NO.: 779/17
DATE: 2019-09-10
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 the Regional Municipality of Waterloo
Dianne Sousa, for the Applicant
Applicant
- and -
R.F. Respondent Mother
V.C. Respondent Father
David J. Lang, for the Respondent Mother
In default, not present
HEARD: September 3, 2019
JUDGMENT
THE HONOURABLE MADAM JUSTICE L. MADSEN
[1] This is a motion for summary judgment brought by the Applicant Children’s Aid Society of the Regional Municipality of Waterloo (“CAS” or “the Society”).
[2] The matter involves one child: C.S.F., born […], 2017 [hereinafter “the child”], who is 22 months old and who has been in Society care since his birth. The CAS seeks an order that the child be placed in extended Society care without access to his parents.
[3] The mother of the child is R.F.. She seeks an order dismissing the Society’s motion. At trial she would seek an order that the child be placed with her for six months under terms of supervision.
[4] The father of the child is V.C.. He was noted in default on December 18, 2018 and did not participate on this motion.
[5] For the reasons set out below, I decline to make the order sought by the Society. The parties shall contact the trial coordinator to have the matter proceed expeditiously to a trial management conference, with a view to being placed on the November 12, 2019 trial sittings.
Material Reviewed and Considered
[6] 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 October 23, 2018;
b. Affidavit of Child Protection Worker, Liana Quilty, sworn September 12, 2018;
c. Plan of Care of the Society, signed September 12, 2018;
d. Answer and Plan of Care of the mother, signed October 2, 2018;
e. Notice of Motion, signed July 24, 2019;
f. Affidavit of Child Protection Worker, Liana Quilty, sworn July 24, 2019;
g. Further Affidavit of Child Protection Worker, Liana Quilty, sworn July 24, 2019 and “Document Brief”;
h. Affidavit of Children’s Services Worker, Tracey Brick, sworn July 18, 2019;
i. Affidavit of Protection Support Worker, Jason Graham, sworn July 24, 2019;
j. Affidavit of Protection Support Worker, Theresa Coon, sworn July 25, 2019; and
k. Affidavit of R.F., sworn August 9, 2019.
Background
[7] This is a Status Review Application.
[8] On April 25, 2018, the Society and the mother consented to a final order placing the child in the care of the Society for six months, with access to the parents in the discretion of the Society.
[9] In support of the final order, on that day, the parties signed a Statement of Agreed Facts, which set out background facts including the following:
a. While the mother was pregnant with the child, the Society received referrals from a number of sources related to concerns regarding the mother’s mental health;
b. On September 28, 2017, the mother presented with thoughts of wanting to harm herself and the baby, was assessed, and was admitted to Grand River Hospital (“GRH”) involuntarily, on a “Form 1;”
c. During the fall of 2017, the mother presented with serious mental health issues, and refused to take medication. She continued to be in hospital involuntarily;
d. It was decided that the baby would be apprehended at birth;
e. On November 9, 2017, the mother delivered C.S.F., a healthy baby boy. He was moved to the Neo-natal Intensive Care Unit;
f. From November 20, 2017, the Society began facilitating two access visits per week between mother and child;
g.The mother remained in Inpatient Psychiatry involuntarily until January 4, 2018, involuntarily until December 4, 2017, and voluntarily thereafter. She gradually received passes under which she could leave the hospital for extended periods of time. On January 4, 2018 she was discharged;
h. Following her discharge, the mother arranged accommodation for herself;
i. Also following her discharge, the mother received services from Hazelglen on a voluntary basis until discharged;
j. The mother attended regular follow up appointments with her psychiatrist and social worker. A diagnosis of schizoaffective disorder was confirmed.
k. The mother pursued programming including the “Making the Connection” parenting group. She began attending the “Trusting Loving Connections” group;
l. In March 2018, the mother commenced weekly four-hour supervised visits at her parents’ home in addition to a two-hour supervised visit during the week. The family reported no concerns about the visits;
m. The Society began the process of transitioning the child to a kin home in the spring of 2018.
[10] It is common ground between the parties that since the mother’s hospitalization in 2017 and very early 2018, her mental health has been more stable. There have been no further periods of hospitalization. After her discharge, the mother had follow up care at Hazelglen from which she was discharged in May 2018. She was reported to have attended all appointments and was referred to her family physician, and K-W Counselling for further support. She was taking her medication and showing no signs of paranoia. She attended counselling and met regularly with her physician.
[11] It is also common ground that during the period between April and December 2018, the mother exercised access consistently. According to the Child Protection Worker, Ms. Quilty, there were only “a few minor issues” during that time.
[12] However, and again the parties agree, that from January 1 to July 11, 2019, the mother missed a significant number of access visits. The Society says she attended 14 of 34 possible visits. The mother confirms that she missed a “bunch” of visits. Since the parties’ materials were filed, the mother has attended three of five possible visits. One of the missed visits was rescheduled by the Society, not at the mother’s regular access time.
[13] The Society commenced a Status Review Application returnable October 23, 2018. In that status review, the Society seeks extended society care with no access to the parents.
[14] The child is placed with a kin family. According to the Society, the child is developing well and meeting all of his milestones. The Society indicates that if extended society care is granted, they will be pursuing adoption of the child by this family.
[15] The parties attended openness mediation in April 2019, which resulted in an Openness Agreement. That Agreement provides that in the event of an adoption of the child by the kin, there would be openness with the mother.
ARGUMENTS OF THE PARTIES
[16] In support of the order sought, the Society argued as follows:
a. That while the mother’s mental health has been “more stable” since her release from hospital in January 2018, her mental health struggles are serious and longstanding, she continues to dispute her diagnosis, and she shows insufficient “insight” into her illness. In support of this argument the Society filed a 57-tab document brief containing documents related to the mother’s mental health dating back as far as 2009, some 8 years before the April 25, 2018 Statement of Agreed Facts (more will be said about this brief below);
b. That the mother’s access remains supervised, and that there are qualitative issues with her access, including inconsistent engagement with the child, her “flat affect”, her failure to consistently respond to the child’s cues, failure to consistently bring food for him to access visits, staring at the child without interacting with him, and failure to attend access regularly from January to July 2019;
c. That the mother has not engaged fully with the Society, shown through, for example, not meeting regularly with the worker, and failing to follow the correct procedure for confirming access visits.
[17] The Society notes the length of time the child has been in care is in excess of the statutory timelines (22 months) and says that reintegration of the child with the mother could not be pursued on any reasonable timeline. While caution is in order, the Society argues, neither can the child continue to wait while the mother improves her circumstances.
[18] The Society also points out that as the mother is seeking a 6-month supervision order, the issue of continued need of protection is conceded, and only disposition is in dispute. The Society further argues that as there is an Openness Agreement, the matter of access is also not in dispute. Mother’s counsel did not challenge those assertions.
[19] In support of dismissing the Society’s motion, the mother argues as follows:
a. That she has addressed her mental health concerns by following through with the treatment recommended for her, having no further hospitalizations, and participating with outreach programming until it was no longer recommended for her;
b. That her reduction in access attendance in 2019 followed communication by the Society that they would be pursuing extended Society care. She emphasizes that she attended regularly before January 2019 and has again resumed attending regularly;
c. The mother disputes the allegations regarding the quality of access, indicating that from her perspective she does respond to her son’s cues, and that while she does stare at him from time to time, this is because the visits have been less frequent than she would like, and quite short;
d. Finally, the mother disputes that she has failed to engage with the Society. She notes that she has followed through on the recommendations related to her mental health, that she has cooperated with openness mediation, and that this confirms that her approach overall is cooperative. She says her behavior shows that she is willing to seek out support from professionals and to follow through on advice provided to her.
[20] The mother argues that the Society has not shown that there are no triable issues, and that the motion should be dismissed. The matter, she says, should be placed on the trial list because there is a realistic possibility of an outcome different than that sought by the Society.
LAW AND ANALYSIS
[21] This is a motion for summary judgment in relation to a Status Review Application.
Status review application
[22] The following summary of the law to be applied on a status review application was set out by Justice Pazaratz 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 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.)
d. Secondly, the court must consider the best interests of the child.
e. The analysis must be conducted from the child's perspective.
[23] As set out above, at this time the Society seeks an order for extended Society care, as permitted under section 102(3) of the Child Youth and Family Services Act [the “CYFSA” or “the Act”]. As has oft been stated, such an order is likely “the most profound” the court can make. “To take someone’s children from them is a power that a judge must only exercise with the highest degree of caution, only on the basis of compelling evidence and only after a careful examination of possible alternative remedies.” CCAS of Hamilton v. M.(M.A.), 2003 CarswellOnt 1122 at paragraph 12, citing CCAS of Hamilton-Wentworth v. G.(J.) (1996), 23 R.F.L. (4th) 79. See also New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 653 (SCC), [1999] 3 S.C.R. 46 in which Chief Justice Lamer described state interference in the parent-child relationship as “a gross intrusion into a private and intimate sphere,” and held that “The interests at stake” in a child protection case “are unquestionably of the highest order.” See paragraphs 61 and 76. See also Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at paragraph 65.
[24] Justice Baker of the Ontario Court of Justice recently described child protection decisions as follows in Children’s Aid Society of Brant v. A.H. and C.T., 2019 CarswellOnt 12337 at paragraph 7, and I find her description apt:
The decisions made in child protection courts have life changing consequences for parents, families, and children. The court is conferred with the awesome power to permanently separate parents and children. Children are set on courses that potentially lead them to estrangement from biological family. Parents are left forever grieving the loss of their offspring.
[25] When a court is considering a disposition that would separate a parent from a child, the court must consider additional factors including 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 the intervention.
[26] 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. 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.
[27] 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.
[28] Under section 105(5), an order for extended society care 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.
Summary judgment
[29] 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.
[30] There is a two-step process on a summary judgment motion. First, the court must determine on the record whether there is a genuine issue that requires a trial. If there is no genuine issue for trial, summary judgment must be granted. Second, if there appears to be a genuine issue for trial, the court must determine whether a trial can be avoided by using powers available under Rule 16(6.1) and (6.2), to weigh evidence, draw reasonable inferences, and call oral evidence. These powers are available unless it is in the interests of justice to exercise them only at a hearing. The latter is a matter of judicial discretion. Hryniak v. Mauldin, 2014 SCC 7 at paragraphs 49, 66 – 68. As the court stated, the use of these powers will “not be against the interests of justice if they 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.” (paragraph 66)
[31] The Supreme Court of Canada has held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. Hryniak, above, at paragraph 5.
[32] However, Rule 16 must be applied cautiously. The process of adjudication must be fair and just. These are values that cannot be compromised. Hryniak, above, at paragraph 23; Kawartha, above, at paragraph 75.
[33] As stated by Justice Benotto in Kawartha at paragraphs 74 and 76,
The current correct approach to summary judgment in child protection was and remains highly cautionary. [emphasis added]
As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings.
[34] In Kawartha the Ontario Court of Appeal provided clarity on the application of the summary judgment tool in child protection cases. It confirmed that “no genuine issue for trial” means a situation where it is “plain and obvious that the action cannot succeed,” where the “outcome is a foregone conclusion”, or where there is “no realistic possibility of an outcome other than that sought by the applicant.” See Kawartha, at paragraph 72, and CAS of Brant, above, at paragraph 12.
[35] The burden of proof is on the party moving for summary judgment. Even if the respondent’s evidence does not raise a genuine issue for trial, the court must be satisfied that the moving party has established that there is no genuine issue requiring a trial. Kawartha, above, at paragraph 80.
[36] The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. There is no justification for a lower evidentiary standard for these motions. Kawartha, above at paragraph 78. As stated by Justice Sherr in C.A.S. of Toronto v. B.B., 2012 ONCJ 646 as quoted in C.A.S. of Brant, above, at paragraph 14, “The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be based on flawed evidence…summary judgment is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make a determination.”
Application
[37] Having considered all of the evidence before the court, I find that it is not in the interests of justice that this matter be determined summarily. In this matter, the court is not able, with the evidence before it, to make a fair and just determination on a motion for summary judgment. I further find that in light of evidence in this case, and the heightened need for caution in view of the remedy sought by the Society, this is not an appropriate case for the court to use the powers available under Rule 16(6.1) and (6.2). As is set out below, a fair and just result in this matter requires a trial.
a. Mental health issues
[38] The Society argues that the mother has mental health issues that are serious and longstanding, and that these continue to be a barrier to caring for her son. They state that she lacks “insight” into her condition and does not accept her diagnosis.
[39] Yet at the same time, the Society candidly acknowledged in argument that the mother’s mental health has been “fairly stable” since she was released from the hospital in January 2018. The Child Protection Worker Ms. Quilty states that she told the mother in September 2018 “that we recognized that she had come a long way since he was born. She had maintained housing, attended programming, and her mental health appeared fairly stable.”[^1]
[40] Indeed she appears, at least at first blush, to have taken significant steps to meet the “expectations” set out in the affidavit of Ms. Quilty sworn September 12, 2018 in support of the status review application. In that affidavit, expectations of the mother included “R.F. will attend an appointment with a physician to discuss mental health symptoms and follow all recommendations for further assessment and/or treatment”; “R.F. will attend all scheduled appointments with her mental health practitioner”; “R.F. will follow the plan outlined by her mental health practitioner to address mental health concerns…”
[41] While the mother’s family physician Dr. Witmer states in a medical note dated December 12, 2018 that the mother has “poor insight” into her illness, the medical note of her psychiatrist, Dr. Okonkow, states on January 12, 2018 that she has “some insight into her problem”. It is not clear what level of insight she has into her mental health challenges or what level of “insight” might be required to parent adequately.
[42] If the mother’s mental health is “fairly stable” as the Society acknowledges, the court would require evidence in support of the argument that “a lack of insight” into her mental health diagnosis or simply having the diagnosis she does, necessitates the order sought. It is unclear what the Society argues is “mental stability sufficient to satisfy the Society that pursuing a reintegration of (the child) to her care would be in his best interests.”[^2] It may be that such evidence is available but it was not before the court on this motion.
b. Quality and quantity of access
[43] The Society’s evidence is somewhat contradictory regarding the quality of the mother’s time with the child. As noted above, Ms. Quilty described the mother’s access from April to December 2018 as having been consistently exercised with only a few “minor issues.”[^3] Yet, that affidavit also sets out a series of concerns about the mother’s interactions with the child.
[44] The Society filed several affidavits of Society workers with respect to their observations of the mother’s access time. While there is some reference to “positives” with respect to that access time, there are numerous statements about the mother’s apparent inability to consistently read the child’s cues, her failure to consistently bring food to access, and her sometimes “staring” at the child. Some of that evidence relates to the same time period during which Ms. Quilty's affidavit stated there were only minor issues. It is difficult to reconcile the affidavits on this issue. If the quality of access declined after December 2018, there is no effort to set out why that might have been the case or what the Society did to assist in ensuring that the mother’s access would continue to present only “minor issues.” If there were similar issues in 2018 as in 2019, it is unclear how they could be described as “minor” in relation to the first period of time, yet sufficient to necessitate an order for extended society care for the second period of time.
[45] The mother, in any event, disputes the evidence of the workers on these issues. She says she does read the child’s cues and that she has been trying to establish a meaningful connection with the child which she says has been difficult due to her limited amount of time with him. I am unable, on the affidavit evidence to make a factual finding in this regard and find that oral evidence is required.
[46] It is also unclear from the materials what efforts were made to assist the mother in developing the skills the worker’s affidavits suggest that she lacks, to enhance the quality of access for the benefit of the child. While the workers make references in their affidavits to providing suggestions from time to time, it does not appear that the mother was consistently actively linked with programming and resources. As seen above, an assessment of the Society’s efforts in this regard is relevant when the Society seeks to place a child with someone other than the parent.
[47] In terms of the quantity of access, as noted above, the mother consistently attended access in 2018 and then attended less visits from January to July 2019. The mother acknowledges that her visits dropped off but says this is when the Society told her that they would be pursuing extended society care. The evidence contains an email to the mother stating that “given the direction things are headed in”[^4] the Society would not be expanding access as sought by the mother. Presently, the mother says she is committed to attending access and the parties agree that she attended 3 of 5 visits since the materials were filed (one missed visit being on a date rescheduled by the Society). In my view, if access had only “minor issues” in 2018, active Society engagement to get that access back on track in 2019 would have been essential.
c. Lack of engagement with the Society
[48] The Society argues that the mother has not engaged with the Society, missing some meetings with the worker and not following the protocols for confirming visits with specific workers listed on a calendar provided (the mother was directed to call the specific worker supervising any given visit, with that person’s extension noted on a calendar).
[49] The mother counters that she is cooperative and points to her significant follow through on issues related to her mental health as well as her cooperation with the openness mediation. She also stresses that she enrolled in and followed through on programing related to mental health as well as related to parenting. She argues that similarly she would cooperate with the Society were there to be a supervision order.
[50] I have difficulty seeing the failure to follow a specific visit confirmation protocol as a protection issue, although it would be frustrating for Society staff.
[51] I am unable, on the affidavit evidence filed, to make a finding with respect to the level of cooperation with the Society or whether the difficulties are so significant as to require an extended society care order. At this stage, the limited evidence would suggest that she may very well be capable of cooperating. She has followed through on important issues related to her mental health, and with respect to programming on parenting skills.
d. Concerns regarding quality of evidence
[52] As noted above, the Society filed a document brief regarding the mother’s mental health. The mother’s counsel did not object to the filing of the brief or the admissibility of the documents contained therein.
[53] These documents raise a number of concerns.
[54] First, these 57 tabs of documents, which include excerpted hospital records authored by a range of professionals, partial physician records, and excerpted counselling records, are all sought to be admitted under the following statement by the worker, Ms. Quilty: “I have reviewed the records of Grand River Hospital, Dr. Michael Witmer, KW Counselling, and Ontario Disability Support Program, and I verily believe the following to be true.” The worker then summarizes the contents of the records to the extent that they support the Society’s case.
[55] While some of the documents in the brief may be admissible as business records, that is not the case for all of them, nor are they, in their current form, the best evidence available. As Justice Gordon stated in C.A.S. of Hamilton v. M.N, 2007 13503 at paragraph 31, “Opposing parties, and the court, are entitled to the best evidence from the original source.”
[56] Some of the documents appear to be extracts of longer documents, leaving the court unable to discern the context of the statements made; others do not appear to have been prepared contemporaneously; still others appear to contain further hearsay. A number of documents appear to contain opinion evidence but there is no detail regarding what might be the qualifications of the professional providing the opinion (beyond “Dr. this” or “Dr. that”). On some, it is not possible to see who the author is at all. Even where evidence could be considered that of a “participant expert,” the court should have at least basic evidence about the qualifications of the author, and the purpose and duration of that person’s involvement with the parent.
[57] Finally, much of the “evidence” in the brief predates the Statement of Agreed Fact entered into by the parties on April 25, 2018. While some evidence may be helpful to provide the court with context, it is not the role of this court on a Status Review to determine facts that predate the final order entered into on consent on that day.
Conclusion and Order:
[58] While I agree with the Society that the mother’s evidence in response to the motion for summary judgment could have been more fulsome, the onus is on the Society on a motion for summary judgment to show that there is no triable issue, not on the parent to show that there is. Kawartha, above, at paragraph 80.
[59] On the evidence, I am not able to find that it is “plain and obvious” that the mother could not succeed at trial, or that there is “no realistic possibility of an outcome other than that sought by the applicant.” In my view, there are issues in this matter which require a trial and are not appropriately determined on a motion for summary judgment. These issues include the extent to which the mother’s diagnosis indeed necessitates the order sought, given that it is agreed that she has been stable since early 2018; the “quality” of the mother’s access time with the child given that there were only “minor issues” in 2018 and the mother’s evidence about the quality of her time with the child; and the extent to which the mother would or would not cooperate with a supervision order.
[60] I am very aware of the statutory timelines in this matter and the need to proceed expeditiously given the young age of the child. However this is not a sufficient basis to grant a motion for summary judgment at this time. See C.A.S. v. M.N., above, at paragraph 37. The approach must remain “highly cautionary” as set out by the Ontario Court of Appeal in Kawartha, above. Delay cannot be the basis for diluting the evidentiary requirements on a motion for summary judgment or glossing over genuine triable issues. Having said that, however, it is essential that this matter now be placed on the November 12, 2019 trial sittings.
[61] Based on the foregoing, this court makes the following order:
The Society’s motion for summary judgment seeking an order that the child be placed in the extended care of the Society without access to the parents is dismissed;
The parties shall forthwith enquire with the trial coordinator to book the earliest available trial management conference;
The matter shall be placed on the November 12, 2019 trial list.
_________________________________
Madsen J.
Date: September 10, 2019
COURT FILE NO.: 779/17
DATE: 2019-09-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of the Regional Municipality of Waterloo
Applicant
- and -
R.F.
Respondent Mother
V.C.
Respondent Father
JUDGMENT
L. Madsen J.
Released: September 10, 2019
[^1] Affidavit of Liana Quilty sworn July 24, 2019 at paragraph 21.
[^2] Factum of the Society at paragraph 46.
[^3] Affidavit of Ms. Quilty sworn July 24, 2019 at paragraph 81.
[^4] Exhibit I to the Affidavit of Ms. Quilty sworn July 24, 2019.