WARNING

The hearing in 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 judge may make an order:

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

where the judge 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 judge 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: May 31, 2016

Court File No.: Brampton 20100/15

Between:

The Children's Aid Society of the Region of Peel, Applicant

— AND —

I.P. (Mother) Respondent

— AND —

F.B. (Father) Respondent

Before: Justice L.S. Parent

Heard on: May 18, 2016

Reasons for Judgment released on: May 31, 2016

Counsel:

• G. Williams – counsel for the applicant society
• A. Goudimenko – counsel for the respondent, I.P.
• Y. Rosenberg – counsel for the child, A.B.
• F.B. – self-represented

PARENT, J.:

BACKGROUND

[1] The child who is the subject of this proceeding is A.B., born on […], 2004. A.B. is currently eleven (11) years of age. The parents are Ms. I.P. ("the mother") and Mr. F.B. ("the father"). The Respondents have been separated since 2010 although the mother returned to the father's home in May 2015 which resulted in them residing separate and apart under the same roof with A.B.

[2] On November 10th, 2015, A.B. was apprehended from the care of both his parents.

[3] On November 16th, 2015, the Society filed a Protection Application seeking that A.B. be found to be a child in need of protection pursuant to sections 37(2)(b)(i) and (g) of the Child and Family Services Act, R.S.O. 1990 c. C.11 ("CFSA") and an order placing him in the care of the Society for a period of six (6) months as a society ward.

[4] On November 16th, 2015, Clay, J. granted a temporary order, on a without prejudice basis, placing A.B. in the care of his father, subject to the supervision of the Society and seven (7) terms and conditions.

[5] The order also provided for access between A.B. and his mother and maternal grandmother at the discretion of the Society as to frequency, duration, location and supervision and in consideration of A.B. wishes. Counsel was also ordered for A.B.

[6] The temporary without prejudice order dated November 16th, 2015 is the current order in effect.

[7] On April 11th, 2016, the Society filed an Amended Protection adding that A.B. be found to be a child in need of protection pursuant to section 37(2)(a)(i) of "CFSA" in addition to the earlier plead sections and an order placing him in the care of his father pursuant to a six (6) month supervision order with conditions including terms of access between A.B. and his mother.

[8] The terms of access as outlined in the Amended Protection Application are that access be agreed to by the Respondents and the Society while taking into consideration A.B.'s wishes and to be supervised by an individual or agency approved in advance by the Society.

[9] The Society brings this motion for summary judgment pursuant to Rule 16 of the Family Law Rules ("FLR"), O. Reg. 114/99. It seeks an order granting (i) the statutory findings required under section 47(2) of the "CFSA"; (ii) that A.B. be found a child in need of protection pursuant to sections 37(2)(b)(i) and (ii) of the "CFSA" and (iii) that A.B, be placed in the care and custody of his father for a period of six (6) months, subject to supervision by the Society with conditions including that access between A.B. and his mother be agreed to by the Respondents and the Society while taking into consideration A.B.'s wishes and to be supervised by an individual or agency approved in advance by the Society.

[10] Prior to hearing submissions, counsel for the Society sought to amend its notice of motion regarding only the grounds upon which to find A.B. a child in need of protection. On consent of the parties, the notice of motion was orally amended to consider the finding on the basis of sections 37(2)(a), (b)and (g) of the "CFSA".

[11] Counsel for the mother also sought leave to file an additional affidavit served today on counsel and the father. Following submissions, the affidavit was permitted to be filed by the mother for the reasons set out in my endorsement dated May 18th, 2016.

THE PARTIES AND THEIR POSITIONS

[12] The Society submits that the evidence it presents on this motion, namely, the affidavit of H. Anand, a child protection worker, sworn April 4th, 2016 and the affidavit of M. Constantine, a child protection worker, sworn April 7th, 2016, establishes that there is no genuine issue requiring a trial. If this position is accepted, the Court is able to conclude on the motion material filed that the order it seeks is in the best interest of A.B.

[13] The father of A.B. supports the Society in its summary judgment motion regarding (i) the statutory findings, (ii) the findings in need of protection, and (iii) the disposition. The father has filed an affidavit sworn May 13th, 2016, which sets out his plan of care in addressing his child's needs and commitment to respecting the conditions sought by the Society in its request for a six (6) month supervision order.

[14] Counsel for A.B. also supports the Society in its motion regarding (i) the statutory findings, (ii) the findings in need of protection, and (iii) the disposition.

[15] The mother of A.B. supports the Society in its motion regarding the statutory findings only. Given the consent of all parties, I made an order regarding the statutory findings on May 18th, 2016.

[16] The mother contests the Society's request as it relates to finding in need of protection and disposition.

[17] The mother has filed an Answer and Plan of Care to the original Protection Application but not to the Amended Protection Application despite being ordered to do so by Clay, J., on February 24th, 2016, by May 9th, 2016. Counsel for the mother however confirms that the mother's position remains the one outlined in her Answer filed January 15th, 2016, namely the return of A.B. to her care.

[18] The mother requests that the summary judgment motion be dismissed and that the matter proceed to a trial on the issues of finding in need of protection and disposition. The mother relies on the following evidence in support of her position:

(a) Her affidavit sworn May 3rd, 2016;

(b) Her prior affidavits sworn January 5th and February 16th, 2016;

(c) The affidavit of the maternal grandmother, G.M., sworn May 3rd, 2016; and

(d) The affidavit of M. Zubkov sworn May 18th, 2016.

ISSUES TO BE DETERMINED

[19] The issues before the Court for determination are:

(i) Is there a triable issue for a finding that A.B. is a child in need of protection pursuant to section 37(2)(a), (b) and (g) of the "CFSA"?;

(ii) Is there a triable issue for a disposition for A.B. other than placing him in the care of his father pursuant to a six (6) months supervision order with conditions?;

(iii) Is there a triable issue that an order be granted allowing for access between A.B. and his mother to be agreed to by the Respondents and the Society while taking into consideration A.B.'s wishes and to be supervised by an individual or agency approved in advance by the Society?; and

(iv) If the Society's Summary Judgment motion is denied, what, if any, directions should be given by the Court?

THE LAW

A. Summary Judgment Motion

[20] Counsel agreed, and the father did not object, that Rule 16(1) of the FLR permits a motion for Summary Judgment to be brought in child protection matters such as the Amended Protection Application before the Court.

[21] If the summary judgment motion is requested in the context of a Protection Application, the Court must thereafter consider the requirements under section 40(1) of the "CFSA" which requires the determination of whether or not a child is in need of protection pursuant to section 37(2) of the "CFSA", the statutory findings pursuant to section 47(2) of the "CFSA" and as required by section 47(1) of the "CFSA", and the appropriate disposition under section 57 of the "CFSA" based upon a child's best interests.

[22] The factors which the Court must consider when deciding which order is in the best interest of the child can be found in section 37(3) of the "CFSA".

[23] In considering the orders under section 57, the Court must firstly consider the least disruptive option, namely one which does not remove a child from the care of a person who had charge of him or her prior to the apprehension. (See: section 57(4) of the "CFSA").

[24] There is also no dispute between the parties that Rule 16(6) of the FLR applies within the context of a child protection matter and requires that the threshold of that section be met, namely where there is "no genuine issue for a trial, the Court shall grant a summary judgment" (See: Children's Aid Society of Ottawa v. M.C., 2003 CarswellOnt 9373)

[25] The parties further agreed that Rule 16(6) sets out the test to be applied on such a motion, namely whether or not the moving party can establish, on a balance of probabilities, that there is no genuine issue for trial. Furthermore, counsel agree that the onus is on the Society to show that there is no genuine issue for trial. Once it has advanced a prima facie case then the onus shifts to the Respondent to show that there is a genuine issue requiring trial.

[26] Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 ("Hryniak") is the well-established commencement point for any analysis of the principles that apply on a summary judgment motion.

[27] The Court's decision in "Hryniak" sets out the threshold requirements of a summary judgment motion, namely that a determination that there is no genuine issue requiring a trial in a proceeding occurs when the judge is able to reach a fair and just determination on the merits on the motion requesting summary judgment.

[28] Paragraph 49 of the Court's decision can be summarized as the Court stating that such a situation arises when the summary judgment motion (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.

[29] In child protection matters, criteria (3) must also include consideration to permanency planning for the child(ren) involved in the proceedings before the Court.

[30] Case law further provides guidance to the Court in determining whether or not to grant a request for summary judgment.

[31] The Court's decisions in Children's Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (Ont. C.J.); Children's Aid Society of the Regional Municipality of Waterloo v. H. (T.L.) 2005 ONCJ 194, [2005] O.J. No 2371 (Ont. C.J.) establish that only a dispute regarding facts that a party is required to prove create a genuine issue for trial as such a fact is material if it is linked to the issue for determination before the Court. Accordingly, it is not every factual conflict that will preclude the granting of a summary judgment.

[32] Justice Pazaratz, in his decision of The Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (SCJ), stated at paragraph 43 that the criteria of a genuine issue for trial is met "…. where there is no realistic possibility of an outcome other than that as sought by the applicant."

[33] The other relevant sections of Rule 16 are as follows:

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 trial.

Evidence of Responding Party

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

Evidence Not From Personal Knowledge

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the Court may draw conclusions unfavourable to the party.

[34] In his decision in The Catholic Children's Aid Society of Toronto v. O.(G.), 245 A.C.W.S. (3d) 613 (Ont. C.J), Justice Sherr states the following at paragraphs 74 and 75:

"Summary judgment should proceed with caution. It is not, however, 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. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future." See: Jewish Family and Child Services of Toronto v. A.(R.) 2001 O.J. No. 47 (SCJ).

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

[35] The jurisprudence and the ambit of Rule 16 of the FLR mandates the Court to adopt a thorough and careful examination of the evidentiary record when aske