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.

(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.

(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 File and Parties

DATE: 2021 04 19 COURT FILE No.: Toronto C 21754/18

ONTARIO COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO Applicant

— AND —

S.F. and D.L. Respondents

Before: Justice Curtis

Heard on: 27 November 2020 Reasons for Judgment released on: 19 April 2021

Counsel: Chithika Withanage, for the applicant Children’s Aid Society of Toronto Denise Badley, for the respondent mother S.F. Lisa Hayes, Office of the Children’s Lawyer, for the children Father appeared in person, unrepresented

CURTIS, J.:

Overview

[1] This is the decision of a motion for summary judgment brought by the Children’s Aid Society of Toronto (“C.A.S.T.” or “the agency”) on a status review application started 25 October 2019 regarding the children De. (now 12 years old) and Da. (now 11 years old). The agency asks for an order under s. 102 of the Child Youth and Family Services Act [1] for custody to the father, with specified access to the mother.

Issues on the Motion for Summary Judgment

[2] These are the issues for determination:

(a) Is there a genuine issue requiring a trial regarding the disposition for the children? In particular:

i. Do the children continue to be in need of protection?

ii. Is intervention through a court order necessary to protect the children in the future?

iii. Is an order placing the children with the father under s. 102 C.Y.F.S.A. in their best interests? and,

iv. Is there a genuine issue requiring a trial regarding what access order is in their best interests?

Positions of the Parties at the Motion for Summary Judgment

[3] The agency seeks an order for summary judgment and a s. 102 C.Y.F.S.A. order for custody to the father, with travel and passport orders, and specified access to the mother. The access proposed by the agency for the mother is:

(a) Every Sunday from 10.00 a.m. to 6.30 p.m.;

(b) The parents shall meet at the Scarborough Town Centre by the movie theatre for exchange; and,

(c) Any further access at the discretion of each child.

[4] The father supported the orders sought by the agency.

[5] The mother opposed the motion. She stated that there were genuine issues requiring a trial and that the motion for summary judgment should be dismissed. She opposed the claim for a custody order to the father. She wanted the children returned to her care. If they were not, she wanted generous and liberal access.

[6] The Office of the Children’s Lawyer, on behalf of the children, took the position that there were no genuine issues requiring a trial. It supported the custody orders sought by the agency. It sought a different access order than that sought by the agency. [2] No formal claims in a pleading were brought by the children’s lawyer. No Notice of Motion was filed making these access claims. The access claims were set out in the affidavit evidence filed by the children’s lawyer and in the factum. This is not the proper way to put claims before the court on a motion for summary judgment.

[7] The agency, the mother, and the children’s lawyer filed evidence on the motion, and all filed facta, all of which was considered.

Background

[8] The mother S.F. is 31 years old (born […], 1990). The father D.L. is 31 years old (born […], 1989). The parents were not married but lived together from September 2007 to June 2014. They have two children:

De. born […] 2008 (12); and,

Da. born […] 2009 (11)

[9] The mother and her partner K.M. have been together since 2017, and they have a child, B., born […] 2019 (22 months old). They do not live together. The mother lives in Toronto. The child B. is in the mother’s care and is not part of this court case. There is no protection application regarding the mother’s care of this child.

[10] The father lives with his wife S.G.L. in Pickering. The children have lived with the father and his wife since 19 February 2019.

[11] The agency has had regular, on-going involvement with the mother since 2014. The protection concerns related to lack of supervision of the children, inappropriate physical discipline, the mother’s mental health issues, and using marijuana in front of the children and when in a caregiver role. The mother acknowledged mental health concerns, such as anxiety and depression, but said she would not take medication and was not seeing a psychiatrist.

Litigation History

[12] The children were brought into care on 13 October 2018 after being found alone and unsupervised in the mother’s apartment. The children were then ten and nine years old.

The children were initially placed in the care of the paternal grandmother T.M., where they did well.

[13] The children have lived with the father on consent since 16 February 2019, and were placed with him under a temporary supervision order on 26 February 2019.

[14] On consent, Zisman, J. found the children in need of protection on 1 April 2019 [3]. The Statement of Agreed Facts that supported the protection finding and the temporary order [4] stated that the children (then ten and nine years old) came into care as they had been left alone for three days. They were knocking on neighbours’ doors asking for food because they were hungry, and they reported that the mother had been staying with her boyfriend. The children said that no-one checked in on them while their mother was out of the home.

[15] The order under review in the status review application is the consent order of Jones, J. made 3 July 2019 placing the children with their father subject to a six months supervision order. The mother’s access was at the C.A.S.T. discretion, in consideration of the children’s views and preferences, with regard to the level and nature of supervision, for five hours per week.

[16] A further Statement of Agreed Facts was signed by the mother on 3 July 2019 and contained the same information about the reasons the children came into care. In the two Statements of Agreed Facts, the mother agreed to these facts as evidence, and as the basis for the protection finding. The mother did not dispute or deny these facts in either of these documents. The mother was represented by a lawyer at the time of the signing of both documents.

[17] The mother was charged with a provincial offence related to child abandonment in October 2018. The charge was withdrawn in October 2019.

Disposition on the Status Review Application

Principles to be Applied on a Status Review Application

[18] The court's decision on a status review application must take into consideration the paramount purpose of the C.Y.F.S.A., as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, which takes precedence over all other considerations. [5]

[19] The test on a status review application is as follows:

(a) the original order is presumed to be correct. This is not a rehearing of the previous order that was made;

(b) the court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection;

(c) the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and

(d) secondly, the court must consider the best interests of the child. This analysis must be conducted from the child's perspective. [6]

[20] Section 114 of the C.Y.F.S.A. provides that where an application is made for review of a child's status under section 113, the court may, in the child's best interests:

(a) vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 101; or,

(d) make an order under section 102.

[21] Section 74(3) of the C.Y.F.S.A. sets out the criteria that court shall consider in determining the child’s best interests:

Best interests of the child

1. Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

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

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

iii. consider any other circumstance of the case that the person considers relevant, including,

a. the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

b. the child's physical, mental and emotional level of development,

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

d. the child's cultural and linguistic heritage,

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

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

g. the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

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

i. the effects on the child of delay in the disposition of the case,

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

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

[22] Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders. [7] Statements of agreed facts are admissions, which are an exception to the hearsay rule.

Is a Court Order Necessary to Protect the Children in the Future?

[23] The mother appears to want to revisit the protection finding from the original protection application (made on consent on 1 April 2019). She continues to deny that she ever left the children alone. Yet she states in her factum that the protection findings made are no longer an issue in this case.

[24] Revisiting the protection findings made on consent on 1 April 2019 is not available on a status review application.

[25] Although there were two Statements of Agreed Facts containing admissions by the mother which dealt with the reasons the children came into care, the mother continues [8] to deny that she left the children alone. She cannot now challenge the facts on which the protection finding was based, facts which she agreed to. It is not open to her to re-litigate the issues determined on the original protection application, when a protection finding was made on 1 April 2019. She does not accept that her behaviour was directly responsible for risk of harm to the children, and for them coming into care. The risks and concerns that existed at the time the society commenced its application continue to exist. The children continue to be in need of protection.

[26] In trying to relitigate the issues around the protection finding, the mother shows a lack of insight into the protection risks to the children. This increases the risk to the children that she would repeat the conduct that lead to them coming into care. This dictates that a court order is still necessary to protect the children in the future.

[27] As well, the history of this case shows that the mother lacks insight into the need to work co-operatively with the father, no matter where the children are living, and lacks insight into what is in the children’s best interests. During the case, the mother has continued to make baseless allegations against the father, at times involving the children in criticizing the father, and putting the children in the midst of the adult conflict. Much of the mother’s evidence on this motion was criticizing and attacking the father. This is regrettable, as the parents still have many years during which they must get along well enough to parent the children.

What Disposition Orders are in the Children’s Best Interests?

[28] The next step is for the court to determine what disposition orders are in the children’s best interests.

The Father’s Plan

[29] The father and his wife live in Pickering, in a modest, clean three-bedroom house, with a large backyard, and a dog. The children have lived with the father and his wife since February 2019. They are doing well. The agency has had a considerable period of time in which to evaluate the father’s plan.

[30] The agency has been involved with the family since 2014, and has not previously had concerns about the father’s care of the children. There was no credible evidence regarding concern about the father’s care of the children. The agency has no current concerns about the father’s care of the children.

The Mother’s Plan

[31] The mother’s evidence, which was extensive, [9] contained no information about her plan for the children. It was not clear if her current partner is to be part of her plan for her care of the children. No evidence was provided regarding school, day-care, activities, the children’s friends, their home, her family, her relationship with her partner, or anything else about her plan.

[32] The mother’s evidence dealt primarily with her complaints about her treatment by the agency and by the father. She believes she has been poorly treated and misled by the agency, which she says treated her “wretchedly and unfairly”. She filed a complaint to the Child and Family Services Review Board and had a hearing before it. Her evidence in the motion for summary judgment about the father focused on his lack of involvement with the children before they were brought into care in October 2018 and on their relationship, which was not a good one.

[33] The mother says that she did what the agency told her to do, and that she understood that would result in the return of the children to her care. In her evidence she lists the programs that she attended.

Mother’s Access

[34] When the children were placed in the father’s care on 26 February 2019, Zisman, J. made an access order on consent for the mother, at the C.A.S.T. discretion, a minimum of twice a week for five hours per week, with conditions. This access order was also included in the disposition order made 3 July 2019, placing the children with the father with a six months supervision order.

[35] Since the children were originally placed in care in October 2018, the mother has had only one over-night visit (held 14 November 2020).

[36] The evidence provided by the agency about the mother’s access was that she had not demonstrated an ability to be child-focused during her visits, that there was on-going parentifying of the children when they are with her, and that there was a very recent occurrence of lack of supervision. The mother provided very little evidence about her access to the children.

The Children

[37] The children were described as well-adjusted, despite the on-going litigation and the transitions they have experienced over the recent two years. They were described as open with their thoughts and feelings, friendly, compassionate, funny and kind. They smiled easily and expressed enthusiasm about people, events and various things in their lives.

[38] De. (12) is a very social, happy child who loves art, gymnastics and dance. She is aware of her parent’s respective wishes. She has a tremendous love for both parents, and it is very important to her that both parents know how much she loves them. She worries about the possibility of offending or hurting their feelings.

[39] Da. (11) is an intelligent, articulate, happy child, who likes basketball and video games. He is more sensitive than De. He, too, is aware of his parent’s respective wishes. He, too, has a tremendous love for both parents. Although he expressed some concern over the possibility of hurting his mother’s feelings, he was frank when expressing his views and preferences and feelings.

The Children’s Views and Preferences

[40] These children (12 and 11 years old) have had their views and preferences canvassed repeatedly and by several different professionals. The court is very concerned about how often these issues have been canvassed with the children. They have been asked these questions far too often, and by far too many different people.

[41] The parties appear to have wanted to get consistent views and preferences from the children, and when they did not get that, they pursued this issue even more, by asking the children again and again for their views and preferences. That was not appropriate. These children should not be put in that position, merely because their parents and the agency are in a dispute about where they should live and how much they should see the other parent.

[42] While children’s view and preferences are relevant and even important, particularly regarding contact with their parents, it is also important not to put the children in the middle of the conflict, and it is important for them not to feel like they must be the decision-makers. It is disturbing that the many professionals involved with this family did not see the risk of this earlier, and stop these conversations. [10]

[43] While the children’s views and preferences have changed, and could not be described as clear and consistent, and while those views are important and should be considered by the court, their views and preferences are only one piece of evidence for the court to consider in determining what access they should have to their mother. The children (12 and 11 years old) have been interviewed about their views and preferences far too frequently and by too many people. This is harmful to the children, and puts them in the position of believing that such a decision is their decision to make. It is not their decision.

[44] The children have lived in Pickering with the father and his wife since February 2019, and have remained in the same school since then. Both children have adjusted to their day-to-day life and routine in Pickering. Both love the school they attend, and both have made friends there. [11] Both were involved in extra-curricular activities before the health emergency was declared. Both children expressed a preference to remain living with their father.

[45] De. expressed repeatedly that it was important to her to spend time with her baby sister B. The children expressed anxiety about the risks of the health emergency and the risk of transmission, particularly concern that they not pass the virus onto their baby sister B. Da. said that it was important that he not change his routine again, and that another transition (change in residence, change in city, change in school) would be very difficult for him.

[46] The children are clear and consistent in their love for their mother and their desire to have on-going contact with her. Both children expressed a preference to spend more time with their mother, including week-end, overnight visits and summer visits. [12]

Summary Judgment

[47] The agency has brought a motion pursuant to Rule 16 of the Family Law Rules seeking a disposition of a custody order to the father under s. 102 C.Y.F.S.A. .

[48] The father agrees that the case should procced as a motion for summary judgment, that there is no genuine issue requiring a trial, and consents to the claims made by the agency, that is, a custody order to the father under s. 102 C.Y.F.S.A., and to the access sought.

[49] Child’s counsel agrees that the issue of custody should proceed as a motion for summary judgment, that there is no genuine issue requiring a trial regarding custody, and consents, on the children’s behalf, to a custody order to the father under s. 102 C.Y.F.S.A. . Child’s counsel claims that that access presents a triable issue. Even while taking the position that there is a triable issue regarding access in this matter, the children’s lawyer has made a detailed access proposal in the factum filed that differs from the proposal made by the agency. No motion was brought asking for this order. As well, the position of children’s counsel regarding the access proposal, as set out in the factum, is unclear. It appears to be this:

“We agree that the test for a motion for summary judgment is met for both custody and access, but only if you make the access order we request. If you do not, the test regarding access is not met and access is a triable issue”.

If that is, indeed, the children’s position, it is not supportable in law. Either the test for summary judgment regarding access is met or it is not.

[50] The mother disputes all aspects of the agency’s claims. She claims that there are genuine issues requiring a trial on all claims. If the case proceeds as a motion for summary judgment, she opposes the claim for a custody order to the father, and asks that the children be returned to her care. If a custody order to the father is made, she claims liberal and generous access to the children.

The Law on Summary Judgment

[51] The society brings this motion pursuant to rule 16 of the Family Law Rules, the summary judgment rule. The relevant provisions of rule 16 read as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1) .

AVAILABLE IN ANY CASE EXCEPT DIVORCE (2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2) .

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

EVIDENCE OF RESPONDING PARTY (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE (5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

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

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

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

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 (emphasis added).

[52] Rule 16 must be applied cautiously. The adjudication process must be fair and just. These are values that cannot be compromised. [13]

[53] The highly cautious approach to summary judgment in child protection cases is warranted because of the serious interests at stake. This does not mean that the cautious approach precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context, which is “there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits”. But the test must still be applied in context and sensitive to the particularly high stakes and Charter rights of parents and children implicated in child protection cases. [14]

[54] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. [15]

[55] 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:

(a) allows the judge to make the necessary findings of fact;

(b) allows the judge to apply the law to the facts; and,

(c) is a proportionate, more expeditious and less expensive means to achieve a just result. [16]

[56] On a status review application in the context of a summary judgment motion, where little has changed since the previous order, and where the conditions of likelihood of harm to the children were present, there is no genuine issue for trial. [17]

[57] Additional considerations include the nature of the evidence on the motion, the mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, and how material are the facts in issue to the case. The analysis must be undertaken within the framework of the paramount purposes of the Act, namely, to promote the best interests, protection, and well-being of children. [18]

[58] In the Kawartha-Haliburton Children’s Aid Society v. M.W. decision, the proper approach to summary judgment in child protection proceedings is summarized as follows: [19]

1. Hryniak v. Mauldin'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 C.Y.F.S.A. 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; and,

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

[59] In Hryniak v. Mauldin, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. Hyrniak v Mauldin 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 Rule 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.

[60] It is not an answer to a motion for summary judgment to say that further evidence may be available at trial. [20] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion. [21]

[61] Pursuant to Rule 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 all of the evidence that they would be able to adduce at trial. [22]

[62] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the powers set out in Rule 16 (6.1). These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [23]

[63] As the Supreme Court stated “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.” [24]

[64] 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 C.Y.F.S.A. including the best interests of the child. [25]

[65] 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. [26]

[66] 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”. [27]

[67] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent. [28]

[68] Good intentions are not enough. The test is not "whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that, in giving the parents another chance, the child would have one less chance." [29]

[69] The court in Hryniak also set out the following: [30]

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

(b) The Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a “genuine issue for trial” to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure; and,

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

Analysis regarding Summary Judgment

[70] The court 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 Rule 16 (6.1). The material facts regarding custody in this case are not in dispute. The children have been living with the father since February 2019. They have settled well into this arrangement. They are doing well in school.

[71] The court makes these findings on the evidence presented:

(a) It is in the interest of justice for the court to determine this case (and all the issues in this case) summarily. The summary judgment process allows the court to fairly and justly adjudicate the dispute;

(b) Within the framework of this summary judgment motion, the court is able to make the necessary findings of fact and to apply the law to the facts;

(c) The material facts of this case regarding custody and access are not really in dispute;

(d) The summary judgment process is proportionate to the legal issues of custody and access that the court has to decide. The court is not being asked to terminate the parental rights of either of the parents in this matter;

(e) The court is able to do so based on the evidence presented, and without the need to use any expanded powers to weigh evidence or assess credibility;

(f) the evidentiary record is sufficiently comprehensive on all aspects of this case to allow the court to make a fair and just determination of the issues on the merits, without the need for a trial. Cross-examination of witnesses would add little, if any value to the court’s analysis; [31] and,

(g) this approach (a motion for summary judgment) is a proportionate, more expeditious and less expensive means to achieve a just result.

[72] The court finds that the material facts in this case are not in dispute. These are the facts that are either not in dispute, or where only bald denials were made:

(a) The children have been in the father’s care for a considerable period of time;

(b) The children are functioning well with the father and doing well in school;

(c) There is no objective evidence that the children are not doing well in the father’s care;

(d) The father is meeting all their physical and emotional needs;

(e) The father is co-operating with the agency and complying with court orders;

(f) The father is facilitating the mother’s relationship with the children;

(g) Continuity and stability are important for the children;

(h) The mother lacks insight regarding the protection concerns that led to the children’s removal from her care, and the importance of this, as it increases the risk of repeating this conduct;

(i) The mother focuses on the past regarding the father;

(j) There is risk to the children of the mother putting them in the middle of the conflict;

(k) There is risk to the children of the mother putting her own needs ahead of the children’s;

(l) There is risk to the children of being exposed to the mother’s repeated criticism of the father;

(m) There is risk to the children of the mother not facilitating their relationship with the father;

(n) There is risk to the children of the mother not working well with the agency and other service providers;

(o) If returned to the mother, there would need to be a supervision order. Would the mother comply with the court order?;

(p) There is evidence of the mother’s poor judgment;

(q) There is evidence regarding the access the mother has exercised;

(r) The mother has not brought a motion to increase the access;

(s) The children enjoy their time with the mother;

(t) The children’s relationship with the mother is an important one; and,

(u) The children wish to stay living with the father and not to be moved again.

[73] Although the children’s views and preferences have changed from time to time, they have recently been clear that they want to remain in their father’s care. They are happy with their school and with their lives with their father. At 12 and 11, their views and preferences are relevant and should be taken into account in this decision.

[74] Little has changed since the previous order, and the conditions of likelihood of harm to the children are still present. The mother’s lack of insight regarding the events that led to the children coming into care, and her lack of insight regarding the protection concerns presents a continued risk to the children about her inability to recognize the reasons that led to the protection finding. There is no genuine issue requiring a trial. The mother has not produced any credible or compelling evidence that raises a genuine issue requiring a trial regarding custody.

[75] Intervention through a court order is necessary to protect the children in the future. An order for custody to the father will ensure continuity of care for the children and provide them with the security of an ongoing placement in the care of their father. The father and his wife have been meeting the children’s needs. The mother presented no credible evidence that the children’s needs are not being met with the father.

[76] The concerns of the mother regarding her relationship with the children are concerns that can be addressed through an access order.

[77] There are no genuine issues requiring a trial regarding the children’s access to the mother. An order for access can be made on the record before the court without the need for oral testimony and cross-examinations. The material facts to make this determination are not seriously in dispute.

[78] While the children’s views and preferences regarding access to the mother have changed, and could not be described as clear and consistent, and while those views are important and should be considered by the court, their views and preferences are only one piece of evidence for the court to consider in determining what access they should have to their mother. The repeated interviewing of the children is harmful to them, and puts them in the position of believing that such a decision is their decision to make. It is not their decision.

[79] Within the context of a child protection application in which the children’s future has been undetermined for a significant period of time, and given the length of time the children have been in the father’s care, the resolution of these children's lives by way of a summary judgment motion is not merely efficient and expeditious, but it is a fundamentally desirable and necessary mechanism to respect and achieve objectives of the legislation, based on the clarity of the evidence presented.

[80] The court finds that the society has established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought, and that the responding parties have not met their onus of establishing that there is a genuine issue requiring a trial on any issue.

[81] There are no genuine issues requiring a trial in this matter. The only viable permanent placement for the children is with the father. He has been the consistent and stable caregiver for them since February 2019. The available evidence does not raise a genuine issue for trial as to where the children’s best interests lie.

[82] The court finds that if this matter proceeded to trial there is no realistic possibility of an outcome other than that sought by the agency, that is, custody to the father.

[83] The court when making a custody order may order any of the incidents of custody and access set out in section 28 and 34 of the Children’s Law Reform Act. [32] Orders dispensing with a parent’s consent to travel with children outside of Canada and to obtain government documentation can be found to be in the children’s best interests. [33]

[84] There is no history of co-operation between the parents. The mother has criticized the father in her material on the summary judgment motion. It is not realistic to think that these parents can work out travel and the securing of government documents together. They cannot. It is in the children’s best interests to make an order that will minimize the possibility for conflict regarding these issues in the future.

Access

[85] There was no dispute regarding the strength and importance of the children’s relationship with the mother. There was no dispute that the children want to see the mother and want to see her more than they are currently seeing her.

[86] It is in the best interests of the children for there to be a clear, detailed schedule for their access to the mother. It is not appropriate to add pressure to the children regarding access to their mother by allowing them to make the schedule. The schedule should be clear and not subject to the wishes of the children, or they will be put in the middle. But, it is important that the parents be able to work out some of the details regarding access on their own.

[87] Any access order made must reflect the importance of the relationship and yet not place the children in the midst of the adult conflict, nor require the children to be decision-makers.

[88] Neither of the schedules proposed by the agency or the children’s lawyer met these requirements. [34]

Orders

[89] There will be orders for summary judgment as set out below.

[90] The father shall have custody of the children under s. 102 C.Y.F.S.A.

[91] The father may apply for the children’s passports and other government documents without the mother’s consent.

[92] The father may travel with the children outside Canada without the mother’s consent.

[93] Any request to change the terms of this order shall be served on the C.A.S.T..

[94] The mother shall have access as follows:

(a) every other week-end from 10 a.m. Saturday to 5 p.m. Sunday;

(b) exchanges shall be at a fast-food restaurant, to be reasonably agreed upon by the parents;

(c) regular telephone and electronic access;

(d) alternating March breaks, starting in 2022;

(e) one week in the summer break starting in 2021, to increase to two weeks starting in 2024, with the weeks to be agreed by the parents before 1 May each year;

(f) Christmas Day from 6 p.m. to Boxing Day at 7 p.m. each year, and one full week of the Christmas break from school;

(g) the parents shall share the statutory holiday week-ends;

(h) the children shall spend the Mother’s Day week-end with the mother and the Father’s Day week-end with the father, no matter what the schedule provided; and,

(i) if in-person access is not advisable during the health emergency, video access at least two times per week for one-half hour each time.

[95] The mother is entitled to information about the children’s health, education and welfare from the service providers under s. 20(5) C.L.R.A. The father shall provide the necessary contact information to the mother.

[96] Both parents shall refrain from involving the children in or exposing the children to adult conflict.

[97] Neither parent shall criticize the other parent to the children.

[98] Both parents shall support the children’s relationships with the other parent and their families.

Released: 2021 04 19

Justice Carole Curtis

Footnotes

[1] Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, as amended (“the C.Y.F.S.A.”).

[2] It sought (among other things) access every other week-end Saturday to Sunday, telephone and video access, and specific holiday access.

[3] Under ss. 74(2)(b)(i) and (ii), and 74(2)(h) of the C.Y.F.S.A. These sections address the failure to care for children, a pattern of neglect in caring for children and a risk of emotional harm resulting.

[4] A temporary supervision order with the father.

[5] Children's Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371, para. 48. Children's Aid Society of the Regional Municipality of Waterloo v. M.W., [2020] O.J. No. 1315, para. 72.

[6] Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165. Catholic Children's Aid Society of Hamilton v. S. (B.L.), 2014 ONSC 5513, para. 83. Children's Aid Society of Niagara Region v. B.P. and B.W., supra, 2018 (Ont. Sup. Ct.), para. 43. Children's Aid Society of the Regional Municipality of Waterloo v. M.W., supra, (2020), (Ont. Sup. Ct.), para. 74.

[7] Attorney General of B.C. v. Malik, [2011] 1 S.C.R. 657, para. 38. Children's Aid Society of Toronto v. I.H., 2017 ONCJ 760, para. 35 - 58. Children's Aid Society of the Regional Municipality of Waterloo v. M.W., supra, (2020), (Ont. Sup. Ct.), para 53.

[8] At the motion for summary judgment.

[9] A lengthy affidavit, of 29 pages and 150 paragraphs.

[10] The lawyer for the children, in particular, saw the children far too often in the lead-up to the trial, and discussed these matters too much with the children. The details of this contact was set out in the factum and the affidavit filed by child’s counsel, and in the factum of the C.A.S.T..

[11] Both children were described in very positive terms by their teachers in their report cards.

[12] This was not in dispute.

[13] Hryniak v. Mauldin, [2014] 1 S.C.R. 87, para. 23. Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316. Children’s Aid Society of the Region of Peel v. L.M., 2018 ONSC 3633, paras. 74, 75. Children's Aid Society of the Regional Municipality of Waterloo v. M.W., supra, 2020, (Ont. Sup. Ct.), para. 79. In the Kawartha-Haliburton decision, the Court of Appeal undertook an expansive and full review of motion for summary judgment in child protection cases, and outlined in detail the proper procedure and approach for such motions, and the principles to be followed.

[14] L.M. v. Peel Children’s Aid Society, 2019 ONCA 841.

[15] C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357. Children's Aid Society of Nipissing and Parry Sound v. S.B., 2019 ONSC 1352.

[16] Hryniak v. Mauldin, supra, 2014, (S.C.C.), para. 49. Trotter v. Trotter, 2014 ONCA 841, para. 72. Windsor-Essex Children's Aid Society v. K.M., 2015 ONCJ 553, para. 35.

[17] Children's Aid Society of Toronto v. A.(P.), 2003 ONCJ 68555, 2003 O.J. No. 1432, 2003 CarswellOnt 1249 (Ont. Ct.). Children's Aid Society of the Regional Municipality of Waterloo v. M.W., supra, 2020, (Ont. Sup. Ct.), para. 84.

[18] Children's Aid Society of Algoma v. K.(A.), 2015 ONSC 6166, para. 35. Children's Aid Society of the Regional Municipality of Waterloo v. M.W., supra, 2020, (Ont. Sup. Ct.), para. 87.

[19] Kawartha-Haliburton Children’s Aid Society v. M.W., supra, 2019, (Ont. C.A.), para. 80. Children's Aid Society of the Regional Municipality of Waterloo v. M.W., supra, 2020, (Ont. Sup. Ct.), para. 88, 91.

[20] L.M. v. The Children's Aid Society of the Region of Peel, supra, 2019, (Ont. Sup. Ct.).

[21] R.A. v. Jewish Family & Child Services, 2001 O.J. No. 47 (Ont. Ct.). Children’s Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842.

[22] Pizza v. Gillespie. Combined Air Mechanical Services v. Flesch, 2011 ONCA 764, para 56. Bhakhri, v. Valentin, 2012 CarswellOnt 6667 (Ont. Sup. Ct.), para. 7. Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200. T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665, para. 30. Children’s Aid Society of Toronto v. K.T., 2000 ONCJ 20578, 2000 O.J. No. 4736 (Ont. Ct.).

[23] Hyrniak v Mauldin, supra, 2014, (S.C.C.), para. 66.

[24] Hyrniak v Mauldin, supra, 2014, (S.C.C.), para. 50. Kawartha-Haliburton Children’s Aid Society v. M.W., supra, 2019, (Ont. C.A.), para. 63.

[25] Kawartha-Haliburton Children’s Aid Society v. M.W., supra, 2019, (Ont. C.A.), para. 64, 80.

[26] Kawartha-Haliburton Children’s Aid Society v. M.W., supra, 2019, (Ont. C.A.), para. 76.

[27] Kawartha-Haliburton Children’s Aid Society v. M.W., supra, 2019, (Ont. C.A.), para. 72. Children's Aid Society of the Regional Municipality of Waterloo v. M.W., supra, 2020, (Ont. Sup. Ct.), para. 82.

[28] Children’s Aid Society of Toronto v. R.H., 2000 ONCJ 3158, [2000] O.J. No. 5853 (Ont. Ct.). Children's Aid Society of Peel v. R.(A.), [2013] O.J. No. 2969, 2013 CarswellOnt 8677, (Ont. Ct.), para. 72. Children's Aid Society of the Regional Municipality of Waterloo v. A.M., 2015 ONSC 2496, para. 36. Children's Aid Society of the Regional Municipality of Waterloo v. M.W., supra, 2020, (Ont. Sup. Ct.), para. 85.

[29] C.A.S. of Toronto v. C.G., 2012 ONCJ 423, para. 103. Children's Aid Society of the Regional Municipality of Waterloo v. M.W., supra, 2020, (Ont. Sup. Ct.), para. 86.

[30] Hyrniak v Mauldin, supra, 2014, (S.C.C.), para. 24, 43, 50.

[31] Cross-examination is available on a motion for summary judgment, but was not requested by any party.

[32] Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as amended (“C.L.R.A.”). Windsor-Essex Children’s Aid Society v. E.W., 2014 ONCJ 562.

[33] Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 145.

[34] Only the agency and the children’s lawyer proposed access schedules. The mother sought liberal and generous access, but proposed no schedule.