COURT FILE NO.: FC-14-FO-215
DATE: 2019/10/21
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.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Family and Children’s Services of Renfrew County, Applicant
AND:
A.D., R.P.H.S. and S.M.S., Respondents
BEFORE: Honourable Justice M. Fraser
COUNSEL: Caitlyn Symsyk-Dekker, for the Applicant
Jeanette Songolo, for the Respondent, A.D.
Duncan Crosby, for the Respondent R.P.H.S.
S.M.S., self-represented
Lorelei Gutoskie, Counsel for the Office of the Children’s Lawyer
HEARD: September 9, 2019
ENDORSEMENT
[1] The applicant, Family and Children’s Service of Renfrew County (the “society”), seeks a final order placing the respondents’ son, J.D.-S., in the custody of his father, R.P.H.S. and stepmother, S.M.S., pursuant to section 114 of the Child, Youth and Family Services Act, 2017, (S.O. 2017, c. 14, Sched. 1) (“CYFSA”).
[2] The society has brought a motion for summary judgment pursuant to Rule 16 of the Family Law Rules. There was an unopposed order made on August 12, 2019 finding that J.D.-S. continued to be in need of protection pursuant to clause 74 (2) (h) of the CYFSA. The remainder of the society’s motion, namely disposition, is in issue.
[3] In this respect, the respondent mother, A.D., opposes the disposition sought in this motion. She seeks an order that custody of J.D.-S. be returned to her. She states that, at a minimum, there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure.
[4] Ms. Gutoskie, counsel for the Office of the Children’s Lawyer, supports the relief sought by the society. Both R.P.H.S. and S.M.S. consent to the order sought by the society.
[5] I have read and relied on the following documents:
(a) Notice of Summary Judgment motion;
(b) Affidavit of Jacqueline Armstrong dated April 11, 2019;
(c) Affidavit of Jacqueline Armstrong dated August 14, 2019;
(d) Affidavit of Jacqueline Armstrong dated October 10, 2018;
(e) Affidavit of Jessica Cruise dated July 19, 2018;
(f) Affidavit of A. D. dated August 23, 2019.
Background
[6] J.D.-S. was born in […], 2008. He resided in the primary care of A.D. for the first ten years of his life in Renfrew, Ontario. A.D. was a single mother.
[7] During these years, the society had some involvement with this family. However, any involvements were of relatively short duration and usually handled out of court. A.D. would, from time to time, reach out for respite and J.D.-S. would spend time with family, most often his aunt, and the family received assistance from the society or other community service providers.
[8] J.D.-S. was parented by A.D. until May 2018 when J.D.-S. was removed by the society from A.D.’s care. At that time, the society was concerned that A.D. was not meeting J.D.-S.’s medical and psychological needs in particular. J.D.-S. was experiencing problems with the staff at his school and the school was threatening to suspend him from his program. His psychological and physical health was not good. A.D.’s attempts to address the issues were unsatisfactory. She attempted to home school J.D.-S. and despite her numerous contacts with doctors, J.D.-S.’s health was continuing to deteriorate.
[9] J.D.-S. presented with serious anxiety, self-destructive behaviour (including suicidal comments) and he was exhibiting aggression towards his mother (including head butting, strangling, slapping and punching).
[10] The society was worried about A.D.’s mental health and emotional stability. She was presenting to the society workers as erratic, disoriented at times and easily overwhelmed. She was observed struggling with processing or remembering information. The society believed and continues to believe that A.D. has mental health issues that were (and remain) undiagnosed and that A.D. has declined the recommendations made to her.
[11] The society was also aware that A.D. was managing a substance abuse disorder and became concerned that she was mismanaging her medication (including opiates) and self-weening off methadone, apparently without proper medical supervision.
[12] The parents first worked with the society outside of court under the terms of a Voluntary Services Agreement until an application was commenced in August, 2018. On August 20, 2018, an interim without prejudice order was made placing J.D.-S. into the care of R.P.H.S. and S.M.S. under the supervision of the society with access to A.D. Access was to be supervised at the discretion of the society and was to be a minimum of three phone or Skype calls a week, with in-person visits slated to start taking place in September 2018.
[13] A final order was made on consent on November 26, 2018. At that time J.D.-S. was found to be in need of protection pursuant to section 74(2)(n) of the CYFSA. J.D.-S. was placed in the care of R.P.H.S. and S.M.S. for a period up to and including May 13, 2019. Access between J.D.-S. and A.D. was to be supervised at the discretion of the society and to be a minimum of three skype or phone contacts each week and, effective January 2019, there was to be an increase in face to face visits with a minimum of two “in person” visits each month.
[14] This status review application was commenced in April 2019.
[15] The society takes the position that, despite A.D.’s best intentions, she has been unable to make the necessary gains or satisfy the expectations set out in the Plan of Care such that J.D.-S. can be returned to her care. J.D.-S. has, on the other hand, made significant gains in the care of R.P.H.S. and S.M.S. over the past year. His health has improved, he has gained weight and he is eating well. He is, for the most part, doing well in school. He is engaging in activities and making friends.
[16] Access between A.D. and J.D.-S. has been challenging. In fact, access visits between the two has deteriorated to the point that J.D.-S. is at present refusing contact with A.D. The two have not had contact since mid February 2019. Obviously there remain serious unresolved issues that need to be addressed by both A.D. and J.D.-S. in order to repair the fracture that presently exists in their relationship. While J.D.-S. has been provided many supports, he is unwilling to even talk about A.D. to anyone, including his counsellor, the OCL, or the society workers. He has recently been referred to a child psychologist for more intensive clinical assistance. However, it is very early days in the therapeutic process and the extent to which this relationship can be repaired remains unknown.
[17] At recent court appearances, A.D. has given the society reason to worry about A.D.’s present mental, physical and emotional stability. In May, 2019, she provided the society with a doctors’ note indicating that she could not participate in court for thirty days because of a medical condition. She appeared to the society worker to be in “very poor condition.” She was struggling to speak clearly, she was anxious and seemed to be having a physical reaction which included violent shaking. Unfortunately, the exact nature of A.D.’s illness remains unknown. This renders her ability to presently care and provide stability for J.D.-S. questionable.
The Law
[18] The society brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.
[19] The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
[20] Pursuant to subrule 16 (4.1) the responding party 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. The responding party must put their best foot forward on the motion. 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 (See: Children’s Aid Society of Toronto v. K.T. 2000 CanLII 20578 (ON CJ), 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200).
[21] Although subrule 16 (4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (See: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80).
[22] Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[23] Subrule 16 (6.1) provides that in determining if there is no 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 only exercised at trial:
Weighing the evidence;
Evaluating the credibility of a deponent; and
Drawing any reasonable inference from the evidence.
[24] Pursuant to subrule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[25] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.
[26] Hyrniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact finding powers to decide if a trial is required.
[27] 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 (See: Hryniak, paragraph 49). “The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (See: Kawartha, paragraph 63).
[28] When 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. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits (See: Kawartha, paragraph 76).
[29] Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (See: Kawartha, paragraph 1 of paragraph 80 and paragraph 64).
[30] The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (See: Kawartha, paragraph 3 of paragraph 80).
[31] The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that it is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when 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, paragraph 72).
[32] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent. (See: Children’s Aid Society of Toronto v. R.H. 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.)).
[33] The court in Hryniak also set out the following:
a) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).
b) The Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a “genuine issue for trial” to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).
c) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).
Analysis
[34] I am aware that I should exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.
[35] However, I also find that it is in the interest of justice for the court to determine this case summarily. This process, in this instance, allows me to make the necessary findings of fact and to apply the law to those facts. It is a proportionate, more expeditious and less expensive means to achieve a just result.
[36] In this instance, I am able to fairly and justly adjudicate this dispute based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility. The evidentiary record is sufficiently comprehensive in all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a trial. Cross-examination of witnesses would add little, if any value to the court’s analysis. The material facts of this case are not really in dispute.
[37] I therefore find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.
[38] In this respect, I find that the society has established, on a balance of probabilities, a prima facie case for summary judgment with respect to each aspect of the relief sought. I conclude that there is not a genuine issue requiring a trial on any issue. If this matter proceeded to trial, I conclude there is “no realistic possibility of an outcome other than that sought by the applicant.”
[39] I reach these conclusions for the reasons that follow:
a. J.D.-S. has and continues to demonstrate difficulty with severe anxiety, self-destructive behaviour and aggression which appears to be commonly triggered during his interactions with his A.D. He has been prone to violent outbursts and temper tantrums. While contact has not occurred recently, J.D.-S. is fearful that he will be forced to return to A.D.’s care and this continues to be a source of stress for him.
b. A.D.’s parenting skills have been unsuccessful in managing J.D.-S.’s outbursts in the past and have been seen on many occasions to exacerbate the problem. Indeed, on occasion, J.D.-S.’s violent outbursts have escalated to an unsafe level while in A.D.’s care.
c. A.D. admits that when the society became involved in April, 2018 she was not sleeping and was exhausted and lacked the capacity to provide appropriate care for J.D.-S. She was struggling with her own medical issues when J.D.-S. was also requiring support and attention.
d. A.D. has most recently presented to the society workers exhibiting behaviours that would suggest that she continues to struggle with mental and physical health issues – she was recently seen to experience difficulties with her thought processes and she was unable to formulate her thoughts into words. A.D. advises that her family physician has started the process of referring her for an up-to-date psychiatric evaluation. However, for present purposes, it matters less whether there is any psychiatric disorder at play. What is of pressing relevance is that the undiagnosed health issues continue to impede her ability to assume the care of J.D.-S.
e. When the initial application was commenced, J.D.-S. was suffering from medical issues which were not being controlled and it was clear that A.D. was having difficulties addressing them. J.D.-S. was losing weight and “failing to thrive.” These medical issues appear to be resolving now since he was placed in the care of R.P.H.S. and S.M.S.. J.D.-S. is eating well, has gained weight and his health is improving.
f. The access which has occurred between J.D.-S. and A.D. has confirmed that the “issues” which complicate A.D. and J.D.-S.’s relationship continue to present as a concern. In fact, this fracture remains wholly unresolved with J.D.-S. presently refusing to have contact with A.D.
g. J.D.-S.’s behavior has been gradually stabilizing since he began to reside with R.P.H.S. and S.M.S. Further, J.D.-S. behavior improved once access to A.D. was limited.
h. J.D.-S. continues to express negative and, at times hostile, sentiments towards A.D. It is clear that J.D.-S. is not able or prepared to articulate why he feels this way toward A.D. This needs to be addressed through therapeutic counselling. A.D. has expressed concerns that she is being falsely blamed for this and feels this is unfair. This is acknowledged. However, there is no compelling evidence available to establish the cause either way. The bottom line, however, is that it really, for practical purposes, makes no difference. The current status of the relationship between A.D. and J.D.-S. renders the possibility of returning J.D.-S. to the care of A.D. at this time an unrealistic option.
Disposition
[40] Pursuant to Section 114 of the CYFSA, J.D.-S. shall be placed in the custody of R.P.H.S. and S.M.S.
[41] R.P.H.S. and S.M.S. shall ensure J.D.-S. attends all medical and dental appointments, takes medication as prescribed, and shall comply with all recommendations made by J.D.-S.’s treatment team. R.P.H.S. and S.M.S. shall ensure A.D. is kept up-to-date with respect to the outcome of the appointments and J.D.-S’s progress. R.P.H.S. and S.M.S. shall provide A.D. with copies of J.D.-S’s school reports, any written medical reports, and they will send A.D. a written update (via mail) on how J.D.-S. is doing at least every other month (ie. January, March, May, July, etc.). A.D. will ensure R.P.H.S. and S.M.S. have her current address so they can send her the update.
[42] R.P.H.S. and S.M.S. and A.D. shall ensure that J.D.-S. is not exposed to adult conflict or adult conversations. This will include no negative talk by any parent about the other in J.D.-S.’s presence.
[43] Access between A.D. and J.D.-S. shall be as follows:
a. All parties will encourage regular contact between J.D.-S. and A.D. including but not limited to the exchange of letters, cards, and photographs, telephone calls, Skype calls, and a minimum of one face-to-face visit per month;
b. All access shall be in accordance with J.D.-S.’s views and preferences, having regard for his age and level of maturity. As much as possible, J.D.-S’s views and preferences will be obtained through objective sources (ie. J.D.-S’s OCL and/or social workers and/or his counsellors);
c. Phone/Skype calls will be supervised by Family and Children’s Services of Renfrew County (or a third party approved by FCSRC) up to three (3) times per month, with specific dates and times to be scheduled by the parents and arranged with FCSRC (or its designate, including Simcoe Muskoka Family Connexions) in advance. Over time, as the calls become more positive, they may move to being supervised, then semi-supervised (monitored) by another third party as agreed to by the parents. This may include a family member, friend, or even R.P.H.S. or S.M.S. if everyone agrees that they supervise.
d. All face-to-face visits will be fully supervised by FCSRC, Simcoe Muskoka Family Connexions, and/or another community based supervised access centre. Over time, as the visits become more positive, they may be supervised by another third party agreed to by the parents. This may include a family member, friend, or even R.P.H.S. or S.M.S. if everyone agrees that they supervise;
e. In the event that J.D.-S. wishes to call or Skype A.D. over and above the scheduled times, he may do so without limits. If A.D. misses J.D.-S.’s call, she may only try calling back one (1) time;
f. To the best of her ability, A.D. shall ensure access is meaningful and beneficial to J.D.-S. Among other expectations, there shall be no negative talk about J.D.-S’s health or medication, about his placement with R.P.H.S. and S.M.S. and how he came to live with them, or about court. A.D. shall make best efforts to avoid “baby-talk” and to make all conversations during access happy, calm and age-appropriate. If J.D.-S. does not want to talk about certain things, A.D. will respect this and change the subject.
g. The issue of access can be brought back to court at any time by any party;
h. If the matter is brought back to court (pursuant to the Children’s Law Reform Act) within twelve (12) months after this Order is made, Family and Children’s Services Renfrew County shall be given notice and served with the court documents.
Justice M. Fraser
Date: October 21, 2019