Court File and Parties
COURT FILE NO.: FS-18-0102 DATE: 2019/02/27 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Children’s Aid Society of the District of Nipissing and Parry Sound Respondent
- and -
S.B. and M.B. Appellants
BEFORE: Ellies J.
COUNSEL: Heather F. Zuck, for the respondent S.B. and M.B., Acting in person
HEARD: December 19, 2018
Reasons for Decision
Overview
[1] S.B. and M.B. are the natural parents of A.S.M.B. (the "child"), who was born on […], 2015. The day after the child was born, the Children’s Aid Society of Nipissing and Parry Sound (the "Society") apprehended her. She has remained in their care ever since.
[2] On May 22, 2018 a judge of the Ontario Court of Justice granted a summary judgment motion brought by the Society and ordered that the child be placed in extended Society care with no access by either parent. The parents appeal that order. They want to have the matter sent back to the Ontario Court of Justice for trial.
[3] For the reasons that follow, I have concluded that the matter must be sent back to the Ontario Court of Justice, although not necessarily for a trial. In my respectful view, the motion judge applied the wrong test in arriving at his conclusion that there was no genuine issue requiring a trial. As a result, he failed to identify the factual issues and to determine whether those issues could be adjudicated fairly and justly under the summary judgment rule.
Facts
[4] In arriving at his decision, the summary judgment motion judge expressly relied only on the evidence filed in connection with the motion. However, in the affidavit he filed in response to the motion, Mr. M.B. specifically sought to rely on affidavits he had filed earlier in the course of the proceedings. As I will explain later in these reasons, fairness required that the motion judge consider those affidavits.
[5] For this reason, I have reviewed the entire court file in order to consider the parents' submissions and to prepare the following summary of the facts.
The Parents
Mr. M.B.
[6] Mr. M.B. is 45 years old. As he readily admits, he is a big man, with a big voice, [^1] who speaks his mind. His presence can be intimidating.
[7] Mr. M.B. has had an unfortunate past, to say the least. He does not know the identity of his biological father. His biological mother, G.P., suffered from alcoholism throughout his youth. Mr. M.B. was her first child. Her second child died of Sudden Infant Death Syndrome. Her third child was born prematurely after Mr. M.B.'s step-father punched her in the stomach during a domestic assault. The baby died shortly afterwards.
[8] Mr. M.B.'s step-father did not limit himself to assaulting only his spouse. The violence included violence directed at Mr. M.B.. At one point, his step-father hung him in a closet. [^2]
[9] When he was nine years old, Mr. M.B. was apprehended by another Society and made a Crown ward because of the violence in the home and his mother's struggles with substance abuse.
[10] According to Mr. M.B.'s affidavit evidence, he was placed in a series of foster and group homes, where he was physically and emotionally abused, until he was permitted to rejoin his mother at the age of 14. By that time, he deposes, he had been harmed by the experience to the point that he was getting into conflict with the criminal law.
[11] As Mr. M.B. also admits, he now has a substantial criminal record. The record includes convictions for offences of violence. In 2013, Mr. M.B. was convicted of assaulting his ex-wife. Mr. M.B.’s record also contains a number of convictions for failing to comply with court orders. The materials filed by the Society in support of the motion included copies of police arrest reports providing details of the allegations.
[12] Like his mother, Mr. M.B. also struggled with substance abuse. However, in an affidavit he filed in January 2016, he deposed that he had not had a drink in five years. [^3]
[13] Mr. M.B. went to work in the trades after completing grade 10 in Sturgeon Falls. The affidavit evidence filed during the course of the proceedings is confusing, if not conflicting, with respect to his employment status and his employability at the time the summary judgment motion was heard. In an affidavit sworn on December 6, 2015 Mr. M.B. deposed that he was injured in a construction accident in 1989 and unable to work full-time as a result. He deposed that he had been in receipt of Ontario Disability Support Benefits since 1997 and there is other affidavit evidence that he receives these benefits as a result of his poor learning abilities and difficulties with his leg and his back, presumably because of the accident. However, affidavit evidence filed on behalf of the Society indicates that Mr. M.B. had to miss access visits or to cut them short due to "work".
[14] Mr. M.B. told Society staff that he fathered a child in 1984 with a woman to whom he never got married. If so, Mr. M.B. would have been only 11 years old at the time. [^4] He has also stated that he fathered a daughter when he was 16 years old, who passed away from leukemia when she was 12. He was married twice prior to meeting Ms. B.. His first wife had three children and his second wife had one child, all of whom he helped to care for without incident, according to his affidavit evidence. [^5]
Ms. B.
[15] Ms. B. is 35 years old. Her family life and childhood were more fortunate than those of Mr. M.B.. Although there were a number of occasions upon which another Society became involved with her family, the family remained together. Her mother worked in the home while her father was employed outside of it. Ms. B. completed high school. She then attended college, but she did not complete any programs there. She was employed for about fourteen years before the baby was born, mainly at call centres.
[16] Ms. B.'s demeanor is the opposite of Mr. M.B.'s. She is a shy and quiet person. As I will detail below, the contrast between their personalities is one of the reasons that the Society became involved in the care of the child and one of the reasons that the motion judge ultimately placed the child in the Society's care.
The Parents' Relationship
[17] Ms. B. and Mr. M.B. (the “parents”) met in 2014 and began living together in Thunder Bay that same year. A year later, they moved to Sturgeon Falls, where Mr. M.B.'s mother also resides.
[18] The parents own a home in Sturgeon Falls. The home had been equipped for the child, or was in the process of being so equipped, at the time she was apprehended. Visits to the home by Society workers later confirmed that the parents had purchased a safe crib, a high chair, a stroller and age-appropriate toys. There were no concerns about the child's physical surroundings. The Society’s concerns related to the parents' ability to care for the child.
The Apprehension
[19] A.S.M.B. is the parents' one and only child. Shortly after she was born, staff at the hospital contacted the Society to express concerns about her parents' behaviour. Of particular concern was the behaviour of Mr. M.B., who is alleged to have asked if he could place his fingers inside Ms. B.’s vagina during the birth to feel the child’s heartbeat and to have said while holding the child that he was holding her “bum” and her “cooch”. Mr. M.B. adamantly denies these allegations.
[20] It was also reported that Mr. M.B. was argumentative with hospital staff, who had directed the parents to feed the child every two to three hours.
[21] Concerns were also expressed about Ms. B.’s ability to care for the child. Hospital staff reported that neither parent was able to tell them the last time the child had fed when asked. In an affidavit sworn in response to the Society's motion for summary judgment, Ms. B. explains that, because she had given birth by Caesarian section, she was given painkillers afterwards. In the factum filed on the appeal, Ms. B. says that, while she might not have written it down, the baby had been fed when required.
[22] In apprehending the child, the Society also relied on concerns that the parents had not arranged pre-natal care for her. As it turned out, this was not the case. As the Society later confirmed, Ms. B. had been under the care of a nurse practitioner in Thunder Bay. After the parents moved to Sturgeon Falls, she came under the care of Dr. Waja, a local obstetrician and gynecologist. There was an incident in which, when the parents attended Dr. Waja's office for the first time, Mr. M.B. became upset with the number of people waiting to see the doctor and the potential delay, as a result of which he insisted on leaving. Nonetheless, Ms. M.B. did attend with Dr. Waja approximately a week later.
The Protection Application
[23] After the child was apprehended, the Society commenced proceedings under the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”), seeking an order that the child be made a society ward for a period of four months. The application was returnable for the first time on October 28, 2015. On that date, the presiding Ontario Court judge made a temporary order that the child be placed in the care and custody of the Society and that the parents be provided with a combination of supervised and unsupervised access, “as arranged by the Society, bearing in mind the best interests of the child”. The matter was adjourned to permit the parents to retain a lawyer, which they did.
[24] The Society never saw fit to provide the parents with unsupervised access. With the exception of a period from September 8 to October 21, 2016 the parents were required to exercise access to the child at locations outside of their home. [^6] The in-home access was allegedly terminated due to concerns about Mr. M.B.'s behaviour. In an affidavit filed in support of the summary judgment motion, Brittany Billingsley, a Society employee who had been involved with the parents since November 2015, deposed that safety measures had to be put in place when dealing with the parents because of Mr. M.B.'s "extremely aggressive and uncooperative" attitude. A careful review of the court file reveals, however, that although there were concerns for the safety of Society workers supervising in-home access initially, which caused the Society to place two workers at a time in the home, the Society eventually moved to having one worker supervise access "due to no major concerns [being] noted in [Mr. M.B.'s] behaviour and interactions with the Society". [^7]
[25] Supervised access outside of the parents' home was exercised at several different locations. Initially, it seems that the parents enjoyed supervised access with the child alone as a family unit. However, in November 2017, they were required to exercise supervised access as part of a group of family units, apparently as a result of a labour dispute involving the Society.
[26] The parents tried twice to obtain court-ordered access outside of Society supervision, without success. They brought a motion for extended Christmas access in 2015, seeking to have access supervised by Mr. M.B.'s mother, but that motion was dismissed. In February 2016, they brought a motion under s. 51 of the CFSA for an order that the child be placed in their care subject to Society supervision pending the outcome of the application. That motion was also dismissed.
[27] In June 2016, the court made an unopposed finding that the child was in need of protection under s. 37(2)(b)(i) of the CFSA, which provides that such a finding may be made where the child is likely to suffer physical harm by virtue of the parents’ failure to adequately care for, provide for, supervise or protect her.
Possible Kin Placements
[28] Two kin placements were explored. One involved placing the child with Mr. M.B.’s mother, who lives in a town not far from the parents. Because of Ms. G.P.’s earlier involvement with two other Societies, the Society in this case determined that placement with her would be inappropriate.
[29] The other involved placing the child with Ms. B.’s sister. Initially, it appeared as though the placement might work. However, the placement was delayed for reasons beyond the parents’ control. Ultimately, the proposed placement failed because the sister expressed concern about Mr. M.B.’s past and would only agree to have the child placed with her if he was not given access.
The Section 54 Assessment
[30] One of the reasons that the placement with Ms. B.’s sister was delayed was to permit a parenting capacity assessment to be undertaken pursuant to s. 54 of the CFSA, at the request of the Society. The request was opposed by the parents, who took the position that the court already had better evidence of their abilities as parents by virtue of the observations that had been made by employees of the Society over the course of their many supervised visits with the child, especially those that had taken place in the home. However, the Society's request prevailed and the assessment was ordered in March 2017. The report was submitted to the court in June 2017.
[31] Both of the parents underwent social and psychological assessments as part of the s. 54 process. The assessors reported that Mr. M.B. demonstrated low average to average cognitive potential and borderline deficient to low average academic skill development. With respect to his personality, the assessors reported that Mr. M.B. demonstrated symptoms consistent with Post-Traumatic Stress Disorder, most likely suffered as a result of the abuse and violence he witnessed and endured as a child. They noted that he showed symptoms such as confusion, distractibility and difficulty concentrating and that he was defensive and reactive in what he acknowledged was an intimidating way. They indicated that he presented during interviews as angry, hostile and loud. However, they also noted that he could quickly be calmed down and become more reasonable when handled properly. The assessors concluded that Mr. M.B. suffered from Attention Deficit/Hyperactivity Disorder ("ADD") and Post-Traumatic Stress Disorder ("PTSD").
[32] Although the assessors were able to calm Mr. M.B. down, the assessors pointed out that other service providers might not be able to do so and that teachers, nurses, day-care providers and others should not have to be fearful of Mr. M.B.'s reactions to their efforts on behalf of the child. They noted that his anger, his size and his booming voice might not only intimidate service providers, but might also negatively impact his young daughter, as well.
[33] With respect to Ms. B.'s cognitive abilities, the assessors reported that she demonstrated borderline deficient verbal and non-verbal reasoning. However, because her academic skills were in the low average range, they theorized that her cognitive potential had been underestimated. The assessors reported that Ms. B. presented with at least some "mild tendencies toward positive impression management or symptom underreporting" and that she "may tend to be overly dependent upon others and will be prone, at times, to avoidance oriented coping strategies" (p. 39). They opined that Ms. B.'s personality "could leave her vulnerable to … abusive individuals or situations" (p. 40).
[34] The authors of the report also expressed concern that, due to her passive personality, Ms. B. might fail to recognize or to deal with Mr. M.B.'s outbursts. At p. 49, they wrote:
Abuse such as sexual or physical abuse is not so much a concern as A.S.M.B. growing up with a controlling and unstable father who may inflict emotional trauma, and a mother who may not be able to overcome her dependent characteristics and somewhat naïve perception of Mr. M.B. to protect her.
[35] The psychologist who assessed both Mr. M.B. and Ms. B. concluded that they were each capable of completing high school [^8] and successfully completing college level programs.
[36] As part of the assessment process, the parents were observed interacting with the child on a couple of occasions. Because Mr. M.B. was ill on the first occasion, the assessors were able to observe Ms. B. interacting alone with the child. They reported their impressions as follows (p. 21):
Ms. B. demonstrated flexibility in cueing to A.S.M.B.'s wants, and gave her praise for actions such as walking, mimicking sounds, eating well and singing. A.S.M.B. looked like she enjoyed the play, and she kept focusing on her mother for praise and direction. She was active, happy and Ms. B. followed A.S.M.B.'s leads. Hugs and kisses were given freely by Ms. B. and returned by A.S.M.B.. Ms. B. presented as a parent who is very interactive. She also checked for any safety concerns in A.S.M.B.'s actions and objects in her vicinity.
[37] Both parents were present during the second observation visit. During this visit, the assessors noticed a significant change in Ms. B.'s interaction with the child and, consequently, her parenting abilities. They observed that Mr. M.B. spoke condescendingly on occasion to Ms. B. and that she looked at Mr. M.B. very frequently and appeared rather anxious. In contrast to the first visit, the assessors noted that (p. 22):
… the content of the visit was not very stimulating, and the interactions with A.S.M.B. were rather minimal. Particularly, Ms. B. was very quiet and was noted to look to Mr. M.B. for affirmation on an alarming [sic] frequent basis.
[38] Ultimately, the assessors recommended:
(1) That A.S.M.B. be slowly integrated into Ms. B.'s care only if: (a) Ms. B. moves to an area where she would receive support from family members; (b) she attends counselling for dependency issues, power issues, and re-integration of her child; and (c) she attends parenting courses as recommended by the Society.
(2) That Mr. M.B. have access in a supervised setting only in the event that: (a) he participates in therapy with a professional qualified to deal with PTSD and ADD; and (b) the access is recommended by his treating professional.
[39] The assessors further recommended that, if the foregoing conditions were not met, the child should be placed with family (i.e. a kin placement). Finally, if a kin placement was not possible, the assessors recommended that A.S.M.B. be made a Crown ward (as it was termed in the CFSA), with access to the parents to be determined by the Society.
The Summary Judgment Motion
[40] A little more than seven months after the s. 54 assessment was filed with the court, the Society changed its position. On February 5, 2018 the Society brought a motion to amend its application to seek Crown wardship with no access.
[41] On that same date, the court began a trial management conference and set tentative trial dates for five days in May, June and July. The trial management conference was eventually scheduled to resume on May 7, 2018.
[42] On April 30, 2018 the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 (the "CYFSA") replaced the CFSA. Under the CYFSA, children are no longer made Crown wards. Instead, under s. 101, where a child is found to be in need of protection, the court can order that the child be placed "in extended society care". Under ss. 105(4) and (5) of the CYFSA, there shall be no access to a child placed in extended society care unless it is in the child's best interest. In determining what is in the child's best interest, s. 105(6) requires that the court consider whether the relationship between the child and the accessing person is beneficial and meaningful to the child and, if the court considers it relevant, whether the access will impair the child's future opportunities for adoption.
[43] Shortly before the trial management conference resumed on May 7, the Society served its summary judgment motion materials. The motion was made returnable on May 22, the first date scheduled for trial. Thus, the focus of the trial management conference on May 7 turned to the motion and a timetable was set for the filing of affidavits.
[44] The Society’s motion was supported by a number of affidavits, the main one being that of Ms. Billingsley, dated May 4, 2018. Affidavits were also filed by the Society relating to the child's well-being, observations made during supervised access visits, and the effect of delay on the chances of adoption.
[45] The parents each filed responding affidavits. In his responding affidavit, Mr. M.B. complained that he was prejudiced in his ability to "put his best foot forward" in response to the motion because of the short timelines that had been imposed at the trial management conference. He deposed that he had not had an opportunity to cross-examine any of the third parties who provided information for the s. 54 assessment, nor any of the assessors.
[46] On behalf of Mr. M.B., counsel argued that the matter should proceed to trial. In support of that argument, he made two main submissions. First, he relied on jurisprudence that he contended stood for the proposition that the court should not rely on the s. 54 assessment in the absence of cross-examination on the report. Second, he relied on r. 16(5) of the Family Law Rules, O. Reg. 114/99, set out below, to argue that the Society's hearsay evidence was insufficient to meet its burden of demonstrating that there was no genuine issue requiring a trial because it was predominantly hearsay.
[47] Alternatively, he argued that the motion judge should order that the child be placed with the parents under Society supervision.
[48] Counsel for Ms. B. did not adopt the same strategy as counsel for Mr. M.B.. Rather than argue that the matter should proceed to trial, she referred the court to evidence that she submitted refuted the Society's concerns that Ms. B. was cognitively incapable and too passive a person to stand up to Mr. M.B.'s overpowering personality. She highlighted the positive observations made by Society employees and the s. 54 assessors about Ms. B.'s parenting abilities. While counsel for Ms. B. never articulated what her client wanted during her oral submissions, in her affidavit on the motion, Ms. B. stated that she wanted her daughter home with her. I can find no indication in the record as to whether or not she proposed that the Society supervise the placement of the child.
[49] The motion judge reserved his decision at the conclusion of the motion.
The Motion Judge’s Reasons
[50] The motion judge delivered his reasons orally on May 28, 2018. He began by setting out the procedural history of the matter. He then moved to a brief discussion of r. 16 of the Family Law Rules, in which he stated (p. 3):
With a motion for summary judgment, the Court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus in these particular proceedings is on the Society. They must show that there is no genuine issue for trial.
[51] The motion judge then reviewed the evidence. He summarized his reasons regarding disposition as follows (p. 13):
If Ms. B.'s plan was to try to raise her child on her own, she might have had a fighting chance on this application. However, the plan that's presented is totally unrealistic in the present circumstances. Mom has limited parenting skills. Dad has no parenting skills. The only family support they seem to have is the paternal grandmother which is not of much assistance to them. Opportunities and recommendations have been made to the parents on how to improve their situation. They did not take advantage of this. Their access visits have been sporadic and disengaged. Their personality traits are disjointed and together do not provide a stable environment for a child.
[52] He therefore made a final order that the child be placed in extended Society care.
[53] The motion judge then turned to the question of access. As he did with the question of Society care, he held that the presence of Mr. M.B. in the child's life precluded an order that either parent have access to the child (p. 15):
It's clear that mom … loves her child. As for Mr. M.B., he, himself admits that he has not much of a bond, and he blames the Society for preventing enough time with her to create a bond. Any recent access they have had has been through group supervised visits and their attendance has been sporadic and with a disengaged attitude. Clearly, Mr. M.B. does not have any relationship with the child that is beneficial and meaningful. As for mom, the possibility does exist for [sic] a meaningful and beneficial relationship can be created. However, this Court fails to see how that can ever happen with the plan provided by the parents of co-parenting the child and the serious disjoint in their own personalities.
Any future involvement of dad in the child's life will clearly impair any future possibilities of adoption. As for the plan of care proposed by the parents are [sic] clearly intertwined and the power imbalance described by so many, the same conclusions need to be made for any future access for mom.
[54] The motion judge therefore made a final order that there be no access to either parent.
Issues
[55] The parents each filed a notice of appeal. At the time, they were still represented by counsel. The notices raise similar grounds of appeal. Ms. B.'s notice is the most comprehensive. It sets out seven grounds of appeal, in which she asserts that the summary judgment motion judge erred:
(1) by "failing to assess and give weight to the credibility of the information"; (2) by "making a [judgment] based upon a misinterpretation of the facts"; (3) by failing to give procedural fairness to the parents; (4) by failing to consider the wishes of the child; (5) by failing to consider r. 16(5) of the Family Law Rules (regarding hearsay evidence); (6) by failing to properly consider the best interests of the child; and (7) by failing to order access to the child.
[56] Mr. M.B.'s notice of appeal omits grounds (2) and (6).
[57] I agree with the submission made in the Society's factum that these grounds of appeal lack specificity. The second ground (2) listed above is so devoid of specifics that it cannot really be addressed as a stand-alone ground of appeal.
[58] The parents are no longer represented by counsel. The concerns they raised in their oral submissions on the appeal can be summarized as follows:
(1) the motion judge appeared to rely only on the evidence adduced by the Society and failed to consider the evidence adduced on behalf of the parents; (2) the motion judge's decision was based on hearsay; (3) the hearsay relied upon by the motion judge was related to the distant past and was not relevant; and (4) the motion judge was wrong to accept the plan put forward by the assessors and the Society that required the mother to leave the father.
[59] In their oral submissions, the parents did not raise any issue about the child's wishes. I interpret that as a tacit acknowledgement that they agree with the Society's position, as do I, that the child is too young to properly ascertain her wishes and that, even if they could be properly ascertained, they would not carry much, if any, weight given her age.
[60] I interpret the allegation that the motion judge failed to have regard for the child's best interests and that the motion judge was wrong to accept the recommendation of the assessors requiring the mother to leave the father principally as complaints about the result of the motion, rather than the process by which that result was reached. However, based on the submissions of Mr. M.B.'s counsel on the motion, I conclude that there is also an issue about the motion judge relying on the s. 54 report as part of that process.
[61] I believe that the grounds of appeal raised by the parents in their notices of appeal and in their oral submissions can be addressed by considering the following issues:
(1) Were the parents denied procedural fairness? (2) Did the motion judge err by failing to assess and to weigh the evidence? (3) Did the motion judge fail to give due consideration to the evidence of the parents? (4) Did the motion judge improperly rely on hearsay evidence? (5) Did the motion judge err by relying on the recommendations made in the s. 54 assessment?
[62] Before I address any of these issues, however, I must address the admissibility of additional documents contained in the appeal record.
Analysis
Fresh Evidence
[63] In an unsworn document filed in connection with the appeal, the parents write that they attended "two extra parenting programs" and saw a counsellor after "the final court date". Also included in the appeal record are copies of certificates of attendance for "selected seminars" on July 3 and July 24, 2018 from the "Triple P – Positive Parenting Program".
[64] Section 121(6) of the CYFSA provides that the court may receive further evidence relating to events occurring after the order from which the appeal is taken has been made.
[65] The test for admission of fresh evidence in an an appeal on a child protection matter is similar to the test applicable to other appeals. In criminal and most civil cases, that test is the one expressed by the Supreme Court in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775:
(1) With due diligence, could the evidence have been adduced at trial? (2) Is the evidence relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial? (3) Is the evidence credible in the sense that it is reasonably capable of belief? (4) If believed, could the evidence, when taken with the other evidence adduced at trial, be expected to have affected the result?
[66] In child protection matters, however, the test is more relaxed. In commenting on the power of a judge to receive fresh evidence on an appeal under child welfare legislation, Cory J.A. wrote in Re. Genereux and Catholic Children's Aid Society of Metropolitan Toronto (1985), 53 O.R. (2d) 163, at pp. 164-65:
It can be seen that the judge hearing the appeal is granted a very wide discretion with no restrictions imposed. This is remedial legislation dealing with the welfare of children. It should be broadly interpreted. Undue restrictions should not be placed upon it. Specifically, narrow restrictions should not be read into the section when they do not appear in the legislation.
The judge on appeal, bearing in mind that he is dealing with the welfare of children, may determine that he will exercise his discretion and will hear further evidence so long as it is relevant to a consideration of the best interests of the child. The decision will be based upon the circumstances of the particular case. In some instances, the reasons of the provincial court judge may, for example, be founded upon a consideration of the safety of the child. In such a case, the judge on appeal might well decide to exercise his discretion by refusing to hear further evidence relating to the behaviour of the child or its bonding with the foster mother. If the judge on appeal so exercised his discretion for those expressed reasons, it is unlikely that an appellate court would interfere with his decision.
[67] This approach was accepted by the Supreme Court of Canada in Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, at p. 188, where L'Heureux-Dubé wrote on behalf of the court:
Although I doubt that Genereux, supra, intended to depart significantly from the test of Palmer and Stolar, supra, its approach is to be commended. In my view, Genereux, supra, is not only consistent with the jurisprudence of this Court but is better suited to the child-centred focus of the CFSA, as it recognizes the importance of having accurate and up-to-date information on children whose fate often hangs on the determination by judges of their best interests. In light of this Court's broad discretion to admit fresh evidence and the wording and the spirit of the statute, Genereux, supra, is very attuned to the philosophy and objectives of the Act. Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance. If Genereux, supra, has enlarged the scope of the admission of fresh evidence on appeal, it has done so, in the present case at least, with regard to the final arm of the Stolar test, that is, whether the fresh evidence may affect the result of the appeal when considered with the other evidence. If that is so, and the fact that the admission of up-to-date evidence is essential in cases such as the one at hand, Genereux, supra, should be applied in cases determining the welfare of children.
[68] Rule 38(29) of the Family Law Rules provides that a party seeking to admit fresh evidence must do so by bringing a motion for that purpose. The Society points out that, in an endorsement dated October 18, 2018, my colleague, Valin J., indicated that the appeal was being adjourned at the request of the parents to allow them to bring such a motion. The Society submits that the parents should not be allowed to seek to introduce fresh evidence because no such motion was brought. The record is not quite that clear.
[69] The parents did file a notice of motion shortly after Valin J. made his endorsement. However, in their notice of motion filed on October 23, the parents do not make any reference to fresh evidence. Instead, they repeat their complaint that they were not allowed to go to trial and their request to take their daughter home.
[70] I am prepared to admit the fresh evidence. The Society has had notice of the evidence and does not point to any potential prejudice if it is admitted. However, I am unable to glean much, if anything, from it. I have no information as to the nature of the Triple P – Positive Parenting Program. Nor do I know how many sessions comprise the entire program and, therefore, the weight to attach to the fact that the parents attended two "selected" seminars.
[71] About all I can safely infer from the documents contained in the appeal record is that the parents still want to obtain custody of their child and that they are willing to do something to improve as parents to do so.
Were the Parents Denied Procedural Fairness?
Short Timelines
[72] As I pointed out above, this case began as a temporary care case. In February 2018, the Society turned it into a permanent care case. At that point in time, the matter was still scheduled for trial. However, on Friday, May 4, a few days in advance of the trial management conference of Monday, May 7, the Society served its summary judgment motion materials. It made the motion returnable on May 22, the first day scheduled for trial. As a result, the trial management conference turned into a motion management conference, during which deadlines were set for the filing of material. Those deadlines required the parents to deliver their responding affidavits by the end of the juridical day on May 17 and the Society to deliver its reply by that time on May 18.
[73] The record does not reveal whether those timelines were imposed upon the parties by the court or consented to. With respect, if it was the former, it was unfair; if it was the latter, it was unwise. In either case, the timelines were too short to allow counsel for the parties to properly prepare, in my view. Had they done so, perhaps they would have provided the motion judge with the correct legal test and would have summarized the factual and legal issues so that the motion judge was alive to them and could determine whether a trial was required, or whether they could be resolved with the fact-finding powers available under r. 16.
[74] As so many courts have said, the stakes in a summary judgment motion in which the Society seeks to place a child in its care and deprive the parents of access are very high: see, for e.g., C.R. v. Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357. While motions for summary judgment are available in child protection proceedings, care must be taken to ensure that enough time is provided to the responding parties to put their best foot forward, as they are obliged to do. When a case has been ongoing for as long as this one was before the motion was argued, that can take some time.
[75] As it turned out, the timelines imposed at the trial management conference were not respected. At the conference, the Society indicated that it had at least one further affidavit to file, [^9] which was served on May 10. However, the Society also served two additional affidavits on May 14. Counsel for Mr. M.B. objected to the late service. In response, counsel for the Society raised the fact that the parents had filed their responding materials one day too late. When the motion judge threatened to adjourn the motion, counsel for the parties agreed that the Society would be permitted to file three pieces of correspondence; one dated November 2017 from counsel for Ms. B. relating to a possible kin placement, and two more recent letters relating to concerns expressed by Ms. B. through her counsel that the child had complained that her genital area was sore. The Society relied on the lawyer's letter in support of its "grave concern" about the parents' intellectual and cognitive abilities. [^10]
[76] If the short timelines were the only issue raised, I would dismiss the appeal. The record is clear that Mr. M.B. was anxious to proceed on May 22, notwithstanding the short timeline. Although he complained that he had not been given enough time to respond, Mr. M.B. deposed in his responding affidavit that he did not wish to adjourn the motion "as doing so will delay this three-year long matter" (para. 7). His lawyer also said he wanted to proceed during the argument of the motion (transcript of May 22, 2018, p.6). The record is clear that Ms. B.'s lawyer was likewise willing to proceed on that date (transcript, p. 7). Unfortunately, though, short timelines are not the only issue on the appeal and they are not the only issue relating to the possibility of procedural unfairness.
Incorporation of Other Affidavit Evidence by Reference
[77] Although he wished to proceed with the summary judgment motion, in his responding affidavit (para. 2), Mr. M.B. also sought to rely on the affidavits he had filed previously in the proceedings, in addition to the affidavit he filed in response to the summary judgment motion. Notwithstanding that request, near the beginning of his reasons, the motion judge stated (p. 3):
In preparation for this motion the Court has reviewed and has considered all documents filed by all parties starting at Volume 2, in Tab 12 [the Society's notice of motion for summary judgment], and anything filed thereafter.
[78] Thus, it seems that the motion judge ignored Mr. M.B.'s request and chose to consider only the material filed on the motion. In my respectful view, that had the potential to be unfair, particularly given the short timelines imposed and the fact that the Society was serving affidavits as late as four days before Mr. M.B. was required to serve a response.
[79] The motion judge cited no authority for considering only the materials filed on the motion notwithstanding Mr. M.B.'s request. Perhaps he had in mind the decision in Kondovski v. Kondovski, [2006] O.J. No. 2973 (S.C.). In Kondovski, the court granted a mother’s summary judgment motion to dismiss a father's application to rescind support arrears. In response to the motion, the father sought to rely on material he filed in connection with his application. Ferrier J. held that a responding party is required to file material specifically in response to the summary judgment motion. However, he also wrote (at para. 58):
There is some scope for arguing that as long as the affidavits were properly in the continuing record, and the respondent [mother] was familiar with this material, it would not be contrary to fairness to permit the applicant [father] to rely upon them. It would be sufficient to incorporate by specific reference previous affidavit material filed in the proceedings: Children's Aid Society of Algoma v. F.(B.), [2004] O.J. No. 2865, 2004 Carswell Ont 2786 (Ct. J.)
[80] Relying on the decision in Heritage Mountain Lodges Inc. v. Sookram, [1996] O.J. No. 1107 (Gen. Div.), Ferrier J. also held that a party could not rely on affidavits filed previously in connection with motions, as opposed to the application itself. With respect, I am unable to see the basis for the distinction where the facts relied upon in support of the summary judgment motion overlap with those at issue in another motion brought within the same application, as was the case with all of the motions to which to parents responded in this application.
[81] In my view, a party responding to a summary judgment motion in a proceeding in which affidavits form the basis of the court record should not have to swear, serve and file further affidavits in connection with the motion that do nothing more than repeat evidence he or she has given before in affidavit form in the same proceedings. This is especially true in child protection proceedings, in which the rules of evidence are more flexible. Section 93(b) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 (the "CYFSA") provides:
93 (1) Despite anything in the Evidence Act, in any proceeding under this Part, (b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
[82] It would be illogical to apply s. 93(1)(b) only to trials and not to summary judgment motions, both of which may result in a final disposition under the CYFSA. It would also be contrary to the plain wording of the section, which is expressed to apply "to any proceeding" under the Act, and not just to trials.
[83] In Kondovski, Ferrier J. refused to allow the applicant father to rely on the earlier affidavits because he had failed to incorporate specific portions of his earlier affidavits by reference in the affidavit he filed in response to the summary judgment motion. As Ferrier J. made clear, while a party to a summary judgment may be able to incorporate other material by reference to that material in his response, he must ensure that he does so in a way that permits the other party to know the case she has to meet (para. 59):
In my view, such a conclusion is based in fairness between the parties. The moving party must be able to know precisely what the responding party is relying upon in defence of a motion for judgment. Only then will counsel be in a position to determine whether cross-examination on the affidavit material is necessary, and whether the moving party on the motion ought to file further affidavit material. Only then can the moving party assess its position on the motion. Furthermore, the moving party would ordinarily have no right to cross-examine on affidavits not filed on the motion.
[84] Mr. M.B. did not specify the particular portions of his previous affidavits upon which he wished to rely and it is difficult to determine from the continuing record which affidavits were filed in connection with the application only. However, no objection was made on behalf of the Society to Mr. M.B.’s effort to incorporate his earlier affidavits by reference to them in his responding affidavit. In those circumstances, I can see no reason for the motion judge failing or refusing to consider at least the affidavits which were clearly filed in connection only with the application.
[85] Nonetheless, I would not allow the appeal on this ground alone. As counsel for the Society pointed out, the grounds of appeal set out in the notices of appeal lacked specificity. No particulars were given with respect to any of them, including the allegation that the parents were denied procedural fairness. This issue presented itself following argument, during my review of the record. As a result, I did not have the benefit of the Society's submissions on the issue of what affidavit evidence the motion judge should have considered. Ordinarily, I would have requested that the parties provide me with further submissions on the issue. However, in light of the length of time it has taken me to review the record in depth, the length of time the child has been in Society care, and the conclusion I have reached that the appeal must be allowed on other grounds, I have not done so.
[86] Instead, I offer the observations set out above in the hope that they may be of some assistance when the matter is dealt with again by the Ontario Court of Justice. I do not rely upon them in allowing the appeal.
Did the Motion Judge Err by Failing to Assess and Weigh the Evidence?
[87] In 2015, the Family Law Rules were amended to bring r. 16, the summary judgment rule in family proceedings, into line with r. 20 of Rules of Civil Procedure, R.S.O. 1990, Reg. 194, the summary judgment rule governing other civil proceedings. In particular, the rule was amended to provide the motion judge with the power to perform tasks previously reserved to the trial judge, such as weighing the evidence and assessing credibility. The relevant parts of r. 16 now provide as follows:
WHEN AVAILABLE
- (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.
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.
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.
ORDER GIVING DIRECTIONS (9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise); (b) give directions; and (c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).
[88] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada held that amendments to r. 20 of the Rules of Civil Procedure in 2010 heralded a new approach in which trials are no longer required for all but the most obviously unmeritorious claims. The court called for a "culture shift" towards a more proportionate, more expeditious and more affordable dispute resolution process.
[89] Both r. 20 of the Rules of Civil Procedure and r. 16 of the Family Law Rules are mandatory. Where a judge concludes that there is no genuine issue requiring a trial, he or she must make the appropriate final order. In Hryniak, the Supreme Court explained that (para. 49):
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[90] A genuine issue is an issue that is material, in the sense that the resolution of the issue is required in order to arrive at a determination of the merits of the claim. Where the issue is a factual one, it will not be material unless the result of the proceeding turns on the existence or non-existence of that fact: Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A.), at p 551.
[91] The summary judgment rules permit the motion judge to perform the functions of a trial judge by weighing evidence, evaluating credibility and drawing inferences in order to determine if there is a genuine issue requiring a trial. As the Supreme Court pointed out in Hryniak, the decision to use these powers is a discretionary one (para. 68). The motion judge is not required to use them, but is required not to use them if the "interest of justice" dictates that they be used only at a trial.
[92] In Hryniak, the Supreme Court explained the process a summary judgment motion judge should follow under the Rules of Civil Procedure by providing the following "roadmap" (para. 66):
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest 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.
[93] The decison in Hryniak regarding r. 20 of the Rules of Civil Procedure applies equally to r. 16 of the Family Law Rules: see Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Div. Ct.).
The Standard of Review
[94] In Hryniak, the Supreme Court also dealt with the scope of an appellate court's power to interfere with a summary judgment motion judge's decision. At paras. 81-83, Karakatsanis J., wrote on behalf of the court:
In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.
Similarly, the question of whether it is in the "interest of justice" for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.
Provided that it is not against the "interest of justice", a motion judge's decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.
[95] With these legal principles in mind, I turn to my analysis of the motion judge's approach under r. 16.
The Motion Judge's Approach
[96] Unfortunately, the motion judge in this case did not approach his task using the roadmap provided in Hryniak. He did not first address whether he could determine if there was a genuine issue requiring a trial without using any of the fact-finding powers in r. 16(6.1). Instead, he simply proceeded to decide the motion using only the affidavit evidence filed on the motion, the s. 54 assessment, and the three pieces of correspondence filed as exhibits during the hearing on consent.
[97] To the extent that it is implicit in the motion judge's reasons that he believed that he could resolve the genuine issues on the paper record alone, the motion judge also applied the wrong test in reaching that conclusion. Early in his reasons, as he began to discuss r. 16, he stated (p. 3):
Summary judgment should … be granted only in the clearest of case[s].
[98] After summarizing his conclusion concerning disposition (see para. 51 above), he stated:
Accordingly, and for the reasons given, I do not see how a trial with viva voce evidence and cross-examination could lead to any other conclusion than an order for extended Society care. There is clearly no genuine issue for trial on the disposition required on this matter.
[99] With respect, these statements are based on a misapprehension of the law as it now stands.
[100] The motion judge did not cite any cases in support of his comments. The comment that summary judgment is reserved for the clearest of cases most likely came from decisions such as Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) (1996), 139 D.L.R. (4th) 534 (Ont. Ct. Gen. Div.) and Children's Aid Society of Nipissing v. M.M., [2000] O.J. No. 2541 (Ont. Ct. Gen. Div.), in which that principle was set out. However, this has not been the law since even before the 2015 amendments to r. 16: see Jewish Family and Child Service of Toronto v. R.A. and J.G., [2001] O.J. No. 41 (Ont. S.C.), affirming Jewish Family and Child Service of Toronto v. R.A. and J.G., [2000] O.J. No. 6045 (Ont. C.J.). It has certainly not been the law since the 2015 amendments to the summary judgment rule which, as I have pointed out, are designed to fairly and effectively dispose in a summary way of virtually any case, and not just the clearest of them.
[101] The motion judge's comment that calling viva voce evidence and allowing cross-examination would not lead to any other result is likely based on decisions such that in Children's Aid Society of Niagara Region v. S.C. and B.M., 61 R.F.L. (6th) 328 (Ont. S.C.) and Children’s Aid Society of Simcoe v. C. S., [2001] O.J. No. 4915 (Ont. S.C.), in which the courts have held that no genuine issue for trial exists where there is no realistic possibility of an outcome at trial other than that being sought by the party moving for summary judgment. With respect, that is also no longer the test under r. 16.
[102] In another case in which the summary judgment motion judge had similarly misdirected himself, the Divisional Court held that he had committed an error of law. In Kawartha-Haliburton Children's Aid Society v. M.W., referred to above, Myers J. wrote on behalf of the court (paras. 45-47):
At para. 43 of the decision below, the judge was misdirected by the pre-Hryniak case law submitted by the parties that dictated a consideration of likely trial outcomes as the determinant of whether summary judgment ought to be available. He considered whether it was "plain and obvious that the action cannot succeed" and whether there was "no realistic possibility of an outcome other than that as sought by the applicant."…
As a result, the judge never asked the key question of whether it was in the interest of justice for him to resolve the case summarily. To do so, he was required to consider whether the process allows him to make the necessary findings of fact, to apply the law to the facts, and is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow him to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure?
In asking the wrong question, the judge set out the wrong legal test for determining whether there is a serious issue requiring a trial. That is an error of law that is not subject to deference in this court as discussed above. To the extent that the case law relied upon at para. 43 of the judge's reasons and in the parties' respective factums state that the test for summary judgment in a child protection matter turns on an assessment of whether the case has a very strong likelihood of success at trial, those cases are not good law after Hryniak and should no longer be relied upon for that purpose. [Footnote omitted.]
[103] The 2015 amendments to r. 16 require the summary judgment motion judge to consider whether it is in the interest of justice for him to resolve the case summarily. In order to do that, the motion judge must first determine the legal and factual issues that have to be resolved. Only then can the summary judgment motion judge proceed to determine whether those issues can be resolved without requiring a trial. That was not done here. Because the motion judge erred in law by asking himself the wrong question, his decision that there was no genuine issue for trial is not entitled to deference: see Hryniak, para. 81, set out above.
[104] In Kawartha-Haliburton CAS, the Divisional Court went on to make the necessary findings of fact by using the broad powers granted to an appeal court under s. 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Myers J. wrote (para. 64):
In my view, it is apparent from the evidence and the motion judge's reasons why he found that he could decide the issues based on the record, satisfying the first rung of the Hryniak ladder, without access to expanded powers. Nothing said by or submitted by the appellant and the OCL establishes either a reason for requiring a trial or that any of the three eldest children enjoys a relationship with his mother that brings significant advantage to him. There is no argument that there is evidence missing that could not have been obtained by a party exercising due diligence. There is no need to resolve conflicting evidence. There is no real contest concerning the bulk of the evidence of pervasive abuse and neglect suffered by the children at adults' hands.
[105] I am unable to do the same thing in this case, however, because there is conflicting evidence on certain issues. I will deal with that evidence when I address whether the motion judge failed to give due consideration to the evidence of the parents.
Did the Motion Judge Fail to Give Due Consideration to the Evidence of the Parents?
[106] The failure of a trial judge, or a summary judgment motion judge, as in this case, to mention relevant evidence will not justify appellate review unless the judge's reasons lead to a reasonable belief that he forgot, ignored or misconceived the evidence in a way that affected his conclusion: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 15.
[107] The motion judge gave five principle reasons for granting summary judgment. Listed in the order in which he dealt with them in his reasons, they were:
(1) Mr. M.B.'s refusal to access services; (2) Ms. B.'s dependency on Mr. M.B.; (3) the parents' failure to act on any of the recommendations in the s. 54 assessment; (4) Mr. M.B.'s view of his criminal history; and (5) the parents' failure to exercise access.
[108] In my respectful view, the motion judge failed to consider the evidence of the parents with respect to three of these reasons. Four of them involve conflicting evidence. I will address those four issues in this section of my analysis. I will address the s. 54 assessment separately.
Mr. M.B.'s Refusal to Access Services
[109] At p. 4 of his reasons, the motion judge said:
Dad has not participated in any parenting courses besides attending on two occasions to the STEP program with mom in the fall of 2016. The requests that he attend this program or similar parenting program have been refused by Mr. M.B..
[110] This is not completely correct. As Mr. M.B. deposed in his affidavit of February 7, 2017, he was not permitted to attend the STEP program at first, even though he was willing to do so. Shannon Lachance admitted this in her responding affidavit of March 2, 2017 (para. 15). The motion judge did not consider this evidence because he did not consider any evidence filed in advance of the summary judgment motion.
[111] However, apart from this error, there is no dispute in the record about the fact that Mr. M.B. later refused to attend any parenting programs. At para. 16 of his February 7 affidavit, Mr. M.B. admitted that he was asked to attend the STEP program with Ms. B. after she took the one to which he was denied access. He deposed:
I advised the Children's Aid Society that I thought this was just another stall tactic because I had already offered to do the STEPS program between June and September of 2016 and they refused me. I advised I simply wanted to go to trial as I wanted my day in court.
[112] Because of Mr. M.B.'s admission, I do not believe that the motion judge's conclusion with respect to Mr. M.B.'s failure to access services would have been any different had he considered the evidence that Mr. M.B. was not permitted to attend the STEPS program at first.
Ms. S.B.'s Dependency on Mr. M.B.
[113] The motion record contained considerable evidence with respect to Ms. B.'s relationship with Mr. M.B.. It is not necessary to review all of that evidence. While the parents' both disputed certain specific allegations, such as an allegation that Mr. M.B. pushed Ms. B. and that she flinched when he raised his hand once while he was holding a cell phone, the motion judge did not appear to rely on those specific incidents. Instead, he referred to Ms. B.'s "inability to make decisions without directions from dad" (p. 5). This conclusion was supported by the affidavit evidence of the workers filed in support of the motion.
[114] However, there was conflicting evidence on the issue. Ms. B. denied being dominated by Mr. M.B. in the affidavit she filed in the summary judgment motion, where she deposed (para. 25):
M.B. is a naturally loud person. I am a naturally quiet and shy person. Because M.B. is loud and I am quiet, the Society has incorrectly assumed that he does not allow me to speak for myself. This is false. M.B. listens to my thoughts and opinions. We participate in decision-making together.
[115] This was a key factual issue. The motion judge's view on it affected not only his decision to place the child permanently in the Society's care, but also to deny both parents access to the child. Yet, the motion judge made no reference to this factual dispute in his reasons.
[116] Had the motion judge approached the summary judgment motion in the way set out by the court in Hryniak, he might have identified this area of the evidence as one in which he could take advantage of the fact-finding procedure contained in r. 16(6.2) by hearing testimony from Ms. B.. Had he done so, he might have found it as enlightening an experience as I found the experience of listening to Ms. B.'s submissions on the appeal.
Mr. M.B.’s View of His Criminal History
[117] At p. 9 of his reasons, the motion judge said:
Mr. M.B.'s criminal record is of concern to the Society. In my view, this is not that alarming. What is of grave concern is Mr. M.B.'s view of his criminal past. In his affidavit [on the summary judgment motion] para. 18, he says, "When I say I was never a violent person, I mean it. I do not believe in violence. It never solves anything." But if you look at his criminal convictions, you see that he's been convicted twice for domestic assault, and another time for a common assault on his mother's partner allegedly all over a package of cigarette. So how can anyone say, "I am not a violent person, and I mean it" with this type of criminal convictions.
[118] In his affidavit on the motion, Mr. M.B. deposed that he had only one "charge" for assault (para. 83). That assertion is contradicted by records adduced by the Society which, as the motion judge correctly held, showed three convictions for assault. Again, however, no reference was made by the motion judge in his reasons to this conflicting evidence.
[119] More troublesome, in my opinion, is the fact that the motion judge relied on the hearsay evidence contained in arrest reports attached as exhibits to Ms. Billingsley's affidavit with respect to the circumstances surrounding the assault of Mr. M.B.'s partner. I will address the question of hearsay evidence shortly.
The Parents' Failure to Exercise Access
[120] This is the area of the case in which the factual issues were perhaps most nuanced.
[121] At p. 12 of his reasons, the motion judge referred to evidence adduced by the Society with respect to access. He said:
The Society explained in their evidence that the parties were offered additional access time with the child and the same was declined. If they would have participated in the STEP programs, and this is a second time for mom and dad for a first time, not only would this have improved their parenting skills but, obviously, given them more time with their children. More recently the parents were offered five hours of access on a weekly basis. This was reduced to four hours at their request. Of great concern to this Court is that mom only attended 10 of 19 of these group visits, and dad only attended 7 of 19 of these visits. The Court understands that bad weather might have caused some of these visits to be missed, but these access visits are so precious and should be the primary concerns [sic] for parents wishing to be reintegrated with their child. Nothing should be more important than attending these visits.
[122] The motion judge's reference to visits being missed because of bad weather is a reference to evidence adduced by the parents, particularly Ms. B.. In her affidavit on the summary judgment motion, she specifically addressed the evidence of Society workers about access visits she had with daughter, highlighting the positive comments and explaining, where she could, the negative ones. She also explained why she missed certain access visits. As she deposed, some were missed due to weather, as the motion judge appears to have accepted. However, she also deposed that access visits were missed because Mr. M.B.'s mother had been in a car accident on one occasion and because she had appointments she could not reschedule on two other occasions. No mention was made of this evidence by the motion judge.
[123] Nor did the motion judge mention other aspects of the access offered to the parents that might have had some impact on why they missed access visits or declined additional ones. The parents lived in Sturgeon Falls. The supervised access was offered only in North Bay. In his affidavit of February 7, 2017, Mr. M.B. set out in detail the difficulties that the parents experienced not only with weather, but with transportation. This evidence was disputed in a responding affidavit sworn by Shannon Lachance on March 2, 2018. However, Ms. B. also referred to transportation problems in the affidavit she filed in connection with the summary judgment motion, which evidence was neither refuted by the Society nor referred to by the motion judge.
[124] The motion judge also made no mention of the fact that supervised access in the home had been discontinued after less than two months, despite the fact that it appeared to be going well, and that it then had to be exercised in a group setting once the Society began to experience a labour disruption. As Society worker Cathy Love deposed in her affidavit dated May 14, 2018, the group access setting was incapable of providing "a full assessment of the parents' skills and abilities" (para. 7).
[125] These facts were relevant to the question of access and may have affected the motion judge's finding that the parents were not interested enough in spending time with their daughter, had he considered them.
Did the Motion Judge Improperly Rely on Hearsay Evidence?
[126] Rule 16(5) provides that the court may draw a conclusion against a party who relies on hearsay evidence. This implies that hearsay evidence is admissible on a motion for summary judgment. Nonetheless, some courts have refused to admit such evidence in child protection proceedings: Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (S.C.). Many courts have admitted hearsay evidence in child protection proceedings, but sounded a cautionary note about relying on it: Nogdawindamin Family and Community Services v. P.M., 2018 ONSC 34.
[127] As I mentioned above, the motion judge appears to have relied on police arrest reports about the details of Mr. M.B.'s criminal record. Those reports are double hearsay: they are out-of-court statements by someone who is relating what someone else said out of court. Respectfully, they should have been approached with caution on the part of the motion judge.
[128] The s. 54 assessment also contained hearsay evidence. I will turn to that assessment in a moment. Before I do, however, I wish to address a submission made by counsel for the Society that relates in part to the hearsay issue.
[129] In her able argument, Ms. Zuck submitted that the parents' dispute of the allegations leading up to the apprehension of their daughter was irrelevant because they had consented to an order that the child was in need of protection. I disagree with that submission for two reasons.
[130] First, the allegations about what the parents' did and did not do at the hospital were passed on to the s. 54 assessors and formed part of the basis for their recommendations (report, pgs. 11-14). As I will discuss further immediately below, those recommendations were relied upon by the motion judge, at least to some degree.
[131] Second, the allegations about what happened at the hospital were included in the affidavit of Ms. Billingsley filed in support of the summary judgment motion (paras. 17-35). If that evidence was irrelevant, it should not have been in Ms. Billingsley's affidavit. Because it was, the parents were entitled to refute it in the summary judgment motion and to address it in the appeal.
[132] The motion judge did not specifically mention any of this evidence. He did, however, say that Mr. M.B.'s "parenting skills … appear to be very limited, if not, non-existent" (p. 4). It is not possible to know whether the motion judge reached this conclusion, in part, because of the evidence of events that caused the Society to apprehend the child at the hospital the day after it was born.
[133] The evidence about the parents' behaviour at the hospital was also hearsay. None of the Society workers who deposed to that behaviour actually witnessed it. Nor did they identify the witnesses at the hospital who said they did.
[134] As with some of the other issues I have addressed, I would not allow the appeal based on the hearsay issue alone. There was other evidence, mainly in the form of affidavits from Society workers who observed access visits, that Mr. M.B.'s parenting skills were lacking. Further, while it was not certified or properly introduced as a business record, the police record of Mr. M.B.'s convictions themselves (not the arrest reports) was sufficiently reliable to survive scrutiny under r. 16(5).
Did the Motion Judge Improperly Rely on the Section 54 Report Recommendations?
[135] The s. 54 assessment report was admissible in evidence by virtue of s. 98(12) of the CYFSA.
[136] The motion judge rejected Ms. B.'s lawyer's argument that the court should not rely on the report in the absence of cross-examination. He distinguished the cases relied upon by counsel, principally on the basis that the report was not fundamental to the Society's position in the motion before him. He held that (p. 7):
…what is important about the [report] before the Court, is not necessarily the content or even its conclusion, but rather what these professionals recommended … the parties do to assist them in dealing with their personal shortcomings and to present to the Court a better position [sic] to parent the child.
[137] Later he held (p.8):
These recommendations were made on [sic] June 2017. Neither party have done [sic] any of what is suggested. Even if the assessors were possibly wrong in their conclusions, the parents could have come to court today and [said],''I disagree with their findings, but I have done all or even some of what they have recommended as I will do whatever is needed to be reintegrated with my child". They chose to do nothing.
[138] By finding that the parents should have acted on even some of the recommendations of the assessors, the motion judge was implicitly accepting that those recommendations were valid. In my respectful view, the motion judge erred by concluding that there was no need to cross-examine on the report because it was not being relied upon by the Society, while at the same time relying upon it himself in this way.
[139] Unfortunately, the motion judge was not the only one to rely on the report. Counsel for both parents also relied on it. In his submissions, counsel for Mr. M.B. sought to soften Mr. M.B.'s attitude towards the Society by pointing out that he had been diagnosed by one of the assessors as suffering from PTSD, induced by his own involvement in the child protection system. He also relied on that assessor's report that he was able to calm Mr. M.B. down with the proper approach.
[140] So, too, did counsel for Ms. B.. She relied on part of the report that indicated that her client's cognitive potential might have been higher than the assessment tools revealed. She also relied on the psychologist's assessment that Ms. B. is willing and able to seek out help, if necessary.
[141] Given the reliance by the parties on parts of the report, it is understandable how the motion judge might do the same. Nonetheless, in my view, it was improper for him to distinguish the cases relied upon by counsel for Mr. B. on the basis that the report was not fundamental to the Society’s case and yet to grant the order sought by the Society based, in part, on the failure by the parents to act on any of the recommendations contained in it.
Conclusion
[142] Summary judgment motions are available in child protection matters just as they are in other family cases. However, some child protection matters can be dealt with more summarily than others.
[143] As with all summary judgment motions, the motion judge is required first to determine what the legal and factual issues are and then to decide whether those issues can be resolved without having a trial, using the fact-finding powers under the rule, if necessary. That was not done here. Had it been done, the motion judge might have concluded that it was necessary to hear some viva voce testimony in order to resolve the factual issues on which there was contradictory evidence.
[144] I see no alternative but to remit this case back to the Ontario Court of Justice for determination by a different judge. If the Society still wishes to proceed with a summary judgment motion, hopefully my detailed review of the evidence will assist the motion judge to determine if there is a genuine issue requiring a trial.
[145] I note that no order was made under s. 121(4) of the CYFSA, staying the decision of the Ontario Court of Justice beyond the 10 day period set out in s.121(3). In making the order set out below, I assume that the child has not been placed for adoption. If that assumption is wrong, the Society should advise both courts in writing immediately.
Order
[146] The appeal is allowed. The matter is remitted to the Ontario Court of Justice for determination before a different judge.
Ellies J. Released: February 27, 2019
Cited Cases and Legislation
Legislation:
- Child and Family Services Act, R.S.O. 1990, c. C.11
- Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14
- Courts of Justice Act, R.S.O. 1990, c. C.43
- Evidence Act
- Family Law Rules, O. Reg. 114/99
- Rules of Civil Procedure, R.S.O. 1990, Reg. 194
Case Law:
- Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165
- Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) (1996), 139 D.L.R. (4th) 534 (Ont. Ct. Gen. Div.)
- Children's Aid Society of Algoma v. F.(B.), [2004] O.J. No. 2865, 2004 Carswell Ont 2786 (Ct. J.)
- Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (S.C.)
- Children's Aid Society of Niagara Region v. S.C. and B.M., 61 R.F.L. (6th) 328 (Ont. S.C.)
- Children's Aid Society of Nipissing v. M.M., [2000] O.J. No. 2541 (Ont. Ct. Gen. Div.)
- Children’s Aid Society of Simcoe v. C. S., [2001] O.J. No. 4915 (Ont. S.C.)
- C.R. v. Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357
- Heritage Mountain Lodges Inc. v. Sookram, [1996] O.J. No. 1107 (Gen. Div.)
- Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235
- Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87
- Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A.)
- Jewish Family and Child Service of Toronto v. R.A. and J.G., [2000] O.J. No. 6045 (Ont. C.J.)
- Jewish Family and Child Service of Toronto v. R.A. and J.G., [2001] O.J. No. 41 (Ont. S.C.)
- Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Div. Ct.)
- Kondovski v. Kondovski, [2006] O.J. No. 2973 (S.C.)
- Nogdawindamin Family and Community Services v. P.M., 2018 ONSC 34
- R. v. Palmer, [1980] 1 S.C.R. 759
- Re. Genereux and Catholic Children's Aid Society of Metropolitan Toronto (1985), 53 O.R. (2d) 163
- Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014
Footnotes
[^1]: There are several indications in the record that Mr. M.B. may be suffering from throat cancer. [^2]: The Society received information from two other Societies that Mr. M.B.'s mother had also physically abused him, but this is not substantiated in any of Mr. M.B.'s affidavits (see affidavit of Maurice Laframboise, dated January 19, 2016, at para. 11 (e)). [^3]: At p. 8 of the s. 54 assessment report, referred to below, Mr. M.B. is quoted as saying that he is now a social drinker. The Society did not allege that Mr. M.B. currently has a substance abuse problem, nor did the motion judge make reference to Mr.M.B.’s use of alcohol or drugs. Therefore, nothing turns on this evidence in the context of the appeal. [^4]: In the s. 54 assessment, referred to later in these reasons, at p. 23, the authors state that Mr. M.B. showed them a photo of the child and acknowledged that the Society does not believe the child is his. The report also indicates that Mr. M.B.'s mother advises that Mr. M.B. also fathered a daughter when he was very young, whom she has never met (p. 30). [^5]: The s. 54 assessment, at pgs. 13-14, indicates that another Society investigated allegations made by a step-daughter of Mr. M.B.'s (most likely the daughter of his second wife) on a number of occasions, but that the allegations involving Mr. M.B. were never verified and the files were therefore closed. [^6]: See the affidavit of Shannon Lachance, sworn January 31, 2017, para. 14. [^7]: See the affidavit of Shannon Lachance sworn March 2, 2017, at para. 23. [^8]: In the applied program, in the case of Ms. B.. [^9]: The May 7 trial management conference endorsement does not mention this, but during her submissions on May 22, Society counsel acknowledged that she had indicated during the conference that the Society would be filing "at least" one other affidavit. Regardless of whether it was one or three, if it was within the contemplation of the court or the parties that the Society would be permitted to serve affidavits up to three days before the parents were required to serve their responding materials, that makes my point about the deadlines being too short even stronger. [^10]: See the affidavit of Brittany Billingsley dated May 4, 2018, para. 63.
