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.

Court Information

Ontario Court of Justice

Date: 2018-07-30

Court File No.: Toronto CFO-16-14254-B3

Between:

Children's Aid Society of Toronto Applicant

— AND —

S.M.T. and I.A. Respondent Parents

Before: Justice Sheilagh O'Connell

Heard on: February 16, 2018

Reasons for Judgment released on: July 30, 2018

Counsel:

• Julia O'Byrne — Counsel for the applicant society
• Denise Badley — Respondent Mother
• Ed Rice — Respondent Father

O'CONNELL J.:

Introduction

[1] The applicant, the Children's Aid Society of Toronto ("the Society") has brought a summary judgment motion seeking a finding that the children, Y. M.T., age two years, and Ya.M.T., age ten months ("the children") are children in need of protection pursuant to sections 37 (2) (b) (i) and (ii) of the Child and Family Services Act, 2010, now sections 74(2) (b) (i) and 74 (2)(h) of the Child, Youth and Family Services Act, 2017 ("the Act" or the "CYFSA"). The Society is also seeking the usual statutory findings regarding the children's legal names, dates of birth, religion, status, and parents' legal names.

[2] The Respondent are the biological parents of both children. They are opposed to the society's motion regarding the protection findings. It is their position that there are genuine triable issues regarding whether these children are in need of protection. They seek a dismissal of the summary judgment motion and an order that this case proceed to trial.

[3] The parents are not opposed to the order being sought regarding the usual statutory findings and accordingly, I make statutory findings of facts regarding the children's full legal names, dates of birth, the parents' full legal names, religion and the children's non-First Nations, Inuk or Metis status in accordance with paragraphs 1 (a) and (b) of the society's notice of motion for summary judgment.

[4] The issue to be determined by this court on the society's summary judgment motion is the following: is there a genuine issue requiring a trial that the children are in need of protection?

[5] In support of its summary judgment motion, the Society relied upon the following evidence:

1. The affidavits of Fatima Murtaza, sworn January 10, 2018;
2. The affidavit of Kerry Mulligan, sworn January 29, 2018;
3. The affidavit of Heather Kelly, sworn January 29, 2018 and February 7, 2018;
4. The affidavit of Natalie Sosa, sworn January 19, 2018;
5. The Agreed Statement of Facts, dated November 20, 2015;
6. The Brief of Business Records regarding the children;
7. The Brief of Practitioners' Reports;
8. The Ruling of Justice Manjusha Pawagi dated May 5, 2017;
9. The Endorsement of Justice Brian Scully, dated October 20, 2017.

[6] In response to the motion, the parents relied upon the following materials:

1. The father's affidavit sworn February 9, 2018 and attached exhibits, including medical reports;
2. The mother's affidavit sworn February 7, 2018 and attached exhibits, including medical and hospital reports;
3. The mother's Answer and Plan of Care, dated January 16, 2018 and attached exhibits;
4. The mother's Amended Answer and Plan of Care, dated January 16, 2018 and attached exhibits;
5. The father's Answer and Plan of Care dated January 23, 2018;
6. The father's Amended Answer and Plan of Care dated January 23, 2018.

Background

[7] The two children who are the subject of this protection application are the Respondent parents' only children together.

[8] The parents met in Toronto while attending school to learn English. They began a relationship and continue to be in a relationship, however, they do not live together.

[9] The mother does not have any other children and no previous involvement with child protection agencies.

[10] The mother was born in Afghanistan and came to Canada as a refugee in 2006 after suffering very severe abuse from her former husband. After one assault, she suffered a fractured skull and facial bones and was rendered unconscious, leading to a lengthy hospitalization and recovery. She struggles with ongoing depression and has a history of depression, schizophrenia and anxiety. She is currently under the care of a psychiatrist and receives ODSP (Ontario Disability Support Program) as her source of income. The mother is stable and compliant with her medication.

[11] The father has lived in Canada for many years. He is also under the care of a psychiatrist and receives ODSP as his source of income. The father filed a report from his psychiatrist, which was admitted on consent of the parties. The father has been under psychiatric care for six years as a result of "personality traits that are somewhat outside the normal" as the father describes in his own affidavit. According to the father's psychiatrist, the father has "strong beliefs in his rights including and especially those pertaining to his role as a father, and opposition or prevention or questioning of those rights is likely to provoke a volatile and vociferous response … it is this kind of response that produces concern" and questions about "his ability to keep his anger under control." However, the psychiatrist also reports that, "in his contact with me [the father] can and does become vociferous, speaking loudly and quickly but never becoming threatening in any way, neither verbally nor physically."

[12] The father has six other children with his previous partner, Ms N. A. He has had previous child protection involvement regarding these children. On November 30, 2015, the father signed an Agreed Statement of Facts regarding the child protection proceedings for these children. On January 12, 2016, Justice Brian Scully made a final order finding that the father's three youngest children of his previous relationship were in need of protection pursuant to section 37(2) (g) [risk of emotional harm to the children] under the Child and Family Services Act. These children were placed in the care and custody of their mother, the father's former spouse, pursuant to section 57.1 of the CFSA.

[13] According to the Agreed Statement of Facts in the father's previous child protection case, the protection finding was based on the society's verified risk of emotional harm to the children due to the parents' mental health issues and the partner violence in the home. The following facts were agreed upon by the parties to that child protection case:

a. In February of 2012, the father was charged with assault with a weapon (x3) and threatening death (x1) against his previous wife after she reported that he had assaulted her on three occasions and threatened to kill her.

b. At paragraphs 4 and 5 of the Agreed Statements, the mother's report of the father's violence towards her on different occasions are described in detail. The children were present for some of the domestic violence.

c. The parents remained separated and the mother indicated that she would not allow the father back in the home and if he attends the home, she would ask him to leave or call the police.

d. The mother and the children obtained stable housing and supports and were well-connected to the Afghan Women's Association.

e. The children reported positive visits with their father out in the community, such as in a library or other venues. The children were doing well in school.

[14] Although the father acknowledges that he signed the Statement of Agreed Facts which formed the basis of the protection finding in his previous case, he denies all of the domestic violence reported in the Statement of Agreed Facts. He states that he only agreed that the mother made certain reports regarding domestic violence and that there were criminal charges laid against him. These charges have now been dismissed or withdrawn. He further states that he only signed the Agreed Statement in order for the children to be returned to their mother and so that he could have "an unfettered relationship" with them.

[15] The father acknowledged that he had independent legal advice and counsel at the time he signed the Statement of Agreed Facts.

The Current Child Protection Application

[16] This child protection application was commenced on June 4, 2016, approximately one month after the birth of Y. The Society received a call from the Neonatal Intensive Care Unit at Mount Sinai Hospital on May 4, 2016, three days after Y.'s birth. Following a traumatic birth, Y. was admitted to the Neonatal Unit. He was determined to be a "Code Pink", which means that his heart beat and breathing dropped below normal, resulting in an emergency Caesarean. Hospital staff expressed concerns about the parents' parenting ability and the father's volatile and angry behaviour to the hospital staff and others. The hospital staff were fearful of the father and his reactions. Further, the mother had only visited the baby twice, despite also being a patient at the same hospital.

[17] A society intake worker attended the hospital and met with the parents and went over the hospital's concerns. The worker advised the parents that the hospital staff and doctor needed to see the parents care for the baby, including attend the next three feedings, including one overnight feeding, change the baby's diaper without being prompted and put at least one outfit on the baby. The worker observed that the father became very angry and agitated when she tried to explain these concerns and that she had to re-direct the father's focus on the baby.

[18] The parents were able to demonstrate their ability to feed and diaper the baby and the baby was discharged to the parents' care with the agreement that the worker would attend their home on May 9, 2016 with a high risk infant nurse.

[19] When the worker and the high risk infant nurse attended at the parents' home, the father became very agitated and would not allow the society to have any access to the baby without a court order.

[20] As a result, the society commenced this protection application and on June 1, 2016, Justice Penny Jones made a temporary without prejudice order placing Y. in the care and custody of the mother subject to the supervision of the society. Access to the father was at the society's discretion.

[21] On May 5, 2017, when Y. was 12 months old, Justice Manjusha Pawagi ordered Y. into the temporary care and custody of the society. The society had brought the motion for temporary care and custody of Y. due to the society's concerns that the parents were not adequately feeding Y. or providing him with adequate stimulation, and that they were not abiding by the terms of the supervision order.

[22] In written reasons explaining her ruling, Justice Pawagi concludes the following at pages 9 and 10 of her decision:

"While the parents love their child, Ms T.'s cognitive issues and Mr. A.'s personality issues appear to be interfering with their ability to care for Y. They are not feeding Y. enough and they are not providing him with enough stimulation …The current supervision order has been in place for nine months and the result that Y. is underfed and under stimulated clearly demonstrates that a supervision order is not adequate to protect this child."

[23] On September 20, 2017, the parents' second child was born. This child was apprehended at birth by the society. On September 26, 2017, Justice Brian Scully ordered that Y., the second child, be placed in the temporary care and custody of the mother, subject to society supervision, with the following terms and conditions:

a. The child shall not be left unsupervised in the care of either parent;

b. The society shall be permitted to attend at the home for announced and unannounced visits;

c. The family shall permit the society's infant nurse specialist to examine and weigh the child on both announced and unannounced visits;

d. The parents will participate in a parenting course or program recommended by the society and further courses as deemed necessary;

e. The child shall be taken to an Early Years Centre at minimum three times per week;

f. Both parents shall follow the recommendations of all professionals involved with the child with regard to his health and wellbeing.

[24] This parents' second child continues to reside with the mother, subject to the temporary supervision order. Currently, the father's adult daughters from his first marriage (the subject children's half-siblings), the maternal aunt, and the father's former wife from his first marriage assist with the supervision of both parents in the mother's home. In addition, the parents' access to their oldest child Y., has been significantly increased to approximately three or four days each week, including overnight access at the mother's home, subject to the same terms of supervision.

The Law and Governing Principles

[25] The society brings this motion pursuant to Rule 16 of the Family Law Rules, O.Reg.114/99, otherwise known as the summary judgment rule.

[26] The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[27] Pursuant to subrule 16 (4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See: Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court).

[28] Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[29] Subrule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

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

[30] Pursuant to subrule 16 (6.2), the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[31] Rule 16 is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim or defence, then the court must make a final order.

[32] In the leading case of Hryniak v. Mauldin, 2014 SCC 7 (the "Hryniak" decision), the Supreme Court of Canada sets out the process to be followed on summary judgment motions.

[33] 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 (set out in subrule 16 (6.1) of the Family Law Rules).

[34] 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 powers set out in subrule 16 (6.1). These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion.

[35] 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 of the Hryniak decision).

[36] 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 of the decision). This is the mini-trial procedure set out in subrule 16 (6.2) of the Family Law Rules. 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).

[37] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).

[38] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: 1) allows the judge to make the necessary findings of fact; 2) allows the judge to apply the law to the facts; and 3) is a proportionate, more expeditious and less expensive means to achieve a just result (paragraph 49).

[39] 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 (paragraph 34). These reforms embody the evolution of summary judgment rules from highly restricted tools used to weed out clearly unmeritorious claims or defences to their current status as a legitimate alternative means for adjudicating and resolving legal disputes (paragraph 36).

d) The Ontario amendments to the summary judgment rule 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).

[40] It is well established in the case law that the Hryniak decision applies to child protection cases. 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 ONCJ 4474, 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 ONCJ 9; and Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court), at paragraph 38.

[41] In the recent decision of the Divisional Court in Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court), the Court set out the following in applying Hryniak to child protection cases:

a) Neither party has the onus of establishing who will succeed at trial. That is the wrong question. Pre-Hryniak case law where courts examined whether a party has any reasonable chance of success no longer applies (paragraph 45).

b) The key question is whether it is in the interest of justice for the court to resolve the case summarily? To do so, the court is required to consider whether the process allows it to make the necessary findings of fact, to apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure (par.46).

c) The summary judgment process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial (par. 43).

d) The burden of proof is on the party who moves for summary judgment. Sanzone v. Schechter, 2016 ONCA 566 at para. 30. Under Rule 16 (4) the moving party must "set out specific facts showing that there is no genuine issue requiring a trial." The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hryniak (par. 48).

e) Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:

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 (par. 49).

f) In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, affirmed 2014 ONCA 878, Corbett J. confirmed the continued applicability of the rules requiring the responding party to "put its best foot forward" or "lead trumps or risk losing". Combined Air Mechanical Services v. Flesch, 2011 ONCA 764 at para 56; Bhakhri, v. Valentin, 2012 CarswellOnt 6667 (S.C.J.), para. 7; Pizza v. Gillespie (1990). The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 at para. 30 (paragraph 50).

[42] There is a long standing and well-established legal principle that courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. Although the Divisional Court in Kawartha-Haliburton Children's Aid Society v. M.W., supra, cautioned against the use of "pre-Hryniak" case law, in my view, this principle of law is not in conflict with the principles enunciated by the Supreme Court of Canada in Hryniak.

[43] It is clear from reading the Divisional Court's decision that the court was referring to the body of pre-Hryniak case law in which courts examined whether or not a party has any "reasonable chance of success", which according to the Divisional Court, is no longer the correct question since Hryniak. The key question now is whether it is in the interest of justice to resolve the case summarily.

[44] In my view, when answering this question, judges should continue to be cautious in child protection cases. When the state commences child protection proceedings against vulnerable and often marginalized parents that could lead to the removal of their children, judges, in the exercise of our gate-keeping function, must be particularly vigilant and careful in the summary judgment process. The principles set out in Hryniak and in Kawartha-Haliburton v. M.W. do not contradict this important principle.

The Evidentiary Standard on Child Protection Summary Judgment Motions

[45] The evidentiary standard required on a summary judgment motions was recently addressed by Justice Stanley Sherr in the decision Catholic Children's Aid Society of Toronto v. C.G. and D.S., 2018 ONCJ 193. Justice Sherr explains the following at paragraphs 11 to 14 of that decision:

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

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

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

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

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

[46] Given the very high stakes for parents and children in these cases, the trial worthy evidentiary standard should apply.

The Law Regarding the Protection Finding

[47] The protection finding is essential in child protection cases. If a protection finding is not made, then no further orders, neither protection orders, supervision orders, nor section 102 custody or access orders are permissible. The case is over and the Society's application must be withdrawn. In Chatham-Kent Children's Services v. C.P. and W.G., 2014 ONCJ 395, Justice Kukurin explains the following at paragraph 13 of his decision:

"The justification for society intervention in the lives of families is the protection of children. The society's authority is subject to a number of procedural checks and balances in the Act, and ultimately to judicial oversight. The pivotal point in a child protection case is the finding that a child is in need of protection. The court is statutorily mandated to make a determination when a child protection application is commenced. The hearing of that issue is subject to some time limits. If a finding is not made, no further orders, neither protection orders nor s.57.1 custody or access orders are permissible. The child protection case ends. Accordingly, the finding is essential. The society now seeks this finding by way of summary judgment. For the court to reach this finding, it must be satisfied on the evidence that there is no genuine issue with respect to a finding that requires that issue to be dealt with in the context of a trial. Essentially, it must be satisfied that such a finding is inevitable, or a foregone conclusion. The summary judgment provisions, in Rule 16 of the Family Law Rules, place an obligation on Respondents in summary judgment motions to put all their evidence before the court, to put their best foot forward, and to do so with facts."

Section 74 (2) (b) (i): The Finding of the Risk of Physical Harm

[48] Section 74 (2) (b) (i) provides that a child is in need of protection where there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's failure to adequately care for, provide for, supervise or protect the child.

[49] The Society must prove that the risk of physical harm is real and likely, not speculative. The Society does not need to prove that the parent intended to cause harm in order to find a child in need of protection. Physical harm can be caused by unintentional neglect or an error in judgment. However, it must be more than trifling physical harm. A child may be at risk even if the conduct is not directed specifically towards that child.

[50] Although there is some conflict in the case law, the court can chose a flexible approach when considering the timing of the protection finding in a child protection proceeding. The court can and should admit evidence arising at any time up to the date of the court hearing. In The Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., 2001 ONCJ 5754 (Ontario Superior Court of Justice), Justice George Czutrin rejected the parents' submissions that the court could only consider the evidence available at the time of the initial apprehension or protection application and that the court cannot consider any subsequent facts in determining the question of whether the child is in need of protection. Justice Czutrin stated the following at paragraph 49 of that decision:

"The conclusion that s. 37(2), 47(1) and 57(1) refer only to the start date is to interpret the Act in a manner that would undermine the purposes of the CFSA. If under the CFSA the only time that can be considered when determining protection is the start date, it might result in the court returning a child to a person even if the court came to the conclusion the child was in need of protection at the time of the hearing as opposed to the date of apprehension. This could potentially put a child in need of protection and potentially at risk, and would require a new apprehension after return. This cannot be in the best interests of a child. The legislation emphasizes the need to avoid having children in limbo. It cannot be in the child's best interests to create such a scenario. The act intends to eliminate delays within the Child and Family Services Act and places limits on how long children can spend time in care. Restricting the relevant date for a finding to the start date is an interpretation that conflicts with the other sections of the Act and may be contrary to the best interests of protecting children from harm. It is contrary certainly to the direction of the Supreme Court of Canada." [paragraph 49].

[51] The recent decision in N.V.C. v. Catholic Children's Aid Society of Toronto, 2017 ONSC 796 appears to contradict this decision as the court found that the finding of risk of harm, and hence the child's need for protection, must be determined at the date of the hearing and not at the date of apprehension or the beginning of the child protection application.

[52] However, this approach was rejected by Justice Manjusha Pawagi in Children's Aid Society of Toronto v. S.A., 2017 ONCJ 366, following Justice Czutrin's decision in Children's Aid Society of Hamilton-Wentworth v. K.R., supra, above. Justice Pawagi stated the following at paragraphs 24 and 25 of that decision:

"A restrictive approach focusing only on the circumstances as of the date of the protection hearing based on the present tense wording of the finding provision in the CFSA (whether the child "is" at risk), is inconsistent with the purpose of the Act as a whole, the provisions of which cannot be considered in isolation but rather as part of a legislative framework to promote the best interests, protection and well-being of the child.

To hold otherwise would make subsection 57(9) of the Ontario Act superfluous. If the only time that the court could consider for a protection finding was the time of the hearing there would never be a need to utilize subsection 57(9) which is for circumstances where the concerns relating to the finding no longer exist and thus no disposition order is required." [paragraphs 24 and 25.]

[53] In my view, this is the correct approach and it is consistent with most of the case law on this issue, following Justice Czutrin's decision.

The Evidentiary Record in this Case

[54] In the case before me, the court must determine if the society has proven, on a balance of probabilities, that there is no genuine issue requiring a trial of the issue that the children are in need of protection under section 74 (2) (b) (i) of the CYFSA.

The Oldest Child's Weight Gain

[55] Following the commencement of the protection application, it is not disputed that on November 11, 2016, the former family service worker and both parents attended Y.'s appointment with Dr. Katy Driver, his pediatrician at the time. Dr. Driver went over feeding with the parents and the father agrees in his affidavit that this was a session in which the parents were feeding the child in the presence of the doctor and the family service worker.

[56] Dr. Driver was Y.'s pediatrician. Dr. Driver had been the pediatrician for the father's older six daughters from his previous relationship as well. The father attached Dr. Driver's clinical notes and records regarding Y., recorded by Dr. Driver at each medical check-up, to his Affidavit (Exhibit "B"). The notes and records are regarding several medical appointments with the child and the parents between May 31, 2016, when Y. was one month old, and March 31, 2017, until Y. was approximately 11 months old. These records were admitted on consent of the parties as business records, and therefore an exception to the hearsay rule.

[57] According to those records, relied upon by the father in his affidavit, it is not disputed that following medical visits with Y. and the parents, on July 4, 2016, Dr. Driver recorded "feeding problem"; on August 18, 2016, Dr. Driver recorded "slow weight gain"; and on November 20, 2016, Dr. Driver recorded "poor weight gain" and "no weight gain" for Y. in her clinical notes and records. Following a visit with the parents and Y. on November 20, 2016, where Y. was weighed at 6.8 kilograms, Dr. Driver records the following: "CAS? High risk infant nurse to go in house."

[58] It is further not disputed that subsequently, an infant nurse specialist began regularly attending the mother's residence from December of 2016 to February of 2017 and worked with the family around Y.'s feeding. Y. was regularly weighed during those appointments. A Dari interpreter regularly attended as well to assist the mother.

[59] According to affidavit of former family service worker Kerry Mulligan, sworn January 29, 2018, Ms Mulligan and the infant nurse attended the parents' home on January 9, 2017 with the Dari interpreter. Ms Mulligan observed the nurse weigh Y. and he weighed 7.51 kilograms, which was the same weight from the previous visit on January 9, 2017. It is not disputed that Y. had not gained weight in two weeks. Ms Mulligan and the infant nurse discussed the child's feeding routine.

[60] The mother acknowledges in her Affidavit that she was advised to increase the amount of food that she was giving Y. and that she "did give more food as per instructions." The father also acknowledges this in his Affidavit and deposes that the infant health nurse "did suggest that we increase the amount of food that we give Y. and we did so as instructed."

[61] On January 31, 2017, approximately two weeks later, the family service worker and the infant nurse attended the home again as scheduled. The mother advised the family service worker that the child was eating more. Y. was weighed by the infant nurse in the presence of the mother and the family service worker. He now weighed 7.63 kilograms, a small gain from 7.51 kilograms two weeks previously. It is not disputed by either parent that they were advised that Y. had not gained enough weight.

[62] During that visit, it is not disputed that the father expressed concerns about "over-feeding the child". The parents acknowledged concerns, but the mother states in her affidavit, that "the parents wanted to feed his appetite and not have to force feed him when Y. refused food." The father denies stating that Y. would get fat if they overfeed him, but did acknowledge that he "did not see the benefit of trying to force-feed him when he refused the food."

[63] It is further not disputed by the parents that during the following three home visits with the infant nurse, Y.'s weight gain was the following:

a. February 9, 2017: 7.69 kilograms;

b. February 14, 2017: 7.80 kilograms;

c. March 2, 2017: 7.92 kilograms;

[64] On March 31, 2017, it is not disputed that Ms Milligan, the former family service worker, attended Y.'s appointment with the parents and Dr. Driver. During that visit, Y. was weighed at 8.03 kilograms. It is not disputed by the parents that Dr. Driver told the parents during that visit that this was not enough weight gain. Dr. Driver also assessed Y.'s development during that visit.

[65] The father became agitated, aggressive and angry during that visit with Dr. Driver, as was directly observed by the family service worker, recorded in Dr. Driver's clinical notes, and not disputed by the father. After that visit, it is not disputed that the parents terminated all involvement with Dr. Driver. According to the father's affidavit, when describing the parents' last appointment with Dr. Driver on March 31, 2017 at paragraph 99 of his Affidavit: "it seemed to me as I have stated before by that time [Dr. Driver] had completely adopted Ms Milligan [family service worker]'s point of view and frankly speaking to her was not much different than speaking to Ms Milligan which is why we ultimately decided to change doctors. I note that on this occasion, Dr. Driver's notes were two pages when all of her previous notes were quite succinct."

[66] On April 7, 2017, a new infant nurse specialist attended the mother's home with Ms Milligan. Y. was 11 months old at that time. Y. was weighed and it is not disputed that he was now 8.15 kilograms. On April 20, 2017, it is not disputed that Ms Milligan and the new infant nurse again attended the family home. During that visit, Y. weighed 7.95 kilograms, a loss of 200 grams and back to his weight in February of 2017.

[67] On April 17, 2017, at the request of the society, Dr. Driver wrote a letter in which she stated that it was her professional opinion that Y. was underfed and under stimulated. She further explained how Y.'s weight gain was in the 10th percentile up until the age of 6 months old, but from the seventh month onwards, his weight gain slipped down to the 3rd percentile.

[68] The society filed and relies upon Dr. Driver's report in this motion. It is not seeking to qualify her as an expert but to rely upon her as a practitioner and treating physician, who has expressed an opinion not as a "litigation expert", but as a "participant expert", based on her experience, direct observation and participation with Y. and the parents during the first eleven months of Y.'s life as Y.'s treating pediatrician. Her report was served and filed in accordance with section 52 of the Evidence Act.

[69] The parents object to the admissibility of Dr. Driver's report and professional opinion at this summary judgment hearing and argue that it is unreliable hearsay. According to the father, "Dr. Driver formed a bond with social worker Kerry Milligan of the CAS and that at some point in time, her diagnosis and treatment recommendations and her relationship with [the parents] began to mirror that of Ms Milligan."

[70] Yet the father acknowledges in his affidavit that Dr. Driver has been the pediatrician for his older six daughters for several years and that he had "been pleased with her". He further acknowledges that he and the mother chose Dr. Driver as their pediatrician because of this and that he was "initially pleased with the way that she was following Y." During the temporary care and custody hearing, he also provided a previous letter from Dr. Driver dated January 30, 2015 stating that the father is "a caring and concerned father". That letter predates the birth of Y. and was regarding his six older children in his other child protection case.

[71] All of this supports the finding that Dr. Driver, as a long-standing treating physician for the father's older children for a number of years, and the pediatrician for Y. from birth until he was 11 months old, is not a "puppet" or "hired gun" of the society. It is reasonable to conclude that she has formed her opinion based on her participation, treatment, experience and observations of the parents and the child over a significant length of time.

[72] In my view, following the approach by Justice Roselyn Zisman in Jewish Family and Child Service v. S.K., Dr. Driver's report is admissible as a treating practitioner's report, in accordance with section 52 of the Evidence Act, just as the reports of Dr. Render-Teixeira, and Dr. Kingstone, both filed and relied upon by the parents in the summary judgment motion, have been admitted. I adopt the approach taken by Justice Roselyn Zisman.

[73] Furthermore, and most significantly, the parents do not dispute the child's recorded weights, his low weight and his lack of weight gain. What they dispute is what the low weight gain means and how it should be interpreted.

[74] According to the parents, Y. is small and appears underweight because of his ethnicity and DNA. Both of the parents are small, and according to the father, it is not possible to conclude neglect or inadequate feeding simply from a child's position on a growth chart. He relies upon various articles about growth charts and children's health when he deposes that "healthy children come in all shapes and sizes and the baby who is in the fifth percentile can be just as healthy as the baby who is in the 95th percentile."

[75] While this is true, the parents have no explanation for why Y. was steadily in the 10th percentile on the growth chart from birth to six months, but then dropped to the 3rd percentile at seven months, when Dr. Driver began recording her concerns about the parents' feeding of the child according to her clinical notes and records filed as business records in these proceedings.

[76] Further, it is not disputed that after the child was placed in the care of the Society, his weight has steadily increased. On July 31, 2017, Y. weighed 8.67 kilograms, an increase from 8.13 kilograms. On October 16, 2017, Y. was seen by Dr. Amber Makino. At that time, according to the report filed, he weighed 10.1 kilograms and was now in the 25th to 50th percentile on the growth chart.

[77] There is no plausible explanation for this other than the fact that the parents were not feeding Y. enough while he was in their care initially, whether intentionally or not. The court is in no way suggesting that the parents were intentionally doing this. They clearly love their children very much, as all independent professionals have observed and is not disputed.

[78] The parents further depose that during a period of time when Dr. Driver was on a medical leave of absence for a few months as a result of a broken hip, they used their family doctor, Dr. Render-Teixeira as Y.'s doctor. According to the father, Dr. Render-Teixeira had "a completely different view of the family". Dr. Render-Teixeira's clinical notes and records were also attached to both the father's and mother's affidavit.

[79] Dr. Render-Teixeira met with Y. and his parents on February 14, 2017, March 7, 2017 while Dr. Driver was on medical leave. He was weighed on each of those visits and weighed 7.8 kilograms, 7.89 kilograms. This is not in conflict with Dr. Driver's or the infant nurse's recorded weights. However, on April 3, 2017, after the parents' terminated their relationship with Dr. Driver, they met with Dr. Render-Teixeira and the child's weight gain had increased to 8.13 kilograms.

[80] However, the parents do not dispute that on April 20, 2017, the child's weight had dropped again to 7.95 kilograms. Further, there is no plausible explanation for Y. increase to the 25 to 50th percentile after coming into society's care.

[81] Dr. Render-Teixeira also met with the mother and Y. on May 20, 2016 and May 26, 2016, for well-baby checks prior to the parents transferring Y. to Dr. Driver's care, according to the clinical notes and records attached to the mother's affidavit and admitted on consent of the parties as business records. According to Dr. Teixeira's notes and records, Y. weighed 2.83 kilograms on May 10, 2016, nine days after his birth, and on May 26, 2016, he weighed 3.55 kilograms. However, Dr. Teixeira did not see Y. again until February 9, 2017 when Dr. Driver was on medical leave. There is no evidence that Dr. Render Teixeira had been provided with his prior weights for comparison once the parents returned to Dr. Teixeira in 2017.

[82] Dr. Render-Teixeira also records on February 14, 2017 that Y. is "alert, happy, playful, babbling, squealing" during his visit. She further records that Y. is "observed to sit up without assistance and tripod, some lack of balancing uprightseemed like he would slide to side while sitting if father did not hold him. Stands with mild support on arms, cannot stand with hands held only."

[83] Further, in the same records relied upon by the mother, under the "Rourke Baby Record Guide Chart" for February 14, 2017, Dr. Render-Teixeira notes that Y. has not attained the developmental milestone of sitting without support under the "Development" section of this chart. [See Exhibit "A" to mother's affidavit sworn February 7, 2018.] Y. is 9.5 months old at this time. This observation is consistent with the direct observations of Ms Milligan, the former family service worker and Dr. Driver in her notes and records.

Developmental Delay

[84] Dr. Driver also expressed concern in her report of April 17, 2017 that the oldest child Y. appeared under stimulated and may have developmental delays, based on her observations. The family service worker, Ms Milligan, sets out in detail her direct observations in her Affidavit dated January 29, 2018, regarding Y.'s development and whether he was meeting his developmental milestones. As indicated above, the parents' family doctor, Dr. Render-Teixeira also observed that Y. was not meeting some of his developmental milestones during her check-up with him on February 14, 2017 while Dr. Driver was on medical leave, according to the clinical notes and records attached to the mother's affidavit.

[85] It is clear that the parents initially denied that there were any concerns regarding the oldest child Y.'s developmental milestones. In her written reasons for decision at the temporary care and custody hearing for Y., dated May 5, 2017, Justice Pawagi writes that "The parents' response to the Society's and Y.'s pediatrician's concerns about developmental delay is that Y. is meeting all his milestones appropriately and the Society is not taking into account his different ethnicity." [See page 7 of Justice Pawagi's reasons].

[86] However, at the summary judgment hearing, the parents' position had changed. Both parents now acknowledge that Y. has some developmental delays. They accept the findings of Dr. Amber Makino of the Holland Bloorview Kids Rehabilitation Centre, who assessed Y. on October 16, 2017 with the parents and society present, and met with the parents again on Feb 6, 2018. In Dr. Makino's initial assessment and report, attached to the mother's Affidavit at Exhibit "C", Dr. Makino concludes at page 3 of her Report the following:

"Currently my impression is that Y. presents with mild developmental delay in all areas of development. Currently these delays are not significant enough to be consistent with global developmental delay and with ongoing supports in place, he will continue to make gains in his development. As Y. was quite upset, it was difficult to do a thorough neurological exam and his head circumference is larger and needs to be monitored….I would like to see him again in four months' time to check on his progress and re-attempt a physical exam."

[87] However, notwithstanding the above, both parents believe that Y. has become developmentally delayed in care and that he was never developmentally delayed in their care. At paragraph 42 to 44 of the father's affidavit sworn February 9, 2018, he deposes the following:

"42. We [the parents] attended a second meeting at Holland Bloorview on February 6, 2018, at which time the doctor indicated to us that Y. should be getting his phsyio and occupational therapy which we agreed.

43. He [sic] also indicated to us that Y. has developmental delays which I agree with, which is why the above therapy, I think is appropriate. We also informed him that Y. cannot speak more than 6 words. He expressed some surprise sine the foster mother had indicated that he can speak 20 words, which is in fact not true.

44. Although it is not stated by Dr. Machimo [sic], I think she went a long way towards validating my concerns about the treatment that Y. received while in care. Initially while in care, I believed that he did not get the same intimate or delicate care that he was getting at home because he was repeatedly appearing with bruises and sad and withdrawn when he came for visits."

[88] The mother echoed the same concerns in her affidavit evidence in this motion. The evidence is uncontradicted that both parents believe that Y. is being maltreated in the society's care and that he repeatedly appears with bruises, cuts and scratches and that he is not being properly cared for. Both parents acknowledge these concerns in their Affidavit and during the course of the hearing. A police investigation was launched and Y. has been examined regularly by multiple doctors to address the parents' concerns. It is not disputed that there has been absolutely no evidence of intentional injuries or maltreatment and that any bruising and scratches the child may have were the result of crawling or falling.

[89] Notwithstanding the uncontradicted evidence that Y. was presenting with some developmental delay prior to his removal from the parents' care, including evidence from the parents' family doctor Dr. Render-Teixeira, relied upon by the parents in this motion, the parents refuse to accept this.

The Youngest Child

[90] The youngest child, Ya., has been in the mother's care since September of 2017 under strict terms of supervision, including that he cannot be left unsupervised with either parent. The youngest child is doing well in the mother's care under this arrangement, although there was one significant drop in weight in January of 2018 when he was ill with a cold.

[91] Further, although Ya. is doing well and was returned to the mother five days after his birth, the child's doctor, Dr. Render-Teixeira has observed some concerns about that child's "flattened head" and the society raised some concerns about sleeping patterns. The mother deposed in her affidavit that the child's head is "funny shaped" because the "CAS worker said not to use a pillow." It is not disputed that Dr. Render-Teixeira has recommended that the parents increase the child's "tummy time" and rotate his sleep position in the crib to alleviate some of the flattening.

Parents' Mental Health and Lack of Insight

[92] It is not disputed that although the parents do not live together, the parents are in a relationship as a couple. The parents are very much aligned in their views, as is apparent from their respective affidavits in response to the society's motion and their answers and plans of care filed. The father is a very involved and devoted parent who attends all of the children's medical appointments and meetings with the mother and sees the children on a daily basis, either at the mother's home or elsewhere under supervision. Likewise, the mother is a very involved parent who loves both of her children very much.

[93] However, the undisputed evidentiary record before me is clear that the father's personality in particular, and his behaviour with society workers and with health care professionals at medical appointments regarding the children interfere with both parents' ability to accept medical guidance and direction regarding the children. The mother does little or nothing to stop this behaviour.

[94] It is not disputed that:

a. The father became very agitated when the society and high risk infant nurse first visited the family home following the birth of the oldest child and would not allow the society to have any access to the infant without a court order, leading to the commencement of this child protection proceeding.

b. The parents terminated the services of their pediatrician Dr. Driver and the father became angry and upset at their last meeting with her because they did not agree with her professional opinion that Y. was underfed and may have some developmental delay;

c. The parents now agree that Y. is developmentally delayed, but attribute this to his maltreatment in society care, and do not agree that he was already presenting signs of developmental delay prior to coming into care, according to the observations of their own family doctor and their pediatrician;

d. The parents and the father in particular, has repeatedly alleged that Y. is being maltreated in care and there have been multiple examinations by doctors and a police investigation and there is absolute no evidence before me or in the evidentiary record provided by the parties to support this assertion;

e. During the initial developmental assessment by Dr. Makino at the Holland Bloorview Rehabilitation Clinic on October 16, 2017, it is not disputed that the father became so agitated and upset during this assessment that he had to leave the room for a break mid-appointment to calm down;

f. It is further not disputed that during a further developmental assessment with Dr. Levin on November 2, 2017, the father continually interrupted Dr. Levin when he tried to review the child's developmental assessment with the parents, and continued to fixate on his concerns of the alleged maltreatment and bruises that Y. has suffered while in care;

g. During a routine home visit with the new family service worker on January 24, 2018, the father's behaviour escalated very quickly. He got very angry with her, called her a liar and then asked her to leave his home and accused her of being part of the mafia because she asked the mother and question that the father did not like. This is one example of many in the evidence before me.

h. The father got very upset during an unannounced visit with an interpreter on February 24, 2017. He told the family service worker that the nurse wanted him to feed his child "until he chokes and dies." When the family service worker told the father that no one wants the child to be fed until he becomes sick and dies, the father became upset with the family service worker.

[95] The parents' lack of insight and defensiveness, and the father's aggressive and reactive behaviour towards numerous independent health care professionals and society workers, as well as his difficulty to see or listen to anyone that challenges his views regarding parenting, puts their young and vulnerable children at risk.

[96] The court witnessed the father's behaviour and personality directly during the course of the summary judgment hearing. At one point during argument, the father became extremely upset, angry and agitated. He yelled that the society's evidence was "all lies" and accused the society of being "murderers". A recess was called to allow the father to calm down. The father did calm down and returned to the court room and apologized for his behaviour.

[97] A parent's lack of insight regarding protection concerns is one of the factors that can contribute to a finding that a child is in need of protection. See Children's Aid Society of Toronto v. S.B., 2014 ONCJ 518 (Justice Stanley Sherr), at paragraph 24 (l); Catholic Children's Aid Society of Toronto v. A.D.M., 2016 ONCJ 742 (Justice Roselyn Zisman), at paragraph 196.

[98] The court finds that the father's personality issues have continued to interfere with his ability to parent and to accept medical guidance and advice regarding his children. There was ample, uncontradicted evidence of this in the evidentiary record before me. The father's own evidence and the report from his psychiatrist confirm that he has personality traits are "somewhat outside the normal" and that according to the father's psychiatrist, when the father feels opposition, he often responds in a "loud and vociferous manner".

[99] As a result of the father's behaviour, he misses valuable information during medical appointments because, as society counsel put it, "he is so focused on his own agenda." This behaviour puts his young and vulnerable children at risk.

Conclusion

[100] I am satisfied, based on the evidence before me that there is no genuine issue requiring a trial with respect to whether the children in this case are in need of protection at this time and at the commencement of the child protection hearing, for the following reasons:

1. Both parents have significant mental health issues that may affect and have affected their ability to parent their children;

2. Both children are very young, only two years old and ten months old respectively, and are therefore vulnerable. The two year old child has developmental delays and may likely require special assistance and more medical intervention. He was born prematurely and he had significant health traumas at birth resulting in a "Code Pink";

3. The oldest child's weight dropped significantly while in the parents' care moving from the tenth percentile to the third percentile. Once the child was removed from the parents' care, the child gained significant weight in society care. The parents do not have a plausible explanation for the concerning weight loss while Y. was in their care;

4. The father has a challenging personality and becomes easily agitated, angry and aggressive, making it difficult for him to follow and implement medical and professional advice. Even though the parents do not live together, the parents are closely aligned and the father is very involved in the children's care.

[101] In my view, this is a case in which the summary judgment process on the issue of the protection finding is appropriate and fair, as the evidentiary record before me contains sufficient trial worthy evidence to amply support a protection finding without the necessity of a trial.

Final Order

[102] Accordingly, there is no genuine issue requiring a trial regarding the protection finding in this case and I make the following final order:

1. A finding that both children are in need of protection pursuant to section 74(2) (b) of the CYFSA in that there is a risk that the children are likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's failure to care for, provide for, supervise or protect the child or children or by that person's pattern of neglect in caring for, providing for, supervising or protecting the child.

[103] The court wishes to emphasize that the evidence is also undisputed that the parents love their children very much and the children clearly love their parents and are very attached to them. The parents are trying their best to meet their children's needs but at this time, they require support and assistance. There have been some positive gains and it is hoped that now that the protection finding has been made, the parties will focus on a disposition that involves the parents working cooperatively with the society towards the goal of the oldest child being fully integrated back into his mother's home with the appropriate safeguards in place. The court was very pleased to read in the mother's affidavit about many of the positive steps that she has now taken.

[104] I thank all counsel for their very thorough presentation and professionalism during the summary judgment hearing.

Released: July 30, 2018

Signed: Justice Sheilagh O'Connell