Parents’ missed access visits showed they were not interested enough in spending time with child

Family law - Children in need of protection - Practice and procedure in custody hearings

Children’s Aid Society apprehended parents’ child at birth and commenced protection application. Society’s motion for summary judgment was granted, with order placing child in extended care with no access. Parents appealed. Appeal allowed, with case sent back for redetermination. There were problems with tight timelines and scope of evidence considered that would not have, in themselves, required appeal to be allowed, but motion judge also applied wrong test in determining that there was no genuine issue for trial. Motion judge failed to specifically address whether he could determine if there was genuine issue for trial on paper record alone . Motion judge was required to, first, determine legal and factual issues that had to be resolved, and then to consider whether it was in interests of justice to resolve case summarily. Motion judge identified five reasons for granting summary judgment, four of which involved conflicting evidence, and failed to consider parents’ evidence on three of them including key factual issue of whether mother was dominated by father. Motion judge made no reference to mother’s denial of being dominated or possibility that hearing testimony from her could assist in fact-finding. Motion judge considered that parents’ missed access visits showed that they were not interested enough in spending time with child, but he failed to consider mother’s explanation that included grandmother’s car accidents and transportation difficulties. Motion judge did not mention that Society had discontinued apparently successful supervised access in parents’ home in favour of group setting. Motion judge relied on hearsay evidence, in arrest reports about father’s domestic assault and about parents’ behaviour in hospital after birth. While denying cross-examination on s. 54 report because Society was not relying on it, motion judge implicitly accepted its recommendations as valid by faulting parents for failing to act on such recommendations.

C.A.S. of Nipissing and Parry Sound v. B. and Be. (2019), 2019 CarswellOnt 2843, 2019 ONSC 1352, Ellies J. (Ont. S.C.J.).

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