WARNING

Prohibitions under the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1 apply to this decision:

Prohibition re identifying child 87(8) 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.

Prohibition re identifying person charged 87(9) 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.

Transcript 87(10) No person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise.

Offences re publication 142 (3) A person who contravenes subsection 87 (8) or 134 (11) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT OF APPEAL FOR ONTARIO

DATE: 20210610 DOCKET: C69175

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Children’s Aid Society of Algoma Applicant/Respondent (Respondent)

and

G.C. Respondent/Appellant (Appellant)

and

C.P., S.B., and Conseil des Abenakis D’Odanak Respondents (Respondents)

Counsel: Eric McCooeye, for the appellant Jennifer Mealey, for the respondent Children’s Aid Society of Algoma No one appearing for the respondent C.P. No one appearing for the respondent S.B. No one appearing for the respondent Conseil des Abenakis D’Odanak Catherine Bellinger and Liisa Parisé, for the respondent Office of the Children’s Lawyer

Heard: June 2, 2021 by video conference

On appeal from the order of Justice Annalisa S. Rasaiah of the Superior Court of Justice, dated February 3, 2021, dismissing an appeal from the order of Justice John Kukurin of the Ontario Court of Justice, dated November 3, 2019.

REASONS FOR DECISION

[1] The Children’s Aid Society of Algoma (“the Society”) applied to have three of the appellant’s children found to be in need of protection on the grounds that they are at risk of sexual harm on account of their father under s. 74(2)(d) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. (the “CYFSA”). The motion judge made this finding on a summary judgment motion. Orders as to supervision and access have yet to be made.

[2] The appellant’s first appeal of this order, brought pursuant to s. 121 of the CYFSA, was dismissed. He appeals that decision to this court: Courts of Justice Act, R.S.O. 1990, c. C-43, s. 6(1).

[3] For the reasons that follow, the appeal is dismissed.

Background

[4] The appellant is the biological father of three children: K.P, born in 2008; O.C., born in 2013; and J.H.C., born in 2015. K.P.’s mother is C.P., while O.C. and J.H.C.’s mother is S.B.

[5] The Society brought child protection applications in respect of each child: K.P.’s was brought on the grounds of actual sexual harm and risk of sexual harm in 2013; the other two applications were based on risk of sexual harm shortly after each child was born. All three applications were ordered to be tried together.

[6] The appellant has not been convicted of any sexual offences, though charges have been laid against him twice. He was charged with historical sexual offences against two pre-teen girls, but the charges were stayed for delay. Later, the appellant was charged with sexual offences against K.P., but the Crown withdrew the charges. Since 2013, two other women have made sexual misconduct allegations against the appellant. Both alleged the misconduct occurred when they were under 18.

[7] Well before the summary judgment motion, the appellant was ordered to undergo a psychosexual assessment. This assessment involved phallometric testing. The assessor, Dr. Robert Dickey, was of the opinion was that the appellant suffers from pedohebephilia.

The Summary Judgment Motion

[8] In support of its motion for summary judgment, the Society relied on voluminous materials, including the appellant’s psychosexual assessment and affidavit evidence from three complainants who alleged historical sexual assault. [1] The motion was only concerned with the risk of sexual harm (s. 74(2)(d) of the CYFSA). The motion judge concluded there was no genuine issue requiring a trial to determine this question. He made the finding under s. 74(2)(d).

[9] The motion judge delivered extensive and detailed reasons in which he considered his jurisdiction to grant summary judgment, as well as the proper approach to summary judgment motions in child protection cases mandated in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497. He sifted through a considerable body of documentary evidence and made many admissibility determinations. As a result of this process, the motion judge based his finding on the first-hand affidavits of three adult women who reported events from many years ago when they were between the ages of 9 and 12, a “willsay” statement (and an accompanying police occurrence report) from another woman describing historical sexual abuse, the psychosexual assessment, and the appellant’s response.

[10] The motion judge analyzed this evidence through the lens of Kawartha-Haliburton and concluded, at para. 146:

In summary, I conclude that the society has provided sufficient evidence for me to conclude that there is no genuine issue that requires a trial with respect to whether the [appellant] is a risk of sexual harm to his three children. I arrive at this conclusion cautiously realizing that to do otherwise is contrary to the directive guidance of the appellate court in the Kawartha case. I am satisfied that, if a trial were held on this issue of a finding in need of protection on account of a risk of sexual harm, the same result would be inevitable and there would be no realistic possibility of an outcome other than that sought by the applicant society. I am confidant that I have used extreme caution to assess the admissibility of various pieces of evidence presented on this summary judgment motion and have rejected what is inadmissible in law, and have given appropriate judicial weight to what is admissible, again in law. I have gauged the admissible evidence on both sides, and have given reduced weight where deserved. I have applied the jurisprudential principles that have been established over several decades and that still apply to summary judgment motions in child protection cases. I have applied these to the [appellant’s] responses to this motion and have found that he has not established with specific facts, that there is a genuine issue that requires a trial. Finally, I have been able to reach what I consider a fair and just determination on the merits on a motion for summary judgment….

[11] The appellant raised numerous issues on his first appeal, all of which were dismissed. In a nutshell, the appeal judge determined that the motion judge adopted the proper approach to the summary judgment power in child protection proceedings, appropriately framed the issue before him, made no errors in his evidentiary rulings, and properly weighed and assessed the evidence he admitted.

Analysis

[12] The appellant raised many of the same issues from his first appeal on this appeal. However, at the hearing of this appeal, he focused on one ground – whether the motion judge and the appeal judge properly considered the principle of proportionality in the summary judgment proceeding.

[13] The appellant submits that, given the significant consequences of a finding under s. 74(2)(d) of the CYFSA, the summary judgment procedure is an unsuitable vehicle for adjudication. He submits that the judges below failed to appreciate the unfairness in proceeding in this manner. Principally, the appellant relies on his inability to cross-examine the affiants who made allegations of sexual impropriety against him. He also criticizes the appeal judge’s approach to certain findings made by the motion judge, specifically, those that related to the credibility of witnesses.

[14] The appellant originally indicated his intention to cross-examine two of the female affiants. This request was subsequently abandoned without explanation. Before this court, appellant’s counsel submits that the request was abandoned because the appellant could not afford the costs associated with cross-examining witnesses in different parts of the province and then obtaining transcripts of their evidence. However, this was not put on the record before the motion judge; it was not raised with the appeal judge. Accordingly, there is no foundation for this court to evaluate this claim.

[15] Nonetheless, assuming impecuniosity, relief might have been obtained in the summary judgment provision in the Family Law Rules, O. Reg. 114/99. These rules apply to proceedings under Parts V, VII, and VIII of the CYFSA: r. 1(2)(a)(ii). Rules 16(6.1) and (6.2) gives a judge hearing a summary judgment motion the following powers:

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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. 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.

For an example of the use of a mini-trial in this context, see The Children’s Aid Society of the Districts of Sudbury and Manitoulin v. V.T., 2018 ONCJ 220, at paras. 10-12. See also r. 20: Questioning a Witness and Disclosure.

[16] It was open to all counsel on the motion to request that the motion judge direct a mini-trial and order that certain witnesses be required to give oral evidence. This was not done.

[17] The appellant submits that the appeal judge erred by approving the motion judge’s approach to assessing the evidence in relation to the evidence of one of the affiants. In the face of the affiant’s evidence, the motion judge said, at para. 94: “The [appellant’s] response to these allegations … is that he does not have any knowledge of the events described … and has no memory of them, but nevertheless denies the incident and any wrongdoing.” Later in his reasons, the motion judge returned to the affiant’s evidence, saying it was “very persuasive, basically uncontradicted, and not seriously attacked by [the appellant]”: at para. 130. He explained that the appellant had the opportunity to cross-examine the affiant, but chose not to follow through, despite the fact the evidence was “very damaging to him”. Instead, the appellant merely denied the allegation happened. But in this case, a denial was “not enough”.

[18] The appellant submits the motion judge improperly found the affiant’s evidence was “uncontradicted” and that the appellant’s denial of wrongdoing was “not enough”. He says there are circumstances where a denial may be the only option, as it may be impossible to provide specific facts to rebut the allegation. As a result of this error, the motion judge wrongfully gave enhanced weight to the affiant’s evidence.

[19] The appellant had made similar submissions to the appeal judge – that the motion judge erred in finding the appellant’s denial was insufficient to contradict the affiant’s evidence and in giving the evidence enhanced weight. In addressing this submission, the appeal judge referred to r. 16(4.1), which provides:

(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. [Emphasis added.]

[20] Turning to the motion judge’s decision on this issue, the appeal judge said, at paras. 54-55:

Contrary to the appellant’s position, [the motion judge] expressed and acknowledged that he appreciated that sometimes a denial in some circumstances may be the only reasonable response and perhaps the only possible response. However, in this case, he concluded that [the affiant’s] evidence was not seriously attacked by [the appellant], when he had the opportunity to do so, putting your best foot forward is required on a summary judgment motion.

It was not incorrect to address that [the appellant] was fully aware of his right to cross-examine the affidavits and had previously taken steps in the proceeding for same, only to have abandoned them. I do not agree that [the motion judge] expressed that the evidence’s weight was enhanced or that he enhanced same for a failure to seek a cross-examination of the evidence filed on the motion before the hearing of it. [Emphasis added.]

We agree with this reasoning. It was open to the motion judge to deal with evidence in the manner that he did.

[21] The appellant made numerous other submissions in his factum. Some of them deal with the general approach of the motion judge and the appeal judge to summary judgment in child protection proceedings; others attack admissibility decisions and the weighing of the evidence that was admitted.

[22] We agree with the appeal judge that the motion judge applied the correct test for summary judgment and that the motion judge’s reasons demonstrate a proper application of the principles discussed in Kawartha-Haliburton.

[23] As for the appellant’s complaints about the admissibility of various pieces of evidence, we agree with the appeal judge when she said, at para. 50:

Further, the reasons demonstrate that [the motion judge] applied a cautious approach to the evidence, carefully screening the voluminous record, making admissibility rulings against a significant portion of [the Society’s] filings, including affidavits that [the appellant] would describe as “overpowering” and written by “professional affidavit writers”, that would “create imbalance”. [Emphasis added.]

[24] After ruling that the bulk of the evidence presented by the Society was inadmissible, the motion judge engaged in a careful balancing of what remained. Rule 16 permitted the motion judge to make findings of credibility and to weigh the evidence of the affiants, and his conclusions are entitled to deference. The evidence that he accepted formed a proper foundation for his finding under s. 74(2)(d) of the CYFSA.

Disposition

[25] The appeal is dismissed. None of the parties seek costs. Accordingly, no costs order is made.

“Doherty J.A.” “Gary Trotter J.A.” “J.A. Thorburn J.A.”

[1] Two of these women were the complainants who made the historical allegations that resulted in a stay, referred to in para. 6.