WARNING
The court hearing this matter directs that the following notice should 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.—(7) Order excluding media representatives or prohibiting publication.— 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.
(8) Prohibition re identifying child.— 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.
(9) Prohibition re identifying person charged.— 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.—(3) Offences re publication.— 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.
ONTARIO COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto
Applicant
— AND —
S.S. (mother)
C.D. (father of I.)
D.B. (father of Is. and S.)
Sa.S. (maternal aunt)
Respondents
Before Justice D. Szandtner
Heard on April 30, 2025
Reasons for Judgment released on May 9, 2025
Diana Castillo............................................................................ counsel for the applicant society
Denise Badley................................................................. counsel for the respondent mother S.S.
D. Gunarajah......................................................................... counsel for the kin caregiver Sa.S.
SZANDTNER J.:
Part One – Introduction
1The Children’s Aid Society of Toronto (the society) has brought the within summary judgment motion pursuant to Rule 16 of the Family Law Rules.
2The society brought its Protection Application returnable on April 20, 2023 seeking to place S. (born 2020), Is. (born 2016) and I. (born 2018) (the children) in the temporary care and custody of Sa.S. (the maternal aunt). On April 20, 2023, Justice Sherr made a temporary without prejudice order placing the children in the temporary care of the maternal aunt subject to the supervision of the society with terms and conditions. A temporary order was made that S.S. (the mother)’s access was to be at the discretion of the society with respect to location, duration and level of supervision.
3On October 5, 2023, Justice Sherr noted the parents in default. He made the statutory findings and found the children to be in need of protection pursuant to sections 74(2)(b)(i), (ii) and 74(2)(h) of the Child, Youth and Family Services Act (the Act). A final order was made placing the children in the care and custody of the maternal aunt subject to terms and conditions for six months. It was ordered that access to the children by the mother shall be at the discretion of the society with respect to location, duration and level of supervision, at a minimum of twice per week. An access order to the child I. by his father C.D. shall be at the discretion of the society with respect to frequency, location and level of supervision. An access order to Is. and S. by their father D.B. shall be at the discretion of the society with respect to location, duration and level of supervision, a minimum of once per week. The child I. shall have a right to access to his paternal grandmother and paternal aunt.
4On May 14, 2024, the court held the first appearance for the society’s Status Review Application seeking a further six month supervision order placing the children with the maternal aunt. The mother failed to attend court. The mother’s counsel was in attendance. The parties filed a Statement of Agreed facts. A final order was made for a further six month supervision order placing the children in the maternal aunt’s care with terms and conditions.
5The summary judgment motion before the court is in relation to the society’s Status Review Application issued on October 31, 2024 regarding the children. The society seeks a final custody order pursuant to subsection 102(1) of the Act placing the children in the care and custody of their maternal aunt. It also seeks order with respect to travel and documents for the maternal aunt.
6The society’s application seeks the following access orders:
a) a final order that access by the children to S.S. (the mother) shall be at the discretion of the maternal aunt with respect to location, duration and level of supervision, at a minimum of twice per month.
b) a final order that access by the children S. and Is. to their father D.B. shall be at the discretion of the maternal aunt with respect to location, duration and level of supervision, a minimum of twice per month.
c) a final order that access by the child I. to his father C.D. shall be at the discretion of the maternal aunt with respect to frequency, location, duration and level of supervision. A final order that I. has a right of access to his paternal grandmother B.D. and his paternal aunt, A.Y.
7The mother and her previous partner C.Y. have two other children E.Y. (born 2023) and I.N.S. (born 2024). On October 7, 2024, Justice Sherr had an order placing the child E.Y. in the deemed custody of her paternal grandmother L.Y. On December 16, 2024, Justice Sherr made a temporary without prejudice order placing I.N.S. in the temporary care and custody of his maternal uncle K.S. and his partner subject to the society supervision. On February 27, 2025, Justice Sherr made an order placing I.N.S. in the care of the maternal uncle and his partner for six months subject to the supervision of the society.
8The mother was represented by counsel at the summary judgment hearing. She served and filed an Answer and Plan of Care and an affidavit. Her counsel made submissions. The maternal aunt was represented by counsel at the summary judgment hearing. She filed an affidavit and her counsel made submissions.
9The fathers of the children, D.B. and C.D. did not attend or seek to participate in the summary judgment hearing. C.D. has never been involved in the child protection proceedings. He has never had access with the children. D.B. has never filed an Answer or Plan of Care and is in default.
Part Two – Legal Considerations for Summary Judgment
10The society brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.
11The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
12Pursuant to subrule 16 (4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See: Children’s Aid Society of Toronto v. K.T. 2000 CanLII 20578 (ON CJ), 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.
13Although subrule 16 (4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. See: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80.
14Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.
15Subrule 16 (6.1) provides that in determining if there is no 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 only exercised at trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
16Pursuant to subrule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.
17Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
18There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. 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 (Hryniak - paragraph 49). As the Supreme Court stated, at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (Kawartha, paragraph 63).
19As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits (Kawartha, paragraph 76).
20Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (Kawartha, paragraph 1 of paragraph 80 and paragraph 64).
21The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (Kawartha, paragraph 3 of paragraph 80).
22The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that it is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is a foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant” (Kawartha, paragraph 72).
23A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of the issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H. 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853.
Part Three – Disposition
3.1 Legal Considerations
24The Status Review Application is brought by the society pursuant to subsection 113 (2) of the Act.
25Under section 114 of the Act, where an application for review of a child’s status under section 113, the court may, in the child’s best interests,
a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;
b) order that the original order terminate on a specified future date;
c) make a further order or orders under section 101; or
d) make an order under section 102.
26The legal test for making a disposition order is found at subsection 101(1) and section 102 of the Act:
101.(1) Order where child in need of protection – Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests.
Supervision order – That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and no more than 12 months.
Interim society care – That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care – That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
Consecutive orders of interim society care and supervision – that the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.
(1) Custody order – Subject to subsection (6) if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interest, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of person or persons.
(2) Deemed to be order under s.28 of the Children’s Law Reform Act – An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be a parenting order or contact order, as the case may be, made under section 28 of the Children’s Law Reform Act, and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any directions that it may give under section 34 of that Act.
27Subsection 101(4) of the Act requires the court to look at community placements, including family members before deciding to place a child in care.
28In determining the appropriate disposition, the court must decide what is in the children’s best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making its determination. This subsection reads as follows:
74(3) Best interests of child - 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.
3.2 Society Position and Evidence
29The society is taking the position that the children should be placed in the permanent care and custody of the maternal aunt under a section 102 custody order.
30The society relies on the affidavits of family service worker Farzana Jivraj (the worker) sworn March 19, 2025 and April 24, 2025. Her evidence with respect to her work with the mother is as follows:
a) The protection concerns that triggered the society’s application included the mother leaving the children unattended for long periods of time, or with different caregivers, some of whom were unsafe. During the times that she disappeared, she did not leave any food for the children or any money for emergencies and was unreachable by phone. The children also missed multiple days of school when the mother disappeared. The children were emotionally impacted by these absences.
b) The maternal aunt reported specific incidents to the worker at the time the protection application was commenced. The maternal aunt reported that the mother was allowing different men into the home late at night and would lock herself in the room with them. The maternal aunt observed the mother to be drinking with these men. On April 5, 2023, the maternal aunt contacted the worker and advised that the night prior the mother was in her apartment partying in her locked room with men in the room. At one point, the mother called the maternal aunt to the bedroom where she was with the men. She asked the maternal aunt if she would have sex with one of the men and that he would pay her. When the maternal aunt said no, the mother kicked the aunt out of the room and shut the door. The children were sleeping in the room beside the mother’s activities. The mother then proceeded to kick her sister out of the home later in the night and she left with her partner.
c) On April 5, 2023 the worker conducted a home visit at the mother’s home. She asked the mother about the reported incidents the night before. The mother denied drinking and drug use. The worker observed that the house was in disarray. The worker explained the society’s protection concerns. She suggested that the children stay with the maternal aunt while the mother focused on her own mental health and stability and cleaning the home. The mother agreed for the children to go to the maternal aunt’s home. They were moved that evening.
d) Following this visit, the worker met with the mother on July 25, 2023 and September 20, 2023. She tried and failed to meet with the mother on August 10, and September 5, 2023 because she failed to answer the door.
e) The worker acknowledges that the mother had the apartment sprayed for a bug infestation and that the home had been cleaned prior to the July 25, 2023 visit. The mother reported back to her about her Tropicana and the Centre for Addiction and Mental Health (CAMH) outreach on this visit.
f) On September 20, 2023 and November 7, 2023 the worker met with the mother to discuss her child E.Y. who was born on […], 2023. The infant was immediately placed in the temporary care and custody of her paternal grandmother L.Y.
g) On December 4, 2023 the worker attended the mother’s home and reminded her to address her mental health and see her doctor. The worker scheduled visits for January 3, 2024 and January 8, 2024, but they were cancelled by the mother. She did unannounced visits to the mother’s home on February 25, 2024, April 15, 2024, May 13, 2024, June 25, 2024 and September 19, 2024. There was no answer at the door.
h) On May 27, 2024, the society worker sent a letter of expectations to the mother. The letter asked her to attend her regular access visits with the children to ensure consistency and that they are not missing school. Visits were scheduled at the society’s office to be able to observe the mother’s parenting skills and any gains she has made. The mother did not attend any of the scheduled visits.
i) On July 23, 2024, the worker met with the mother in her apartment. She observed the apartment to be clean overall. The mother reported that she was no longer in a relationship with C.Y. and that she smokes marijuana but does not drink. She had seen her doctor once but does not remember his name.
j) On October 7, 2024, Justice Sherr made an order on a default basis placing E.Y. in the deemed custody of her paternal grandmother L.Y.
k) On November 10, 2024, the mother gave birth to I.N.S. On November 12, 2024, the mother made a family plan placing the child in the care of the maternal uncle and his partner. On December 16, 2024, Justice Sherr made a temporary without prejudice order placing I.N.S. in the care of these kin caregivers.
l) On December 16, 2024 a second letter of expectations was sent to the mother. These expectations included monthly meetings with the worker, the Pathways program at Jean Tweed, attendance at society access visits, Tropicana counselling, a trauma program, and signing consents for the release of information.
m) On January 2025, the worker had a home visit at the mother’s home. She observed that the home was much cleaner than in the past. The mother advised that she was attending counselling through Tropicana. The mother advised that she was going to see a doctor soon but did not sign any consents. She also advised that she attended a woman’s program for domestic violence.
31Ms. Jivraj’s evidence with respect to her work with the maternal aunt and her partner is as follows:
a) The children were placed with the maternal aunt and her partner J.J. (partner) in three shelters prior to their relocation to a three bedroom home in Etobicoke. Their relocation from the second to the third shelter was due to an incident between the maternal aunt’s partner and a staff member at the second shelter. As of October 29, 2024, the maternal aunt and her partner have resided with the children in a three-bedroom house in Etobicoke.
b) The worker visited the children at the shelter and at their current home and deemed these environments appropriate.
c) The worker reports that the children’s school attendance is not a concern while they have been in the maternal aunt’s care. She has followed up with their teachers.
d) On September 17, 2024, the worker received a report that the maternal aunt and her partner had been arguing at the shelter. The maternal aunt confirmed the conflict and advised the worker that they were taking a break from their relationship and that he would reside outside of the shelter for a period of time.
e) On October 16, 2024, the worker discussed the incident with the maternal aunt’s partner who confirmed that he and the maternal aunt got into a physical altercation in the washroom on September 10, 2024. The children were in the main room at the time of the fight. He confirmed that he and the maternal aunt had been arguing for the last three months while living at the shelter. He further admitted to slapping I. on the leg when he was not listening or when he hit his sister. He agreed to not do it again. The society worker suggested that he and the maternal aunt go to counselling.
f) On November 24, 2024, the worker attended the maternal aunt and her partner’s three-bedroom house. She observed that it was an appropriate home environment, clean and organized. She asked after the maternal aunt’s new baby Ic. born a few weeks ago. The maternal aunt reported that she was very tired. The maternal aunt reported that the mother had not seen the children in two months.
g) The worker continued to visit the maternal aunt’s home on a monthly basis. She spoke to the children on each occasion who did not express any concerns.
h) In January of 2025, the maternal aunt confirmed that the mother had stayed a week in the home. The worker observed her there during her monthly visit. The maternal aunt reported to the society that she had to call the police to remove the mother from her home. The worker communicated the society’s expectations with respect to the mother’s access by a letter dated January 27, 2025.
3.3 Mother’s Position and Evidence
32The mother’s position is as follows:
a) There are no protection concerns that would prevent the return of the children to her care and custody. She denies having any substance abuse problem. She denies being involved in any relationship involving domestic violence. She denies having random men at her apartment. She denies leaving the children alone unsupervised in the past.
b) The mother asserts that she has a clean police record and does not have any health issues that would affect her ability to care for the children.
c) The mother claims that the worker is unsupportive to her and only supportive to the maternal aunt.
d) The mother claims that she is currently seeing the children regularly. They are always over at her house and she is taking care of them. They are not supervised by the aunt at all times when they are in her care. These visits can span entire weekends. She also claims that she has been spending entire weekends at the maternal aunt’s home caring for the children. In January 2025 she spent an entire week at the maternal aunt’s home caring for the children and assisting with their treatment for head lice.
e) The mother claims that a placement with the maternal aunt is not in the best interests of the children. She asserts that the maternal aunt lost custody of her own children. The maternal aunt is currently pregnant.
f) The mother claims that one of the children told her that the maternal aunt and her partner were beating them. The aunt’s partner slapped one of the children in the face and told them to “shut up.” When she confronted her sister about the disclosure, her sister called the police to have the mother removed from her home. The mother disclosed this allegation to the worker. The mother also asserts that she has also seen the maternal aunt and her partner fighting in front of the children.
g) The mother asserts that she contacted CAMH and Jean Tweed for addiction support but was turned away from these programs because she does not have substance abuse issues.
h) The mother reports that she has been engaged with Tropicana Community Services for counselling two times a month. She has also engaged with Early Years programming in her building. They have put together a package for her in April of 2025 to help her to deal with trauma.
3.4 Maternal Aunt’s Position and Evidence
33The maternal aunt supports the society’s position and seeks a s.102 order placing the three children in her final custody. Her position relies on the following affidavit evidence:
a) She was hospitalized for three weeks at Etobicoke General Hospital which affected her ability to respond to the summary judgment motion.
b) The three children are attending the local school. She and her partner prepare the meals for the children. She takes the children to school and he picks them up from school.
c) The child S. does not have a birth certificate. She is unable to obtain this document because she does not have full custody of the children.
d) She confirms that the mother had access to the children that she supervised.
e) She confirms that she and her partner and children moved to the Peel Shelter from the Red Door shelter on June 17, 2024. They moved because she was four months pregnant and the staff refused food after a certain time at night. Her partner was upset and exchanged words with the staff member.
f) She confirms that she and her partner had “differences” and took a break from their relationship in 2024. This was because of the confines of the one bedroom in the shelter. They are now in a house with enough room for all.
g) She confirms that her partner physically disciplined Is. She describes it as a one-time incident that will never happen again.
h) She confirms that the mother comes to see the children at her home and stays at night. She cannot refuse when her sister comes to her house unannounced.
i) She describes the January 24, 2025 incident as follows: the mother came to her home intoxicated at 6:44 pm and refused to leave, claiming that her partner slapped Is. on her face. She had to call police and the police removed the mother from her home.
Part Four – Genuine Issues Requiring a Trial Based on the Affidavit Material
34The court must exercise exceptional caution before proceeding on a summary basis in a child protection case. There are Charter implications at stake for vulnerable litigants in child protection proceedings.
35The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
36The worker’s affidavit evidence relied on by the society is riddled with hearsay. The affidavit relies on the veracity of reports of the maternal aunt to the worker with respect to initial protection concerns, the mother’s access visits with the aunt, the maternal aunt’s relationship with her partner and the partner’s discipline of the children. This evidence should have been provided directly and in more detail by the maternal aunt.
37The direct evidence available from the worker establishes a failure of cooperation, access attendance and follow up on the part of the mother. However, it is insufficient to allow the court to find clear ongoing protection concerns on a summary judgment motion. At trial, the society would need to file further and better direct evidence of the protection concerns on which they intend to rely.
38The mother’s evidence raises genuine issues with respect to whether or not a final custody order placing the children with the maternal aunt is in their best interests. She questions the stability of the relationship between the maternal aunt and her partner given their admitted physical altercation at the shelter and history of arguing leading to a temporary separation. She questions their discipline of the children in their home given the partner’s admitted use of corporal punishment in the past and a recent disclosure to her by one of the children.
39The mother also raises the issue of the maternal aunt’s own two children which are no longer in her care. They are in their father’s custody. This undisputed fact is neither explained nor addressed by either the aunt nor the society in their affidavit evidence. There is no mention in the evidence of the maternal aunt’s current parenting time or responsibility (if any) for her own unidentified children. This information is clearly relevant to the society’s position that the maternal aunt should have final custody of these three children. It is a genuine issue for trial.
40The society has not provided any evidence of a kinship assessment of the maternal aunt and her partner. There is no evidence before the court from a kinship worker. Was this assessment completed? Were criminal record checks done on both maternal aunt and her partner? Does her partner have other children or a parenting history? These are basic questions that need to be clearly answered in the evidence before a final custody order is made placing the children with the maternal aunt.
41Moreover, the very recent addition of the maternal aunt’s newborn child to the household in November of 2024 and the impact this has on her relationship with her partner and her ability to care for the children before the court is a genuine issue for trial. It is not addressed by either the society or the aunt in their affidavit evidence.
42The maternal aunt’s affidavit evidence also reports a recent three-week hospitalization. However, no details as to the reason for the hospitalization and how any medical condition could affect her ongoing ability to be the caregiver to her own infant and the three children before the court. There is also no explanation as to who was caring for the four children during the three-week hospitalization. This is a genuine issue for trial.
43The mother’s evidence also raises a genuine issue with respect to what access order for the mother is in the children’s best interests. The mother claims that the children have been spending weekends at her home unsupervised and that she has cared for them in the maternal aunt’s home unsupervised without the knowledge or consent of the society. For her part, the aunt concedes that the mother attends her home unannounced and that she cannot turn her away. This led to a weeklong visit in January of 2025 which ended in a confrontation and police involvement. The confrontation is described differently the maternal aunt and the mother. No police records were proffered in the evidence before the court to assist the court in understanding the incident.
44I find that it is not in the interest of justice for the court to determine this case summarily. I am not able to do so based on the evidence before me. The affidavit evidence is compromised by inadmissible hearsay evidence. Additional evidence of those with direct evidence of relevant events is required. Cross-examination of the witnesses in this case is essential to the court’s determination of the appropriate final dispositional orders for placement and access.
45I find that the society has not established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought and the mother has met her onus of establishing that there are genuine issues requiring a trial as outlined above.
Part Five – Conclusion
46An order will go on the following terms:
a) The society’s motion for summary judgment is dismissed.
b) The Status Review application will return to court for a settlement conference/trial management conference before Justice Sherr on August 27, 2025 at 12:30 pm in person.
Released: May 9, 2025
Signed: Justice D. Szandtner