Enhanced Summary Judgment Powers Works Parents as Well as the Children’s Aid Society
This rule arises from a very tragic case. The decision is called Windsor-Essex Children’s Aid Society v. K.M., 2015 ONCJ 553 (CanLII) and you can read it here.
The Parents in the proceeding had two small children. One was a toddler and the other an infant. The infant died in her crib. The police investigated and ruled out any foul play in the infant’s death. No charges were laid.
The C.A.S. brought an Application to investigate the safety of the toddler. They observed the toddler to be happy and healthy.
The C.A.S. brought an Application regarding the toddler. They cited two grounds:
There was some discrepancies in the parent’s statements to the police.
The Mother did not notice the infant’s condition until noon, when she awoke
The Honourable Justice B. Tobin held that these issues were irrelevant in the infant’s death. There was nothing in the record suggesting that the parents were unfit.
What is important is the legal reasoning. The Family Law Rules were changed in mid-2015 giving judges broader powers to deal with issues on a Summary Judgment motion as opposed to an oral hearing. In essence, it is a two-step process.
Step One: Is there a genuine issue requiring an oral hearing? There will be no genuine issue requiring a trial when the written record
(1) allows the judge to make the necessary findings of fact;
(2) allows the judge to apply the law to the facts; and
(3) is a proportionate, more expeditious and less expensive means to achieve a just result.
Step Two: If the issue cannot be dealt with in a summary judgment motion, is there a more efficient means to decide the issue than a full hearing?
So far, these broader powers have been used mostly by the Children’s Aid Society. This decision, however, shows that parents can use these enhanced powers to their benefit as well.