GUELPH COURT FILE NO.: FS-23-00000038-00AP and FS-23-00000040-00AP
DATE: 20240115
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A. K. Appellant
- and -
Family & children’s services of guelph and wellington county Respondent
Counsel: Unrepresented for the Appellant Arnab Quadry for the Respondent
HEARD: January 9, 2024
PETERSEN J.
This case involved an appeal of child protection orders under the Child, Youth and Family Services Act, 2017. Subsection 121(8) of the CYFSA prohibits the publication of any identifying information about the children involved in this case, their parents, foster parents, or members of their family.
REASONS FOR DECISION (APPEAL)
Overview
[1] This is an appeal from the summary judgment decision of Justice O’Dea of the Ontario Court of Justice dated November 25, 2022, which contains orders made pursuant to the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”).
[2] The Appellant, AK, is the mother of three children affected by the orders. The appeal relates only to the orders made with respect to the two youngest children, referred to in this judgment as “B” and C” to protect their identities. B is 4 years old, and C is 3 years old. The children’s fathers were parties in the proceeding below, but they did not participate in the summary judgment motion hearing.
[3] The fathers were served with the appeal materials but did not file responding materials. B’s father, B.L., attended the appeal hearing as an observer and to support AK. AK’s appeal materials were filed with the benefit of counsel, but she subsequently terminated her lawyer’s retainer and was unrepresented at the hearing.
[4] Both children are in the care of the Respondent, Family and Children’s Services of Guelph and Wellington County (“F&CS”). B has been in Society care from the age of 5 months. F&CS intervened in B’s care shortly after birth due to risks associated with AK’s substance abuse, including drug and alcohol consumption during her pregnancy, and her resistance to treatment. The parties executed a Voluntary Services Agreement, and B was placed in her mother’s care with the maternal grandparents agreeing to provide continuous supervision. AK and her partner were to live with the maternal grandparents. B was being treated with morphine for withdrawal symptoms and needed to be monitored closely.
[5] Within weeks of B’s discharge from hospital, F&CS learned that AK and her partner moved with B away from the maternal grandparents’ home. As a result, F&CS brought an Application seeking a supervision order so that B would be placed in the maternal grandmother’s care, with clear restrictions on AK’s and her partner’s ability to have contact with B without monitoring. A temporary supervision order was granted on February 13, 2020.
[6] There were subsequent conflicts between AK, her partner, and the maternal grandmother because AK and her partner did not want to abide by the court-ordered rules. About one week after the order was issued, the maternal grandmother reported to F&CS that AK had come to her home, had been drinking, was angry and abusive, and slapped her across the face. As a result of this report, AK’s access was moved from the grandparent’s home to an F&CS access facility. Visits were arranged for AK to see B at the facility, but AK did not attend.
[7] In April 2020, AK removed B from the grandparents’ home. F&CS arranged for police assistance in locating and removing B from AK. On April 21, 2020, B was ordered into the temporary care of F&CS on a without prejudice basis. She was immediately placed in a foster home.
[8] B’s younger sibling, C was removed from hospital and taken to a place of safety shortly after her birth in November 2020. She was ordered into the temporary care of F&CS on November 19, 2020 on a without prejudice basis and was placed in the same foster home as B. She has been in F&CS care her entire life.
[9] F&CS brought Applications for orders to place the children in extended Society care with no access by AK. On March 25, 2022, a summary judgment motion hearing was scheduled for June 27, 2022, but the date was vacated on consent. On August 30, 2022, the summary judgment motions were rescheduled to be heard on November 9, 2022. A case management conference was held on September 8, 2022, at which deadlines were set for the filing of materials. F&CS filed its materials on September 30, 2022, in accordance with the court-imposed deadline. AK did not file any materials.
[10] AK was represented by counsel, David Miller, at the case management meeting and at the summary judgment motion hearing on November 9, 2022. At the commencement of the motion hearing, Mr. Miller requested an adjournment and an extension of time to November 14, 2022 to file AK’s materials. He advised that AK opposed the extended care order being sought by the Society, and that she would be taking the position that the court should make a temporary order for the children to be in her care under the Society’s supervision, or in the joint care of her and the maternal grandmother, under Society supervision. Mr. Miller asked to have the hearing rescheduled to the earliest available date after November 14, 2022, peremptory on AK. This request was made orally. No motion was filed requesting such relief in advance.
[11] No evidence was adduced to support the adjournment request. However, Mr. Miller explained that he had been unable to contact AK after he was served with the Society’s motion materials. He advised the court that AK told him she was homeless during the early and mid part of October 2022, and that she had no internet access, and that her cell phone was not charged. He said he was unable to reach her until after the deadline for filing her materials had passed. He further explained that after the expiry of the deadline, on October 28, 2022, his brother died and he was occupied with family matters, so he was unable to prepare materials prior to the hearing on November 9, 2022. None of this information was contained in any affidavit material, but the motion judge accepted Mr. Miller’s representations as an officer of the court.
[12] In support of AK’s adjournment request, Mr. Miller indicated that he could prepare affidavits to be sworn by both AK and the maternal grandmother and deliver them by November 14, 2022. He noted that there were “high stakes” in the motion because the Society was seeking to sever the children’s relationship with their mother. He cited the decision in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, noting that the Court of Appeal for Ontario in that case articulated the following principles: (i) courts should proceed with caution in summary judgment motions in child protection cases; (ii) courts should screen the materials carefully to eliminate any inadmissible evidence; and (iii) courts must be mindful of the vulnerable circumstances of child protection litigants who, like AK, often experience poverty and other forms of marginalization, such as homelessness. Mr. Miller also submitted that F&CS’s motion record was replete with inadmissible hearsay evidence. He stated that, if an adjournment were granted, he would identify the specific paragraphs in the affidavits to which his client objected.
[13] The motion judge noted that, according to the Trial Coordinator in Guelph, if an adjournment were granted, the earliest that the Court would be able to reschedule the hearing would in the spring of 2023. Mr. Miller submitted that a child protection case should take priority over other cases and emphasized that he was not requesting a long adjournment.
[14] F&CS opposed the adjournment request, relying on the fact that the summary judgment motion had already been adjourned once (on consent), that there had been considerable delay in the proceeding, that AK had notice of the motion since March 25, 2022, and that she was aware of her filing deadline effective the date of the case management meeting on September 8, 2022. Counsel for F&CS submitted that the law requires child protection proceedings to be completed within 120 days and that children under the age of 6 years old not to be in temporary care for more than 360 days. He relied on the decision in C.M. v. Children’s Aid Society of Waterloo Region, 2015 ONCA 612, in which the Court of Appeal for Ontario stated, “it is imperative that judges, court administrators, counsel (particularly counsel for the Children’s Aid Society) and assessors take responsibility for ensuring adherence to statutorily required timelines.” He argued that an adjournment to the spring of 2023 would be extremely prejudicial to the children, who had already been in Society care for more than the statutory time limits allow.
[15] Justice O’Dea denied the adjournment request. He gave brief oral reasons before proceeding with the motion hearing, which was conducted without any evidence from the mother. He invited Mr. Miller to make submissions on behalf of AK based on the F&CS motion record, including submissions with respect to any evidence filed for a hearsay purpose, but Mr. Miller declined to do so. Justice O’Dea ultimately granted summary judgment to the Respondent and ordered that the children be placed in the extended care of F&CS. The motion judge also barred all access with their mother.
Grounds for Appeal and Standard of Review
[16] In this appeal, AK seeks an order overturning the summary judgment decision and remitting the matter to the Ontario Court of Justice for a trial on an expedited basis. The grounds for the appeal relate primarily to the motion judge’s denial of the adjournment request and to the motion judge’s evidentiary rulings. The Respondent F&CS argues that the motion judge’s decision should be upheld.
[17] Most of the grounds of appeal in the Notice of Appeal assert that the motion judge made errors of law. One ground of appeal asserts that Justice O’Dea misapprehended evidence about why the initial motion hearing date was vacated. That constitutes a question of fact. However, that ground of appeal was not pursued in the Appellant’s factum or in the Appellant’s oral submissions at the appeal hearing. The Appellant conceded in her factum that the questions before me are all questions of law. The standard of review is therefore correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
Analysis
[18] The thrust of this appeal is that the hearing was unfair because the mother was unable to adduce any evidence and because the judge relied on inadmissible evidence that was prejudicial to her. The Notice of Appeal raises only one issue about the correctness of the motion judge’s findings based on the record before him. For the most part, it simply challenges the fairness of the hearing, and the propriety and completeness of the evidentiary record upon which the motion judge’s findings were made.
[19] I will deal with each of the grounds of appeal under three headings below, namely: (i) the denial of AK’s adjournment request, (ii) the motion judge’s evidentiary rulings, and (iii) the alleged error of law in the reasoning adopted by the motion judge to arrive at his decision to grant summary judgment to F&CS.
(i) Denial of the Adjournment Request
[20] In his Endorsement dated November 25, 2022, Justice O’Dea considered Mr. Miller’s submissions about the need for a cautious approach to summary judgment motions in child protection cases, the unfairness of adjudicating the motion without any evidence from the mother, and the principle that the court must be mindful of A.K.’s disadvantaged and vulnerable status in assessing whether her conduct should disentitle her from adducing evidence. Justice O’Dea then made the following comments:
I agree with counsel’s submissions to a point if the question is strictly between the Applicant and the mother. However, children are involved and the timelines identified at s.122(1) of the [CYFSA] are mandatory and must reflect the child-centered approach promoted in that legislation: Children’s Aid Society of Hamilton v. A.D.L., [2009] O.J. no. 4390.
On a summary judgment motion, the court must consider the strict timelines in s.122(1) in context of both procedural issues and the court’s best interest evaluation: D.(S.) v. Children’s Aid Society of London and Middlesex, 2019 ONSC 2184.
A request for an adjournment on the hearing date by a parent of a child who has been in care for longer than permitted under s.70 (sic)[^1] of the [CYFSA] can be refused where the parent has not shown that the evidence she intends to tender is of an exceptional nature in the context of the issues to be decided: Catholic Children’s Aid Society of Toronto v. N.(J.), 2012 ONCJ 50 (emphasis in original).
[21] Justice O’Dea then found that the mother’s proposed evidence did not meet the test of exceptionality. He noted that the mother’s request for a brief adjournment to shortly after November 14, 2022 appeared “inconsequential on its own,” but that institutional constraints on the court’s ability to reschedule the motion meant that it would not be heard before the spring of 2023 if the adjournment were granted. He explained:
I am unable to accommodate the hearing after November 14th due to my existing schedule and the fact that I reach mandatory retirement age at the end of this year. Administration advises the earliest dates would be in the spring of 2023.
[22] The motion judge then denied the requested adjournment on the basis that it would be too prejudicial to the children.
[23] AK submits that the motion judge made several errors of law in arriving at his decision to deny the adjournment. First, in her factum, she argues that Justice O’Dea erred by applying s. 122(1)(a) of the CYFSA. Subsection 122(1)(a) stipulates that a court shall not make an order for interim Society care if it would result in a child under the age of 6 years being in Society care for more than 12 months. AK argues that the section did not apply in this case because neither she nor the F&CS were seeking an order for interim society care; F&CS was seeking an order for extended care, and she was seeking an order for the children to be in her care (alone or jointly with her mother) while under Society supervision.
[24] I reject this submission for the following reason. Granting an adjournment, regardless of length, would have effectively required the judge to make a temporary order for the children to remain in Society care until the next hearing date. Such an order is explicitly prohibited by s.122(1). The only exception is under s.122(5), which states that the court may extend the 12-month period by up to six months if it is in a child’s best interests to do so. The maximum statutory period allowed for interim Society care is therefore 18 months (for children under the age of 6 years). Both B and C had already been in temporary Society care for more than 18 months at the time of the adjournment request.
[25] In the circumstances, it was not an error for the motion judge to take the statutory time limits into account in adjudicating the adjournment request. As Justice Czutrin ruled in Children’s Aid Society of Toronto v. D.S., 2009 CanLII 60090 (ONSC), at para. 72, “when the statutory time limit has significantly passed, as it has here, it would be an exceptional case where the timelines are not a significant and appropriate consideration.”
[26] AK submits, in her factum, that Justice O’Dea erred by misapplying the test of exceptionality. The motion judge stated that the test on an adjournment request where the statutory time limits have passed is whether AK could show that the evidence she intended to adduce (if the adjournment were granted) was of an exceptional nature. He cited the decision of Justice Murray in Catholic CAS of Toronto v. N.(J.), 2012 ONCJ 50 as his authority. AK argues that the N.(J.) case is distinguishable and that, in any event, Justice O’Dea misinterpreted the decision in N.(J.).
[27] I agree with the Appellant’s submissions on this ground of appeal. First, the N.(J.) case involved markedly different facts. In that case, the parents requested an adjournment of a child protection trial on the basis that a court-ordered parenting capacity assessment was not yet available. Justice Murray refused the adjournment request and ordered the trial to proceed in part because she found (para. 11) that the capacity assessment was not crucial to their case. She also held (para. 15) that the parents were “in a position to present evidence that speaks to their competence as parents” and that the assessor’s opinion was therefore “not necessary for a fair trial.” In this case, in contrast, AK was seeking an adjournment for the very purpose of adducing evidence, and the denial of her request resulted in the summary judgment motion being adjudicated based on evidence from only F&CS.
[28] Second, I agree with the Appellant that Justice O’Dea misinterpreted and misapplied the N.(J.) decision. N.(J.) does not establish a “test” requiring parents who seek an adjournment of a child protection proceeding after the expiry of the statutory time limit for interim Society care to show that the evidence they intend to adduce will be exceptional. Rather, it stands for the principle that such an adjournment will only be granted in exceptional cases (para. 15).
[29] Justice O’Dea misconstrued the applicable test. However, I am confident that the outcome of AK’s adjournment request would have been the same had the correct test been applied, based on Justice O’Dea’s findings.
[30] When the motion judge made his ruling to deny the adjournment, he gave brief oral reasons with more detailed written reasons to follow. He noted that the mother had known for a very long time that a summary judgment motion was pending, and that F&CS was seeking to sever her relationship with the children. He noted that she had not filed any materials to respond to F&CS allegations at any of the prior interim steps in the proceeding. He further noted that she was present at the case management conference when the deadline for filing her summary judgment motion materials was set. He found that she chose to go “off the grid” during the very period that her motion materials needed to be prepared. He further found that her homelessness during that period was “nothing unique” – it was not the result of a sudden or unanticipated change in her personal circumstances. He found, based on the evidence in the motion record, that she has been periodically homeless for quite some time. He held that, “as a party, she has an obligation, irrespective of her circumstances, to maintain contact, or at least allow contact to be maintained, in order that her participation can be assured.” Finally, he noted that the denial of the adjournment request would not prevent her lawyer from making submissions to the court on the basis of the materials filed by F&CS.
[31] Based on these findings, it is clear that this was not an exceptional case in which an adjournment should be granted despite the fact that the children had already been in Society interim care for longer than the statutory time limit. The errors made with respect to the application of the N.(J.) decision therefore do not warrant appellate intervention by this court.
[32] AK submits that Justice O’Dea erred by failing to recognize the fundamental importance of meaningful parental participation in child protection proceedings; by failing to be mindful of the vulnerability of child protection litigants, who often belong to disadvantaged groups, including single mothers, and who frequently experience poverty and other forms of marginalization; and by failing to take the cautious approach required to summary judgment motions in child protection proceedings. I disagree.
[33] In his Endorsement, the motion judge acknowledged that AK fell into the disadvantaged and vulnerable category of litigants highlighted by the Court of Appeal in the Kawartha-Haliburton case. He considered the importance of parental participation but balanced that factor against the best interests of the children involved. He also noted that the mother was given an opportunity to participate, but she failed to do so. He took a cautious approach to the adjournment request and to the ultimate adjudication of the summary judgment motion based on the evidence before him.
[34] Finally, with respect to Justice O’Dea’s conclusion that an adjournment of the proceeding would result in delay until the spring of 2023, the Appellant submits that the motion judge erred by discussing the scheduling issue with the court’s administration “without the involvement, knowledge, acquiescence, submissions, or assistance of counsel.” AK argues that this unilateral consultation with the court’s administration failed to take into consideration the fact that her case could have been given priority over other scheduled matters. She further argues that the motion judge could have ordered that the trial-coordinator fix an expedited date for a 1-day summary judgment hearing.
[35] Justice O’Dea is an experienced family court judge. I presume he was aware of the caselaw that supports prioritizing child protection proceedings over other less urgent matters on the court docket. Notwithstanding that possibility, the judge’s impending mandatory retirement date and the scarcity of court and judicial resources relative to the volume of cases before the court were such that an earlier date than spring 2023 could not be accommodated. It was not an error of law for the motion judge to contact the court’s administration to obtain information and make that determination. There is no legal principle or rule that requires the judge to consult with counsel before obtaining scheduling information from the Trial Coordinator’s office.
(ii) Evidentiary Rulings
[36] In her Notice of Appeal, AK asserts that the motion judge erred by “relying on inadmissible hearsay evidence with respect to the issue of the appellant’s history of substance abuse, with respect to the child’s statements, with respect to medical evidence regarding the children, and with respect to the maternal grandmother’s statements.” No further particulars are provided in the Notice of Appeal or in her factum regarding the alleged inadmissible hearsay evidence. This ground of appeal is not even mentioned in the factum, nor was it mentioned during oral submissions at the appeal hearing. It was effectively abandoned by AK.
[37] I have nevertheless considered the issue because it was raised in the Notice of Appeal, which was prepared by AK’s former lawyer. AK was self-represented at the hearing. As a self-represented litigant, she would not be expected to know the meaning of hearsay or other rules of evidence. It would be difficult for her to articulate any erroneous evidentiary rulings. I have therefore relied on the pleadings prepared by her former counsel.
[38] Justice O’Dea recognized the hearsay quality of some of the evidence in the motion record. At the motion hearing, he chastised F&CS for submitting affidavits that were prepared at the commencement of the proceeding. He noted that interim motions are dealt with completely differently than summary judgment motions and that hearsay evidence is not permitted on a summary judgment motion. He stated that he would not be entertaining any inadmissible hearsay evidence contained in the affidavits. Moreover, he gave AK’s lawyer the opportunity to make submissions, including with respect to any hearsay objections, but that offer was declined.
[39] In his written Endorsement, Justice O’Dea made the following comments:
All of the affidavits were prepared as if they would support an interim motion. Hearsay was extensive even if the source was identified and the affiant believed the information was true. It is clear there was no oversight by counsel in their preparation to assure the information provided was admissible at a trial.
The hearsay was easily identifiable and, but for a few exceptions, it has been rejected and ignored. However, the hearsay did not form the entire basis for the orders sought with the result that I will not dismiss the motions strictly on an evidentiary basis …
The exceptions referred to are information received directly by an affiant from [AK’s eldest child and the maternal grandmother].
[40] With respect to out-of-court statements made by AK’s son to F&CS workers, Justice O’Dea noted that much of what the child said was eventually confirmed by the mother or by other admissible evidence. There was therefore no prejudice to AK caused by the admission of these statements for a hearsay purpose. Moreover, given the young age of the child, the context in which the statements were made, and the fact that they were corroborated by independent sources, these statements would have been admissible in any event because they satisfied the twin criteria of necessity and reliability under the principled approach to hearsay.
[41] With respect to out-of-court statements made by the children’s maternal grandmother, the motion judge noted that the grandmother had been acting in the role of a parent toward B and C under either a formal agreement or interim court orders. She was also being proposed by AK as a joint caregiver for the children. She therefore has a vested interest in the outcome of the proceeding, even though she is not a party. In the circumstances, Justice O’Dea admitted evidence of the grandmother’s out-of-court statements for the truth of their content, provided that the statements were made directly to the affiant offering them, and subject to his assessment of “the affiant’s ability to recall and relate not the gist but full particulars of each statement.” Although he did not say so explicitly, I understand that the motion judge admitted this evidence under the “admissions against interest” exception to the hearsay exclusionary rule.
[42] Justice O’Dea also admitted evidence of out-of-court statements made by AK regarding her historic and current substance abuse. Those statements are clearly admissible for the truth of their content as admissions against interest by the mother.
[43] I have found no errors of law relating to the motion judge’s reliance on inadmissible hearsay evidence. I therefore reject this ground of appeal.
[44] AK also alleges an error of law in the motion judge’s reliance on evidence of drug testing without evidence supporting its admissibility, such as the reliability of the testing. This issue was not raised at the summary judgment motion, despite the Appellant being given an opportunity to make submissions. It is not appropriate to object to the admissibility of this evidence for the first time on appeal.
[45] In any event, although the issue of the admissibility of drug test results was raised in the Notice of Appeal, no submissions were made by AK to support this ground of appeal in either her factum or her oral submissions at the appeal hearing. This ground of appeal was effectively abandoned and is therefore dismissed.
[46] Finally, the Notice of Appeal alleges that the motion judge erred by using evidence of missed drug screens as evidence of drug use. At p.12 of his Endorsement, Justice O’Dea stated:
In the June 16, 2022 order, the mother was required to undergo drug urine screens. The evidence shows a number were arranged by the Applicant and the mother did not attend. This supports an inference that she was still consuming intoxicating substances in August and September of this year.
[47] This is not an error of law. The motion judge was entitled to draw reasonable inferences from the evidence presented.
(iii) Alleged Misapplication of s.122(1)
[48] The final ground of appeal relates to the motion judge’s reliance on s.122(1) of the CYFSA in the context of adjudicating the summary judgment motion (as opposed to adjudicating the request for an adjournment). As mentioned above, s.122(1) is the statutory provision that establishes a maximum time for which the court may order a child to be in interim Society care.
[49] To decide the bests interests of the children, Justice O’Dea applied the factors set out in s.74(3) of the CYFSA. He appropriately considered “(ix) the effects on the child of delay in the disposition of the case.” On p.18 of his Endorsement, he found that this criterion weighed heavily in favour of finality due to the time limits set out in s.122(1). He held:
Child welfare legislation long ago recognized the harm to children who languished in the care of societies while the adults hashed out their rights in court. Timelines were legislated that recognized a child’s right to permanency and a timely decision.
In this case, the time both children have been in the care of the Applicant has exceeded the statutory timelines by 12 months at a minimum. In my mind, there is no discretion to extend once the number of consecutive months in care reaches 18.
In the result, I have no jurisdiction to ignore s.122(1) and this absolutely militates against a family plan.
[50] Later on the same page of his Endorsement, he wrote: “None of the subsection 74(3) criteria supports a family plan. Section 122(1) will not even allow me to consider reunification. The sole option is an extended care order.” AK submits that the latter two sentences constitute errors of law.
[51] AK argues that s.122(1) only proscribes an order for interim Society care if the order will result in a child (under age 6) being in Society care for more than 12 months, and it therefore did not apply to her request for a temporary order that the children be returned to her care (or to her and her mother’s joint care) under Society supervision. She argues that the trial judge consequently erred by applying s.122(1) in the context of this summary judgment motion, by finding that s.122(1) prevents any consideration of reunification, and by concluding that the only option before the court was extended Society care.
[52] I do not read the motion judge’s comment that s.122(1) prevents consideration of reunification as an exercise in statutory interpretation. He was not stating that the words of s.122(1) explicitly or implicitly prohibit consideration of reunification. Rather, he was conveying that any attempt at family reunification would necessitate an order for further interim Society care, which is prohibited by s.122(1) because the children had already been in interim Society care for longer than the statutory time limits.
[53] Although a temporary family placement under F&CS supervision could have been ordered to allow reunification efforts to be undertaken without making a further order for interim Society care, the evidence in the motion record did not support family placement. The motion judge’s comments must be read in the context of AK’s failure to prepare and file any responding motion materials. When read in that light, the judge’s impugned comments do not constitute an error of law. Once Justice O’Dea determined that an adjournment should not be granted, and further determined that the evidence in the motion record was satisfactory to arrive at a fair and just determination of the issues on a summary judgment basis, he conducted his analysis based on the available evidence, which did not present family reunification or a family plan of care as viable options.
[54] The motion judge’s reasons on p.18 of his Endorsement must also be read in the context of his entire Endorsement, in which he considers all the relevant factors in s.74(3) of the CYFSA and concludes, on that basis (not on the basis of s.122(1) alone) that orders for extended care are “the only reasonable way forward” for B and C. His finding that an extended care order was “the sole option” is clearly based on a careful consideration of the children’s best interests, not on a narrow and erroneous understanding of the scope of his jurisdiction.
(iv) New Ground of Appeal
[55] At the appeal hearing, AK blamed her former lawyer for her failure to prepare and submit motion materials within the deadline set at the case management conference. She acknowledged that she was homeless during October 2022, but stated that she has been homeless off and on for four years and that she always has a cell phone in her possession at which she can be reached. This information is inconsistent with the information conveyed to Justice O’Dea by Mr. Miller at the summary judgment motion hearing, namely that AK told him one of the reasons he could not contact her is because her cell phone battery was not charged.
[56] There was no fresh evidence application in this case. There is no evidence before me regarding the reasons why AK failed to file her summary judgment motion materials on time. I have based my decision on the factual findings made by the motion judge. The motion judge had no evidence before him, but he had no reason to doubt the accuracy or truthfulness of the representations made by Mr. Miller as an officer of the court. I note that those representations were made in the presence of AK, who did not correct or contradict her lawyer at the time.
[57] This issue (of inadequate legal representation) was raised for the first time at the appeal hearing, with no notice to F&CS. There is no evidence to support AK’s submissions on this point. In the circumstances, I reject this ground of appeal.
Conclusion
[58] For the above reasons, I find that the motion judge committed no errors of law that impacted the outcome of the summary judgment motion.
[59] The appeal is therefore dismissed.
Justice Cynthia Petersen
Released: January 15, 2024
GUELPH COURT FILE NO.: FS-23-00000038-00AP and FS-23-00000040-00AP
DATE: 20240115
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A. K.
- and -
Family & children’s services of guelph and wellington county
This case involved an appeal of child protection orders under the Child, Youth and Family Services Act, 2017. Subsection 121(8) of the CYFSA prohibits the publication of any identifying information about the children involved in this case, their parents, foster parents, or members of their family.
REASONS FOR DECISION
Petersen J.
Released: January 15, 2024
[^1]: I assume this is an error. I note that time limits in s.122(1) were previously set out in s.70 of the CYFSA.