WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

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.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.

ONTARIO COURT OF JUSTICE

DATE: May 4, 2015 (Amended June 1, 2015)

COURT FILE NO.: Toronto C60417/13

BETWEEN:

Jewish Family and Child Service

Applicant,

— AND —

S.K. and J.K.

Respondents

Before: Justice Roselyn Zisman

Heard on: April 7, 2015

Reasons for Judgment released on: May 4, 2015

Counsel:

• Haley Gaber-Katz — counsel for the applicant society
• Anthony Macri — counsel for the respondents
• Samira Ahmed — counsel for Justice for Children and Youth, legal representative for the child

DECISION

Zisman J.:

1. Introduction

[1] The Jewish Family and Child Services ("JF&CS" or "the society") has brought a motion for summary judgment pursuant to subrule 16 of the Family Law Rules ("FLR") pursuant to its amended Protection Application dated November 23, 2014 regarding both the protection finding and disposition.

[2] The society seeks the following orders:

a) the statutory findings pursuant to subsection 48(3) of the Child and Family Services Act ("CFSA"), be made in accordance with the society's amended protection application;

b) a finding that the child R.C.K. ("R.") born […], 1999, is in need of protection pursuant to subsections 37(2)(f), (f.1), (g), (g.1), (h) and (i) of the CFSA;

c) an order that the child R. be made a Crown ward and placed in the care of the JF&CS;

d) an order that access between the child and the respondents ("the parents") and her family be at the discretion of the JF&CS, including supervision thereof and in accordance with the child's wishes and treatment recommendations;

e) an order pursuant to section 60 of the CFSA that the parents pay $3,000 per month as of December 1, 2014, with credit for any payments already made, to assist with the care of the child while she is in the care of the JF&CS up to her eighteenth birthday; and

f) an order restraining the parents from contacting the child's placement and/or treatment providers without the prior written approval of the JF&CS.

[3] The society advised at the outset of this motion that it wished to adjourn the request for an order of payment by the parents as the preliminary order that the parents produce a copy of their financial statement, made by the case management judge Justice Carolyn Jones, had been appealed and that the appeal was scheduled to be heard May 5. The society also advised that at the present time it was not pursuing the restraining order against the parents as it had previously pursued such an order reluctantly and in the near future, the treatment providers for the child would be changing.

[4] The child supported the position of the society, but sought an order requiring her parents to arrange specified sibling access with her and her brothers, separate and apart from her parents. The child also sought an order that her parents should not be permitted to communicate with her treatment providers unless both she and the JF&CS consent.

[5] The parents filed a preliminary motion seeking an order that much of the society's materials be struck, that the society be required to file amended pleadings and that the parents then be given an opportunity to respond to the amended summary judgement motion. The parents also requested the summary judgement motion be adjourned until the society had responded to its Request of Admit. In the event this relief was not granted, the parents requested an order that the summary judgement motion be dismissed on the basis that there were genuine issues that required a trial.

[6] Counsel for the society and the child objected to any adjournment of the summary judgement motion. R. was present throughout the hearing along with her worker.

[7] The preliminary motion by the parents was argued and I advised counsel that my rulings would be dealt with as part of my decision on the summary judgement motion as I was not prepared to further delay the proceeding.

[8] The society filed a summary judgement motion record that contains the following materials:

a) Protection Application and Plan of Care dated February 15, 2013;

b) Amended Protection Application and Amended Plan of Care dated November 23, 2014;

c) Answer and Plan of Care by the Respondents dated December 9, 2014;

d) Answer and Plan of Care by the child R. dated March 19, 2013;

e) Orders, Endorsements and Reasons for Judgment (tabs 7 to 53);

f) Notice of Summary Judgement Motion;

g) Notice of Intention to Rely on Practioners Reports;

h) Affidavit of Samara Miller dated January 29, 2015 (family service worker);

i) Affidavit of Keren Wisniewski dated January 29, 2015 (child in care worker);

j) Affidavit of Cilla Archa dated February 11, 2015 (service manager);

k) Affidavit of Dawn Hunt dated January 22, 2015 (director of Avalon Residential Treatment Programs);

l) Affidavit of Andrea Smith dated January 27, 2015 (director of Falconhurst Residential Program);

m) Affidavit of Terri Storey dated January 29, 2015 (director of Terrace Youth Residential Services);

n) Affidavit of Dr. Katharine Cochrane-Brink dated January 30, 2015 with transfer and discharge summaries and curriculum vitae attached (staff psychiatrist at Youthdale Treatment Centres);

o) Affidavit of Dr. Howard Marcovitch dated January 27, 2015 with psychological assessment of the child and curriculum vitae attached (psychologist retained by respondent parents);

p) Affidavit of Dr. Shoshana Urson dated February 11, 2015 with clinical notes and letter attached and curriculum vitae (psychiatrist at Mackenzie Richmond Hill Hospital);

q) Affidavit of Respondent S.K dated March 18, 2013 with letters of support attached;

r) Affidavit of Respondent J.K. dated March 18, 2013;

s) Reply affidavit of Samara Miller dated March 30, 2015 with correspondence and the endorsement of March 4, 2015 and reasons for decision of Justice C. Jones dated March 16, 2015;

t) Affidavit of Jeff Mintz dated March 31, 2015 (Direct Service Manager); and

u) Affidavit of Nicole Jarrett-Fisch dated March 31, 2015 (law clerk).

[9] On behalf of the child, a summary judgement motion record with the following materials was filed:

a) Notice of Motion for sibling access or in the alternative the appointment of the Office of the Children's Lawyer for her siblings;

b) Notice of Intention to Rely on Practitioners Reports (treatment email from Dr. Boucher provided by court order dated June 18, 2013);

c) Affidavit of R. dated March 9, 2015;

d) Affidavit of Dr. Catherine Boucher dated March 5, 2015 with correspondence and unsworn curriculum vitae attached (formally a consulting psychiatrist with Terrace Youth Residential Services and currently practising in New Brunswick);

e) Affidavit of Marina Nikolova dated March 10, 2015 with Dr. Boucher's sworn curriculum vitae attached (law clerk); and

f) Responding affidavit of Marina Nikolova dated April 1, 2015 with correspondence attached relating to child's motion for sibling access.

[10] The parents filed a summary judgement motion record following materials:

a) Notice of Motion to strike the summary judgement motion in its entirely or potions thereof of both the summary judgement motion of the society and the child;

b) Affidavit of S.K. dated March 23, 2015;

c) Affidavit of J.K. dated March 23, 2015; and

d) Discharge summary of Dr. Nasreen Roberts dated March 22, 2013.

[11] All counsel filed facta and books of authorities.

[12] I have reviewed all of the materials filed and considered the submissions of all counsel in reaching my decision.

2. Background

[13] The basic background facts are either admitted or not disputed.

[14] The respondents are the parents of the child R., who is before the court and of her biological siblings G., who is 15 years old and D., who is 14 years old. D. and G. are not before the court.

[15] The parents adopted R. and her biological siblings approximately 13 years ago. R. was three years old at the time.

[16] The JF&CS became involved with the family on May 11, 2012, when the society received a telephone call from R.'s school that she had made an allegation of sexual assault against her father.

[17] The JF&CS investigated and did not verify the allegation. The police also investigated and no charges were laid.

[18] On May 14, 2012, R. was admitted to the Hospital for Sick Children as she attempted to self-harm herself by swallowing Midol. R. was discharged and began to see her therapist Dr. Jasmine Eliav.

[19] On June 12, 2012, Dr. Eliav stated that R. required inpatient treatment as she was engaging in very high risk behaviour and had a plan to commit suicide.

[20] On July 13, 2012, R. was admitted to the Youthdale Transitional Psychiatric Unit. While there, R. continued to make allegations of sexual abuse against her father and allegations of physical abuse against her mother. The society did not verify these allegations.

[21] On September 14, 2012, R. was moved to the Youthdale 592 residence. Towards the end of November, her behaviours began to escalate. She was not attending school, went absent without permission and was suicidal. She was readmitted to the Hospital for Sick Children.

[22] On November 27, 2012, R. was admitted to the Youthdale Acute Support Unit. While there, R. continued to engage in self-harming behaviour and at times required constant supervision.

[23] As of the fall of 2012, R. began to struggle with family visits and meetings. R. became preoccupied with who her legal guardians would be and that she wanted to be in the care of the JF&CS. She did not want her parents involved in her treatment.

[24] R. contacted the Office of the Provincial Advocate for Children who advocated that R. did not want to go home and wanted to be in the care of the JF&CS. R. retained a counsel, Samira Ahmed, at Justice for Children and Youth.

[25] In an attempt to address this issue, the society, the parents and Youthdale developed a plan that the society would be a partner in R.'s treatment along with her parents and that Youthdale would hold parallel meetings for the parents so that R. would not need to be in a room with her parents. However, R's preoccupation with the fact that she wanted to be in the care of the society and that she did not want her parents involved in her treatment was so all encompassing that R. could not engage in appropriate treatment. As a result, Youthdale set a discharge date of February 25, 2013.

[26] R., her parents and the society agreed that R. required residential treatment and that she could not return home. As a result, the society commenced a Protection Application.

[27] Following R.'s discharge from Youthdale, she has resided in the following placements:

a) On February 20, 2013, at Bayfield Treatment Centre - although admitted to the Kingston General Psychiatric Hospital Mental Health Unit from March 13 to 22, 2013;

b) On March 22, 2013, transferred to Terrace Residential Youth Services;

c) On September 5, 2014, transferred to Enterphase;

d) On November 5, 2014, R. was admitted to the Toronto East General Hospital;

e) On November 13, 2014, R. was transferred to the Youthdale Acute Support Unit;

f) On December 11, 2014, R. was transferred to the Youthdale Transitional Unit where she is currently residing.

[28] It is the opinion of Youthdale that R. no longer qualifies for secure residential treatment but pending the results of this motion that she will not be moved.

[29] All parties agree that R. needs to continue to reside in a treatment facility and that she cannot return home.

[30] R. has not seen her father since June 2014 and her mother since September 2014. There has been some sporadic telephone access with both parents.

[31] R. is prepared to see her mother in a supervised access setting but her parents refuse any access that is supervised and any access that does not include both parents.

[32] R. was prepared to engage in counselling with her mother. However, the mother insisted on choosing the therapist and R. would not agree to these terms. Also the mother stated that if R. or the society began to dictate terms she would withdraw her offer to engage in counselling.

[33] Although there is a dispute with respect to the cause of R.'s mental health issues, all parties agree that she has significant and complex emotional and mental health needs. She has engaged in serious self-harming and self-destructive behaviours. There have been various diagnoses that include attention deficit hyper disorder, social anxiety disorder, major depressive disorder, attachment issues, and non-verbal learning disorder. She exhibits traits of borderline personality disorder and is being monitored for obsessive compulsive disorder and post traumatic disorder.

[34] Although there is a dispute about the cause of R.'s difficulties with her parents, she is rejecting her parents and refusing to follow any treatment plan set out by them.

[35] Although there is a dispute about the cause or who is at fault, there is a complete break-down in the relationship between the parents and the society. The parents are not willing to co-operate or work with the society and do not see the need for any involvement by the society.

3. Litigation History

[36] The society commenced a Protection Application on February 15, 2013, and sought a finding of need for protection pursuant to section 37(2)(i) and a six-month supervision order. The society also sought an order that the parents contribute financially to the cost of R.'s care and that access between R. and her parents be in the discretion of the society in accordance with R.'s wishes and her treatment needs.

[37] On February 20, 2013, on consent, R. was placed in the care of the JF&CS on a temporary without prejudice basis with access in accordance with R.'s wishes and her treatment needs. Access to her siblings was to be encouraged if it was safe. There was an agreement in principle that the parents would be consulted regarding R.'s treatment. The plan at the time was for the parents to find an appropriate residential treatment facility for R. and then the society would withdraw its Protection Application.

[38] On June 17, 2013, the JF&CS brought a motion to withdraw its Protection Application on the basis that the parents had secured an appropriate treatment facility in Utah called Second Nature. This was supported by the parents but opposed by R. The court attendance was adjourned to the next day so that counsel for the child could review the motion materials.

[39] On June 18, 2013, counsel for the child advised the court that Dr. Boucher, who was the child's treating psychiatrist, would only provide a summary of her treatment pursuant to a court order. On consent, an order was made for Dr. Boucher to release a summary of her involvement in the treatment of R. and her assessment of the child's needs and presentation.

[40] On that day, Dr. Boucher emailed her report and it was released to all parties. The report indicated that based on R.'s strong beliefs and her perceived experience of trauma that forcing her into treatment would be deleterious to her mental health.

[41] On June 19, 2013, the society sought an adjournment to consider their position.

[42] On July 17, 2013, the matter returned to court and the society determined that it would not proceed with its motion to withdraw. On that date, there was also a motion by the society for a continuation of the payment order by the parents as they indicated they were no longer prepared to pay voluntarily. This was ultimately settled and the parents agreed to continue to pay $1,500 per month.

[43] The society also brought a motion to exclude the child from all further court attendances that was supported by the parents but opposed by the child. The society was not successful on this motion and a protocol was established with respect to R.'s participation in the court.

[44] The matter returned to court for case conferences on September 9 and November 6, 2013. There were three potential motions by that time: the parents' motion for a further psychiatric assessment of the child, the child's intended motion for sibling access and a motion to appoint the Office of the Children's Lawyer for the child's siblings, and the society's possible motion for the release of Dr. Boucher's records. A date for arguments for any of these motions was set.

[45] Ultimately the parents decided not to proceed with their request for a further psychiatric assessment and the issue of sibling access was settled.

[46] On December 16, 2013, the case management Judge made an order that, pursuant to section 70 of the CFSA, Dr. Catharine Boucher deliver her notes and records in a sealed envelope to be examined by the judge. The society's motion for production was opposed by the child but supported by the parents.

[47] The motion was argued on its merits on January 13, 2014, with further submissions made after child's counsel and the child were permitted to examine all of the records. After examination of the records, the child agreed to the majority of the records being released except for a letter written by the child to her father as part of her clinical treatment and a clinical note of April 4, 2013, relating to the child. An order was also made that the records not be used or disclosed in any other proceeding. After further submissions, a further order was made that the parents would only be entitled to receive a redacted copy of the April 4 clinical note.

[48] A temporary care and custody motion was scheduled for February 26, 2014, but did not proceed pending determination of the production of Dr. Boucher's records.

[49] On April 9, 2014, the child brought two motions for the transfer of the case from the JF&CS to the Children's Aid Society of Toronto ("CAST") and that she be made a party to the proceedings. Those motions were adjourned and timelines set.

[50] The temporary care and custody motion was heard on April 9 and 25, 2014, and the decision was reserved. The society's position was that the child be returned to the care of her parents subject to terms of supervision that included that the child would remain at her current placement and that the parents work cooperatively with the society. The parents sought an order placing the child in their care with no conditions and were opposed to any form of supervision or ongoing contact with the society. The child took the position that she wished to remain in the care of a child protection agency, that she wished to remain at her current placement and that she did not wish to be in the care of her parents even if she was not living with them. Further, she did not want her parents making treatment decisions for her.

[51] On May 10, the reasons for judgement on the temporary care and custody motion were released. The court held that the involvement of the society was necessary as a protective factor in the child obtaining treatment as the child was still refusing to have her parents involved in certain aspects of her treatment. The court further held that a supervision order would not be successful or sufficiently protective of the child in view of the parents' position that they would not accept the society's involvement, if the child was placed in their care, and would not accept direction or oversight of the society. R. was ordered into the care of the JF&CS with access at the discretion of the society subject to R.'s wishes and as agreed upon with her parents.

[52] The parents appealed the order. While the decision on the appeal was pending, several further motions were filed and adjudicated upon.

[53] On July 16, 2014, the child's motion for a transfer from JF&CS was heard. Counsel for the child did not proceed with her motion that the child be added as a party. The parents took no position. Both the JF&CS and the CAST opposed the motion. Counsel for the child submitted that there was a potential conflict between the JF&CS and the parents due to the mother having been on the Board of Directors from 2003 to 2005 and having remained a close friend of the current past president and that the mother made charitable donations to the JF&CS. It was also submitted that the child had lost confidence in the JF&CS.

[54] At the court hearing on July 24, 2014, the court rendered its decision dismissing the motion. The court held that any transfer would involve an inevitable delay due to the complexity of the case and the amount of materials that has already been filed. Further, the court recognized the importance of services being provided to respect the child's religious and cultural background.

[55] On July 24, 2014, the JF&CS filed an urgent motion to restrain the parents from contacting potential placements that was resolved on a temporary without prejudice basis. Subsequently, on September 4, 2014, the parents agreed not to contact any placements that were being explored without the advance consent of the society and as a result, the society withdrew the motion.

[56] The JF&CS also brought a motion to require the parents to remove the child protection materials (including affidavits from the court proceeding) from the College of Physicians and Surgeons complaint regarding Dr. Boucher. As the parents voluntarily agreed to remove the materials the motion was subsequently withdrawn.

[57] On September 4, 2014, the parents' motion was heard to remove Samira Ahmed, child's counsel from Justice for Children and Youths and appoint counsel from the Office of the Children's Lawyer. This motion was dismissed.

[58] On October 6, 2014, the appeal of the temporary care and custody motion by the parents was heard by Justice Kiteley. Both the JF&CS and the child took the position that the appeal should be dismissed. Counsel for the parents submitted that, although not in any of the affidavits filed, R. be placed in the care of her parents subject to the supervision of the JF&CS as they were desperate to be able to resume care of their child. Their counsel acknowledged that they had demonstrated hostility and lack of cooperation and resistance, but they wanted to be involved in R.'s care. They were willing to cooperate with caregivers and not force R. into a treatment plan to which she was opposed. Fresh evidence was heard on the appeal. On October 8th, Justice Kiteley released her short written endorsement dismissing the appeal and found that:

R. will be 16 in January 2015. Although counsel have co-operated to accelerate this appeal and the court has made a date available at the earliest opportunity, this appeal has meant that since the decision on May 10, 2014, R.'s treatment has been fraught with controversy largely because of the positions taken by the parents. It is critical that the JF&CS be immediately able to take all necessary steps available to it to pursue its plan of care without opposition or conflict so as to attempt to compensate for the disruption in the last 5 months. It is not necessary for the appellate court to write detailed written reasons in the circumstances of this case where the reasons appealed from are sound and consistent with the law. The best interests of R. demands that a decision on the appeal be released promptly.

[59] On September 17 and 18, 2014, the parents served the society with several motions returnable on October 14, 2014. There were five contempt motions against five separate staff members of the JF&CS, a motion striking Dr. Boucher's email letter dated June 18, 2013, from the court record and a motion that R. be returned to the care of the parents and placed in a treatment facility in Utah. All of the motions sought costs against the JF&CS.

[60] On September 24, 2014, the JF&CS brought a Form 14B motion to set a new date for the parents' motions as the date had not been canvassed with counsel. The JF&CS also sought an order that no party be permitted to bring any motions without first obtaining leave of the court. The JF&CS sought leave to bring a motion to obtain the child's medical records from her former paediatrician. As the doctor ultimately provided these records with the child's consent, the society did not require a motion.

[61] On October 1, 2014, the parents served two further motions. One was a contempt motion against the society as a society and seeking costs. The other motion sought an order dismissing the society's September 24, 2014, Form 14B as well as other forms of relief. There were further Form 14B's filed regarding issues of proper service and the proper relief that could be requested by means of a Form 14B.

[62] On October 3, 2014, the court set the date of October 28, 2014, to hear the parents' five contempt motions and the motion to strike the medical report of Dr. Boucher. The court set the date of October 30, 2014, to hear the parents' motion for the return of R. to their care. The society's motion for production of records was also adjourned to this date. The court set timelines for service and filings. The court also ordered that the scheduling of any further motions would be done with the oversight of the court. For any motion not scheduled during a court attendance, counsel must seek authorization of the court to schedule such a motion. A detailed order was made about the information that had to be addressed in the Form 14B including mutually convenient dates for all parties and counsel.

[63] On October 21, 2014, the society filed a Form 14B at the request of the parents seeking an adjournment of the temporary motions scheduled for October 28 and 30, 2015. New dates and timelines were set for the various motions as well as limits on the amount of time allowed for submissions. The court further endorsed that it would not be appropriate to set a date for a settlement conference while the motions for temporary relief were outstanding. A settlement conference was set for December 9, 2014.

[64] On November 1, 2014 the court made in-Chambers endorsements relating to various Form 14B motions. For convenience, the court referred to these as motions A to E.

[65] Motion A was the society's request for production of medical records of Dr. Tolkin, the child's former paediatrician, pursuant to section 74 of the CFSA to ensure that the society had a complete medical history. The parents disputed that the records were relevant. In the parents' motion C, they sought an adjournment of the society's motion A, as they were not available on November 5, 2014, and for costs against the society. Despite the fact that this was the parents' second request for an adjournment, the society was prepared to consent to a brief adjournment. These motions were adjourned to November 19, 2014. The parents request for costs against the society was denied.

[66] Motion B contained claims by the parents that mostly had been adjudicated upon or were the subject matter of other pending motions. However, there were some outstanding claims by the parents such as for finding that the society acted in bad faith regarding serving documents so as to interfere with a religious holiday, a request to permit video and audio evidence to be submitted and concerns that the child was only brought to court for the society's motions and not the parents' motion. The parents did not indicate that they wished to adjourn these claims despite the fact that, with respect to motions A and C, they stated they were not available on November 5, 2014. Another timetable was set if the parents wished to proceed with any of the relief in motion B and they were required to file a confirmation if they intended to proceed.

[67] Motion D served by the parents related to access but appeared not to have been filed with the court. The parents served a revised motion D seeking to vary the current access order to seek full and unsupervised access and contact through forwarding letters, notes, meals, clothes and other items. The parents included a proposed access schedule. The parents also included a motion pertaining to the child's psychiatric treatment and orthodontic treatment. As this motion related to substantive relief that was not on consent, the court held that it was not properly brought as a Form 14B motion. The parents were permitted to bring either a proper motion for the relief requested on their Form 14B or schedule a case conference. The matter was scheduled for December 11, 2014, another timetable for service and filing was set and the parents were required to file a confirmation if they intended to proceed.

[68] Motion E was a request by the society to schedule a motion for a restraining order against the parents from contacting the child's placement. A previous motion was brought by the society in July 2014 but withdrawn and they were permitted to bring another motion which was scheduled for November 25, 2014. A timetable for service and filings was set.

[69] The court again noted that the proper use of a Form 14B motion was not followed in relation to some of the motions filed and reminded the parties the Form 14B motion are limited to procedural, uncomplicated or unopposed matters.

[70] On November 19, 2014, motions with respect to the parents' contempt motions, the removal of Dr. Boucher's email report and procedural issues were scheduled to be heard as well as the society's motion for a restraining order against the parents. The parents had that day just retained Anthony Macri as their new counsel. Mr. Macri sought an adjournment to review the motion materials and the file. The JF&CS was opposed to the adjournment request. An adjournment was granted to December 9, 2014, on terms that no further materials could be filed. The settlement conference previously scheduled for that date was vacated and the date of December 17, 2014, was set.

[71] On November 25, 2014, the court heard the JF&CS motion to restrain the parents from contacting Enterphase that was the child's residential placement at the time. The court also heard the parents' motion to have the child returned to their care. The decisions were reserved.

[72] On December 9, 2014, the parents' motion for contempt against the JF&CS and 5 named society employees was heard. The motion to strike Dr. Boucher's email report was also heard. The decisions were reserved.

[73] The parents' motions for access and other relief were not heard as the parents failed to comply with the timelines required for the motions to proceed.

[74] The summary judgement motion date was set on December 17, 2014, to be heard on April 7, 2015. A timetable for service and filing of summary judgement motion briefs and facta was set.

[75] On January 20, 2015, the JF&CS brought a motion to compel the parents to serve and file a financial statement as required by the FLR as the society was seeking a payment order from the parents pursuant to section 60 of the CFSA. The parents refused to provide their financial statement. Justice Jones who has case managed this case from its inception ordered the production by February 6, 2015, and the parents were ordered to pay the JF&CS its costs fixed at $500.00. The parents have appealed this order. The appeal decision is not yet available.

[76] On March 4, 2015, counsel for the child filed a Form 14B motion requesting leave to bring a motion on behalf of the child for sibling access. Counsel for the parents responded on their behalf indicating they oppose the motion. Counsel for the society did not respond and were noted as being unopposed. The court endorsed that given the scheduling of the motion for summary judgement, it would not be possible to schedule a motion prior to the summary judgement and in any event if the summary judgement motion succeeds the issue may be moot or if the matter proceeds to trial a further request for such a motion could be made. The motion was dismissed without prejudice to the right of the child to bring a further Form 14B motion or make an oral request at a future court attendance to schedule a motion for sibling access.

[77] On March 16, 2015, Justice Jones released her thorough written decision with respect to 4 interlocutory motions that she heard on November 25 and December 9, 2014.

[78] With respect to the first motion, the society sought a restraining order against the parents from contacting the child's placement at Enterphase, at the time the motion was argued the child had been moved from Enterphase to the Acute Support Unit at Youthdale Treatment Centre and her placement was in flux. The court had subsequently been advised that the society had determined that the child would not be returning to Enterphase and therefore there was no need for the society to pursue this relief. The motion was treated as withdrawn.

[79] With respect to the second motion, the parents sought to vary, pursuant to section 51(6) of the CFSA, the temporary order of the court granted May 10, 2014, placing the child in the care of the society. The parents confirmed that their plan, if the child was returned to their care, was to place the child in a residential treatment facility in Utah despite the fact that she remained unwilling to attend voluntarily. Counsel for the parents confirmed that if the child refused to attend voluntarily they would ensure she attended by force, if necessary. The court dismissed the motion and held that the parents had not met the legal test for a variation as there had been no change in circumstances since the granting of the May 10, 2014, order.

[80] With respect to the third series of motions, the parents sought a finding that the society and 5 of its employees be found in contempt. The parents submitted that the society and its employees were in breach of the provision of the Endorsement of February 13, 2013, that stated that in principle the society would consult with the parents and seek their input in advance of any non-medical or treatment decision for the child. The court held that this provision was not properly a term of the court order despite it being incorporated into the issued and entered order. Further, the court held that the society had made considerable efforts to work collaboratively with the parents and were unable to establish a cooperative relationship with the parents and that ultimately the society had to make timely decisions for the child. The court also held that even if the agreement in principle had been a term of the order, the process of consultation is a bilateral exercise and this was often lacking on the part of the parents since the order has been in place. The court found no breach by either the society or any of its individual workers of the terms of the order of February 20, 2013. All of the contempt motions were therefore dismissed.

[81] With respect to the fourth motion, the parents sought to remove the report of Dr. Boucher filed on June 19, 2014, the court record. This report was filed with the court on the motion made by the society to withdraw its Protection Application. After the receipt of the report, the society sought an adjournment and then determined not to proceed with its withdrawal motion. The court held that there was no process for the parents to now challenge the admissibility of a report filed on a motion that did not proceed. Further, the report was also filed on the temporary care and custody motion and submissions were made by all parties, including the parents with respect to what evidence could be relied upon and the weight to be given to such evidence. At the time it was open to the parents to argue about the admissibility or weight to be accorded to this report. This issue was not raised at the time or on the appeal. The court held that the parents could not re-litigate their case on the temporary care and custody motion or challenge the admissibility of any of the evidence filed on the motion. The motion was dismissed.

[82] On March 10, 2015, counsel for the parents filed a Form 14B motion seeking a date for a voir dire to determine evidentiary objections that he intended to raise with respect to the society's summary judgement motion and that the parents should not be required to file a response to the summary judgement motion until the objections were adjudicated upon. Counsel for the society and the child opposed this request. Counsel for the child submitted in her response that this issue had already been raised with the case management judge when the timetable for filing materials had been agreed upon. Counsel for the parents had been required to serve his response by March 10 and instead filed his Form 14B motion despite having been in receipt of the society's materials since February 13, 2015. In dismissing the motion, I held that in order to properly consider the parents' objections they needed to be understood in the context of the entire case and that the parents' materials needed to be filed. I indicated that all objections would be dealt with during the summary judgement motion. As a result of the parents failure to adhere to the timetable for filing their materials an extension was granted to the parents.

4. The Law and Applicable Legal Principles Regarding Summary Judgement Motions

[83] Subrule 16 of the Family Law Rules allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

[84] Subrule 16(2) specifically confirms that summary judgment is available in child protection proceedings.

[85] Subrule 16(4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[86] Subrule 16(4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

[87] Subrule 16(6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[88] On 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 is on the Society to show there is no genuine issue for trial.

[89] In assessing whether or not a society has met its obligation of showing there is no genuine issue for trial, courts have equated that phrase with "no chance of success", "when the outcome is a foregone conclusion", "plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome than that sought by the applicant".

[90] Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. Justice Hardman, in the case of Children's Aid Society of the Regional Municipality of Waterloo v. T.S. observed at paragraph 5 of that decision that because summary judgment is now explicitly contemplated by subrule 16, this may:

…broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment.

[91] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is no genuine issue for trial must be insufficient to defeat a claim for summary judgment.

[92] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact.

[93] There has recently been some debate in the case law as to whether or not the court should adopt the broader approach to a court's powers on a summary judgement motion, by finding that subrule 16(6) has been bolstered by the new tools the court has pursuant to Rule 20.04 of the Rules of Civil Procedure that permit a court to weigh the evidence, evaluate the credibility of deponents and draw reasonable inferences.

[94] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, has clarified the process of applying the expanded summary judgment rule. The court held that the judge should first determine if there is a genuine issue requiring a trial based on the evidence before her, without using the new fact-finding powers. There will be no genuine issue for trial if the summary judgement process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If there appears to be genuine issue for 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).

[95] Accordingly, the first step under either process is to determine if there is a genuine issue for trial based on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility.

[96] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial.

[97] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits.

[98] Although the court can rely on hearsay, subrule 16(5) provides a stricter rule with respect to hearsay than subrule 14(19) motions, namely that 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. This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and attach whatever weight to it, in any, that the court deems appropriate.

[99] In interpreting subrule 16, the court must also consider the strict timelines that govern child protection proceedings and subsection 1(1) of the Child and Family Services Act providing that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.

[100] It is also necessary to consider subrule 2 of the Family Law Rules to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that case are dealt with in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking into consideration the need to give resources to other cases. This appears to also be in keeping with the process test set out by the Supreme Court of Canada in Hryniak v. Mauldin.

[101] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that the child faces some better prospect that what existed at the time of the society's removal of the child from the parent and that the parent has developed some new ability as a parent.

5. Procedural And Evidentiary Objections

[102] Counsel for the parents filed a motion raising about 50 objections relating to procedural and evidentiary issues that was dealt with before the commencement of the summary judgement motion. As previously indicated I advised counsel that I would address the issues raised in my reasons for decision.

5.1 Summary Judgement Procedure and Timelines

[103] It is submitted by counsel for the parents that on December 17, 2014, he raised the possibility of the need for a voir dire on the admissibility of the evidence filed by the society after he reviewed the society's materials and that the case management judge rejected his request for a preliminary appearance before the motion judge. He further submitted that the case management judge set timelines and the motion over his objections and then on January 20, 2015, the case management judge rescheduled the timelines without any notice.

[104] Counsel for the parents also submitted that he advised other counsel about the nature of his objections to the materials filed and attempted to negotiate a convenient process and that it was not until March 9, 2015, that he was advised by counsel for the society and the child that it was their opinion that all evidentiary objections should be raised at the hearing of the summary judgement motion.

[105] Counsel for the parents relies on a passage from the case of Hryniak v. Mauldin that discusses the advisability of the judge presiding over a complex summary judgement motion to become involved early in the life of a motion to provide directions with respect to the timelines for filing materials, the length of cross-examinations and the nature and amount of evidence that will be filed. A motion for directions also provides the responding party with an opportunity to seek an order to dismiss a premature or improper motion for summary judgement.

[106] Although the court in Hryniak v. Mauldin, supra, was opining on Rule 20 of the Rules of Civil Procedure that deals with summary judgement motions, I agree that the principle articulated about judicial control around scheduling applies to all summary judgement motions.

[107] However, in this case and in this court cases are case managed by the same judge prior to the matter being set down for trial. Justice Jones was very well acquainted with the issues and the need for a speedy resolution of this case in view of the delay that had already occurred in the proceedings. Her duties as the case management judge included setting timelines and provide directions as to the nature of the materials to be filed. Her endorsement for the summary judgement motion set out the need for discrete motion briefs that contained all documents that the parties intended to rely upon, the filing o f facta with reference to the facts in the supporting affidavits and timelines for the filing and serving the materials. She rejected the need for a preliminary date to address evidentiary issues and set a full day for the motion to be argued. I do not understand the criticism of her extending the timelines for the filing materials as this assisted the parents.

[108] The issue of scheduling a preliminary motion before me was already adjudicated by me. I dismissed the parents' request and held that the evidentiary objections would be dealt with by me as part of the summary judgement motion.

[109] Therefore, I put no weight on this objection. I find that that the procedure followed has not deprived the parents of a fair hearing.

5.2 Voluminous Materials

[110] It is submitted that the society filed voluminous materials namely over 365 pages and as a result this case is prima facie not an appropriate case to be dealt with by means of a summary judgement motion. It is submitted that the "society simply dumped its information into the summary judgement motion record and asks the court to sort out what evidence is used for what purpose". It is again submitted that this was the basis for the need for a motion for directions.

[111] There is no requirement that a summary judgement motion must only deal with simple or uncomplicated issues. I take the view that if a case such as this, that would involve many weeks of trial time, is more properly dealt with in whole or in part by means of a summary judgement motion then it is the duty of the court to proceed in that manner.

[112] This approach is consistent with the guiding principle of the FLR set out in subrule 2(2) and (3) to deal with cases justly that includes the duty to ensure that the procedure is fair but also to deal with cases to save expense and time and in ways that are appropriate to its importance and complexity.

[113] Summary judgement is clearly a procedure that affords a more timely, affordable and proportional procedure. As stated by Justice Karakatsanis, in Hyrniak and Maudlin, supra, at paras. 4 and 5:

…. in my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

[114] I also reject the submission that the society has just "dumped" its information into the motion record. Counsel cited several cases in which the court was critical of the nature of materials filed by societies that included prior affidavits used on a temporary care and custody motion replete with hearsay or unfocused affidavits detailing every minute detail so that the important facts are lost.

[115] I agree that a summary judgement motion is not a paper trial and that it is the obligation of all parties to analyse the facts and present the facts in an organized, succinct and compelling way to persuade the presiding judge that the facts are so persuasive and the law applied to the undisputed facts is so clear that the matter should proceed by summary judgement.

[116] In this case, the society was required to file lengthy and numerous affidavits and documentary evidence due to the complex nature of the child's mental health, her numerous placements, the interactions between the parents and the society workers and other service providers and the litigation history. In the factum filed by society counsel the facts relied upon, with respect to the finding of the need for protection and the disposition, are outlined with specific references to the materials. Counsel for the child also filed a factum that references the facts she relies on with respect to the finding and disposition.

[117] I find there is no basis for finding that there is a lack of procedural fairness based on the objection to the voluminous nature of the materials.

5.3 Case Management Endorsements, Orders and Reasons for Decision

[118] It is submitted that the society's motion record has 54 tabs of decisions, endorsements and Orders made in the context of case management and that these are referenced in the affidavits field by the society. It is submitted that it was improper to file these materials in the summary judgement motion as they do not pertain to the motion and that this is evidence that the motion judge should not consider. It is submitted that the findings of fact in for example the temporary care and custody motion is adjudicated upon a different standard of proof than for the ultimate disposition of the case. It is submitted that if the motion court accepts the contents for the truth then they are clearly hearsay and should be omitted and that to include these materials would lead to the absurd result that the parents must be given the opportunity to examine the case management judge to ascertain the nature and meaning of her comments.

[119] It is submitted that the society should be limited to including in the motion record only the materials referred to in subrule 23(1) FLR relating to the trial record.

[120] Subrule 16(4) FLR provides that the party making the motion shall serve and file an affidavit or other evidence that sets out specific facts showing there is no genuine issue requiring a trial.

[121] The rule does not limit the society to only filing those documents that would be included in a trial record. Although I note that the motion record does include the pleadings, the temporary orders and orders respecting the trial which are all properly included in a trial record. The society has also included many other endorsements and decisions that relate to temporary motions and other steps in the proceeding that might not be included in a trial record.

[122] I agree that the findings of fact made by the case management judge are not binding on me and that the test on a summary judgement motion is distinctly different that the test applicable to the temporary care and custody motion or a variation motion. However, the history of the litigation that is evident from the many endorsements, decisions and Orders in this case are relevant to the issue of parents' ability to cooperate with the society and the treatment providers and are relevant to the issue of the relationship between the child and the parents. The history of the litigation and the finding previously made are also relevant to the issue regarding the finding of need of protection as the court needs to examine the protection concerns at the time of the apprehension and whether or not those concerns still exist. Counsel for the parents was not able to provide any cases that stood for the proposition that a summary judgement motion judge could not review the prior endorsements, decisions or Orders made in the case.

[123] It is also submitted that the society included in its motion record prior affidavits filed by the parents and that the affidavit of the family service worker also refers to these affidavits. It is submitted that it is improper to include these affidavits that were filed before the case management judge.

[124] A party in a proceeding can use and rely upon the opposing parties' admissions; this is often referred to as an admission against interest. In the Law of Evidence, 5th Edition, at page 147-148, the authors David M. Paciocco (now Justice Paciocco) and Lee Steusser explain:

Admissions are acts or words of a party offered as evidence against that party. Professor Younger provides this rule of thumb: "Anything the other party ever said or did will be admissible so long as it has something to do with the case". Often the phrase, admission against interest in used. Beware. The phrase invites confusion between an admission made by a party and the completely different hearsay exception for "declarations against interest" made by non-parties. An admission does not require that a party knowingly make a statement against interest. The evidence is "against interest" simply because the opposing side has decided to introduce it at trial against the other party.

[125] There is also an objection to the society relying on the endorsement of Justice Kiteley in dismissing the appeal from the temporary order placing the child in the care of JF&CS. It is submitted that the endorsement refers to the position of the parents as articulated by their counsel namely, that if R. was returned to their care they were now willing to work cooperatively with the society and agree to terms of a supervision order. Justice Kiteley noted that this position was contrary to the parents' written position in their appeal materials. As the role the parents played was a key element in the disposition at the temporary care and custody motion and on the fresh evidence presented on the appeal, Justice Kiteley stated that she was not prepared to accept or rely on counsel's submissions but was hopeful that counsel's sentiment would translate into the parents being co-operative and respectful of the legal responsibility of the society to provide appropriate care for R.

[126] A party is bound by the position put forth on their behalf by their counsel on the assumption that counsel is following their clients' instructions. The ability of the parents to work collaboratively with the society and service providers is a central issue in the history of this case and is relied upon by the society and the child for the position being taken on this motion. The court should be entitled to review the position taken at the appeal by the parents, even if as noted it was not relied upon by the appeal justice, in the context of the subsequent position and actions of the parents.

[127] I reject the submission that any of these documents should be removed from the motion record or that the society cannot rely on prior affidavits or statements made by the parents or statements made on their behalf by counsel. The inclusion of this evidence does not impact on procedural fairness to the parents.

5.4 Bifurcated Hearing

[128] It is submitted that section 50(2) of the CFSA directs a court that evidence relating only to disposition of the matter should not be admitted before the court has determined that the child is in need of protection. It is submitted that the society's materials do not make this distinction and that the proper remedy is to require the society to refile its materials and have the evidence distinguished from that relied on for the finding and that relied upon for the disposition so that the parents are aware of the case they have to meet.

[129] I agree the society's affidavits do not specifically distinguish the evidence relied upon. For example, the affidavits do not directly state or have headings indicating that this is the evidence regarding the finding or the disposition. However, counsel for the society submitted that most of the evidence relates to both the finding and disposition. It is only the affidavit of Mr. Mintz that relates only to the disposition as he explains the services available to a crown ward or a child over 16 years old who is not in the care of the society.

[130] It is clear from the factum filed by the society precisely the evidence it is relying upon for the finding and the evidence it is relying upon for the disposition.

[131] I find that the parents were aware of the case they had to meet and that they were not prejudiced by the manner or nature of the materials filed.

5.5 Inclusion of Hearsay Information

[132] It is submitted that the society's materials contain substantial hearsay and that to admit potentially unreliable and untested evidence in child protection proceedings puts the fairness of the trial process and the result in question.

[133] It is submitted that there is a conflict in the law as to whether hearsay evidence is admissible in summary judgement motions. The cases relied upon by counsel for the parents do not support this proposition.

[134] Subrules 16(19) and 16(5) FLR provides the court with the discretion to accept or reject hearsay evidence in affidavit material. Despite, this discretion, subrule 16(19) attaches a consequence where evidence is not from personal knowledge, namely that the court can draw an unfavourable conclusion. The court in the cases referred to by counsel for the parents opine that the evidence on a summary judgement motion should generally be of a level and quality to meet the same test as evidence at a trial and the court should not give weight to evidence on a summary judgement motion that would not be admissible at trial.

[135] I agree with this proposition. Given the serious consequence of a child protection proceeding, the court must be cautious in relying on flawed evidence and there is no justification for a lower standard of admissibility for evidence on a summary judgement motion. The same standards as is applied to trial evidence should be applied.

[136] Counsel for the parents in his factum submits at great length that it was beyond the authority of the Family Law Rules Committee to make a rule that is, subrule 16(15) FLR authorizing hearsay. It is submitted that subrule 16(5) FLR is not a rule with respect to practice or procedure but amends the substantive law regarding the admission of hearsay evidence. I do not find this argument persuasive. The rule does not change the fundamental law regarding the admission of hearsay evidence but imposes an even greater consequence to its admission on a summary judgement motion.

[137] It is important to consider that the basis for the inadmissibility of hearsay evidence is that it is being introduced for the truth and that there is an absence of a contemporaneous opportunity to cross-examine the deponent. Not all hearsay statements are admitted for their truth. For example, frequently in child protection proceedings such evidence is merely a backdrop to understanding the context of actions taken by a society as a result of the information without any reliance of its truth.

[138] The role of a judge on a summary judgement motion is to evaluate the quality of the evidence. To fairly resolve the dispute, the judge must analyse the issues in the case and identify what are the disputed facts and whether those facts are material to the resolution of the matter. However, not all facts need to be proved to the same standard. I adopt the statements of Justice Penny Jones in the case of Children's Aid Society of Toronto v. O.G. and T.A.L.:

Clearly, not all facts need to be proved to the same standard. Uncontested facts or non-material facts might be established through hearsay evidence. However, given the unique character of child protection proceedings, the quality of the evidence proffered to prove a material fact (whether contested or not) must be carefully scrutinized, and a court should generally demand evidence that is solid, credible and, in most cases, from first-hand knowledge. The party seeking the summary disposition must meet the onus of establishing that there are no genuine issues requiring a trial.

[139] In this case, counsel for the parents raised over 20 objections to hearsay evidence in the various social workers' affidavits. I find no merit to these objections and find them to be inconsequential and not dealing with any material disputed facts. I will review the objections in broad categories and not each individual objection.

[140] Objections were made to several opening paragraphs in Ms. Miller affidavit that are merely a summary of the society's position. Further objections were made to information the society received that resulted in the society commencing the Protection Application. These paragraphs simply explain the society's position and the reason for the position.

[141] Objections were made to the inclusion of information Ms. Miller received from third parties with respect to the child's allegations of sexual abuse and physical abuse against her parents. However, this information was not introduced for its truth. The society did not verify the allegations made by the child. The hearsay is included as narrative to understand the context of what steps the worker took and why she spoke to various parties. There are also objections to statements made by the child to Ms. Miller for example, not wishing her parents involved in her treatment or only wishing access to her mother. Many of these statements are also admissible for the truth as an exception the hearsay rule namely, statements of present mind exception. Further, as the child filed her own affidavit and verified the information the society workers obtained from third parties or from the child directly, there is no basis to reject this evidence.

[142] Objection was taken to the many references in Ms. Miller's affidavit to information and reports that she received from the child's treatment providers. For example, objection was made to the inclusion of statements from a staff member at Terrace Residential Program about the child's negative reaction after telephone calls with her parents and objection was also made to the inclusion of a worker's statement that the child enjoyed a particular telephone conversation with the mother. The worker's affidavit then explains the steps taken by the society as a result of this information. The hearsay nature of this evidence is remedied because affidavits were filed by the treatment providers that confirmed the same information that the social worker deposed to or in other cases the information has been included simply to explain the context of the steps taken by the society as a result of receiving the information. Other information received from third parties, who did not file affidavits is either so inconsequential or is not related to an issue in dispute.

[143] Objections were made to the entire affidavit of Karen Wisniewski who is the child's worker as being hearsay. Ms. Wisniewski clearly states in her affidavit the source of her information was the child and in one or two paragraphs information she received from others who are identified. She explains several times that she is aware that the allegations made by the child were not verified but her role is to listen to the child and develop a trusting relationship with her. Any inclusion of hearsay is remedied as the child and various treatment providers filed their own affidavits confirming the information deposed to by the worker.

[144] Objection was taken to the entire affidavit of Cilla Archa who is the service manager overseeing Ms. Miller. The objection is that the contents are hearsay and the source of the information is counsel for the parents. The sole purpose of her affidavit is to outline that the parents were ordered to produce their financial statement by Justice Jones, that the order was appealed and that counsel Ms. Gaber-Katz, counsel for the society, wrote to Mr. Macri, counsel for the parents, to suggest the issue of payment by the parents be deferred and that counsel had not replied to this request. At the outset of the motion, counsel for the parents agreed that this issue should not be dealt with pending the appeal being heard. Accordingly, I find no basis to this objection.

[145] I would add that it is somewhat ironic that counsel for the parents objected to the voluminous amount of materials filed by the society but then objected to even the most inconsequential hearsay being included. The general basis of his objections is that first hand evidence should have been filed from all third parties. In this case the society filed affidavits from the most relevant third parties; although there is some hearsay included in the affidavits, those statement and reports were introduced not for their truth but for background and context or are not material to the issues in dispute. I am readily able to discern the essential facts in this case.

5.5 Opinion Evidence by Unqualified Experts

[146] Counsel for the parents objected to opinions stated by Ms. Miller as she is not qualified as an expert. For example, Ms. Miller deposed that she believed that the challenges and diagnoses set out in two psychological assessment conducted in October 2012 with respect to the child were extremely relevant. She further deposed that based on information from another treating psychiatrist Dr. Eliav that the child needed residential treatment. Ms. Miller explained the reason for commencing the Protection Application namely, that the fact the child was refusing to permit her parents to make her treatment decisions was impeding her treatment and therefore the society had to bring R. into care.

[147] I do not find any merit in these objections. Witnesses who are not experts but who nevertheless have experience may present their observations and conclusions in the form of an opinion. It is usual for social workers in child protection cases to give opinions, based on their education and clinical experience, about a variety of issues including the quality of parent and child interactions, the emotional state of people, appropriate placement and adoption issues.

[148] The line between "fact" and "opinion" evidence is not always clear. Generally lay witnesses may offer their relevant observations in the form of opinion evidence under the following circumstances:

1. They are in a better position that the trier of fact to form the conclusions;

2. Their conclusion is one that persons of ordinary experience are able to make;

3. The witness, although not expert, has the experiential capacity to make the conclusions; and

4. The opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions.

[149] I find that Ms. Miller did no more that provide her opinion as an experienced social worker.

5.6 Expert evidence

[150] Counsel for the parents submitted that the several reports filed and relied upon by the society were not admissible as they were expert reports and did not comply with the requirements of subrule 20.1 FLR.

[151] The Ontario Court of Appeal recently released its decision in the case of Westerhof v. Gee Estate that clarified the distinction between experts retained for litigation purposes and other experts such as treating physicians or non-party experts for the purposes of Rule 53.03 of the Rules of Civil Procedure. As the wording of subrule 20.1 of the FLR is similar, counsel agreed that the reasoning in the decision was also applicable to the FLR. In overturning the decision of the Divisional court, the court explained that experts "retained by or on behalf of a party" to provide opinion evidence in relation to a proceeding (referred to as "litigation experts") have an overriding duty to provide evidence that is fair, neutral and non-partisan and within the expert's area of expertise and are required to comply with the duties set out in Rule 4.101 and that their reports must comply Rule 53.03 and Form 53; whereas a broader group of witnesses who give opinion evidence that would include treating physicians who form opinions based on their participation in the underlying events (referred to as "participant experts") or other experts who form opinions based on personal observations or examinations relating to the subject matter of the litigation other than the litigation (referred to as "non-party experts") are permitted to provide evidence without complying with the requirements of Rule 53.03.

[152] The court noted that the text of the 2010 amendments supported the view that rule 53.03 does not apply to participant or non-party experts. The court further noted that the 2010 amendments to the Rules of Civil Procedure were based on the recommendations of the Honourable Coulter Osborne that highlighted the common complaint that experts hired by parties are "no more than hired guns who tailor the reports and evidence to suit the client's needs" and as a result the recommendations that were adopted reflect the duty of such experts that are retained by or on behalf of a party to provide fair, objective and non-partisan evidence and specifies the information required and the need for adequate disclosure.

[153] The court concluded as follows:

… I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

• the opinion to be given is based on the witness's observation of or participation in the events at issue; and

• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Such witnesses have sometimes been referred to as "fact witnesses" because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as "fact witness" risks confusion because the term "fact witness" does not make clear whether the witness's evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as "participant experts".

Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.

If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits.

As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. The court could also require that the participant expert or non-party expert comply with rule 53.03 if the participant or non-party expert's opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation.

[154] Counsel for the parents submitted that any physician or therapist retained by the society to provide treatment, to a child in its care, is therefore a "litigation expert" on the basis that the case is before the court and the society is required to comply with 20.1 FLR. He submitted that therefore all of the reports the society is relying upon are not admissible.

[155] In this case the child's treating physicians were not retained for the purpose of litigation but rather to provide treatment for the child. The submission by parents' counsel is not in keeping with the distinction drawn by the Ontario Court of Appeal's decision in Westerhof v. Gee Estate.

[156] I therefore find the physicians and psychologists reports filed by the society do not need to comply with the requirements of subrule 20.1 and Form 20.1 FLR. The society served a Notice of Intention to Rely on Practitioners Reports pursuant to section 52 of the Evidence Act. Therefore these reports are evidence before the court and can be relied upon for the truth of their contents.

[157] With respect to the court's gatekeeper function I find that these reports are relevant to the issues in dispute, are reliable and the opinions expressed are within the expertise of the various physicians and psychologists. I also note that with respect to the reports of Dr. Cochrane Brink, Dr. Marcovitch, Dr. Pearl and Dr. Kemenoff they were either retained by the parents or the parents participated in the assessments and provided the physicians and psychologists with background information. I find that there is no procedural unfairness to the parents with to the admission of these reports.

5.8 Other Evidentiary and Procedural Objections

[158] Counsel for the parents submitted that he had structured his case based on the decision of the Divisional Court in Westerhof v. Gee Estate with respect to the admissibility of expert reports. As a result of the Court of Appeal decision, that was released on March 26, 2015, shortly before argument on this motion, he would have filed other reports. On consent, the parents were therefore permitted to file the report of Dr. Roberts. There was no request to file any further evidence.

[159] Counsel for the parents objected to the admission of affidavit of Dr. Boucher dated March 5, 2015, with her unsworn curriculum vitae attached and the affidavit of Marina Nikolova dated March 10, 2015, with a sworn copy of Dr. Boucher's curriculum vitae. Ms. Nikolova deposes that Dr. Boucher is now practising in New Brunswick and when the commissioner of oaths attended to swear her affidavit Dr. Boucher did not have her curriculum vitae available and then arrangements could not be made to have it sworn by her. There is no merit to excluding Dr. Boucher's affidavit based on this argument. There is no issue with the authenticity of Dr. Boucher's curriculum vitae and the affidavit, which is commissioned, is relevant to the issues before the court.

[160] Counsel for the parents objected to the reports of Dr. Cochrane-Brink being filed as they were stamped "confidential and copyright without prior written permission of Youthdale". It is obvious that Dr. Cochrane-Brink who swore an affidavit and attached these reports was aware they were being used for court purposes and consented to their distribution.

[161] Counsel for the parents served a Request to Admit and submitted that this summary judgement motion should not proceed until the society responded. I agree with the submissions of counsel for the society that counsel for the parents was given many opportunities to obtain disclosure of the society file and did obtain such disclosure on an ongoing basis and to serve a Request to Admit just weeks before the motion date would have been an onerous task for the society and was a tactic to delay this motion. Further, many of the requests were not material to this motion. For example, an admission that the society did not believe the father sexually abused the child or that the mother did not physically assault the child. The society is not seeking a finding based on either of these grounds and has already stated it did not verify these allegations. Requests were made for the exact number of days the child was absent form school, number of times the child tried to harm herself, number of times she required medical care, copies of all placement reports etc. In total there were 22 requests for information. None of which are material to the facts in dispute.

[162] Quite remarkably counsel for the parents submitted that the society has delayed in proceeding with this case waiting for R. to turn 16 years old so that it could argue that in view of her age, she is now in a position to determine her own treatment and therefore the outcome of this motion is a foregone conclusion. A review of the prior court proceedings makes it clear, that although the parents had every right to appeal the temporary care and custody motion or bring other motions, it is their litigation strategy that has caused the delays in this case moving forward.

6. Legal Considerations on a Protection Application

[163] The Child and Family Services Act governs child protection proceedings. Section 1 sets out the paramount purposes of the act being to promote the best interests, protection and well-being of children.

[164] In this case the society seeks a finding that the child is in need of protection pursuant to the following subsections 37(2):

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(f.1) the child has suffered emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) and that the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;

(h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition;

(i) the child has been abandoned, the child's parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child's care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child's care and custody.

[165] The onus is on the society to prove on a balance of probabilities that the child is at risk. The risk must be real and not speculative.

[166] It is not necessary for the society to prove an intention to cause harm before finding that a child is in need of protection. The society can prove causation by act, omission or pattern.

[167] With respect to a finding that a child has suffered emotional harm or risk of emotional harm, the harm must be demonstrated by one of the enumerated conditions or behaviours. The onus is on the society, on a balance of probabilities, to prove that there is a real likelihood that the child will suffer emotional harm if returned to the care of her parents.

[168] In determining the relevant time for a finding that a child is in need of protection, the court must chose a flexible and child-focused approach. A court can admit and consider evidence as to whether a child is in need of protection at the commencement of the proceeding, at the hearing date or at any other date depending on the circumstances of each case. The court must assess the extent to which any need for protection found at the initial stage has been resolved over the course of the litigation or whether other grounds for protection have emerged over time.

[169] The position of the society and child is that the child was in need of protection at the time it filed its Protection Application and continues to be a child in need of protection under the sections enumerated.

[170] It is the position of the parents that the child has never been in need of protection at any time on the basis that they have always been willing and able to meet her needs. Further they submit that there is no causal connection between the fact the child suffered emotional harm or is at risk of suffering emotional harm and the parents' actions such that the intervention of the society is warranted.

[171] On the evidence in this case, there is sadly overwhelming evidence that R. has suffered emotional harm and continues to be at risk of suffering emotional harm. The child has demonstrated serious anxiety, depression, withdrawal and self-destructive behaviour.

[172] This behaviour occurred prior to the child coming into care and has continued. Prior to coming into care, the child ingested Midol, engaged in high-risk behaviours such as "sexting" and giving out her address to strangers, developed suicide plans, ingested inedible items such as rocks and puzzle pieces, and purged her food. Since coming into care, the child has struggled with behaviours such as ingested inedible items and harmful liquids, misusing medications, cutting, purging, aggression, altercations with her peers, absences without leave, drinking and drug use. She has required surgery after swallowing earrings, attempted to choke herself with leggings and has had multiple hospitalizations.

[173] Dr. Cochrane-Brink is the child's treating psychiatrist at Youthdale. In February 2013, R. was discharged from that facility due to R.'s fixation with who her "guardian" was and in trying to enter into the care of the JF&CS. She became unable to participate appropriately in group therapy or individual therapy. Youthdale concluded that R. could not return to the residential treatment program until they had a treatment partner in R. and clarity regarding guardianship. In part, the discharge summary states:

R. is a challenging, but nonetheless, sweet and likeable 14 year old youth, whose mental health and developmental issues are complex and defy a simple diagnostic explanation. …R.'s presentation, current difficulties and functioning are probably best understood in the context of a complex interplay between her cognitive challenges (non-verbal learning disability), attachment and adoption issues, as well as emerging personality structure…. R. does not currently show motivation to work through these issues with her adoptive parents and rather, is insisting most forcefully through her actions, that she be distanced from them both. …

R.'s parents remain motivated to support R. and to have her eventually reintegrated into the family. At this time, R. does not show readiness in this respect to this therapeutic process. Time will tell if R. will reconsider, which will require enormous patience from her parents

[174] Dr. Boucher was a consulting psychiatrist with Terrace Youth Residential Services and in that capacity was involved in the child's care from April 2013 and September 2013. Pursuant to the order of Justice Jones on June 18, 2013, she provided an email report to the court. At the time the society was planning to withdraw its Protection Application and the parents' plan was to require R. to attend a residential treatment program in Utah. In part, Dr. Boucher's report reads as follows:

I have met with her [R.] four or five times and have been able to identify symptoms related to attention deficit disorder, attachment issues as well as some post traumatic symptoms. During our interviews she has remained coherent and has not contradicted herself. She has collaborated well and has so far responded well to treatment which includes medication for recurrent nightmares related to past negative experiences, anxiety and impulsivity. She has reported abuse in her adoptive home, and although this was not verified, she remains convinced of the occurrence of these events. She has also indicated her despair and anger at not being believed and is adamant that she does not wish to be involved at this time in family work. …. It is my opinion that because of her strong beliefs and her perceived experience of trauma, that forcing her into a treatment facility or family therapy at this point in time would only lead to her feeling dismissed and re traumatized. Family work is premature although the ultimate goal should be to eventually resolve this matter. She has been quite clear that so far her experience has been that adults do not listen to her or believe her. It is generally not useful to force anybody into therapy that they are not emotionally or psychologically ready for but in this case I am convinced that it would be deleterious to her mental health and confirm her perception of being ill-treated by adults responsible for making decisions for her. I understand the family's need for a resolution but R. is not psychologically or emotionally ready to comply. Furthermore, since she has been responding well to her present treatment environment, and even has started to make overtures towards her mother, I do not see an urgency to transfer her to another environment as she is progressing well.

[175] R. resided at Terrace Residential Youth Services from March to September 2013. The placement broke down in part because of the demands of the parents. As deposed by R., she was doing well in the placement and is still sad that she can no longer live there. The discharge summary in part states that:

The K. family regrettably does not have an open and trusting relationship with JF&CS nor Terrace Residential Youth Services. It is our hope that a new placement will help the family move forward productively and that R. continue to do well as she is a lovely and engaging young lady with many strengths.

[176] Dr. Cochrane-Brink again began to treat R. when she was re-admitted to Youthdale on November 13, 2014, due to engaging in unsafe behaviours. The most recent summary dated December 11, 2014, reviews her multiple placements since being discharged from Youthdale in February 2013. R. acknowledged her struggles to maintain her safety and identified her unsafe behaviours. They discussed and agreed upon some changes to her medications. In part the summary states that:

R. is a 15 year old youth, with long standing mental health, learning and behavioural issues. She has had a successful admission on the ASU [acute support unit], granted with the highest level of staff support available. Her long term placement and treatment remain a pressing issue. R. continues to report symptoms that appear to be of a post-traumatic issue. R. does not appear to be suffering from a mood disorder or any psychotic symptoms. She has had previous diagnoses of a non-verbal learning disorder, attention deficit hyperactivity disorder, depression and social anxiety. Clearly there are very significant issues with respect to her relationship with her adoptive parents.

[177] The parents have directly interfered with the child's treatment. In August 2013, the parents refused to consent to R. obtaining a trauma assessment although this was recommended by Terrace, Dr. Urson, and the society's consulting attachment expert. It also would have followed the recommendations for a family assessment made by Dr. Pearl and Dr. Kemenoff in 2012, to determine potential areas to target with the treatment in the context for family counselling. The society did not proceed with the assessment because without the parents' participation it would not have been as useful as possible.

[178] The parents filed a complaint against the child's former psychiatrist Dr. Boucher with the College of Physicians and Surgeons. R. was upset about this as she trusted Dr. Boucher and felt she was the first doctor who stood up for her.

[179] In September 2013, the child began to see Dr. Urson, a psychiatrist. Dr. Urson discharged R. from her care on November 25, 2013, due to complications of multiple agencies being involved in R's care and legal issues. The discharge note also indicates that during that session R., was speaking extensively about the complaint her parents had made against Dr. Boucher.

[180] During the months of April and May 2014, the parents interfered with R.'s residential treatment placement at Terrace as they misrepresented their legal status to the service providers. The service providers were put in the untenable position as they were required to follow the directions from the JF&CS (as the child's legal guardian), but were being directed by the parents to ignore the JF&CS. By May 2014, R's placement was in jeopardy due to two issues. Firstly, the financial issue of reimbursement for the additional staff necessary to drive R. to her various appointments and secondly the management staff at Terrace were being inundated by the amount of emails, repeated requests for documentation and demands that they take direction from the parents. As a result, Terrace requested that all communication with the parents go through the society.

[181] The parents' attitude and behaviour did not change despite the decision on the temporary care and custody motion that was released on May 10, 2014, that confirmed the child's placement in the care of the society. Counsel for the society advised Terrace that R. wished to continue to reside there and that the society was the child's decision maker and sought some clarification regarding the payment request. A copy of this correspondence was sent to the parents who did not reply despite begin aware that this could put R.'s placement in jeopardy. As the parents refused this communication protocol and would only consider financial payment if the society was not involved, Terrace gave notice that R. would be discharged from their care.

[182] At this time, R.'s self-harming behaviours escalated again and over a 12 week time period, R. had seven incidents of self-harming, leaving the placement without permission and continued to make allegations against her parents.

[183] The parents were aware that the society was looking for alternate placements for R. after she was discharged from Terrace in June 2014. The parents' attitude is best expressed by their email correspondence to Ms. Miller that reads in part as follows:

….just so you know, we also advised R. that we will ALWAYS do our utmost legally, to heavily block ANY current and future decisions by you (or any other person), which will adversely affect her, whether that be movement to a "foster home", or other "open" group homes, erroneous medications, inappropriate placements, unsafe conditions, etc. (all of which you've made erroneously in the past unfortunately). …As well we advised her that we will continue to make all moves we find necessary to block you and anyone else at the JF&CS from continuing to harm her as you have already done, either medically, educationally, emotionally, spiritually, or recreationally…Further, we will continue to offer R. opportunities to visit with family, and we will continue to offer her opportunities for appropriate forms of treatment and education-without your input and/or consent….

[184] The parents continued to interfere, threaten and undermine potential placements and refused to provide information relevant to best meet R.'s treatment needs. In summary, the parents:

a) Refused to provide the society with a copy of the psycho-educational assessment done by Dr. Marcovitch that had been arranged by the parents;

b) Refused to provide information regarding R.'s medical history;

c) Refused to complete a consent form required by the York Region Committee Intake for Residential Placement. By refusing to sign the consent, the society missed an opportunity to present R. to the committee and find an available and appropriate placement;

d) Advised R. that they would block decisions made by the society;

e) Threatened and interfered with R.'s potential placement at Falconhurst by corresponding directly with and making demands of them; the executive director confirmed in her affidavit that the decision not to accept R. was greatly influenced by the parents' letters, their lack of willingness to support the placement would inevitably lead to R. feeling negatively about the program and "not wishing to be involved in a litigious situation over something as simple as the act of placing the youth in our facility";

f) Threatened and interfered with a potential placement at Avalon Residential Treatment Program, the director advised the society that they had received emails from parents that were "extremely concerning". They decided not to accept R. into their program despite the fact that it would have been very suitable as they required co-operation between all caregivers so the placement would not be sabotaged;

g) Threatened and interfered with the placement at Enterphase by threatening litigation and lodging a complaint with the Ministry Licensing representative; these actions resulted in the society bringing a motion for a restraining order against the parents;

h) Refused to complete the Pine River referral despite the fact it was a placement that the parents had originally proposed;

i) Refused to attend an intake appointment at Hincks Dellcrest which was part of that facility's assessment process and advised that they would not consent to R.'s placement there;

j) Threatened legal action against Youthdale and the society in January 2014 when it was considering placing R. back in Youthdale; and

k) Did not respond to the society's requests to confirm if the parents would pay the cost of out of province programs or program in Utah as R. was in the care of the society. The society could therefore not even explore if these were viable options.

[185] The parents have been unwilling or unable to work with R. at her pace and to take into account what she wants or thinks about her treatment.

[186] Since about September 2012, R. has repeatedly and continuously stated that she does not want to be in her parents' care and that she does not want them involved in her treatment. It is undisputed that she made these statements to:

a) JF&CS staff;

b) Her treatment providers including Dr. Boucher, Dr. Urson, Dr. Scott, Dr. Cochrane-Brink and Jillian Steinberg;

c) Staff at all of her placements including Youthdale, Terrace Residential Youth Services, Bayfield and Enterphase;

d) The provincial Advocate for Children and Youth; and

e) To the court in the affidavits filed throughout this proceeding.

[187] The parents have refused to participate in any Plan of Care meetings and therefore lack knowledge about the child's treatment needs.

[188] As a result of the child's refusal to permit her parents to be involved in her psychiatric treatment since she came into the care of the society, she has not given her consent for her parents to speak to any of her doctors.

6.1 Analysis Regarding Findings of Need for Protection

[189] I will deal with each request for a finding of need for protection as claimed by the society.

37(2)(f) – Child has suffered emotional harm as a result of parents' actions

[190] There is overwhelming evidence that the child does suffer from emotional harm as articulated in relevant subclauses of section 37(2)(f). However, the parents submit that despite the many expert reports filed there is no expert evidence that R.'s condition is a result of any of the parents' actions. It is submitted that R. suffered emotional harm due to her poor treatment in care.

[191] R. was diagnosed prior to coming into care with depression, anxiety, self-harming and aggressive behaviours. She was diagnosed with attachment and adoption issues. Although there may not be a direct statement that the parents' actions caused her emotional harm, there is ample evidence from her psychiatrists, social workers, treatment providers and the child herself, that her emotional stability deteriorated when the society was planning to withdraw the Protection Application so that she would be returned to her parents' care and forced to go to a treatment facility in Utah and when her parents interfered with her placements at Youthdale and Terrace.

[192] Although I accept that the parents were acting in ways that they sincerely believed would benefit R. and did not intentionally cause her harm, nevertheless their actions, by insisting that R. comply with the residential treatment they wanted for her and by refusing to consider her wishes they caused her emotional harm.

[193] Counsel for the parents relies on the case of Children's Aid Society of Ottawa v. C.D. as it is submitted that it is factually similar in that the child who was 15 years old was rejecting her parents and was apprehended. The child was placed while in her parents' care in a treatment facility in Utah. The court granted the parents' summary judgement motion and found that there was no evidence that the child was in need of protection and no evidence of a direct causal relationship between the child's risk of emotional harm and the parents' parenting. The court also held that society had confused and inter-mingled the issue of the child's best interests with the threshold issue of whether or not she had ever been a child in need of protection. Although I agree with the statements of law, the case is based on the facts presented which differ significantly from the facts of this case with respect to the strength of the child's refusal to permit her parents to be involved in her treatment, the level of hostility and the consequences of the actions of the parents on the child's emotional well-being.

37(2)(f.1) - Emotional harm due to parents not providing, refusing, are unavailable or unable to consent to treatment or services to remedy or alleviate the harm

[194] Based on the undisputed facts, the parents have refused to consent and have actively interfered with R.'s treatment, which I find includes her residential placements. Although the parents have sought out assistance for the child it is always on their terms without any regard for the child's viewpoint or wishes about her treatment.

[195] It is submitted by parents' counsel that the fact that R. does not want her parents to direct her treatment is not decisive of anything and that there is no evidence that R. has the cognitive ability to make appropriate decisions for herself.

[196] In accordance with the Health Care and Capacity and Consent Act, there is a presumption that an individual, including a child, has the capacity to understand information relevant to a decision about treatment and to appreciate the reasonably foreseeable consequences of a decision or lack of decision. In spite of the parents' references to various reports that outline R.'s cognitive learning disabilities, none of these psychiatrists or psychologists have indicated that as a result she is incapable of making suitable decisions about her treatment.

[197] R. also has the right, pursuant to the Personal Health Care and Information Act, to refuse to permit any health care professional to disclose any information without her express consent to do so.

[198] Section 28 of the CFSA, states that counselling should be provided to a child under the age of 16 years based on consent but that the service provider should discuss with the child the desirability of involving the child's parent. But it is clear from the wording that the clinician cannot require the child to consent to the parent being included in the counselling.

[199] Accordingly, it is R.'s decision whether or not to include her parents or the society in her treatment.

[200] R. has deposed that she recognizes that she needs a "treatment partner" to help her make decisions about treatment and medications. She has chosen that partner to be JF&CS although she has not always agreed with everything the society has done. She does not trust her parents to act as her "treatment partner" and believes that they would stop paying for her treatment if they disagreed with something a treatment provider does and that they would not take her views into account.

[201] I agree with the submissions of counsel for the child that the parents have focused on their willingness to provide treatment and services as opposed to their ability to do so. The decision to involve a parent or the society in treatment is based entirely on R.'s consent and as she has chosen not to include her parents and to not enable them to obtain information from her health care providers, they are unable to consent to services or treatment on her behalf.

[202] I also find that despite the recommendations of several treatment providers that R. should not be forced into treatment she does not agree with and that the pace of treatment should be guided by R.'s needs, the parents have also been unwilling to comply with this recommendation.

37(2)(g) – Risk of emotional harm resulting from the actions, failure to act or pattern of neglect of parents

[203] The society submits and relies on the case of Children's Aid Society of Dufferin v. R.N. for the proposition that if a child rejects a parent there is an inherent risk of emotional harm. That case involved a high-conflict domestic situation in which a child rejected one of her parents. In this case, although R. did not totally reject her parents', as she initially saw her parents, then stopped seeing them and then was open to supervised access with her mother. I find that it is the parents' who have rejected R. by refusing to see her, except to their terms. I find that their behaviour is sufficient for a finding that there is a pattern of neglect that poses a risk to R.'s emotional well-being. She has expressed sadness, especially with respect to the fact her mother stopped seeing her and stopped speaking to her.

[204] The parents' focus with respect to disputing a finding on this basis is to deny they have done anything to cause R. harm. They have no insight into the effect or potential effect on R. of their actions and continue to insist that if the society or R. do not agree with their terms then they will refuse to co-operate.

37(2)(g.1) – Risk of emotional harm resulting from the parents not providing, are unavailable or unable to consent to treatment or services to prevent the harm

[205] The parents submit that there is no evidence that they are not completely committed, able and available to consent to treatment and meet the child's treatment needs "as recommended by professionals with experience in the treatment of children like R." On the contrary, I find that there is ample evidence to conclude that they are not prepared to consent to any treatment except the treatment they wish to force upon R. namely, a residential treatment facility in Utah. Mrs. K.'s affidavit states that they are committed to R. being in a "residential placement of some sort". Again there is no consideration as to input from the child.

37(2)(h) – Child suffers from a mental, emotional or developmental condition that, if not remedied, could impair her development and the parents do not provide, refuse, are unavailable or unable to consent to treatment

[206] The parents do not dispute that R. suffers from a mental condition that could impair her development. They submit that her condition has in fact deteriorated not because of their actions but because of the inappropriate care she is receiving in care. Again the parents dispute a finding on this ground because they are willing and available to consent to treatment.

[207] For similar reasons as outlined above, I find that the parents have not provided and are not able to consent to treatment or services for R.

37(2)(i) – Child has been abandoned or is in a residential placement and the parents refuse or are unable or unwilling to resume care and custody of the child

[208] Even if I had found that there was insufficient evidence for a finding on a summary judgement motion that there was a causal connection between the child's emotional harm or risk of emotional harm, there is indisputable evidence to support a finding pursuant to subclause (i).

[209] The parents dispute a finding on this ground as they state that they agree R. needs residential treatment and they can resume her care and work with her and her treatment providers to find an appropriate placement for her. They agree that they have not seen R. in several months (in fact, the father has not seen R. for 10 months and the mother not for 7 months) and have not attended any Plan of Care meetings but are well aware of the treatment R. requires.

[210] I find that on a straightforward reading of this clause, there must be a finding of need of protection. The child is in residential treatment, the parents agree that she should remain in residential treatment and they cannot resume care of her. Parents' inability to seek to have a child returned to their care from a residential placement was held to sustain a finding of need of protection in the case of Kenora-Patricia Child and Family Services v. A.M.

[211] The parents are unable to resume R.'s care and custody as they have been unable to form a positive working relationship with R.'s treatment providers and caregivers including the JF&CS which was also a factor in the above noted case.

[212] In this case, R. will remain living in the "custody" of a residential treatment facility and the "care" in question is emotional support and care for her while she progresses in treatment. R. does not trust her parents to work co-operatively with her and will not consent to her parents being involved in her treatment. She is not consenting to the dissemination of her personal and medical information to her parents. She has made it clear that she will not return to her parents' care nor can she be forced to do so.

[213] Counsel for the parents submit that there is no evidence to support a finding pursuant to section 37(2)(a) and (b) regarding physical abuse and risk of physical abuse and 37(2)(c) and (d) regarding sexual abuse or risk of sexual abuse. As the society did not plead these clauses, I make no finding on these grounds.

[214] I find that there is no genuine issue that requires a trial with respect to a finding that R. is in need of protection pursuant to sections 37(2)(f), (f.1), (g), (g.1), (h) and (i).

[215] The concerns that existed when the child came into care have not changed. The child came into care as a result of a crisis. She was in a residential placement at Youthdale and she refused to return to the care of her parents and refused to permit them to be involved in her treatment. At the time of the Protection Application, R. was having contact with her parents and family and her parents had a co-operative relationship with the society and they were working together to find an appropriate placement and treatment plan.

[216] The situation two years later has not changed and in fact has been exacerbated as a result of the parents' actions and their inability to co-operate with the child, the society and the treatment providers. R. is not seeing her parents or siblings and her parents have withdrawn from any participation with the society. Further, R. is now 16 years old and the parents are unable to resume R.'s care or consent to treatment on her behalf as she has refused to permit them to do so. She has the ability to consent to treatment on her own behalf. She has chosen to be subject to the care of the society and sought their assistance. A finding of need of protection is a foregone conclusion on these facts.

7. Legal Consideration Regarding Disposition

[217] After a finding is made, the court must determine what order is required to protect the child. In the oft quoted case of Children's Aid Society of Toronto v. T.L. Justice Perkins set out the statutory pathway to be followed on a disposition hearing (not involving a native child or a potential custody) as follows:

1. Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57.)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

3. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59(2.1)(a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

4. Determine whether the access would impair the child's future opportunities for adoption. (Section 59(2.1)(b)). If so, dismiss the claim for access. If not, go to the next step.

5. Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58.)

[218] In making a removal order under section 57 of the CFSA, the court must also be satisfied that less disruptive alternatives would be inadequate to protect the child and the court must inquire as to whether a kin placement is possible. The court must also inquire what efforts the society made to assist the child before intervention.

7.1 Analysis

[219] Prior to the Protection Application, the society attempted to work co-operatively with the parents and child, liaised with the treatment providers and attempted to assist in finding a solution to address R.'s safety concerns. Subsequent to R.'s admission into care the society continued to attempt to work with the parents. As is clear from the history of the litigation this became increasingly more difficult if not impossible. Instead working with the society and R., the parents have chosen to opt out. They are not seeing R., not participating in family counselling or attending Plan of Care meetings with the society.

[220] In view of R.'s needs, a kin placement is not appropriate at this time.

[221] It is the position of the society and supported by the child that the only possible order in this case is an order for Crown wardship.

[222] It is the position of the parents that if a finding of need for protection is made, then there should be no order pursuant to section 57(9) of the CFSA and R. should be returned to their care. The parents and R. will then begin to work together to heal their rift. The parents submit that little if any weight should be given to R.'s stated wishes.

[223] In considering what disposition order pursuant to section 57 is appropriate, the best interests of the child must be considered. Section 37(3) sets out the factors for determining a child's best interests as follows:

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

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

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

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

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

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

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

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

13. Any other relevant circumstance.

[224] In this case, R. is 16 years old and her views and wishes have been consistent since September 2012. It is impossible to imagine that a court would not give great weight to those wishes and force her to return home.

[225] The parents simply chose to ignore R.'s wishes and submit that if there is no order in place then R. will have no choice but to comply with their terms for her treatment and conditions for returning to their home.

[226] The parents further submit that R.'s views and wishes should be ignored because she does not have the capacity to make proper decisions about her treatment. I find to the contrary that R. accepts she has mental health issues and she wants to continue receiving treatment. R. does not want to manage her treatment on her own and she wishes the society to help her make decisions about medication and treatment.

[227] R.'s right to manage her treatment needs must be respected by the parents. As articulated by the Supreme Court of Canada in the case of A.C. et al. v. Manitoba (Director of Child and Family Services):

It must be the aim of the Court… to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to fact the problems of life as a mature adult. When applied to adolescents, therefore, the "best interests" standard must be interpreted in a way that reflects and addresses an adolescent's evolving capacities for autonomous decision making. It is not only an option for the court to treat the child's views as an increasingly determinative factor to the extent that his or her maturity increases, it is, by definition ,in a child's best interests to respect and promote his or her autonomy to the extent that his or her maturity dictates.

[228] R. has deposed that she will not return home regardless of the court's decision. She will exercise her rights to Renewed Youth Supports ("RYS") from the society. But she has fears that she would get less supports from the society under this program than if she was made a crown ward. The affidavit of Jeff Mintz supports this concern. Mr. Mintz explained that given R.'s complex needs they would be best met by the added resources available to Crown wards even beyond turning 18 years and up to 26 years of age. He deposes that the RYS program was designed to assist youth over 16 years of age who had no court order but needed assistance with living on their own and was not designed to meet the complex needs of a youth such as R. The parents reject the affidavit on the basis that it is self-serving. I find that it is a factual affidavit that sets out relevant information about the two options and their advantages and disadvantages.

[229] The parents rely on the report of Dr. Nasreen Roberts dated March 24, 2013 in support of their plan that R. needs a highly structured environment with the proper therapeutic supports. Dr. Roberts only treated R. for about two weeks and since that time she has made progress. Her present treating psychiatrist and the Youthdale staff are in a much better position to determine the best residential placement for her.

[230] The parents plan for them to determine R.'s treatment has no air of reality. They submit that somehow the rift between them and their daughter will magically disappear and if she will not attend the residential program they have chosen for her, they will either force her to attend or she can always then turn to the society for support and assistance. Such a plan is not in this child's best interests nor is it realistic. It is disrespectful and dismissive of their daughter's wishes.

[231] The society is meeting R.'s needs. R. has done better in care since her parents have not been able to be involved in her treatment. She is almost taking no medication and she is learning skills that she believes are helping her. She is currently residing in the transitional support unit at Youthdale which is a locked unit. Both her treatment providers and the society agree that she is qualified to move to a group home but she will not be moved until the litigation is resolved. Her cultural background and religious faith have been taken into account and she has been able to celebrate religious holidays.

[232] In this case, there is no other option other than to keep R. in the care of the society. She is refusing to return home. She has been in care since February 20, 2013, longer than the statutory timelines in section 70(1) of the CFSA and it is not in her best interests to extend those timelines.

[233] A supervision order is not a viable alternative. The society has attempted to engage the parents in this process since R. came into care, even when they were not under any legal obligation to do so, but the parents were unable or unwilling to co-operate and work collaboratively with the society or any treatment providers. The parents have filed contempt motions against the society and the individual workers. The parents have shown by their conduct throughout this proceeding that they are unwilling to work with the society and do not respect the society's ability to be involved in R.'s care or make decisions about her care. Further and very importantly R. would not agree to a supervision order.

[234] The parents submit that there are "material facts in dispute," such as whether or not either parent abused R., whether or not the parents can be a treatment partner, whether or not the society breached its agreement and court order to work cooperatively with the parents (despite the ruling already made by Justice Jones on this issue), whether or not R.'s ups and downs was related to her treatment, medications or something the parent did.

[235] They also submit that there are "material facts in dispute' about the best treatment plan and the facts in dispute relate to whether or not he society provided inadequate medical care, protected R. from self-harming behaviours, conflict with other residents, from drug and alcohol use and from smoking and if R. would co-operate with her parents if the society withdrew their application.

[236] The relationship between a genuine issue for trial and a material fact was articulated by Associate Chief Justice Morden in Underman Ltd. v. Galanis as follows:

If a fact is not material to an action, in the sense that the result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a "genuine issue for trial".

[237] The court is required to give a "hard look" at these disputed facts to determine if those facts are material to the proceeding. If nothing turns on those disputed facts it is not unnecessary for the court to hear evidence to resolve the non-material facts and further the court should make a final order resolving the matter.

[238] In this case, the so called "material facts in dispute" are not relevant to a fair determination of this case and do not require a trial. They are nothing but a further attempt by the parents to continue this litigation to prove they are right and their daughter and the society are wrong and that their plan for treatment is the best alternative.

[239] I find that the disposition of Crown ward is the only possible outcome.

[240] I have also considered subrule 2 FLR. This case has taken an inordinate amount of judicial resources that are completely out of proportion to the issues and the availability of court resources for other cases.

[241] I also echo the words of R., "I want this litigation to end so that I can focus on my mental health".

[242] There is no doubt the parents love R. and have worked hard to meet her needs but they need to now learn to respect her wishes and move forward in supporting her decisions.

8. Access

[243] With respect to access by the child to her parents, the child is still open to access to her mother, but in a supervised setting and she is also willing to attend family counselling with her mother. She is willing to consider supervised access to her whole family.

[244] The parents oppose supervised access and for this reason have refused to see R.

[245] Both parents have become so focused on proving that the allegations made by R. are false that they are unable to put aside their strongly held views and agree to access on terms that make their daughter feel comfortable. It is the parents view that to agree to supervised access will send the implicit message to R. that they did something wrong. The parents stopped all sibling access after the temporary care and custody motion and this felt like a punishment to R. The parents should not withhold access as a punishment or a means of coercing their daughter to follow their wishes. It is unfortunate that the parents cannot put their own feelings aside and renew a relationship with their daughter.

[246] I find that there is also no genuine issue requiring a trial regarding access as any access must be in the discretion of the society with the consent of the child and on terms that make her feel comfortable.

9. Motion for Sibling Access

[247] R. is requesting a specified order for access to her brothers. It is submitted if access is left to the discretion of the society to be negotiated with the parents it will not happen. It is submitted that a court order for specified access would put the onus on the parents and if they did not permit the access then R. could decide if she wished to pursue further litigation. Although the society supports sibling access, it is concerned about the practicalities of a specified access order.

[248] The parents oppose this order and submit that this issue cannot be decided on a summary basis.

[249] In December 2013, arrangements were made for R. to have access to her younger brother that involved participating in Hebrew lessons and that the older brother would attend when he was available. These visits continued for about 15 visits and according to R. were pleasant and without incident. R was unable to continue with the Hebrew lessons due to her learning disabilities. All sibling access was terminated in April 2014, at the time of the temporary care and custody motion.

[250] The parties have been unable to agree to any other access and as a result R. has not had any contact with her siblings since April 2014. The parents maintain that the sibling access was damaging to R.'s brothers and that they do not wish to have access to R.

[251] I agree with the submission by counsel for the child, relying on the case of M.A.R.P. (Litigation Guardian of) v. Catholic Children's Aid Society that the court has discretion to order sibling access for a sibling in care to a sibling not in care absent consent from the parent.

[252] It is further submitted that there is no need to bring R.'s brothers into this litigation by having a trial on the issue of sibling access as the court has sufficient evidence to properly weigh the best interests of the siblings.

[253] The cases relied upon by counsel for the child are clearly distinguishable. In the cases relied upon, all of the children were in the care of a child protection society, the court had evidence regarding each of their specific needs and there was no issue of a caregiver complying with the order for sibling access.

[254] In this case, the court has no information about R.'s siblings and although it is clearly in R.'s best interests to have access to her siblings there is no evidence with respect to the best interests of the siblings. There is also the practical issue of forcing the parents to comply with an order of access. If the parents did not comply the next step would be a contempt proceeding or an order for police enforcement. I fail to see how this would be in the best interests of any of the children.

[255] I am also concerned that R.'s expectation that an order for sibling access would be complied with would only be another disappointment for her and could negatively affect her mental health. The benefit of continuing to pursue legal action for sibling access should be explored with R.'s treatment providers. It is well known that in the M.A.R.P. case although there was a legal victory of the child in care, he never saw his half-sibling as her mother would not comply with the order and left the jurisdiction.

[256] There are material facts in dispute on the issue of sibling access; I find that there is a genuine issue for trial with respect to the issue of sibling access. If it is being pursued then a trial will be necessary.

9. Conclusion

[257] I wish to thank all counsel for their hard work and efforts in advocating on behalf of their respective clients.

[258] In accordance with the recommendations in the Hryniak v. Mauldin case, I will remain seized with this matter if there is a trial regarding sibling access and for the continuation of the summary judgement regarding the society's request for a payment order by the parents and a restraining order.

[259] The issue of R.'s ability to determine who can communicate with her treatment providers is important for her ability to successfully manage her treatment needs and is within her rights to control. Further, in view of any potential conflicts with various treatment providers it is necessary that the order clearly identify R.'s right to control the release of her personal information.

[260] The summary judgement motion of the society is granted and there will be an order as follows:

1. The statutory findings pursuant to section 47(2) of the Child and Family Services Act are as follows:

(i) R.C.K. was born on […], 1999;

(ii) Her mother's full name is S.B.K.;

(iii) Her father's full name is J.K.;

(iv) Her religion is Jewish; and

(v) She has no Indian or native status.

2. The child R.C.K. born […], 1999, is a child in need of protection pursuant to sections 37(2)(f), (f.1), (g), (g.1), (h) and (i) of the Child and Family Services Act;

3. The child R.C.K. shall be made a Crown Ward and placed in the care of the Jewish Family and Child Services of Greater Toronto;

4. Access between the child, R.C.K. and her parents, J.K and S.K and her family, including in-person and telephone access, shall be at the discretion of the Jewish Family and Child Services of Greater Toronto, including supervision thereof, and in accordance with the wishes of R.C.K. and treatment recommendations;

5. A date shall be set with the trial co-ordinator for a continuation of this summary judgement motion with respect to the society's claim for a payment order by the parents and a restraining order, if that relief is being pursued;

6. A date shall be set with the trial co-ordinator for a focused trial before myself on the issue of sibling access if that relief is being pursued by the child; and

7. For clarity, there shall be an order that there will be no communication by any person with R.C.K.'s treatment providers, as defined pursuant to the Personal Health Information Protection Act and Health Care and Consent Act, without the prior express consent of both the Jewish and Family Service and R.C.K.

Released: May 4, 2015

Signed: Justice Roselyn Zisman