Gene C. Colman Family Law Centre
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SUMMARY JUDGMENT, PROCEDURAL FAIRNESS AND CHILD WELFARE CASES - PART 1

Has a "Summary Judgment" motion in an Ontario family court resulted in you losing your child to the Children's Aid? Are you now facing a summary judgment motion? The increasing frequency of using this draconian and patently unfair tool to deprive children of their parents in these sorts of child custody cases has long troubled me. It's gratifying to see that at least one Ontario Superior Court Judge seems to agree with me.

Justice J. deP. Wright has issued a brave appeal decision: R.(C) v. C.A.S. of the District of Thunder Bay (Jan. 30, 2013). He criticizes courts and agencies that run roughshod over the procedural rights of parents.

What is Summary Judgment? Under Rule 16 of Ontario's Family Law Rules, a party can bring a motion to essentially end the case prematurely. R. 16(6) says: "If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly." In other words, if the undisputed facts don't even get you to first base in terms of either getting your kids back or at least making out a possible claim for access, then the court can legally deprive you of the right to a trial even where it is sought to make the kids Crown Wards. It is therefore essential that when responding to such motions, you present affidavits that clearly demonstrate that you have something to offer your kids. But how do you get to cross-examine the CAS witnesses and show the court that the CAS evidence is less than accurate, biased or even false? There are procedures available but it is challenging, to say the least, for self-represented litigants and those with budget limited Legal Aid lawyers to mount an adequate defence to these motions.

Justice J. deP. Wright reminds us that we are dealing with an issue here that is tantamount to capital punishment. Yes, he likens the relief of Summary Judgment pursuit of Crown Wardship - No Access to executing a person. Really! Here are some telling quotes from this important case (emphasis added by GCC):

2 It has been said that a judge is never confronted with a more serious issue than when the state seeks to take a person's life, her children, or her liberty in that order of priority.

6 The judgment appealed from was granted on motion for summary judgment. It deprived parents of their children and denied the mother the right to present her claim for access in a trial of that issue.

7 The propriety of taking children from their parents through the use of a motion for summary judgment is questionable.

8 One cannot help but think that a stranger to our shores, aware of our legal history, would be appalled at the thought that parents could be deprived of their children simply upon paper filed with the court and without the court hearing from the parents directly.

9 In the days of capital punishment the courts would not accept a plea of guilty. No matter how "open and shut" the case might have appeared to be, oral evidence from witnesses had to be placed before a jury which would justify its verdict of guilty.

10 Similarly, when the state seeks to deprive a person of his liberty it cannot simply file affidavits indicating that there is no triable issue concerning the guilt of the accused and therefore the accused should not be entitled to a trial.

11 The taking of children is different. Goaded on by the demands of an overwhelmed judicial system and by notions of expediency we have taken a procedure that was originally created to speed commercial matters through the courts and applied it to one of the most profound issues to affect human beings.

I was at a conference a few months ago - Association of Family & Conciliation Courts. It's a great group of really dedicated lawyers, judges, social workers, psychologists, etc. who are truly committed to bringing improvements to the family law system. One judge who sits on the Ontario Court of Justice told the conference openly and proudly of how his court was expeditiously processing Crown Wardship Summary Judgment Motions and thus freeing these children up for adoption at an early stage. I went up to the judge during the next break and protested the lack of procedural fairness inherent within summary judgment motions and that some good parents could easily be caught up in the mill and lose their kids unfairly. The judge seemed to be genuinely offended with what I had said and he retorted that in fact he refused to grant the summary judgment remedy more than the other judges at his court location. Still, I would not want to have to defend a summary judgment motion in front of that particular judge. Justice J. deP Wright has one attitude to procedural fairness; the unnamed judge at the conference has quite another.

But even Justice J. deP. Wright, who certainly merits praise for his decision, finds legal grounds to deprive the father of his right to challenge the Crown Wardship order. The motions judge had allowed the father to raise only an access issue when he wished to challenge the Crown Wardship disposition as well. On appeal, Justice J. deP. Wright allowed the mother to raise the access issue. Therefore, the mother may have felt vindicated procedurally at the appeal but we must be sensitive to the fact that the father would likely perceive that the system had not treated him fairly.

I'll have more to say about this case in a subsequent blog post. Stay tuned.

TO PART 2

3 Comments

You are so right. I am a Licenced Professional Engineer held legally responsible for the safety of society. CAS and a court order took my custody of my daughter away from me. I still have custody of my son. In the court order no explanation was given to why the custody was taken away. It was based on an assumption that I am abusive but there has never any proof nor have I ever been abusive. This child human rights violation will stay in the history of Canada for ever. I am long finished spending the thousands of dollars in a system that failed my children.

Thank you, Gene. I have long thought that the draconian abuse of power by CAS in general is part of the same elitist attitude that underlies the use of sole custody and outrageously slapdash procedure in the family courts. I have called the court's attitude "feudal" in the sense that the aristocracy owns absolutely everyone in their realms and therefore has a superior claim to children. It sounds kooky to point out this thinking in these terms, but it appears to be the unexamined basis of family court power. In a modern democracy, it seems very odd that the government would presume to treat both parents and children as chattels of the government, but it is normal practice in this special context.

CAS never needs any proof at all in any allegation, to run rough shod over a family, nor do the crimminal courts. I agree that their actions is a human rights violation and will be known for a long tiome to be jsut that, a human rights issue. The courts have failed Mothers , Fathers and children and therefore society and have taken little accountability, for undue damages.

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