L.M. v. Children's Aid Society of the Region of Peel et al.
[Indexed as: M. (L.) v. Children's Aid Society of the Region of Peel]
Ontario Reports Court of Appeal for Ontario Hoy A.C.J.O., Tulloch and Jamal JJ.A. October 25, 2019
149 O.R. (3d) 18 | 2019 ONCA 841
Case Summary
Civil procedure — Summary judgment — Genuine issue for trial — No genuine issue for trial that three children were likely to suffer physical harm and that placing them in extended society care was in their best interests — Highly cautious approach to summary judgment in child protection cases justified by serious interests at stake.
Evidence — Judicial notice — Motion judge taking judicial notice that access order would impair prospects for adoption of children placed in extended society care — Appeal judge correctly ruling that judicial notice was inappropriate, but erring by relying on "common sense" and "informed experience" to come to the same conclusion — Conclusion not justified on the evidence.
Family law — Children — Child welfare — Access — No genuine issue for trial that three children were likely to suffer physical harm and that placing them in extended society care was in their best interests — Children's Aid Society acknowledging that some form of access was in children's best interests — Nature and extent of access remanded to motion court for determination.
Statutes — Interpretation — Summary judgment motion for Crown wardship brought under provincial legislation — Appeal of motion heard after legislation repealed and replaced — New act specifying that proceeding commenced but not concluded under original act to continue as proceeding under new act — Appeal judge erring by applying original act.
Facts
The appellant was the mother of three young children who were involved with various Children's Aid Societies for most of their lives. When her third child was born the respondent apprehended him, after having already apprehended the two older children with supervised access to the appellant. The respondent then successfully moved for summary judgment to have the three children made Crown wards without access. The motion judge found that the appellant's existing relationship with her children did not deliver a significant positive advantage to any of them. He denied the appellant access by taking judicial notice that "many if not most adoptive parents would not want relations with a birth parent" and as such an access order would impair the children's prospects for adoption. On appeal to the Ontario Superior Court the appeal judge noted that the motion and the appeal were argued under the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"), which had since been repealed and replaced by the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 ("CYFSA"). The appeal judge applied the former act and held that the motion judge applied the correct test to determine Crown wardship. The appeal judge acknowledged that judicial notice could not be taken of the fact that an access order would impair the children's prospects for adoption, but reached the same conclusion by relying on "common sense" and "informed experience". The questions for the Court of Appeal were whether the appeal judge erred in upholding the decisions to grant summary judgment for Crown wardship and to deny access.
Decision
Held, the appeal should be allowed in part.
The children were to be placed in extended society care. The appeal judge erred by applying the CFSA rather than the CYFSA, which had come into force by the time the appeal was heard and provided that a proceeding commenced but not concluded under the former act continued as a proceeding under the new act. The judge further erred by concluding that older authorities applying a higher standard for summary judgment in child protection cases were no longer good law. A highly cautious approach to summary judgment in child protection cases continued to be warranted because of the serious interests at stake. The Court of Appeal exercised its jurisdiction to apply the correct legal framework to the evidence to conclude that all three children were in need of protection under the CYFSA. The motion judge's factual findings confirmed that there was no genuine issue requiring a trial that the children were likely to suffer physical harm as a result of the appellant's inability to adequately care for, provide for, supervise, or protect them. The motion judge's findings also established no genuine issue for trial that placing the children in extended society care was in their best interests.
The appellant was allowed access to the children. As with the protection issue, the appeal judge erred on the access issue by applying the CFSA rather than the CYFSA and by applying the wrong standard for summary judgment. The appeal judge also erred by placing an onus on the appellant to justify an access order. Having properly rejected the motion judge's use of judicial notice, the appeal judge erred by finding that an access order would impair the children's adoption prospects as there was no such evidence to support that conclusion. Further, it was an error to rely on "common sense" and "informed experience" to reach that conclusion. Fresh evidence was accepted to conclude that some form of access would be in the children's best interests and the respondent conceded as much. However, the record was insufficient to address the nature or extent of such access, so those issues were remanded to the Ontario Court of Justice.
Authorities Cited
Considered:
- Hryniak v. Mauldin, 2014 SCC 7
- Kawartha-Haliburton Children's Aid Society v. W. (M.), 2019 ONCA 316
- R. v. Find, 2001 SCC 32
Applied:
Other cases referred to:
- Catholic Children's Aid Society Metropolitan Toronto v. M. (C.)
- Children's Aid Society of Toronto v. M. (P.), 2015 ONCA 695
- D. (D.) v. Children's Aid Society of Toronto, 2015 ONCA 903
- New Brunswick (Minister of Health and Community Services) v. G. (J.)
- R. v. Le, 2019 SCC 34
- R. v. Spence, 2005 SCC 71
- R. v. Williams
Statutes Referred To
- Canadian Charter of Rights and Freedoms
- Child and Family Services Act, R.S.O. 1990, c. C.11 [rep.], ss. 37(2)(b), 58, 59(2), (2.1)(a), (b), 70
- Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 [as am.], s. 74(2)(b)(i), (ii), (3)(a), (b), (c), (x), (xi), 101(1)3., 105(5), 121(6), 122
- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a)
Rules and Regulations Referred To
- Transitional Matters, O. Reg. 157/18, s. 11(1)
APPEAL
From the order of Trimble J., [2019] O.J. No. 1411, 2019 ONSC 1566 (S.C.J.), dismissing an appeal from the order of Dunn J. of the Ontario Court of Justice, dated January 30, 2018.
Counsel:
Jessica Gagné, for appellant L.M.
Laura Shaw and Jenna Persaud, for Children's Aid Society of Peel Region.
Ian Ross and Martha Heder, for Office of the Children's Lawyer.
JUDGMENT
The judgment of the court was delivered by
JAMAL J.A.:
I. Introduction
[1] This appeal addresses the use of summary judgment to decide whether children should be placed in "extended society care" (formerly known as "Crown wardship") and whether a birth parent should be given access to children in extended society care under the newly-enacted Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 ("CYFSA"). This court recently addressed some of these issues in Kawartha-Haliburton Children's Aid Society v. W. (M.), 2019 ONCA 316, 432 D.L.R. (4th) 497.
[2] The CYFSA made major changes to the statutory scheme for child protection in 2018 by, amongst other things, significantly expanding the test for access to children in extended society care by focusing on the best interests of the child and respect for the child's views and wishes, and by emphasizing the special considerations that apply to children of Indigenous heritage: Kawartha, at para. 4.
[3] In this case, at first instance, the Ontario Court of Justice granted summary judgment to make the three young children of the appellant L.M. (the "mother" or "appellant") Crown wards without access to her under the former Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"), which was in force at the time. In deciding against access, the motion judge took "judicial notice that many if not most adoptive parents would not want relations with a birth parent, and would not proceed with an adoption if there was an access order".
[4] The Ontario Superior Court affirmed this decision and again applied the CFSA -- though by the time of the appeal hearing the CFSA had been repealed and replaced with the CYFSA. The appeal judge also relied on the Divisional Court's decision in Kawartha-Haliburton Children's Aid Society v. W. (M.), 2018 ONSC 2783 (Div. Ct.), on the approach to summary judgment in child protection matters -- a decision that was later overturned by this court. The appeal judge acknowledged that judicial notice could not be taken of the fact that an access order would impair the children's prospects for adoption, but reached the same conclusion by relying on "common sense" and "informed experience".
[5] For the reasons that follow, I would allow the appeal in part. The appeal judge applied the wrong legal framework by relying on the CFSA and the principles stated in the Divisional Court's decision in Kawartha, rather than the CYFSA and this court's subsequently released decision in Kawartha.
[6] Applying the correct legal framework to the motion judge's undisputed child-protection findings, I conclude that it is still appropriate to place the children in extended society care.
[7] With respect to the access issue, having concluded that the test for judicial notice was not met, it was an error of law for the appeal judge to rely on "common sense" and "informed experience" to conclude that access would necessarily impair the children's adoption prospects. Facts that are not subject to judicial notice should generally be established by direct evidence or admissions.
[8] Moreover, fresh evidence tendered by the Office of the Children's Lawyer ("OCL") suggested that an access order would not, as a general matter, impair the children's adoption prospects. However, it is not necessary to rule on the admissibility of this evidence in view of the concession on appeal of the Children's Aid Society of the Region of Peel ("Peel CAS") that some form of access between the appellant and the children would be in the children's best interests.
[9] I would therefore order that the appellant be provided with access to the children. As the evidence in the record is insufficient for this court to address the nature or extent of that access, I would remand those issues to the Ontario Court of Justice to be determined on an expedited basis.
II. Background Facts
[10] The appellant is the mother of three young children who have been involved with various Children's Aid Societies for most of their lives: R.D., aged nine, who has autism; S.S., aged four; and E.M., aged three.
[11] R.D. was born in April 2010 and was soon apprehended by the Toronto Children's Aid Society ("Toronto CAS"). In December 2011, the Ontario Court of Justice found R.D. to be in need of protection under the CFSA because of a risk of physical harm and sexual molestation. The court found that:
the appellant has limited intellectual abilities and did not know that she was pregnant until her ninth month of pregnancy (thus limiting her prenatal care);
the appellant's doctor had advised that she would need parenting classes and may be unintentionally neglectful of her child; and
R.D.'s father was a convicted sex offender who had abducted, confined and raped a 15-year-old girl with his brother, and posed a high risk for recidivism, especially with children. The appellant also admitted that another former boyfriend was a paedophile and had assaulted children in front of her, but she had not contacted the police.
[12] The court found ample evidence that the appellant posed child protection concerns. For example, during an assessment visit with the Toronto CAS, the appellant dropped a glass bottle of baby food, which broke, and then tried to remove shards of glass in order to salvage R.D.'s lunch. The court found that the appellant "seems blind to protection concerns that are around her, or that she generates by her own behaviour".
[13] In February 2012, the appellant married E.S. Her first child, R.D., was returned to her care and the care of E.S., with E.S. as the principal caregiver, under the supervision of the Toronto CAS.
[14] In February 2014, the family moved to Halton Region, and the Halton Children's Aid Society ("Halton CAS") assumed jurisdiction.
[15] In February 2015, the appellant's second child, S.S., was born.
[16] In November 2015, E.S. died of a sudden heart attack. Following his death, the appellant moved with her two children to her aunt's home in Peel Region.
[17] In December 2015, the Halton CAS obtained a temporary order placing the children, R.D. and S.S., under the Halton CAS's supervision and requiring the appellant to live with her aunt and to not be alone with the children for more than five hours per week. The Peel CAS also became involved in monitoring the children's placement with her aunt.
[18] In April 2016, the appellant accidentally burned S.S. (then about one-year old) on her face while removing a hot tray from the oven with her in a front-facing baby carrier. The appellant did not take S.S. to the doctor for several days, even though her aunt repeatedly urged her to do so. The appellant initially blamed R.D. for causing the burns, but later admitted that it was her fault.
[19] The aunt ultimately asked the appellant and her children to move out by mid-May 2016 because R.D. was disruptive and hard to control. The appellant planned to move in with J.M., with whom she had begun a relationship in early 2016.
[20] Before she did so, the Peel CAS apprehended the children and placed them in its care, with supervised access to the appellant twice per week. The same day, the appellant moved in with J.M. and his three children.
[21] In June 2016, the appellant's third child, E.M. (whose father was E.S.), was born. The Peel CAS apprehended him and placed him in a foster home.
[22] In August 2016, the appellant married J.M., who sometimes accompanied her on access visits with the children.
[23] In May 2017, the Peel CAS served applications to have the three children made Crown wards without access. The Peel CAS's motion for summary judgment was heard in November 2017.
III. Prior Decisions
(1) Ontario Court of Justice
[24] The appellant's position on the summary judgment motion was that her three children should be placed with her and J.M. under supervision. The position of the OCL (which represented only the two eldest children, who were old enough to express preferences) was that the children should be made Crown wards with no access to the appellant but with access to each other.
[25] In January 2018, the motion judge granted summary judgment and made the children Crown wards without access.
[26] The motion judge noted that all three children had been in care for longer than the statutory timelines under s. 70 of the CFSA and could not remain in care any longer: R.D. for over 4 1/2 years, and S.S. and E.M. for almost 1 1/2 years. The only options were to make the children Crown wards or to return them to the appellant, with or without supervision. Almost two more years have passed since the motion judge's decision.
[27] The motion judge found, on consent, that S.S. and E.M. were in need of protection. As the parties disputed whether R.D. was still in need of protection, the court reviewed the evidence as to the appellant's and J.M.'s parenting abilities.
[28] The motion judge relied on the affidavits of five caseworkers who supervised a total of 74 access visits between April 2016 and July 2017 and attended at the appellant's home. The evidence showed that while the appellant had some strengths, there were "recurring themes of absence of caregiving skills".
[29] The motion judge made numerous child-protection findings. He noted that any one of his concerns did not justify removing the children from the appellant and that in other cases such concerns might be addressed. But that was not the case here. In over 17 months of supervised access, there were "no signs of improvement in any of them", but rather a "pattern of neglect and harm by omission":
The appellant could not supervise all three children alone. She required constant support and was often unaware that one child had wandered off. She often placed R.D. in charge of his siblings when she left the room, even though he suffered from attention deficit hyperactivity disorder, oppositional defiant disorder, autism spectrum disorder and a learning disability. CAS workers frequently intervened during access visits to ensure the children's safety. While J.M. helped when he was around, he was not a consistent support and did not get along with R.D.
The appellant did not consistently recognize safety concerns and required constant basic instructions and safety reminders. This was an important -- if not the most important -- concern. There were numerous instances where the children were at risk in the appellant's care, even in supervised settings.
The appellant consistently failed to read, match and respond to her children's needs. Examples included missing feeding cues and becoming frustrated with R.D. when he requested attention.
The appellant's constant struggles with hygiene placed the children at risk of disease. Washing facilities in J.M.'s house were inadequate, as the shower and sink in the bathroom did not work. Despite the counselling of CAS workers, the situation never improved. The appellant could not address her own personal hygiene or teach her children effective hygiene.
The appellant's consistently unsanitary residence posed a health risk for the children. On scheduled visits, the residence was consistently very dirty and unsanitary, with garbage and clutter around the living area; on unscheduled visits, the residence was in a "deplorable state", including instances of "garbage, clutter, filthy carpets, dirt, exposed wires and foul odours", reflecting J.M.'s "poor self-management and self-care skills". Despite repeated warnings, the appellant and J.M. did not clean or make their house safe and it "would be posing a health risk to the children if they lived there".
The appellant sometimes had difficulty putting her children's needs ahead of her own. While she could be attentive to her children, often she was not: she missed access visits because she stayed up too late, took smoke breaks and left supervisors to care for her children, and used visits to talk to the supervisors rather than to her children.
The appellant had limited cognitive ability, with intellectual functioning permanently "in a low range of capacity". Taken alone this was not determinative, as many intellectually challenged individuals can be very effective parents. Unfortunately, however, the appellant was not one of those people, nor was she assisted by another able caregiver.
Because of her limitations, the appellant had never parented alone and had always been assisted by others. Her current spouse J.M. has also had serious parenting issues.
J.M. was not an effective co-parent. He missed many access visits with the appellant, and when he did attend, he was often disengaged. He also did not have a good history of parenting his other children. The Peel CAS had an open file on his 13-year-old son, who had missed large amounts of school without good reason, read well below his grade level, wore dirty clothes and had poor personal hygiene and whose asthma was aggravated by the poor sanitary condition of J.M.'s house. The motion judge found that J.M. "cannot be trusted" to facilitate learning by the appellant's three children and that they would not be safe in the appellant's and J.M.'s care.
The appellant was sometimes dishonest. Examples included when she burned S.S. (initially blaming her son) and refused to take her for medical treatment for several days, and when she prevaricated about her smoking and household cleaning. The motion judge found that "[t]ruthfulness of a parent is very important when s/he is under a supervision Order. If the parent cannot be trusted to tell the truth, any child in that parent's care is at risk".
[30] The motion judge also concluded that there was no triable issue as to whether the appellant should be provided with access to the children. He noted that s. 59(2) and (2.1) of the CFSA provided that a court shall not make an access order under s. 58 with respect to a Crown ward unless the court is satisfied that the relationship between the person and the child is beneficial and meaningful to the child (s. 59(2), (2.1)(a)), and that access will not impair the child's future opportunities for adoption (s. 59(2), (2.1)(b)).
[31] The motion judge found that the appellant's existing relationship with her children did not deliver a significant positive advantage to any child, and that "it was the obligation of [the appellant] to establish that there should be an access Order, and she did not do so". He also found that while there were no prospective adoptive parents at present, the court could "take judicial notice that many if not most adoptive parents would not want relations with a birth parent, and would not proceed with an adoption if there was an access order". He therefore refused the appellant access because she had not proved that the children's prospects for adoption would not be impaired by access.
[32] The motion judge therefore granted summary judgment and made the children Crown wards without access. He noted that he was not asked to decide sibling access after ordering Crown wardship and did not do so.
(2) Appeal to the Ontario Superior Court of Justice
[33] The appeal was argued in December 2018 and dismissed in March 2019. The appeal judge noted that both the original motion and the appeal were argued under the CFSA, which was in force when the motion judge's decision was released. The appeal judge noted that nobody had argued that the CYFSA, which was in force as of April 30, 2018, applied to the appeal. He then proceeded to apply the CFSA.
[34] The appeal judge held that the motion judge applied the correct test to determine Crown wardship by way of summary judgment, as set out in the Divisional Court's decision in Kawartha. The appeal judge found that Hryniak v. Mauldin, 2014 SCC 7, had made summary judgment more available in all areas of the law, including child protection. Like the Divisional Court in Kawartha, the appeal judge concluded that the pre-Hryniak authorities applying a higher standard for summary judgment in child protection cases were no longer good law.
[35] The appeal judge noted that, by virtue of s. 59(2.1) of the CFSA, the appellant bore the burden of proof to obtain post-Crown wardship access: to show on a balance of probabilities that she and the children have a beneficial relationship and that a continued relationship with her would not interfere with their adoption.
[36] The appeal judge also held that the motion judge did not err in finding that most adoptive parents would not proceed with an adoption if the birth parents have an access order. The appeal judge noted that there was some evidence to support this observation, and that it was "common sense" and reflected "the informed experience of courts dealing with adoption matters".
(3) The appellant has had ongoing access to the children
[37] Since January 2018, when the order for Crown wardship without access was made, the appellant has had weekly access visits with the children at the offices of the Peel CAS with its consent.
[38] On April 29, 2019, this court issued a consent order allowing the appellant to continue these weekly access visits pending the disposition of this appeal.
IV. Issues on Appeal
[39] The appellant raised seven issues, but they reduce to two core questions:
(1) Did the appeal judge err in upholding the motion judge's decision to grant summary judgment to make the children Crown wards?
(2) Did the appeal judge err in upholding the decision to deny the appellant access to the children?
V. Analysis
(1) Did the appeal judge err in upholding the motion judge's decision to grant summary judgment to make the children Crown wards?
(a) The CYFSA -- not the CFSA -- applied to the appeal
[40] Like the motion judge, the appeal judge determined the issue of Crown wardship by applying the CFSA rather than the CYFSA, and applied the Divisional Court's decision in Kawartha regarding the principles of summary judgment in child protection matters. In my view, the appeal judge erred in law in both respects.
[41] First, the appeal court erred by applying the CFSA rather than the CYFSA.
[42] The appeal was heard on December 10, 2018, but the CYFSA had come into force and replaced the CFSA on April 30, 2018. A transitional regulation, O. Reg. 157/18, which came into force the same day, provides at s. 11(1) that "[a] proceeding commenced under Part III of the old Act but not concluded before the day this section comes into force is continued as a proceeding commenced under Part V of the Act".
[43] This court in Kawartha recently interpreted this transitional regulation and applied the CYFSA to an appeal where the proceeding had been commenced under the CFSA. This court concluded that the Divisional Court erred in applying the CFSA where its decision was released a week after the CYFSA came into force: paras. 5, 42. This court held that "a proceeding" is not "concluded" until a decision is rendered, including any appeals: at para. 41. This conclusion was supported by the plain wording of the transitional regulation, the paramount purpose of the Act to promote children's best interests, and the need to permit all children to benefit from what the legislature had clearly decided was a preferable approach: at para. 38.
[44] Similarly, here, the CYFSA rather than the CFSA applied to the appeal. The appeal was heard several months after the CYFSA came into force and the CFSA had been repealed. While the proceeding had been commenced under the CFSA, it had not concluded before April 30, 2018 -- hence the CYFSA applied.
(b) Summary judgment principles in child protection matters: the Kawartha decision
[45] Second, the appeal judge erred by applying the Divisional Court's decision in Kawartha regarding the principles of summary judgment in child protection matters. In fairness to the appeal judge, the Divisional Court's decision in Kawartha had not yet been overturned at the time he made his decision. Nonetheless, this court has since overturned the Divisional Court's decision.
[46] This court held that "[t]he Divisional Court ignored Hryniak's direction that no genuine issue requiring a trial will exist only 'when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment'": Kawartha, at para. 63.
[47] This court also concluded that the Divisional Court erred in stating that pre-Hryniak cases in the child protection context set the bar for summary judgment too high and were therefore not good law after Hryniak. This court stated that both before and after Hryniak, the approach to summary judgment in the child protection context "was and remains highly cautionary": at para. 74.
[48] A highly cautious approach to summary judgment in child protection cases is warranted because of the serious interests at stake. As the Supreme Court has recognized, "[t]he interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have a more profound effect on the lives of both parent and child": New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 76. In child protection cases the Canadian Charter of Rights and Freedoms rights to personal security of both parents and children are often engaged, many of whom are vulnerable litigants disproportionately afflicted by poverty and other forms of marginalization: Kawartha, at paras. 63-69. Caution in this context "promotes Hryniak's principle of reaching a fair and just determination on the merits": Kawartha, at para. 76.
[49] This court in Kawartha, at para. 80, summarized the approach to summary judgment in child protection proceedings as follows:
Hryniak'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 caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although, r. 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.
The 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.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
[50] Kawartha clearly recognized that summary judgment may be appropriate in the child protection context. Respectfully, I therefore do not agree with the Manitoba Court of Appeal's recent comment that, "[i]mplicit in Kawartha-Haliburton is the view, expressed as a caution, that even with a proper initial assessment, the summary judgment process cannot ensure a fair and just determination in a prompt and proportionate manner": Dakota Ojibway Child and Family Services v. H. (M.B.), 2019 MBCA 91, at para. 146. Instead, the cautious approach enunciated in Kawartha neither precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context.
[51] In my view, both provinces' appellate courts agree that, as the Manitoba court also stated in that case, "[w]hile summary judgment is available for child protection proceedings, it is not appropriate in all cases": para. 155. Thus, in some child protection cases, summary judgment can ensure a fair and just determination in a prompt and proportionate manner, while in other cases it cannot do so. Each case must be decided based on the issues and evidence presented. As noted in Hryniak, at para. 59: "[w]hat is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure".
[52] Moreover, the summary judgment test applied in child protection cases remains the same as in other cases. As set out in Hryniak, at para. 49, "[t]here 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". But the test must still be applied in context and sensitive to the particularly high stakes and Charter rights of parents and children implicated in child protection cases.
(c) Should this court apply the correct legal framework to the uncontested factual findings?
[53] The appeal judge thus erred in law by applying the CFSA rather than the CYFSA, and by applying the Divisional Court's decision in Kawartha. The next question is whether this court should remand the matter to the Ontario Court of Justice to apply the correct legal framework to the uncontested factual findings, or whether this court should itself do so. The OCL urged this court to apply the correct legal framework, submitting that the legal errors "do not alter the clear conclusion that the only order in the children's best interests is for them to remain in the Society's extended care". I agree.
[54] This court has jurisdiction to apply the correct legal framework to the evidence. Section 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, 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".
[55] In my view, this court should exercise this jurisdiction here because (1) the motion judge's factual findings relevant to this appeal are uncontested and this court is therefore able to apply the proper legal framework to them; and (2) these proceedings were commenced more than two years ago and the children have been in interim society care well beyond the statutory time limits under s. 122 of the CYFSA, making it especially important to give the children certainty as to their status as soon as reasonably possible: see Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 18 O.R. (3d) 160, [1994] 2 S.C.R. 165, at p. 206 S.C.R.
(d) Applying the test for extended society care under the CYFSA
[56] I turn, then, to the test for whether the children should be placed in extended society care under the CYFSA. This involves two broad inquiries: (1) whether the child is "in need of protection"; and (2) whether placement of the child in extended society care is "in the child's best interests" and the court is "satisfied that intervention through a court order is necessary to protect the child in the future": CYFSA, s. 101(1)3.
[57] The court determines whether a child is "in need of protection" by applying the criteria in s. 74(2), which include, for example, the risk that a child is likely to suffer physical harm from a parent's failure or pattern of neglect to adequately care for, provide for, supervise or protect the child (s. 74(2)(b)(i) and (ii)).
[58] The court determines whether the order for extended society care is in the "child's best interests" by applying the criteria in s. 74(3) of the CYFSA, which include, for example, the child's views and wishes (s. 74(3)(a)), the importance of preserving the child's cultural identity and connection to the community in the case of a First Nations, Inuk, or Métis child (s. 74(3)(b)), and other relevant circumstances of the case (s. 74(3)(c)), including the risk of harm to the child if the child is returned to or allowed to remain in the care of a parent (s. 74(3)(c)(x)) and the degree of risk that justified the finding that the child is in need of protection (s. 74(3)(c)(xi)).
[59] In this case, the motion judge noted that the parties accepted that S.S. and E.M. were in need of protection under the CFSA. The court also found all three children to be in need of protection because of a risk that they would likely suffer physical harm (CFSA, s. 37(2)(b)). Those conclusions are owed deference by this court: D. (D.) v. Children's Aid Society of Toronto, 2015 ONCA 903, 344 O.A.C. 89, at paras. 29-30, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 61. On appeal to this court, those findings would apply equally under s. 74(2)(b)(i) and (ii) of the CYFSA.
[60] In any event, in my view, the motion judge's factual findings summarized at para. 29 above confirm that there is no genuine issue requiring a trial that all three children are likely to suffer physical harm as a result of the appellant's inability to adequately care for, provide for, supervise, or protect them.
[61] I therefore conclude that all three children are "in need of protection" within the meaning of s. 74(2) of the CYFSA.
[62] This leaves the question of whether placing the children in extended society care is in the best interests of the children. I agree with the submissions of the Peel CAS and the OCL that, in view of the unchallenged factual findings of the motion judge, there is a substantial risk of harm to the children if they are returned to the appellant, even with J.M.'s assistance as a co-parent.
[63] The appellant nevertheless contends that some of the motion judge's language regarding J.M.'s suitability as a co-parent is not definitive, suggesting that the matter should have been left for trial. The appellant highlights the motion judge's statement that he was "not as confident" as the appellant as to J.M.'s parenting ability, that the affidavit evidence had only raised "serious doubts" about how the children might fare under his care, and that the motion judge was only "apprehensive" about the possibility of J.M. co-parenting.
[64] I acknowledge that the motion judge's language was slightly more tentative in these instances. Elsewhere, however, he did not mince words. He found that J.M. "cannot be trusted" to facilitate the children's learning and that J.M.'s ability to co-parent "was not a triable issue" because the children would not be safe if left under his supervision.
[65] In my view, when the correct legislation and summary judgment test are applied to the factual findings and with the requisite caution in the child protection context, there is no genuine issue requiring a trial as to whether J.M. would be an effective or safe co-parent for the children.
[66] For these reasons, I agree with the OCL and the Peel CAS that the children should be placed in extended society care pursuant to the CYFSA.
(2) Did the appeal judge err in upholding the decision to deny the appellant access to the children?
[67] The second issue is whether the appeal judge erred in denying the appellant access to the children once they were made Crown wards.
[68] As with the decision to make the children Crown wards, the appeal judge applied the CFSA rather than the CYFSA, and applied the Divisional Court's decision in Kawartha. The appeal judge concluded that the appellant did not meet her onus to establish that there should be an access order. He also concluded that the motion judge was entitled to assume that the children's prospects for adoption would be impaired with an access order in place, even if the test for judicial notice of this fact could not be met, as this was "common sense" and reflected "the informed experience of courts dealing with adoption matters". In my view, the appeal judge erred in four respects.
(a) The appeal judge applied the wrong legislation
[69] First, the appeal judge applied the wrong legislation. As already noted, he should have applied the CYFSA rather than the CFSA to the access issue.
[70] As this court explained in Kawartha, at paras. 44-61, the CYFSA significantly changed the considerations for access to children in extended society care:
Under the old CFSA, the test for access to a Crown ward was strict (s. 59(2.1)). The onus was on the person seeking access (usually the parent) to establish that the relationship was meaningful and beneficial. There was a presumption against access and opportunities for adoption were prioritized over other considerations.
Under the new CYFSA, the best interests of the child now govern the analysis, which includes consideration of the child's views and wishes. Under s. 105(5) of the CYFSA, the court shall not make an access order unless it is satisfied that it is in the best interests of the child, having regard to comprehensive factors identified in s. 74(3). Thus, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in the child's best interests.
(b) The appeal judge applied the wrong principles for summary judgment in child protection matters
[71] Second, the appeal judge erred in law by determining the access issue on summary judgment by applying the Divisional Court's decision in Kawartha. This error has already been addressed above.
(c) The appeal judge erred by placing an onus on the appellant to justify an access order
[72] Third, the appeal judge erred in law by placing an onus on the appellant to establish that there was a genuine issue requiring a trial as to whether there should be an access order. This court in Kawartha clarified that the burden of proof remains on the Society as the moving party for summary judgment. Even if the appellant's evidence did 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": at para. 80.
(d) The appeal judge erred by finding that an access order would necessarily impair the children's future prospects for adoption
[73] Finally, the appeal judge erred in finding as a fact that an access order would necessarily impair these children's future prospects for adoption.
[74] The appeal judge began by correctly noting that the test in R. v. Find, 2001 SCC 32, for taking judicial notice of this fact was not met. As stated in Find, at para. 48: "[j]udicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute." The threshold is "strict". "[A] court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy."
[75] The supposed "fact" that many if not most potential adoptive parents are less inclined to adopt if the birth parents have access to a child in extended society care cannot meet the test for judicial notice. This "fact" is not notorious or generally accepted, nor capable of immediate demonstration. As will be seen, it also may well be wrong.
[76] Having accepted judicial notice could not be taken of this fact, the appeal judge found that this factual finding was still justified because (1) there was evidence before the motion judge that access would undermine the prospects for adoption; and (2) courts have set out several reasons based on "common sense" and "informed experience" as to why adoptive parents would be less likely to adopt if birth parents have access. In my view, the appeal judge erred on both points.
[77] First, the evidence on the motion did not suggest that access would undermine the prospects for the adoption of these particular children. It merely suggested that one of the key factors in determining whether post-adoption face-to-face contact is appropriate is whether the birth parent will undermine the adoptive placement. In this case, there was no evidence that the appellant would undermine an adoptive placement and, to the contrary, she had good relations with the children's foster parents and the Peel CAS personnel. Even if face-to-face access were inappropriate -- and I make no such determination -- the court must still consider all forms of access, ranging from regular face-to-face access to an exchange of gifts, cards, and letters that may be vetted by the children's caregivers for appropriateness.
[78] Second, given that the appeal judge acknowledged that the test for judicial notice could not be met, it was an error for him to rely solely on "common sense" and "informed experience" to effectively hold that granting a parent access to a child in extended society care would impair the child's adoption prospects. Facts that are not subject to judicial notice should generally be established by direct evidence or admissions: R. v. Spence, 2005 SCC 71, at paras. 61-68; R. v. Williams, at p. 1155-56 S.C.R.; and R. v. Le, 2019 SCC 34, at paras. 83-85. In the present context, "common sense" and "informed experience" alone cannot meet the statutory evidential burden in s. 105(5) of the CYFSA regarding the best interests of the particular children to whom access is sought.
[79] The appeal judge was also not entitled to rely on findings made in other cases, such as the potential for having to deal with difficult birth parents and the deterrent effect an access order might have on some adoptive parents. Each case must be decided on its own facts, not based on findings made in other cases.
[80] Thus, in my view, the appeal judge erred in finding that an access order was inappropriate in this case.
[81] Given this conclusion, it is not necessary to address the proposed fresh evidence of the OCL in the form of the affidavits of the Executive Director of the Adoption Council of Ontario and an associate professor of law and social work at the University of Toronto. These affidavits emphasized the potentially significant benefits to children of access orders and how such orders do not impair the prospects for adoption.
(e) Should this court decide the issue of access?
[82] Having decided that the appeal judge erred in ordering no access, the question becomes whether this court should decide the issue afresh. As noted, under s. 105(5) of the CYFSA, the best interests of the child govern the analysis.
[83] The OCL moved to adduce fresh evidence on appeal addressing the children's preferences about ongoing contact with their mother. This consisted of the affidavit of Ms. Tina Hinsperger, a clinical agent for the OCL, who met with the children three times between April and July 2019, including at an access visit between the children and their mother. She noted that:
R.D. expressed his love for his mother and was "clear in his views and preferences that he wanted to continue to have access with his mother";
it was not possible to ascertain S.S.'s views given her young age;
at the end of one visit, E.M. (who was not represented by the OCL) "opened his arms wide and gave his mother a big hug and a kiss. He also kissed his brother and sister goodbye"; and
R.D. and S.S. then "left the building holding their mother's hands while walking towards the foster mother's vehicle".
[84] Section 121(6) of the CYFSA provides that the court may receive further evidence relating to events after the appealed decision. This court has ruled that such fresh evidence should be admitted in a child protection proceeding if it (a) could not have been adduced before; (b) is highly relevant in that it provides the court with an accurate picture of the situation at hand; (c) is potentially decisive to the child's best interests; (d) is credible; (e) is uncontroverted; and (f) updates evidence submitted between the time of the prior hearings and the appeal. A flexible approach should be taken, given the need for accurate and up-to-date information concerning the child's best interests: see Children's Aid Society of Toronto v. M. (P.), 2015 ONCA 695, 71 R.F.L. (7th) 44, at paras. 22-23.
[85] In my view, Ms. Hinsperger's affidavit meets the test for admitting further evidence on appeal pursuant to s. 121(6) of the CYFSA. Ms. Hinsperger's affidavit relates to recent visits between the appellant and the children and evinces R.D.'s preference for ongoing access. This evidence is admissible under the flexible approach to admitting fresh evidence in child protection cases because it could not have been adduced before; it is highly relevant in that it provides the court with an accurate picture of the situation at hand; it is potentially decisive to the child's best interests; it is credible and uncontroverted; and it updates evidence submitted between the time of the prior hearings and the appeal.
[86] Ms. Hinsperger's evidence suggests that some form of access would be in the children's best interests. This is at least R.D.'s preference. All the children appear to have strong emotional ties to the appellant.
[87] On appeal, the Peel CAS also conceded that an access order would be appropriate as being in the children's best interests.
[88] I would therefore order that the appellant have access to the children. I have, however, concluded that the evidence in the record is insufficient for this court to address the nature or extent of that access, and would remand those issues to the Ontario Court of Justice to be determined on an expedited basis. At the same time, I would strongly encourage the parties to agree to the terms of the appellant's access without further litigation.
[89] It appears that sibling access was requested on summary judgment. If it is still the position of the OCL that sibling access is appropriate, then this should be addressed at any future access hearing or by agreement.
VI. Costs
[90] The Peel CAS did not seek costs, but the appellant did.
[91] The appellant was provided with state-funded counsel for her appeal to the appeal judge by order of the Ontario Superior Court: Children's Aid Society of the Region of Peel v. M. (L.), 2018 ONSC 3633, 11 R.F.L. (8th) 143 (S.C.J.). The Peel CAS opposed the state-funding request, and costs were awarded against it: Children's Aid Society of the Region of Peel v. M. (L.), 2018 ONSC 7170 (S.C.J.). The Peel CAS has been granted leave to appeal the costs order to the Divisional Court.
[92] The appellant has achieved some success on the appeal. She was entirely successful on the appeal of the access order and partially successful on several points of law as to the Crown wardship determination that the Peel CAS did not concede. Considering all the circumstances, including the substantial assistance that Ms. Gagné's submissions provided to this court, I would award the appellant costs payable by the Peel CAS fixed at $10,000, inclusive of applicable taxes and disbursements.
VII. Disposition
[93] For these reasons, I would allow the appeal in part. I would confirm the order for extended society care, grant the appellant access to the children, but remand the issues of the nature and extent of that access to the Ontario Court of Justice to be determined on an expedited basis, with costs to the appellant payable by the Peel CAS fixed at $10,000 (inclusive of applicable taxes and disbursements). Pending further order of the Ontario Court of Justice or on consent of the parties, I would also continue this court's order providing the appellant with weekly supervised access visits to the children at the offices of the Peel CAS.
Appeal allowed in part.
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