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: 2019-11-03

COURT FILE No.: Sault Ste. Marie File No. 108/13

Parties

BETWEEN:

CHILDREN'S AID SOCIETY OF ALGOMA, Applicant

— AND —

S.B. (formerly C.)

C.P.

G.C.

CONSEIL DES ABENAKIS D'ODANAK FIRST NATION - BAND REPRESENTATIVE

Respondents

Before the Court

Before: Justice John Kukurin

Heard on: June 12, 13 and 14, 2019

Reasons for Judgment released on: November 3, 2019

Counsel

• Jennifer Mealey — counsel for the applicant society
• S.B. — Self-represented Respondent mother
• Eric D. McCooeye — counsel for the respondent father, G.C.
• Jasmine Gassi Harnden — counsel for the respondent mother, C.P.
• Conseil Des Abenakis d'Odanak First Nation Band Representative — not present, although duly served
• Liisa Parise — Office of the Children's Lawyer for the child K.

Decision

KUKURIN J.:

Introduction

[1] This is a decision on a summary judgment motion brought by the applicant society in this child protection case. These Reasons deal mainly with evidence.

[2] The case is unusual in many ways. First, it involves two mothers. It is a combination of three child protection applications all ordered to be heard together. It is a case that is now over six years old. It is a case in which no finding has yet been made that any of the three children is a child in need of protection. The present summary judgment motion does not pretend to provide any finality, nor any permanence. On the contrary, it is the expectation of the court, regardless of whether a finding is, or is not made, that the children are in need of protection, that the case will continue on to a trial (or perhaps another summary judgment motion). This summary judgment motion is for a finding in need of protection only, and on only one of the grounds relied upon by the society in its application(s). Finally, it is a case that is unique. The evidentiary issues are manifold, complex and contested.

[3] This case is also unusual in terms of time. It was started under a statute that exists no more. It is continuing under another statute which has significantly different provisions. It also is a case during the course of which, a significant appellate decision has emerged which impacts on this case. It is a decision that is concerned with summary judgment motions in child protection cases, the very issue that is before this court. It is an appellate decision that is binding on this court.

The Claim in the Summary Judgment Motion

[4] The motion seeks a finding under s.74(2)(d) of the Child, Youth and Family Services Act (the "CYFSA") that the children are in need of protection because there is a risk that they will be sexually abused or sexually exploited (by their father). This is the only claim argued in the summary judgment motion before me. This motion is found at Tab 21, Volume 10 of the continuing record.

[5] However, it was not the only claim made by way of summary judgment motion in this case. The other claims are not before this court on the summary judgment motion heard by me. These other claims are for findings in need of protection on other grounds. There are also claims for disposition, and for access.

[6] The society has brought three motions for summary judgment:

[7] The first filed August 15, 2017 was at Tab 9, Volume 6.

[8] The second, replacing the first, was filed February 19, 2019 at Tab 14, Volume 10. The first was withdrawn on Feb 20, 2019.

[9] The third, replacing the second, was filed May 27, 2019 at Tab 21, Volume 10, and is the motion heard by me. The second was withdrawn on May 29, 2019.

The Parties, the Children, and Counsel in the Case

[10] The playing field in this case has the society at one end, and the father at the opposing end. In between are two mothers. One (C.P.) is mother of the child K. (now age 11 years). The other (S.B.) is mother of two younger children, O. (now age 6 years) and J. (now age 4 years). Also, named in the case, but not participating, is the band representative from the Conseil des Abanakis d'Odanak, the band or First Nation of the children through their father. All parties have counsel except S.B. who is now self represented. In addition, only the child K. has legal representation through the Office of the Children's Lawyer by an order made six years ago in September 2013. C.P., I will refer to as "mother-1"; S.B. I will refer to as "mother-2". This is simply for convenience, to avoid confusion, and to differentiate between them. The society and the father are the main antagonists. Mother-1 sides with the society. Mother-2 was initially somewhat allied with the father. However, she and the father have since separated, and she currently appears to be more neutral than supportive of him. There are also two other significant persons in this case who do not have party status. These are the paternal grandparents of the children, and they have been supportive of the father in this case.

The Litigation Background

[11] The father and mother-1 have never been married, but have a son, K. These parents separated and became involved in family litigation in the Superior Court of Justice. A final consent order was made on April 12, 2010 by Justice Koke for shared custody with equal sharing of the child K., week about, with exchanges on Sundays at 7 p.m., and one month with each parent in the summer. This is still a valid order, but is superseded by orders made in this child protection proceeding so long as it remains outstanding.

[12] The father and mother each entered into other relationships. Mother-1 began a relationship with, and ultimately married J.T., with whom she has had two children (H. and A.), and who had acquired the role of a 'stepfather' to K. The father and mother-2 had a child, O. In May 2013, before this child was one month old, the society commenced a child protection application on grounds of risk of sexual harm. A month later, it started a child protection application for the child K., on grounds of actual sexual harm, and on risk of sexual harm. Later, the father and mother-2 had a second child, J., and the society started another child protection application for her, also based on risk of sexual harm grounds. All three proceedings were ordered to be tried together by various orders. Along the way, the society amended its applications to add additional grounds, and to amend its claims. We are here, in late 2019, with no finding made yet with respect to any of these children. The finding on "risk of sexual harm" is what this summary judgment motion is all about, and is all that it is about.

Disclosures, Investigations, Criminal Charges

[13] The foregoing is a simplistic and bare bones history of the child protection litigation. It was sparked initially by gestures made K. on a bus when he and his mother were returning from British Columbia which his mother felt had sexual connotations. It was fanned by disclosures allegedly made by the child K. to his mother and others about his father's sexual behaviours with him when his father was exercising his joint custodial rights. Police and society investigations ensued. In the course of these, other information was obtained about the father, about his relationship with mother-1, and his prior activities with other children and young persons. These were investigated and the father was charged by police with historical sexual offences against two pre-teenage girls, (M.L. and D.S.) the former of whom was his distant cousin. The litigation history of these criminal charges ended in a "judicial stay" by reason of delay by the crown, which violated the father's Charter rights. The child K. later made further sexual misconduct disclosures, which were investigated and resulted in the father being charged again, this time with his son, K. as the alleged victim. However, this charge was later withdrawn by the crown. The father has never been never convicted of any sexual offence. Notwithstanding this, the society proceeded with its child protection applications.

[14] During the over six year course of these applications, many things happened which bring us to where we are today. Among the more salient developments are:

• Another distant relative of the father, (S.H.), now in her thirties, surfaced with allegations of sexual misconduct by the father with her when she was age 9 years;

• M.P., the maternal aunt of K., disclosed to police that the father sexually misconducted himself with her when she was age 17 years;

• Mother-1, C.P., disclosed to the society instances of sexual "improprieties" by the father that she personally observed;

• The society obtained orders for assessment of the paternal grandparents and of mother-2, (which later included the father as well) by Dr. P. Marshall as paternal access supervisors. They had put themselves forward for this role;

• The society engaged Dr. Louise Sas to provide a report on the issues of necessity and reliability (referred to by the society as a "Khan Report") in relation to hearsay statements of the child K.;

• The society obtained, on his consent, an order for a psychosexual assessment, including phallometric testing, of the father by Dr. R. Dickey, the report of which was filed and gave the results of the phallometric evaluation and the assessor's opinion with respect to the father's unsupervised access or care of children;

• There were several interim motion hearings to deal with interim paternal access, who would be permitted to supervise it, when and where it was to occur, as well as access by the paternal grandparents.

• Mother-2 and the father separated, she has a new live-in partner, and she no longer wishes to supervise the father's access to O. and J., which prompted a motion by the father for alternative access supervision, a motion which has not yet been heard;

• Finally, after submissions were completed, and before any decision was made, the society sought by motion to re-open the summary judgment motion to file additional evidence and to submit further argument, a motion which I dismissed.

Evidence on the Summary Judgment Motion - Generally

[15] The summary judgment motion, as filed, is simply for a finding in need of protection on one ground. It seeks a finding for the child, K., on risk of sexual harm. It seeks findings for O. and J. on risk of sexual harm. It does not seek findings on other grounds.

[16] The child protection application has other claims that are not being adjudicated before me. They are for findings on other grounds (e.g. related to emotional harm). They also seek disposition orders that place the children in the care and custody of their respective mothers, subject to supervision by the society and subject to a number of terms and conditions. Most importantly, they seek an order that the father have restricted access to the three children subject to stringent conditions, including, in the case of the child K., that paternal access occur only on the wishes of the child. These are all extraneous issues before me as is any evidence that relates to them, except for evidence that is also relevant to the issue of "risk of sexual harm". This is not over-compartmentalizing; it is the reality of the case.

[17] With the complex and complicated history of these cases, and in light of the legislative changes, effective April 30, 2018 that repealed the Child and Family Services Act (the "CFSA") and implemented the Child, Youth and Family Services Act (the "CYFSA") I felt that a trial management conference of the summary judgment motion was needed. One was held on October 31, 2018, and in retrospect, fortuitously so, as the court had the opportunity to discuss with the parties and their lawyers a number of issues that were problematic in the presentation and hearing of the summary judgment motion. One major issue dealt with the evidence of the society filed in support of the motion.

[18] It should be pointed out that the first motion for summary judgment was filed August 15, 2017 and (its replacement) was only heard in July 2019. The society's evidence initially consisted of its "compendium" affidavit (at Tab 1, Volume 7) which has 279 paragraphs, plus 292 pages of exhibits which run from exhibit A, twice through the alphabet, to exhibit JJJ. This "compendium" affidavit provides information from its affiant, Lindsay Spina, a society child protection worker, dating back to 2008 up to the time it was sworn (October 16, 2017). It is full of information that is tendered as hearsay. Ms. Spina could not possibly have been privy to all of the factual information recited in her affidavit on a first hand basis. Even the disclosures she indicates were made to her by the child K. are hearsay. The exhibits are many, manifold and multifarious, including police occurrence reports, orders from other court proceedings, and medical, and other reports of sundry people.

[19] As mentioned, the society drastically changed its objective in its present summary judgment motion and pared down what it was asking for to a simple finding on risk of sexual harm. The evidence that the society wished to lead on that issue was filed by it in supplementary affidavits which were even more voluminous than the initial "compendium" affidavit. This additional material was filed in Volumes 8 and 9 and, for the most part, consisted of DVD recordings and transcriptions of these recordings produced by a transcription service. The recordings were of a number of individuals who provided statements mostly to police personnel. For example, there were a number of interviews of the child K. as well as of his mother, C.P. (mother-1) and his stepfather, J.T. There were police interviews of the two 12 year old girls (M.L. and D.S.) who were the alleged victims of the father in a swimming pool incident in 2009. There was an interview of the sister of mother-1 relating to her encounter with the father when she was age 17 and his sexual overtures to her. This was not audio/video recorded and only resulted in a "willsay" statement. And there were others. These were being tendered as society evidence on the summary judgment motion by an administrative assistant, Ms. Stitt, in the society's legal department who was the affiant in covering affidavits (at Tab 3, Volume 8 and Tab1, Volume 9) which basically identified each attached DVD and transcript with an exhibit number. As summary judgment motions generally have no viva voce evidence, there normally would be no cross examination of these individuals at any hearing. The society was not intending to produce interviewees from the DVD recordings as viva voce witnesses.

[20] This state of affairs was concerning as all of this recorded material comprised the thrust of the society's argument for a finding of risk of sexual harm. The father was opposing such finding alleging that the factual occurrences described in these recorded statements either did not occur at all, or were misconstrued by the persons interviewed, or had other frailties which made them suspect. There were other problems with this kind of evidence. It was not first hand. The persons allegedly sexually victimized by the father were not providing this information directly to the court. They were not cross examined in court. The evidence was clearly hearsay. It was being provided by Anna Stitt, an individual who, as far as the court can tell, was never involved in any aspects of this case other than to present this recoded evidence in a court acceptable format. The society adduced this evidence for the truth of its contents.

[21] While hearsay evidence is permitted in affidavits filed on summary judgment motions, there are some Rules that apply to such hearsay. In particular, Rule 14(18) prefers first hand evidence. Rule 14(19) permits second hand evidence but subject to some pre-requisites by the affiant, namely identifying the source by name and stating the affiant's belief that the information is true. Rule 16(5) permits the court to draw unfavourable conclusions about evidence of a party when it is not first hand. Rule 16(6.1) permits the court to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. Presumably this applies to second hand evidence as well as first hand evidence. However, the most important Rules that deal with summary judgment motion evidence are Rules 16(4) and Rule 16(4.1). These two Rules are often overlooked or glossed over when a litigant is preparing affidavit evidence for a summary judgment motion. These rules provide that the evidence in the summary judgment motion, for both applicants and respondents, must "set out specific facts". Does this mean that such affidavits can set out things other than "specific facts" so long as they also set out the specific facts on which they rely? Things, for example, such as conjectures, guesses, possibilities, hypotheticals, opinions, recommendations or flights of fancy. My view is that they should not (subject to the exception of the opinion of an expert witness, qualified by the court as an expert in his or her field of expertise). Evidence that is not factual is not evidence at all. It lacks the essential quality that all evidence must possess, namely, relevance to the issue before the court. It does not comply with the Rules that deal with summary judgment motion evidence.

[22] I set out these various Rules, not only because they apply to all summary judgment motions, but more so because they should not be ignored, minimized, or cherry picked. They all apply. If the court is truly a gatekeeper of the evidence it allows or disallows, it should surely be aware of the Rules that apply to such evidence, and, more importantly, it should apply them to every piece of evidence regardless of by whom such evidence is adduced.

[23] Additionally, there has arisen a body of case law that deals with the kind of evidence that is permitted, and that should be allowed, on summary judgment motions. There is, unfortunately, a great judicial divide on this critical question where jurists are sometimes at polar opposites in their views and in their rulings. At one extreme are those that would allow almost anything to be admitted as evidence on a summary judgment motion, and would give each piece of evidence the judicial weight it deserved. At the other pole are those that would not admit anything that was not "trial worthy" evidence.

[24] It would be fair to say that the pendulum has swung, and now favours the latter approach, that is, if it is not "trial worthy", it should not be evidence that is admitted on a summary judgment motion.

[25] The most recent pronouncement that not only advocates this latter view, but is also binding on this court, is a 2019 case from the Ontario Court of Appeal authored by Appeal Justice M.L. Benotto.

[26] This Kawartha-Haliburton decision is instructive from an evidentiary point of view in re-setting the standards, and providing appellate directions for summary judgment motions, specifically, in child protection matters. It is evident (to me) that summary judgment has become the cash cow of child protection litigation. These motions were virtually unheard of prior to 1995. In just over 25 years, their proliferation in child protection matters has been nothing short of spectacular. One has only to look at the number of child protection cases in the past four or five years decided by summary judgment motions that are reported in the legal data bases to verify this to be true.

[27] While there is certainly a place in child protection law for the summary judgment motion, it has become so attractive that it may have overshot its proper place. Its genesis can be traced to the 1995 case of CCAS of Toronto v L.M.O., a child protection case in which the summary judgment motion was the judge's own motion. The 'why' of that motion was stated by the judge rhetorically [at para 26]:

"The issue as I see it boils down to this. Must a court, in fact, be condemned helplessly to endure the wasteful unravelling of a trial process whose outcome is a foregone conclusion? Do litigants have the licence to squander weeks of the court's time and other limited resources of the justice system on a question that has only one inevitable answer? Or is the court's control of its own process sufficiently broad to enable it mercifully to despatch a proceeding when to do so not only serves the ends of justice but the administrative exigencies of the court? And in child protection matters, is there not an overriding imperative to ensure the commencement of permanency planning for children in a timely fashion?"

I cannot agree more with these sentiments. The L.M.O. case, even by the most generous standards, could not have resulted in any way other than the way it did. Its final resolution was truly "a forgone conclusion" and to have had a trial would have delayed permanency for the children and would have been, not only a waste of everyone's time, but would not at all have advanced the repute of the administration of justice in the eyes of the community.

[28] However, the summary judgment motion has come a long way since L.M.O. The earlier jurisprudence spoke of using extreme caution when deciding child protection cases by summary judgment, and only in the clearest of cases. This did not last very long. By the year 2000, jurists were considering that Rule changes, in particular, the implementation of Rule 16, suggested that the summary judgment procedure should no longer be considered an extraordinary one. From there, it was only a hop, skip and a jump to summary judgment being considered almost the default procedure in many child protection cases.

[29] The most attractive aspect of a summary judgment motion, at least from the motion applicant's vantage point, is that evidence that would never make the grade at a trial could be admitted on the hearing of the motion. Specifically, hearsay evidence, of children's aid societies primarily, is rampant in most summary judgment motions. Rules that allow hearsay evidence on motions, divided jurisprudence on what hearsay is in or is out, on such motions, the ever pressing time limitations, combined with the desirability of some permanency for the child, and the backlog that lengthy trials created, all contributed to proliferation of the summary judgment motion in chid protection litigation.

[30] The Kawartha-Haliburton decision is, in my view, a wake-up call to litigants in child protection matters. The case dealt with an access issue in the context of an appeal from a summary judgment decision. However, at the level of the Court of Appeal, it touched on a number of matters that provide guidance to trial courts like this one. Specifically, it dealt with:

• the transition from the CFSA to the CYFSA and the applicability of new provisions;

• the importance of the identification of children as First Nation, Inuit or Metis;

• the realities of child protection, in particular, the poverty and other forms of marginalization of litigants who were overwhelmingly the respondent parents in such cases;

• the continuing applicability of case law that had developed over the last two decades, in particular the importance of the "fairness principle" and the "cautious approach" courts should take in summary judgment matters; and

• the kind of evidence that should be acted upon in summary judgments, and the court's role in conducting "a careful screening of the evidence to eliminate inadmissible evidence".

[31] The Court of Appeal endorsed and adopted the following statement from the decision of Sherr, J. in the case of Children's Aid Society of Toronto v. B.B., 2012 ONCJ 646 [at para. 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 or-ders 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 determination."

[32] The Court of Appeal listed certain principles that trial courts hearing summary judgment motions in child protection cases should apply, or should certainly be aware of [at para 80]:

"To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

1. Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.

3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.

5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children."

[33] Direction (3) above creates a problem in interpretation. While it is helpful as guidance, it is somewhat equivocal. There is a significant difference between eliminating inadmissible evidence and in admitting evidence and giving it no weight. From a practical and procedural point of view, the summary judgment motion and the trial are two very different vehicles for the fact finding and decision making process. In the trial, none of the evidence is before the court in advance of the trial. The trial evidence is what the parties place before the court at trial, and what the court admits as evidence. In the summary judgment motion, all of the evidence is already filed with the court as affidavit evidence before the summary judgment hearing starts. The court has to determine what is admissible and what is not admissible.

[34] Direction (3) above seems to say that the court must screen all of the evidence to determine what is not admissible and to eliminate it as evidence (i.e rule it to be inadmissible). In the same breath, it seems to say that evidence that would be inadmissible at trial ought not be given any weight at a summary judgment motion. If all inadmissible evidence is already judicially eliminated, the evidence that is not eliminated is all admissible evidence. If that remaining evidence would not be admissible at trial (ie is not trial worthy), what is it still doing as evidence in the summary judgment motion?

[35] This is not the only difficulty. When does the court engage in the "careful screening" to eliminate inadmissible evidence? The introduction to this appellate guidance clearly states that it is to "clarify the approach that the courts should take to summary judgment in child protection proceedings". In the summary judgment motion, the court has all of the evidence on the motion from all sides, in advance of starting the hearing of the motion. Does this exhortation mean that the court has to scrutinize all of this evidence in advance of the hearing of argument, identify what is not admissible for whatever reasons, including that it is not trial worthy, and rule it inadmissible? And to do this in absence of argument from the parties on the issues of admissibility? This seems to be contrary to the well established rule of litigation, that gives each party a chance to make its argument on the admissibility issue. More to the point, the task can be herculean, as in the present case, when ten Volumes of the Continuing record are involved in the case, and the society, in its summary judgment motion indicates that it is relying for its summary judgment evidence on "all documents in the Continuing Record herein".

[36] The summary judgment motion before me clearly has the finding under s.74(2)(d) CYFSA as the pivotal issue in this lengthy and complex litigation. The court must never forget what is its ultimate task in hearing a summary judgment motion. That task is set out in Rule 16(6):

Rule 16(6) - If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

This court is not required, on this summary judgment motion to decide if the evidence does, or does not, meet the civil standard of balance of probabilities that there is a risk that any of the three children will likely be sexually abused or sexually exploited by their father, and thereby are children in need of protection. That is the task of a trial court. This motion court has to decide, based on the evidence presented on this summary judgment motion, whether there is, or is not, a genuine issue (related to the finding of a risk of sexual harm only) that requires a trial on this particular finding. This is why the evidence in the summary judgment motion is so crucial.

Evidence That Is Statutorily Admissible

[37] Evidence in child protection matters is ostensibly, subject to more lenient treatment than evidence in other types of litigation when determining admissibility. Section 93(1)(a) of the CYFSA applies throughout a proceeding. It provides:

S.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

[38] Section 93(1)(b) continues with:

S. 93 (1) (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.

[39] These clauses have always created a tension within the judicial and the legal communities. They have spawned a number of divergent decisions on what they mean, including whether clause (b) only refers to the wording in clause (a), namely the "past conduct of a person toward any child", or does it refer to anything that may be relevant to any issue. What is quite clear is that any oral or written statement or report, that the court considers relevant, including a transcript, exhibit or finding or reasons in an earlier civil or criminal proceeding is admissible into evidence. This subsection applies to the entirety of a child protection proceeding, to any motion brought in that proceeding, and in particular, to a summary judgment motion.

[40] What clause (a) of s.93(1) does is to permit the court to consider the past conduct of a person towards any child, if that person may have access to a child who is the subject of the proceeding. In this case, it is the father whose past conduct is under scrutiny. It is his past conduct towards several other and different children. It is a father who seeks access to the children in this case, and he therefore "may have access" to them. He also is a joint caregiver and custodian of one of them by virtue of a Superior Court order, which is in abeyance, but will come back into full force and effect should this child protection case ever terminate.

[41] So the obvious question is how the court can "consider" the father's prior conduct in this proceeding. The answer is by the evidence presented in this summary judgment motion, but only if that evidence is admitted by the court.

[42] This may be at odds with the direction and guidance of the Ontario Court of Appeal in its recent Kawartha decision. Or perhaps not. The appellate court only directs lower courts to "conduct a careful screening to eliminate inadmissible evidence". If the statute says a certain piece of evidence is admissible, then the careful screening will determine just that. If the statute does not say whether a certain piece of evidence is admissible, then the court's "careful screening" will have to apply other criteria to decide if it is admissible. Those other criteria may consist of other CYFSA provisions, other provisions of other statutes, any Rules that apply, any common law principles, and any case law, particularly any binding case law from higher courts.

[43] What seems to pierce all of the foregoing is the admonishment of the appellate court that if the evidence would not be admissible at trial, it ought not be admitted on any summary judgment motion brought in the same case.

Specific Evidentiary Rulings

D.S. (Exhibit "A")

[44] Using the Exhibit numbers in the Affidavits of Anna Stitt (at Tab 3, Volume 8, and Tab 1, Volume 9), I consider firstly the DVD recording (and a transcription thereof) of an interview held on September 14, 2009 when Police Detective Cst. W. Shiells interviewed D.S., as to contacts she had in a pool at a family get together/barbecue to which she was invited by her friend M.L. The contacts were with the father in this case. The DVD and transcripts were part of a police investigation which led to criminal charges against the father which were later stayed for Charter delay.

[45] The DVD and transcript were tendered as business records under the Evidence Act (Ontario). They were also tendered as past conduct of the father towards the child D.S. who was then age 12 years. There was no explanation why D.S. could not swear an affidavit setting out the same information that she had given to Det. Cst. Shiells. By now she would be age 22. The DVD does not indicate that D.S. was sworn, was affirmed, or that she was asked if he knew the difference between the truth and a lie. The most that can be said for this evidence is that it was accurate in that it was audio and video recorded, and that it took place two days after the incidents it recounted. As trial evidence, it would not be admitted because it is hearsay. The fact that it comes from Anna Stitt, administrative assistant at the society, and the affiant of the affidavit to which it is an exhibit makes it double hearsay. It is as if D.S. told her story to a DVD, and the DVD told it to Ms. Stitt, and Ms. Stitt told it to this court.

[46] If it is not admissible as hearsay at trial, Kawartha tells this court that it should not be admissible at the summary judgment hearing either. While it may pass the criteria set out in s.93(1)(a) and be within the categories of evidence set out in s.93(1)(b), I do not believe it meets the Kawartha criteria. It is not the best evidence. It is still hearsay. It is not trial worthy, particularly when better evidence is available. Section 93(1) is permissive. It states clearly that the court "may" consider a person's past conduct to a child, not that it shall. To qualify as admissible hearsay evidence, it must still fall within one of the classical exceptions to the rule against hearsay, or it must pass the principled approach test. It may be admissible at trial and at the summary judgment hearing if the society can meet the principled approach test to admission of hearsay set out in the Khan-Smith decisions. However, the society has not attempted to meet the twin pre-requisites of necessity and reliability in this approach. It is unlikely the society would get past necessity.

[47] Accordingly, D.S.'s DVD interview and transcript are not admitted as evidence at this summary judgment motion.

R.S. (Exhibit "B")

[48] R.S. is the mother of D.S. and is the person to whom D.S. recounted what happened at the pool. It was R.S. who contacted the police. The DVD and transcript thereof are of a recording of an interview with R.S. on September 14, 2009. It is clearly hearsay as R.S. was not anywhere near the pool and only had second hand information at best. From Ms.Stitt, it was third, or partially possibly fourth hand hearsay. No attempt was made by the society to seek admission by the principled approach to admission of hearsay. There was no other basis argued for its inclusion as evidence on this summary judgment motion. If it is not trial worthy, Kawartha tells this court that it is not worthy to be admitted as evidence at this summary judgment motion. It is therefore ruled inadmissible.

R.Q. (Exhibit "C")

[49] The DVD and transcript that comprises this exhibit is the police interview of R.Q. on September 16, 2009. He is the maternal uncle of the father in this case, and the maternal grandfather of the child M.L. He was in the pool at the time of the incidents involving the father and the children M.L. and D.S. His sworn affidavit evidence would be first hand, or second hand when he recounts what anyone else (except the father) said at the time. But he has no sworn affidavit before this summary judgment court. No evidence was led by the society to explain why R.C. could not swear an affidavit that could be filed in this summary judgment motion. It did not attempt to justify admission on the principled approach to admission set out in Khan-Smith. This is not evidence that would be admissible at trial and again, Kawartha directs that if evidence is not trial worthy, it ought not be admitted on a summary judgment motion. This evidence is not admitted in this summary judgment motion.

M.L. (Exhibit "D")

[50] M.L. had first hand information about what went on in the pool with her second cousin, the father. She was age 12 when the incident occurred and would now be about age 22. In the case of M.L., the society began to realize that its evidence of a ten year old recorded police interview might not be the best evidence in this case, and on its summary judgment motions. It served a summons to witness on M.L. M.L. brought a motion to set aside that summons. She evidently did not to wish to provide any evidence in this case or in any motion in this case. Her complaint was that she had been assured by the society that her privacy rights would be respected, and now the society was making her disclosures openly in court, and compelling her to testify. However, the society was able to persuade her to swear an affidavit, about which more will be said later in these Reasons.

[51] M.L. was also interviewed by Det. Cst. Shiells about four days after the pool incident. The interview was video and audio recorded on a DVD and transcribed. The statement was not under oath nor under solemn affirmation by M.L. She was not asked if he knew the difference between the truth and a lie. The DVD recording and the transcript comprised Exhibit D of Ms. Stitt's affidavit. It is a first hand account from M.L., but also contains some hearsay that M.L. learned from someone else. In any event, the entirety of this exhibit, from Ms. Stitt, is clearly hearsay. No evidence was led why this information had to come to the court by way of hearsay. No attempt was made by the society to justify its admission under the principled approach to admission of hearsay. It is not the kind of evidence that would be admissible at trial and accordingly, it should not be admitted on a summary judgment motion either. I rule the evidence in Exhibit "D" of Ms.Stitt's affidavit with respect to the police interview of M.L. to be inadmissible.

L.Q. (Exhibit "E")

[52] This evidence is of an audio and video recorded police interview, with an accompanying transcript, of L.Q., the maternal grandmother of the child M.L. While L.Q. had some first hand knowledge to share as she was in the pool for part of the time when the aforementioned incidents allegedly took place, her interview was mostly about her involvement with her granddaughter, M.L., afterwards. Most of this was clearly hearsay. From the affidavit of Ms. Stitt, it was second hand hearsay and if it originated from M.L/, it was third hand hearsay. The society did not try to justify admission on the principled approach to the admission of hearsay. Nor did it claim that it fell within a classical exemption to the rule against hearsay. Again no reason was given why L.Q. could not provide a sworn affidavit. I rule the evidence of the police interview of L.Q. in Exhibit "D" inadmissible as it would never be admitted as trial evidence.

G.C. (Exhibit "F")

[53] This evidence consists of a video and audio recording, with accompanying transcript, of the police interview of the father in this case, G.C., by Det. Cst. Shiells. It was taken on September 17, 2014 about five days after the pool incident. The father's statement was not under oath nor under solemn affirmation by the father. It was however a cautioned statement, and the father was made aware that he was being charged with sexual assault and sexual interference with respect to the two twelve year old girls, M.L. and D.S.. He was advised of his right to speak to counsel, and he did so, and was advised to say nothing. Notwithstanding this advice and the fact that he was also cautioned that he was under no obligation to say anything, and that anything he said could be used in evidence, he did say a lot of things. Also present were another police officer (in an adjoining room) and a society worker (as this was a joint police and society investigation).

[54] The fact that this evidence is tendered by the society through Ms. Stitt, rather than through one of the other persons present at the interview, at first glance qualifies it as hearsay. However, this statement, or statements, by the father are also classified as admissions by him. In the view of some jurists, this takes such statements out of the hearsay category entirely. One rationale for the rule against hearsay is the inability to contemporaneously cross examine the maker of the hearsay statement. However, if the statement is one made by the father himself, it makes no sense that he would want to cross examine himself, and so he is not deprived of the right to cross examine if his statements are admitted as evidence.

[55] The statement by the father made at this interview is ruled admissible in this summary judgment motion. Showing necessity and threshold reliability are not pre-requisites for this statement as it is not a hearsay statement at all. Alternatively, if it is a hearsay statement, it falls within one of the classical exceptions to the rule against hearsay, namely the admission of a party. In addition, it is evidence that the society, or any adverse party, may use to impeach the credibility of the father. Aside from the introduction of this piece of evidence through Ms. Stitt, it has the hallmarks of reliability and certainly of accuracy, that, subject to what the father may submit to the contrary, would make it more admissible than not. I rule that the DVD recording and the accompanying transcript of the police interview of the father, G.C., on September 17, 2009 are admissible as evidence on this summary judgment motion.

K. (Exhibit "G")

[56] This piece of evidence consists of a DVD audio and video recording, plus a transcription thereof, of the interview of the child K. by Det. Cst. Wayne Taylor and also partially by Marla Barrett, a child protection worker of the applicant society. This interview took place on November 3, 2011 presumably at the police station. Other information indicates that K.'s date of birth would have made him age 3 years and ten months at the time of this interview. This is one of several interviews in which K. participated. The society undertook an exhaustive assessment on the issue of necessity and threshold reliability in seeking to have this and other statements of K. to be admitted under the principled approach to the rule against hearsay. Part of the society's evidence on this evidentiary issue was the report of Dr. Louise Sas who prepared what the society terms a "Khan Assessment" of K. I will deal with the assessment report of Dr. Sas in more detail later in these Reasons. I prefer to deal with all of the statements made by K. together, and so I will defer my decision on the November 3, 2011 police interview for the time being.

C.P. (Exhibit "H")

[57] This piece of evidence consists of the audio and video recording, and transcript thereof, of a police interview of mother-1, C.P., on November 3, 2011. The interviewer was Det. Cst. Wayne Taylor. C.P. was cautioned about telling the truth and that any lies might lead to her being charged. She solemnly affirmed to tell the truth before a commissioner. The interview recounted several incidents:

[58] An incident in 2009 when the child K. was about 1 ½ years old, and had a swollen penis for which he was taken to the hospital for medical examination and treatment. At or around this time, when C.P. was changing the child's diaper, he allegedly asked her to kiss his penis, although this was later qualified by her to K. only gesturing for her to do this.

[59] An incident on a Greyhound bus when C.P. and K. were in British Columbia in mid July 2011, and were returning to Ontario, K. apparently made some gestures that C.P. judged to have a sexual reference.

[60] An incident on September 3, 2011 after K. was returned to C.P. following K.'s 1 ½ months of summer access with his father. K. allegedly made several statements to C.P. about his father touching his "privates" followed by other contradictory statements that he lied about his father touching his privates.

[61] C.P., mother-1 in this case, is a party respondent and is clearly adverse to the father. Why this evidence is placed before the court as clearly hearsay evidence of Ms. Stitt is a bit of a mystery, particularly as C.P. has her own counsel and her own affidavit evidence filed in this summary judgment motion. Everything she may have reported to a police officer on November 3, 2011 she can say in her affidavit evidence filed in the summary judgment motion (subject to its being admitted as evidence). I am not persuaded that the evidence of the audio and video recorded interview and the accompanying transcript should be admitted as evidence in this summary judgment motion. Unlike the interview of the father, this is not an "admission" that takes this out of the realm of hearsay. It is evidence against the father. To the extent that it is information that comes from the child K. and is evidence that the society places before the court for the truth of what K. has said on various occasions, it is hearsay evidence. It is not the best evidence, as the best would come directly from C.P.. It is not admitted.

J.T. (Exhibit "I")

[62] J.T. is the stepfather of K. He met C.P. (mother-1) in early 2011 and was cohabiting with her and K. by May 2011. They were engaged to be married by November 2011. During his cohabitation in C.P.'s home, he had many opportunities to interact with K., either alone or with C.P.. He was interviewed by Det. Cst. Taylor on November 3, 2011,and the interview was audio and video recorded and transcribed. The DVD and transcription were included as Exhibit "I" to the second affidavit of Anna Stitt. [Apparently, the first affidavit completely filled the maximum thickness permitted for a volume of a continuing record and so Exhibits "I" to "P" had to be included at Tab 1 in a new Volume 9]. The interview recites disclosures made by K. following his return to the home of mother-1 after K. spent the last half of the 2011 summer with his father. These disclosures are clearly hearsay in nature as the society intends the court to accept the truth of the statements made by K. J.T. is an adult. There is no reason known to this court why he cannot swear an affidavit that sets out precisely what is recorded in this DVD and transcript and have the society file it with the court. It would be the best evidence of the child hearsay that the society wishes to place before the court. Whether it is admitted as evidence is another matter. To have the evidence in the form of the audio and video recorded police interview of J.T. and to have this presented to the court by Anna Stitt is not the best evidence. It is not trial worthy evidence and ought not be evidence at this summary judgment motion. I rule it to be inadmissible.

K. (Exhibit "J")

[63] This piece of evidence consists of a DVD audio and video recording of a police interview of the child K. that took place on March 9, 2012. It was conducted by Det. Cst. Geoff MacLeod and Marla Barrett, a society child protection worker. For much the same reasons given in paragraph [51] above, I defer dealing with this piece of evidence and will deal with it further below.

C.P. (Exhibit "K")

[64] This piece of evidence consists a DVD audio and video recording, and accompanying transcript, of a police interview of mother-1, C.P., on March 6, 2013, The interview was conducted by Det. Cst. Geoff MacLeod and Kerri Melis, a society child protection worker. C.P. described an incident at her dinner table after supper some days prior to this interview at which time, K. said that his father touches his "private" or his "peepee", a comment apparently unrelated to anything that was being discussed at that time. C.P. absented herself, went upstairs with her eight month old baby and recounted some further conversation she overheard between J.T. and K. with respect to where and when it happens. She also recounted in the interview, an occasion when K. complained that his penis hurt, but could not say why. This is clearly introduced by the society for hearsay purposes, to establish the truth of what K. (or J.T.) said at the time. It is introduced by Anna Stitt who simply appends this material to her affidavit. For the same reasons as stated in paragraph [53] above, this evidence is ruled inadmissible. Mother-1 is a party in this case and is quite capable, with the assistance of her counsel, of preparing and filing a sworn affidavit setting out what she discussed at this recorded police/society interview. The mother-1 is clearly allied with the society in this summary judgment motion and I see no reason why the society insists on tendering recordings of past interviews. These are clearly not the best evidence of what the mother reported. They are ruled inadmissible.

J.T. (Exhibit "L")

[65] This piece of evidence consists of a DVD audio and video recording, with accompanying transcript, of a police and society interview of J.T. held on March 6, 2013. As stated in paragraph [54] above, to have the evidence in the form of the audio and video recorded police interview of J.T. and to have this presented to the court by Anna Stitt is not the best evidence. It is not trial worthy evidence and ought not be evidence at this summary judgment motion. It is ruled inadmissible.

K. (Exhibit "M")

[66] This piece of evidence consists of a DVD audio and video recording with accompanying transcript of a police and society interview of the child K. on March 6, 2013. These are attached as Exhibit "M" to the affidavit of Ms. Anna Stitt and filed by the society as part of its evidence in the summary judgment motion before tis court. I will deal with this evidence further below when I deal with the evidence of K. mentioned at paragraphs [51] and [55] above.

K. (Exhibit "N")

[67] This piece of evidence is mainly a DVD recording of the continuation, two days later, on March 8, 2013, of a police and society interview of the child K. described in paragraph [58]. I defer my comments on this to be dealt with below.

Police/Society Recorded Interviews of K.

[68] These interviews were held chronologically on 3 November 2011, 9 March 2012, 6 March 2013 and 8 March 2013. These included police and society personnel as interviewers. They were all audio and video recorded. The society has filed the audio/video recordings as exhibits G, J, M and N to the affidavits of Anna Stitt together with their respective transcripts. The society wishes them to be accepted by the court for the truth of what the recordings say. In short, they are hearsay of the child, or his out of court statements of prior factual events.

[69] There was no voir dire of these statements held in the hearing of the summary judgment motion to determine if they were admissible as evidence on this motion. In a voir dire held in the course of a trial, the person to whom these child hearsay statements were made would normally give viva voce testimony about the circumstances in which a particular statement was made and would provide details of what that statement was, and would be liable to be cross examined by adverse parties. This person would logically be one of the interviewers participating in the interviews. In the case of these DVD statements of K., they were introduced into evidence by Anna Stitt, an administrative employee of the society, who swore affidavits basically attaching such recordings and transcripts as exhibits.

[70] A summary judgment motion is a "motion" and proceeds on affidavit evidence. In fact, Rule 16(4) and Rule 16(4.1) refer to the evidence on summary judgment motions as an "affidavit or other evidence". While there are provisions for oral evidence both in Rule 16 and in Rule 14, no order has been made for oral evidence in this summary judgment motion under either subrule. Nor, for that matter has the court given any direction for a voir dire to be held on the admissibility of K.'s police interview statements. In practice in my experience, voir dires are seldom, if ever held with respect to evidence on summary judgment motions.

[71] That the admissibility of K.'s police interview statements would likely be an issue on the summary judgment motion was no surprise. In a trial management conference held Oct 31, 2018, this very concern was raised. The society and the respondents obviously proceeded with no evident intention to address this issue other than to do so in their submissions at the hearing of the summary judgment motion.

[72] In the present summary judgment motion, the society requested in its submissions that the court qualify Dr. Louise Sas as an expert in several fields of expertise. Dr. Sas was requested by the applicant society to undertake an "Assessment in Respect of a Khan Application" and to provide a report of that assessment to the society. This was not a court ordered assessment under then s.54 CFSA (now s.98 CYFSA). It was specifically sought to obtain the opinions of Dr. Sas, firstly, on the ability of K. to testify at trial on his alleged sexual abuse by his father, and whether the criterion of "reasonable necessity" is met for such evidence to be other than K.'s viva voce testimony at trial. Secondly, an opinion was sought on whether K.'s out of court police recorded interview statements are reliable within the meaning of the "reliability" criterion in the Khan application.

[73] The society attached Dr. Sas' assessment report to the compendium affidavit of Lindsay Spina, (at Tab 1, Vol 7) sworn October 16, 2017 filed in support of the society's first summary judgment motion (at Tab 9, Vol. 6). That was served on the respondents on October 17, 2017. So everyone has had Dr. Sas' assessment and her Curriculum Vitae (CV) for over two years. What she says is not a surprise today. There was no request by anyone for an order to have Dr. Sas attend and give viva voce evidence, or to be cross examined on her CV or on her report. There was no request by the society to have the court qualify Dr. Sas as an expert, and no identification of what field of expertise expert qualification was sought until submission from the society were heard at the summary judgment motion hearing. Those fields were:

• Child sexual abuse
• Child development
• Child witness issues
• Clinical child psychology
• Interviewing strategies for children
• Testimonial capabilities of children

[74] Dr. Sas indicated in her materials that she was qualified as an expert witness previously in Ontario family and criminal courts and has provided expert evidence in areas relevant to the matters in issue in the case before this court. She has had over thirty years of experience and has a Ph.D in Clinical Psychology. Her most relevant involvement in terms of this case appears to be her connection to the London (Ontario) Family Court Clinic where she has been a Clinical Psychologist since 1980, Assistant Director 1982 to 1985, Co-ordinator of the Child Welfare Assessment Project 1985 to 1999, and Director of the Child Witness Project from 1987 to 1999. In fact, her research endeavours in the Child Witness Project were in the area of child sexual abuse. She claims she has been qualified as an expert witness in a number of areas, most notably "Khan Applications (necessity and reliability assessments), Child Witness Competency to Testify, and Post Traumatic Stress Symptomology" How many she has done and in what courts is not disclosed. Overall, her academic and experiential credentials are very impressive.

[75] So what did Dr. Sas do for the society in this case? She never talked to K., in fact never met him. Nor did she meet K.'s mother or father. She reviewed a number of documents provided to her by the society, all of which were identified in an appendix to her report. However, the major part of her assessment was in viewing the police recorded DVD's of K.'s interviews, which she did twice. Her report dealt with the necessity and reliability aspects of K.'s statements in terms of the Khan-Smith criteria for admission of hearsay.

[76] In their paper entitled "Expert Evidence in Child Welfare Cases: A Primer" Professor N. Bala and Jane Thomson state what is the conventional procedure to qualify a person as an expert:[at page 5]

"When a party is seeking to have the court rely on expert evidence, there should not simply be a report filed, but the expert should be called as a witness by the party proffering the evidence so that the expert can be cross-examined, unless all parties agree to the waiving of an appearance."

There was no waiver in this case by the father. In fact, he argued that Dr. Saa should not be accorded expert status.

[77] It would have been preferable to have had two voir dires, the first into the question of whether Dr. Sas would be qualified in this court as an expert witness, as well as an expert in what areas of expertise. The second would have been into whether K.'s police interview statements would be admitted on the Khan-Smith criteria for admission of hearsay evidence. Alas, no formal application was made on either.

[78] The court has a gatekeeping role that it must not abdicate. In The Queen v. J.J, Justice Binnie stated [at paragraph 28]:

"… the Court has emphasized that the trial judge should take seriously the role of "gatekeeper". The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility."

[79] Commissioner Stephen T. Goudge, in his Inquiry into Pediatric Forensic Pathology stated about experts and their testimony [at page 471]:

"It is crucial that judges precisely define the nature and limits of the expertise at the beginning of the trial."

[80] I confess that I have some difficulties with Dr. Sas' report. I respect her credentials and her achievements, and have little doubt that in the many years she has devoted to her work, she has accumulated a lot of both knowledge and wisdom. But for this report to be of value to the court, it has to be necessary. In Mohan Sopinka J. held that the party seeking to call an expert must satisfy the court that four criteria have been satisfied:

• Relevance, at this stage relevance refers to "logical relevance;"
• Necessity in assisting the trier of fact; that is providing information that is likely to be outside the knowledge and experience of the jury or judge; Sopinka J. stated that the word "helpful sets too low a standard," but he also said that he "would not judge necessity by too high a standard;"
• A properly qualified expert; and
• The absence of any exclusionary rule that would preclude the admission of the expert evidence.

[81] Dr. Sas indicated in her materials that she was qualified as an expert witness previously in Ontario family and criminal courts and has provided expert evidence in areas relevant to the matters in issue in the case before this court. She has had over thirty years of experience and has a Ph.D in Clinical Psychology. Her most relevant involvement in terms of this case appears to be her connection to the London (Ontario) Family Court Clinic where she has been a Clinical Psychologist since 1980, Assistant Director 1982 to 1985, Co-ordinator of the Child Welfare Assessment Project 1985 to 1999, and Director of the Child Witness Project from 1987 to 1999. In fact, her research endeavours in the Child Witness Project were in the area of child sexual abuse. She claims she has been qualified as an expert witness in a number of areas, most notably "Khan Applications (necessity and reliability assessments), Child Witness Competency to Testify, and Post Traumatic Stress Symptomology" How many she has done and in what courts is not disclosed. Overall, her academic and experiential credentials are very impressive.

Dr. Sas did what trial judges do. She assessed the issues of necessity and reliability in the context of K.'s police interviews. She offers her opinions on each. On the issue of necessity with respect to K., I was more than halfway convinced without her report that it was reasonably necessary that his evidence come not from K. as a witness at trial, but that it come in through other witnesses as child hearsay. I say this because I had similar reports of the possible negative consequences on him (most having to do with his being a vulnerable child already suffering from several mental conditions and the likelihood that testifying would be traumatic for him) from his SACC counselor (Ms Hagerty), from Dr. K. Lefave (a psychologist who examined him), the Be Brave Ranch psychologist (Fern Ashton), Dr. Filek (a physician who practices in the area of child psychiatry), Dr. Desoukey, (a psychiatrist who diagnosed K. [with Post Traumatic Stress Disorder (PTSD) and Dissociative Identity Disorder (DIS)] and Dr. S. Dundas (a psychiatrist who conducted a telepsychiatric consultation with K.). In addition, the society and the child's mother, had both indicated the panic attacks, the anxiety, the stress, and the suicidal ideation that had already been observed in K., and the traumatic effect that having to testify would have on K. Dr. Sas simply confirmed what all of these others were saying, and did so with more emphasis, and perhaps with a greater degree of qualifications to do so.

[82] Justice Doherty in R. v. Abbey said of expert testimony:

"At the conclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible. He or she will also decide whether certain terminology used by the expert is unnecessary to the opinion and potentially misleading. … Admissibility is not an all or nothing proposition…. The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to frame that opinion."

[83] I am inclined to qualify Dr. Sas as a clinical child psychologist in the fields of child sexual abuse, child development and child witness issues for the purposes of providing an opinion on the necessity aspect of the Khan-Smith approach to the admission of K.'s child hearsay.

[84] I am not prepared to qualify Dr. Sas as an expert in assessing the videotaped statements made by K. at the several police interviews aforementioned. Dr. Sas may have some knowledge of interview strategies that are approved by the NICHD Protocol, but in applying her knowledge of this to the recordings she reviewed, she traipsed on a function that is exclusively one of the court. Her opinion on K.'s statements to the police was essentially an opinion on credibility of those statements. As stated by Chief Justice McLachlin (as she then was) in The Queen v. Marquard [at page 228 C.C.C.]:

"It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion ..."

[85] Justice M. Cohen also remarked on this in her decision in the case of Catholic Children's Aid Society of Toronto v. T.B. [at paragraph 19]:

"There can be no usurpation of the judicial role or function. Necessity in assisting the trier of fact means that the expert opinion must be more than helpful. It must be necessary. Evidence may be "necessary" where it provides information likely to be outside the experience and knowledge of a judge or jury."

[and at paragraph 20]

"… determining the credibility of witnesses, even where the witnesses are young children, and determining the impact of forensic interviewing techniques on the credibility of the statements that result are "the stock and trade of what trial judges do day in and day out."

[86] There are other reasons why I do not qualify Dr. Sas as an expert in the context of her opinion on the credibility or the reliability, threshold or ultimate, of K.'s statements to police interviewers. That reason is that an expert is precluded from testifying that a particular witness is credible (or not) as this would violate the rule against "oath helping." This is the underlying reason that I detect in Dr. Sas' opinion on credibility of K.'s police interview statements. She wants the court to accept that K.'s recorded videotaped statements are credible and reliable, more so than any testimony he may offer today.

[87] Dr. Sas is not privy to other information that this court has. She was limited to the police interviews. In fact, K. made statements to other persons as well, including, at one time, that he had lied about a previous statement. Moreover, Dr Sas was mistaken, albeit in a relatively minor matter, that K. was in the sole custody of his mother and that he had only weekend access with his father. In fact, they had joint custody with week about sharing of K.

[88] Accordingly, I do not qualify Dr. Sas as an expert in her role of offering an opinion on the credibility or reliability of K.'s police interview statements.

[89] That ruling does not resolve the issue of the admissibility of K.'s out of court statements given at his police interviews and tendered to the court in the form of DVD's and transcriptions thereof attached as exhibits to affidavit(s) of Ms. Stitt. I am not going to admit these as evidence at this summary judgment motion. Firstly, this is clearly hearsay evidence coming from Ms.Stitt. Although hearsay may be admissible in summary judgment motions, according to the Kawartha decision, hearsay at summary judgment motions in child protection cases should be "trial worthy". It is not so as presented. It may be trial worthy if a voir dire ruled it to be so. And this leads to secondly, there has been no voir dire held or even requested with respect to such evidence. Moreover, Ms. Stitt clearly has no, or little, personal knowledge of the circumstances in which such statements were made.

[90] Ultimately, I rule that K.'s police interview statements are not admissible at this summary judgment motion. I wish to be clear, however, that I make no pronouncement as to whether they are or will be admissible at trial. The evidentiary rulings in this summary judgment motion decision have to be considered as applying to this summary judgment motion only, and not to any trial which may follow.

Other Evidence with Respect to s.74(2)(d) Grounds

[91] The interviews of the various individuals whose DVD recordings and transcripts were filed in evidence in this summary judgment motion are not the sum total of the evidence that support a finding that K. is a child in need of protection on risk of sexual harm grounds. In fact, the society has filed several affidavits and at least one police occurrence record that it relies upon, by way of summary judgment, to substantiate such finding.

Affidavit of S.H. (at Tab 10, Vol.10)

[92] S.H. is age 31 years. She was age 9 years when she claims she was attending a wedding in Sudbury and was in a swimming pool in the hotel where she was staying. In the pool with her was the father in the present case, then age about 14 years. She describes how the father would move her bathing suit aside with his fingers, touched her vagina, stuck his finger in her vagina under the water, and did so deliberately and intentionally, more than once. All of this was in the course of playing together, during which the father also tried to pull the shoulder strap of her bathing suit off.

[93] This is first hand knowledge of the deponent. It is in an affidavit sworn January 15, 2019. The father has not sought to question the deponent pursuant to Rule 20(5) of the Family Law Rules.

[94] The father's response to these allegations (at Tab 18, Vo. 10) is that he does not have any knowledge of the events described by S.H. and has no memory of them, but nevertheless denies the incident and any wrongdoing.

[95] The result is that the court has uncontradicted evidence of dated sexual misconduct by the father towards a nine year old child when he was about age 14.

Affidavit of D.S. (at Tab 5, Vol 10)

[96] D.S. is now age 21 or 22 years. The society did produce a sworn affidavit from her. Her affidavit is sworn Dec 7, 2018. She attests in her affidavit to the events in the pool when she was 12 years old and an invitee of her friend M.L. She says that the father, then an adult, was also in the pool, and he stuck his hand under her bathing suit top and touched her breasts. She also testified that the father was also bumping and grinding against her and that she could feel his erection from behind, and that he was touching her all over, mostly her stomach, breasts, thighs, butt and groin. She claimed that she told him to stop, tried to get away from him, and that he would pull her back more forcefully each time. D.S. also recounted that she and M.L. discussed what had happened in the pool, that she finally disclosed some or all of this to her mother that same day, and that she and her mother went to the police, and that she attended counselling for effects she attributed to this incident. Many of these events, especially what took place after she exited the pool, was corroborated by the evidence of others.

[97] The father responded to these allegations in his affidavit (at Tab 20, Vol 10) in which he points to discrepancies in accounts given by D.S., M.L. and M.L.'s grandfather, R.Q. His response to the sexual misconduct allegations of D.S. are to deny that he stuck his hand under her bathing suit top, that he did not pull her back with force, and that there was nothing sexual about the way he touched her. He denies grinding, humping or holding D.S. against him, and denies that he had an erection at this time.

[98] This leaves the court with contradictory evidence from these two as to what occurred in the pool. Both accounts are first hand accounts.

Affidavit of M.L.(at Tab 9, Vol 10)

[99] M.L. is now an adult and was age 21 in 2019. The society also prevailed on her to provide a sworn affidavit. Her affidavit indicates she was age 12 or 13 when the pool incident took place involving the father. M.L. recalls that the father, who was then an adult, put his arm between her legs two or three times, so that her legs were straddling his arm, with her crotch on his forearm. She also claimed that the father used his other arm to hold her by the waist, and she was trying to get away from him. Moreover, she recalls that the father was doing similar things with her friend D.S. during the five minutes or so that he was in contact with them in the pool. M.L. recounts that she subsequently spoke with D.S. who she recalls appeared scared and violated and they both got out of the pool. She also spoke to the police and claims she is still affected by what happened to her that day.

[100] The father responds to these allegations in his affidavit at Tab 19, Vol. 10. He denies that he ever put his hands between M.L.'s legs. He claims that he and M.L. (and D.S.) were just playing in the pool, and he was throwing them in play. He says that they said that they didn't like it, so he stopped. The entire incident, he claimed, did not take more than 30 seconds. He denies any wrongdoing.

[101] The result of this is that these are contradictory accounts of what went on in the pool; both accounts are first hand.

[102] The father did seek to cross examine both D.S. and M.L. as non-party witnesses. He brought a motion at Tab 7, Volume 10 on December 19, 2018 for an order pursuant to Rule 20(5) that he be permitted to examine (question) both D.S. and M.L. among others. This motion was adjourned a few times and ultimately was withdrawn by the father on Feb 13, 2019. There is nothing in the court record as to why it was withdrawn. So far as is known, neither deponent was ever questioned under oath.

"Witness Statement" of M.P. in Police Records

[103] There was a police occurrence report that was adduced in evidence under the business records provisions of the Evidence Act (Ontario). I am satisfied that the father had ample notice of this. It is clearly hearsay but does contain a willsay statement of M.P. who was about age 18 years when she attended at the police station to give this statement on August 20, 2008. The statement related to an incident that took place one year prior "to the day" when she was age 17 years. The statement recounted an event when her boyfriend was being given a ride home by her and the father. She stated that the father had been giving her drinks all that evening – five drinks and a cooler. She also said that on the way back to her sister's place where she was staying, after she got back into the car after urinating in the dark, the father put his hand up her dress and down the front of her underwear, massaging her vaginal area, yet not digitally penetrating her. She also claimed that when they got back to her sister's place, he asked her to get into a different dress and to have sex with him. No charges were laid as a result of this belated report to the police, mainly because she did not want to pursue charges.

[104] M.P. did provide a first hand account of these events but not in a sworn affidavit. However, because she was age 17 when this incident took place, and therefore a child, her description of it falls within the parameters of s.93(1) of the CYFSA. The court is permitted to consider the father's past conduct towards a child under this subsection of the Act, whether it is described in a sworn affidavit or not. If clause (b) of s.93(1) applies, then conceivably, M.P.'s statement is a written statement or a report that the court may consider relevant to the issue of a finding of risk of sexual harm, and is thus admissible in evidence.

[105] The father responds to these allegations in his affidavit at Tab 25, Vol 10. He recalls the occasion described. He denies that he put his hands up M.P.'s dress or in her underwear, or that he asked her to have sex, or that he tried to have sex with her. He denies that he provided her with alcohol and claims her boyfriend bought alcohol for both of them.

[106] The result of this is that there is contradictory evidence of what exactly took place during that time. However, the fact that M.P.'s account is not sworn debilitates it considerably. No affidavit of M.P. was included in the society's evidence on the summary judgment motion.

Assessment Report of Dr. R. Dickey

[107] There is yet other evidence that is relevant to a finding that is relied upon by the society in this summary judgment motion. That evidence consists of a psychosexual report of Dr. R. Dickey of an assessment of the father pursuant to s.54 CFSA.

[108] This report of the psychosocial assessment of the father was ordered by the court on motion of the society on June 21, 2014. It was ordered under s.54 of the CFSA (which has now been replaced by s.98 of the CYFSA). It was also to include phallometric testing. According to a review of the endorsement, the father consented to the assessment.

[109] Court ordered assessment reports are somewhat different than non-court ordered reports. For one thing, they are not only admissible, but are stated to be "evidence" in the case in which they were ordered. That they may contain opinions of the assessor does not necessarily mean that the assessor must first be qualified as an expert.

[110] The court ordered assessment report under s. 54 CFSA must comply with prescribed requirements.

S.54(1.4) An order under subsection (1) and the assessment required by that order shall comply with such requirements as may be prescribed. 2006, c. 5, s. 10 (1).

[111] There is a regulation that applies to s.54 court ordered assessments. This regulation O. Reg. 25/07 provides in s.5 thereof, the required contents of every assessment report. Among these is listed at clause 5(2):

O. Reg 25/17

S.5 (2) A schedule setting out,

i. a summary of the instructions received, whether written or oral,

ii. a list of the questions upon which an opinion is sought, and

iii. a list of the materials provided and considered.

Clearly, the combination of the statute and the regulation requires that the assessor set out a list of the questions on which his opinion is sought. I suggest that the assessor's opinion is thus statutorily admissible, and is admissible as evidence in the case, regardless of whether the assessor is or is not formally qualified by the court to give his or her opinion as an expert.

[112] Dr. Dickey's report included references to the phallometric testing procedure that the father underwent, and to the profile generated by such testing procedures which was interpreted by Dr. S.M. Woodside, head of the Sexual Behaviours Clinic, who authored the interpretation in a "phallometric report". Dr Dickey received such report and bases his assessment on such phallometric report, although, it seems, not totally. He also interviewed the father and formed his clinical impression of him. His assessment includes his opinions and recommendations.

[113] In the case of the father, Dr. Dickey states that he "suffers from a deviant sexual preference involving children or immature persons." He also stated that the "result of the father's phallometric evaluation was indicative of his suffering from Pedohebephilia." He explains that Pedohebephilia is "a sexual preference in which the preferred method of seeking sexual arousal and gratification is through the fantasy of or interaction with the prepubescent or early pubescent child." Ultimately, Dr. Dickey formulated his opinion in the assessment report as follows:

"It would therefore be my opinion that G.C. should not have unsupervised access to or care of children"

[114] The father attacks Dr. Dickey's report on several grounds. Firstly, he says that Dr. Dickey goes beyond his permitted limits in giving his opinion that the father should not have unsupervised access to or care of children. However, Dr. Dickey is quite clear in the first paragraph of his report of the reason of the society's referral of the father to him, namely:

"… for assessment pertaining to his having supervised or unsupervised access to or care of children in light of his having been the subject of allegations of a sexual nature involving young persons or children"

I do not fault Dr. Dickey on this ground. He did what was asked of him. Moreover, Dr. Dickey states quite clearly that he explained to the father "the purpose of our meeting" and also stated his belief that the father clearly understood the caution and the father signed a consent authorizing release of information to the society.

[115] I also add that Dr. Dickey's opinion as to whether the father should or should not have unsupervised access to, or care of, children has little if any relevance in the summary judgment motion before this court. This court is tasked only with whether the children are in need of protection on the ground of risk of sexual harm, and even then, if the evidence is such that the court can decide whether this is a genuine issue for trial. It is not making any findings, determinations or judgments with respect to paternal access. It is enough that the father is diagnosed with pedohebephilia.

[116] The second ground on which the father objects to the report of Dr. Dickey has to do with whether the phallometric testing was valid. The father indicates in paragraph 71 of his affidavit (at Tab 25 Vol.10) that during his phallometric testing he had a chronic cough that the tester was aware of, as the tester had stated it was showing as false positives and he was not sure that he could remove them for the testing. The father "denies this evaluation". The report makes no mention of coughing during the phallometric test portion of the assessment. There is no hint of any invalidity in the report itself. The father has had this report for over five years. He has not sought an order to obtain, nor obtained any other report that would give a contrary opinion. As far as is known, he has not formally objected to the validity of the procedures on which the report is based. He has not sought to have the author of the report or the phallometric technician be questioned, or that he be granted leave to have Dr. Dickey attend and be cross examined at the summary judgment motion.

[117] Thirdly, the father questions whether such a report can be validly used as a predictor of risk of sexual misconduct. The case law is somewhat divided on what psychosexual reports can actually be used for. Phallometric testing enables the medical staff to assess the progress of therapy of known and admitted sexual deviants. It is not generally acknowledged to be a reliable forensic tool for the purpose of predicting risk of sexually deviant behaviour of a subject, particularly where the subject has not been convicted of, or has not even admitted to having committed a sexual offence. In short, it is a therapeutic tool sought to be used as a forensic tool. Notwithstanding this, psychosexual assessments based on phallometric test results have been relied upon by a number of courts. This is particularly so where the court itself has ordered the psychosexual assessment and where it has included the phallometric testing as part of the assessment process. This appears to be the case here and, in addition, the father consented to this assessment.

[118] Finally, the father submits that the assessor did not file a Form 20.1 which is entitled "Acknowledgement of Expert's Duty". While Dr. Dickey may be an expert, he was not technically giving his opinion as an "expert" in his assessment report in this case. He was giving his opinion as an "assessor" appointed by the court. The fact that an order was made appointing Dr. Dickey to perform the assessment necessarily means that the court was satisfied that he was qualified to perform the assessment, that he consented to do it, and that he was selected by the parties. Accordingly, Dr. Dickey was not, in my view, required to file a Form 20.1 as a requirements of the contents of his assessment report under Rule 20.1. The CYFSA (formerly CFSA) and its accompanying regulation [O. Reg 25/07] have their own provisions about assessments and reports which are ordered under their provisions, including the contents of such reports. These court ordered reports do not have to comply with Rule 20.1.

[119] In summary, what the court has on this summary judgment motion is a psychosexual assessment report that statutorily is evidence in this case, that the father consented to undergo, that has not been 'formally' challenged by the father, that is not contradicted by either a critique report or another phallometric based psychosexual assessment report, and is of a type accepted by some courts. At most, the father has made an allegation that he had a chronic cough and this may have affected the phallometric portion of the assessment.

[120] The question is what to make of this "other evidence" in the context of a summary judgment motion. What can the court make of it after the Kawartha case?

[121] My answer to that is to examine Kawartha and what it says more closely. Firstly, although the children are indigenous, and are thus entitled to special considerations, I do not believe that this instruction in the Kawartha approach to summary judgment has much bearing, if any, on a finding that a child is in need of protection. It clearly may have on other aspects of the case.

[122] Secondly, the court does not have an obligation to provide assistance to this father as a self represented person. He has had counsel throughout this long case and has been ably represented. This admonition does not apply.

[123] The appellate injunction to screen the evidence, to eliminate inadmissible evidence, and not give weight to evidence that would not be admissible at trial, while a bit confusing, is what I have attempted to do in these Reasons so far.

[124] The burden of proving the grounds of risk of sexual harm has not shifted from the society. It is the society's evidence primarily that the court has considered on this finding issue. More importantly, in this summary judgment motion, the court has considered the society's evidence from the perspective of what it is required to prove in this motion. That is, whether the evidence of the society has satisfied the court that there is no issue with respect to the finding in need of protection. That onus has steadfastly remained on the society throughout.

[125] Finally, the appellate court's exhortation to act cautiously in determining if there is a genuine issue for trial in this summary judgment motion has remained at the forefront in this motion. As for applying the objectives of the CYFSA, including the best interests of the child, I frankly fail to see how this influences this rather narrow motion for summary judgment that is restricted in scope to determine one thing only, and that is, whether these children are in need of protection because of risk of sexual harm from their father. While I may be mistaken, my feeling is that best interests and CYFSA objectives are more relevant to disposition and access issues, and should have little to do with the issue of a finding. As I have mentioned previously, this case is shamelessly past all statutory or regulatory time limits and this summary judgment motion is not going to end this case. Permanency for these children has very little to do in these circumstances.

The Law with Respect to Summary Judgment Motions

[126] The law with respect to summary judgment motions is set out in virtually every reported summary judgment motion decision, in abbreviated or comprehensive form, or somewhere in between, often with accompanying references to cases that stand for certain propositions. I reproduce the exposition of such law from [paragraphs 14 to 26 of] the decision of Justice Jain in her recent decision Simcoe Muskoka Child Youth and Family Services v. K.R., [2019] O.J. No. 3095, which I find to succinctly and efficiently set out that law, in particular as it post dates the April 2018 CYFSA amendments and the Kawartha decision:

14 The burden of proof is on the party moving for summary judgment (the Society). Pursuant to r. 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.

15 Pursuant to r. 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: Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.) .)

16 A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial. The parents need more than genuine and heartfelt expressions of their desire to resume care of the child. There must be something discernable from the parent's evidence to show they face some better prospects than what existed at the time of the Society's removal of the child from their care. (See: Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) ; Catholic Children's Aid Society of Hamilton v. W. (B.). 2015 ONSC 7621, para. 90 ).

17 Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. (See: Kawartha Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, para. 2 of para. 80 ).

18 As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak's principle of reaching a fair and just determination on the merits (See: Kawartha, at para. 76).

19 Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (See: Kawartha, at para. 1 of paras. 80 and 64).

20 The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (See: Kawartha, at para. 3 of para. 80).

21 The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue "for trial" or "requiring trial" analysis that incorporates these considerations. The test of "no genuine issue for trial" has been referred to in a number of ways. It has been equated with "no chance of success" or that it is "plain and obvious that the action cannot succeed". The test has also been enunciated as being when the "outcome is [a] foregone conclusion" or where there is "no realistic possibility of an outcome other than that sought by the applicant". (See: Kawartha, at para. 72).

22 Rule 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.

23 Rule 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:

• Weighing the evidence.
• Evaluating the credibility of a deponent.
• Drawing any reasonable inference from the evidence.

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

25 In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. Hyrniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact finding powers to decide if a trial is required.

26 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 ( See: Hryniak, at para. 49 ). As the Supreme Court stated, at para. 50 of Hryniak, "...the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute." (See: Kawartha, p.63)

Analysis

[127] On the sole issue in this summary judgment motion, I conclude that the society has satisfied the court that there is no genuine issue that requires a trial.

[128] While the DVD recordings and their transcripts are not admissible as evidence in this summary judgment motion, there is enough admissible evidence apart from these to conclude that, at trial, there is no other reasonable outcome other than that there is a risk of sexual harm to these three children, and that the source of that harm is their father.

[129] From an evidentiary point of view, the society is required to lead the evidence that must satisfy the court that this finding is a foregone conclusion. In this summary judgment motion, the only two alternative findings are that there is such a risk of harm, or that there is not such a risk of harm. Put more properly in terms of Rule 16(6) of the Family Law Rules, if this court concludes that there is no genuine issue requiring a trial of the claim or defence, the court shall make a final order accordingly. In this case, the only claim and the only defence is with respect to a finding under s.74(2)(d) CYFSA – risk of sexual harm. The final order is actually a "finding" in need of protection. As Rule 16(6) is mandatory, the only way to avoid making such "finding" or "final order" is to conclude that there is a genuine issue that requires a trial. That is a conclusion I do not reach in this summary judgment motion. I do not do so for the following reasons.

[130] Firstly, the evidence of S.H., although dated, is very persuasive, basically uncontradicted, and not seriously attacked by the father. It is not hearsay; it is first hand evidence. It is clearly a narrative of sexual assault on a child by the father. It is conduct that the court may statutorily consider as past conduct of a person towards a child. It is sworn evidence. It is evidence given by a mature adult person. The deponent has not been questioned or cross examined on this even though the father was well aware of the provisions of Rule 20 affording him the right to do so. The father brought a motion for questioning of other society witnesses but he didn't follow through. Although the evidence of S.H. came somewhat late in the day, it is evidence that a reasonable respondent would recognize as being very damaging to him or her in the context of this summary judgment motion if it were not nullified or attenuated. The father's response was to claim that he simply did not remember the incident. He denies it happened. I agree that a denial may in some circumstances be the only reasonable response, perhaps the only possible response, that can be made. However, in the case of S.H., a denial is not enough.

[131] This evidence alone might be enough to justify a conclusion that here is no genuine issue for trial. At trial, what could the father possibly say more than he has said on this summary judgment motion. The argument was made by the father's counsel that, since Kawartha was released, a respondent's defence no longer means that he or she must 'put his best foot forward' at a summary judgment motion, or that a respondent, like an accused in a criminal court, can stay silent. I disagree that this is what Kawartha says. What it does say [at paragraph 80, Point No.2]:

"Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial."

[132] Kawartha does not simply jettison all of the jurisprudence that has developed over the last three decades with respect to summary judgment motions. "Putting one's best foot forward" when applied to a respondent in a summary judgment motion means that all of the respondent's defence is expected to be put forward at that motion. In this case, this reasonably could include a transcript of the questioning of S.H. done before the hearing of the motion. Rule 16(4.1) continues to place an obligation on a respondent to set out in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[133] The case law on summary judgment motions that seems to apply is that:

"The court is entitled to assume that each party's affidavits contain the evidence which would be before the court if the case went to a viva voce trial."

I do assume that all of the parties have put forward their best evidence on the issue of the finding in need of protection in this summary judgment motion, and have not held back awaiting trial.

[134] Further, it is also an accepted principle in summary judgment motions that:

"A submission that the evidence must be tested by way of cross-examination does not in itself give rise to a genuine issue for trial"

So, if the father is suggesting that his cross examination at trial will vitiate the evidence of S.H., or of any other deponent in a society affidavit, or of any author of any report filed by the society, he is mistaken. His time to do so is now, in this summary judgment motion.

[135] Secondly, there are the affidavits of M.L. and D.S. These are also first hand accounts by each of them. These are evidence given under oath. The deponents of each affidavit was an adult when the affidavit was sworn. The events recounted are clearly of sexual misconduct with each of them by the father a decade ago. There is no mistaking what each says the father did. Each was a "child" then as defined in the statute. The court is permitted to consider this past conduct of the father towards these persons as children. The fact that criminal charges were stayed does not help the father with respect to the factual circumstances involved. His responding explanations have to be weighed against the allegations made by the deponents.

[136] Since even before the amendments to Rule 16 following the Supreme Court of Canada decision of Hryniak v. Mauldin, 2014 SCC 7, and certainly afterwards, the court has had the power to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. Frankly, I believe that the court can, and often does so, on any motions it may hear. However, this is now expressly permitted by an evidentiary Rule, in a summary judgment motion, with the procedural guidance of the Supreme Court in Hryniak.

[137] With respect to the affidavits of M.L. and D.S., I have little reason to discount the basic stories that they tell of the father's conduct with each of them. D.S. had had no prior contact with him. He was a stranger to her. She had no ostensible reason to fabricate this account. She discussed what happened with M.L. after they exited the pool and M.L corroborated that they had this discussion. D.S. disclosed this to her mother on the same day as the incident, and her mother, recognizing what had occurred went to the police to make a report. The police followed this up. All of this is recounted in the affidavit of M.L. and D.S.'s mother which corroborates what D.S. says in her affidavit, and, to some extent, D.S. corroborates what M.L. says in hers. The observations made of the demeanour and appearance of D.S. by M.L. while in the pool support the veracity of the account that D.S. gives in her affidavit. In short, I did not believe that these deponents made up this story, or that they were mistaken in what actually took place. I found them both credible. If I had any criticism of their affidavit evidence, it was that there were some disparities in what they say happened, but these were mostly with respect to collateral facts (eg who was in the pool at any given time, the order in which the pool was entered or exited, where in the pool did certain events take place, the date of the occurrence).

[138] The father's response was to deny any sexually related aspect to his behaviour in the pool and to paint the events as innocent pool play. He claims that the girls said that they didn't like it [his throwing them], and so he stopped. He describes this playing as very brief, at one time, ten seconds and at another, thirty seconds. All he says that he did was to pick them up and throw them in the pool. At another time he says he only "tried" to toss one of the girls, twice. I have more difficulty believing the father. For one thing, he was almost 27 years old at the time of the pool incident. They were 12 years old. He was huge in relation to the size of the girls, over 300 pounds. He had had a previous involvement with S.H., co-incidentally also in a pool, which I have inferred from her evidence involved explicit sexual contact by him with her, and which apparently had no consequences for him at that time. His account of time spent in his contact with the girls (not even ten seconds) is minimized and not credible when compared to what they recount took place, or what a reasonable person would estimate as the time needed for such events involving two girls to transpire. M.L. estimated that the father did this over five minutes. I do not find the father credible, certainly not as credible as M.L. and D.S. He also was a stranger to D.S. and, although a cousin to M.L., there was apparently no history of any significant relationship other than at family functions. That he would engage even in 'horseplay' with them, as he claims, is an explanation that has little air of reality. In weighing the evidentiary merits of the accounts of what happened, I give much more weight to the accounts of M.L. and D.S. than I do to the account of the father.

[139] Thirdly, there is also the evidence of the father's sexual contact with M.P. when she was age 17 and still a child. While this evidence is considerably weaker because it was not sworn evidence, it is still of an adult's behaviour towards a child and it is permissible for a court to consider this kind of evidence. That M.P. reported this to her sister, C.P., and that their mother, L.P., became privy to information about this incident and reported it to the police are facts gleaned from the evidence of the society. That M.P. went a year after this incident and made a report to the police, which was presented in the summary judgment motion in a police occurrence report lend more credibility to the essential fact of the sexual contact reported. On the other hand, the fact that M.P. had considerable amount of alcohol before the incident, and the father's denial of his reported sexual contact with M.P., and the fact that it comes to this summary judgment court as hearsay evidence, argue for assigning less weight to M.P.'s account. Nevertheless, there is enough evidence that the incident occurred, that both the father and M.P. refer to it, that it does have some elements that both the father and M.P. agree happened (ie M.P. getting out of the vehicle to relieve herself by urinating) and that M.P. reported the incident and the sexual conduct of the father to others to infer that something sexual did take place. It is evidence that is admissible and, while not convincing in itself, it does lend some credence to the existence of the father's historical sexual conduct with younger persons, especially females.

[140] Fourthly, I have evidence that the father is diagnosed in 2014 by Dr. Dickey as a pedohebephile. This is based primarily on a phallometric test results and an interpretation of those results. I have already explained why this is evidence is admissible. Based on that evidence, I infer that the father has a sexual preference in which the preferred method of seeking sexual arousal and gratification is through the fantasy of or interaction with the prepubescent or early pubescent child. This is essentially a diagnosis that corroborates what has become apparent in the father's interactions with S.H., M.L., D.S. and even M.P., namely that he has a sexual preference for children which he has pursued in the past with these individuals. I cannot disregard such evidence. For the reasons set out previously in paragraph [100] to [110] above, I give considerable weight to that evidence and make the inference that the father is correctly assessed to present a risk of sexual harm to pubescent and prepubescent children.

[141] It is true that I dismissed a motion by the society to re-open this summary judgment motion for further evidence, in particular on this assessment of the father by Dr. Dickey. The reasons for doing so have since been reported at | 2019 ONCJ 730, [2019] O.J. No. 5320. The purpose was to clarify a discrepancy between the diagnosis of the father as suffering from "hebephilia" by Dr. Woodside, who interpreted the phallometric test results, and the diagnosis of the father as suffering from "pedohebephilia" in the assessment report of Dr. Dickey. In either case, it is a reasonable inference that the father represents a risk of sexual harm to children regardless of which diagnosis is the proper one.

[142] The father has failed to convince me that I should discount the assessment report as evidence. It is not considered to be conclusive as to the risk of sexual harm that the father presents to children. However, it is more evidence that this is, in fact, the case.

[143] I have not dealt with the evidence of mother-1, C.P., and the allegations that she makes about her observations of the father's sexually related activities, the father's proclivities in this regard, his reported comments, and his attitude towards sexual matters. I have not done so for what I consider good reasons. The first is that her evidence is not required. There is evidence from more acceptable sources. The second is that her evidence and that of the father are very contradictory on most factual events relevant to the issue in this summary judgment motion, namely, the risk of sexual harm that the father poses to children. Thirdly, the history of the father and mother-1, especially before this child protection case ever started, shows that they were already in a high conflict domestic litigation in the Superior Court of Justice, where these parents were highly adverse to each other, and clearly each had some animus, one towards the other. There is some evidence that the mother brought K. to the police a number of times when no disclosures were made of any sexual improprieties by the father. The evidence of the mother is simply too problematic in the context of this summary judgment motion. The police and even the society appeared to have some doubts about the veracity and the reliability of the mother. One of the psychological reports suggested that she might be prone to over-reporting. It is difficult to know if what she says is reliable simply from reading her affidavit, and even more so after reading what the father has to say about her.

[144] As for disclosure made by K. to his mother, these are clearly hearsay in nature and have not passed the test in the principled approach to admissibility, Coming from the mother, they pose many of the same problems as set out in the immediately preceding paragraph.

[145] As for K.'s disclosures of sexual touching of his body by his father, K. has no affidavit before this summary judgment court. Accordingly, any disclosures he may have made, whether to police officers, to society workers, to his stepfather, to his Sexual Assault Care Centre counselor, to anyone at the Be Brave Ranch in Alberta, or to anyone else, these have not been voir dired and presumptively, are inadmissible as trial evidence, hence equally inadmissible as summary judgment motion evidence – until they do undergo a voir dire and are ruled admissible. However, I do not necessarily need evidence of the father's sexual improprieties with his son K. to arrive at the conclusion that the finding that the father is a source of a risk of sexual harm to K. or to O. or J. is an inevitable finding at a trial.

Summary

[146] In summary, I conclude that the society has provided sufficient evidence for me to conclude that there is no genuine issue that requires a trial with respect to whether the father is a risk of sexual harm to his three children. I arrive at this conclusion cautiously realizing that to do otherwise is contrary to the directive guidance of the appellate court in the Kawartha case. I am satisfied that, if a trial were held on this issue of a finding in need of protection on account of a of risk of sexual harm, the same result would be inevitable and there would be no realistic possibility of an outcome other than that sought by the applicant society. I am confident that I have used extreme caution to assess the admissibility of various pieces of evidence presented on this summary judgment motion and have rejected what is inadmissible in law, and have given appropriate judicial weight to what is admissible, again in law. I have gauged the admissible evidence on both sides, and have given preferential weight where I believed it appropriate to do so, and have given reduced weight where deserved. I have applied the jurisprudential principles that have been established over several decades and that still apply to summary judgment motions in child protection cases. I have applied these to the father's responses to this motion and have found that he has not established with specific facts, that here is a genuine issue that requires a trial. Finally, I have been able to reach what I consider a fair and just determination on the merits on a motion for summary judgment. This is not a summary judgment motion where I have felt that the best interests of these children have influenced or have been a factor in my decision. This motion is on a finding only, and is very restricted in its purpose. I have not applied any considerations stemming from the fact that the children are all First Nation children as I do not believe that this plays any role at a finding stage in the context of this summary judgment motion. I have considered that the Charter has implications in child protection cases and that there is likely to be an imbalance between the society as an applicant and the father as a respondent. However, there is little that the court can do in this case as the father is well represented and he does not need assistance of the court, procedural or otherwise. The reality, and one that I accept, is that respondents in child protection cases are rarely equally matched with societies. All I can say to that is that it is my perception that this is almost invariably true.

[147] There will therefore be a finding that the children in this combined case are in need of protection on the grounds under s.74(2)(d) CYFSA, of risk of sexual harm on account of their father. This finding represents the "final order" that the court is mandated to make in this motion for summary judgment when it finds that there is no genuine issue for trial related to this finding.

Released: November 3, 2019

Signed: "Justice John Kukurin"