WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (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.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.

Court Information

Sudbury Court File No.: C-546-13

Date: 2015-11-19

Ontario Court of Justice

In the Matter of the Child and Family Services Act

Parties

Between:

The Children's Aid Society of the Districts of Sudbury and Manitoulin

Patricia Marcuccio, for the applicant

— And —

C.G.

George Florentis, for the respondent mother, and

D.S.

for the respondent father

Heard: August 17, 2015 and September 29, 2015

Reasons for Order on Motion for Summary Judgment

Kukurin J.

Introduction

[1] The society has brought a motion (at Tab 17) for summary judgment on the claims in its twice amended child protection application (at Tab 8). That application requests findings that the child A.G. is a child in need of protection, and seeks an order for crown wardship with no access.

[2] This motion is dismissed.

[3] This motion raises a number of important issues not the least of which is the right of a parent to choose a permanent caregiver and custodian for his or her child, and whether that right is subservient to the statutory rights of a Children's Aid Society to make that determination. To appreciate the issues, some review of the factual background is necessary.

Background

[4] A.G. was born in Sudbury. She will shortly be a year old. She was the fourth child of her mother. The first child was the result of her union with a former partner. The second and third were sired by A.G.'s father, who is a respondent named in this proceeding. There was a child protection proceeding already commenced for these three older children when A.G. was born. All three were found to be in need of protection. Custody of the oldest (age 6) was awarded to his maternal grandmother pursuant to s.57.1 of the Child and Family Services Act (CFSA). Custody of the other two (ages 3 and 2) was awarded to their paternal grandmother pursuant to s.57.1 of the CFSA. The society learned of A.G.'s birth as a result of a call from nursing staff at the hospital where she was born. The society attended at the hospital the next day and apprehended the child without a warrant.

[5] There was a considerable amount of evidence filed by the society in the child protection proceedings involving the three older children as to why they were in need of protection, and why they could not be parented by the mother and father. Much of this same evidence was imported into the case involving A.G.. The motion for summary judgment relies almost exclusively on the same factual information for a finding that A.G. was a child in need of protection.

[6] However, the history of what transpired prior to and at the time of A.G.'s birth is important, in fact, critical, because of the application of the Child and Family Services Act to the facts.

[7] A.G.'s mother and father have, for some time had, and still have, many issues that make them less than adequate custodians and caregivers for their children. It is not necessary to detail these issues in this background review other than to say that they are not unique issues that plague many parents whose children become involved in the child protection system. Perhaps recognizing that reality, particularly with the three older children having been removed from them, these parents took steps to prevent their soon to be born child A.G. from travelling down a similar path. From the evidence of the society, it is a reasonable inference that the parents simply dropped out of circulation during the mother's last trimester. The society did not know where they were, nor did its workers know of A.G.'s expected time of arrival. The mother did deliver A.G. in a hospital. Shortly after the delivery, perhaps only two hours later, the mother left the hospital and did not return. It is unclear whether the father was or was not present at the hospital at the child's birth. He also became an absentee parent after A.G. came into this world.

[8] A.G.'s birthday is […]. This is an important fact in this case.

[9] Present at the birth of A.G., in addition to her mother, was A.G.1, a friend of the mother and father. She and they had met a year previously. On the day of A.G.'s birth, the mother, the father and A.G.1 signed an agreement which purported to grant sole custody of A.G. to A.G.1, and granted access to both parents totally in A.G.1's discretion. The agreement was in writing. It was signed by all three. It was also signed by a witness to their signatures. According to the society's evidence, this transfer of custody arrangement had been made over two months previously and its implementation was awaiting A.G.'s birth.

[10] What exactly prompted hospital personnel to contact the society is not well documented in the evidence. It is not unreasonable to infer that the disappearance of a mother within hours of delivery of her child, combined with another woman claiming to have custodial rights to the newborn by way of a written document, were sufficiently out of the ordinary to create some apprehensiveness in hospital authorities.

[11] The society was contacted by the hospital on […], the day after A.G. was born. This is also an important fact in this case.

[12] The society immediately attended at the hospital. It seems clear that the child was not being discharged but would be remaining in the hospital. The society apprehended the child on […]. It did so without a warrant of apprehension. It did not even attempt to obtain a warrant. A.G. remained in the hospital. A.G.1 remained there and visited with the child. The society was aware of the custody agreement. It checked its internal society records and did some kind of police record check on A.G.1 and continued to allow A.G.1 to visit with the child in the hospital. A day later, on […], 2014, the child was discharged, at which point she was taken by the society and placed in a foster home. She has remained there to date so far as is known, a period now of over eleven months.

[13] The society commenced its child protection application almost immediately thereafter. It relied on abandonment grounds [s.37(2)(i) CFSA] for a finding that A.G. was a child in need of protection. It sought an order for society wardship for six months. Named as respondents were the mother and the father of A.G.. A contemporaneous motion was brought by the society seeking an order for temporary (interim) care and custody in its favour. Within days, both application and motion were before the court. A temporary order for care and custody in favour of the society was made on December 3, 2014 on a "without prejudice" basis. No order was made for any parental access, on the basis that the parents were not seeking access, and/or that parental access was not then an issue. However, A.G.1 was present at that proceeding. Presiding Justice J. Keast made a without prejudice order providing her with some access to the child, apparently over the objections of the society. A.G.1 did exercise access to the child while she remained in hospital, and following this first court appearance at the office of the society.

[14] The mother and father have filed an Answer and Plan of Care. Their plan for A.G. remains unchanged. They propose that A.G. be raised by A.G.1 to whom they have entrusted her care and custody.

[15] The society embarked on a "kin" assessment of A.G.1. The assessor had two visits at her residence, one on December 11, 2014 and the second on January 6, 2015. It is not clear whether the assessment was completed or aborted. What is clear is that the assessment was unfavourable, and the society decided that the child could not be placed with A.G.1.

[16] There is some reference in an endorsement in the case of a "motion" by A.G.1 for an order granting her party status. The reference is that this motion was withdrawn by her. There is no actual formal notice of motion and no evidence in support of such motion contained in the court file. This is unfortunate as "party" status is a very important issue in this case.

[17] The society did bring a motion (at Tab 12) to vary the interim, without prejudice order obtained on the first court date. Specifically, it asked that the provision for access to A.G.1 be deleted. It was successful at a hearing of this motion, which resulted in the order of Justice Humphrey dated May 14, 2015. A.G.1, who had been exercising access to the child up to that point, was precluded from further contact with the child.

[18] In the meantime, the society had amended its child protection application. It added risk of physical harm [sections 37(2)(b), s.37(2)(b)(i) and s.37(2)(b)(ii)] as grounds for a finding, in addition to the ground of abandonment.

[19] Shortly thereafter, it amended its application once again to seek an order for crown wardship with no access. Its plan of care is for A.G. to be adopted. Its grounds have remained the same.

[20] This is the background, albeit in abbreviated form, that created the context for the motion for summary judgment which was the next development in this case. The parents have not responded to this motion by affidavits sworn by themselves. However, their counsel has "filed" an affidavit in which A.G.1 is the deponent. This is ostensibly filed by the parents as their response to the society's evidence on the motion. The society opposes this affidavit being admitted or considered as evidence on this motion. It has been filed within the continuing record at Tab 20. Admissibility of evidence is yet another important issue in this case.

[21] The child is in foster care. Her time in society care is now almost twelve months. The biological parents have not exercised any access, nor had any contact with the child since her birth. They have not sought any. There is no indication of any inter-sibling contact involving A.G.. A.G.1 has relocated her own residence since the "kin assessment" visits, and her more current circumstances are set out in her affidavit (at Tab 20). She remains desirous of having care and custody of A.G. and raising this child, with some indication of her doing so by adoption.

[22] The motion for summary judgment was set for argument on August 17, 2015. Unfortunately, argument took longer than the time allotted. It was adjourned for continuation of submissions on September 29, 2015 when they were completed.

Motion for Summary Judgment

[23] A child protection case has three components: finding in need of protection, disposition, and (almost always) access. These are usually not able to be dealt with very quickly after the society intervenes in a family. As a result, some interim or temporary measures are put in place pending the final determination of these three elements.

[24] The usual route for a child protection application takes it to a hearing which is by way of a trial. However, a formal trial with viva voce evidence is not always necessary. The motion for summary judgment in child protection proceedings has evolved since the early 1990's as a means to avoid or curtail the length of unnecessary formal trials. It is now enshrined in our Family Law Rules (the "Rules") as Rule 16, which has quite recently undergone some significant amendments in terms of how evidence may be judicially treated on summary judgment motions.

[25] The essence of a motion for summary judgment is the judicial determination that there is no issue in the case requiring a trial. Rule 16 sets out what and where the onus lies in such motions, and deals with the nature of evidence on such motions, and what the court's obligations, functions and limitations are on such motions. There is an ever expanding universe of jurisprudence of cases that involve motions for summary judgment, not surprising when one reads about the formal trial process being perceived more and more as a cumbersome, and perhaps outdated, method of resolving litigation.

[26] In the present application, the society has the onus of setting out specific facts showing that there is no genuine issue for trial. The Respondents on the motion have the onus of setting out specific facts showing that there is a genuine issue for trial. It is perhaps trite to say that the onus on each of the parties applies to each of the three elements in the case – finding, disposition and access. I would add parenthetically that where more than one child is involved, the onus applies to all three elements with respect to each child. Fortunately, this case is presented in a separate and distinct application for A.G. (as her siblings were the subjects of a separate application), and this summary judgment motion is restricted to the case involving A.G. only.

[27] The court is required to do certain things contingent on its determination of this seminal determination on the summary judgment motion. The main focus of the summary judgment motion is whether there are issues in the case that require a trial.

Society Intervention

[28] The society has rather sparse information in its evidence as to what happened when it intervened and how it did so. Its evidence does not actually state that the society apprehended A.G. on November 30, 2014, in the sense of physically removing her from where she then was. The society worker who attended at the hospital on November 30, 2014 explained to A.G.1 that the child "was being apprehended by the Society and that she would be detained in the Neonatal Intensive Care Unit (NICU) in the Birthing Unit…" There is no doubt that a society apprehension took place.

[29] That it did so without a warrant to apprehend is not mentioned in the evidence. There is no attempt by the society to justify its warrantless apprehension. It almost seems that apprehension without warrant has become the customary practice of the society and forms a part of its internal policy.

[30] In this case, there was no justification in law to apprehend without first obtaining a warrant. The child was in hospital on November 30th. She was going nowhere. The hospital was intending to keep her a while longer. The mother and father were nowhere in sight. A.G.1 was not demanding to have the child released to her so that she could leave the hospital. There were no exigent circumstances at the time of apprehension.

[31] Warrantless apprehension is permitted under the CFSA, but subject to two pre-conditions. Firstly, the child protection worker must have reasonable and probable grounds to believe that the child being apprehended is a child in need of protection. The second prerequisite for a warrantless apprehension is the belief of the apprehending society worker, again based on reasonable and probable grounds, that there would be substantial risk to the child's health or safety during the time necessary to bring the matter on for hearing, or to obtain a warrant to apprehend from a justice of the peace. Here there was no evidence of any danger to the child's health or safety as she was remaining in the hospital for the time being. Nor was there any evidence of what time was necessary to obtain a warrant. Moreover, on the society's own evidence, it had received information from the nurse at the birthing centre that A.G.1 was present during the delivery and that she had not left the infant since her birth, and that "the hospital had no concerns about A.G.1's ability to parent, since she had been attentive to the infant's needs and was doing all feedings and diaper changes."

[32] Is this a genuine issue in the case that requires a trial? Regrettably not. The jurisprudence does not reflect the absence of a warrant to apprehend as an issue in child protection cases. There appear to be no consequences, much less any sanctions, when children are apprehended in circumstances where a warrant to apprehend should first be obtained but isn't.

The Person Having Charge of the Child

[33] "The person having charge of the child" are words that come directly from the Child and Family Services Act. They are of significance in the definition of a child in need of protection, and in the statutory grounds for such a finding under s.37(2). They are also significant under s.51 which deals with temporary care and custody of a child during the course of the litigation to its final conclusion. These are words of the legislative draughtspersons and should not be minimized and should not be ignored. I would venture to say that among the first judicial determinations in any child protection case should be "who had charge of the child?"

[34] For purposes of a finding that a child is in need of protection, the society must satisfy the court that the child falls within one or more of the definitions of a "child in need of protection" that are set out in s.37(2). In this case, the society initially relied only on "abandonment" in clause (i) of s.37(2) CFSA. However, in its amended applications, it has added risk of physical harm as additional grounds under clause (b) and under subclauses (i) and (ii) of s.37(2)(b).

s.37(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(i) the child has been abandoned, the child's parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child's care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child's care and custody;

[35] The person having charge of the child figures prominently in what I consider the three alternative risks of likely physical harm grounds in subsection 37(2). In the first, the risk is because of harm inflicted by such person. In the second, the risk is as a result of that person's failure to adequately care for, provide for, supervise or protect the child. In the third, the risk is a result of a pattern of neglect on the part of such person to care for, provide for, supervise or protect the child. Fundamentally, what the society must demonstrate is a causal connection between the person having charge and the risk of likely harm resulting from that person's acts or omissions. What is critical is that this ground of risk of physical harm refers to the child with respect to whom the finding is going to relate, not some other child or children. The evidence must tie the person having charge to the specific child who is the subject of the child protection case in which the finding is to be made - in the present case, the child A.G..

[36] In this case, the society insists, at least in its argument on this summary judgment motion, that the person in charge at time of its intervention was the mother and the father. This seems to be somewhat paradoxical. The society says, in the same breath, that the child was abandoned, presumably by these self same biological parents. How these persons can be in charge yet gone from the scene is logically inconsistent. And the evidence of the society itself confirms that they were, in fact, gone. The mother had left the day before. The father may have been there, but only the day before, for a brief period, or perhaps not at all.

[37] More to the point, however, is that there is no evidence that either the mother or the father inflicted or was likely to inflict any physical harm to A.G.. Nor any evidence of any risk of physical harm as a result of failure on their part to do anything for her, unless it is that entrusting her care and custody to A.G.1 was tantamount to such failure on their part. And certainly no evidence of any pattern of neglect by either of them to A.G.. Patterns are necessarily created over a span of time. It is, I suggest, impossible to establish a risk of likely harm under s.37(2)(b)(ii) to a newborn still in hospital. That a risk of harm for any of these reasons might be inferred with respect to any other child or children is irrelevant in the determination of whether A.G. is a child in need of protection on s.37(2)(b) grounds.

[38] As for abandonment, there is a dearth of case law on what abandonment means in the context of s.37(2)(i) of the CFSA. What is undisputed is the parents' action that purported to transfer sole custody of A.G. to A.G.1 on the same day that the child was born, and their documentation of this by a signed, dated and witnessed written agreement. The evidence establishes that A.G.1 did not leave the child, but remained involved pending discharge of the child by the hospital authorities. The society, in its argument on this summary judgment motion, takes the position that this document is not a valid, legal document, that it does not provide lawful custody of the child to A.G.1, and, in fact, is nothing.

[39] Who else could qualify as a person having charge of the child? In this case, there are three possibilities. One is that the hospital or its personnel had charge. This does not help the society in its onus in this motion for judgment in establishing that A.G. was a child in need of protection. It is hardly likely that the hospital would be the root of a risk of physical harm. The second is that no one was the person in charge. This creates a problem as it would effectively foreclose the society from establishing risk of physical harm grounds on any of the alternatives in clause (b) of s.37(2) CFSA. The third is that A.G.1 was the person having charge. This, in fact is the most logical alternative. She had a custody agreement that purportedly gave her sole custody of A.G.. She was physically present at the child's birth, and thereafter remained at the hospital clearly demonstrating a parental and custodial role towards the child in her circumstances.

[40] Is the issue of who qualifies as the person "having charge of the child" a genuine issue that requires a trial? It is, in my view. This issue is central to a finding, without which this case effectively ends. Who had charge is integrally connected to all of the grounds on which the society relies for a finding in this case. Moreover, if a finding is not made, the child must be returned to the person who had charge immediately prior to apprehension. There is clearly a difference of view between the society and the parents (and A.G.1) as to who that would be.

Parties

[41] The Child and Family Services Act is somewhat atypical as a statute in that it contains, in Part III (which deals with child protection), not only substantive provisions but also a fairly comprehensive procedural code. One of the most significant procedural provisions is s.39 which specifies who are parties in child protection proceedings.

S. 39. (1) The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child's parent.

4. Where the child is an Indian or a native person, a representative chosen by the child's band or native community.

[42] A child's "parent" for purposes of who is a party in a child protection case is not restricted to a biological parent. There is, in fact, an expanded definition of who is a "parent" of a child who is the subject of a child protection proceeding. It is found in s.37(1) CFSA.

"parent", when used in reference to a child, means each of,

(a) the child's mother,

(b) an individual described in one of paragraphs 1 to 6 of subsection 8 (1) of the Children's Law Reform Act, unless it is proved on a balance of probabilities that he is not the child's natural father,

(c) the individual having lawful custody of the child,

(d) an individual who, during the twelve months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of his or her family, or has acknowledged parentage of the child and provided for the child's support,

(e) an individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child, and

(f) an individual who has acknowledged parentage of the child in writing under section 12 of the Children's Law Reform Act,

but does not include a foster parent; ("père ou mère")

[43] Child protection applications are almost exclusively commenced by children's aid societies. As the applicant, it is the society that prepares the actual application, attends to service on respondents, and to filings with the court. The society is the party that names the other parties (the respondents) in its application. It is under an obligation to name as parties those individuals or entities who are entitled to party status by statute. Often, determining who this includes is obvious. At times, however, it is not.

[44] In the present case, the society has clearly decided that A.G.1 is not a statutory party in this case. It did not name her as a party respondent. It takes the position at this summary judgment motion, and in fact, throughout this proceeding, that she is not a person entitled statutorily to party status in this case.

[45] Whether A.G.1 should or should not be, or more precisely, is or is not, a party in this case is without any doubt a genuine issue. In fact, it is the pivotal issue.

[46] The society argues that this is an issue that has already been judicially decided in this case. I disagree. While there has been judicial reference to her status as a party, there is no actual order ever made by any of the five, or perhaps six judges, who have presided at court appearances in this case, that A.G.1 is not a party.

[47] The society maintains that Justice R. Humphrey dealt with this specific issue on May 1, 2015 and again on May 14, 2015. This assertion is correct but is not complete. What can be inferred from a review of the entire court file (which does not include only the Continuing Record) is that A.G.1 brought a motion for an order either granting her party status or to have her added as a party respondent in this case. This was apparently done with a lawyer, Mr. George Fournier. When precisely this motion was brought is unknown as neither the notice of motion, nor any affidavit in support is anywhere within the court file. Nor is any indication of this motion or of any evidence in support mentioned in the Cumulative Table of Contents of the Continuing Record. What can be reasonably inferred is that this motion was presented to the court sometime between December 3, 2014 and May 1, 2015.

[48] On May 1, 2015, endorsement of the presiding judge provides:

"The motion brought by the moving party A.G.1 is withdrawn on consent. No motion for party status shall be brought by Ms. A.G.1 in this proceeding without leave of the court. The motion brought by the society to terminate Ms. A.G.1's interim access to the child shall be heard on May 14/2015 at 2 pm premptory (sic)"

[49] This endorsement is followed by a "Note" which provides:

"Note: Mr Florentis acts for both respondents. He may have a conflict depending on the position taken by the parents regarding Ms. A.G.1's being continued as a care giver as part of their plan. Ms. A.G.1 has no party status to argue for access and any such argument would have to be made through the Respondent parents"

[50] The formal order based on the foregoing judicial endorsement provides in paragraph (1) and (2) thereof

1. The motion for part status brought by the moving party, A.G.1, is withdrawn on consent.

2. No further motion for party status shall be brought by Ms. A.G.1 in this proceeding without leave of the Court.

[51] What seems to be incontestable from the foregoing is that on May 1, 2015,

• no motion for party status was actually heard by the court,
• no order dismissing a claim for party status was made by the court,
• no reasons were provided by the court with respect to any judicial decision on the issue of party status of A.G.1.

[52] The society also argues that the question of party status of A.G.1 was also dealt with conclusively by Justice R. Humphrey who presided on May 14, 2015 on the hearing of the society's motion (at Tab 12) to terminate the provision for A.G.1's interim access. There are two references to her party status, one in the transcript of what transpired that day, and the other in the written endorsement of Justice Humphrey.

[53] In the transcript (at Page 7, line 30) there is a passage that refers back to May 1st:

"On the last occasion this matter was before the court the court was very clear in saying that A.G.1 was not a party to the proceeding in law, and her application to become a party was withdrawn on consent."

[54] In the written endorsement of Justice Humphrey dated May 14, 2015, which dealt with the society's motion to terminate A.G.1's interim access, is the following:

"Ms. A.G.1 is not a party to this proceeding and does not qualify as such, under the provisions of the Child and Family Services Act. She is not related to the child or to the respondents."

[55] While both of these passages may indicate Justice Humphrey's feelings about the status of A.G.1 as a party in this proceeding, they are not judicial decisions on this issue. Her party status, or lack of party status, is not enshrined in any formal order, is not able to be appealed, and remains an issue in this case. The fact that Justice Humphrey ordered that any further claim by A.G.1 for party status, following her withdrawal of her motion, could be brought only with leave of the court, suggests that this is still an issue that could be one requiring the court's consideration and decision. It remains, in the submissions made on behalf of the parents on this summary judgment motion, a live issue that requires a trial.

Transfer of Custody by Agreement

[56] The society remains adamant that the document entitled "Child Custody Agreement" is not a valid, legal document, and that it did not, and does not transfer custody of A.G. from her biological parents to A.G.1. Transfer of custody of a child, in the view of the society, has to go before the court.

[57] The parents disagree. They maintain that the agreement is a valid one and that it did and does transfer sole custody of the child A.G. to A.G.1.

[58] This is not an esoteric issue in this child protection case. Nor is it a frivolous one. The question of whether an agreement between parents of a child and a third person can transfer legal custody of the child of those parents to that third person is important in several respects. Firstly, it is foundational to the definition of "parent" in the CFSA, specifically in s.37(1), clauses (c) and (e) of the definition of "parent" as an individual having "lawful custody" or custody under a "written agreement". Secondly, from a procedural point of view, it impacts on the issue of whether A.G.1 is a statutory "party" in this child protection case pursuant to the provisions in s. 39. Thirdly, and contingent on the determination of the statutory "party" status, it has a significant implication on other issues in this case:

• whether A.G.1 is able to have evidence admitted independently of evidence filed by the mother or father;
• whether A.G.1 is able to obtain disclosure and production from the society, and otherwise participate in this case, or any appeal thereof;
• whether a "kin" assessment is the appropriate assessment to make of a person who is found to be a "parent" of the child in question;
• whether A.G.1 has any entitlement to access and the nature of that entitlement.

[59] To date, there has been no judicial pronouncement on the validity or invalidity of the "Child Custody Agreement" and no determination on whether this agreement had any legal effect in transfer of custody of the child. More importantly, there has been no judicial analysis of the reasoning underlying either alternative, at least none apparent on the record.

[60] While the question of transfer of custodial rights by agreement is a consideration in this particular case, this is a question that could have far reaching implications for child protection in a more general context. Can parents faced with the potential loss of their children to the society, and through the society to strangers, circumvent or avoid this eventuality by voluntarily placing their children in the custody of a caregiver who is able to adequately parent the child? This is a question that has many implications for child protection law in general, and clearly does in the specific circumstances of this case.

Evidentiary Considerations on Summary Judgment Motions

[61] Both the mother and father have an Answer filed in this case and they are represented by the same counsel. They are the only two named party respondents. There is no dispute that they are entitled to file affidavit evidence in response this motion for summary judgment brought by the society.

[62] The society argues that the parents cannot file, and to have admitted into evidence on this motion (for summary judgment), an affidavit that is not sworn by either one or the other of them. More specifically, it argues that they cannot file, as their responding evidence, an affidavit sworn by A.G.1.

[63] One of the reasons relied upon by the society for this position is subrule 16(4.1) of the Family Law Rules. This subrule, it argues, requires the "party responding" to a motion for summary judgment to "set out in an affidavit…" specific facts showing that there is a genuine issue for trial. The only two parties responding in this case are the mother and the father. The society espouses the position that the affidavits responding to the motion must be sworn affidavits of one or the other of them, or both.

[64] The second reason relied upon by the society is because of comments made by Justice Humphrey on May 14, 2015 with respect to admission into evidence of an affidavit on the hearing over which he presided that day. Counsel for the society has provided the court with a transcript of the May 14, 2015 hearing, for which the court is grateful, as this supplements the written endorsement of Justice Humphrey dated the same date. The society argues that Justice Humphrey refused to admit as evidence on the hearing before him on that date, an affidavit sworn by A.G.1. His precise words (Transcript Page 8, Lines 15 – 23):

"THE COURT: I appreciate it might be, but on this motion there's nothing filed. So I'm not in a position to be able to accept the affidavit of A.G.1 which is the affidavit which is intended to be filed today because she is not a party to the proceeding, it would be improper for me to do so. That leaves us, then, with the issue of the argument on access. So would you go ahead, then, please."

[65] Prior to this passage, Justice Humphrey reviewed the "without prejudice" temporary care and custody order made by Justice Keast on Dec 3, 2014. It was this order that included an order, also "without prejudice" for access to the child by A.G.1. In that order, was a provision that provided the following:

"4. Parents affidavits are to be filed by January 2, 2015. And Children's Aid Society's affidavits are to be filed by January 6, 2015."

While it is not totally clear, it may be that this provision was being relied upon to require that affidavit evidence at the hearing on May 14, 2015 was to be limited to affidavits sworn by only the biological parents of the child.

[66] Lest anyone be confused, this present decision relates to the summary judgment motion of the society which was argued before me. These Reasons are to explain why I decided what I decided on this motion only. Part of my decision relates to the evidence on this motion. However, the Society, in its argument on an evidentiary issue in this motion, has relied on an evidentiary ruling made in another motion, and possibly on an endorsement made in yet another motion. Accordingly, while I would not normally revisit an evidentiary ruling made by another judge on a matter before him or her, I cannot avoid doing so in the present circumstances.

Dealing firstly with the society's argument on subrule 16(4.1), I do not read this subrule to impose on a respondent in a motion for summary judgment the limitation of responding only by way of an affidavit of which he or she is the deponent. The wording is:

Rule 16 (4.1) Evidence of responding party.— In response to the affidavit or other evidence served by the party making the motion, the party responding 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. O. Reg. 91/03, s. 5.

The words "in an affidavit…" are not in themselves suggestive of any requirement that the responding party need be the deponent in such affidavit. Moreover, the wording "or other evidence…" is even more generic in its connotation of with what a responding party is not only entitled, but required to respond.

[67] More importantly, to accede to the argument of the society would mean that respondents in a summary judgment motion could not use affidavits sworn by other persons, even though such other persons might be able to provide to the court first hand information about some factual allegation made by the moving party in such motion. If the respondent wanted to contradict any such allegation, and did not have first hand knowledge, he or she would be restricted to filing their own hearsay in response.

[68] Where the summary judgment motion is brought by a Children's Aid Society, as it is here, there is no such restriction on its evidence. It can rely on affidavits sworn by one, two, or ten of its employees, and anyone else, even if not an employee of the society. In this case, it has filed affidavits of two of its workers on this motion. The society's evidentiary playing field is hardly a level one if its argument is to be accepted.

[69] I find the society's reliance on subrule 16(4.1) as a basis for its argument for excluding from the respondents' evidence on this summary judgment motion, the affidavit of A.G.1 sworn August 12, 2015 to be completely unfounded.

[70] The secondary argument of the society appears to be twofold: firstly, that there has already been a previous evidentiary ruling on an affidavit sworn by A.G.1, and this ruling excluded her affidavit from evidence in the hearing, and secondly, that an order was made for "parents affidavits" to be filed and this does not include anyone else's affidavit.

[71] I find both of these arguments to be without merit. No judge is bound by evidentiary rulings made by another judge, unless perhaps, the ruling is made by an appellate judge. Accordingly, I am not bound by whatever Ruling was made on May 14, 2015 by Justice Humphrey.

[72] Dealing with Justice Humphrey's evidentiary ruling, it was made in the course of a hearing before him. That hearing was of a motion brought by the society (at Tab 12, Vol 3) in which the substantive claim was for an order "to strike out clause 3 of the Interim Order of Justice Keast dated December 3, 2014". Clause 3 was the clause that awarded access to A.G.1 on a without prejudice basis. That evidentiary ruling was perfectly within the authority of Justice Humphrey, the judge presiding on the hearing of that motion to make. While I do not agree with his ruling or with his reason given for that ruling, I accept that it was a ruling properly made by him, but it was restricted to the motion he was hearing at the time he made the ruling. It is not a ruling that extends beyond that motion to the present motion for summary judgment that is before me.

[73] In addition, the affidavit tendered to Justice Humphrey is not and could not possibly be the affidavit of A.G.1 tendered on this summary judgment motion before me. The affidavit before me is sworn on August 12, 2015, some three months after the date of the hearing before Justice Humphrey.

[74] There remains the order of Justice Keast that referred to "parents affidavits". I do not interpret this as imposing the restriction that the society may be advocating, namely, that any affidavits being relied upon by the parents must be sworn by them. The context of this order was more to provide a deadline for filing affidavit evidence than to restrict who the affiants could be. In addition, this order was also made with respect to a motion, namely the motion (at Tab 3, Volume 2) brought by the society, in which the substantive claims were for an order for temporary care and custody of the child A.G., and for an order for parental access. Whatever was meant by Justice Keast by way clause 3 of his order dated December 3, 2014 was restricted to the motion that was before him at that time. It could not possibly have been applicable to the motion before Justice Humphrey which was not even filed until March 17, 2015, or to the motion for summary judgment before me that was not filed until July 17, 2015.

[75] If the society contends that the motion for temporary care and custody (at Tab 3) was also before Justice Humphrey on May 14, 2015, I must disagree. A reading of the transcript of the proceeding that day, and of his endorsement that day, and of the formal order dated that day makes it crystal clear that Justice Humphrey did not deal with temporary care and custody. The order for temporary care and custody in existence at present, if at all, is the "without prejudice" order that was made by Justice Keast on December 3, 2015. So far as I can tell from the Continuing Record, the society's motion claim for temporary care and custody originally returnable on December 3, 2014, has never had the "Temporary care and custody hearing" contemplated by the timetable in Rule 33 to be completed within 35 days from commencement of the case, namely by the first week of January, 2015.

[76] In summary, I reject the society's submission that the affidavit of A.G.1 sworn August 12, 2015 should not be admitted as evidence on this motion for summary judgment. It is evidence properly filed by the mother and father, both of whom are proper parties in the motion for summary judgment and in the (amended) child protection application in which this motion has been brought. I have directed the court clerk to include this affidavit in the Continuing Record and to update the Cumulative Table of Contents in the Endorsement Record to reflect it as a filing by the Respondents.

Abandonment (Section 37(2)(i) CFSA)

[77] The society relies on abandonment of the child as a ground for a finding that the child is a child in need of protection. It is quite clear from the evidence, as well as from argument of counsel for the society, that it was an abandonment of the child by the mother and father of the child that forms the factual basis for this ground. Unlike the risk of physical harm grounds in s.37(2)(b), where there is a statutorily required connection between the person having charge of the child and that person's acts or omissions that form the basis for the risk of physical harm grounds, the ground of abandonment in s.37(2)(i) does not statutorily tie the abandonment to any one in particular.

[78] I am unable to conclude that there is no genuine issue for trial with respect to this ground. The argument of the society on this issue is not exactly clear. It may be either

(a) that leaving the child in the hospital in the care and custody of A.G.1 was an abandonment of the child, as A.G.1 was a totally incompetent custodian and caregiver; or

(b) that the "Child Custody Agreement" was a nullity in terms of transferring care and custody, and the child was essentially left with only hospital personnel as her only (lifelong) custodian, a totally unacceptable arrangement tantamount to abandonment.

[79] In the case of the former, there is some evidence that A.G.1 was acting in a competent caregiving manner while the child was still in the hospital, and that her care of the child during the period she was exercising access was, with one alleged exception, fairly satisfactory. That one exception was addressed and explained by her and the jury is still out on whether this was a dereliction of her care of the child, or an acceptable delegation of child care to her sister, a mother of three, temporarily, while she went to the bathroom. In short, this is not an area where the evidence is anywhere close to establishing that A.G.1 was so inappropriate a caregiver that leaving the child with her was in effect abandoning the child.

[80] In the case of the latter, the society has not provided any convincing argument that the "Child Custody Agreement" was a nullity, or that it was invalid, or that it did not do what it purported to do, namely transfer custodial rights from the biological parents to A.G.1. This is an argument for trial, not only as an issue of law, but in this case, with respect to this particular agreement, more an issue of mixed fact and law.

Risk of Physical Harm (Section 37(2)(b) CFSA)

[81] I do not conclude that that a finding under any of the possible alternatives included under s.37(2)(b) CFSA is a foregone conclusion, or that it is plain and obvious that it is bound to successful. I needn't repeat what has already been included under the heading of "Person Having Charge". The society remains adamant in its position that A.G.1 was not that person. If it is wrong, then the bulk of its evidence which is directed at the biological parents as the source of the risk of physical harm is rather academic insofar as a finding under this ground is concerned. That A.G.1 represents the source of a risk of physical harm to the child sufficient for a finding in need of protection is not at all assured on the present evidence, and certainly not on a motion for summary judgment.

[82] In short, with respect to risk of physical harm as a ground for a finding that the child is in need of protection under the CFSA, this will certainly be contingent on a judicial determination of the effect of the Child Custody Agreement, and on the determination of who had charge of the child immediately prior to the society's intervention. I am not prepared to make a finding under this ground by way of summary judgment.

Disposition

[83] The society is seeking by way of disposition, an order for crown wardship of A.G.. Crown wardship is one of several orders that are listed as options under s.57(1) CFSA. I am not able to make such order by way of summary judgment. The most obvious reason is that no order under s.57(1) can be made unless the child is first found to be a child in need of protection under some ground set out under s.37(2) CFSA. I have made no such finding in this summary judgment motion, and am of the view that the issue of a finding is a matter that should proceed to trial.

[84] The second reason is that, even if a finding were to be made, the society has not established that the disposition of crown wardship is inevitable, or a foregone conclusion, or is plain and obvious. The option of temporary society wardship is no longer available, which leaves the only remaining options of crown wardship, or placement with A.G.1, as she is the only other person as a realistic candidate for care and custody of the child in this case. It may be that the ultimate decision on disposition will not see the child raised by A.G.1. I do not see her, on the present evidence, as a model mother. However, it is not necessary that she be one. She, if she is found to be a party, and/or the parents, need to show that she would be an adequate mother. The society's evidence with respect to A.G.1 as an unsuitable caregiver and custodian is not altogether convincing. Its major allegations include the following:

• She is single, has no parental experience, is a student, and struggles financially;
• She has, or had, a home that was unsuitable for a child because of primarily unhygienic conditions, involving child safety, that seemed to be chronic, or at least not remedied;
• She had vague, fluid and unspecific plans for raising the child;
• She exhibited a lack of understanding, and was naïve about the process of adoption;
• She has shown child seeking behaviour with two prior families before the one in this case, presenting plans to care for a young child;
• She, herself, has a history as a youth of parent/teen conflict, of not abiding by rules, of lack of stability, and immaturity in her judgment and life choices;

[85] These allegations raise concerns about A.G.1 as a potential caregiver and custodian for a young child. However, these allegations do not stand unchallenged. The affidavit of A.G.1, filed by the parents, respond to many of these allegations and provide some explanation and background that diminish these concerns. Of some importance is the fact that most of the allegations of the society about A.G.1 are made by one of two society workers whose knowledge of the allegations is either unattributed sources or identified sources, in either case, hearsay statements. At a trial, some, possibly most of the society's evidence underlying these allegations may not be admissible. On this motion for summary judgment, they warrant some judicial discounting.

Access Post Disposition

[86] This is an issue that is premature in this motion for summary judgment. The amended application of the society asks for an order of no access. So also does this motion for summary judgment. The issue of access has been relatively poorly addressed. However, that is not unexpected. Access following a disposition of crown wardship is a very different issue than access following a disposition of placement with a person subject to a supervision order, which is a very different issue again should there be no finding in need of protection and the child placed with the person who had charge prior to society intervention. Until one knows which if these contingencies will materialize, it is understandably difficult to provide submissions and equally difficult to make a judicial decision as to access. It should be noted that the Answer of the mother and father does include a claim for access, presumably by them. There is no claim made by anyone for access in favour of A.G.1. Nor is there any claim made by anyone for sibling access by or to the child A.G.. I decline to make any order by way of summary judgment with respect to access to or by the child A.G. in these circumstances.

Temporal Issues as a Factor in the Summary Judgment Motion

[87] It would be remiss to fail to mention the impact of time in this motion for summary judgment. Time has become a significant factor and in several ways. There have been a number of jurists who have expressed the opinion that time, and more specifically time limits, impact on what decision should be made on summary judgment motions.

[88] "Time" is an enormous factor in child protection law. The governing statute creates time limitations that create pressures specific to this area of the law. This is combined with an almost universally accepted premise that a child needs permanence, and as soon as possible. For the child A.G., she will have timed out as being in continuous care of the society by the end of this month. She will shortly have been in care for an entire year, and presumably in the same foster home placement. No further temporary order is statutorily allowed: her options are crown wardship, or placement with someone other than the society.

[89] The decision to bring a summary judgment motion may be triggered, at least in part, by the age of the case and the pressures to arrive at some finality. It would not be difficult for a summary judgment motion judge to allow himself or herself to be so intent on the age of a case that he or she forgets to delve into its history to find out why it was allowed to get so old. This applies doubly so where no finding was ever made.

[90] What has really changed from the time when this child was apprehended that has given rise to a position that there are no genuine issues that require a trial? Very little on close inspection. Whatever evidence the society had then with respect to the parents remains pretty much what it offers now. The only difference is that in the passage of time, they have not sought or exercised access with A.G.. The fact that an interim order for access in favour of A.G.1 was made on the first court date of this case should not have precluded the bringing of a motion for summary judgment, at least not the motion that was ultimately brought. That motion was first returnable on August 17, 2015, some 8 ½ months after the start of the case. What was so pressing that required the society to spend time and effort in that 8 ½ months in terminating A.G.1's right of access? That could have been done at a hearing of the main issues in the case. Should that delay by the inaction of the society now act to prejudice the Respondents in their plan for the child?

[91] That is not all. There has been no finding in this case that the child is in need of protection. The hearing date for this type of determination is statutorily required to be set by court order if no finding has been made within three months after the start of the case. Although this mandate is placed on the court, some of the reason for non compliance with this statutory imperative must be laid at the feet of the society as the party with carriage of this proceeding.

[92] Finally, the timelines in s.33 of the Family Law Rules that govern a proceeding such as this one provide that a hearing of the child protection case be completed within four months from date of commencement. That would have been by the end of March 2105. In the Sudbury court, hearings are customarily set, not on a fixed date basis, but on a running ready list that can arguably accommodate trials much earlier. No attempt has been made, according to a review of the court record, to attempt to schedule a trial or hearing within the timetable set out in Rule 33.

[93] I have already adverted to the fact that no temporary care and custody hearing as contemplated by Rule 33(1) has ever been held in this case.

[94] In summary, delay does not appear to be so much the result of the Respondent parents who have done very little, if anything, to contribute to such delay. It seems somewhat unfair that they should now be prejudiced by this delay which has prolonged the child's time in care.

[95] From the point of view of the child, except for the generally accepted premise that permanency is desirable as soon as possible, the length of time she has been in her present placement has had no adverse effects on her. According to the society's most recent evidence, she is "a happy, healthy baby and is meeting her developmental milestones". The society's plan is for the child to be adopted by a long term (permanent) caregiver. The plan of the parents is also for the child to be adopted by a long term (permanent) caregiver. Either way, the child is going to be moved from her present environment. Disruption is a factor but it is an inevitable factor in this case. The status quo does not appear to be unsatisfactory, at least from the child's subjective point of view.

Summary

[96] The motion for summary judgment is accordingly dismissed. As mentioned in my opening paragraphs in these Reasons, what this case is all about is important. The reality is that the state is given powers to intrude and intervene in the lives of its families because of the overriding need to protect children in those families who are in need of protection. The state's intervention is circumscribed by statute, and by procedural Rules that set the terms under which that intervention is to be exercised. Judicial oversight forms a significant part of the process, and is meant to ensure, among other things, that the authority granted to the state, is exercised in compliance with the requirements of the statute, and takes place in accordance with the applicable Rules of procedure. I am not convinced that the state in this case has, through the applicant children's Aid Society, satisfied the statutory requirements in the CFSA, to warrant the orders that it is seeking, and in particular, has not satisfied me that there is no genuine issues in this case that require a trial.

[97] There has been no identification findings made in this case pursuant to s.47(2) CFSA. In accordance with requirements of that subsection, I make the following findings: The name of the child is A.G.. She was born on […], 2014. Her religion is unknown. Her native or Indian status is unknown as it is not disclosed in the evidence filed in this case. She was apprehended on […], 2014 at Sudbury.

Released: November 19, 2015

Signed "Justice John Kukurin"