COURT FILE NO.: FS-19-041
DATE: 2019/11/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHILDREN’S AID SOCIETY OF THE DISTRICTS OF NIPISSING AND PARRY SOUND
J. Rochon for the Applicant Society
Applicant
- and -
N. Y.
L. B.
No one appearing for the Respondent
No one appearing for the Respondent
Respondents
HEARD: October 22, 2019
RIVARD J.
WARNING
This is a case under the Child, Youth and Family Services Act, 2017. Sections 87(8) and 142(3) of that Act prohibit publication of information that may identify a child or the parent of a child who is the subject of a hearing under the Act. These sections 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.
142 (3) Offences re publication — A person who contravenes subsection 87(8) 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.
REASONS FOR DECISION
[1] The Appellant mother (“Ms. Y.”) appeals a decision by a judge of the Ontario Court of Justice rendered on January 30, 2019, placing her two children, B.F.Y. born […], 2008, and B.A.K. born […], 2011 in the extended care of the Children’s Aid Society of the District of Nipissing and Parry Sound (“CAS”), with no access by the parents to the children. The natural father, Mr. B., has not appeared nor participated in the hearing of this appeal.
[2] The decision appealed from was made following a Motion for Summary Judgment brought by the Children’s Aid Society (the “CAS”) under r. 16 of the Family Law Rules. There are numerous grounds of appeal contained in the Notice of Appeal but Ms. Y., who is not represented by counsel, primarily raises issues of procedural fairness.
[3] I commence my analysis of this matter with the statement of J. de P. Wright J. in C.R.-W., v. Children’s Aid Society of the District of Thunder Bay 2013 ONSC 1357 where he said at paragraph three: “A Crown wardship order is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies.”
[4] Justice J. de P. Wright then goes on to question the propriety of taking children from their parents through the use of a motion for summary judgment.
[5] I do not question the court’s authority pursuant to r. 16 of the Family Law Rules to render summary judgment in child protection cases, but that power exists only where the moving party satisfies the court that no genuine issue requiring a trial exists. The court has the discretion to weigh evidence, evaluate credibility of a deponent and to draw reasonable inferences but, in granting summary judgment, a judge must first conclude “there is no chance of success” and “when the outcome is a foregone conclusion.” (CAS of Toronto v. W. (C.J.), 2017 ONCJ 212, 2017 ONC-J 212, (paras. 66 and 67).
[6] The Ontario Court of Appeal in Kawartha-Haliburton CAS v. M. W. 2019 ONCA 316 emphasizes a cautious approach must be taken to summary judgement in child protection cases. Summary judgement is appropriate only when “a judge is able to reach a fair and just determination on the merits” (para. 76).
[7] The Ontario Court of Appeal recognized that child protection litigation engaged the Charter Rights of parents as well as children and adopted the Supreme Court’s view that, “without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’s best interests”.
[8] I point out that although Ms. Y. did obtain legal advice from time to time, she was not represented by counsel at the summary judgment motion or on this appeal. (She informed the court she has set aside $5,000 for a retainer and plans to have counsel at trial should one take place).
[9] Ms. Y. submits she attempted to retain counsel but was not successful in doing so, in spite of being in possession of a Legal Aid certificate. She states she relied on the motions judge to exercise his “gate keeper role” in providing her with the assistance she required.
[10] She states the motions judge was in error when he said at page three, para. 10 of his decision that she had decided to represent herself during the hearing of the Motion. She points to the July 4, 2018 transcript where she told the motions judge she did not have a lawyer and did not want to represent herself. She submits the judge was in error when he stated she chose to represent herself.
[11] In my view, without counsel, Ms. Y. could not and did not “participate effectively at the hearing, creating a real risk of error”.
[12] The affidavits she relied on were poorly drafted, disorganized, often with no numbered paragraphs. Some were not sworn, and, in many instances, exhibits referred to in the affidavits were not sworn. They contained a great deal of hearsay evidence.
[13] It is clear that a great deal of the evidence she relied upon was contained on a USB stick which she filed with the court. She understood the court would consider the contents of this USB stick but, the motions judge, in his final analysis, did not admit it. She was thereby deprived of the opportunity to present her case.
[14] It is clear from a reading of the transcripts that Ms. Y. disagreed with the information contained in the affidavits of the CAS. She did, on several occasions, tell the motions judge she wanted to call witnesses to refute the affidavit evidence and to support her position. She objected to the affidavits containing a great deal of hearsay evidence. Without cross-examining the deponents of the CAS affidavits, without calling witness, it became almost impossible to properly present to the motions judge the position Ms. Y. was putting forward.
[15] It is clear, from the transcripts, that most of the evidence the CAS relied upon, was contested by Ms. Y. The credibility of the CAS workers who swore affidavits in support of the motion for summary judgement, the alleged existence of an animus against he mother, the circumstances surrounding the removal of the children from the mother, the appropriateness of granting custody of the children to the father with access to the mother being subject to the father’s supervision, the reasons for the lack of access by Ms. Y. to her children following their removal, Ms. Y’s mental condition, the legitimacy of the opinions contained in the dated S.54 Assessment report were all matters which were hotly contested. They could not properly be decided without a trial. The positions put forward by the parties were so polarized they could not properly be resolved without the assessment of viva voce evidence, cross-examination and findings related to credibility.
[16] The motions judge’s decision to use his discretionary powers to weigh the evidence, to evaluate the credibility of witnesses and to draw inferences from the evidence was a misdirection because the use of those discretionary powers was against the interest of justice. A fair and just result could not be achieved without a trial.
[17] The appeal is therefore allowed. The matter will be remitted to the Ontario Court of Justice for trial by a different judge.
Rivard J.
Released: 2019/11/04
COURT FILE NO.: FS-19-041
DATE: 2019/11/04
ONTARIO
SUPERIOR COURT OF JUSTICE
CAS
Applicant
– and –
N. Y.
-and-
L. B.
Respondent
REASONS FOR JUDGMENT
Rivard J.
Released: 2019/11/04