The appellant mother (Y.Z.) appealed a summary judgment order that granted custody of her child, H., to the father (P.H.) and provided her with supervised access.
The appeal was based on three grounds: the lower court's application of the outdated Child and Family Services Act (CFSA) instead of the Child, Youth and Family Services Act, 2017 (CYFSA), reliance on inadmissible evidence, and an erroneous finding of no triable issues.
The Superior Court of Justice dismissed the appeal, acknowledging the error in applying the CFSA but finding it not fatal, as the appellate court could apply the correct CYFSA framework to the existing factual findings.
The court found no palpable and overriding error in the judge's assessment of evidence or determination that there was no genuine issue for trial, emphasizing the child's best interests and the need for stability.
interesting_citations_summary: >
This decision clarifies the appellate court's power under section 134(1)(a) of the Courts of Justice Act to apply the correct legal framework (CYFSA) to uncontested factual findings, even when the lower court applied an outdated statute (CFSA).
It reinforces the high deference owed to trial judges in child protection cases, particularly on credibility and factual findings, and reiterates the "palpable and overriding error" standard for mixed fact and law.
The case also addresses the admissibility of a child's expressed wishes under the state of mind hearsay exception and the summary judgment test in child protection matters, emphasizing the need for a fair and just determination proportionate to the case's importance.
final_judgement: "The appeal is dismissed."
winning_degree_applicant: 5
winning_degree_respondent: 1
judge_bias_applicant: 0
judge_bias_respondent: 0
year: 2020
decision_number: 1844
file_number: "FS-18-4404"
source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1844/2020onsc1844.html"
keywords:
- Child protection
- Appeal
- Summary judgment
- Best interests of the child
- CFSA
- CYFSA
- Standard of review
- Custody
- Access
- Hearsay
- Family Law Rules
areas_of_law:
- Family Law
- Child Protection Law
- Civil Procedure
- Appellate Law
cited_cases:
legislation:
- title: "Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched.1"
url: "https://www.ontario.ca/laws/statute/17c14s1"
- title: "Child and Family Services Act, R.S.O. 1990, C 11"
url: "https://www.ontario.ca/laws/statute/90c11"
- title: "Courts of Justice Act, R.S.O. 1990, c.
C.43"
url: "https://www.ontario.ca/laws/statute/90c43"
- title: "Family Law Rules, O. Reg. 114/99"
url: "https://www.ontario.ca/laws/regulation/990114"
case_law:
- title: "Housen v. Nikolaisen, 2002 SCC 33"
url: "https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1979/index.do"
- title: "H.L. v. Canada (Attorney General), 2005 SCC 25"
url: "https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2200/index.do"
- title: "P.(D.) v. S.(C)"
url: "https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1047/index.do"
- title: "Children's Aid Society of the Regional Municipality of Waterloo v. C. T., 2017 ONCA 931"
url: "https://www.ontariocourts.ca/decisions/2017/2017ONCA0931.htm"
- title: "Children's Aid Society of Toronto v. C.(S.A.)"
url: "https://www.canlii.org/en/on/onsc/doc/2005/2005canlii43289/2005canlii43289.html"
- title: "Children's Aid Society of Toronto v. C.(S.A.), 2007 ONCA 474"
url: "https://www.canlii.org/en/on/onca/doc/2007/2007onca474/2007onca474.html"
- title: "Children's Aid Society of Toronto v. V. L., 2012 ONCA 890"
url: "https://www.canlii.org/en/on/onca/doc/2012/2012onca890/2012onca890.html"
- title: "L. M. v. Peel Children’s Aid Society, 2019 ONCA 841"
url: "https://www.canlii.org/en/on/onca/doc/2019/2019onca841/2019onca841.html"
- title: "Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316"
url: "https://www.canlii.org/en/on/onca/doc/2019/2019onca316/2019onca316.html"
- title: "Children’s Aid Society of Algoma v. J.B., 2018 ONCJ 834"
url: "https://www.canlii.org/en/on/oncj/doc/2018/2018oncj834/2018oncj834.html"
- title: "Hryniak v. Mauldin, 2014 SCC 7"
url: "https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13543/index.do"
---
# Court File and Parties
**COURT FILE NO.:** FS-18-4404
**DATE:** 20200327
**ONTARIO**
**SUPERIOR COURT OF JUSTICE**
**BETWEEN:**
Children’s Aid Society of Toronto Applicant (Respondent in Appeal)
– and –
Y.Z. Respondent (Appellant)
**COUNSEL:**
Justine Sherman, for the Respondent in Appeal
David P. Miller, for the Appellant
– and –
P.H. Respondent (Respondent in Appeal)
**COUNSEL:**
Victoria Boger Mull, for the Respondent in Appeal
Patric Senson, for the Office of the Children’s Lawyer
**HEARD:** February 10, 2020
On appeal from the decision of Justice B.M. Scully dated July 31, 2018
---
# Warning
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the *Child, Youth and Family Services Act, 2017*, (being Schedule 1 to the *Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14*), and is subject to subsections 87(7), 87(8) and 87(9) of the Act.
These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
**87 …**
**Order excluding media representatives or prohibiting publication**
(7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
**Prohibition re identifying child**
(8) 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.
**Prohibition re identifying person charged**
(9) 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.
**142 …**
**Offences re publication**
(3) A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.
E.L. Nakonechny, J.
---
[1] The appellant, Y.Z., (“the mother”) is the mother and the Respondent, P.H., is the father of the children K., born […], 2000 and H., born […], 2010.
Only H. is the subject of these proceedings.
[2] On consent of the mother and father, H. had been in the father’s custody on a temporary, without prejudice basis since July 21, 2015.
For about a year following that date, H. had no access to the mother.
Since June 9, 2016, the mother has exercised fully supervised access to H. at the offices of the Children’s Aid Society of Toronto (“C.A.S.T. or “the Society”).
[3] The mother brings this appeal from the final Order of Justice B.M. Scully (“the Judge”) dated July 11, 2018 made following a summary judgment motion brought by C.A.S.T. The motion was supported by the father and the Office of the Children’s Lawyer (“OCL”) on behalf of H.
[4] The mother opposed the motion for summary judgment.
In her Plan of Care dated October 11, 2017, she sought an order that H. be placed in her care for six months under a supervision order with access to the father.
In her Affidavit dated November 14, 2017, filed on the summary judgement motion, the mother sought the placement of the child in her custody with access to the father.
[5] The Judge granted summary judgment and ordered *inter alia* that the father have custody of H. pursuant to s. 57.1(1) of the *Child and Family Services Act, R.S.O. 1990, C 11* (the “CFSA”) and the mother have access to H. at a supervised access centre at minimum of once per week (“the Order”).
## Grounds of Appeal
[6] The mother appeals the Order on the following grounds:
a.
The Judge erred in applying and making a final order under the CFSA rather than the *Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched.1* (the “CYFSA”).
At the time of the Order, the CYFSA and not the CFSA was in force.
b.
The Judge erred in failing to conduct a careful screening of the evidence.
The Judge considered and relied upon unreliable and inadmissible evidence in granting summary judgment.
c.
The Judge erred in finding there were no triable issues.
Summary judgment will not ensure a fair and just determination of the case.
[7] The Respondents concede that the Judge erred in applying the CFSA rather than the CYFSA.
However, the Respondents argue that this error is not fatal and that this Court can apply the correct legal framework to the factual findings made by the Judge and uphold the Order in its entirety.
## Standard of Review
[8] The standard of review on an appeal from a judge's order is set out in [Housen v. Nikolaisen, 2002 SCC 33](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1979/index.do).
On questions of law, the standard of review is correctness.
For findings of fact, the standard of review is a palpable and overriding error.
[9] On questions of mixed fact and law, there is a spectrum.
Where there is an extricable legal principle, the standard of review is correctness.
With respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
[10] With respect to findings of fact, an appellate court "may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence" ([H.L. v. Canada (Attorney General), 2005 SCC 25](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2200/index.do), at para. 4).
The Supreme Court of Canada went on to say (at para. 55) that the language of “palpable and overriding error" and "clearly wrong" found in the case law "encapsulate the same principle: an appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result."
[11] In child protection cases, appellate courts owe a high degree of deference to the trial judge's decision.
In [P.(D.) v. S.(C)](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1047/index.do), [1993] 4 S.C.R. 141, the court stated, at p. 192: "On issues of credibility, a trial judge is uniquely well placed to make the necessary findings.
An appellate court should, apart from exceptional situations, refrain from interfering with those findings" (see also [Children's Aid Society of the Regional Municipality of Waterloo v. C. T., 2017 ONCA 931](https://www.ontariocourts.ca/decisions/2017/2017ONCA0931.htm) at para 33; [Children's Aid Society of Toronto v. C.(S.A.)](https://www.canlii.org/en/on/onsc/doc/2005/2005canlii43289/2005canlii43289.html), [2005] OJ No 4718 at para. 10 and 12; aff'd [2007 ONCA 474](https://www.canlii.org/en/on/onca/doc/2007/2007onca474/2007onca474.html)).
[12] In [Children's Aid Society of Toronto v. V. L., 2012 ONCA 890](https://www.canlii.org/en/on/onca/doc/2012/2012onca890/2012onca890.html); leave to appeal refused [2013] S.C.C.A. No. 1112 the Court of Appeal held at para. 15: "the court owes a special duty to ensure that the safety and well-being of children are protected.
As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.”
## Overview of Decision Under Appeal
[13] The Judge held that it was in the best interests of H. to remain in the custody of his father.
[14] The Judge made factual findings based on the evidence and applied them to the criteria in s. 37(3) of the CFSA:
a.
H. has not resided with his mother since January, 2014.
He and his sister, K., were taken into care after the mother was charged with assaulting K. with a weapon; striking her multiple times with a stick.
The mother pled guilty and admitted to the assault.
K. told the police that H. had also been threatened with a stick and struck on his hands.
b.
H. has thrived in his father’s care since 2015.
The father has worked with H.’s medical professionals and school to deal with H.’s needs relating to his hearing impairment including his hearing aids, Individual Education Plan, speech and language therapist and play groups.
He has strongly supported H.’s academic and social development.
c.
Since 2016, after a one year period of no access, H. has had supervised access with his mother.
H. has consistently expressed his wish to the Society worker, the OCL and the psychological assessor, Dr. Daniel Fitzgerald, that he wants to continue to reside with his father and wants his visits with his mother to be supervised.
He does not want to be alone with his mother.
d.
Dr. Li conducted a psychological assessment of the mother in accordance with the Order of Weagant, J. The assessment included psychological testing in the Chinese language.
The test results and Dr. Li’s clinical observations found that the mother is narcissistic, lacks self awareness, and shows a superficial level of understanding of the effects of her physical abuse of K. While Dr. Li observed reciprocal affection during a meeting between H. and his mother, testing and clinical observations show the mother lacks empathy for her children and does not give adequate attention to their emotional and developmental needs.
e.
The father continues to access professionals to maintain his own mental health and is compliant with his prescribed medications.
f.
Dr. Fitzgerald stated that H. requires a safe, secure placement with solid external controls.
g.
The Society has been involved with H. for half of his life.
Any further delay in the decision regarding H.’s placement would be detrimental to him.
[15] The Judge found that father has encouraged and facilitated H.’s ongoing relationship with his mother.
The father would support an expansion of H.’s time with his mother contingent on the well being of the child.
[16] The mother has refused to allow C.A.S.T. to attend at her home for an assessment.
She continues to have a combative relationship with both the Society and the OCL.
[17] In considering the placement order, the Judge looked at the history of the child while in the care of both the mother and the father.
He acknowledged the positive progress made by the child in the father’s care since 2015 and the strong efforts made by the father to meet the child’s physical, emotional, and educational needs.
The Judge considered the history of the mother’s behaviour toward the children and the findings of Dr. Li and weighed that with his finding that there is affection between the mother and H.
[18] The Judge found the mother’s behaviour toward the father was dismissive and uncooperative.
He determined that the mother would likely not cooperate with the father regarding the issuing of government documents and travel consents.
It would be in the child’s best interests not to have this conflict between his parents, so the father should be permitted to obtain these documents and travel without the mother’s consent.
[19] In considering the access order the Judge found that it was in H.’s best interests that his consistently expressed wishes for supervised access to his mother be acknowledged and supported.
The Judge specified that, as the mother progresses through her therapy, the access may expand to include overnights.
To protect H.’s interests, any motion to change access must be on notice to C.A.S.T.
## Legislative Framework
[20] On April 30, 2018, the CYFSA came into force to replace the CFSA.
Both the CFSA, in s. 57.1(1) and the CYFSA in s. 102(1) provide that after a child has been found to be in need of protection, a court may make a custody order in relation to the child, provided it is in the child’s best interest.
Both statutes list criteria for the court to consider when determining what is in the best interest of the child.
[21] Subsection 37(3) of the CFSA reads as follows:
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
1.
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2.
The child’s physical, mental and emotional level of development.
3.
The child’s cultural background.
4.
The religious faith, if any, in which the child is being raised.
5.
The importance of the child’s development of a positive relationship with a parent and a secure place as a member of a family.
6.
The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
7.
The importance of continuity in the child’s care and the possible effect on the child of disruption in that continuity.
8.
The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9.
The child’s views and wishes, if they can be reasonably ascertained.
10.
The effects on the child of delay in the disposition of the case.
11.
The risk that the child may suffer harm through being removed from, kept away from, returned or allowed to remain in the care of a parent.
12.
The degree of risk, if any, that justified the finding that the child is in need of protection.
13.
Any other relevant circumstance.
[22] Subsection 74(3) of the CYFSA reads as follows:
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
a. consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
b. in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
c. consider any other circumstance of the case that the person considers relevant, including,
i. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
ii. the child’s physical, mental and emotional level of development,
iii. the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
iv. the child’s cultural and linguistic heritage,
v. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
vi. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
viii. the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
ix. the effects on the child of delay in the disposition of the case,
x. the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
xi. the degree of risk, if any, that justified the finding that the child is in need of protection.
## The Grounds for Appeal
### 1 – Did the Judge err in applying the best interests test under the CFSA rather than the CYFSA?
[23] The Appellant submits that the Judge erred in applying and making a final Order under the CFSA rather than the CYFSA which was in force at the time of the order.
The Respondents do not dispute this.
[24] The Respondents submit that, based on the Judge’s findings of fact, the differences in the best interests test between the CFSA and the CFYSA would not have changed the Judge’s decision.
Under the CYFSA the child’s views and preferences are now a mandatory factor the court must consider when determining the child’s best interests.
Under the CFSA, the child’s views and preferences were only one factor for the court to consider, if relevant (my emphasis).
[25] The Appellant argues that there are significant differences between the definition of best interests in the CFSA and the CYFSA.
In my view, the major difference, as set out above, is the now mandatory consideration of the child’s views and preferences, unless they cannot be reasonably ascertained.
Another difference is the expansion of the consideration of the child’s cultural background and religious faith, if relevant, to include the consideration of the child’s race, ancestry, place of origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression and the child’s cultural and linguistic heritage, if relevant.
The remaining factors are the same except for considerations relating to First Nations, Inuit and Metis children.
Those considerations are not applicable in this case.
[26] The Judge considered that H. had consistently expressed his wish to live with his father and have supervised access to his mother.
This had not changed or wavered over time.
H. made his feelings clear to the Society worker, Mr. Kelly, Dr. Fitzgerald and the OCL.
The Judge confirmed the importance of the child’s wishes and found that they must be “acknowledged and supported to secure his best interests” (at para. 68).
[27] The Appellant argues that, although the child made many statements that he wishes to continue to live with his father and visit with his mother in supervised settings, he made one statement after an access visit on November 8, 2017 that he wished to live with his mother and was not happy living with his father.
This, she says, shows that the evidence of the child’s views and preferences is inconsistent.
[28] I do not agree.
It is one statement made after a visit with the mother.
There is no evidence this was ever repeated.
This does not change the child’s long standing and expressed preferences that the Judge considered in reaching his decision.
[29] In [L. M. v. Peel Children’s Aid Society, 2019 ONCA 841](/on/onca/2019/841), the Court of Appeal found that the Ontario Superior Court Judge below erred in law by applying the CFSA rather than the CYFSA to uphold the summary judgment decision of the Ontario Court of Justice to place three children in extended society care.
The CYFSA not the CFSA was in force at the time of the appeal.
[30] The Court of Appeal held that it had jurisdiction under section 134(1)(a) of the *Courts of Justice Act, R.S.O. 1990, c.
C.43*, to apply the correct legal framework to the evidence.
That subsection authorizes an appeal court to “make any order or decision that ought to or could have been made by the court or tribunal appealed from.” at para. 54.
[31] In *L.M.*, the Court determined that it was appropriate to exercise its jurisdiction under s. 134(1)(a) because the motion judge’s factual findings were uncontested which permitted the court to apply the proper legal framework and because the children required certainty of their status after a lengthy protection proceeding.
[32] I agree that the Judge erred in law by applying the CFSA.
Having made this finding, this Court may return the matter to the Ontario Court of Justice to apply the correct legal framework to the uncontested factual findings or make the decision itself, *L.M.* at para. 53.
[33] The Judge made findings regarding to the child’s physical, educational and emotional needs and the father’s efforts to meet those needs, the importance of H.’s relationship and emotional ties with both parents, the importance to H. of the stability and continuity of his father’s home, his community and school and the effect of the disruption of that continuity, and H.’s repeatedly stated views and preferences.
H. has been the subject of protection proceedings since 2014.
It would give stability to H. and both his parents to have the proceeding concluded.
There was ample evidence to support the Judge’s findings of fact.
[34] In my view, it is appropriate for me to exercise my discretion under s. 134(1)(a) and apply the Judge’s factual findings as set out in the Order to the best interests test in subsection 74(3) of the CYFSA.
In doing so, I conclude that there is no genuine issue for trial and that it is in H.’s best interest to be placed in the care of his father with continued supervised access to his mother with a view to future expansion of access on notice to C.A.S.T.
### 2 – Did the Judge err in considering and relying upon unreliable and inadmissible evidence in granting summary judgment?
[35] The Applicant argues that the Judge failed to conduct a careful screening of the evidence to eliminate inadmissible evidence as mandated by the decision of the Ontario Court of Appeal in [Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316](/on/onca/2019/316).
A child protection summary judgment motions judge should give no weight to evidence that would be inadmissible at trial: at para. 80(3).
[36] As examples, the Applicant submits that the Judge accepted the evidence given by the father and the Society worker Mr. Kelly regarding the child’s views and preferences without considering the threshold reliability of that evidence.
She states the Judge wrongly accepted inadmissible evidence from Mr. Kelly for its truth when the evidence was based on hearsay information he received from other professionals.
She also argues that the Judge accepted inadmissible opinion evidence from Mr. Kelly.
[37] The Respondents argue that H.’s views and wishes meet the state of mind hearsay exception.
H. made the statements to describe his physical, mental and emotional state and not the cause of the state, [Children’s Aid Society of Algoma v. J.B., 2018 ONCJ 834](/on/oncj/2018/834) at para. 16.
H. expressed his wishes and preferences to his father, (who is, albeit, an interested party) but the views were consistent with what H. reported to non-interested parties, Mr. Kelly, Dr. Fitzgerald and the OCL.
The statements were not made under suspicious circumstances.
[38] This is a question of mixed fact and law.
Did the Judge apply the correct legal principles to the evidence?
The standard is palpable and overriding error.
[39] In applying the best interests test, the Judge made findings based on undisputed first hand evidence regarding the child’s physical, emotional and academic growth in his father’s care, the evidence of the mother’s behaviour which resulted in the original finding that the children were in need of protection, the reports of the qualified experts relating to H.’s needs and the current state of the mother’s lack of empathy and awareness of the impact of her behaviour on her children and findings of fact made by previous judges.
[40] The Appellant has not demonstrated that the Judge made a palpable and overriding error in his treatment of the evidence before him.
The Judge’s finding that it was in the best interests of the child to remain in the care of his father with supervised access to his mother was not clearly wrong.
There was sufficient admissible evidence available to the Judge to make this finding.
I dismiss this ground of appeal.
### 3 – Did the Judge err in finding there were no triable issues?
[41] The Appellant states that there was evidence before the Judge which raised triable issues regarding custody and access:
a.
Dr. Li and Mr. Kelly gave evidence which spoke to the mother’s strengths and the positive relationship between the mother and H. which supported the mother’s Plan of Care;
b.
The father gave evidence regarding his personal mental health struggles and stress in caring for the children;
c.
The Judge failed to permit a request for time limited examination of Mr. Kelly and refused to hear direct evidence from K. who lives with her mother five days per week.
[42] At the Trial Scheduling Conference on January 9, 2018, O’Connell, J. made an Order on consent of all parties that only the father would be cross examined at the summary judgment motion.
At the motion, the Respondent’s opposed the Applicant’s request to cross examine Mr. Kelly.
The purpose of the Trial Scheduling Conference is to set time lines and procedural terms to permit each party to prepare their case.
The Judge was within his discretion to rely upon the Order of O’Connell, J. in conducting the hearing of the motion.
[43] The Appellant refers to *L.M., supra*, where the Ontario Court of Appeal confirmed that while summary judgment is available in child protection cases it is not appropriate in all cases.
In particular, the test for summary judgement must be “applied in context and sensitive to the particularly high stakes and Charter rights of parents and children implicated in child protection cases,” at para. 52.
[44] Rule 16(6) of the *Family Law Rules, O. Reg. 114/99* provides: If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[45] Rule 16(6.1) of the *Family Law Rules* sets out the court’s powers on a motion for summary judgment:
(6.1) 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 of evidence,
2. evaluating the credibility of a deponent;
3. drawing any reasonable inference from the evidence.
[46] The powers are discretionary and should be used if doing so will lead to a fair and just result, consistent with the primary objectives of Rule 2(2) of the *Family Law Rules*: fairness, timeliness, affordability and dealing with the case in ways that are appropriate to its importance and complexity.
[47] In [Hryniak v. Mauldin, 2014 SCC 7](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13543/index.do), [2014] 1 S.C.R. 87, the Supreme Court of Canada set out the process to be followed by a court in applying the summary judgment rules At paragraph 49 the court states: “There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process.
This will be the case when the process: (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.”
[48] At paragraphs 14 – 21 of the Order, the Judge set out a detailed review of the law on summary judgment and cases dealing with summary judgement in child protection proceedings.
He applied the Rule and tests in the case law when weighing the evidence before him and making his findings of what custody and access order would be in H.’s best interests.
In particular, he considered Dr. Fitzgerald’s evidence that H.’s best interests required stability and continuity, that H. was doing well in his father’s care and that a trial would create further delay and uncertainty.
[49] The Judge considered the father’s support of the relationship between H. and his mother as well as the efforts the mother was making through therapy.
The Order anticipates that the mother will make progress and, in future, her access to H. could expand and include overnights.
[50] It is clear from the Order that the Judge turned his mind specifically to the summary judgment test set out in the FLR and the case law in his analysis of the evidence relating to H.’s best interests.
The Judge set out the evidence he reviewed and relied upon in making his decision of whether there was a genuine issue for trial on custody or access which includes the evidence listed by the Appellant.
There is no basis for suggesting that the Judge was clearly wrong in his decision.
I dismiss this ground of appeal.
## Order
[51] For the reasons set out above, the appeal is dismissed.
[52] If the parties cannot agree on costs and the interest issues, the parties shall serve and file submissions on costs within ten business days from the release date of this decision.
The submissions shall be no more than three pages, exclusive of any costs outline, case law and offers to settle.
Submissions may be exchanged between the parties by email and sent to my clerk, Patrizia Generali at: Patrizia.Generali@ontario.ca.
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E.L. Nakonechny, J.
Released: March 27, 2020
