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.
COURT FILE NO.: FC-17-1262
DATE: 2019/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF A.R, born XX, 2010
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
A.M. (Mother)
Respondent
M.R. (Father)
Respondent
Juliet Kim, for the Applicant
Jason Gilbert, for the Respondent Mother
Stephen Pender, for the Respondent Father
Marcelle Storey, for the Office of the Children’s Lawyer
HEARD: January 25, 2019 (at Ottawa)
Ruling on motion FOR SUMMARY JUDGMENT
Shelston, J. Overview
[1] On January 15, 2019, the Children’s Aid Society of Ottawa (the “Society”) filed a motion for summary judgment under Rule 16 of the Family Law Rules, O. Reg. 114/99 as amended (“FLR”) on a Status Review Application filed on July 6, 2018 regarding the child A.R. born, XX, 2010 .
[2] The Society seeks:
(a) an order placing the child A.R. in the custody of her paternal grandparents, A.O. and M.R., pursuant to section 102 of the Child, Youth and Family Services Act;
(b) an order that the child A.R. shall have access to her parents at the discretion of the paternal grandparents; and
(c) such further and other relief as counsel may advise in this Honourable Court deems just and appropriate.
[3] I have read and rely on the following documents:
(a) the affidavit of Karen Jolicouer, a kin worker employed by the Society, dated January 9, 2019;
(b) the affidavit of Krista Pulfer, the child protection worker who had been working with the family since November 1, 2016, dated January 7, 2019;
(c) the affidavit of Jacqueline Gattens, a child protection worker who started working with the family on December 6, 2018, dated January 7, 2019;
(d) the affidavit of Karen Jolicouer, dated January 9, 2019;
(e) the affidavit of the mother A. M., dated January 22, 2019;
(f) the affidavit of Danika Lamarche, administrative assistant employed by the Society, dated January 16, 2019;
(g) the Society’s Factum and Brief of the Authorities;
(h) the mother’s Factum; and
(i) the Office of the Children’s Lawyer’s (the “OCL”) Factum.
Position of the Society
[4] The Society submits that the best interests of the child are best served by granting the paternal grandparents sole custody of the child and that access to the parents would be at the sole discretion of the paternal grandparents.
[5] The Society has been involved with this family consisting of the mother, the father and the child for over two years. The Society submits that parents have yet to demonstrate any significant period of stability. The mother has not been able to secure regular employment in the two years that the Society has been involved despite not having the child in her care and not being involved in any ongoing programming. Currently, the mother is supporting herself with social assistance from Ontario Works.
[6] The mother has failed to be consistent in attending scheduled meetings in the community and visits with the child. Further, the mother admitted having issues with her mental health including depression and anxiety.
[7] The father resides with his parents and the child. He has been relying on social assistance from Ontario Works for approximately the past year and wants to move out on his own but has not followed up on that desire. The father has not presented an independent plan for the care of the child.
[8] As a result of the parents minimizing or denying the serious concerns raised by the Society, the mother has not undertaken any rehabilitative action to address the issues regarding her lifestyle.
[9] The child is eight years old, has been out of the mother’s care for two years and requires permanency in a safe and stable home. The child, mother, father moved in with the paternal grandparents in November 2016. The child has remained in that residence since that time.
[10] The Society submits that the evidence before the court allows the court to adjudicate the issues on a motion for summary judgment.
Position of the father and the OCL
[11] The father and the OCL support the position of the Society.
Position of the mother
[12] The mother submits that there is a genuine issue for trial because the evidentiary record is not complete and the evidence regarding the child’s views and preferences are inadmissible at this stage.
[13] Further, the mother seeks a trial to have the child returned to her care subject to the supervision of the Society.
[14] The mother submits that there are flaws in the plan proposed by the Society and the court cannot at this juncture find that there is no genuine issue for trial with respect to the viability of the mother’s plan versus the plan presented by the paternal grandparents.
[15] Further, the mother submits that an order that the mother’s access be at the discretion of the paternal grandparents would lead to conflict and acrimony and the risk of the child being exposed to such issues.
[16] The mother submits that the Society’s proposed disposition is heavy-handed and does not respect the principle of an ascending scale of intrusiveness.
[17] The mother seeks the dismissal of the Society’s motion for summary judgment and that the matter proceed to a trial on all issues.
Factual findings
[18] The mother and father resided in a common-law relationship. There is one child of the relationship, namely A.R. born XX, 2010.
[19] The mother and child resided with the maternal grandmother from August 2016 to November 2016. The mother left with the child after several incidents of conflict and violence between the maternal grandmother and the mother that involved the police.
[20] In late November, 2016, the mother and child moved in with the father and his parents at their home in Greely.
[21] On May 14, 2017, the mother left the paternal grandparents home to her own residence. The child remained with the paternal grandparents. The father remained at his parent’s home.
Protection Application
[22] On June 21, 2017, the Society commenced a protection application seeking to place the child in the care of the paternal grandparents for a period of six months. The concerns raised by the Society at that time were:
(a) significant drug use by both parents;
(b) the child being exposed to the impact of drug use by both parents;
(c) the mother’s inability to maintain a stable home;
(d) the parents driving a motor vehicle under influence of drugs with the child in the car; and
(e) the child being exposed to adult conflict and domestic violence.
[23] On June 26, 2017, Justice Swartz placed the child in the temporary care and custody of the paternal grandparents subject to the supervision of the Society with specific conditions to the paternal grandparents, mother and father. The father was to have liberal access as long as was it fully supervised by the paternal grandparents. The mother was granted three visits per week with the child as arranged between the mother and the paternal grandparents, supervised by the paternal grandparents.
[24] On November 16, 2017, with the consent of the parties, the court made a final order as follows:
(a) that the child was in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act;
(b) placed the child in the care and custody of the paternal grandparents for a period of four months with specific conditions;
(c) provided a specific condition for the parents to deal with their addictions;
(d) granted the father liberal access as long as it remains fully supervised by the paternal grandparents; and
(e) granted the mother unsupervised daytime access with the child as arranged between the mother and the paternal grandparents subject to various conditions.
[25] The mother had unsupervised access to the child in her own home and in the community. The paternal grandmother would transport the child to and from visits to the mother and do safety check-ins before and after visits to ensure the mother was sober and that there were no other safety concerns.
[26] From November 2017 to March 2018, the mother had taken some proactive steps to address the Society’s concerns. The Society was prepared to work towards reintegrating the child back home to the mother over the course of the further supervision order from March to July 2018.
[27] In mid-February 2018, the child was taken to the family doctor as she started to experience anxiety or panic attack type incidents. In addition, the child was taken by the paternal grandparents to the Crossroads drop-in for an assessment where she they offered some techniques to calm the child.
[28] On March 10, 2018, the child was to have a sleepover at the mother’s home and the father was not to attend to the overnight access. The child had too much anxiety at the mother’s house and was not able to sleep over.
Status Review Application March 13, 2018
[29] On March 13, 2018, with the consent of the parents, the court ordered that the child shall continue to remain in the care and custody of the paternal grandparents for a period of four months with conditions.
[30] The parents were to meet with the child protection worker to discuss an addictions assessment program and, once identified, the parents would meet with the child protection worker and the addictions assessor to identify an appropriate treatment program. Following the treatment program, the parents were to work with the child protection worker to identify and participate in aftercare programs as recommended by the treatment program.
[31] Further, the parents were to demonstrate their ability to maintain sobriety following the treatment program for a significant period of time, to participate in random, supervised drug screens as requested by the Society and that neither party would drive with the child under any circumstances without the approval of the child protection worker. Finally, the mother was not to attend the home of the paternal grandparents without permission directly from either the paternal grandmother or grandfather.
[32] On access, the father was to have liberal access as long as it remains fully supervised by the paternal grandparents. The mother’s access was to be arranged between the mother and the paternal grandparents.
[33] On March 25, 2018, the paternal grandmother reported to the child protection worker that she was concerned that the mother was under the influence of drugs when she picked up the father at the mother’s house. On March 26, 2018, the maternal grandmother attended at the paternal grandmother’s home at 6 a.m. and knocked on the door looking for the mother. The paternal grandmother sent an email to the child protection worker stating she believed both the mother and father were using drugs again.
[34] On March 27, 2018, the child protection worker spoke with the paternal grandmother who believed that the parents were under the influence of drugs and that the mother was acting weird. Further, that the paternal grandmother observed that the child appeared fearful of her mother and ran back to her car and got inside at which point the paternal grandmother drove home.
[35] A drug screen was scheduled for March 27, 2017, but due to a mix-up in the scheduling, the test could not take place.
[36] On March 29, 2018, as a result of the child disclosing that the maternal grandmother was present for access visits with the mother, the paternal grandmother and the mother had an exchange where the paternal grandmother reminded the mother that her visits were to be alone with the child. The mother reacted by “bad mouthing” the paternal grandmother.
[37] On April 1, 2018, the child called the paternal grandmother to pick her up early from her mother’s home after witnessing adult conflict between the maternal grandmother, the father and the mother during an access visit for the Easter holiday. The paternal grandmother found the father and the child walking along Bank Street towards her house. The mother denied that there was any argument.
[38] On April 10, 2018, during a meeting with the child protection worker, the mother raised concerns about that the paternal grandparents exposing the child to adult conversation, allowing her to play inappropriate video games, listening to rap music, exposing her to conflict and that the she is bored at her paternal grandparents’ home. The Society investigated and did not verify the allegations.
[39] On May 1, 2018, the mother moved into her new home. The mother cancelled her access visit for that day as a result of the move. The mother did not have access with the child from April 26, 2018 until May 5, 2018.
[40] On May 22, 2018, the paternal grandmother and the mother had a disagreement when the child was being dropped off for access. The mother got mad, started “bad mouthing” the paternal grandmother and swore in front of the child. Eventually, the paternal grandmother left with the child and the visit did not take place.
[41] From April 18, 2018 until June 8, 2018, despite the efforts of the child protection worker, the mother was not able to meet with the worker. The worker sent various emails to the mother to schedule a meeting with the addictions counsellor to complete an information session on the effects of drugs and the impact on children. There was no response from the mother. Between May 9 and May 25, 2018, the child protection worker left the mother three voicemail messages asking her to get in touch to arrange a meeting. Further, the Society worker wished to view the mother’s new residence as the child was going to have access at that location.
[42] Finally, on June 4, 2018, the mother replied indicating that she had been ill and was in and out of the hospital and did not have a phone.
[43] On June 8, 2018, the Society worker met the parents with concerns about their drug use and concerns with their visits. Both parents denied the use of drugs. During this meeting the mother admitted that she was experiencing anxiety and a lot of stress as a result of her move. She admitted that she had been prescribed anxiety and depression medication by her family doctor.
[44] On June 11, 2018, the worker met with both parents at which time she advised them of the Society’s intentions to seek a custody order in favour of the paternal grandparents. After the meeting, the father informed the worker that the last time he used drugs was in February 2018 and the last time he did use drugs with the mother was in October 2017.
[45] On June 11, 2018, the Ottawa Police Service attended at the paternal grandmother’s home looking for the mother related to a shoplifting incident at a local Walmart.
[46] On June 18, 2018, the child protection worker met the mother in her new home for the first time since she had moved at the beginning of May 2018.
Status review application July 6, 2018
[47] On July 6, 2018, the Society filed a Status Review Application where they sought an order placing the child in the custody of the paternal grandparents pursuant to Section 102 of CYFSA with access to the parents at the discretion of the paternal grandparents.
[48] The parents each filed an Answer and Plan of Care opposing the proposed custody order to the paternal grandparents. The mother seeks custody of the child while the father proposes sole custody or a supervision order to the father and mother or further supervision order to the paternal grandparents.
[49] On August 27, 2018, Justice Summers granted orders for disclosure from various police services. The Society received approximately 1,000 pages of various reports.
[50] Throughout this period of time, the mother was having unsupervised access with the child three times per week at her residence. However, things changed on September 25, 2018, when the mother attended at the child’s school, removed the child directly from the classroom and took the child to a local McDonald’s with the plan to go to Toys “R” Us. The mother did not advise the paternal grandmother or the school. She was returned that night by 7:40 p.m. As a result, the Society varied the mother’s access to two times per week fully supervised at the Society’s offices. This access continues as of the date of this motion.
[51] On September 20, 2018, the maternal grandmother admitted in a meeting with the Society, herself and the mother that the maternal grandmother was sneaking out and attending visits with the child and the mother contrary to the Society’s expectations and directions.
[52] At that meeting, the maternal grandmother maintained her belief that the child was sexually abused.
Analysis
Child’s situation
[53] The child has remained in the care of the paternal grandparents since November 2016. After a supervision order was granted in November, 2017, the paternal grandmother quit her job to care for the child and to ensure the child’s safety as the father was not to be in a caregiving role and left unattended with the child.
[54] The child currently attends grade 3, attends regularly and no concerns are reported.
[55] The child is involved in gymnastics, dance, swimming, playing with cousins and friends and other activities.
[56] The paternal grandmother has facilitated access since May 2017 and is prepared to continue to facilitate and supervise access in the community with the child and her mother until the Family Services Centre can provide supervised access.
[57] Currently, the paternal grandparents have addressed the child’s physical mental and emotional needs. On June 27, 2018, the paternal grandparents brought the child to be assessed for services at Serenity Renewal, a support service for family members of addiction.
[58] The paternal grandparents are of Lebanese descent and have exposed the child to their culture, heritages and traditions.
[59] The paternal grandparents have provided the child a stable and safe. The paternal grandparents were approved after an extensive kin assessment on October 4, 2017.
[60] The child is meeting all of her developmental milestones and is happy.
[61] The mother’s various allegations against the paternal grandparents have not been verified.
Evidence regarding the mother
[62] Since October 2018, the mother has resided in a two-bedroom unit in Vanier and is supported by Ontario Works. She is on the waiting list for a two-bedroom townhouse.
[63] On December 6, 2018, the mother advised the Society that she was accepted in an online course, namely the Yorkville University Bachelors for Interior Design. She plans on working full-time at Giant Tiger and bartending/waitressing for banquets. She reported that she was attending Narcotics Anonymous meetings four times a week and would be joining her church.
[64] The mother’s plan is that the child would come to live with her and that she had made inquiries as to two schools in her current district. She also advised that her present home is close to the Boys and Girls Club.
Mother’s involvement with police
[65] The mother has had frequent contact with various police services including the Ottawa Police Service and the Gatineau Police Service.
[66] On November 21, 2017, the mother phoned the police for assistance after her ex-partner Mr. O. attended at her home, kicked in her door and proceeded to throw items around her house. Police reports indicate Mr. O. was residing in the home of the mother against a criminal no contact condition from previous charges involving domestic disputes and assaults against the mother.
[67] On a separate occasion in September 2017, police reports indicate that the mother was with Mr. O. and was intoxicated and required assistance in standing and walking.
[68] At approximately 7 a.m. on January 10, 2018, the Gatineau police attempted to pull over a black jeep Cherokee. The driver did not stop when the police made attempts to pull over the vehicle and they ended up having to block in the Jeep to stop. The officers approached Jeep. The driver refused to turn off the car and put her hands on the steering wheel. The driver proceeded to put the vehicle in reverse and sped away towards the bridge to Ottawa at which point, the Gatineau police ceased in their pursuit.
[69] On February 3, 2018, the Ottawa Police Service stopped the mother and an individual who was driving the vehicle following a report of an intoxicated driver. That individual, Mr. O was charged and the vehicle was towed away. The mother was a passenger in this vehicle. As a result of this information, the Gatineau police identified that the driver of the jeep on January 10, 2018 was the mother.
[70] On April 3, 2018, the mother was charged with disqualified driving while driving with a suspended license. At the time, she was driving her mother’s vehicle which had no insurance resulting in a charge against the maternal grandmother.
[71] On June 10, 2018, the mother was charged with trespass to property as a result of stealing two flowerpots from a local Walmart. The matter was resolved by alternative measures and the charges were withdrawn.
[72] In July 2018, police occurrence reports indicate that the mother was involved in a relationship with Mr. O. and that there were reports of domestic disputes and assaults between the mother and this individual. The mother failed to disclose this relationship to the Society.
[73] The mother was convicted of impaired driving while in the possession of drugs such as cocaine, amphetamines, methamphetamines, benzylpiperazine and GHB.
[74] The father’s most recent contact with the police occurred in January 9, 2018 when he was convicted for impaired driving. In September 2017, the police found drugs in his possession and the father admitted that the drugs in his possession were GHB and speed. In October 2017, the probation report indicated that the father was under the influence of substances while volunteering as part of his community service hours pursuant to his probation order.
Drug use
[75] On the issue of drug use, the mother alleges that she has provided approximately nine drug screens since 2016 including two since January 10, 2019. All tests have come back negative for all substances except marijuana.
[76] In January 2018, the mother stated that she completed a 30-day program with the Ottawa Withdrawal Management. Since March 2018, she has been attending for counselling at Rideauwood.
[77] The mother denies that she has been under the influence of substances at various times while exercising access with the child. She alleges that the child has been coached by the father and/or the paternal grandparents to make certain disclosures to the Society.
[78] At the meeting on December 6, 2018, the worker requested that the mother attend a drug screen on December 7, 2018. The mother did not attend the drug screening on December 7, 2018 because her health card expired and consequently the test could not be undertaken. Upon investigation, the Society ascertained that the mother did not attend on December 7, 2018. When the worker met the mother she examined the mother’s health card and noted that the expiry year was not 2018 but 2019.
[79] At the meeting on January 4, 2019 with the worker, the mother admitted that she was now only in weekly counselling with her support services at Rideauwood and that should stopped taking three of her antidepressant and anxiety medications two weeks ago without consulting your doctor
[80] On January 14, 2019, Ms. Gattens, the child protection worker, spoke to the mother’s counsellor from Rideauwood. The mother’s affidavit dated January 22, 2019 does not deny the evidence provided by the counsellor as follows:
(a) the mother intended on starting a stabilization abstinence group at the end the January and afterwards would begin a one-year adult abstinence group;
(b) that she was the mother’s group counsellor last summer and starting seeing her for individual counselling but prior to December 17, 2018 she only saw her a couple times;
(c) the mother attended a three-week screening group in June 2018 to go over various programs and see if she would be suitable for group sessions;
(d) the mother started the stabilization group August 2, 2018 but did not consistently attend;
(e) the mother changed to the Rapid Access Opiate Treatment group for around two months but her attendance was not consistent;
(f) that she was helping the mother with emotional regulation and coping skills and that the mother appeared present and her eyes were clear when she met her; and
(g) the mother alleged that the child disclosed that her father was touching her and her grandmother was bathing her.
Housing issues
[81] From August 2016 to January, 2019, for various reasons, the mother has lived at seven different residences. In May 2018, the mother moved from her home in Greeley to a home in the south end of Ottawa. That residence only had one apartment and she moved in on a temporary basis. In August 2018, the mother moved to another residence in the south end of the city. On October 1, 2018, the mother moved from the south end of Ottawa to the Vanier area.
Views of the child
[82] The CYFSA mandates the court to consider the views and preferences of the child. The child’s wishes and preferences have varied over time. The child has expressed a desire to maintain contact with her father, her mother, the paternal grandparents, her cousins and maternal grandmother.
[83] The child has made statements to the child protection worker, her mother, her father and the paternal grandparents dealing with:
(a) that if she lived with her mother she would worry about her father and if she lived with her father she would worry about her mother;
(b) that she does not want to go to her mom’s house but misses her mom;
(c) likes her school and has made friends;
(d) likes to jump on the trampoline with her cousins and to play ball tag with her father and paternal grandfather in the basement;
(e) likes having two Christmases with one at her mother’s and one at her grandmother’s house;
(f) wishes that her father would not smoke;
(g) wishes that her mother, father and paternal grandparents would all live together;
(h) wishes to go home to live with her mother; and
(i) says she did not want to sleep at her mother’s house because it was too far from school.
[84] Counsel for the mother contested the admissibility of any of the statements made by the child arguing that a trial is required to determine the admissibility of the child’s statements and the court cannot rely on the statements until such an adjudication is taken place. Counsel for the mother did not request to cross examine the worker on the statements in her affidavits and relied on statements made by the child that she wanted to live with the mother.
[85] In Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 the court found that the state of mind hearsay exception includes a child’s wishes and preferences and statements made by the child about his or her physical, mental and emotional state. The statements must assert a contemporaneous physical, mental or emotional state. They cannot include the reason for the child’s statement and should not be made under circumstances of suspicion. The court admitted child statements to show the child’s views and preferences about where she wanted to live and how much access she wanted with her father; her feelings about living with her aunt; feelings about her access with the father; feelings about pressure father was placing on her; statements about her stress level, her pride in her school performance and how she was sleeping and eating for state of mind in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124.
[86] In D.D. v Children’s Aid Society of Toronto, 2015 ONCA 903, the Court of Appeal addressed the admissibility of hearsay statements made by a child and stated:
36 Further, s. 50 of the CFSA expressly contemplates the admission of written reports of therapists and other persons involved in the child's care:
Despite anything in the Evidence Act, in any proceeding under this Part [child protection],
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
37 Evidence about a child's expressed views is often presented through persons to whom the child has communicated. Section 39(5) of the CFSA provides that a child under 12 is not entitled to attend court unless the court is satisfied the child can understand the proceedings and will not suffer emotional harm.
38 Statements about the child's views and preferences set out in affidavits by Children's Aid Society workers' affidavits are admissible: Strobridge v. Strobridge (1992), 1992 CanLII 7488 (ON SC), 10 O.R. (3d) 540 (ONSC).
39 Statements that show the child's state of mind are also admissible as a general exception to the hearsay rule where they are admitted not for their truth but for the fact that they were said: Paciocco and Stuesser, The Law of Evidence, 5th Ed. at p.176. Here, many of the complained-of hearsay statements were considered by the motion judge in this context.
40 In addition, while in some cases, admission of hearsay might be unfair, here the mother does not point to any particular unfairness resulting from the admission of the evidence presented on the motion. It does not appear that she made any objection to that evidence at the hearing or asked to cross examine the deponents of the affidavits.
[87] I find that the Society is not relying on the child’s statements because they are true but rather for the fact the child expressed her wishes. I find that the statements indicate a child wishing different things at different times to different people. I find that the statements made by the child are admissible as a state of mind exception to the hearsay rule.
[88] Having said that, I acknowledge that the child is eight years of age and has made conflicting statements to different individuals about her views and preferences.
[89] I am to consider the child’s views and preferences and to place whatever weight should be given to those statements. In this case, because of the child’s young age and conflicting statements, I place little weight on the views and preferences.
Law and Analysis
[90] The Society brings this motion pursuant to Rule 16 of the FLR. The relevant sections of Rule 16 are as follows:
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. O. Reg. 114/99, r. 16 (4).
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. O. Reg. 91/03, s. 5.
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. O. Reg. 114/99, r. 16 (6).
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. O.Reg. 69/15, s. 5(1).
Order Giving Directions
(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);
(b) give directions; and
(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).
(10), (11) Revoked: O. Reg. 69/15, s. 5 (4).
[91] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada set out a two-stage process in determining whether summary judgment should be granted. The Supreme Court of Canada held that the court should first determine if there is a genuine issue requiring a trial based only on what is before the judge, without using the judge’s new fact finding powers set out in subrule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue requiring a trial, the judge may use the additional fact finding powers outlined in subrule 16 (6.1) to weigh evidence, evaluate credibility, draw inferences and possibly receive oral evidence on the motion.
[92] 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 the motion for summary judgment. This will be the case when the process:
(a) allows the judge to make the necessary findings of fact;
(b) allows the judge to apply the law to the facts; and
(c) is a proportionate, more expeditious and less expensive means to achieve a just result (see Hryniak para. 49).
[93] The Divisional Court in Kawartha-Haliburton Children’s Aid Society v. M.W. 2018 ONSC 2783 set out the following:
(a) Neither party has the onus of establishing who will succeed at trial. That is the wrong question. Pre-Hyrniak case law where courts examined whether a party has any reasonable chance of success no longer applies (para. 45).
(b) The key question is whether it is in the interest of justice for the court to resolve the case summarily. To do so, the court is required to consider whether the process allows it to make the necessary findings of fact based on the facts pleaded, to apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure (para. 46).
(c) The summary judgment 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 (para. 43).
(d) 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 (para. 48).
(e) 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 (para. 49).
(f) 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), 1990 CanLII 4023 (ON SC). 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 (para. 50).
[94] The principles set out in Hryniak apply to child protection cases (see Kawartha-Haliburton Children’s Aid Society v. M.W., supra).
[95] In Children’s Aid Society of Ottawa v S.H. and M.B. ONSC 3906 Justice MacLeod at paragraph 6 stated:
Justice of course does not demand that the court adopt or agree with the position advanced by the respondent but only that she have adequate opportunity to put her positions to the court and to introduce her evidence in support of that position. If that can be accomplished on the motion, then the motion judge is in the same position as a trial judge and deferring the decision to a trial is only postponing the inevitable. Delaying the decision is not just to any party. Moreover, it extends the period of uncertainty in the life of the child.
[96] Pursuant to section 114 of the CYFSA, one of the options for the court on a status review application under section 113 is to make an order under section 102.
[97] Section 102 of the Child, Youth and Family Services Act, provides:
Section 102(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in the child’s best interest, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
(2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be made under section 28 of the Children’s Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act, and
(b) may give any directions that it may give under section 34 of that Act.
[98] Section 101(3) CYFSA states the court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this section unless the court is satisfied that alternatives that are less disruptive to the child, including nonresidential care and the assistant referred to in subsection (2), would be inadequate to protect the child.
[99] Subsection 104 of the CYFSA states that the court may, in the child’s best interests, when making an order under this part or upon 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.
[100] Subsection 74(3) of these CYFSA sets out the factors to consider in making an order or determination in the best interests of a child. The court should consider the following:
(a) consider the child’s views and wishes, giving 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 Metis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Metis 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 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.
[101] Prior to making an order under section 57.1 of the CFSA (now subsection 102 CYFSA), the court is required to make and finde that the child is in need of protection (Family and Children’s Services of Frontenac, Lennox and Addington v. B.(B.) 2013 O.J. No.2032 Ontario Superior Court).
[102] Finally, the paramount purpose of the CYFSA is to “promote the best interests, well-being and protection of children” (s. 1(1)). In the appropriate circumstances, proceeding with a motion for summary judgment complies with the paramount purpose of the legislation.
Analysis
Is summary judgment appropriate in the circumstances?
[103] I find that on the evidence presented that I can fairly and justly adjudicate the issues in a timely, affordable and proportionate procedure. I find that I am able to consider the issues, the evidence, the strength of the case and can resolve this matter summarily without a trial.
[104] I find that the Society has set out specific facts showing that is no genuine issue for trial and that it is in the interest of justice that this case be decided summarily.
[105] Upon a review of the mother’s five-page affidavit, the mother does not deny many of the allegations raised by the Society such as:
(a) the Society’s evidence regarding her involvement with the various police services;
(b) the Society’s evidence received from her probation officer and her addictions counsellor; and
(c) the statements contained in Ms. Gatton’s affidavit regarding the mother’s plans for work.
[106] The mother’s affidavit raises various facts including the following points:
(a) the child spends an overabundance of her leisure time on the computer;
(b) she is being supported by Ontario Works and has a current two-bedroom unit available for her child and that there are schools in her area that could accommodate the child;
(c) she relies on the various statements made by the child to individuals about her wish to live with her mother;
(d) she denies having been under the influence of substances while exercising access;
(e) the child is coached by her father and paternal grandparents;
(f) she provided her version of incidents that occurred on July 18 and September 11, 2018;
(g) she reiterates her allegations of drug abuse by the paternal grandparents;
(h) she alleges that on Christmas morning 2018 the child called her because the father and paternal grandparents slept until approximately 1 p.m. and the child had not eaten. This investigation was investigated and not confirmed;
(i) she is concerned about the child’s weight gain;
(j) she raises an incident in the fall 2018 where the child alleged the grandmother washed the child with a sponge in the shower;
(k) she alleges the child is scared of the paternal grandparents and of telling the truth;
(l) she alleges that the child disclosed that the father is always sleeping and the paternal grandmother and the father are always on their phones;
(m) her supervised access is very positive; and
(n) she alleges that since September 25, 2018, three of her access visits were cancelled, one because the child was allegedly sick (which the mother did not believe) and one as a result of the summary judgment motion being scheduled for January 18, 2018. According to the mother, no makeup access was provided.
[107] The mother proposes that she have custody of the child and that that issue go to trial. The mother, as the responding party to this motion for summary judgment, must establish specific facts showing there is a genuine issue for trial. I have assumed that the mother has put before me all the evidence that she would adduce at a trial.
[108] I find that the mother’s affidavit fails to address what specific facts require a trial.
[109] The mother’s affidavit fails to address what her plan would be with respect to the child in any great detail. Further, her affidavit fails to address the issue of access. There is little evidence that there has been any problem with the access being at the discretion of the paternal grandparents. I accept that there were incidents of friction between the parties usually related to the paternal grandmother’s belief that the mother was under the influence of drugs and the three canceled visits set out in the mother’s affidavit since September 2018.
[110] I find that the mother is not credible based on the conflict in her evidence such as:
(a) the mother advised the Society that in August 2017 she pled guilty to fleeing the scene of an accident and was sentenced to one year probation with conditions including attending addiction counselling. However, on November 30, 2017 the Society became aware that the mother was on probation until August 20, 2018 for impaired driving and for failing to stop at the scene of the accident. Further, the Society became aware that the mother was prohibited from driving and applying for a driver’s license until August 21, 2019;
(b) despite denying that she did use drugs in October 2017, that information is contradicted by the father who advised the Society worker on June 8, 2018 that he and the mother had used drugs in October 2017; and
(c) I find that the mother intentionally did not attend the drug screen on December 7, 2018, and that her evidence as to why she did not attend is simply not credible.
[111] I find that there is no genuine issue for trial and that a determination on this motion will provide a fair and just adjudication of the issues on the application.
The child’s best interests
[112] This matter is about the best interests of this child. I have consider the following factors:
(a) I have placed little weight on the child’s wishes and views for reasons set out herein;
(b) the child has been in the care of the paternal grandparents since November 2016. It is acknowledged that from November 2016 until the end of April 2017, the mother remained in the home and assisted in caring for the child;
(c) since May 2016, for whatever reason, the mother has moved seven different times. I find this number of moves in such a short period of time indicates a level of instability when contrasted to the stability projected by the paternal grandparents. From the child’s perspective, since November 2016, she has been in the same home and has attended the same school. She has developed friends and activities in her area. The child is stable in the paternal grandparents care;
(d) the child physical development is progressing normally while her mental and emotional development has had challenges usually related to the acts of her parents. I find that the mother’s actions vis-à-vis the paternal grandmother have caused the child anxiety. I find that the paternal grandparents have acted appropriately in seeking professional assistance to address the child’s anxiety;
(e) the paternal grandparents are of Lebanese heritage and have allowed the child to experience that heritage;
(f) being in the care of the paternal grandparents since November 2016 has created a positive relationship between the child and the paternal grandparents which has afforded the child stability and a safe place to live;
(g) while the child has emotional ties to her mother, she also has a very close relationship with the paternal grandparents;
(h) the paternal grandparents proposed plan of care would maintain the status quo and which has worked positively for the child. While the child was in the care of the mother prior to November 2016, the child changed schools on more than one occasion. The child was in a state of instability. While there are two possible schools available in the mother’s area, I do not find it in the child’s best interest to change her school to move with the mother;
(i) the paternal grandparents plan of care provide the child with continuity and stability;
(j) there is a risk that the child may suffer harm if returned to her mother. I find that the mother’s actions with respect to the police are indicative of an immature and reckless person. I find that the mother has not adequately addressed her drug usage as evidenced by her minimal involvement with the counsellor at Rideauwood. All these factors cause me concern that the child may suffer harm if returned to her mother;
(k) the court finds that if the child is placed in the custody of the paternal grandparents, that they will provide a safe, stable and loving environment for this child to thrive. Since the child has been in their care, they have been able to provide such an environment; and
(l) I find that the allegations raised by the mother against of the paternal grandparents for drug use have been investigated and not verified by the Society. The mother raised the issue of drug usage in her answer and continues to raise it in her affidavit dated January 22, 2019 without any evidence to corroborate such an allegation.
[113] I find that the mother’s plan is vague and does not address the child’s specific needs. I find the mother has failed to address the concerns related to her lifestyle, drug use, exposing the child to domestic violence and failure to set boundaries.
[114] When I consider all of the factors, I find that granting the paternal grandparents custody of the child is the least disruptive option and best aligns with the child’s expression of what/who is important to her. The order will maintain the child’s day-to-day life, her school, her friends and also her relationships with her parents and extended family.
[115] Based on all these factors, I find that it is in her best interest of the child that she should be placed in the custody of the paternal grandparents pursuant to section 102 of the CYFSA.
Access
[116] On the issue of access, the Society’s position is access should be at the discretion of the paternal grandparents vis-à-vis the father and mother.
[117] The mother opposes such a disposition but the mother’s affidavit fails to address the issue of access. In submissions, counsel for the mother submitted that the mother should have unsupervised access two times per week.
[118] The mother does not raise any concerns about access being at the discretion of the paternal grandparents. This access schedule was in place from May 2017 to September 25, 2018 when the mother had unsupervised access three times per week. The paternal grandmother would drive the child to and from all access visits and would ensure that the mother was sober and not under the influence of any substances before and at the end of access.
[119] The mother does not raise any incidents where she alleges that the paternal grandparents abused their discretion. The mother has alleged certain isolated incidents of conflict between the mother and the paternal grandmother.
[120] I find that overall the access has worked for the child. My focus is on what is in the best interests of the child and not the parents. The status quo prior to September 25, 2018 was an undefined schedule that provided significant flexibility to the mother, child and paternal grandparents.
[121] I note that the mother intends to work at Giant Tiger as well as working as a waitress/bartender to make additional income. Allowing a flexible access arrangement can accommodate the mother to ensure that she is available to have time with her child.
[122] The Society does not propose supervised or unsupervised access with that decision left to the discretion of the paternal grandparents. The paternal grandmother has completed an application for supervised access at the Family Service Centre but states that her application will not be considered until there is a final custody order with an access plan. The paternal grandmother has agreed to facilitate and supervise access in the community between the child and the mother in order to support their relationship until the Family Service Centre can supervise access. The paternal grandmother has expressed that, at times, she is fearful of the mother who has been physically aggressive in the past, is unpredictable and for that reason seeks to have access in the community.
[123] I find that the current access of two times per week supervised at the offices of the Society should be replaced. The mother and paternal grandmother have been able to work out an access schedule that benefit of the child.
[124] Further, if in the future the situation requires judicial intervention, the mother may commence an application to vary and specify the access under the Children’s Law Reform Act.
Disposition
[125] I place the child A.R. born XX, 2010, in the custody of her paternal grandparents, A.O. and M.R., pursuant to section 102 of the Child, Youth and Family Services Act.
[126] I order that the child shall have access to her parents at the discretion of the paternal grandparents.
Mr. Justice Mark P. Shelston
Released: February 1, 2019
COURT FILE NO.: FC-17-1262
DATE: 2019/02/01
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF A.R, born XX, 2010
BETWEEN:
Children’s Aid Society
Applicant
– and –
A.M. (Mother)
Respondent
M.R. (Father)
Respondent
ruling on motion for summary judgment
Shelston J.
Released: February 1, 2019