WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

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

87(8) Prohibition re identifying child.

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

87(9) Prohibition re identifying person charged.

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

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

Date: 2018-06-13

Court File No.: CFO-16-14711 A1

BETWEEN:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Applicant

— AND —

T.T.L.

Respondent

— AND —

S.S.

Respondent

Before: Justice Alex Finlayson

Heard on: May 7 and 8, 2018

Reasons for Judgment released on: June 13, 2018

Counsel:

• Chris Andrikakis — counsel for the applicant society
• Evan Chang — counsel for the respondent, T.T.L.
• Colin Tobias — counsel for the respondent, S.S.
• Sarah Clarke — counsel for the Office of the Children's Lawyer, legal representative for the child, C.S.

ALEX FINLAYSON J.:

PART I: NATURE OF THIS MOTION

[1] The Applicant in this proceeding is the Catholic Children's Aid Society of Toronto (the "Society"). The Respondent, T.T.L. is the mother of a 7 year old girl, C.S. The mother has two other children, J.L., who is in the care of a child welfare agency in Montreal, and R.L., who is no longer the subject of this proceeding. J.L and R.L. are C.S.' older, half-brothers.

[2] Until the fall of 2016, the mother resided in the Montreal area. Then she came to Toronto with R.L. and C.S.

[3] The Respondent, S.S., is C.S.' father. He still lives in the Montreal area. He is not a parent of either J.L. or R.L.

[4] On about September 14, 2014, the father was arrested relating to several offences that he had committed against the mother. He spent several months in custody, from October 2014 until June 22, 2015, when he pled guilty to the various charges. I was not given the underlying facts that supported the charges to which the father pled guilty. He spent a further 8 months in jail after the plea. He was released from jail in February 2016. He is subject to a 3 year probation order following his release. His incarceration resulted in the interruption of his relationship with C.S.

[5] Despite the criminal convictions, on June 7, 2016 the Honourable Justice Christiane Alary of the Quebec Superior Court made an order that the father have supervised access to C.S., subject to a review. That access order was never implemented. Rather, in the fall of 2016, only a few months after the Quebec Superior Court made this order, the mother moved to Toronto with R.L. and C.S.

[6] The evidence filed before this Court is that the mother is very fearful of the father. She says that even the prospect of the father having access to C.S. will result in the deterioration of her mental health and her ability to parent.

[7] Soon after her arrival here, on November 15, 2016, the Society launched a Child Protection Application respecting both children, as a result of conflict between the mother and R.L. that occurred at the St. Joseph's Health Center a few days earlier.

[8] Although the case initially concerned both children, on July 10, 2017, Justice Marion Cohen split this proceeding into two separate proceedings. The case concerning R.L. has since resolved. The outstanding protection matter concerns C.S. only.

[9] In its Application, the Society seeks an order that C.S. be placed with her mother for 6 months subject to Society supervision. Initially, the Society sought an order that the father have no access to C.S., unless he first met with Society workers to assess C.S.' safety and well-being. But then, on March 22, 2018, the Society launched this summary judgment motion taking the position that the father should have no access to C.S. The mother and the Office of the Children's Lawyer (the "OCL") support the Society's revised position.

[10] A number of matters resolved, in part on consent and otherwise on an unopposed basis, at the outset of the hearing such that the only remaining issue for the Court to decide is whether to grant summary judgment and make the no access order. That question however raises a number of other issues, including an issue about the impact that an extra-provincial order made pursuant to that other province's custody and access legislation should have in this proceeding, several evidentiary issues, and issues concerning whether the Society and the father have discharged their respective onuses on the summary judgment motion.

[11] For the reasons that follow, the Society's summary judgment motion is dismissed. I find that there are genuine issues requiring a trial respecting the father's access to C.S. Even though I am finding that there are genuine issues requiring a trial, I find that I am also able to make findings of fact according to the summary judgment test. I find it fair and proportionate to do so. I am also exercising the powers set out in Rule 16(9) of the Family Law Rules, O. Reg. 114/99 as amended to give directions concerning the access trial. I direct the parties to attend before me for a Trial Management Conference to organize the trial.

PART II: THE CIRCUMSTANCES THAT PRECIPITATED THE SOCIETY'S INVOLVEMENT

[12] As set out above, shortly after the Quebec Superior Court rendered an Order granting the father supervised access to C.S., the mother left Quebec and came to Toronto with the children. But it was her difficulty parenting R.L. once here that triggered the Society's initial involvement with this family, not her history with the father.

[13] The Society became involved with the family in early November 2016. The child, R.L., suffers from autism. On November 9, 2016, the mother, R.L. and C.S. were at the St. Joseph's Health Center (for reasons that were not been explained in the evidence). On November 9, 2016, a hospital crisis worker telephoned the Society to report that the mother had engaged in a "verbal altercation" with R.L., which resulted in the mother calling 9-1-1.

[14] The Society commenced an investigation following the referral. The next day, a different hospital crisis worker told Society worker Akosua Amoako that the mother had been "out of control" the previous evening, screaming and shouting at R.L. According to the crisis worker, this transpired in the presence of C.S.

[15] The mother does not deny the incident, although she tells a somewhat different account. She admits that she "raised her voice" to "discipline" R.L., but she described R.L. as the one who was "out of control".

[16] During the investigation, R.L. informed Ms. Amoako that he wished to move back to Montreal. He said he planned to run away, rather than return to the mother's home. He reported to Ms. Amoako that his mother yells at him and he said he felt that his mother "hates" him.

[17] According to Ms. Amoako, the mother explained that before moving to Toronto, R.L had been residing with his maternal grandmother. The reason, she said, was because in 2007, she met S.S. on the internet. S.S. "kidnapped" her and held her until 2011. She told Ms. Amoako that during these 4 years, S.S. raped her, resulting in C.S.' conception. The mother also said that he forced her into prostitution. She said that S.S. had done this to 4 or 5 other women, all of whom have since come forward against the father.

[18] The mother informed Ms. Amoako that S.S. had pled guilty to various criminal offences. Indeed, there are findings to this effect in Justice Alary's Judgment dated June 7, 2016, which I address below. The mother told Ms. Amoako that S.S. spent 15 months in prison, received 3 years of probation thereafter, and that he has been placed on the "sex offender list" for 20 years as a consequence of his criminal misconduct.

[19] The mother later provided a copy of the father's probation Order to another Society worker, Tania Marks. The three-year probation Order prohibits the father from being at or going to the mother's "domicile" or being within a radius of 100 meters of it, except for the purposes of access as provided for in a "court judgment", and from communicating with the mother except in the exercise of access as provided for "in the Superior Court Judgment authorizing such rights".

[20] According to Ms. Amoako, the mother reported that she moved to Toronto with the two children because she "desperately needed a change after everything that happened to her". However, the mother's move to Toronto came soon after a ruling from the Quebec Superior Court concerning the father's access to C.S. Ms. Amoako's affidavit is silent as to whether the mother disclosed the existence of this ruling during the initial investigation.

[21] As a result of this initial referral and the subsequent investigation, the Society commenced this proceeding seeking protection findings and orders concerning both children. R.L. was taken to a place of safety. C.S. was not.

[22] On November 16, 2016, this Court made its first order concerning both children. In C.S.' case, she was placed in the temporary care and custody of her mother on terms.

PART III: PRIOR PROCEEDINGS

A. The Quebec Superior Court Proceedings

[23] Before this proceeding commenced, the parties had already been involved in several years of litigation concerning custody of, and access to C.S. in the Quebec Superior Court in Laval, Quebec. Despite Justice Cohen's Order dated May 15, 2017 and my Order dated December 18, 2017 that this Court be supplied with relevant and comprehensive information concerning the Quebec proceedings, the parties supplied only some, but not all of the relevant documents from the Quebec proceedings. I have done my best to map out what transpired in Quebec based on the documents supplied.

[24] As set out above, the Society provided the Court with one page of the father's Probation Order dated June 22, 2015.

[25] Concerning the prior family law proceedings in Quebec, on June 7, 2016, Alary J. ordered, among other things:

(a) that the mother would continue to have custody of C.S.;

(b) the father would have supervised access at an access center, once every two weeks, for a maximum of two hours each visit, until July 31, 2016;

(c) thereafter, his access would increase to weekly supervised access for a maximum of three hours; and

(d) the father could apply to review the supervised access order after 6 months.

[26] Justice Alary's Order was made pursuant to Quebec's provincial legislation, as the parties had never married. This was not the first Order that had been made by the Quebec Superior Court. Alary J.'s June 7, 2016 Judgment very clearly refers to and describes prior decisions of the Quebec Superior Court. Indeed, in the result, Alary J.'s Judgment varies a prior Order from Quebec. And the documents filed by the parties reveal that there have been further steps taken in Quebec after June 7, 2016 too.

[27] Later in these reasons, I summarize the findings that Alary J. made about both parents, upon which I intend to rely as part of my analysis. How I intend to treat those findings of fact is set out below.

[28] The next document that I have from the Quebec proceedings is the "Interim Judgment" of Alary J. dated May 30, 2017, almost one year later. This Judgment refers to itself as being a "Safeguard Order", valid only until July 11, 2017. On the face of the "Interim Judgment", it appears there was to be a hearing on July 11, 2017 on the merits of a motion launched by the father. The mother was not served with the father's motion but the maternal grandmother was.

[29] Pursuant to the May 30, 2017 Interim Order, the mother was required to hand over her passports and C.S. passport to the father's lawyer in trust, the Court prohibited the mother from leaving Ontario with C.S., except for her return to Quebec, pending a judgment on the "present motion being rendered", the mother was required to provide the father or his lawyer with certain information about C.S., and the Court directed the mother to provide the father with Skype access in the presence of the Society, supervised access in Montreal, and pending the child's return to Montreal, supervised access in Toronto to the extent that it may be organized by the Society. And the Court directed that the Order be served upon the maternal grandmother and the Society, prior to the return date.

[30] I was also given a Notice that the father's "Motion Requesting the Immediate Return of the Minor Child to Quebec and for Issuance of a Safeguard Order" would be heard on July 11, 2017 at 9:00 am. I was not provided with a copy of the Motion itself nor was I given any information about what, if anything, transpired on July 11, 2017.

[31] On September 21, 2017, there was an attendance in this Court. At that time, I was made aware that there would be another attendance before the Quebec Superior Court the next day, on September 22, 2017. The only document later supplied to me from the Quebec proceeding held on September 22, 2017 is a signed "Undertaking" of the parties entered into. It says that the mother undertakes to provide the Society with a letter dated September 22, 2017, signed at the Laval Superior Court and the Interim Judgment of Alary J. dated May 30, 2017, that the father would not post on the internet any and all information related to the present Court case nor any information identifying C.S., the mother or her family, and that the father would not take and post pictures from Skype on the internet. No one explained to me what transpired in Court on September 22, 2017 in Quebec resulting in this undertaking.

B. The Mother's Departure From Quebec

[32] The mother left Quebec within 4 months of Alary J.'s June 7, 2016 Judgment that provided the father with supervised access to C.S. The evidence about the circumstances surrounding the mother's departure from Quebec, her stated belief that the father was disinterested in pursuing access to C.S. and her evidence about her efforts to implement Alary J.'s Order of June 7, 2016 prior to her departure conflicts with the father's evidence about the steps he took to pursue access following the Order. The mother has also placed her belief as to her legal entitlement to leave Quebec in issue. The father says she left Quebec in violation of a Court Order. I address this conflicting evidence later in these reasons.

C. The Child Protection Proceedings in Ontario

[33] This child protection proceeding before this Court commenced on November 15, 2016. It has been running parallel to the continuing proceedings in Quebec.

[34] This Court has made the following Orders:

(a) On November 15, 2016, Scully J. made a temporary without prejudice order placing R.L. in the temporary care and custody of the Society. Scully J. placed C.S. in the temporary care and custody of her mother on terms that included C.S. would have no access to the father without the father first meeting with Society workers to assess the safety and well-being of the child. Finally, Scully J. appointed the OCL;

(b) On May 15, 2017, Cohen J. directed the Society to file the Judgment of the Quebec Court and other relevant material regarding the Quebec proceeding that may pertain to this proceeding;

(c) On July 10, 2017, Cohen J. split the proceeding so that there would be a separate proceeding concerning R.L. and a separate proceeding concerning C.S.;

(d) On September 21, 2017, at an attendance before me, I was told that the father had scheduled an appearance before the Quebec Superior Court on September 22, 2017. The father did not appear before this Court on September 21, 2017. At the mother's request, I endorsed that Scully J.'s November 15, 2016 order concerning access remains in force, and I ordered that it be enforced by the police on a without prejudice basis. I also directed that the Quebec Court be given a copy of my endorsement so that it would be made aware of the proceedings before this Court;

(e) On December 18, 2017, the Society indicated to me that it intended to bring a Summary Judgment motion. The father participated in this proceeding on December 18, 2018. I encouraged the father to retain counsel, I set a further date of January 25, 2018 to give him an opportunity to do so, and I directed the parties to come prepared to discuss scheduling on the return date. I also endorsed that the Court would require "as part of the Summary Judgment motion materials a complete procedural history of the Quebec proceedings and copies of all Orders made by the Quebec Court";

(f) On January 25, 2018, the father advised the Court that he was in the process of applying for legal aid, but the process had been taking longer than he expected because of the inter-province application procedure to obtain legal aid in Ontario. After first indicating that he would adjourn the February 2, 2018 date that he had scheduled before the Quebec Court, he then said that he would not agree to adjourn it and said that this Court has delayed this case. I granted the father a further adjournment to permit him to retain counsel over the objection of the Society and the mother, but I also requested that the Quebec Superior Court not proceed with whatever was happening before it on February 2, 2018, to permit this matter to be heard;

(g) By February 12, 2018, the father retained Ontario counsel. On that date, I was told that the Quebec matter had been adjourned to May 1, 2018;

(h) I set the Society's summary judgment motion for May 7, 2018 having regard to all counsel's and the Court's availability, and I made a scheduling Order for the exchange of materials; and

(i) I heard the Society's Summary Judgment motion on May 7 and 8, 2018.

PART IV: THE MATTERS THAT RESOLVED AT THE OUTSET OF THIS HEARING

A. Statutory Findings

[35] As I indicated earlier in these reasons, a number of issues resolved at the outset of this hearing. First, pursuant to section 90(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (the "CYFSA"), the Court makes the statutory findings set out in paragraph 1(a) and (b) of the Society's Notice of Motion dated March 22, 2018. This Court also finds that C.S. is not First Nations, Inuk or Métis. These findings are based on the evidence filed and are made with the consent of the Society and the mother, and are unopposed by the father and the OCL.

B. Protection Findings

[36] Second, also on consent of the Society and the mother, and not opposed by the father or the Children's Lawyer, based on the aforementioned evidence concerning the Society's initial involvement with the family, the Court finds that the child C.S. is in need of protection pursuant to section 74(2)(b)(i) of the CYFSA.

[37] Third, the mother's own evidence, expressed to Society workers and directly to the Court in her affidavit, is that she is very fearful of the father. She says she suffers from depression, anxiety and PTSD. She says that she is "mentally fragile" and she worries she will not be able to parent if C.S. is to have access with her father. Based on that evidence, with the consent of the Society and the mother, and not opposed by either the father or the Children's Lawyer, this Court also finds the child C.S. to be in need of protection pursuant to section 74(2)(n) of the CYFSA.

C. Supervision Order

[38] Fourth, with the consent of the Society and the mother, and not opposed by the father or the OCL, pursuant to section 101(1)(1.) of the CYFSA, the child shall be placed in the care and custody of her mother subject to Society Supervision for a period of six months on the following terms and conditions:

(a) The mother shall allow the Society to have private access to the child, C.S., as requested and shall meet with the Society worker for scheduled and unscheduled meetings;

(b) The mother shall inform the Society of any change of address or contact information and shall not leave the jurisdiction of the City of Toronto without the expressed permission of the Society; and

(c) The mother shall sign consents to the release of information to the Society as requested by the Society.

[39] The remaining issue is therefore the father's access.

PART V: LEGAL ISSUES AND ANALYSIS

A. This Court's Jurisdiction

[40] The Society and the parents agree that this Court has jurisdiction over this proceeding. The OCL takes no position concerning this Court's jurisdiction, but it did take a position about what the effect of the Quebec Superior Court's Orders should be.

[41] I will comment briefly concerning this Court's jurisdiction, particularly since there is a parallel proceeding running in Quebec. But the more contentious issue, that I deal with below, is how this Court should treat the Quebec Superior Court's Orders and findings of fact.

[42] The Society relies on Children's Aid Society of Ottawa v. H.C.. That case concerned the jurisdiction of the Family Court in Ottawa to make a temporary care and custody order concerning a child ordinarily resident in Quebec, also in the face of a Quebec custody and access order under non-child protection legislation.

[43] Before the child protection proceedings were underway in Children's Aid Society of Ottawa v. H.C., the parties had entered into an interim consent order in Quebec providing that the child would reside with his father pending a family assessment. Despite the consent order, the mother then contacted the Ottawa police, and the father was arrested in Ottawa for criminal harassment and stalking. After the arrest, the Ottawa Society commenced a protection application asking that the child remain in the care of his mother in Ottawa, subject to a 6 month supervision order.

[44] In taking jurisdiction over the child protection proceeding, notwithstanding the ongoing Quebec domestic proceeding, Blishen J. cited Children's Aid Society of Windsor-Essex County v. C.C., [2000] O.J. No. 4991. In that case, Daudlin J. overturned a decision of this Court holding that it lacked jurisdiction to conduct child protection proceedings concerning children physically present in Ontario, but ordinarily resident in China.

[45] These cases stand for the proposition that the Court may intervene where a child within its borders is in need of protection, even if the facts do not precisely fit within the territoriality sections of the legislation (now section 91(2) of the CYFSA). I find that this Court has jurisdiction over this proceeding on the bases set out in Justice Blishen's and Justice Daudlin's decisions.

B. The Test for Summary Judgment

[46] As this Court has jurisdiction over this matter, I turn to the summary judgment process set out in Rule 16 of the Family Law Rules.

[47] The summary judgment rule was amended in 2015 to expand the scope of the summary judgment.

[48] Rule 16 reads:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) 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.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) 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.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2):

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure).

[49] Rule 2 is the Family Law Rules' interpretative provision and it informs how the summary judgment rule is to be applied. The primary objective of the Family Law Rules is to deal with cases justly. Rule 2(3) directs the Court to employ a fair process as part of its mandate to do justice.

[50] Before the 2015 amendments, it used to be that summary judgment was used as a tool to weed out the weakest claims. This is no longer an appropriate approach in light of Hryniak v. Mauldin, 2014 SCC 7 and the amendments to Rule 16. Summary judgment is now "recognized as its own, separate, alternative process to resolve cases". See Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Div. Ct.) at ¶ 41.

[51] In accordance with the Rule, the burden of proof still rests on the moving party (in this case the Society). Under Rule 16(4), the Society must "set out specific facts showing there is no genuine issue requiring a trial" and that "it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hyrniak". See Kawartha-Haliburton Children's Aid Society v. M.W. at ¶ 48-50.

[52] The Responding party must put his best foot forward. He may not rest on mere allegations or deny, but must set out specific facts showing there is a genuine issue for trial. If he does not, he risks losing. See Kawartha-Haliburton Children's Aid Society v. M.W. at ¶ 48-50.

[53] Whether the Society has met its burden and whether the father has "put his best foot forward" have been raised as issues in this case. As I will explain below, there is a problem with the evidence that the Society (and the mother) filed in support of the summary judgment motion. In my view, it would be problematic for the Court grant judgment based on it.

[54] Justice Debra Paulseth provides a good summary of how Rule 16 is to be applied in light of Hryniak in Children's Aid Society of Toronto v. L.S., 2017 ONCJ 506. At ¶ 19-24, Paulseth J. said:

[19] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.

[20] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).

[21] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This is the mini-trial procedure set out in subrule 16 (6.2). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).

[22] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).

[23] The court in Hryniak also set out the following:

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) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).

c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (paragraph34).

d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).

e) 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).

f) 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).

g) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).

h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial (paragraph 58).

[24] The principles in Hryniak have been applied to summary judgment motions in many child protection cases since the amendments to rule 16 became effective. See: Children's Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378, per Justice Timothy Minnema; Children's Aid Society of Toronto v. L.S., 2015 ONCJ 527, per Justice Penny Jones; Catholic Children's Aid Society of Toronto v. A.G., [2016] O.J. No. 4474 (OCJ), per Justice Roselyn Zisman and this court's decision in Jewish Family and Child Service of Greater Toronto v. E.W. and R.C., 2016 O.J. No. 9 (OCJ).

C. The Test for Access

[55] Having regard to these comments, I must apply the summary judgment test and the statutory test concerning access to the evidence before me. Ultimately, whether the Court should make an access order depends on whether it is in the child's best interests to do so. This question is governed by the combined sections 104 and 74(3) of the CYFSA. The Court must also consider the issue of access through the lens of the purposes set out in section 1 of the CYFSA.

[56] Section 104 reads:

104(1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[57] As the access order must be made in the child's best interests, the statutory criteria in section 74(3) of the Act apply. Section 74(3) reads:

Best interests of child

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[58] Having regard to these various tests, I find that a focused trial is required for four primary reasons, namely:

(a) The evidence about the father-daughter relationship is conflicting;

(b) There is insufficient evidence about the impact of access upon the mother's mental health and her parenting capacity, and upon the child;

(c) The Court is unable to fully make findings about the father's insight into his conduct and the child's best interests based on the record before it; and

(d) The interests of justice require a focused trial.

D. What Is the Evidence Before The Court?

[59] During the motion, I heard a number of arguments concerning what evidence I should and should not consider. To apply these legal tests and arrive at my conclusion, I had to determine what the admissible evidence is. What follows in this section of these reasons is my ruling about the evidentiary objections and arguments I heard.

(1) The Admissibility of and Weight to Attach to the Quebec Superior Court's Orders and Findings of Fact

[60] All parties agree that the Quebec Superior Court had jurisdiction, at least when it made the June 7, 2016 Order. Yet, the Society, the mother and the OCL each asked this Court to make an Order resulting in a different outcome than that ordered recently by the Quebec Superior Court and the parties and the OCL each took a different approach to how I should treat the Quebec Orders and findings of fact.

[61] To begin, I accept that I must apply the summary judgment test and the applicable provisions of the CYFSA to the evidence before me. I accept that the Quebec Superior Court's access order is not binding on this Court or dispositive of the summary judgment motion. In other words, this Court is not precluded from granting the Society's summary judgment motion that the father have no access pursuant to the CYFSA just because the Quebec Superior Court decided otherwise under the legislation that applied before it. Ontario's child protection legislation has a different purpose and as the Society, the mother and the OCL argued, there is different evidence before this Court now.

[62] However, by the same token, I am uncomfortable with the suggestion (as the mother and the OCL argued) that I should simply ignore an Order from a Court of competent jurisdiction that recently granted the father access, even though that Order was made under different legislation.

(i) The Mother's Argument that the Ontario Child Protection Proceedings Automatically Stay Ongoing Custody and Access Proceedings

[63] The mother submitted that this Court should essentially ignore the Quebec Orders entirely. She submitted that in Quebec, child protection matters take precedence over custody and access matters where there are conflicting orders. Therefore, she submitted that this Court "has proper jurisdiction to deny access even in the face of a [Quebec] Superior Court access order".

[64] In support of this submission, the mother has attached two, unsworn emails from her Quebec Counsel to her factum. One email purports to reproduce Article 91 of the "Quebec Youth Protection Act" and the second email states that an order of the Court of Quebec – Youth Division overrides a decision of the Quebec Superior Court. The second email then purports to reproduce two paragraphs from two Court of Quebec decisions that state this. However, neither email explains the jurisdictional basis such that the Youth Division's decisions override other custody and access orders within Quebec.

[65] Leaving aside the question of whether two unsworn emails from one's own lawyer in that different jurisdiction retained to advocate on one's own behalf in the ongoing foreign proceeding is acceptable proof of foreign law, the emails tendered do not actually address the specific issues before this Court in this case.

[66] The emails do not address whether an Ontario decision made under Ontario's child protection legislation would take precedence over a Quebec Superior Court custody and access decision, within Quebec's borders. In fact, I note that on May 31, 2017, the Quebec Superior Court, aware of this Ontario proceeding, nevertheless made a further Order to enforce its prior June 7, 2016 Order. Perhaps this jurisdictional issue was not argued, but this fact seems to contradict the mother's submission that this Court's Order would somehow take precedence over the Quebec proceeding, at least within Quebec's borders.

[67] Nor do the emails stand for the proposition that this Court can in effect simply ignore the Quebec Court's rulings within Ontario, based on the operation of some form of a stay within Ontario. Nor did the mother provide this Court with any Ontario case law or statutory authority to this effect.

[68] It is true that within Ontario, section 103 of the CYFSA has the effect of staying any Ontario proceeding for custody of or access to a child under the Children's Law Reform Act, whether that proceeding is in this Court or in the Superior Court, if a proceeding under the CYFSA for an order for the care, custody or supervision of the child is commenced. But there is nothing in the CYFSA that provides for something in the nature of a stay of an extra-provincial proceeding or Order.

[69] I fail to see how I can apply something akin to a stay by analogy as the mother essentially tried to argue.

[70] I note that a somewhat similar issue arose at ¶ 57-68 of D.D. v. H.D., 2015 ONCA 409. In D.D. v. H.D., a preliminary issue was raised as to whether an appeal of a Superior Court custody/access order under the Divorce Act should proceed given that there was an ongoing child protection proceeding in this Court. The Ontario Court of Appeal noted that the statutory stay language of section 57.2 of the CFSA (the predecessor to section 103 of the CYFSA) did not automatically stay an Ontario custody order made under the Divorce Act. The wording of the statutory stay in the child protection legislation only applies to stay Ontario custody and access proceedings under provincial legislation.

[71] In the result, the Court of Appeal declined to decide whether the child protection proceedings stayed the Divorce Act proceedings on some other basis, as the issue was not squarely raised or fully argued. Having not found that a stay applied in that case, the Court of Appeal went on to consider the merits of the appeal under the Divorce Act, found an error and directed a re-hearing of the Divorce Act proceeding in the Superior Court, knowing that the child protection proceeding was also underway in the Ontario Court of Justice.

[72] How I, sitting as a judge in a statutory court, could somehow treat an Order from another province as stayed for the purposes of the proceeding before me, was not fully argued before me either. The only point the mother possibly established is what would happen if a provincial Court in Quebec made an order under child welfare legislation in Quebec. Those are not the facts of this case. Like in D.D. v. H.D., I decline to decide the issue. In any case, I need not decide this to properly consider the summary judgment motion, and afford appropriate respect to the Quebec Superior Court.

(ii) The OCL's Argument that the Father Did Not Move in Ontario to Enforce the Quebec Superior Court's Orders

[73] The OCL's primary argument was also that I should substantially disregard the Quebec proceedings, albeit for different reasons.

[74] Counsel submitted that the father could have moved under section 41 of the Children's Law Reform Act to enforce the Quebec but he chose not to. Instead, she says he chose to "ramp things up" against the mother. Since he did not move to enforce the Quebec Superior Court Order within Ontario, since this is a statutory court and since there is nothing in the CYFSA that permits this Court to enforce an extra-provincial order, counsel argued that I should treat what transpired in Quebec as a "red-herring".

[75] OCL counsel argued this Court may only consider "as fact" the existence of the Quebec Superior Court's Orders, and that the mother came to Ontario after the June 7, 2016 Order was made. But otherwise I must apply only the applicable summary judgment test and the applicable provisions of the CYFSA to the evidence before the Court.

[76] I find the OCL's proposed treatment of the Quebec Order to be too narrow for several reasons. First, while the father did not move to enforce the Quebec Order in Ontario, it is not true that the father failed to take any steps to enforce the Quebec Superior Court's Orders at all. He chose to do so within Quebec.

[77] It is questionable whether the father could have realistically taken steps within Ontario to enforce the Orders anyway. Soon after the mother came to Ontario, this child protection proceeding was underway. Had the father brought an enforcement proceeding in Ontario, the predecessor section 57.2 of the CFSA then in force would have triggered the operation of a stay of that enforcement proceeding, subject to this Court's power to lift the stay.

[78] I do note that the father chose not to move for an order that this child protection proceeding be dismissed as an abuse of process, as was done in V.F. v. Halton Children's Aid Society, 2016 ONCJ 111. Rather, the father accepts the jurisdiction of this Court.

[79] As the father did not pursue either an enforcement proceeding or an abuse of process motion within Ontario, I do not intend to opine about the possible merits of such steps any further. But again, this does not mean that what has transpired in Quebec ought to be ignored.

[80] Again, I agree that I am governed by the summary judgment test and the applicable provisions of the Act. But the OCL's primary submissions failed to address the evidentiary value of the Quebec Court's Orders or findings within the framework that I must apply. More particularly, the OCL's primary submissions did not address either from the perspective of their admissibility or what weight, if any, should be attached to the existence of Quebec Orders, or to the Quebec Court's findings of fact, to the extent those findings are relevant to the issues I must decide under the Act.

[81] The OCL did address this as a matter of weight in its alternative submissions.

(iii) The Quebec Superior Court's Findings of Fact Are Admissible and Should Be Weighed Accordingly With All of the Other Evidence Properly Before the Court

[82] The Society submitted that the Court's concern should not be about jurisdiction per se, but rather about the desirability of avoiding a duplication of proceedings. The Court should ask itself whether the administration of justice will be brought into disrepute if the Court makes an order having a different outcome than that ordered by the Quebec Court.

[83] In my view, a different outcome respecting the father's access, should that be the result in this case, does not necessarily harm the administration of justice as this Court is dealing with different legislation having a different purpose. But by the same token, the parties are not free to re-litigate matters the Quebec Court, properly having jurisdiction, decided. If that were to be permitted, the administration of justice may be harmed. Appropriate respect must be paid to the Quebec Courts' findings of fact where those findings of fact are relevant to the tests that this Court must apply.

[84] To achieve this, the Society submitted (and I agree) that the Court can and should consider the findings of the Quebec Superior Court, but the question to decide is then a matter of what weight the Court should attach to those findings.

[85] If the Court proceeds in this fashion, then the Society submits that there are a number of new circumstances that did not exist before the Quebec Superior Court when it made the supervised access order that this Court should also consider. These include that the father and the child continue to not have a relationship with one another, now for a longer period of time, that the father is espousing hatred towards the mother, that he has publically identified the child and others involved in this case in social media and on the internet, and that he is unrepentant about it.

[86] The OCL's alternative submission accords with this approach, with one nuance. I should not only consider these new developments in isolation, but I should consider these new developments in tandem with the findings of the Quebec Superior Court. In other words, it is the cumulative effect of all of the evidence, including the findings of the Quebec Court, upon which I should base my decision, according to Ontario's legislation.

[87] Several principles from three Supreme Court cases in recent years support why the Society's argument, modified by the OCL, makes good sense.

[88] In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, the Supreme Court considered whether the dismissal of an employee's claim by a government adjudicator under the Employment Standards Act, R.S.O. 1990, c. E.14 was a bar to that employee's subsequent wrongful dismissal action on the basis of estoppel. Ultimately, the Court permitted the employee to proceed with the civil action, holding that the legislature did not intend the ESA's summary procedure for small claims, to bar the consideration of more substantial claims.

[89] In Danyluk v. Aisnworth Technologies Inc., the Court set out a number of principles that are germane to the issue before this Court. Specifically at ¶ 20 and 23-25, the Court said:

20 The law has developed a number of techniques to prevent abuse of the decision-making process. One of the oldest is the doctrine estoppel per rem judicatem with its roots in Roman law, the idea that a dispute once judged with finality is not subject to relitigation: Farwell v. The Queen (1894), 22 S.C.R. 553, at p. 558; Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, at pp. 267-68. The bar extends both to the cause of action thus adjudicated (variously referred to as claim or cause of action or action estoppel), as well as precluding relitigation of the constituent issues or material facts necessarily embraced therein (usually called issue estoppel): G. S. Holmested and G. D. Watson, Ontario Civil Procedure (loose-leaf), vol. 3 Supp., at 21§17 et seq. Another aspect of the judicial policy favouring finality is the rule against collateral attack, i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it: Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Sarson, [1996] 2 S.C.R. 223.

23 In this appeal the parties have not argued "cause of action" estoppel, apparently taking the view that the statutory framework of the ESA claim sufficiently distinguishes it from the common law framework of the court case. I therefore say no more about it. They have however, joined issue on the application of issue estoppel and the relevance of the rule against collateral attack.

24 Issue estoppel was more particularly defined by Middleton J.A. of the Ontario Court of Appeal in McIntosh v. Parent, [1924] 4 D.L.R. 420, at p. 422:

When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains. [Emphasis added.]

This statement was adopted by Laskin J. (later C.J.), dissenting in Angle, supra, at pp. 267-68. This description of the issues subject to estoppel ("[a]ny right, question or fact distinctly put in issue and directly determined") is more stringent than the formulation in some of the older cases for cause of action estoppel (e.g., "all matters which were, or might properly have been, brought into litigation", Farwell, supra, at p. 558). Dickson J. (later C.J.), speaking for the majority in Angle, supra, at p. 255, subscribed to the more stringent definition for the purpose of issue estoppel. "It will not suffice" he said, "if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment." The question out of which the estoppel is said to arise must have been "fundamental to the decision arrived at" in the earlier proceeding. In other words, as discussed below, the estoppel extends to the material facts and the conclusions of law or of mixed fact and law ("the questions") that were necessarily (even if not explicitly) determined in the earlier proceedings.

25 The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle, supra, at p. 254:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

[90] Next, in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, the Supreme Court considered whether a person convicted of sexual assault and dismissed from his employment as a result, could be reinstated by a labour arbitrator who concluded that the sexual assault did not take place contrary to the criminal conviction. This case considered the specific operation of section 22.1 of the Evidence Act, R.S.O. 1990, c. E. 23, as that section permits a person to challenge proof of the conviction, but otherwise does not provide any statutory guidance about when or how that will be permitted. In considering this question, the Court looked at whether any common law doctrines prohibited re-litigation of the facts upon which the conviction rested. The Court's commentary about the common law doctrines more generally, and the "abuse of process" doctrine particularly, is instructive here.

[91] When discussing the "abuse of process" doctrine, Arbour J. noted that it can apply in differing contexts. This includes at ¶ 37, "the inherent power of the court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute". She went on to write that it is a flexible doctrine, "unencumbered by the specific requirements of consents such as issue estoppel". The doctrine has been applied in circumstances where the strict requirements of issue estoppel are not met, but where allowing the litigation to proceed "would violate such judicial economy, consistency, finality and the integrity of the administration of justice".

[92] In declining to permit re-litigation of the criminal conviction, Arbour J. held at ¶43-44 and 51 that the concern for the adjudicative process and the importance of preserving its integrity, were paramount. Quoting ¶ 51:

Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[93] Lastly, Arbour J. held that the Court does retain discretion to decline to apply the doctrine of abuse of process if its application would create an unfair result. Such circumstances include if the stakes in the first proceeding were too minor to generate a "full and robust response" whereas the subsequent stakes are more considerable; if there had been an inadequate incentive to defend the first proceeding, if new evidence had been discovered in appropriate circumstances, or if the original process had been tainted in some fashion. See Toronto (City) v. C.U.P.E. Local 79 at ¶ 53.

[94] Most recently, British Columbia v. Malik, 2011 SCC 18 concerned a claim by British Columbia to recover money it paid to fund Mr. Malik's defence in the Air India bombing trial. The province's action was based on claims of debt, breach of contract, conspiracy and fraud. The province moved for an Anton Piller order within the law suit, authorizing the search of the business and residential properties of the Malik family. On this interlocutory application, the chambers judge relied on findings of fact made in a previous interlocutory proceeding, namely in Mr. Malik's "Rowbotham application" to obtain funding for his defence in the criminal trial. However, like in the other two previously cited decisions, the Court's comments have broader application.

[95] In Malik, the Court once again expressed concerns about preserving the integrity of the adjudicative process. I extract the following helpful points from Malik at ¶ 37-48:

(a) The question of admissibility of a prior judgment must be seen in the broader context of the need to promote efficiency in litigation. The doctrines of res judicata, issue estoppel and abuse of process are part of this judicial policy but "they do not exhaust its potential";

(b) A judge is entitled to take judicial notice of prior decisions of the Court;

(c) A judgment may be tendered for the fact that prior proceedings were taken;

(d) The doctrines of res judicata, issue estoppel and abuse of process must be applied in a flexible manner that is mindful of the public interest in avoiding "duplicative litigation, potential inconsistent results, undue costs and inconclusive proceedings";

(e) Lack if identity of issue goes to weight, not to admissibility;

(f) The Court noted that in Saskatoon Credit Union Ltd. v. Central Park Enterprises, (1988 47 D.RL.R. (4 th ) 431 (B.C.S.C.), the doctrine of abuse of process had been applied to estop defendants from challenging a finding of fact made against them in a full and fair trial in a prior proceeding between different parties;

(g) Whether or not a prior civil decision is admissible in trials on their merits will depend on the purpose for which the prior decision is put forward and the use sought to be made of its findings and conclusions; and

(h) The weight and significance of prior proceedings will depend on the circumstances of each case. Those circumstances include the identity of the participants, the similarity of the issues, the nature of the earlier proceedings and the opportunity given to the prejudiced part to contest it but on all "the varying circumstances of particular cases".

(iv) The Father's Argument that the Quebec Superior Court's Findings are Admissible Evidence of Past Parenting

[96] The father approached the issue of how to treat the Quebec Court's Orders and findings differently. He submitted that Alary J.'s findings are admissible pursuant to section 93(1)(b) of the CYFSA as evidence of past parenting, and the parties should be precluded from re-litigating any findings of fact made by the Quebec Superior Court.

[97] Section 93(1)(b) of the Act reads:

93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[98] In my view, section 93(1)(b) would permit several of the Quebec Court's findings to be admitted and considered, to the extent that they are findings concerning past parenting. Many of the finds relate to past parenting. The others provide necessary background and context.

[99] I also agree with the comments of Justice Stanley Sherr at ¶ 56-57 of Children's Aid Society of Toronto v. S.C.-W., 2016 ONCJ 234:

[56] Past conduct evidence must not be permitted to suffocate evidence of a parent's current conduct, circumstances and functioning. The real relevance of past parenting evidence is the extent to which it provides a reliable backdrop against which to measure the extent to which the parents' abilities and circumstances have changed. See: Waterloo Region v. R.C. and M.S., [1994] O.J. No. 2955, (Ont. Prov. Div.); Catholic Children's Aid Society of Toronto v. C.S., 2010 ONCJ 656, [2010] O.J. No. 5831 (OCJ).

[57] The admission of past parenting evidence does not necessarily mean that it will be accepted as persuasive by the trial judge or determinative of the result. However, where a parent's previous children have recently been made crown wards, there is a tactical burden on the parent to show that he or she has taken sufficient remedial action to eliminate or at least reduce the need for protection that was found to exist in relation to the earlier children. See: Children's Aid Society of Niagara Region v. D.P. and S.B. (No. 3), [2003] O.J. No. 619, (Ont. Fam. Ct.); Catholic Children's Aid Society of Toronto v. L.M., 2011 ONCJ 146, [2011] O.J. No. 1361 (OCJ); Catholic Children's Aid Society of Toronto v. C.T., [2012] O.J. No. 2716.

(v) Ruling Respecting the Admissibility of and Weight to Attach to the Quebec Superior Court's Orders and Findings of Fact

[100] Based on the foregoing, I will treat the Quebec Orders and findings as follows. First, I will consider as a fact that there are ongoing proceedings in Quebec and the Quebec Superior Court has twice ordered that the father have supervised access to C.S.

[101] By the same token, I also appreciate that this is not binding in this case, and I must apply the summary judgment test and the applicable provisions of Ontario's child protection legislation to the evidence before me. The outcome in the June 7, 2016 Judgment that the father have supervised access subject to a review, does not create a cause of action estoppel, as the Society's claims are brought pursuant to specific child welfare legislation and are materially different from the custody and access claims before the Quebec Court. Again, although the Quebec Superior Court's decision is based on C.S.' best interests, the issue that I must decide is pursuant to specific legislation with a different purpose.

[102] I also agree that there is further evidence before me that was not before the Quebec Superior Court when it decided the issue in June of 2016 which may warrant a different result.

[103] Regarding the findings of fact contained in the June 7, 2016 Judgment, those findings do not neatly fit within the doctrine of issue estoppel, such that the parties would be barred from re-litigating any such findings relevant to the analysis that I must apply. This is because there is no "identity of parties", meaning the parties in this current proceeding are different from the parties in the Quebec case. Specifically, the Society, who launched the summary judgment motion, is not a party in the Quebec proceeding.

[104] However, despite the lack of identity of parties and therefore the strict parameters of issue estoppel not applying, the doctrine of abuse of process does prohibit re-litigation of relevant findings in this proceeding. Applying what the Supreme Court said at ¶ 52 of Malik, Alary J.'s June 7, 2016 decision was a judicial pronouncement made after the parents had been heard. It had a substantial effect on their rights. If I were to disregard Alary J.'s findings of fact on any relevant points and permit re-litigation of them, litigation and judicial resources expended in Quebec will have been wasted. There is the potential mischief that I would make an inconsistent findings.

[105] Thus, I find that all of Alary J.'s findings are entitled to great weight.

[106] None of the parties argued that there is a reason for the Court to exercise its discretion and decline to apply the abuse of process doctrine. I see nothing in the evidence that would lead the Court to do so either.

[107] Additionally, as set out above, many of Alary J.'s findings are also admissible under section 93(1)(b) of the CYFSA. I find that this past parenting evidence is limited and tailored and does not suffocate the current evidence. Those findings are also entitled to weight on these bases. I would have said the same thing about the extent and non-suffocating nature of the past parenting evidence, even if I had determined that all of the findings in Alary J.'s June 7, 2016 Judgment, were being admitted pursuant to section 93(1)(b).

[108] However, and for clarity, I am admitting the Order and all of Alary J.'s findings in the June 7, 2016, based on the analysis provided above in the three Supreme Court decisions. All of Alary J.'s findings are entitled to great weight.

[109] Incidentally, in a somewhat analogous situation, I note that Justice Marvin Kurz admitted and placed "great weight" on the findings of the Judge of another Court who had recently heard a custody and access proceedings. In so doing, he relied on both the abuse of process doctrine and the predecessor to section 93(1)(b) of the CYFSA. See V.F. v. Halton Children's Aid Society, 2016 ONCJ 111 ¶ 48-63.

[110] Regarding the May 30, 2017 Order, I accept as a fact that the Quebec Court did make a second Order on May 30, 2017 that the father have supervised access. I do not have any findings of fact as part of that decision. Applying the "circumstances of the case" test set out in Malik, I would afford this decision less weight. That order was a very short term Order, and it appears to have been made, either on an ex parte basis, or on short notice to the mother.

[111] I find that a trial is not required to find any facts that are dealt with by the Quebec Superior Court.

[112] But I also accept that the Society (or other parties) can argue that there are very different circumstances now that did not exist when the Quebec Court made its decision. I accept the OCL's nuanced position that the Court should consider the cumulative effect of all of the evidence, including the findings of the Quebec Court, to arrive at its decisions.

(2) Hearsay

[113] The father objected to portions of the evidence filed in support of the summary judgment motion on that basis that it is inadmissible hearsay or opinion. Recently, in R. v. Bradshaw, 2017 SCC 35, the Supreme Court of Canada refined and restated the law pertaining to hearsay.

[114] In Children's Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852, Justice Craig Perry helpfully summarized and applied the Supreme Court's new approach to the admission and weighing of hearsay in a child protection proceeding, albeit at a trial.

[115] However, I see no reason why this approach could not be applied at the summary judgment motion stage.

[116] As Perry J. explains at ¶ 36-37, citing R. v. Bradshaw, hearsay is an out-of-court statement of a person, tendered by a party to prove the truth of the contents of the statement. Hearsay statements are presumptively inadmissible because the opposing party is deprived the opportunity to test the reliability and credibility of the statement through cross-examination in the presence of the judge. The judge is therefore unable to ascertain whether there are frailties in the evidence.

[117] The frailties or dangers are:

(1) the declarant may have misperceived the facts to which the declaration pertains [the hearsay danger of faulty perception];

(2) the declarant, despite correctly perceiving the facts to which the declaration pertains, may have wrongly remembered those facts [the hearsay danger of faulty memory];

(3) the declarant may have narrated the facts in an unintentionally misleading fashion [the hearsay danger of faulty narration];

(4) the declarant may have intentionally attempted to present the facts in a misleading manner [the hearsay danger of insincerity].

[118] The question of whether to admit hearsay in view of these dangers does not only arise at trial. A number of cases have addressed how the Court should treat hearsay evidence on a summary judgment motion.

[119] The Family Law Rules do not contain a prohibition against hearsay on a summary judgment motion. There are, however, a couple of warnings in the rules about the use of hearsay.

[120] Rule 14(18) provides that for any motion, hearsay should be avoided "as much as possible". But hearsay is nevertheless admissible under rule 14(19) provided certain technical requirements are met.

[121] There is a separate caution regarding hearsay and summary judgment motions. Rule 16(5) reads:

16(5) 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.

[122] But neither rule 14(18) nor rule 16(5) provide guidance about the consequences of over or inappropriate reliance on hearsay.

[123] In a nutshell, the Society says that there is no prohibition against hearsay. The father by contrast says that I should only consider the evidence before me that is "trial worthy". The significance of this debate is that if I accept the father's approach, the Society may not have even met its onus to demonstrate that there is no genuine issue requiring a trial.

[124] Indeed, the father chose not to respond to some of the evidence tendered by the Society or the mother. The OCL pointed out that in so doing, the father did not "put his best foot forward". But if the evidence to which the father did not respond should not be admitted in the first place, then can it be said that the father did not "put his best foot forward" in failing to respond to it?

[125] In support of its position that there is no prohibition against hearsay, the Society relies on D.D. v. Children's Aid Society of Toronto, 2015 ONCA 903. At ¶ 34, the Court of Appeal says, "[c]ontrary to the appellant's position, not all hearsay evidence is inadmissible. The question is whether the motion judge relied inappropriately on hearsay evidence. In my view, she did not."

[126] Interestingly, in the analysis that follows, the Court refers to various child's statements as admissible because of exceptions to the hearsay rule. In other words, the motion judge did not inappropriately rely on the specified hearsay because it was otherwise admissible; ie. it was "trial worthy". Furthermore, the Court of Appeal relied on the fact that the mother did not object to the hearsay at the motion at first instance, or seek to cross-examine on the affidavits.

[127] In the result, the Court of Appeal was influenced by the mother's inability to point to any unfairness resulting from the admission of the hearsay.

[128] But D.D. v. Children's Aid Society of Toronto does not otherwise provide clarity to the debate in the case law about the circumstances under which hearsay should be admitted, nor about the consequences, if any, that may flow from its admission under rule 16(5).

[129] Other than the Society's argument that the Court may admit hearsay on a summary judgment motion, the Society did not really argue why the Court should accept and rely upon the complained of hearsay in this case.

[130] Although the case is a few years old, in Windsor-Essex Children's Aid Society v. S.M.D., 2011 ONCJ 311, Bondy J. canvassed a number of cases, some in which hearsay was admitted and some in which it wasn't. In summary, at ¶ 52, Bondy J. sets out 13 considerations respecting evidence on a summary judgment motion. Regarding hearsay, where a party seeks to admit it, Bondy J. held that the affidavit evidence should follow the "MacKenzie Rule" for admission (which I explain below). Importantly, according to Bondy J., the Court should treat hearsay evidence with caution on summary judgment motions, particularly where profound orders, such as requests for Crown Wardship are being sought. And even in cases where hearsay was admitted, Bondy J. noted that the Court was free to attach less weight to the evidence.

[131] While some of the cases contain a flexible approach, a number of cases referred to by Justice Bondy and others that come after them stand for the proposition that the evidence at a motion for summary judgment should meet the same test as the test for admission at trial. This is the so-called "trial worthy" approach.

[132] As Sherr J. said on more than one occasion in his decisions, there is "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"; and the summary judgment procedure is, "…not an invitation to water down the rules of evidence in order to make that determination". Indeed, this approach has been strongly endorsed by the Honourable Judith C. Beaman, Commissioner, in the Report of the Motherrisk Commission, February 2018. For these various propositions, see Catholic Children's Aid Society of Toronto v. C.G., 2018 ONCJ 193; Children's Aid Society of the Regional Municipality of Waterloo v. K.V., 2013 ONSC 7480; and Halton Children's Aid Society v. L.S., 2015 ONCJ 317.

[133] Several of the cases preferring the "trial worthy" approach have referred to the "MacKenzie Rule" (referring to the decision of Justice MacKenzie in Children's Aid Society of Huron-Perth v. H (C.), 2007 ONCJ 744) as the appropriate test for admission of hearsay on a summary judgment motion. In other words, to be admitted, the evidence should be both necessary and reliable.

[134] Justice Victoria Starr summarized this test at ¶ 22 of Halton Children's Aid Society v. L.S. as follows:

1. Firstly, the deponent should identify the source of the information and identify that the source is the original source of the information, or that that person is the person with the personal knowledge or observation of the fact alleged;

2. Secondly, the deponent must explain the reason why the original source of the information has not sworn his or her own affidavit and therefore why it would be necessary for the court to accept hearsay evidence on those facts as opposed to the direct evidence of those facts;

3. Thirdly, the deponent must explain the circumstances of how the hearsay evidence was obtained, why the source would have knowledge of the information and the full details of the information and the source so that the court can ascertain the soundness of the information and the source and assess some kind of level of reliability to that evidence; and

4. Lastly, the deponent must explain not only that they believe the evidence from the hearsay source; they have got to give for every piece of hearsay, reasons why they and the court should believe and rely on that untested evidence.

[135] In my view, this approach, while helpful, may require some further refinement in light of R. v. Bradshaw. As Perry J. further explains at ¶ 38-42 of Children's Aid Society of St. Thomas and Elgin v. A.H., again citing R. v. Bradshaw, some hearsay presents minimal danger. Consequently certain categorical exceptions to the prohibition against hearsay have evolved at common law. And overtime, courts have developed a flexible and principles approach to the determination of the admissibility of hearsay. This approach entails an assessment of the necessity of the receipt of the hearsay and the threshold reliability of the evidence.

[136] Necessity may be established by establishing the unavailability of a witness at trial. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it [without the benefit of contemporaneous cross-examination of the declarant of trial". If this threshold is past, the judge may exercise her discretion to consider the evidence in the fact-finding process. The ultimate reliability of the evidence is not determined until the trier considers all of the evidence.

[137] Following the so-called "MacKenzie Rule" in an affidavit filed for a summary judgment motion is a good first step to satisfy the Court that necessity and threshold reliability are established and to alleviate the Court's concerns that it would not be making a profound decision based on frail evidence. However, more may be required in light of R v. Bradshaw. Quoting ¶ 43-46 of Perry J's summary of Bradshaw verbatim:

[43] In determining threshold reliability, the trier of fact must identify the specific hearsay dangers inherent in the out-of-court declaration. The trier of fact must then identify the means by which these dangers can be overcome.

[44] There are two ways in which hearsay dangers may be overcome:

(1) Satisfying the trier of fact that there exist adequate substitutes for contemporaneous cross-examination [procedural reliability]. The substitutes for cross-examination must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination of the declarant at some juncture is usually required. For example, the opportunity to cross-examine the absent witness may arise at the preliminary inquiry testimony. Similarly, the opportunity to cross-examine the recanting witness may arise at the trial.

(2) Satisfying the trier of fact that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy [substantive reliability]. To determine whether or not a hearsay utterance is inherently trustworthy, the trier of fact may look at the circumstances in which the utterance was made and whether there exists evidence that corroborates the statement. Substantive reliability is established if the trier of fact is satisfied that the hearsay statement is so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other words, the statement must have been made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken.

[45] Interestingly, the court in Bradshaw also noted that the two methods of establishing threshold reliability may work in tandem. At the same time the court urged caution in using this combined approach, so as to avoid admitting statements that lack both procedural and substantive reliability.

[46] Corroborative evidence is not capable of enhancing the procedural reliability of a hearsay statement. However, in appropriate circumstances, it is capable of enhancing the substantive reliability of a hearsay statement. To do so, it must be capable of buttressing the truthfulness or accuracy of the material aspects of the hearsay statement. In other words, the corroborative evidence must address the fact in issue that the hearsay statement attempts to prove, not some other non-material fact. The corroborative evidence must also be trustworthy. Finally, corroborative evidence can only enhance the substantive reliability of a hearsay statement if, on a balance of probabilities, it rules out any plausible explanations that disclose that the maker of the hearsay statement was either untruthful or unreliable. In other words, having considered plausible alternative explanations for the making of the statement, the trier of fact must be satisfied that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of the material aspects of the statement.

[138] In my view, evidence to satisfy procedural or substantive reliability can and should be included in an affidavit as part of steps 3 and 4 of the "MacKenzie Rule" to increase the likelihood that the hearsay should be admitted.

[139] Some of the hearsay evidence in this case is highly problematic. The deponent(s) made no effort to follow the so-called "MacKenzie Rule" in their affidavits, let alone to address the factors identified by the Court in R. v. Bradsaw. I add that there was nothing prohibiting the Society, or the mother, from requesting a voir dire to introduce additional evidence as to necessity or threshold reliability, but neither did.

[140] As I apply the applicable legal tests to the evidence, I will identify the hearsay evidence, the hearsay dangers raised by the evidence, and I will address whether there are adequate safeguards at this stage to overcome the hearsay dangers associated with the evidence. I will highlight the problematic hearsay evidence that I am not prepared to rely upon to make the order sought in this case.

[141] In taking a hard look at the evidence, I am also influenced by the profound nature of the order sought in this case. I acknowledge that this is not a case in which the Society seeks an Order that C.S. be placed in its extended care. I also acknowledge that I have made a six month supervision order and that if I were to decline to order access at this time, this will be reviewed on a Status Review Application in 6 months' time. However, in my view, notwithstanding that right of review, an order that the father have no access at this time will be a real impediment to any future attempt to re-establish the father-daughter relationship. The more time that passes, the harder the gap will be to overcome for both father and daughter, and for that matter, that harder the impact will be on the mother from the ongoing uncertainty and ultimately if access is ordered. If a no access order is to be the outcome in this case, then it is imperative that such an order be based on proper evidence and a fair process. In my view, in the circumstances of this case, the best way to achieve this is to have a focused trial about access.

[142] Alternatively, if I am wrong in my approach to the evidence and I ought to have considered the hearsay evidence that I view as problematic, then I would have assigned very little weight to it in the overall assessment of the evidence on this summary judgment motion.

E. What Is the Evidence?

(1) The Findings of the Quebec Superior Court

[143] For the reasons set out above, I am admitting into evidence and am considering the Quebec Court's Orders and Alary J.'s findings. A number of the findings of the Quebec Superior Court are relevant to my determination under section 74(3) of the CYFSA about whether it is in C.S.' best interests to have access to her father.

[144] In several pages of her reasons dated June 7, 2016, Alary J. found:

(a) The parents met on a dating website in 2006 or 2007 and moved in together 3 months later;

(b) C.S. was born in 2010;

(c) The mother left the relationship in September 2011 and went to a shelter;

(d) When she moved out, the father complained about the mother to Quebec's Director of Youth Protection, but the complaint was not verified. Elsewhere in the Judgment, Alary J. notes that the father has made other complaints to the Director, also not verified;

(e) In November 2011, soon after the mother left the relationship, the father commenced a custody proceeding. He alleged that the mother was not taking proper care of the child, and that she was working as an escort and in pornographic videos;

(f) The mother cross-applied for custody;

(g) On November 28, 2011, Trudel J. of the Quebec Superior Court, granted the mother custody and the father unsupervised access on Saturdays between 9 am and 5 pm;

(h) On December 13, 2011, the parties consented to an order that the mother would have interim custody of C.S. and the father would have unsupervised access on Wednesdays from 1:00 pm to 5:00 pm and on Saturdays from 9:00 am to 5:00 pm. Deziel J. also ordered a "psychosocial evaluation";

(i) The psychosocial report dated June 6, 2012 indicates that the mother then agreed that the father would be permitted regular access, including sleepovers. But the report made no other recommendations because the mother refused to allow the author of the report to meet with her mother and her other two sons;

(j) On July 10, 2012, the parties entered into a Final Consent in which the custody and access terms remained unchanged;

(k) Then, in the fall of 2014, the mother filed a complaint with the police, alleging that, when the parties were living together, the father had been violent toward her, threatened her, sexually assaulted her and forced her to work as an escort and a prostitute;

(l) The father was arrested on September 14, 2014. He was arrested again in October 2014;

(m) After serving eight months in pre-trial custody, the father pleaded guilty to "having induced or attempted to induce a person to prostitute herself", "having recruited, transported, transferred, received, held, concealed or harboured a person, or exercised control, direction or influence over the movement of a person for the purpose of exploiting her or facilitating her exploitation", sexual assault, "having inflicted bodily harm" and "having knowingly uttered, conveyed or caused a person, in any manner, to receive a threat to cause death or bodily harm";

(n) In February 2015, while the father was in jail, the mother filed an application to suspend the father's access and for permission to travel. The father applied to vary his access. The father was released in February 2016. Alary J. subsequently ruled on amended versions of these applications on June 7, 2016 resulting in this Judgment;

(o) Alary J. found that there had been a sufficient change in circumstances since the prior Order and embarked upon a review of the Court's previous Order;

(p) The father argued that the mother lacked the parenting skills to raise children, that she continued to work as an escort and that she occasionally left the child unsupervised. He further argued she was irresponsible, dangerous and negligent. The Court rejected these arguments;

(q) The Court found the father not to be credible respecting his complaints about the mother. Alary J. found that the father "seems to lie with no hesitation, at least when it comes to gaining access to his child";

(r) The father also argued that he did not commit the criminal acts listed above, despite having pleaded guilty and despite the conviction. He said he pleaded guilty to get out of prison sooner to see C.S. Notwithstanding that a criminal conviction is not res judicata in a civil proceeding in Quebec, Alary J. nevertheless considered and weighed S.S.' criminal convictions in her analysis;

(s) The Court also rejected the mother's claim that the father had uttered threats against the child. Alary J. found that the mother feared the father and distrusted his ability to parent, but he had not threatened the child;

(t) Alary J. found both parents to not be credible in certain respects. On the one hand, the Court considered the father's lack of respect towards the mother and the fact he had not seen the child since September of 2014, following the criminal charges. Yet despite this finding and the adverse credibility findings she made against the father, Alary J. nevertheless found that the father seemed sincere respecting his stated affection for the child and his desire to be involved with her; and

(u) In the result, also being mindful of the serious and violent nature of the offences for which the father was convicted, Alary J. still made a supervised access order, subject to a review after a short period of 6 months. In so doing, she concluded that the father "certainly has work to do to regain some degree of stability and demonstrate that he has created a healthy environment for the child" but she said that there was no reason to "totally suspend" his access. She found that C.S. had the right to see her father and to develop a relationship with him.

(2) The Child's Views and Wishes

[145] Despite these findings and the Order, the Society, the mother and the OCL argue that the child does not now wish to see her father, and that those wishes should be given paramount consideration.

[146] The child's evidence has not been consistent. On February 3, 2017, the child told Child Protection Worker Ms. Marks that she wanted to have visits with her father but that she could not remember him. The mother then tried to provide context to the worker, adding that the child just wanted a dad.

[147] On September 18, 2017, the mother reported to Child Protection Worker, Ms. Wisnowska that C.S. knows she doesn't see her father because he is "not a good man". There is also some evidence that the child has not been allowed to go out for recess because she has been told that there is a stalker after her, although the mother told the Society that she did not tell C.S. that the stalker is the father.

[148] On October 19, 2017, C.S. told Ms. Wisnowska that she does not remember her father and does not want to see him. Ms. Wisnowska deposed that C.S. would not answer other questions about her father (although she failed to advise the Court what those other questions were).

[149] This evidence of the child's views and wishes is hearsay. I nevertheless admit it pursuant to the state of mind exception to the hearsay prohibition. See Children's Aid Society of St. Thomas and Elgin v. A.H. at ¶ 39, 48-50; see also D.D. v. Children's Aid Society of Toronto at ¶ 37-39.

[150] However, the question then is what weight should this specific evidence have in the overall assessment of the evidence?

[151] Pursuant to the statutory best interests test under predecessor section 37(3) of the CFSA, the child's "views and wishes, if they can be reasonably ascertained" were one of 13 circumstances that the Court was directed to consider, if relevant. By contrast, the child's "views and wishes" are now front and center in the statutory best interests test in section 74(3) of the CYFSA. Moreover, the first sentence in the preamble to the new Act acknowledges that children "are individuals with rights to be respected and voices to be heard".

[152] However, the right to respect and to be heard is not tantamount to the right to decide. And despite their additional importance within the new statutory scheme, pursuant to section 74(3)(a), the child's views and wishes are to be "given due weight in accordance with the child's age and maturity, unless they cannot be ascertained".

[153] I look at those views and wishes in the context that I have before me. I find at this stage that I am only able to partially weigh this evidence. The most recent evidence that the child does not wish to see her father is not surprising to me. She does not know him. There has been a considerable disruption in their relationship, some of which is attributable to conduct on the part of the father but some of which may not necessarily be.

[154] There is also a considerable amount of fear on the part of the mother, which I address below. The child may be picking up on this fear. The child has been told that her father is "not a good man". I cannot determine what else she has been told or what other messages have been delivered.

[155] I also do not know whether the child would hold those views, for example, had the father been able to exercise the supervised access that Alary J. ordered. While the length of the disruption to the father-child relationship is not a disputed fact, I address below the possible reasons for the continued disruption in the relationship after Alary J.'s June 7, 2016 Order, and its possible impact on the child's wishes.

[156] I am not prepared to assign fault to either the father or the mother for the continued disruption at this stage, but the reason for it (ie. whether the mother frustrated the implementation of the Order versus whether the father was disinterested in pursuing access) is relevant to what efforts should be made now in the child's best interests. There will need to be a finding about this after the trial.

[157] In any case, at this stage, I am also left with the fact that the child is 7 years old. I am unable to conclude that it would be contrary to the child's best interests to have access to her father, based on a greater weighing of the wishes of a 7 year old, expressed under the circumstances of this case as they are currently presented.

(3) The Mother's Mental Health and Parenting Capacity

[158] Again, the mother says that her ability to parent C.S. will be compromised if the father is to have access with C.S.

[159] The mother's fears are profound. To the Society, she expressed her fear that the father will "exact revenge" on her. In early 2017, she reported to the Society her belief that he would harm her and C.S., and perhaps he would even murder them.

[160] The mother says she is suffering from depression, anxiety and post-traumatic stress disorder. On October 19, 2017, she told Ms. Wisnowska that she has good days and bad days. She is afraid to come to Court for fear of seeing the father.

[161] She is worried that C.S. having access to the father will trigger her own PTSD. On October 30, 2017, the mother told Ms. Wisnowska that she cannot parent if she is going through PTSD, depression and anxiety.

[162] The mother's fear is manifesting itself vis a vis C.S. in at least two ways. As set out above, at times, C.S. has not been allowed to go outside for recess as school. The mother has told C.S. that there is a stalker after her. The mother is co-sleeping with C.S., apparently to help the mother manage her own anxiety.

[163] There is some limited evidence before me about the steps the mother has taken to address these fears. On January 18, 2017, Ms. Marks recommended that the mother receive counselling. The mother indicated that she was open to it. On June 7 and August 8, 2017, the mother indicated that she was willing to go to counselling, and around this time frame, she advised the Society that she had obtained a referral to a trauma specialist.

[164] By September 18, 2017, the mother advised that she was attending therapy.

[165] Since January 2018, the mother she sees a trauma specialist weekly, although she saw that therapist in the past. She was not willing to work with a psychiatrist at CAMH because she does not wish to take medication.

[166] On October 30, 2017, the mother refused Ms. Wisnowska's suggestion of services to help prepare C.S. to start seeing her father. Rather, she indicated that she intended to present medical evidence about the impact of the father having access to C.S. on her. She says this evidence will establish that access would re-traumatize her, and that she will be unable to parent. She also disagreed with the suggestion that C.S. get any counselling.

[167] At this motion, the mother seeks to rely on hearsay and opinion evidence. The mother has tendered a one page, undated, unsigned, typed document purportedly authored by "Dr. LM, C.C.F.P. GP psychotherapist", purporting to comment on the mother's parenting capacity. The document states that her "ability to parent and function normally from a metal health perspective would be severely negatively impacted and would in fact negatively impact her ability to parent her daughter should [the mother] or even the child come in contact with [the mother's] perpetrator this would be the case".

[168] The document goes on to talk about a number of sessions during which the mother has commented about the impact on her should there be access. The author then states, "Also the fact that the daughter may come in contact with the perpetrator is greatly distressing to [the mother] and I believe it would also negatively impact on the psychological well-being of the child as it would raise many difficult questions about the relationship and how she came to be conceived and would force [the mother] to be traumatized again by having to tell of the events to her daughter. It would also traumatize and stigmatize the child".

[169] Separately, the Society seems to want to indirectly rely on the hearsay and opinion evidence of Dr. Katreena Scott. Ms. Wisnowska states in her affidavit sworn March 22, 2018 that on December 1, 2017, she attended a single consultation with Dr. Scott, Associate Professor in the Department of Applied Psychology and Human Development at the University of Toronto. Dr. Scott is also a trained clinical psychologist. Various other persons from the Society attended and the purpose of the consultation was "regarding the possible impact of [S.S.] having access with [C.S.]".

[170] Ms. Wisnowska desposes that she informed Dr. Scott of the father's criminal history, his denial of the past criminal conduct, and of his subsequent social media posts (discussed further below). Based on this consultation with Dr. Scott, Ms. Wisnowska says that the Society decided it would not recommend access take place between father and daughter for various reasons, including that the father needs to recognize and take responsibility for what happened between him and the mother in the past.

[171] Although the affidavit is carefully drafted so as to not expressly attribute the list of reasons that there be no access as being Dr. Scott's opinion, the message the Society wishes me to receive is just that.

[172] The mother's proposed report is not admissible. It is an unsigned document that does not even identify who the author is. While the document states it was authored by a "C.C.F.P. GP psychotherapist", no proof of this was tendered. The mother did provide any explanation in her affidavit as to the circumstances under which she obtained and tendered this document nor why she obtained an unsigned document with initials only.

[173] One possible way that this document might have been admissible is pursuant to section 52 of the Evidence Act. But the document does not meet any of the requirements of the Evidence Act. It is not signed, there is no proof of qualifications and no notice under the Evidence Act was given. There was no opportunity afforded to the father to cross-examine on it. Or perhaps the mother may seek to tender the opinion evidence of a treating health care provider as a participant expert in this case. However, it must be introduced properly.

[174] The Court is not prepared to rely on a short document, which on its face without more is seriously flawed, to make a profound order such as the one sought. If the mother (or any of the parties) seeks to tender proposed expert evidence at the trial that I am ordering, then I direct the parties to review ¶123-155 of Justice Sherr's decision in G.S.W. v. C.S., 2018 ONCJ 286 concerning a process to follow and the pitfalls to avoid. Likewise, if the Society wishes to tender opinion evidence about the impact of access on the mother's parenting capacity or on the child, then it should do so properly. Otherwise, the decision will rest on the admissible social work evidence, the admissible evidence of the parents and any other admissible evidence tendered.

[175] For the purposes of this summary judgment motion, I am not relying on any opinion evidence from the unnamed health professional working with the mother, or of Dr. Scott.

(4) The Father's Conduct

[176] The Court is significantly concerned about the evidence it has about the father's conduct towards the mother historically, and his ongoing behaviour, some of which he does not deny or address at all.

[177] The mother reported to the Society and to the Court that the father has made a number of postings on various social media websites, like Facebook, Craigslist and LinkedIn. He has also tried to find contact information for the maternal grandmother.

[178] Some of the internet postings are links to videos (I was not given the videos to review), but several of the postings are in print form and were attached as exhibits, which I did review. The printed postings are numerous (although some appear to be duplicates).

[179] I will not repeat the postings verbatim. But the postings identify each of the father, the mother and the child as involved in the proceedings. They refer to the mother's complaints against the father as "fake", accuse the mother of kidnapping C.S. to Toronto, and accuse her of being a liar. At least one lengthy posting purports to set out the father's history of this case, and portrays him as the victim. Another posting contains pictures that purport to be of the child's pets. The posting explains that the pets, that the child loved, were left behind when the father was arrested. And there is another post that appears to depict a portion of the child's face.

[180] At least one of the posts ends by saying "Your time will come" and another says "She is evil and will pay for her crimes". Both of these writings are clearly directed to the mother.

[181] The father has not denied that he is the author of these postings. Nor did he provide any evidence context evidence to explain why he thought posting such information was a good idea. He did not, for example, attempt to explain his inappropriate behavior in posting this information by saying that he was hurting, or frustrated from not having seen his daughter. His lawyer attempted to argue this in submissions.

[182] In addition to these posts, there is some other evidence that supports the Society's argument that the father is espousing hatred, or at least anger to the mother. On January 27, 2017, the father told Ms. Marks that the mother is a prostitute and a liar.

[183] The father has raised with the Society some old allegations that were previously dealt with. He complained to Ms. Marks that the mother was abusive to her sons. I note that the father had made complaints to Quebec's child welfare agency about the mother. The Quebec Superior Court referred to and dealt with those complaints in its reasons of June 7, 2016.

[184] The father has denied responsibility for the crimes for which he was convicted. According to Ms. Marks, on January 27, 2017, he denied either kidnapping the mother or forcing her into prostitution. He said the mother was already a prostitute. According to Ms. Wisnowska, on November 24, 2017, he told her and Mr. Cirha that he was falsely convicted. He said he was using social media as a way to fight the mother. He will stop if he gets contact with C.S. Importantly, the father has not denied making these statements to either Ms. Marks or Ms. Wisnowska.

[185] There are two topics in the evidence about the father's ongoing conduct that I am not prepared to rely upon. The mother claims that the father has been using the child's social insurance number to commit hydro fraud in Quebec. And there is an allegation that the father has been recently arrested for uttering death threats, based on his alleged plan to kill the mother after a May court date. Apparently the father has also threatened to "burn alive" any social worker, lawyer or judge who opposes his access.

[186] I am disregarding this evidence in my analysis because the source of this information is that of a former girlfriend of the father, from whom he has recently separated. The hearsay dangers of faulty perception, faulty narration and insincerity are evident. Neither the mother nor the Society made any attempt to address the "MacKenzie factors" in their affidavits, nor to satisfy the Court about threshold reliability in accordance with the principles in R. v. Bradshaw. I also note that I received no evidence to document a recent criminal charge regarding threats or hydro fraud, which could have been easily obtained and provided. Instead, I was given a police record which is the mother's email to the police complaining about the hydro fraud.

F. Application of the Legal Tests to the Evidence

[187] I find that the Society has failed to meet its onus required by Rule 16. The Society has failed to persuade the Court that there is no genuine issue requiring a trial concerning the father's access and that it is in the interest of justice that the case be decided summarily.

[188] Alternatively, I find that the father has set out specific facts showing there are genuine issues for trial.

[189] Finally, I find that it is in the interests of justice that the father's access to C.S. be determined at a focused trial.

[190] I say this for the following four reasons.

(1) The Evidence About the Interruption of the Father-Daughter Relationship Is Conflicting

[191] First, I have relied on Alary J.'s findings made on June 7, 2016. Fully aware of the father's criminal history, Justice Alary chose to make an access Order and that Order wasn't complied with. The fact it wasn't complied with lengthened the period of time that the father didn't see C.S., inevitably impacted the child's views and wishes, and in my view, this impacts the determination the Court must now make about whether father and daughter should be reunited.

[192] And the evidence about the reasons for this non-compliance is conflicting. This places the Court in a difficult position.

[193] At this point, the only Court that has had the opportunity to observe these parties and make findings of credibility has been the Quebec Court. I am now asked to make an Order for a different outcome based on a summary process. I appreciate that pursuant to Rule 16 (6.1) and (6.2), this Court may use expanded powers to weigh evidence, evaluate credibility and draw reasonable inferences for the purposes of determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice for such powers to be exercised only at trial.

[194] As set out above, I have considered the child's views and wishes and have ascribed minimal weight to them at this stage. I have only been able to partially weight those views and wishes given some unknowns in the evidence.

[195] In asking the Court to Order that the father not have access to C.S., the Society, the mother and the OCL rely in part on the fact that the child's relationship with the father has been interrupted for a considerable period of time. However, Alary J. already considered the disruption to the relationship between 2014 and 2016 on account of the father's incarceration, and still Ordered that father and C.S. be reunited.

[196] Concerning the father's interrupted relationship with C.S. after Alary J.'s Order of June 7, 2016, the mother's evidence of her efforts to set up supervised access coupled with her stated belief that she had authority to leave Quebec, and her belief that the father was disinterested in having supervised access, stands in stark contrast to the father's evidence of his efforts to set up supervised access that he says the mother frustrated. This conflicting evidence is squarely relevant to explaining the continued interruption in the father-daughter relationship upon which the Society, the mother and the OCL wish to rely. As set out above, this conflicting evidence is also relevant to my determination about whether the Court should make the no access order sought, a result that will not result in the reunion of the father and the daughter. And although it is not an excuse or justification, it may explain why the father has been behaving badly on the internet.

[197] The parents' conflicting affidavits on this point were sworn on April 11 and 12, 2018 respectively. While neither parent had a right of reply as this was the Society's summary judgment motion, neither sought leave to introduce additional evidence to respond to each others' version of events. Nor did either parent seek to cross-examine the other on their affidavits. And no party asked the Court to direct a Mini-Trial within the meaning of Rule 16(6.2) for the purposes of determining whether there is a genuine issue requiring a trial on these points, choosing to rely only the affidavit evidence before the Court. So the Court is left with conflicting evidence on this point.

[198] The explanation in the mother's affidavit, untested by cross-examination, concerning her departure from Quebec is not satisfactory to the Court at this stage of the case for it to conclude that the father should be disentitled to pursue his relationship to C.S. The mother claims that following the access Order, she telephoned the supervised access center named in the Judgment twice to arrange an intake. She says that she did not get a call back until the last week of October 2016, at which point she "had already made plans and was packed to go to Toronto to start a new life". Meanwhile, she says that she had not received contract from the father to her lawyer concerning the visits so she had just "assumed" that the father had disappeared and was not interested in visiting C.S. She also says she believed she could move with C.S. Due to the passage of time and the "lack of follow up by the access center", she says she thought the father had no intention of seeing C.S.

[199] The father's affidavit evidence, also untested, is that after the release of Alary J.'s June 7, 2016 Judgment, he telephoned the named supervised access center four times over the summer of 2016, plus he sent two emails. He says he contacted an alternate access center in an attempt to expedite the commencement of the supervised visits. He was able to tour the alternate access center, which he says had availability to begin supervised visits in August, 2016. But he says the mother refused to permit visits to occur at the alternate location. The father's evidence that the mother was in fact aware of his efforts but refused this alternate plan is hearsay of a social worker at the alternate access center. The mother did not respond to this evidence.

[200] According to the father, he later received a telephone call from the named access center on October 21, 2016, but at this point the mother "refused all appointments for [him] to see C.S." So the father then returned the matter to Court in Quebec, and his affidavit details various efforts he has made to participate in proceedings in both Quebec and in Toronto after that.

[201] In my view, there should be cross-examination to fully assess the argument about the impact that the father's absence from the child's life should have.

(2) There Is Insufficient Evidence About the Impact of Access Upon the Mother's Mental Health and Parenting Capacity

[202] There is no evidence about the impact of potential access on the mother's mental health and her parenting capacity other than her own say-so. While I am prepared to accept that the mother is very afraid of the father, I note that the mother expressed that fear to the Quebec Superior Court. Once again, Alary J. made an access Order.

[203] Regarding the subsequent evidence of the mother's fear and the impact on her mental health, I have no concrete medical evidence. I do not have evidence concerning the qualifications of the mother's treating health care provider. I do not have complete details of the frequency of the mother's visits with him or her, nor do I have evidence about the topics they discussed during therapy, nor about what treatment methods the health care provider has/is providing. Nor do I know what the mother told to the treating health care provider about the history of this matter. Nor do I have any evidence about whether the health care provider is of the view that there may be differing impacts on the mother's mental health, depending on the nature, frequency, extent and form of the contact between the father and C.S., if ordered. Nor do I know whether the mother can be supported if access is tried.

[204] I have no expert evidence about the impact to the child of reintroducing the father and the child, nor about how that should be tried, if at all. Nor do I have any evidence about the potential longer term impact on the child if an effort to reunite her with her father is not tried.

(3) The Court Is Unable to Make a Finding About the Father's Insight About the Child's Best Interests

[205] That evidence that I have accepted of the father's ongoing conduct is concerning. Although I have not been provided with the specific facts that supported the criminal charges to which the father pled guilty, the father continues to deny his guilt generally. This shows a lack of insight on his part and a failure on his part to acknowledge his actions.

[206] The father does not deny that he is the author of the internet posts that I have referred to nor did he deny the statement that Ms. Wisnowska attributed to him from their November 24, 2017 conversation that he intends to continue to post things on the internet until he gets access. Nor did he explain this intransigence in light of the undertaking he gave at the Quebec Superior Court on September 22, 2017 to stop posting. The father ought to have responded to this evidence if he wished to challenge it but he chose not to. I find that he is the author of these posts and that he intends to continue with the posts unless he gets access.

[207] The Society relies on the decision of Justice Ellen Murray in Catholic Children's Aid Society of Toronto v. N.B., [2012] O.J. No. 3241 in which she suspended a parent's access until he removed problematic internet postings. This decision is distinguishable. Murray J. did not permanently terminate the parent's access, which is what the Society now effectively argues for. Rather she did this on a temporary basis to compel compliance with the legislation.

[208] This does not mean that the Court approves of this conduct. The Court will consider this evidence at the trial as part of its assessment of whether to order access.

[209] While the father may very well be angry and frustrated that he obtained a Court Order for access that has been frustrated, it may be that he is trying to exact revenge as the mother says. I cannot determine this on the basis of the written record before me. But his refusal to acknowledge his past behaviour, his internet postings and his stated intention to continue positing into the future, shows poor insight into the harm and distress he has caused, and is causing the mother, and into the potential impact on the child if it impairs the mother's ability to parent. It also shows poor insight into how his own ongoing behaviour has contributed to the disruption to the father-daughter relationship. The father is warned to get this information off the internet.

[210] That said, the father is not completely without insight. There is some evidence of some insight. The Society was willing to work with the father surrounding access in the fall of 2017. The father spoke with Child Protection Worker, Edouard Cirha, in late September and into October 2017. The Society indicated it needed to do an assessment before it would recommend access. The father was willing to cooperate, and even followed up with the Society to pursue the assessment.

[211] In his affidavit sworn April 12, 2018, the father says that he remains prepared to work with the Society. He says he accepts the jurisdiction of this Court and the involvement of the Society. He says that he will accept fully supervised access, in Toronto, and he will commit to any schedule that the Society feels is in the child's best interests. He will attend each and every visit, and he will be on time. Despite his internet postings, he says he will be child focused and he will not speak ill of the mother to the child. During his November 24, 2017 meeting with Ms. Wisnowska and Mr. Cirha, he said similar things.

[212] During his November 24, 2017 meeting with Ms. Wisnowska and Mr. Cirha, he spoke positively of C.S. He said he misses her. And he was observed to be emotional when talking about C.S. In his affidavit sworn April 13, 2018, the father talks about the early role he was able to play as a father to C.S. in considerable detail. He also talks about the extended family support he has. I accept Alary J.'s finding that as of June 7, 2016, the father seemed sincere respecting his stated affection for the child and his desire to be involved with her. There is some evidence of continued sincerity before the Court at this stage.

(4) The Interests of Justice Require a Focused Trial

[213] In this case, neither the Society nor any of the parties asked the Court to hold a mini-trial pursuant to rule 16(6.2) to exercise the powers in rule 16(6.1). Despite that, I must still consider whether a mini-trial is a preferable option in this case. I am mindful of Sherr J.'s comments at ¶ 94-102 of Catholic Children's Aid Society of Toronto v. M. (A.), 2016 ONCJ 625 about the preferable procedure to follow to resolve the questions I have, articulated above.

[214] In this case, the parties are to be commended for having already narrowed the issues. Again, the father has also agreed to the jurisdiction of this court. The remaining issue before the Court, namely the father's access, is narrow and focused.

[215] The father seeks an access order but he has not brought a cross-motion for access. Thus, even if the Court were to hold a mini-trial to exercise the powers in Rule 16 (6.1) for this motion, the only question to be decided would be whether there is a genuine issue requiring a trial concerning the father's access, not what that access should be.

[216] If, on the mini-trial the Court determines that there is a genuine issue requiring a trial, then there would need to be a second hearing respecting the father's access.

[217] This would result in further delay.

[218] Given that the Quebec Court made findings about these parties and ordered supervised access, and given the conflicting evidence about what transpired thereafter, I am concerned about the message that would be sent generally if this Court made an order for no access using a summary procedure. While I do not intend to state that this could not be a possible outcome, in my view, it is not appropriate to deny access using a summary procedure in this case. Based on the prior proceedings, the record in this case, particularly the conflicting evidence and the absence of evidence to support certain arguments that have been made, and because of the profound order sought, fairness requires a trial.

[219] I am directing a trial because of the focused nature of what is left before the Court. While there may be evidentiary issues at the trial, the fact remains that this will be a single issue trial. In my view, the most just resolution is to exercise my powers under rule 16(9) and direct a focused trial concerning the father's access which result in a resolution to this issue one way or the other.

(5) The Cases in Which No Access Has Been Ordered

[220] The parties and the OCL have provided the Court with cases in which orders for no access have been considered. Some are child protection decisions and others are decisions made in custody and access cases. While a different statutory framework will apply depending on the nature of the case, many of the principles are overlapping.

[221] It goes without saying that each case turns on its own facts. In V.S.J. v. L.J.G. (2004), Justice Blishen provides a helpful summary of this difficult area of the law. I reproduce ¶ 131-140 and 143 verbatim:

[131] In considering these cases and others, the factors most commonly considered by the courts in terminating access are the following:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M. (B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, [2000] O.J. No. 3707.

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B.Q.B.); Abdo v. Abdo (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).

4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.

5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.

6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.

7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).

[136] None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child.

[137] Most of the factors listed above would also be relevant to a consideration of supervised access. As the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination. It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.

[138] Supervised access is seldom viewed as an indefinite order or long term solution. In M. (B.P.) v. M.(B.L.D.E.), supra, Abella J.A. states at para. 33:

The purpose of supervised access, far from being a permanent feature of a child's life, is to provide "a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used ... as a long-term remedy": Norris Weisman, "On Access after Parental Separation" (1992), 36 R.F.L. (3d) 35 at 74.

[139] There may be occasions, however, where medium or longer term supervised access is in the child's best interests. Professor Martha Bailey of the Faculty of Law at Queen's University questions what she considers to be the doctrinaire approach which assumes that long term supervised access is not in the best interests of the child and notes that this approach may undermine the child's right to maintain personal contact with the parent except where contrary to the child's best interests. In her article, "Supervised Access: A Long Term Solution?" 37 Family and Conciliation Courts Rev. 478 (October 1999), she states the following at p. 480:

The issue of whether long term supervised access is in the best interests of the child must be determined on a case by case basis, taking into consideration all circumstances relevant to the best interests of the child. The question then is whether there are any circumstances under which long term supervised access will be in the best interests of the child, even where unsupervised access is not a future option.

[140] In my view, supervised access, whether short, medium or long term, should always be considered as an alternative to a complete termination of the parent/child relationship. Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered. See Studley v. O'Laughlin, supra; Worthington v. Worthington (2000), 13 R.F.L. (5th) 220 (Ont.Sup.Ct.); Lacaille v. Manger 1994 CarswellOnt 2089; Dixon v. Hinsley, supra. If the purpose of supervised access is for the access parent to attend treatment or counselling and there is a refusal or unwillingness to follow through, then, to continue supervised access may not be viable option. See Pavao v. Pavao, supra; Gorgichuk v. Gorgichuk, supra.

[143] Such an extreme measure warrants the most serious consideration. It is necessary to weigh and balance numerous factors in the context of V.S.G.'s best interests, including:

1. The maximum contact principle;

2. The right of a child to know and have a relationship with each parent;

3. A limitation of a consideration of parental conduct to that conduct which impacts on the child;

4. The risk of harm: emotional, physical and sexual;

5. The nature of the relationship between the parents and its impact on the child;

6. The nature of the relationship and attachment between the access parent and the child; and,

7. The commitment of the access parent to the child.

[222] In summary, in this case, there is evidence that could support an order for no access. On the other hand, there is evidence that could support an order for supervised access. Whether that should be short term, medium term or long term remains to be seen. But supervision has not been tried after Alary J.'s June 7, 2016 Order.

[223] This Court's determination about whether to try access will turn in part on the credibility of the parents, an assessment about the benefits versus risks of access with conditions and the evidence of the impact of such access on the mother and consequently the child.

[224] The Court needs to observe the parents testify and hear the evidence in full, untainted by the flawed or incomplete evidence that is currently before the Court.

PART VI: ORDER

[225] Based on the foregoing, I make the following Orders:

(a) With the consent of the Society and the mother, and unopposed by the father and the OCL, the Court makes the statutory findings set out in paragraph 1(a) and (b) of the Society's Notice of Motion dated March 22, 2018 and this Court also finds that C.S. is not First Nations, Inuk or Métis pursuant to section 90(2) of the CYFSA;

(b) With the consent of the Society and the mother, and unopposed by the father and the OCL, the Court finds that the child C.S. is in need of protection pursuant to sections 74(2)(b)(i) and 74(2)(n) of the CYFSA;

(c) With the consent of the Society and the mother, and unopposed by the father and the OCL, pursuant to section 101(1)(1.) of the CYFSA, the child shall be placed in the care and custody of her mother subject to Society Supervision for a period of six months on the following terms and conditions:

(i) The mother shall allow the Society to have private access to the child, C.S., as requested and shall meet with the Society worker for scheduled and unscheduled meetings;

(ii) The mother shall inform the Society of any change of address or contact information and shall not leave the jurisdiction of the City of Toronto without the expressed permission of the Society; and

(iii) The mother shall sign consents to the release of information to the Society as requested by the Society;

(d) Paragraph 4 of the Society's Motion dated March 22, 2018 for an order that there be no access between C.S. and her father is dismissed on this summary judgment motion. There shall be a trial concerning the father's access to C.S. The Society is of course free to take the position that there be no access at the trial of the issue;

(e) All findings of fact and directions for trial are subject to the direction of the trial judge;

(f) The issues for trial are:

(i) Whether access between C.S. and her father is in C.S.' best interests;

(ii) Under what circumstances did the mother leave Quebec following Alary J.'s June 7, 2016 Order;

(iii) If access is in C.S. best interests, what schedule and what terms should be ordered;

(iv) What will the impact be on the mother's ability to parent C.S. if access is ordered;

(v) What conditions of access or services, if any, can be put into place to address any concerns respecting mother's mental health?;

(vi) What insight, if any, has the father gained into his conduct towards the mother?; and

(vii) What conditions or services, if any, including counselling should be required as either a pre-condition to access, or to support the father's access to the child?;

(g) Findings of fact are made at paragraphs 1-9, 12-22, 23, 25, 26, 28-38, 58, 100-108, 110-112, 144, 146-149, 153-157, 159-166, 177-184, 205, 206, and 210-212 of these reasons;

(h) The Court requires a copy of the facts upon which the charges were based to which the father pled guilty on June 22, 2015. This should be tendered by way of a transcript of the proceedings of the father's guilty plea on June 22, 2015. Either the Society or one of the parents shall obtain this. If there is any issue respecting obtaining the transcript, then this may be brought to my attention at the Trial Management Conference;

(i) There is a Court date already scheduled for July 26, 2018 in this matter. It shall be a held as a Trial Management Conference. The parties shall complete the Trial Endorsement Form, attached to these reasons;

(j) If either the Society, the mother, the father or the OCL intends to rely on expert evidence, then he or she should identify the expert and propose timelines for the delivery of any reports. The parties should discuss this in advance and shall come prepared to discuss any confidentiality issues and any disclosure issues; and

(k) The parties shall come to the Trial Management Conference and be prepared to identify what evidence will be admitted by affidavit. The affidavits shall not contain any hearsay or other inadmissible evidence unless the parties intend to seek its admission by way of a voir dire in accordance with the principles set out in R. v. Bradshaw.

Released: June 13, 2018

Signed: Justice Alex Finlayson