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 45(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:

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.

(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.

(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.

Court Information

Ontario Court of Justice

Date: 2015-09-25

Toronto. Court File No.: CFO 13 11075

Parties

Between:

Children's Aid Society of Toronto, Applicant,

— AND —

L.S. and M.C., Respondents.

Before: Justice P.J. Jones

Heard on: July 6, 2015

Ruling on Summary Judgment Motion released on: September 25, 2015

Counsel

Ms. Cristina Siviero — counsel for the applicant society

Mr. Gilead Kay — counsel for the respondent mother

Mr. Thomas Sosa — counsel for the respondent father

Decision

JONES, P.J. J.:

[1] Introduction

This is my ruling on the summary judgment motion brought by the Children's Aid Society of Toronto (the Society) relating to the child M.S.C., born […], 2013, wherein the Society seeks a final order of crown ward without access for the purposes of adoption.

[2] Respondents' Position

This application is resisted by L.S. (the mother) and M.C. (the father) who urge the court to dismiss the summary judgment motion and order that the case be sent to trial. It is their position that, on the evidence before the court, there is a genuine issue requiring a trial.

[3] Agreed Statement of Facts

At the commencement of the motion, the parties presented the court with an Agreed Statement of Facts on finding only. The parties agreed to the statutory findings of fact and consented to a finding under section 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, Chapter C-11, as amended (the Act). From a reading of the Agreed Statement of Facts, it is clear that the finding is based on the parents' addiction to drugs: illicit drugs (admitted to by the mother) used during her pregnancy up to the date of delivery, and addiction to prescribed oxycontin (admitted to by the father).

[4] Evidentiary Approach

The Agreed Statement of Facts is sufficient to support the finding, but is quite spare as to the evidence cited in support. In the context of the summary judgment motion, the Society adduced further detailed evidence touching both on finding and on disposition. I have reviewed all the evidence adduced, and provided such additional evidence has sufficient hallmarks of reliability, I have considered that evidence in reaching my decision on the motion. In my opinion this approach is authorized by the terms of the Agreed Statement of Facts signed by the parties. The following term is included in the mandated form, namely:

WE AGREE:

(a) that the statements made on this form are true; and

(b) that this form may be filed with the court and may be read to the court as evidence, without affecting anyone's right to test that evidence by cross-examination or to bring in other evidence.

FACTUAL BACKGROUND

[5] Ages of Parents

L.S. (the mother) is 44 years of age and M.C. (the father) is 30 years of age.

[6] Child's Position in Family

M.S.C. is the third child born to this mother and the first child born to this father.

[7] Mother's Prior Children and History

The mother's two older children, (6 and 10 years old) are currently not in her care. From the birth of these older children until 2010, the mother cared for them. Society records show that during this time she struggled with mental health issues, drug and alcohol addiction issues, and domestic violence issues. In 2009, after she tested high for cocaine, metabolite and benzolecgonine, she attended and completed a sixteen week program at Homestead Salvation Army. Unfortunately, she was unable to maintain abstinence, and when she relapsed, she agreed to place the children temporarily with their father (such placement has continued to date). This information came from the Society files and was not denied by the mother.

[8] Initial Society Involvement

In July, 2013, the Society received an anonymous tip concerning the mother—that she was pregnant and abusing alcohol and drugs. When the Society interviewed the mother and the father in early October, 2013, the mother denied any use of illicit substances since April, 2013. The father acknowledged that he was addicted to prescribed oxycontin and said that he was about to commence an in-house treatment program at the Jubilee Treatment Centre on November 5, 2013.

[9] Mother's Relapse and Admission

Between October 8, 2013, and November 12, 2013, the parents cancelled five meetings with the Society worker. Finally, on November 12, 2013, the mother met with the Pregnancy and Aftercare Worker, Claudette Bled to discuss her plans for the new baby. At that meeting, the mother acknowledged that she had relapsed and had been using cocaine (she admitted to using cocaine just a few days prior to that meeting). She admitted to using cocaine with the father who, she said, used cocaine and oxycontin.

[10] Hospital Disclosure and Drug Screen

On […], 2013, the mother went to the emergency department at the North York General Hospital complaining of pre-labour pain. At that time, the mother admitted to the hospital social worker Ms. Solomon-Ament that she had recently used drugs. As a result of this disclosure, a urine test was conducted. In that screen, the mother's urine tested positive for the following substances: cocaine, marijuana, opiates, benzodiazepine, tricyclics, phencyclide and ocycodone. The hospital social worker phoned the Society to report the results of the screen.

[11] Society Meeting and Apprehension Notice

With this added information, the Society convened a meeting with the mother and two of mother's support workers, namely, her mental health counsellor, Ms. Norton and Ms. Brunino, her outreach counsellor with Black Creek Community Centre. At this meeting, treatment options were discussed, and Ms. Bled made it clear that the Society would be proceeding to apprehend the child at birth given the untreated addiction issues of the parents. In the circumstances, Ms. Bled suggested that the parents look to identifying a possible kin placement for the baby.

[12] Birth of M.S.C.

On […], 2013, M.S.C. was born. M.S.C. was one month premature and weighed 3 pounds, twelve ounces. The mother admitted to using marijuana and to have taken a Percocet during labour.

[13] Apprehension and Initial Kin Placement

M.S.C. was apprehended at birth. When she was ready for discharge from the hospital on January 2, 2014, she was placed with her paternal grandmother and her paternal aunt on a kin placement basis as suggested by her parents.

[14] Kin Placement Breakdown

This kin placement was short lived. On January 22, 2014, the kin caregivers notified the Society that they wanted M.S.C. removed from their home due to conflicts with the mother.

[15] Foster Care Placement

M.S.C. then went into foster care and has been living at the same foster home since her apprehension.

[16] Mother's 2014 Struggles

In 2014, the mother struggled with her drug addiction and mental health condition. She continued to use illicit substances, was charged with a number of criminal offences including a charge of assaulting the father, was granted bail on terms, one of which was to have no contact with the father and was charged with breaching this term. The mother and father separated and reconciled a number of times in 2014. As to the charge of breaching her recognizance of bail, the mother acknowledged to the worker that she knowingly breached her bail when she called the father and asked him to meet her at his apartment; she said she did so because she missed him and had not seen him for a long time. The mother was also charged with a number of theft offences that year which she attributed to her mental health and drug addiction. She said that she stole in order to buy drugs.

[17] Mother's Treatment Attempts in 2014

In 2014, the mother did attempt to access treatment for drug addiction. According to the Society's evidence, which is not refuted by the mother, the mother was in and out of a number of treatment facilities, and if not in treatment, was making plans to attend a treatment facility. In 2014, the mother spent time in the Salvation Army Homestead residence, in the Toronto East Detox Centre, and at the Gernstein Centre. She said that she was making plans to attend the Jean Tweed Centre.

[18] Mother's Unstable Living Situation in 2014

In 2014, the mother spent time at the father's apartment (sometimes with the father and at other times not with the father.) At times she was homeless and at other times she was in jail.

[19] Mother's Multiple Relapses in 2014

On a number of occasions in 2014, the mother admitted to suffering a relapse to illicit drug use. The mother admitted to the worker that she had relapsed in March 2014, in July 2014, in September 2014, in November 2014 and in December 2014. She admitted to using marijuana, and crack cocaine. She told the worker that she often used drugs with the father who was using crack cocaine, morphine purchased on the street, methadone, benzodiazepine and oxcycontin.

[20] Mother's Poor Access Attendance in 2014

The mother's failure to exercise regular access during 2014 is indicative of her unstable life style and her use of illicit substances. Between February 19, 2014 and June 1, 2015, the mother attended 38 visits out of a total of 76 visits offered. Even this figure overstates her regularity of access in 2014 as in February 2015, the mother began to exercise access on a regular basis. Many times the mother gave specious excuses for not exercising her access only to later admit that she had not attended because she had relapsed and had consumed illicit drugs.

[21] Mother's Mental Health and Criminal Activity

The mother told the Society worker that she has struggled with drug addiction issues and mental health issues for many years. She linked her criminal activity to addiction and mental health issues. The mother acknowledged that she was diagnosed with a major depression in 2006 and has been involved with Lisa Norton, a community mental health worker, since 2012. In 2012 the mother became a patient of Dr. Lamba, a psychiatrist who works out of the True North Medical Clinic at St. Michael's hospital. The material filed did not adequately address whether the mother was compliant with treatment in 2014. Suffice it is to say, that the mother was using illicit drugs during this period and was living a chaotic life style with numerous criminal charges.

[22] Mother's Situation in Early 2015

In early 2015 the mother acknowledged that she continued to use drugs with the father and continued to share his apartment. On January 2, 2015, the mother told her worker Sarah Townsend that she was planning to move out of the father's apartment. She said that the father was overdosing with gagpentin and methadone that he had suffered two seizures and she was concerned that she would end up burying him. She said that she had not been taking her anti-depressants for two weeks as she was struggling to find a doctor to renew her prescription and was trying to get in to see the psychiatrist at Breakaway Addiction Services.

[23] Mother's Continued Drug Use in January 2015

On January 22, 2015, at a meeting with Ms. Townsend, the mother admitted to using a large amount of substances, and that the previous summer she had used drugs every day. As well, she admitted to using crack cocaine the previous day.

[24] Mother's Poor Access in Early 2015

In early February the mother missed a number of visits, giving a variety of reasons. According to Society records, in the six months prior to February 26, 2015, the mother had attended eight of a possible twenty-two visits.

[25] Mother's Separation and Treatment Plans

January and February, 2015 remained a very unstable time for the mother. She continued to use drugs and continued to struggle to find a treatment facility. On February 20, 2015, the mother advised the worker that she had separated from the father and was now staying at Nazareth House and would begin the Jean Tweed program on March 2, 2015.

MOTHER'S SITUATION SINCE MARCH 2015

[26] Jean Tweed Program Completion

On March 2, 2015, the mother began a three week outpatient program at the Jean Tweed Centre which she successfully completed.

[27] Mother's Health Concerns

On April 10, 2015, the mother called the worker and told the worker that she was "still sick" and asked for a face to face meeting.

[28] Mother's Relapse in April 2015

On April 18, 2015, the mother met with Ms. Townsend and she told Ms. Townsend that she had been charged with two new theft-under charges. She told her worker that a month prior to that meeting she had been charged with shoplifting at HMV and that two weeks prior to the meeting she had been charged with shoplifting at Winners. The mother acknowledged that she had used drugs on April 8, 2015. This usage was first discovered in a urine screen taken at Nazareth House which resulted in her removal from that residence until she completed a period at the detox centre at St. Joseph's Hospital.

[29] Mother's Drug Use Prior to Detox

She acknowledged that she had used both marijuana and cocaine prior to her admittance to the detox at St. Joseph's Hospital.

[30] Mother's Recovery Efforts

The mother told the worker that she was working on relapse prevention and was attending Alcoholics Anonymous and Narcotics Anonymous.

[31] Mother's Abstinence Since April

Since April there is no evidence before me that the mother has relapsed. It is the mother's evidence that she has not used illicit drugs since April 8, 2015.

[32] Mother's Separation from Father

The mother indicated in her affidavit material that she is now living separate and apart from the father since February 2015, with no intention of reconciling with him.

[33] Pattern of Reconciliation

However, it is also clear that the mother and father have separated and come back together on a number of occasions over the last year and one half. I accept the evidence that the mother told the Society that she wished to leave the father on March 13, 2014, May 6, 2014, July 18, 2014, October 23, 2014 and November 20, 2014. Each previous time the parties reconciled.

[34] Mother's Stable Housing

At the end of June, the mother obtained stable housing through the Canadian Mental Health Association and for the first time in this case the mother has had independent housing from the father. Prior to this, the mother had to choose between the shelter system and the father's apartment.

[35] Mother's Regular Access

Since February, the mother has exercised access on a regular basis and the access has gone well.

[36] Mother and Child Access Program

As of June 22, 2015 the mother and M.S.C. have been enjoying access at the Mothers and Kids Too program operated through the Jean Tweed Centre which runs three days per week from 8:30 a.m. to 4 p.m. Monday, Tuesday, and Thursday.

[37] Mother-Child Relationship

The relationship between the mother and child is described in very positive terms. The mother is described as "confident and secure in her parenting skills and abilities to care for her daughter." Now that the mother is exercising her access regularly, M.S.C. is comfortable with her mother and runs happily to see her at access times. The mother is able to comfort and soothe her daughter.

FATHER'S PERSONAL HISTORY AND CURRENT SITUATION

[38] Father's Recent Abstinence

The father has also struggled with addiction issues since the birth of his daughter. In his affidavit filed in response to this motion he describes himself as entirely clean for three months and as exercising his access on a regular basis since April, 2015. There is no evidence that the father has used drugs since April 2015.

[39] Father's Non-Denial of Prior Drug Use

Prior to that time, the father does not confirm or deny the statements contained in the Society's material as to his self-reported drug use in 2014, nor does he refute the statements made by the mother as to his drug use in 2014 and 2015.

[40] Father's Addiction History

The father told the worker that he has had an addiction problem since he was 23 years old. He told Ms. Townsend that prior to this reported period of abstinence (from April-July, 2015), he had not been clean for longer than 20 days while in the community or eighty days while incarcerated. In the Agreed Statement of Facts the father agreed to have an addiction to prescribed oxycontin. According to the mother, the father also abuses cocaine, gagpentin, and methodone purchased on the street. I accepted the evidence of the mother on this point.

[41] Father's Treatment Attempts

On a number of occasions since the birth of M.S.C. the father has attended at detox centres. Many times he told the worker Ms. Townsend that he anticipated entering residential treatment which to date has never materialized.

[42] Father's Inconsistent Statements

The father told the worker on a number of occasions that he had not used for a number of months in 2014 and in early 2015 only to later retract such statement.

[43] Father's Criminal Record

The father has a lengthy criminal record. His criminal convictions date back to 2006 and they include convictions for possession of illegal substances such as cocaine, theft under, failure to comply with recognizance/probation, and possession of property obtained by crime. Since M.S.C.'s birth the father has been arrested and charged multiple times. On January 17, 2014, the father was charged with assault, theft, mischief and breach of probation. On April 16, 2014, the father was charged with theft under. On April 25, 2014 the father was charged with the mother with failure to comply with probation orders and possession of property obtained by crime. On July 8, 2014, he was charged with theft and failure to comply with probation. The mother indicated the father had been arrested on February 2, 2015, but she did not tell the worker what the nature of the charge was. There is no evidence that the father has been charged since that date.

[44] Father's Current Commitment

The father swore that he is now committed to a drug free life and has not consumed any drugs for three months. He indicated that he attends Alcoholics Anonymous and Narcotics Anonymous, 4 to 6 times per week. However, it does not appear that he has actually attended any treatment programs other than detox centres.

[45] Father's Poor Access Attendance

Since late April the father has begun to attend access on a regular basis. His attendance before that was very poor. From February 19, 2014 to May 26, 2015, the father attended 17 of the 76 access visits offered to him.

[46] Father's Relationship with Child

The father is an inexperienced father who lacks confidence in handling the baby. Given his lack of attendance at access, M.S.C. does not know the father well and is hesitant in her interaction with her father.

[47] Father's Desire for Reconciliation

In the father's material, he makes reference to his relationship with the mother and actually says, "The Society recognizes our engagement in programming and current consistency with visitation, but remains dismissive of our desire for family reunification." I take from this statement and the tenor of his responding affidavit that he would like to reconcile with the mother once again. However, there is no evidence before me that the parties have resumed their relationship since the end of February, 2015 and the mother has expressed a desire to terminate her romantic relationship with the father.

M.S.C.

[48] Kin Placement Considerations

Currently, there are no proposed kin placements for the child. In January, 2014, the Society approved the paternal grandmother and the father's sister as kin caregivers. The Society placed the child there only to have the caregivers, within weeks of the placement, request that the child be brought into care. In 2015, the mother suggested the paternal grandfather be considered as a caregiver, but later withdrew this plan because she told the worker that the grandfather was once again abusing alcohol. Finally, the mother suggested her sister as a kin caregiver. That plan was being assessed but before a decision was made, the sister withdrew her name as she was not prepared to plan long term for the baby.

[49] Child's Current Status

M.S.C. has now been in care for twenty months in the same foster home. By all accounts she is well bonded to her foster family and is a beautiful little girl who "loves to dance, be active and to explore." She is meeting her milestones and appears to have no special needs.

ISSUES TO BE DETERMINED

[50] Issue 1: Summary Judgment Appropriateness

Is this an appropriate case for summary judgment under the current summary judgment rule?

[51] Issue 2: Access Order

If crown wardship order is granted, should an access order be made, and if so, to whom?

SUMMARY JUDGMENT RULE

[52] Rule 16 of the Family Law Rules

Rule 16 of the Family Law Rules, O. Reg. 114/99 has recently been amended. It now reads as follows:

16(1) WHEN AVAILABLE

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

AVAILABLE IN ANY CASE EXCEPT DIVORCE

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

DIVORCE CLAIM

(3) In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12 (6). O. Reg. 114/99, r. 16 (3).

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5).

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

POWERS

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

Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5 (1).

ONLY ISSUE AMOUNT OF ENTITLEMENT

(7) If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount. O. Reg. 114/99, r. 16 (7).

ONLY ISSUE QUESTION OF LAW

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. O. Reg. 114/99, r. 16 (8).

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

(10), (11) Revoked: O. Reg. 69/15, s. 5 (4).

MOTION FOR SUMMARY DECISION ON LEGAL ISSUE

(12) The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(i) the court has no jurisdiction over it, (ii) a party has no legal capacity to carry on the case, (iii) there is another case going on between the same parties about the same matter, or (iv) the case is a waste of time, a nuisance or an abuse of the court process. O. Reg. 114/99, r. 16 (12).

EVIDENCE ON MOTION FOR SUMMARY DECISION OF LEGAL ISSUE

(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission. O. Reg. 114/99, r. 16 (13).

DISCUSSION

[53] Rule 16 Framework

Rule 16 contains the new road map for determining summary judgment motions. This rule directs the court to first review the evidentiary record by giving it a "good hard look" to determine whether there is a triable issue, and if no such issue is found (provided the evidence supports the order sought) the court is directed to grant summary judgment. (Rule 16(6))

[54] Prior Summary Judgment Approach

Prior to the recent amendments to Rule 16 of the Family Law Rules, once a judge found a genuine issue for trial, that issue had to be sent to trial. A judge was not to find facts, weigh evidence or draw factual conclusions. See Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161. Conversely, if a judge found no genuine issue for trial, she was to make a final order.

[55] Enhanced Adjudicative Powers

Since the recent amendments to Rule 16, a judge hearing a summary judgment motion no longer has such a limited role at a summary judgment motion. She now has enhanced adjudicative powers. Unless a judge is of the opinion that it is in the interest of justice that the enhanced powers only be exercised at trial, a judge may weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence before her and may finally resolve the dispute if she is confident that she can fairly resolve the dispute without a trial (see Rule 16 (6.1)). As well, she may order one or more parties to give oral evidence to assist her in determining whether there is a genuine issue requiring a trial. (See 16(6.2))

[56] Guidance from Hyrniak v. Mauldin

Justice Karakatsanis in Hyrniak v. Mauldin, 2014 SCC 7 paras 56 and 57 provides some guidance into what she meant when she refers to the term "interest of justice" in the context of the summary justice rule. She wrote:

56…The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers---and the purpose of the amendments---would be frustrated.

57 On a summary judgment motion, the evidence need not be equivalent to that at trial but must be such that the judge is confident that she can fairly resolve the dispute…

[57] Genuine Issue Requirement

Justice Karakatsanis notes that these new powers are not to be employed by a judge hearing a summary judgment motion unless she determines, on the evidence before the court, that there is a genuine issue requiring a trial. See Hyrniak v. Mauldin, 2014 SCC 7.

[58] Material Facts in Dispute

In deciding whether there is a genuine issue requiring a trial, the judge must review the evidence to determine whether there is a material fact in dispute that requires a trial for its resolution.

[59] Material Facts and Genuine Issues

The relationship between a genuine issue for trial and a material fact was articulated by Associate Chief Justice John W. Morden in Irving Ungerman Ltd v. Galanis, (1991), 4 O.R. (3rd) 545, at page 550 when he wrote:

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."

[60] Summary Judgment Motion Evidence

Summary judgment motions generally consist of affidavit evidence, documentary evidence, and transcripts. A judge hearing a summary judgment motion is generally left to grant or dismiss the motion on the basis of a paper record, unless she were to order an oral hearing under Rule 16(6.2) for the purposes of exercising any of the powers under Rule 16(6.1) i.e. weigh evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence.

[61] Quality of Evidence Assessment

A judge's assessment of the quality of the evidence is a fundamental factor in deciding whether she is prepared to resolve a dispute by way of a summary judgment motion. Justice Karakatsanis in Hyrniak v. Mauldin, 2014 SCC 7 made it clear that the quality of the evidence on the summary judgment motion need not be the equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute without a trial (paragraph 57 of the Hyrniak decision supra.).

[62] Evidence Quality in Child Protection Cases

In my recent decision, Children's Aid Society of Toronto v. O.G. [2015] O.J. No. 1124, I attempted to interpret this comment "a judge must be confident that she can fairly resolve the dispute without a trial" on the evidence adduced when the summary judgment rule allows for the admission of hearsay evidence and wrote in paragraph 51 and 52:

On a summary judgment motion, a judge must evaluate the quality of the evidence. The established jurisprudence continues to be relevant in this regard. In order to have confidence that she can fairly resolve the dispute, it will still be important for the judge to analyze the issues in the case and identify what are the disputed facts and whether those facts are material to resolution of the matter.

Clearly, not all facts need 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.

IS THERE A GENUINE ISSUE REQUIRING A TRIAL

[63] Analysis of Facts

I begin my analysis by reviewing the facts and giving them a "good hard look" to determine whether there is a genuine issue requiring a trial for its resolution.

[64] Mother's Long History of Addiction

In this case the mother has a long history of drug addiction only recently brought under control. As recently as February 2015, there is compelling evidence that the mother's drug use was out of control. Certainly, in 2014, she was struggling with drug addiction and mental health issues, was homeless and was involved in an abusive relationship with M.S.C.'s father.

[65] Mother's Recent Progress

Since the end of February, 2015, the mother provided evidence that she has attended treatment, has terminated her abusive relationship with the father of the baby, has found permanent housing and has surrounded herself with a therapeutic team of professionals who are assisting her in dealing with her addictions. In support of this contention, I received a number of affidavits from treatment providers and various letters of support from her treatment providers detailing the good progress the mother has made in their programs.

[66] Mother's Parenting Capacity

Since February, 2015, the mother began to regularly visit with the baby. Her interactions with M.S.C. have demonstrated that if she were able to remain drug free and mentally healthy, she has the ability to provide more than adequate parenting to this child.

[67] Mother's Current Engagement

In July, when the motion was argued, the mother was exercising access to M.S.C. three days per week at the Mothers and Kids Too program operated through the Jean Tweed Centre. Her attendance was regular and her involvement in both child care programs and drug prevention programs was very good.

[68] The Critical Question

In these circumstances, can I be satisfied that there is no genuine issue requiring a trial for its resolution? Can I be satisfied that there is "no realistic possibility of an outcome other than that as sought by the applicant." See Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 Justice Pazaratz, para. 43.

[69] Permanence and Adoption

In this case, the Society is seeking crown wardship without access with a view to placing the child for adoption. M.S.C. is an attractive toddler with no identified special needs who is currently meeting her milestones. There is no question in my mind that if I were to make M.S.C. a crown ward, with or without access, the Society would proceed as soon as possible to place the child for adoption. In due course, M.S.C. would be adopted and would become a member of a new family. In family law, there can be no more important decision a court can make than to permanently sever a family tie.

[70] Statutory Purposes

The Child and Family Services Act, R.S.O. 1990, c.C.11, as am.) (the Act) has the "best interests, protection and well-being of children" as its paramount purpose". This Act also enumerates other purposes that should be considered by the court provided they are consistent with the best interest, protection and well-being of children. Of particular note in this case is section 1(2) (1.) and (2) which read as follows:

(2) OTHER PURPOSES-----The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

[71] Uncertainty About Mother's Future

On the evidentiary record before me, I am left wondering how the mother is doing two months after the motion was heard and whether she has continued to live separate and apart from the father and whether she has continued to maintain a drug free life style. I am aware that if the past were the only predictor of future behaviour, she would have already relapsed. However, past history may be the best predictor of future behaviour, but it is not the only predictor.

[72] Parental Rehabilitation and Hope

Although long standing drug addiction is difficult to conquer, some people do just that. Child welfare law is about protection for children, but it is also about the rehabilitation of parents and is about hope. The question of whether this mother is one of the persons who has turned the corner on her addiction and is now able to successfully parent her child is a material fact that would affect any dispositional order I would make.

[73] Prior Approach Under Rule 16

Prior to the rule 16 amendments, I would have made an order for a trial of an issue and specified the facts in dispute under 16(9) of the Family Law Rules.

[74] New Approach: Mini-Trial

Now, there are other choices. Under the new amended rule, I am able to find facts in a situation short of a trial. If I am satisfied that such powers can be employed short of a full trial without offending the interest of justice, I can now weigh evidence, evaluate credibility, and draw inferences on a review of the paper record alone. As well, for the purposes of exercising these expanded adjudicative powers and in order to determine whether there is a genuine issue requiring a trial for its resolution, Rule 16(6.2) permits me to order that oral evidence be presented by one or more of the parties, with or without time limits. I propose to order a short mini trial to determine whether there is a genuine issue requiring a trial for its resolution.

[75] Guidance on Mini-Trial Structure

Justice Karakatsanis in Hyrniak supra paras 61, 63 and 65, provides guidance on how this mini trial should be structured so that this oral hearing not become unmanageable. She wrote:

Under Rule 20.04(2.2), the motion judge is given the power to hear oral evidence to assist her in making findings under Rule 20.04(2.1). The decision to allow oral evidence rests with the motion judge since, as the Court of Appeal noted, "it is the motion judge, not counsel, who maintains control over the extent of the evidence, to be led and the issues to which the evidence is to be directed…."

This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure.

(65) Thus, the power to call oral evidence should be used to promote the fair and just resolution of the dispute in light of principles of proportionality, timeliness and affordability. In tailoring the nature and extent of oral evidence that will be heard, the motion judge should be guided by these principles, and remember that the process is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.

NEXT STEP

[76] Oral Evidence Order

In the circumstances of this case, I propose to order oral evidence be presented by the mother, father, and by the Society, under Rule 16(6.2).

[77] Purpose of Mini-Trial

Such a mini trial would allow me to hear directly from the mother and such other persons or parties as I determine would be of assistance to me in deciding whether the mother has made sufficient progress to send this matter forward for a trial of an issue on this point. To approach this case in this way is, in my opinion, consistent with the principles of proportionality, timeliness and affordability.

[78] Scheduling Directions

Accordingly, would the trial co-ordinator kindly contact the parties and arrange for a conference where I will give directions and set a date for the mini trial.

Released: September 25, 2015

Signed: Justice P.J. Jones