WARNING

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

(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.

Court File and Parties

Court File No.: FO-15-0000301

Date: 2015-09-30

Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society, Applicant,

— And —

K.M. and J.G., Respondents.

Before: Justice Barry M. Tobin

Heard on: September 16, 2015

Ruling released on: September 30, 2015

Counsel:

• Katelyn Wiley for the applicant society
• Robert J.M. Ballance for the respondents

TOBIN J.:

RULING ON SUMMARY JUDGMENT MOTION

1: INTRODUCTION

[1] The respondents, K.M. and J.G., brought a Summary Judgment Motion, pursuant to Rule 16 of the Family Law Rules seeking an order dismissing the applicant's child protection application.

[2] The applicant Society opposes the motion.

[3] On this motion, the evidence before the court consists of the following affidavits: for the respondents – K.M., N.M. and A.M., all sworn September 10, 2015; for the applicant - Lana Doan and Melissa Craig, both sworn September 14, 2015. The deponents were not subject to oral questioning.

2: FACTS

[4] The respondent, K.M. ("mother"), is the mother of the child, G.M., born …, 2014 ("G.").

[5] The respondent, J.G. ("father"), and the mother have resided in a common-law relationship since March 2014. Mr. G. is a parent of the child within the meaning of the Child and Family Services Act ("Act").

[6] The respondents are also parents of the child, B.G., born …, 2015 ("B.") who died when he was six weeks old, on …, 2015.

[7] On June 21, 2015, Father's Day, the respondents and children returned to their home around 10:45 p.m. having spent a busy day with family. The children were put to bed around 11:00 p.m., G. in her own room and B. in the parents' bedroom. He slept on a crib mattress that was placed at the foot of the respondents' bed. The mother was not feeling well and had difficulty falling asleep so she and the father stayed up to watch a movie. They were on the couch in the room adjacent to their bedroom. B. could be seen from the couch where they sat. The mother believes she fell asleep while on the couch some time around 3:30 a.m.

[8] The mother recalls that sometime early that morning, the father told her that he had to go to work and that the children were still sleeping. She fell back to sleep, waking around noon because she heard G. playing in her room. Realizing that she had not heard B. the mother went into her bedroom. It was then she discovered that B. was lifeless and not breathing. She immediately called the father and then called for an ambulance at 12:07 p.m.

[9] It was because of the sudden unexpected death of B. that the police investigated, an autopsy was performed and the Society intervened to determine whether there was any risk to G.

[10] The results of the autopsy report were provided by the coroner, Dr. Drake, to A.M., the child's maternal grandfather. Mr. M. learned the following from the coroner:

• there was nothing in B.'s blood;
• the heart appeared strong and healthy;
• there was no strangulation or asphyxiation;
• B. appeared in good health and well cared for, there were no signs of injury or trauma; and
• there was no anatomical cause of death.

[11] A Society worker was informed about the autopsy report by a police officer in terms similar to those told to Mr. M.

[12] No issue was raised by either counsel regarding the admissibility of the autopsy results by reason of it being hearsay evidence, nor was the Court asked to draw any unfavorable conclusions to either party by reason of this autopsy evidence not being in the personal knowledge of the deponents. The autopsy results described have been accepted by all parties.

[13] Following its investigation, which included interviews with the parents, inspecting the maternal grandparent's home, receiving information from the investigating police officer and reviewing the police report, the Society does not allege any foul play regarding B.'s death.

[14] During the investigation by the Society, the mother and father reported a similar but not exactly the same sequence of events. The first interview with the parents occurred at the hospital the day B. died. The second interview took place at Society offices on August 21, 2015. The differences pertained mainly to the time events occurred. The differences referred to by counsel for the Society in submissions were as follows:

1. When interviewed at the hospital the day B. died, the mother reported that the father woke up at 4:00 a.m., as she believed that B. was crying, and that he went into the bedroom and took the baby into his bed to sleep. When interviewed by a worker at the Society offices on August 21, 2015, the father stated that he got up (from the couch) at 4:00 a.m. He asked the mother to come with him to bed but she was too tired to get up. He went into the bedroom, heard B. grunt so he picked up the child and soothed him back to sleep. He then put B. back on the child's mattress.

2. During the interview at the hospital, the mother stated that she remained sleeping until noon when she heard G. crying upstairs. She then realized that she had not heard B. crying. When interviewed at the Society on August 21, 2015, she reported that she woke up when she heard a toy drop and G. was playing upstairs. When asked about her previous report of hearing G. crying, the mother stated that was not the reason why she woke up.

[15] I am satisfied that these discrepancies are not material to the issues raised in this case. On which mattress B. slept and what woke up the mother are not material facts. The Society is not alleging any foul play regarding B.'s death and the evidence is uncontradicted that the mother woke up around 12:00 p.m. on that day.

[16] It is also common ground among the parties that the police investigation is closed. No charges were laid.

[17] The Society's investigation with respect to the care of G. revealed:

• she appeared to be a very happy baby, well fed and chubby;
• she smiled and babbled and appeared to be very close and attached to her grandfather, Mr. M. He was observed to be attached to the child and protective; and
• the parents began residing with G. at the home of the maternal grandparents following B.'s death. There were no concerns noted by the worker with the premises.

[18] G.'s medical needs are being met. She is described by the mother as a happy and healthy child who is developing without issue or problems. G. normally wakes up between 7:00 a.m. and 9:00 a.m. There is no evidence about when she actually woke up on June 22, 2015.

[19] The parents appeared to the maternal grandparents to be dedicated to the care and development of their children.

[20] Since B.'s death, the parents have resided with the maternal grandparents and are being comforted and assisted by the members of their extended families. They now have plans to move into an apartment of their own.

3: POSITION OF THE PARTIES

[21] The respondents' position on this motion is that there is no evidence in the record from which a court can conclude that G. can be found to be in need of protection by reasons of risk of physical harm caused by their failure to care for, provide for, supervise or protect her as required by subclause 37(2)(b)(i) of the Act.

[22] The Society's position is that a hearing is required to determine whether G. is at risk by reason of the parents' inadequate supervision and neglect on the day B. died. The factual basis for this submission is that the mother left G. unattended for approximately three to five hours that day and there are discrepancies in the different versions of events provided by the parents.

4: LEGAL CONSIDERATIONS

4.1 Summary Judgment Motions

[23] Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant to this case:

16. (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.

16. (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.

16. (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.

16. (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.

16. (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.

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

16. (6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

16. (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.

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

[25] The question of whether there is a genuine issue for trial must be determined in the context of the overarching principles in section 1 of the Act's primary purpose which is to "promote the best interests, protection and well-being of children": Children's Aid Society of Waterloo (Regional Municipality) v. L.(V.), [2006] O.J. No. 3785, (Ont. S.C.), at paragraph [48] as cited in Children's Aid Society of Haldimand and Norfolk v. M.(J.H.) and W.(C.D.), 2014 ONCJ 590 at paras. [44] and [45].

[26] 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 moving party to show that there is no genuine issue for trial: Children's Aid Society of Hamilton v. N.(M.), 2007 O.J. No. 1526 (Ont. S.C.J.) at para [28] and Children's Aid Society of Halton (Region) v. A.(K.L.), [2006] O.J. No. 3958 (Ont. C.A.) per Rosenberg J.A., at para [19].

[27] Summary judgment should proceed with caution. However, it is not limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence.

[28] A party answering a motion for summary judgment cannot just rest on bald denials; the party must put his/her best foot forward, showing that there is a genuine issue for trial: Children's Aid Society of Toronto v. T.(K.), 2000 O.J. No. 4736 (Ont. C.J.).

[29] The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material: Children's Aid Society of Toronto v. T.(K.), supra; and The Children's Aid Society of Waterloo (Regional Municipality) v. D.(C.A.), 2011 ONCA 684.

[30] On a motion for summary judgment the motions judge is entitled to assume the record contains all evidence the parties will present if there is a trial: Toronto Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5.

[31] In determining whether 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: Children's Aid Society of Toronto v. H.(C.), 2004 ONCJ 224, 2004 O.J. No. 4084; and Children's Aid Society of Hamilton v. R.(C.), 2006 O.J. No. 3442.

[32] Rule 16 was amended effective May 2, 2015 to closely correspond to Rule 20 of the Rules of Civil Procedures which also provides a summary judgment procedure. The goals, principles and framework to be applied under Rule 20 were recently considered by the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. With the similarity between the two rules counsel submit that Hryniak is applicable to the interpretation and application of Rule 16.[1] The use of a summary judgment procedure was succinctly described by the Court at paras 4, 5 and 28 as follows:

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.

This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

[33] The Hryniak formula requires the judge to engage in a two-step process on a summary judgment motion.

[34] First, the judge must determine on the state of the record before the court whether there is a genuine issue that requires a trial. If there is no genuine interest which requires a trial, summary judgment must be granted.

[35] There will be no genuine issue requiring a trial when the written record:

(1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

See Hryniak, at para. [49] and Trotter v. Trotter (2014), 2014 ONCA 841, 122 O.R. (3d) 625, para. [72].

[36] Second, if there appears to be a genuine issue requiring a trial, the court is to determine if a trial can be avoided by using the powers under sub-rules 16(6.1) and (6.2) to weigh the evidence, draw reasonable inferences and call oral evidence. These discretionary powers are available unless it is in the interest of justice to exercise them only at a hearing: See Hryniak, paras. [66] to [68] and Trotter, para. [75].

[37] The changes to the rules and as interpreted by Hryniak and Trotter are a response to the goal of enabling access to justice in the civil and family law context. As these cases provide, this goal is to be accomplished by fair, timely and proportionate procedures. This goal should also apply in the child protection context where the State intervenes in the family to protect children. The Society and persons caught up in these cases ought to be afforded an opportunity to have them addressed according to law and with the benefit of the rule changes as interpreted by these cases.[2]

4.2: Finding the child in need of protection

[38] The Society's position is that the child is in need of protection pursuant to subsections 37(2)(b)(i) which is formulated as follows:

37(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child,

[39] The risk of physical harm referred to is one that is real and likely, not speculative: See Children's Aid Society of Niagara Region v. P.(T.), [2003] O.J. 412 paras. 62 to 64. Proof of intent to harm is not necessary to find a child in need of protection: Jewish Family and Child Services v. K.(R.), 2008 ONCJ 774, at para. 28.

[40] Risk of physical harm caused by neglect or error in judgment is still risk of physical harm: Children's Aid Society of Niagara Region v. P.(T.) supra at para. 65.

5: ANALYSIS

5.1: Findings of fact

[41] The record is sufficient to make the necessary findings of fact. The facts in issue are narrow in focus and not in dispute. They are as follows:

(1) The children were put to bed on June 21, 2015 at approximately 11:00 p.m.

(2) G. was bathed, changed into her pajamas and then placed in her bed in her room.

(3) B. was placed on his crib mattress in the parent's bedroom.

(4) The mother slept on a couch in a room adjacent to the room in which B. was placed.

(5) The father checked on the children just before he left for work on June 22, 2015, reported to the mother and said goodbye to her before he left.

(6) G. normally wakes up between 7:00 a.m. and 9:00 a.m.

(7) The mother woke up at approximately 12:00 p.m. on June 22, 2015.

(8) During its investigation, the Society observed G. to be a happy and healthy child.

[42] These are the essential facts to be considered in applying the relevant legal principles.

5.2: Application of law to facts

[43] The only risk of physical harm is that G. may have been awake and unattended from somewhere between 7:00 a.m. and 9:00 a.m. until noon while the mother was sleeping in the home. During this period, G. was not supervised, fed or changed by the mother.

[44] This evidence when considered in the context of all of the evidence does not lead to the conclusion that it was likely (or probable) that G. was at risk of harm. She was in her bedroom and could be heard by the mother as was the case at around noon when G.'s actions awoke the mother.

[45] I cannot find on all the evidence that the child not being fed or changed during the time the child may have been awake and the mother asleep, is sufficient to ground a finding that she was or is in need of protection under sub-clause 37(2)(b)(i) of the Act. The evidence does not warrant a finding that the care of the child was so inadequate in these circumstances as to support a finding being made.

[46] Further, even assuming without deciding, that the sleeping practice employed with respect to B. was unsafe, I do not see how it posed or poses any risk of harm to G.

[47] I am satisfied that there is no genuine issue that requires a trial of the Society's claim. The issues raised in this case can be decided on this summary judgment motion. I do not see a judge making any different decision after a trial on these issues.

6: DECISION

[48] Accordingly, an order will go dismissing the Society's child protection application.

[49] Respondent's counsel submits that the Society was ill-advised to intervene and investigate. It was submitted that the commencement of the application to conduct an investigation was contrary to the provisions of the Act. With respect, I disagree. The Society was acting within its statutory mandate to determine whether G. was, or is, in need of protection. The Society did investigate as it should have.

Released: September 30, 2015

Barry M. Tobin Justice

Footnotes

[1] See Jewish Family and Child Service v. S.K., 2015 O.J. No. 2353.

[2] As to the applicability of family law access to justice proposals to child protection see Meaningful Change for Family Justice: Beyond Wise Words Final Report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters: April 2013: http://www.cfcj-fcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Family%20Law%20WG%20Meaningful%20Change%20April%202013.pdf (at page 4).