Children’s Aid Society of Toronto v. B.B., 2015 ONCJ 406

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. ONTARIO COURT OF JUSTICE DATE: July 21, 2015 COURT FILE No.: C55705/11 CITATION: Children’s Aid Society of Toronto v. B.B. , 2015 ONCJ 406 BETWEEN: Children's Aid Society of Toronto Applicant, — and — B.B. (mother) R.T. (father) Respondents

Before Justice Roselyn Zisman Heard on June 30, 2015 Reasons for Judgment released on July 21, 2015 Simon Fisch………………………………………….. counsel for the applicant Society Matthew Price………………………………………counsel for the respondent mother Cynthia Pon………………………………………….counsel for the respondent father Jane Long ………………counsel for the Office of the Children’s Lawyer legal representative for the child Zisman J. 1. Introduction [ 1 ] This is a

summary judgment motion, pursuant to subrule 16 of the Family Law Rules (“ FLR ”) for an order placing the child D.T. born […], 2011 (“D.” or “the child”) in the care of the Respondent R.T. (“the father”) subject to the supervision of the Children's Aid Society of Toronto (“Society”) for six months. [ 2 ] The father and the child’s counsel support this order.

The Respondent B.B. (“the mother”) opposes the order and submits that there is a genuine issue that requires a trial. [ 3 ] The Society relies on the pleadings, filed with the most current being the Further Further Amended Protection Application issued January 29, 2015 and the Further Amended Plan of Care dated October 24, 2014; the Reasons for Decision of Justice Sherr dated October 15, 2012 with respect to the finding of need of protection; and the affidavits of Claudia Lynch, the present family service worker sworn January 28, 2015, Sherry Gibbon, a case aide sworn July 22, 2013, and Margaret Murray the previous family service worker sworn January 28, 2015. [ 4 ] The father relies on his affidavit sworn May 29, 2015 and the mother relies on her affidavit sworn April 29, 2015. [ 5 ] All counsel filed facta with reference to the relevant case law. [ 6 ] At the end of counsel’s submissions, despite the fact the mother was represented she asked to make a statement to the court.

Although she was permitted to do so, I put no weight on information she provided if that information was not in her sworn affidavit. 2. Background [ 7 ] D. was apprehended from birth and placed in the care and custody of the Society on a without prejudice basis due to concerns about both parents. [ 8 ] On October 9, 2012, a

summary judgment motion was heard regarding a finding of need for protection. The finding was on consent of the father and opposed by the mother. Justice Sherr made a finding that D. was in need of protection pursuant to section 37 (2) (

b) of the Child and Family Services Act (“CFSA”). Justice Sherr found that: The evidence supports a finding that there is no triable issue that the child is in need of protection based on any of the discrete issues of the mother’s mental health, substance abuse and domestic violence. Taken together, the evidence is overwhelming that this child should be found to be in need of protection pursuant to clause 37 (2) (

b) of the Act. The mother has no realistic chance of success if the issue of finding goes to trial. [ 9 ] The father put forward a plan to care for the child. The Society worked with the father to address concerns related to his prior history with the Society and issues of domestic violence. [ 10 ] Prior to the placement of the child with the father he participated in the Beyond the Basics parenting program that focused on parenting skills of young children, the Ontario Early Years Program, and the Dad’s Connection program which focused on domestic violence and its impact on children.

The Society thoroughly investigated the father’s plan before placing the child with him, including speaking to his 17 year old son who has been in the father’s primary care since he was four months old, and the father’s former partner. [ 11 ] On May 16, 2013 the child was placed in the care of the father subject to Society supervision after a contested motion. [ 12 ] As there has been a finding of need for protection, this

summary judgment motion is only about what disposition order will be made. 3. Applicable Legal Principles regarding a

summary judgment motion

[ 13 ] Subrule 16 of the FLR allows a party to seek

summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired. [ 14 ] Subrule 16 (2) specifically confirms that

summary judgment is available in child protection proceedings. [ 15 ] Subrule 16 (4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial. [ 16 ] Subrule 16 (4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence. [ 17 ] Subrule 16 (6) is mandatory.

That is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly. [ 18 ] On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the Society to show there is no genuine issue for trial. [1] [ 19 ] In assessing whether or not a Society has met its obligation of showing there is no genuine issue for trial, courts have equated that phrase with “no chance of success,” “when the outcome is a foregone conclusion,” “plain and obvious that the action cannot succeed,” and “where there is no realistic possibility of an outcome than that sought by the applicant.” [2] [ 20 ] A

summary judgment motion is a tool that can contain and control a child's drift in litigation. A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. [3] [ 21 ]

Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. Justice Hardman, in the case of Children’s Aid Society of the Regional Municipality of Waterloo v. T.S . [4] , observed at paragraph 5 of that decision that because

summary judgment is now explicitly contemplated by subrule 16, this may: …broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of

summary judgment. [ 22 ] The responding party, faced with a prima facie case for

summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is no genuine issue for trial are insufficient to defeat a claim for

summary judgment. [5] [ 23 ] As of May 2, 2015, subrule 16 of the FLR was amended to broaden the powers of the court on a

summary judgment motion. Those amendments to subrule 16 provide as follows: 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: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. [ 24 ] The Supreme Court of Canada, in the case of Hryniak v. Maulin [6] , has clarified the process of applying the expanded

summary judgment rule in Rules of Civil Procedure (“ RCP ”) 20.04 (2.1) and (2.2). In view of the recent amendments to the FLR, the analysis is also applicable to FLR. The court held that the judge should first determine if there is a genuine issue requiring a trial based on the evidence before her, without using the new fact-finding powers. There will be no genuine issue for 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.

If there appears to be genuine issue for trial, she should then determine if the need for a trial can be avoided by using the new powers under the RCP 20.04 (2.1) and (2.2) or now pursuant to FLR 16 (6.1) and (6.2). [ 25 ] Accordingly, the first step is to determine if there is a genuine issue for trial based on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility. [ 26 ] In determining if there is a genuine issue requiring a trial, the court must consider if there is sufficient evidence led by the parent to support a trial.

The question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. [7] [ 27 ] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration.

The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits. [8] [ 28 ] Although the court can rely on hearsay, subrule16 (5) provides a stricter rule with respect to hearsay than subrule 14 (19) that relates to motions, namely that if a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court

may draw conclusions unfavourable to the party.

This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and attach whatever weight to it, if any, that the court deems appropriate. [ 29 ] In interpreting subrule 16, the court must also consider the strict timelines that govern child protection proceedings and subsection 1(1) of the CFSA providing that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. [ 30 ] It is also necessary to consider subrule 2 of the FLR to ensure that a case is dealt with justly by ensuring the procedure is fair to all parties, saves time and expense, and that the case is dealt with in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking into consideration the need to give resources to other cases. [9] This appears to also be in keeping with the process set out by the Supreme Court of Canada in Hryniak v.

Mauldin . [ 31 ] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that the child faces some better prospect than what existed at the time of the Society’s removal of the child from the parent and that the parent has developed some new ability as a parent. [10] 4. Procedural issue 4.1 Which version of subrule 16 Family Law Rules applies to this

summary judgment motion? [ 32 ] The

summary judgment motion was originally returnable on April 8, 2015. The Society served the parties with its

summary judgment motion record and factum on January 30, 2015. On April 7, the court received a Form 14B on behalf of the mother requesting an adjournment, as the mother, who currently resides in Montreal, had been hospitalized in February and counsel was unable to complete her responding materials. On consent of all parties, the

summary judgment motion was adjourned with new timelines for serving and filing responding materials. [ 33 ] Subrule 16 (motions for

summary judgment) of the Family Law Rules was amended effective May 2, 2015. There was no transition provision in the regulation that implemented the amendment. [ 34 ] Despite this

summary judgment motion being scheduled prior to the amendment, I agree as submitted that as the motion did not proceed on April 8 that this motion is now governed by the new amended subrule 16 of the Family Law Rules. 5. Evidence regarding father’s care of the child [ 35 ] Since the child was placed in the care of the father he has co-operated with the Society and followed all of their recommendations, and accepted referrals to various services such as public health nurse, family home visitor, speech and language therapy and daycare.

The father attended educational sessions to learn strategies to encourage the child’s speech development. [ 36 ] The child has attended daycare regularly and the father has ensured the child’s medical needs have been met. [ 37 ] During home visits, the family service worker observed the home to be clean, organized and safe. The child was observed to be happy, playful and engaged with the father and had a close relationship with the father’s older son. [ 38 ] Due to a risk from the mother and at the direction of the Society, the father and child lived in a shelter from July 2013 to February 2014.

The father worked with shelter staff positively and no concerns were reported. [ 39 ] In January 2014, the child was admitted to the hospital for approximately six weeks due to a bone infection. It was also discovered the child was born without a spleen, and as a result he is highly susceptible to infections. The child was prescribed long term antibiotics that he will likely need on a lifelong basis. The father remained in the hospital the entire time the child was there and has appropriately followed up with the child’s medical specialists and the child’s pediatrician.

The child has remained well since his discharge from the hospital. [ 40 ] The family service worker deposes that there are no child protection concerns about the father’s care of the child and the only concerns relate to the mother and the risk she poses to the child’s placement with the father. 6.

Evidence with respect to the mother’s access and her allegations 6.1 General observations of access visits [ 41 ] From the time of apprehension until the order of August 1, 2013 that suspended her access, the mother attended weekly supervised access at the Society’s office. [ 42 ] The Society arranged for the mother to attend the Society’s Therapeutic Access Program (“TAP”) from February to June 8, 2012. This program provided her with intensive teaching regarding parenting skills and extensive access.

As the mother was unable to make the recommended changes to her parenting and continued to put her needs ahead of the child’s needs, the program was discontinued and the mother resumed supervised visits at the Society office. [ 43 ] The mother moved to Quebec in July 2012, and despite the long distance she continued to attend weekly visits for three hours. [ 44 ] Generally, the visits went well. The mother was responsive and attentive to D. She was vigilant with respect to any safety concerns during the visits and was affectionate and loving.

However, there were ongoing concerns about the mother undermining the father in D.’s presence, which intensified after he was placed in the father’s care. For example, in D.’s presence she made disparaging

comments about the father, she became very upset and agitated because the father cut his hair, and she complained the father sent D. in dirty clothes. [ 45 ] The mother does not dispute the Society’s observations or assessment of her access visits. 6.2 Access and events of July 2, 2013 [ 46 ] On July 2, 2013, the mother brought two shopping bags of supplies for D. to be delivered to the father. As the driver could not transport the bags, the family service worker told the mother she would take the bags to the father. [ 47 ] The family service worker and the mother had a meeting after the visit.

According to the family service worker, the mother told the worker that the Society had made a big mistake placing D. with the father and she was waiting for something to happen and she would rip the child from the father’s hands. The mother denies she made the last statement. [ 48 ] Later that day, the family service worker attended at the father’s home to deliver the bags and as she entered the home she smelled marijuana. D. was present. The father explained that a man named “Major,” whom he had previously met through the mother had earlier attended and told him that he heard he had the baby and came to visit.

They had smoked a “joint” on the balcony while D. was at the visit with his mother. According to the worker, the father did not appear to be under the influence of marijuana and accepted responsibility for his lack of judgment in permitting Major into his home. The father later advised the worker that he learnt the mother had sent Major to his home to smoke with him. [ 49 ] According to the father, when Major left he told the father that he would return later. Major returned later that evening and told him that there was crack cocaine in one of the bags the mother had sent.

The father had not yet looked inside the bags, but when he did, he found the crack cocaine wrapped in plastic in the box of Goldfish crackers. Major told the father that he had been sent by the mother to set up the father for possession of the drugs so that the child would be removed from his care. Major told the father he was supposed to call the police to report the father but that he realized the father did not deserve to have his son taken away from him.

The father gave Major $40 to tell him the rest of the story and gave him the crack cocaine. [ 50 ] On the next day, when the family service worker attended for a scheduled visit, the father told her this about this incident. The father told the worker he did not call the police because he had already been to jail twice for false charges and was not willing to take a chance. [ 51 ] The father also reported that the mother had been telling people in the apartment building that he was the biggest crack smoker, an informer, and a rat.

The father deposed that he does not have a drug history and passed every test the Society asked him to take. [ 52 ] As a result of this serious information, and the Society’s belief that the mother had put the drugs into the child’s bag in an attempt to sabotage and breakdown the placement with the father, the Society urged the father to seek a safer place to live and he eventually agreed to move to a shelter with D. and his other son. [ 53 ] The Society also brought a motion to suspend the mother’s access. The mother denied that she put crack cocaine into the child’s cracker box.

The motion was granted and the mother has not seen the child since August 1, 2013. [ 54 ] The mother was provided a letter outlining the Society’s expectations before her access could resume that included:

a) signing consents for the Society to speak to the police in Quebec to determine if she has come into conflict with the police in her area;

b) that the mother work with the child protection agency in Quebec;

c) that she engage with a psychiatrist and provide the psychiatrist with her entire history;

d) follow any recommendations for treatment; complete an age appropriate parenting program;

e) submit to hair follicle tests, [11] and

f) provide proof from her psychiatrist that she is working on her feelings around the child being in the care of the father and that she is in a better place to support the placement. 6.3 Further allegations by the mother regarding the father [ 55 ] In October 2013, the mother called the family service worker and advised her that a woman who is “the pillar of Society” contacted the mother and informed her that drug dealers were looking for the father in order to kill him.

She later called again and left a voice mail message that the father had convinced the Society about his lie regarding the crack cocaine incident and that this will lead to the father’s “downfall” and urged the Society to get D. out of the father’s care. [ 56 ] The family service worker attempted to impress on the mother that she should report any information she has to the police.

Despite the fact the mother was convinced that the father and therefore the child was at risk, she insisted that she would only tell the police what she knew if the father recanted his story about the crack cocaine incident and took a lie detector test. [ 57 ] At a court attendance on February 24, 2014 the mother attended with R.D. and alleged that she had been in a relationship with him since before D.’s birth and that he may be his biological father. [ 58 ] On May 5, 2014, R.D’s motion to be added as a party to the proceedings was denied but paternity tests were ordered.

He was subsequently found not to be the child’s father.

7. Mother’s current circumstances [ 59 ] The mother has been working with the child protection agency in Quebec and is attending counselling with a social worker. Based on the information received by the family service worker from her service providers the mother is sincere, co-operative and motivated.

She completed a parenting program in May 2014. [ 60 ] There have been problems arranging for any psychiatric assessment as the mother is not currently presenting with a “severe episode,” which is the criteria for a psychiatric referral in Quebec. [ 61 ] In July 2014, the mother through her counsel produced a note written on a prescription sheet in the name of Dr. Clement that the mother is prescribed marijuana to help manage her pain related to sickle cell disease and seizures. [ 62 ] The family service worker contacted Dr. Clement’s office and was advised that Dr.

Clement did not prescribe the mother marijuana and he only wrote the note because the mother told him this and it was the mother’s family doctor who wrote the prescription. [ 63 ] The mother advised the family service worker she saw a psychologist, and on September 18, 2014 the Society received a letter from Hugh Young, clinical psychologist that stated: Ms. B. denies the presence of any symptoms that would indicate a mental health disorder.

In terms of services, our CLSC can offer short- term treatment to our adult psychological program in order to address the management of anger and other painful emotions stemming from Ms. B.’s past. [ 64 ] The letter also states the mother takes marijuana that was prescribed by Dr. Clement. [ 65 ] The mother in her affidavit does not dispute the conflicting information received by the Society regarding which doctor, if any, prescribed marijuana for her. 8.

Position of the parties [ 66 ] It is the position of the Society, as supported by the father and counsel for the child, that there is no genuine issue for trial as the child has been in the father’s temporary care for two years and is doing well in his care and the mother has had no contact with the child since August 1, 2013. [ 67 ] It is further submitted that the Society has ongoing concerns about the child’s safety in the mother’s care and the risk she poses to the disruption of the placement of the child in the father’s care.

The mother continues to make allegations that cause the Society significant concerns about her judgment and ability to make child focused decisions. [ 68 ] Further, the Society submits that there remain risks related to the mother having access as it does not believe that it can ensure the child’s safety at the present time if the mother has any access to the child, and therefore seeks an order that access, including no access, be in its discretion. [ 69 ] The mother submits that there is a genuine issue for trial with respect to the disposition of custody and access as the credibility of the parties regarding the crack cocaine incident of July 2, 2014 cannot be determined on affidavit materials.

It is submitted that a finding of fact about the crack cocaine incident is a material fact that would establish an extreme attempt at parental alienation by the father and would also mitigate or lessen the consideration of the length of time the father has had the child in his care.

It is submitted that there is also a genuine issue for trial regarding the mother’s access and that her access should not be left simply to the Society’s discretion. [ 70 ] It is further submitted that the court can use its expanded powers to hear oral evidence on the issue of the crack cocaine incident and the issue of the mother’s temporary access pending a trial on the issue of custody. 9. Analysis [ 71 ] The test to be applied at this dispositional hearing is what is in the best interests of the child as defined in section 37 (3) of the CFSA in the context of this

summary judgment motion. [ 72 ] The first step in an analysis of a

summary judgment motion is whether or not there is a genuine issue requiring a trial based only on the evidence before the court. There is no genuine issue requiring a trial if a fair and just determination can be made on the evidence presented and if it is a timely, affordable and proportionate procedure.

It is only if there appears to be a genuine issue that requires a trial that the court then determines if a trial can be avoided by using the expanded powers pursuant to subrule 16 (2) of the FLR. [ 73 ] I find that the Society has met its burden of proving that there is no genuine issue that requires a trial and that this decision can be met without using the expanded powers pursuant to subrule 16(2) of the FLR for the following reasons:

a) The child has been in the care of the father since May 2013, that is for over two years, and all of his physical, social, emotional and developmental needs have been met;

b) The child has never been in the care of his mother. He spent the first 17 months of his life in the care of the Society and since then has been in the care of the father. The mother has never had unsupervised access to the child and had not seen the child since August 2013; that is, for almost two years.

c) The mother’s plan to care for this child has no merit. She has not provided evidence about how placing a child that she has never parented and has not seen for close to two years is in his best interests;

d) The mother’s counsel could have cross-examined the father as to his allegations with respect to the crack cocaine incident of July 2, 2013 for this

summary judgment motion;

e) There is no evidence that the father ever attempted to interfere with the mother’s access prior to or subsequent to the July 2, 2013 incident. It was the decision of the Society to bring a motion to suspend the mother’s access after this incident;

f) Based on the affidavits evidence, there would have been no reason for the father to lie about the July 2 incident as the child had already been placed in his care and the mother’s allegations that he made all of this up to alienate the mother does not make any common sense. The father would have not known how the Society would have reacted, he had nothing to gain and as a result of advising the Society of this incident he and his children were displaced from their home;

g) An oral hearing about this incident would not clarify or change the outcome. Counsel for the mother conceded that it would only be the mother and father testifying and that the mother had no knowledge of “Major.” Even if the father’s evidence was discredited, the outcome would not change as the child would still not be placed in the mother’s care;

h) I find that the incident of July 2, 2013, is not a material fact that requires a trial;

i) This Protection Application has been before the court since December 23, 2011. A final order is required and can be achieved without any further litigation. It is relevant that the order is only for a six month order placing the child with the father and leaving open the possibility of access to the mother; and

j) I find that the issue of the mother’s access does not raise a genuine issue requiring a trial. It therefore follows that the court does not need to resort to the expanded powers pursuant to subrule 16(2) of the FLR to determine this issue. The mother was required to set out specific facts to show there was a genuine issue requiring a trial with respect to the issue of access. The mother has only focused on the July 2 incident.

She has not provided any evidence that would indicate that the court would come to any other conclusion, but that access must be left to the discretion of the Society given the complexities of the issue of access after such a longer hiatus in her not seeing this young child and in view of the mother’s attitude with respect to the child’s placement with the father. 10. Order 1. The

summary judgment motion, pursuant to subrule 16 of the Family Law Rules, is granted. The child D.T. born […], 2011, is placed in the care and custody of the Respondent R.T., subject to a supervision order for a period of six months on the terms and conditions set out in the Notice of Motion. 2. An order for access to the Respondent B.B. shall be at the discretion of the Society, including the discretion for no access. 3. On consent, the order pursuant to

section 38 of the Child and Family Services Act for the appointment of counsel for the child is set aside. 4. Counsel shall obtain a date for the Status Review Application from the trial co-coordinator. ___________________________ Justice Roselyn Zisman DATE: July 21, 2015