Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: May 5, 2021 COURT FILE No.: C146/19

BETWEEN:

Family & Children’s Services of Guelph and Wellington County Applicant,

— AND —

C.R. Respondent,

J.C.H. Respondent.

Before: Justice S. Bondy

Heard on: April 6, 2021 Released on: May 5, 2021

Counsel: O. Rebeiro ………………. Counsel for the applicant, Family & Children’s Services of Guelph and Wellington County J. Krashinsky ………………………………………… counsel for the respondent, C.R. M. Poole ………………………………………………counsel for the respondent, J.C.H.

BONDY, J.:

WARNING

The court hearing this matter directs that the following notice should 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.

RULING ON MOTION

The Issue:

[1] This is a Status Review application brought by Family & Children’s Services of Guelph and Wellington County (hereinafter described as “the Society”) concerning G.D.H. (hereinafter described as “the child”) D.O.B. […], 2016. The review relates to an Order of Caspers J., dated June 23, 2020, where the child was placed in the care and custody of his Mother, the Respondent, C.H. (hereinafter described as “the Mother”) subject to Society supervision on terms and conditions. The Order also provided that there be no access between the child and the Respondent, J.C.H., (hereinafter described as “the Father” ) while he remains incarcerated, but otherwise his access would be at the discretion of the Applicant Society and subject to any criminal court order. The Society has brought a Summary Judgment Motion for the relief sought pursuant to Rule 16. According to the Society, the child is still in need of protection and seeks an order of custody to the Mother with a no access order to the Father.

[2] The issue before me is whether I should grant an order terminating the Society’s Supervision Order and impose a deemed custody and no access order under the Children’s Law Reform Act.

[3] For reasons that follow, I have declined the Society’s request on the record before me, but I will direct a mini-trial pursuant to rule 16 (6.2) and make procedural orders pursuant to rule 1 (7.2) to address the factual findings, inferences and conclusions that I cannot draw from the record alone or my expanded powers under rule 16 (6.1). I find a full trial on the merits is not necessary and that it is not contrary to the interests of justice to proceed in the manner I propose.

The Background:

[4] The Order of June 23, 2020 found the child in need of protection pursuant to an Agreed Statement of Facts under Sections 74 (2) (b) (i), (ii) and (h) of the Act signed by the Father and confirmed by the Mother’s counsel and Applicant Society. The Statement was signed by the Father December 20, 2019. The Protection Worker signed it June 5, 2020. The Mother through counsel confirmed she was in agreement but due to the pandemic could not sign it when the Order was issued.

[5] The terms of supervision include that the Mother meet regularly both announced and unannounced with a Society Worker, that she sign consents to release of information regarding the child and her own counselling including counselling regarding family violence and its impact on herself and the child. She was also to keep the Society aware of her address at all times. In addition, she was not to disclose her address to the child’s Father, make sure they have no contact in any form and if such contact took place, the Mother and Father were required to self-report such contact. The Mother at all times was to ensure that the child not be exposed to adult conflict.

[6] For the Father, he was granted no access during his incarceration but on his release his access was at the discretion of the Society and consistent with any criminal court order. He was allowed to receive notification of all major decisions made for his child and communicated by the Society.

[7] The Statement of Agreed Facts was signed using the usual statutory form. Justice Caspers’ Order refers to the Statement filed but she does not provide additional detailed reasons. She does provide for an Order to go in accordance with the parties’ consent. She made the statutory findings named above.

[8] The Statement itself reveals that the Mother and Father had a longstanding relationship of many years marked with so much violence that the Mother was moved into subsidized housing in Guelph, only to later allow the Father to move in with her and the child and have him sign the lease with her. The Statement details many incidents of discord and violence between the years 2016 and 2019. The Mother suffered an injured thumb and black eye in 2016; in 2017 the Father broke her elbow. In April of 2018, the Father was convicted of assault, aggravated assault and assault causing bodily harm against the Mother. Further incidents of conflict and alleged assaults on the Mother are reported for May 8th, May 21st, July 5th and July 19th, 2019. The Statement reports that throughout the period 2018 and 2019, the Mother often blamed herself for the violence and denied the basis of the Society’s concerns. The Society brought a protection application. In September 2019, the child came into Society care when the Mother and Father had unauthorized contact with each other contrary to the terms of a temporary Court Order prohibiting such contact. In October 2019, the Father was charged with further counts of assault with a weapon, assault causing bodily harm, assault, strangulation, uttering threats, mischief and multiple breaches relating to the Mother while the child was residing with them.

[9] Eventually the child and the Mother were re-united and he was returned to her care pursuant to a temporary supervision order in the later part of 2019.

[10] This Status Review proceeding was commenced October 19, 2020 which is about four months after the June 23, 2020 Order but I note thirteen (13) months following the last temporary order issued returning the child to the Mother’s care on November 19, 2019.

[11] The Mother agrees with the Society’s Motion and what the Society seeks. The Father opposes the Motion and wants the Status Review proceeding dismissed as it has been brought “early” (i.e. prior to its expiration date) and he argues that a procedural threshold must be met; he also argues that the matter should not proceed by way of summary judgment. In his pleadings he seeks an order of joint custody with an alternative of visitation to the child but his Motion materials say that he is not seeking custody but rather visitation to his son.

[12] I would note that the Status Review proceedings in this matter were commenced prior to the changes in custody and access terminology now utilized under the Children’s Law Reform Act amendments effective March 1, 2021. For the purposes of this Ruling, I will use the terminology used by the Mother and Father and referred to in their pleadings.

Evidence on the Motion:

[13] The evidence produced on this Motion consists of the Affidavits filed and the previous Statement of Facts. The parties also referred to the pleadings filed (i.e. Application, Plans of Care and Answer), a Notice of Intention to Tender Business Records and the Factums and Authorities Briefs filed by the parties.

[14] The Society’s Affidavit by the current Society Worker, W.S., details that she makes monthly visits with the Mother and child, the Mother’s housing is observed as stable and appropriate and that she recently moved. She reports she has no concerns about the Mother’s household conditions or cleanliness and the child is well cared for, healthy and meeting development milestones. She notes that the child is attending school but does at times struggle with listening or following directions and experiences some instances of being “hands on” with other children. His own trauma counselling was interrupted by the COVID pandemic and the Affidavit reveals he has two sessions yet to complete. No report was filed relating to the child’s trauma counselling.

[15] As for the Mother’s participation in ongoing counselling regarding family violence and its impact on herself and the child, the Affidavit states that the Mother told the Worker that she has completed that counselling and, according to the Mother, she has a deeper understanding of her own childhood experiences of trauma and how that impacted her ability to react and deal with the Father. There is no independent report about the Mother’s progress by her trauma counsellor. According to Ms. S., the Mother told her that she couldn’t stay away from the Father due to the level of control he had over her and the lack of community supports. According to Ms. S., the Mother is fearful of the child’s access with his Father, she is afraid the Father will “take off” with the child and she is fearful for her own safety and the child’s. According to the Worker even though the Father was taking counselling in 2017, she did not see changes in his behaviour. She told Ms. S. that his behaviour escalated after 2017.

[16] Ms. S. deposes that she has not spoken directly with the Father since his incarceration in October of 2019 and she is satisfied he has not been visiting the child. She has no information about his progress while in custody. Again, there is no report filed related to the Father’s in-custody counselling. As for the child, Ms. S. states that the child has expressed no wishes to visit his Father, that he doesn’t know where his Father lives, that he told her there was lots of fighting when his Father was around and it was scary. Ms. S. has observed that the child’s behaviour changes when he speaks about his father. At paragraph 23 of Ms. S.’s Affidavit, she details that the Mother told her that the Father was never violent towards the child, but he has yelled at him and that she is aware he observed the violence between his Mother and Father, that he can startle easily and that he struggles with hands-on behaviour with peers and periodically discusses the violence he saw.

[17] Ms. S. notes that the Mother has attempted to maintain a relationship between the child and his paternal grandmother but there have been some ongoing problems as according to the Mother there may have been an attempt to indirectly communicate by the Father through the grandmother’s access. The Mother has had to put limits in place so that the grandmother won’t discuss the Father with her grandson or directly or indirectly allow for any contact or communication. The Mother maintains a relationship with the Father’s brother and his wife and this seems to be without problem.

[18] There were two Probation Orders filed on the Motion for the Father. The first is a Probation Order issued by Justice R. Schwarzl, dated April 11, 2018, for a December 22, 2016 count of assault. It has a term of 24 months and its conditions include that the Father abstain from communication or association with the Mother or being within 100 metres of her residence, school, business or where he knows her to be, except that term can be vacated by the Mother on consent. Other exceptions apply. There is no indication of whether this Order is still in effect. The second Probation Order for the Father was issued by Justice M. Wendl of June 5, 2020 and refers to offences committed between the dates of May 1, 2019 and July 19, 2019 and a breach of probation on October 8, 2019. This includes assault with a weapon, assault causing bodily harm, assault, choking, uttering threats and mischief. This Probation Order includes the condition that the Father not communicate or associate directly or indirectly with the Mother except as incidental to court proceedings absolutely. It restricts the Father’s proximity to the Mother (i.e. not be within 100 metres etc., except for court attendances) and restricts his contact with the child except pursuant to a Family Court Order made after the date of the Probation Order. He is also to attend and actively participate in all assessment, counselling or rehabilitative programming including the PARS program upon his release from custody. The Order takes effect upon the Father’s release from custody and runs a term of 3 years.

[19] I have also examined the Statutory Plan of Care filed by the Society which details that the Mother will access community violence supports and Victim Services should the Custody Order issue. There is reference to working with VAW (I assume this means Violence Against Women) and working with the police to develop a safety plan on the Father’s release. There is no actual safety plan detailed in the Plan of Care.

[20] The Mother’s Affidavit indicates that she agrees with the Society’s evidence. She reports that her child is thriving in her care. She makes a point of indicating that she is not disclosing her present address or location due to the Father’s history of violence. The Mother details that the Father has been incarcerated continuously since October 2019, that he sought early release which was denied and that she expects him to remain in custody until October 2021. The Mother knows this information from the Father’s probation officer. She agrees with the Society’s request for a no access order. She reports that she is supervising visitation between the child and his paternal grandmother which she describes herself as managing carefully. She is concerned that when the Father is released, she needs a safety plan in place. According to the Mother, she is “well‑connected” with services but she does not describe what those services are. Her Answer names the Family Transition Place but this is not described in her Affidavit. She describes herself as cooperative with the Society, that she avoids all contact with the Father and opines that it was “this abusive relationship, and the child’s exposure to the abusive relationship that was the Society’s primary concern”. She repeats that she seeks no contact with the Father, has had no contact since September 2019 and has had no contact since June 23, 2020. The child’s art therapy is incomplete due to the pandemic.

[21] The Father’s evidence consists of an Affidavit filed by his mother. The paternal grandmother is not a party to these proceedings. She is concerned about her visitation to her grandchild which she considers sporadic and infrequent. According to the grandmother, the Mother delivers the child to her and lately this has been at the grandmother’s home. They had a recent dinner together at the grandmother’s home on March 22, 2021. The grandmother reports that the Mother lies and has acknowledged this to her and the Mother told her she doesn’t know why she does this. She reports that the Mother has a new partner. According to the grandmother, her son does not intend on reconciling with the Mother. The grandmother is in regular weekly phone contact with her son and she opines that he is taking every step available to earn the right to have a relationship with his child. According to the grandmother, the Father has completed his Grade 12, attended counselling and a PARS program all while in custody and plans on attending counselling and anger management upon release. He expects to be moved to a treatment centre for specialized programming in parenting and partner assault programming prior to his release. He expects to be employed after his release and she thinks he had a “valuable and meaningful” relationship with his son prior to his incarceration. According to the grandmother, the Father has never “hurt” his son. All of the grandmother’s detail relating to the Father’s progress in custody is hearsay. There is no independent report filed to support any of what the grandmother or Father say about his present counselling.

[22] Attached to the grandmother’s Affidavit are letters from the Father’s proposed counsellor, an offer of employment letter and a letter from the Father to the Court. According to the Father, he has admitted his crimes and takes responsibility for them. He knows that he may never be forgiven for his crimes; but he says that he is paying his debt to society. He seeks visitation to his son upon his release and wants to be an active part of his life. As for the Mother’s new relationship, he writes that he was upset on learning about it as it was very early after their 12 years together and he is worried that someone else will take his place with his son. According to the Father, he did not breach any court order in attempting to see his son and sending him cards for his birthday and Christmas as he states there was no order in effect. He considers himself a changed man. The Father believes the Society is showing bad faith by bringing an early Status Review proceeding while he remains in custody making it all that more difficult for him to prove his case for access. His Answer claims joint custody, but his letter indicates that he does not seek this at this time, but wants supervised visitation. He wants more time with his son. He reports that he will do whatever is asked of him to better himself for the sake of his son.

The Position of the Parties:

[23] In addition to the Factums filed I also received oral argument on this Motion.

[24] The thrust of the Society’s argument is that this is a proper case for the application of a Rule 16 Summary Judgment Motion and that delaying a decision after a full trial on the merits is not consistent with the Family Law Rules and its Rule 33 timelines and the summary judgment direction from case authorities. The Society wants to save the time, expense and necessity of a trial. The Society asserts that it is the Father’s conduct that supports a continued finding of protection as his letter to the Court does not even acknowledge his impact on his child and he has not yet started the therapeutic work he needs. Put succinctly, the Society submits that the Father needs to demonstrate his treatment gains which are yet unfulfilled and reflect the confidence that there won’t be a repeat of his negative comments and violent behaviour towards the Mother or the child.

[25] The Society believes that further scrutiny of the Mother and child are not required through a Supervision Order. As for the Father’s access, the Society feels this can be addressed through access proceedings under the Children’s Law Reform Act. The Society acknowledges that the record contains no direct evidence from the Mother’s counsellor and they agree that she acquiesced or consented to a relationship with the Father after the Protection Application was commenced. Their argument is that the evidence demonstrates that the Mother has shown that she was eventually able to separate from the Father and her pledge to stay away from him is reliable. They also rely on what the Worker has observed about her home and her care of the child and her efforts to keep separate and apart from the Father.

[26] As for the grandmother’s request for more visitation, the Society argues that she is not a party and has no status in these proceedings but it appears the Mother and grandmother can sort out their visitation arrangements between themselves. As for the early Status Review proceeding and its timing, the Society argues that by the Order’s one year anniversary date of June 23, 2021, it will expire pursuant to the Act and the Father will still be incarcerated. As such, the Society thinks his claim is without merit at this time.

[27] The Mother’s position is that the Society is well within their rights to bring an early Status Review proceeding under s. 113 of the Child, Youth and Family Services Act. The Mother’s lawyer submits that no leave or exception is required to bring the early status review. The Mother’s argument is that her home is stable, her housing is appropriate, the Worker’s visits are satisfactory and her child is meeting his milestones. In essence then, her argument is that this matter does not require a trial with full cross‑examination to address the termination request. The Mother believes that the concerns that gave rise to the original Supervision Order have been addressed and there is no further risk of harm to her child. The Mother thinks that the Father’s request for access can be dealt with at a later time. In responding to the Father’s argument that his access to the child may require ongoing Society support, the Mother’s argument is that the Father should address that “on his own” and not insist on a Society Supervision Order to ensure those arrangements are made.

[28] The Father’s argument is largely as set out above in paragraphs 21 and 22. He thinks the early Status Review proceeding requires an explanation before it can be brought. Even if formal leave is not required, he asks the question “leave may not be required, but is an early Status Review appropriate” while he remains in custody. The Father is concerned that a Summary Judgment Motion directly impacts his ability to deal with his access claim. His theory is that if the Motion is dismissed by the time the matter proceeds to trial, he would have had the time to show his progress and treatment gains for access to his son. The Father believes that the Society’s request is simply all about removing themselves from a messy situation between the Mother and Father. If a no custody order issues, the Father argues he would have no means to make arrangements to see his son or know how to contact him for court ordered access as he doesn’t know where he lives. According to the Father, there is no evidence before the Court addressing the issue of the risk of emotional harm to the child should he have no access to him.

The Law:

[29] I propose to address four distinct areas of law and procedure that are applicable in these circumstances:

Summary Judgment Principles:

[30] This is a Status Review proceeding authorized by the Child, Youth and Family Services Act (hereinafter described as the “Act” ) pursuant to Family Law Rule 16 summary judgment rules. Such proceedings according to the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W. 2019 ONCA 316 apply to child protection proceedings but as they engage the Charter rights of both parents and children exceptional caution is required. Exceptional caution and fairness principles have equated the phrase under Rule 16 that there is no genuine issue requiring a trial with descriptors like “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed” and “where there is no realistic possibility of an outcome other than that sought by the applicant”. Kawartha summarized the approach in summary judgment proceedings as follows:

1. Hyrniak’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 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 not be admissible 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. [1]

[31] Kawartha repeats what Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87 emphasizes. 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: at para 49. Hryniak found that that would be the case when the process (1) allows the judge to make the necessary findings of facts, (2) allows the judge to apply the law to those facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. Hryniak said that the standard of fairness is not whether the procedure is as exhaustive as a trial or focusing on how much and what kind of evidence could be adduced at 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, the test at all times being whether a trial is required: at para 50 and 56. The court found that the summary judgment motion was transformed from simply weeding out unmeritorious claims to a significant alternative model of adjudication: at para 45. The summary judgment motion is part of the recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system: at para 2.

[32] In Hryniak, the court established a roadmap or framework approach to the conduct of a summary judgment motion. First, the judge must determine if there is a genuine issue requiring a trial based only on the evidence before her without using the new fact‑finding powers. Second, if there appears to be a genuine issue requiring a trial, then she should determine if the interests of justice allow for recourse to the fact-finding powers under the rules. Third, is the power to hear oral evidence which can often be used to address concerns about credibility or clarification of the evidence: at para 51. The use of these powers is not against the interests of justice if they lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole: at para 66.

[33] Family Law Rules 16, 16 (6) 16 (6.1) and 16 (6.2) establish the procedure of what Hyrniak describes as a new regime of adjudication.

The Question of Leave or Procedural Threshold on an Early Status Review Application:

[34] This Application has proceeded under s. 113 and s. 114 of the Act. A Society has both a discretionary and mandatory obligation to review a child’s status. In most circumstances that status is reviewed before the expiry of the order under review: see s. 113(2) (b) or within 5 days of coming into care: see s. 113 (2) (c). Sometimes reviews are discretionary: see s. 113 (2) (a). Others may seek status review: see s. 113 (4) but such rights are subject to the passage of time: see s. 113 (6). Section 114 provides that the court may vary or terminate the original order, including a term of access: see s. 114 (a); provide an order of termination: see s. 114 (b); make further order or orders: see s. 114 (c) and 101; or a deemed order for custody or access under the Children’s Law Reform Act: see s. 102 and 104.

[35] Some reviews require leave of the court: see s. 115 (5). In C. v. Children’s Aid Society of Ottawa-Carleton, Blishen J. considered the criteria for leave to review a Crown Wardship order (now described as extended care) and proposed a five-point test as follows:

(1) The Judge must be satisfied that the status review application for which leave is being brought is bona fides; (2) Leave ought not to be granted if the relief sought can be obtained otherwise than by reviewing the whole order itself; (3) There must be some unusual circumstances that justify the review, in spite of the child’s permanent status; (4) The judge must be satisfied that the review would likely accomplish the purposes of the Act as set out in section 1; and (5) The Applicant must establish a prima facie case.

[36] In addition, on an early Status Review Application reviewing an order of consecutive interim Society care and supervision before Caspers J. in Family and Children’s Services of Guelph and Wellington County v. Kimberly B., Harold William Ned S., and Gary Lynn Thomas C. 2009 ONCJ 765 (O.C.J.), Her Honour applied that same five-point test noting that her matter could be distinguished factually from C., but opined that the early Status Review could be justified based on unusual circumstances, the Society’s bona fides and the making of a prima facie case. Her Honour was satisfied that the Society had met the procedural test to bring the status review application: paras. 88 and 89.

The Test on a Status Review Application:

[37] In Children’s Aid Society of Algoma v. L.G. 2020 ONCJ 297, [2020] O.J. No. 2868 (O.C.J.), Kukurin J. provides a very useful analysis of the status review provisions under the Act. I will summarize his findings. He describes the status review as a creation of the Act. It is the means by which a court maintains oversight of the state’s intervention in the families of the nation that is justified by the need to protect from neglect or abuse. Only a Society is required to bring one and the Society returns one after the making of a protection order to justify why another protection order is needed or no longer needed to protect the child: see para 37. In Children’s Aid Society of Algoma v. F.M. [2021] O.J. No. 1646 (OCJ), Justice Kukurin noted that the word “review” has no definition in the Act. He found solace in his trusty Fourth edition of Roget’s Thesaurus which provides a number of synonyms: re-examination, re-inquiry, recheck, reappraisal, revaluation, rethinking, revision, re‑beholding, a second or further look. He prefers “a further look”: para 9.

[38] The only guidance in s. 113 or s. 114 to assist the court in deciding what order to make on a status review is found “in the child’s best interests”. It is well settled law that a status review is not a re-hearing, however, into the original protection finding but a review of the circumstances that led a court on a previous occasion to find a child in need of protection. The issues before the court on a status review are two-fold: 1. Whether the child is or is no longer in need of future protection and as a consequence requires a court order for his or her protection; and 2. Which of the available range of orders is in the best interests of the child. In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] S.C.J. 37, this test was enunciated some twenty-seven years ago and remains good law: para 37. This two-step test still applies despite several amendments to Ontario’s Child Protection legislation relating to status review applications and commentary and case law suggesting the amendments may have resulted in a shift from the two-step C.M. test to a pure best interests test. See Children’s Aid Society of Oxford County v. W.T.C. 2013 ONCA 491, [2013] O.J. No. 3438 (OCA) where the court applied the two-step test and found it unnecessary to address the effect, if any, of “best interests” amendments that commenced in 2000: para 37.

[39] In C.M., the court justified that the need for continued protection arises from the existence or absence of circumstances that triggered the first order for protection or from circumstances which have arisen since that time: para 37. Put another way, the court found that children’s needs are continually evolving as they are governed by occurrences in the lives of children and their families which cannot be held still in time. These ever‑changing circumstances the court found must be taken into account as the court requires accurate and up-to-date knowledge of the situation on hand: para 35.

The Issue of Time Sensitivity in Child Protection Proceedings:

[40] Child protection proceedings are time sensitive. Section 74 (3) (ix) mandates the determination of best interests to include the effects of delay in disposition on a child’s wellbeing. Section 94 provides that hearings not be adjourned for more than 30 days. Section 94 provides that a determination under the Act shall be fixed within three months of the commencement of proceedings. The Family Law Rules provide strict timelines for the conduct of child protection proceedings: Rule 33. Courts’ directions remain firm that judges, court administrators, counsel and assessors remain steadfast in ensuring adherence to statutorily required timelines. C.M. v. Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612: para 31.

Analysis:

[41] I do not agree that the Society must advance special circumstances or meet a procedural hurdle before this Application can proceed.

[42] There are circumstances prescribed in the Act where a Status Review can only be commenced with leave. I refer to s. 115 (5) of the Act. Applications under s. 113 (2) (a) do not require leave and there is no such language in the sub-section. The language “may” is followed by “at any time” and denotes this section is discretionary. Surely discretion should not be exercised in a capricious or arbitrary manner, but I find there is no factual basis before me to draw any adverse inference from the steps the Society has taken.

[43] The Father argues that the Application has been brought to frustrate his claim for access. A thorough review of the facts reflects that the child was in the continuous care of his Mother subject to either an interim or final order of Society supervision since November 19, 2019. The Father signed the Statement of Agreed Facts on December 20, 2019. The matter was not finalized until June 23, 2020. Although there is no explanation for the delay in signing the final Order the fact of the matter is that the child has been subject to a temporary and final Order of Supervision in excess of seventeen (17) months. In that respect, this Application is not early; the Act requires a review no later than June 23, 2021. The decision of Blishen J. in Ottawa-Carleton does not apply. Her 5‑point test addresses the question of a statutory requirement for leave when a child has been in the continuous care of a foster parent or under a custody order for at least two years and when someone other than the Society seeks an application for review. These are not the facts or the statutory provision before me.

[44] Moreover, I am not bound by Justice Caspers’ conclusions in Kimberly B., et. al. and, once again, the facts before me are different from those before Justice Caspers. As far as I am concerned, the Society is given special status under the Act to bring a discretionary Status Review Application under s. 113 (a). The entire scheme of the Act supports this approach. It is the Society who is charged with investigating allegations or evidence that children may be in need of protection, to protect them where necessary and to supervise and provide care for children committed to its care and/or under its supervision. See s. 35 of the Act. A discretionary Status Review under s. 113 is consistent with those statutory obligations. The language of s. 113 (a) is clear and unambiguous. I am not satisfied that the Society must first meet a procedural threshold in these circumstances.

[45] If I am wrong in my interpretation, and if I had to rely on a procedural threshold, I am satisfied that the Society is acting with bona fides, I am satisfied that the unusual circumstances in this matter are the combined length of interim and final order of June 23, 2020 and I am satisfied that the Act’s objectives are addressed with the application.

[46] On the Affidavit evidence before me I think it can be fairly stated that there are deficiencies with the Record before me. Suffice it to say that blame can be directed all around. The Society’s Affidavit refers to comments made by the child, without any effort to demonstrate why this hearsay is admissible as either as a state of mind exception or a principled approach to its admission. The Society Worker’s Affidavit relies on admissions made by the Mother; and particularly that she has completed satisfactory trauma counselling without direct evidence from her counsellor. The Mother’s Affidavit is a mere nine (9) paragraphs long where she “agrees” with the Society’s evidence without adopting its actual contents and particularly the comments relating to her new-found progress at managing the Father’s violent behavior and her historical acquiescence. At paragraph 7 of her Affidavit, the Mother deposes that she is “well connected with services” yet she fails to describe what precise services she is referring to. The grandmother’s Affidavit contains multiple instances of hearsay including the Exhibits attached by third parties and the letter from the Father. All in all the quality of this evidence and the weight to be given to it really stretches the bounds of admissibility and the critical findings, evaluations and inferences that I am to expressly find or by utilizing my expanded powers under rule 16 (6.1). Although I am mindful of the direction provided in Kawartha relating to admissible evidence, I am aware that the application before me seeks to terminate a supervision order and impose a deemed custody and no access order pursuant to the Children’s Law Reform Act. Bearing in mind the nature of the relief sought and that all parties are represented by very able counsel, I have allowed considerable leeway relating to the admissibility of evidence on this Motion. I do caution counsel to remember the words of Benotto J. in Kawartha and that future circumstances may not provide the same latitude by the Court. To repeat, summary judgment motions should consist of trial worthy evidence.

[47] The Father’s claim that he should be allowed a full trial on the merits in order to advance a claim for visitation/access to the child upon his release, which is many months away, is unfounded and not supported on the record before me. That is of course, if I can tolerate the bounds of admissibility and place some weight on his letter to the Court. The undeniable facts are that he cannot exercise actual visitation while incarcerated and the June 23, 2020 Order prohibits such access. To be clear, by his “letter” he appears to be seeking an order of access which is reinforced by what his Mother had to say and despite a claim for joint custody in his Answer. He clearly wants to re-build a relationship with his son and is troubled by the Mother’s alleged new relationship and the impact this might have on his role as a Father. However, at this time, I find there is no chance of success on his present claim for visitation and he has not rebutted the prima facie case made by the Society that his “letter” fails to demonstrate that he has made the type of gains in treatment that would justify a change in his access at this time with or without a full trial on the merits. To be sure, he may in the future, but not at this time. He has not rebutted the argument that he remains in custody or that that status would change. To direct a full trial on the merits would run contrary to the very clear direction of the Supreme Court in Hryniak and I conclude on the record before me and my limited weighing of the Father’s evidence, by letter, that there is no genuine issue “requiring” a trial on his access issues at this time.

[48] I agree with the Society’s argument that the grandmother’s concerns relating to access/visitation to her grandson are not properly before the Court. She is not a party to this application and she has advanced no claim. If the grandmother is serious about her issues relating to visitation, then she must take some active steps to address her alleged concerns. I agree that the record reveals that she is seeing the child, they enjoyed a recent dinner in March of 2021; the issue seems to be the frequency of visitation. Directing a trial on the merits relating to her claims is simply not justified nor required at this time.

[49] I am troubled by the absence of direct evidence on the record before me relating to the gains the Mother has made in treatment following a very troubled and long term relationship with the Father. I require a fuller appreciation of those gains over the last seventeen (17) months of Society supervision that her Affidavit does not sufficiently provide. The Mother has also asserted that the reasons she acquiesced or tolerated the Father’s behavior was that he controlled her and she did not have access to community services. It would be imperative that I understand what the Mother means by that statement and what changes have occurred as a result of her counselling to address the problem of control. I am mindful that the uncontradicted record reflects that the Mother is providing good household management and care for the child, she has not contacted the Father and has complied with not associating herself or the child with the Father either directly or indirectly, has not provided the Father or the grandmother with her address or residence.

[50] Another piece of evidence that requires clarification is the child’s therapist’s findings. The record reveals that he is two sessions short of completing therapy due to the pandemic, but it also discloses that the child is showing signs of aggression and upset at school. If I act on the child’s comments and rely on that evidence as a state of mind exception to the hearsay rule, the record also reveals that he is fearful and scared of his Father. A report from his counsellor would be helpful and necessary.

[51] The Mother is fearful and scared of the Father and she speaks about needing a safety plan upon the Father’s release, which again, the record does not clarify or address. It is unclear how the services described in the Society’s Plan of Care will be utilized or if they are sufficient. Again, I cannot draw conclusions about the risk of harm the Father might present to the child without clarification on this issue. An independent report from the Father’s probation officer or his in-custody therapist would be helpful to address how his counselling or therapy might impact any risk of harm to the Mother and/or the child.

[52] To repeat, the totality of evidence that I require to address the test on a Status Review Application must answer the questions: 1. Whether the child is or is no longer in need of future protection and as a consequence requires a court order for his or her protection; and 2. Which of the available range of orders is in the best interests of the child. Put succinctly, I find the question is whether the child remains in need of protection AND whether an order under the Children’s Law Reform Act will protect his interests as opposed to continuation of the Order of Supervision under the Act. To answer these tests the evidence must be clarified so that I understand:

i) Is the child’s ongoing aggression and his fearfulness of his Father resolved or not; ii) What does the Mother’s therapist have to say about her ability to protect her child from the risk of emotional and/or physical harm by the Father; and iii) What type of risk, if any, does the Father present to the child and has his in‑custody counselling or therapy ameliorated that risk.

[53] These narrow and discrete issues require clarification and can be obtained and gathered in a manageable period of time and will have a significant impact on whether the supervision order should be terminated.

[54] Accordingly, I hereby direct pursuant to the principles in Hryniak and Rules 1 (7.2) and 16 (6.2) that a mini trial be ordered on the following basis:

(i) That the Mother provide oral evidence addressing the issues I have identified; (ii) The Mother’s therapist’s report may be presented by Affidavit or another method not requiring the witness to attend in person; (iii) That the child’s therapist’s report may be presented by Affidavit or another method not requiring the witness to attend in person; (iv) That the Father’s counsellor’s report be presented by Affidavit or another method not requiring the witness to attend in person; and (v) That the trial co-ordinator at Guelph fix an expedited date for the mini hearing to be conducted by Zoom technology in light of the circumstances of the pandemic in Ontario.

Dated at Windsor this 5th day of May, 2021.

(Original Signed by Justice S. Bondy)

Justice Sharman S. Bondy

[1] See also Children’s Aid Society of Toronto v. W. (C.J.), 2017 ONCJ 212, at paras. 66 – 67