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-14-2273
DATE: 20200313
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant/Moving Party
– and –
E.L and I.O.
Respondents
Judith Hupé, for the Applicant
Lisa Sharp, for the Respondent E.L. and Cedric Nahum for the Respondent I.O.
HEARD: February 14, 2020
Decision on summary motion with regards to S.L.
R. Smith J.
[1] The Children’s Aid Society of Ottawa (the “Society”) has brought a motion for summary judgment seeking an order:
For S.L.
a) That S.L. ([…], 2019) be found in need of protection;
b) Placing S.L. in extended Society care for the purposes of adoption;
c) Allowing S.L. access to her mother, father and siblings at the Society’s discretion, in accordance with her best interests.
For I.L.
d) That I.L. (June 8, 2018) be found in need of protection, be placed in the legal custody of D.D., and to have access to her mother, father and siblings at D.D.’s discretion, in accordance with her best interests.
[2] The mother consents to the order sought by the Society for S.L. and she supports the plan that she be placed for adoption by K.N., the approved kin placement. The father I.O. is opposed to the Society’s motion and seeks to have S.L. returned to his care.
[3] The summary judgment motion hearing was completed for S.L. but the motion for I.L. will be completed on April 16, 2020.
Applicable Law
[4] The court has jurisdiction to deal with a child protection matter by way of summary judgment. The test enunciated is found at rule 16 of the Family Law Rules.
[5] The primary test in a motion for Summary Judgment is whether there is a genuine issue for trial.
[6] In Hryniak v. Maudlin, the Supreme Court provided guidance regarding summary judgments. In regard to determining when there is a genuine issue requiring trial, Justice Karakatsanis wrote:
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.
These principles are interconnected, and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that 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.
[7] The Supreme Court of Canada in Hryniak established principles for the court to consider that are relevant by analogy to the use of enhanced fact-finding powers under Rule 16:
• A court should first determine whether summary judgment should be granted without using the enhanced powers under Rule 20.04(2.1);
• There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).
• The new fact-finding powers are presumptively available; judges are allowed to exercise them unless it is in the interests of justice that they only be exercised at trial.
• If there appears to be a genuine issue requiring a trial, the court should then determine if the need for a trial can be avoided by using the new powers under Rule 20.04(2.1) and (2.2). The court may, at its discretion, use those powers, provided that their use it not against the interest of justice.
• Their use will not be against the interest of justice if they will lead to a fair or just result and will serve the goals of timelines, affordability and proportionality in light of the litigation as a whole.
[8] Other principles established are the following:
• A triable issue is one which is relevant to the issues to be decided. The test is whether the question at issue is a foregone conclusion. There may be a factual dispute on an issue, but that does not necessarily raise a triable issue if the balances of the admitted and undisputed evidence lead to an inevitable outcome.
• Parties must put their best foot forward; in other words, they “must lead trump or risk losing”.
• The moving party has the onus of establishing there is no genuine issue requiring trial. Once the moving party establishes a prima facie case, the onus shifts to the responding party to show that there is a genuine issue requiring trial.
• The nature of the evidence before the court, the reasonableness of any potential plans and the statutory timeframes all have a role to play in the determination of whether there is a genuine issue for trial.
• The legal process is not to be used as a strategy to buy time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a parent’s heartfelt expression of his desire to resume care of the child; the parent’s evidence must support that the child faces better prospects than what existed at the time the Society removed the child from her care and that she has developed new parenting skills.
[9] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at paras 65-76, the Court of Appeal summarized and clarified the approach that courts should take to summary judgment in child protection proceedings and set out, amongst others, the following principles:
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 caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although, r. 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.
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.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
[10] In Children’s Aid Society of Ottawa v. C.R. and A.F., 2016 ONSC 1590 MacKinnon J. held hearsay evidence was not adequate evidence to support a motion for a summary judgment. In Children’s Aid Society of Ottawa v. J.B. and H.H., MacKinnon J. followed a 2012 decision of Justice Sherr who held that “the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
[11] The determination of when a child is in need of protection is made by considering the factors set out at section 74(2) of the CYFSA. In this case s.74(2)(h) is the applicable section which states as follows:
Child in need of protection
(2) A child is in need of protection where,
(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.
[12] The determination of a child’s best interest is made by considering the factors set out at section 74(3) of CYFSA, namely:
Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection
Issue #1 – Is S.L. a child in need of protection?
[13] The mother agrees that S.L. is in need of protection and she supports the Society’s plan for adoption by K.N. The mother chose K.N. as a kin placement and as an adoptive parent for S.L., who agrees to provide access in accordance with the child’s best interests.
[14] The father opposes the Society’s plan and seeks the return of S.L. to his care.
Non-Hearsay Evidence
[15] I rely on the non-hearsay evidence of the Children’s Aid workers including their observations, evidence within their knowledge, and admissions made to them by the parties as set forth in the affidavit evidence filed by the Society.
MacLeod J.’s Decision
[16] I also rely on the findings made by MacLeod J. regarding these parents and their violent relationship in a recent trial involving two older children.
[17] In his decision released on June 14, 2019 (approximately 9 months ago), Justice MacLeod found that S.L.’s parent’s two oldest children, L.E.L. and S.L. were in need of protection and they were placed in extended Society care for purposes of adoption with access. Justice MacLeod conducted a four-week trial and held that “the children had been exposed to significant domestic violence and the parents continue to live in an unstable, volatile relationship. As just mentioned, they have also proven themselves to be unable or unwilling to be governed by court orders or to cooperate or be candid with the Society.”
[18] The mother agrees with this finding as she agrees that she had returned to live with the father. On May 30, 2019 there was a violent incident between the parents where the mother pulled a knife on the father. On July 4, 2019 the father threatened to kill the mother and himself (criminal charges have been laid but not yet proven). The father had moved in with the mother again on October 1, 2019 and on October 29, 2019 there was another violent incident for which the father was charged criminally (not proven). The mother states that since November 15, 2019, she has been living in a new apartment, that the father is unaware of her new address, and that she has managed to stay away from the father for the past 3.5 months.
[19] Justice MacLeod made a number of findings about S.L.’s parents (mother “E.L.” and father “I.O.”) on which I rely as evidence on this summary judgment motion:
a) At para 67:
It would be grossly unfair to the children to experiment with them by returning them to the parents in the optimistic hope that this time, the cycle of violence between the parties has been vanquished. And it would be taking an unreasonable risk with the children to attempt to craft a court order in the hope that in future the parties will comply with all applicable court orders and co-operate with the Society. I would like to believe this will be the case but the evidence does not persuade me I can rely upon it with any degree of confidence.
b) At para 30:
The sole reason for Society involvement, for apprehension and for the various findings that the children are in need of protection is the inability of the parents to shield the children from exposure to their own turbulent relationship and to significant incidents of domestic violence. Even the key instances of violence are not in dispute. It is clear that the children have been exposed to violent arguments. The number of times the Society has intervened, the attempts to place the children with one or other of the birth parents, and the number of times the children have been taken back into care is well documented. There is no dispute about the number of times the court has previously found one or other of the children to be in need of protection and the times when the children have been in and out of care.
c) At para 31:
The violence was not all one sided. Both parents have convictions for assault against the other and for most of the trial they were each subject to conditions prohibiting them from being in contact with each other. One of the most unusual features of this case was the fact that I.O. was simultaneously involved in a criminal proceeding involving very significant allegations of assault, sexual assault and forcible confinement. E.L. was the complainant and the chief witness for the Crown. Though I.O. had pleaded “not guilty” in that proceeding and it remained ongoing at the end of this trial, in this proceeding, the evidence of both E.L. and I.O. confirmed that the events in question had occurred largely as described.
d) At para 32:
By the end of this trial, the parents had conceded that they remained in a relationship and had been in regular contact throughout the criminal and family trial. This was in breach of the orders made in criminal court but also in breach of conditions that had been imposed in this court. It was their evidence however that they both believed the potential for violence in the relationship had abated and they hoped to be able to co-parent in some capacity. Though the original plans of care they had each filed were never formally amended, in effect they are now proposing a joint plan of care.
At para 34:
E.L. is the mother of these children. She is Inuk, born in Iqaluit, adopted by an uncle but lived close to her birth parents. She describes a horrific upbringing described in detail in a written statement she had prepared for her sentencing hearing before the Ontario Court of Justice and which she adopted as part of her evidence. In that statement and in her oral testimony, E.L. describes a childhood marked by poverty, alcoholism, violence and sexual abuse. She was sexually abused in her teens by various family members, dropped out of school and became involved with drugs. She has been diagnosed with PTSD, anxiety and borderline personality disorder. She has a deep fear of abandonment and has been subject to depression and jealousy. She recognizes she has addictive personality traits and has occasionally used drugs such as crack. E.L. has a criminal record for assault.
e) At para 35:
E.L. is also articulate, intelligent, educated, and fluent in both Inuktitut and English. She is deeply respectful of Inuit teachings and culture and has also adopted some First Nations practices such as smudging referred to earlier.
f) At para 38:
As E.L. was ending her relationship with D.D. she became involved with I.O. As mentioned above, that relationship was a turbulent one which E.L. described as chaotic. In her statement and in earlier evidence, E.L. described it as a “familiar chaos” and she described her relationship with I.O. as like an addiction.
g) At para 39:
E.L. has now had three children fathered by I.O. and she is pregnant with a fourth expected this July. The subject children, S.L. and L.E.L. are the two older children. The third child, I.L. is also in care at this point in time but is not the subject of this proceeding. I.L. is in the same foster home as L.E.L. but the Society proposes L.E.L. will be adopted by J.F. and R.F. and live with them and with S.L.
h) At para 62:
The sole reason for Society intervention has been the turbulent relationship between the parents, the exposure of the children to domestic violence and the inability of the parents to comply with the terms of court orders. This has resulted in both children being in care for most of their lives.
i) At para 63:
Although by the end of the trial, the parents were presenting congruent proposals in which they both express a desire to heal their relationship, to jointly parent and in which they hope they may form a stable family unit with the children, this was not the situation when the trial began. The parents and these children have never lived together as a stable family unit for any length of time. When the parents were together with the children there were episodes of violence.
j) At para 65:
There is no doubt the children were exposed to violent arguments when in the care of their parents. Besides exposing the children to physical and verbal conflict between the two parents, neither I.O. nor E.L. have shown themselves to be either honest with the court or governable by court orders. The parents concealed their ongoing relationship from the Society and breached court orders in order to be together. They have actively failed to provide information or to co-operate and E.L. has excluded anyone who disagrees with her from her circles of care. During most of the trial they were in violation of probation orders and bail orders and it was only towards the end of the trial that they had their conditions amended. The court can have no confidence that the terms of a supervision order would be respected even if such an order remains a legal option.
k) At para 67:
It would be grossly unfair to the children to experiment with them by returning them to the parents in the optimistic hope that this time, the cycle of violence between the parties has been vanquished. And it would be taking an unreasonable risk with the children to attempt to craft a court order in the hope that in future the parties will comply with all applicable court orders and co-operate with the Society. I would like to believe this will be the case, but the evidence does not persuade me I can rely upon it with any degree of confidence.
l) At para 96:
On the evidence before me, the children continue to be in need of protection. Returning the children to the care of the mother carries with it a very high risk of exposure to domestic violence and as the evidence demonstrates, the court can have no confidence that the parents will abide by the terms of a supervision order.
[20] The mother’s position for I.L. is that she has ended her relationship with the father since November 15, 2019, a period of 3.5 months, and the genuine issue for trial is whether this amounts to a material change in circumstances.
Timelines
[21] On June 17, 2019 a temporary order was granted placing S.L. with her mother subject to supervision by the Society. On July 10, 2019 Shelston J. removed S.L. from her mother’s care and placed S.L. in the temporary care and custody of the Society. I.L. was placed in the temporary care of the Society by Shelston J. on November 21, 2018.
[22] S.L. has been in the care of the Society since July 10, 2019 which is most of her life as she is now 9 months old.
Evidence related to the Father
[23] MacLeod J. also made the following findings about the father with which I agree:
a) At para 41:
I.O. was born in Edmonton to a mother who placed him for adoption. His birth mother was from Yellowknife and is a member of the Y.D. First Nation. Although I.O. is a band member and receives benefit as such, until recently he had no contact with his nation or with his birth mother. This is due to the fact that I.O. was adopted by a white family and was raised in Orleans. He describes his family as loving and caring but also as a non-indigenous middle-class military family with strong pro-Canadian views and values. He continues to have a close relationship with his adoptive parents despite his sadness about losing links to his native culture.
b) At para 42:
I.O. suffers from Fetal Alcohol Syndrome. This causes him difficulty in processing information, in expressing himself clearly and in relating to other people. He described a difficult time in school exacerbated by incidents of racism. He did not complete high school and he left home on more than one occasion. During that time, he was a victim of sexual abuse. He has struggled with alcohol addiction but currently uses only marijuana. In his early teens he began to seek out information concerning First Nations traditions and became involved with Odawa Native Friendship Centre.
c) At para 44:
I.O. also spent time in the Canadian Military but struggled with his ability to understand and follow directions and orders. He also had difficulty with alcohol. He apparently developed PTSD and is now in receipt of veteran’s benefits.
d) At para 47:
Despite his learning difficulties, I.O. speaks clearly and articulately. He is proud of his First Nations heritage and wishes to continue to learn and to share with his children. During the trial I.O. demonstrated deep respect for his traditions and a willingness to teach and to share. He explained that in his culture it is the special duty of fathers to teach sons and for mothers to teach daughters. He is particularly concerned that L.E.L. understand First Nations traditions as well as Inuit traditions.
Father’s Plan of Care for S.L.
[24] The father has not presented a plan to parent S.L.. In his affidavit he stated that he had been homeless in the 4 months before December 31, 2019, but that he had obtained a subsidized rental one-bedroom apartment as of December 31, 2019.
[25] The father has not contacted the Society to provide his address or to allow the Society to visit and assess the suitability of his accommodation.
[26] The father attended court on the morning of the summary hearing. He arrived late and was belligerent and disrespectful in court. He was shouting obscenities during counsel’s submissions. His behaviour was so unacceptable that security was called, and he was ordered to leave the courtroom. Inquiries were made to see if he could watch the proceedings from the translation booth. This was not possible due to the risk his damaging the equipment. The father’s lawyer advised the court that the father had not taken his medications and had left the court building to see a doctor.
[27] The father’s belligerent behaviour in court demonstrates he is unable to control his aggressive behaviour and confirms that S.L. and I.L. continue to be in need of protection from him. There is also a risk that the mother will return to live with the father and expose S.L. to domestic violence. As a result, I find that there is a risk that S.L. is likely to suffer emotional harm from being exposed to domestic violence between her parents. This finding is supported by Justice MacLeod’s findings for the two older children and by the evidence that the parents have continued to live together on several occasions since the trial before MacLeod J.. There have been further incidents of domestic violence between the parents on several occasions since MacLeod J.’s decision and the mother states that she has only terminated the relationship with the father for a period of 3.5 months.
[28] The father has only exercised access to S.L. for 50% of the time since S.L. was placed in care and he did not exercise any access to S.L. in the past four months. The father has been homeless for four months before December 31, 2019 and the Society has not been able to assess his current accommodation. He has not filed a plan of care.
Best Interests of the Child S.L.
[29] Section 74(3) of the Child, Youth and Family Services Act (“CYFSA”) sets out the factors to be considered to determine S.L.’s best interests:
a) S.L.’s connection to her First Nation’s and Inuk traditions, heritage and culture and connection to the community will be maintained as K.N. has adopted another Inuk child and is actively involved in the Inuk community. The mother has chosen K.N. and believes that it would be in S.L.’s best interest to be adopted by K.N. with access to her parents in accordance with the child’s best interests. K.N. does not have First Nations or Inuk heritage but her actions demonstrate to the mother’s and to the Inuk community’s satisfaction that she will ensure that the ties to her Inuk and First Nation’s culture and heritage will be maintained;
b) Ensuring that there is access to the parents and siblings supports the continued involvement with S.L.’s Inuk and First Nations heritage as well as maintaining contact with her parents and siblings. Adoption will provide permanency and continuity for S.L. and will allow her to develop a positive relationship with a parent and have a secure place as a member of a family;
c) The Society’s plan will provide stability for S.L. and permanency for her given that the timelines will have been exceeded by the time of the trial. Further delay is not in S.L.’s best interest;
d) The Society’s plan removes the risk that S.L. will suffer further harm if she is returned to the father’s care and then removed once again; and
e) S.L. is doing well in the care of K.N. and both the mother and her community members identify K.N. as kin, who is able to properly care for S.L..
Disposition
[30] Based on the evidence presented by the Society that would be admissible at trial and based on MacLeod J.’s findings, I find that the father has not raised a triable issue and taking a cautious approach in child protection proceedings I am satisfied that the Society has presented evidence to demonstrate that there is no genuine issue for trial. In this case the evidence is overwhelming that S.L. is in need of protection and that it is in her best interests to obtain permanency by being placed in the extended care of the Society for the purpose of adoption and not to be returned to her father’s care.
[31] For the above reasons I order as follows:
a) S.L. (D.O.B. […], 2019) is found to be in need of protection;
b) S.L. shall be placed in extended care for the purpose of adoption; and
c) S.L. shall have access to her mother, father, and her siblings (S.L. L.E.L. and I.L.) at the Society’s discretion, in keeping with her best interests.
Justice Robert Smith
Released: March 13, 2020
COURT FILE NO.: FC-14-2273
DATE: 20200313
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant/Moving Party
– and –
E.L and I.O.
Respondents
Decision on summary motion with regards to s.l.
R. Smith J.
Released: March 13, 2020