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 one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (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

Date: March 23, 2018

Court File No.: C10169/17

Ontario Court of Justice

Parties

Between:

Catholic Children's Aid Society of Toronto

Fatima Husain, for the Applicant

Applicant

- and -

C.G. and D.S.

Michelle Meighoo, duty counsel assisting the Respondent C.G. Matthew Price, duty counsel assisting the Respondent D.S. Mary Reilly, on behalf of The Office of the Children's Lawyer for the Child, J.S.

Respondents

Heard: March 22, 2018

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The applicant, the Catholic Children's Aid Society of Toronto (the society) has brought a summary judgment motion seeking a finding that the subject child, J.S., age 13 (the child) is a child in need of protection pursuant to clauses 37(2)(b), (g) and (l) of the Child and Family Services Act (the Act). It sought a disposition that the respondent, D.S. (the father), be granted custody of the child pursuant to subsection 57.1(1) of the Act. It also sought an order that the respondent C.G. (the mother) have access to the child in the discretion of the father, and in consideration of the child's wishes.

[2] The father and the child support the society's motion.

[3] The mother was unrepresented and did not file a responding affidavit to the summary judgment motion. However, it was clear when the court spoke with her that she opposed the motion and wanted to tell the court her version of events.

[4] The society opposed an adjournment of the motion for the mother to file responding material. The father and the child did not take a position on the issue.

[5] The court orally dismissed the society's summary judgment motion as its material was replete with inadmissible evidence. The dismissal was without prejudice to the society's right to bring another summary judgment motion with proper evidence.

[6] The court indicated that it would provide these additional written reasons.

Part Two – Legal Considerations

[7] The society brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.

[8] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue requiring a trial. See: Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ).

[9] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. See: C.R. v. Children's Aid Society, 2013 ONSC 1357.

[10] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out principles for courts to apply in determining motions for summary judgment. The following principles set out in Hryniak are pertinent to this case:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).

b) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).

c) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

[11] Many courts require a trial-worthy standard for the admission of evidence on summary judgment motions. See: C.A.S. v. K.V., 2013 ONSC 7480; Children's Aid Society of Toronto v. C.P., 2017 ONCJ 330; The Children's Aid Society of Ottawa v. J.B. and H.H., 2016 ONSC 2757; CAS v. N.A.-M., 2018 ONSC 978; CAS (Ottawa) v. M.M., 2018 ONSC 786; A.B. v. J.B., 2017 ONCJ 866.

[12] In Children's Aid Society of Ottawa v. B.J., Justice Jennifer McKinnon held on a summary judgment motion that the starting point in addressing the admissibility of hearsay evidence is that it is excluded unless it satisfies the tests of necessity and reliability.

[13] This court set out its reasons for applying a trial-worthy evidentiary standard on summary judgment motions when it wrote in Children's Aid Society of Toronto v. B.B., 2012 ONCJ 646:

[25] My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination.

[14] This evidentiary standard for summary judgment motions was recently strongly endorsed in the Report of the Motherisk Commission, February 2018, The Honourable Judith C. Beaman Commissioner. The Commission made a recommendation that the Family Law Rules be amended to explicitly state that on summary judgment motions the court should only permit evidence that would be admissible at trial, and in particular, to prohibit hearsay evidence that does not meet the common law tests for admissibility (see pages 112, 113).

[15] In Gray v. Gray, 2017 ONSC 5028, Justice Laura Fryer wrote that where a party is self-represented, the court must also be mindful of the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in the decision of Pintea v. Johns, 2017 SCC 23. These principles include the following:

a) Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.

b) Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

c) Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

Part Three – Analysis

[16] The court found that the society's evidence for this summary judgment motion was so seriously flawed that it could have no confidence that the case could be resolved in a just manner through the summary judgment process.

[17] The court also found that the evidentiary violations by the society unjustly hindered the legal interests of the self-represented mother. It was not realistic to expect the mother to be able to meaningfully respond to the volume of inadmissible evidence presented to her by the society and it was unfair of the society to place the mother in that position.

[18] The society filed two affidavits in support of its motion. The first affidavit was from its investigation worker, Shernett Blackwood. Some examples of the inadmissible evidence presented for the truth of its contents in this affidavit are as follows:

a) In paragraph 12, Ms. Blackwood states that she reviewed the referral report of the society's intake screener, who recorded her interview with a police officer, who told her about statements made to him by the child and the child's adult sister (the sister). This was triple hearsay.

b) In paragraph 16, Ms. Blackwood records allegations made to her by the sister about the mother's mental health. The society should have provided direct evidence from the sister.

c) In paragraphs 18 and 38, Ms. Blackwood records allegations made to her by the father about the mother's mental health. The society should have provided an affidavit directly from the father.

d) In paragraph 20, Ms. Blackwood records concerns expressed to her about the mother from her pain management doctor. A medical report should have been provided from the doctor or his business records should have been produced pursuant to section 35 of the Evidence Act.

e) In paragraphs 21, 26, 35 and 39, Ms. Blackwood records concerns expressed to her about the mother in various conversations with the mother's psychiatrist. A medical report should have been provided from the doctor or the doctor's business records should have been produced pursuant to section 35 of the Evidence Act.

f) In paragraph 28, Ms. Blackwood records her conversation with a doctor at the Hospital for Sick Children in Toronto who expressed concerns about the mother. The hospital records should have been provided to the court pursuant to section 35 of the Evidence Act.

g) In paragraph 30, Ms. Blackwood deposes about what another society worker recorded about his discussion with a doctor from the Hospital for Sick Children expressing concerns about the mother. This was double hearsay. The hospital records should have been provided to the court.

h) In paragraph 32, Ms. Blackwood deposes that her supervisor received a call from another doctor at the Hospital for Sick Children, who expressed concerns about the mother. Again, this was double hearsay. The hospital records should have been provided to the court.

[19] The second affidavit was from the society's family service worker, Leah Innes. Some examples of the inadmissible evidence presented for the truth of its contents in this affidavit are as follows:

a) In paragraphs 22, 45, 57 and 63, Ms. Innes deposes about concerns expressed to her about the mother by the mother's psychiatrist. A medical report should have been obtained from the doctor or the doctor's business records should have been produced pursuant to section 35 of the Evidence Act.

b) In paragraphs 30, 31, 43 and 81, Ms. Innes records concerns expressed to her by the child's school principal about the mother and the child's functioning while in the mother's care. An affidavit should have been provided from this witness.

c) In paragraph 39, Ms. Innes deposes about a case note written by another society worker about a call that the worker received from a police officer who reported concerns about the mother and statements made to him by the child. The child's statements are triple hearsay.

d) In paragraph 46, Ms. Innes records concerns expressed to her about the mother from the child's maternal aunt. In paragraph 47, she reports similar concerns expressed to her from the child's maternal grandmother. Affidavits should have been provided from these witnesses.

e) In paragraph 49, Ms. Innes records information about the mother recorded by another worker, based on statements made to that worker by an employee at St. Joseph's hospital. This was double hearsay. The hospital records should have been produced as business records pursuant to section 35 of the Evidence Act.

f) In paragraph 51, Ms. Innes records allegations made to her about the mother from the sister. An affidavit should have been obtained from the sister.

g) In paragraphs 54, 55 and 58, Ms. Innes deposes about conversations she had with a hospital social worker who expressed concerns about the mother. Either an affidavit from this worker or the hospital records should have been produced.

h) In paragraph 64, Ms. Innes records concerns expressed to her about the mother from the mother's Mental Health Case Manager. An affidavit should have been provided from this witness.

[20] The society provided no evidence that any of these out-of-court statements, proffered in this form, were necessary and had threshold reliability.

[21] After the summary judgment motion was dismissed, the society requested and was given a date to argue a motion for production of the mother's medical records.

[22] It is concerning that the society would proceed to a purported final hearing of this case without having these records. It is fundamental to a child protection case to obtain relevant police, medical and therapeutic records as soon as possible. This ensures that the parties have the necessary information to assess the level of risk to the child. It also clarifies the protection issues and can lead to resolution.

[23] The society workers also set out multiple statements made to them by the child. It was apparent that many of the statements were proffered for the truth of their contents. The society submitted that the statements should be admitted based on the principled hearsay exception of necessity and reliability. See: R. v. Khan, [1990] 2 S.C.R. 531.

[24] The problem was that the society just assumed the statements would be admitted. It did not lead evidence to establish that the statements were necessary and achieved threshold reliability. The child is now 13 years old. Necessity is not a foregone conclusion. Evidence needs to be introduced to satisfy this prerequisite.

[25] The society submitted that because the child made statements to the society workers, the requirement of threshold reliability was met. This is a serious misperception of the law. Much more evidence is required to establish threshold reliability for the admission of an out-of-court statement for the truth of its contents. For instance, evidence should be lead about:

a) The experience of the workers.

b) The training of the workers in interviewing children.

c) The workers' practice in note-taking and whether that practice was followed in the child interviews.

d) Were the statements recorded contemporaneously?

e) Did the workers record their questions that they asked the child?

f) Did the workers ask leading questions?

g) Were the child's statements spontaneous or prompted?

h) Did the child provide detailed and coherent statements?

i) Did the child have any motivation to fabricate the statements?

j) Did the timing of any of the statements arouse suspicion about their validity?

k) Were the child's statements consistent over a period of time?

l) Is there evidence corroborating the child's statements?

m) What is the level of maturity of the child?

n) What is the intelligence and level of understanding of the child?

o) Where was the child interviewed? Was there any reason to believe that the location of the interview influenced the child's statements?

p) Were the visits private? Were any other adults nearby during the interview?

q) What is the nature of the workers' relationship with the child? Is the child open and candid with them?

[26] To establish threshold reliability, the society will have to establish that the child's statements achieve a sufficient level of procedural and substantive reliability. A voir dire will likely be required.

[27] There was admissible evidence in the workers' affidavits. However, the inadmissible evidence was so pervasive and intertwined with the admissible evidence that the court was not confident that the summary judgment process was just.

[28] This concern was compounded by the mother being an unsophisticated self-represented litigant. Very few self-represented litigants have the ability to challenge inadmissible evidence. The society should have been even more vigilant in ensuring that its evidence was presented in a proper form in these circumstances. Instead, it tried to slide through sloppy evidence that it knew or certainly ought to have known wasn't anywhere close to the necessary evidentiary standard required on a summary judgment motion.

[29] This was disappointing. It was unfair to the mother. It was unfair to the child and the father who are hoping for a final and timely disposition and it was unfair to the administration of justice.

Part Four – Representation of the Mother

[30] The court is concerned that the mother is unrepresented. She clearly wishes to contest the society's motion but has little ability to meaningfully respond on her own. She kept stating that she felt that she needed a lawyer to be able to file an affidavit.

[31] The mother advised that she was denied legal aid and her appeal was rejected. Apparently, she received a human rights tribunal settlement last year. The mother says that these funds are now gone.

[32] The court asked the mother's duty counsel to refer her to a lawyer for advice about either bringing an application pursuant to section 7 of the Canadian Charter of Rights and Freedoms for counsel or a motion for the appointment of amicus.

[33] Duty counsel for the mother orally requested the court to appoint amicus. The court denied this request. A request for amicus should be on notice to the Attorney General of Ontario and Legal Aid Ontario who will be required to fund any counsel that is appointed. The mother should also first receive independent legal advice about her options. Amicus is appointed to assist the court. Such an appointment would deprive the mother of having her own counsel, the ability to instruct counsel and her right to solicitor-client privilege (See my comments about amicus in Children's Aid Society of Toronto v. S.A., 2017 ONCJ 553, par. 55).

Part Five – Conclusion

[34] Orders shall go as follows:

a) The society's motion for summary judgment is dismissed, without prejudice to its right to bring another summary judgment motion.

b) Any new summary judgment motion should be scheduled before me.

c) The society has leave to bring a motion for the production of third party records before the case management judge, Justice Carole Curtis, on April 9, 2018 at 10:00 a.m.

d) The mother's oral motion to appoint amicus is dismissed without prejudice to her right to bring this motion on notice to the parties and to the Attorney General of Ontario and Legal Aid Ontario.

e) The mother has leave to bring an application pursuant to section 7 of the Canadian Charter of Rights and Freedoms for counsel and/or a motion for the appointment of amicus before Justice Curtis on May 1, 2018 at 10:00 a.m. A case conference will also be held on that date.

[35] The court thanks duty counsel for their useful assistance to the parents.

Released: March 23, 2018

Justice S.B. Sherr

Footnotes

[1] Not all facts need to be proved to the same standard. Uncontested facts or non-material facts might be established through hearsay evidence. See: Children's Aid Society of Toronto v. O.G. and T.A.L., 2015 ONCJ 125 at para. 52.

[2] This court also noted in paragraph 39 of B.B. that the presentation of relevant historical evidence by the current worker could meet the principled hearsay exception of necessity and reliability. Such evidence may be relevant in so far as it provides a backdrop against which to consider the current situation. The hearsay may be necessary having regard to the number of previous workers and other information sources involved, and difficulties contacting them. Information recorded might be admissible under subsection 50(1) of the Act and/or section 35 of the Evidence Act. The recorded information may be more reliable than direct evidence that might be available from these individuals today.

[3] Many of these indicia were present when the court recently admitted a child's statements to workers in Children's Aid Society of Toronto v. G.S., 2018 ONCJ 124.

[4] The concepts of procedural and substantive reliability are defined in paragraphs 28-32 of R. v. Bradshaw, 2017 SCC 35.

[5] There are many methods to introduce out-of-court statements. The society can establish that the evidence is being introduced for a purpose other than the truth of its contents. Business records can be introduced through section 35 of the Evidence Act and medical records can be introduced through section 52 of the Evidence Act. Evidence can be admitted through the common-law categorical hearsay exceptions (such as the child's state of mind) or through the principled hearsay exception of necessity and threshold reliability.

[6] The society's evidence wasn't even close to the lower evidentiary standard permitted by some courts on summary judgment motions that will permit hearsay evidence pursuant to subrule 16(5). This subrule states that if a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.