We have previously commented upon procedural fairness in child welfare cases and the role that summary judgment motions play: Part 1 Part 2. We have called for reforms. The growing threat to procedural fairness principles has been further exacerbated by the Supreme Court of Canada decision, Combined Air when it may be applied to child welfare cases. It has already been applied to at least one family case - Jivraj v. Jivraj.
In a January 2014 decision (Combined Air) the Supreme Court of Canada discussed the seminal issue of "access to justice", calling it "the greatest challenge to the rule of law in Canada today". "Without an effective and accessible means of enforcing rights, the rule of law is threatened." A "culture shift" is required, the SCC tells us, so that there will be meaningful access to the civil justice system. "This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case." One of the modalities to ensure such access is the Summary Judgment motion.
A S.J. motion is a means to short circuit a trial. There are requirements though. The court tells us that "a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial." [GCC emphasis added]
Summarizing at paragraph 28 of the decision, the Supreme Court states:
A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible - proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. [GCC emphasis added]
Support for the "proportionality principle" is found in the Ontario Rules of Civil Procedure, 1.04 (1) and 1.04 (1.1). The same principles are encapsulated in Ontario's Family Law Rules in Rule 2(2), (3) and (4).
The Alberta Queen's Bench case of Jivraj v. Jivraj cites Combined Air. In Jivraj the issue was what was the appropriate level of "costs" to be awarded to a husband who successfully resisted two motions brought by his wife with respect to access to the matrimonial home that she had just recently voluntarily vacated. The wife's motions were deemed to have been without any merit at all. The judge in Jivraj noted that: "this principle [ie. proportionate, timely and affordable] is all the more pertinent in family disputes..." ... "The courts and the bar must therefore discourage time and money consuming process which does not aid in achieving fair and just process and which may, in fact, be counterproductive to those ideals."
We agree that reining in warring parents through costs sanctions is a great idea. If your motion does not have any merit at all, do not bring it. You deserve to be sanctioned in such circumstances. (We would add that there are already provisions in most if not all court rules to sanction meritless motions in any event.)
However, parents attempting to re-establish custody of or access to their children in the context of the child welfare legal system is quite another matter. Such parents face huge challenges when served with C.A.S. Summary Judgment motions. Litigants within the general family law system also face the potentially drastic consequences of Combined Air in terms of how parts of that case may be applied to the family law system. In both child welfare and general family cases we face the issue of ensuring fair modalities of dispute resolution (procedural fairness) balanced against the importance of being allowed to have one's case heard in a timely and cost effective manner.
Self-represented child welfare litigants do not always have easy access to Legal Aid or other means of representation, notwithstanding footnote #1 in the SCC Combined Air decision:
For instance, state funding is available in the child welfare context under G. (J.) orders even where legal aid is not available (see New Brunswick (Minister of Health & Community Services) v. G. (J.),  3 S.C.R. 46 (S.C.C.), or for cases involving certain minority rights (see the Language Rights Support Program).
How can a forlorn, beleaguered, stressed parent who faces a children's aid society realistically manage to defend a S.J. Motion where that agency is often insensitive, unhelpful, misleading, hostile or worse? The S.J. Motion has been prepared by a trained lawyer with an entire support system of child protection workers, law clerks and secretarial assistants. How is such a parent able to even start to put together a credible defence on paper? Given a chance to speak directly with a judge, tell his/her story, and at least have a chance to cross-examine agency workers should surely be hallmarks of a child welfare legal system that purports to dispense "justice". The S.J. Motion kiboshes what few rights parents have to defend themselves against an incredibly formidable adversary. And it's not simply a matter of one being concerned with parental "rights"; it's that perfectly acceptable parents are losing their kids at S.J. Motions because they do not have the means to adequately defend and tell their story. They do not have the means to challenge child protection agencies who present stories that are sometimes somewhat divorced from the true state of affairs.
"Proportionate, timely and affordable" justice is surely important. But expediency ought not to be allowed to trump justice and ought not sow unjust permanent separation between children and their parents. And I fear that Combined Air, when applied in the child welfare context, is going to do just that.
Is there a solution? Yes, there is. Require child protection agencies to fully fund defence counsel where the agency brings a summary judgment motion. Require such agencies to be required to automatically release to such defence counsel a complete copy of the C.A.S. file so that counsel can adequately prepare for the S.J. Motion. Surely there are cases where a parent should be removed and the child protection agency should have the right to secure alternate permanent placement for such children at the earliest possible stage. But that valid social objective should not be allowed to over-ride even one child's right to be raised and loved by an adequate parent. Parents do not have to be perfect (as many child protection agencies seem to insist). The parents just need to be adequate. We must insist that kids' rights to their adequate parents trump all other considerations. S.J. Motions should not be allowed to supersede those rights. The Combined Air principles should not be extended to child welfare matters. Summary Judgment remedies in child welfare law should be significantly limited and curtailed.