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,

(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.

(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

Date: November 14, 2017

Court File No.: C52534/10

Ontario Court of Justice

In the Matter of a General Application for an Order Terminating the Father's Access to M.M. and D.M., Twins Born on [...], 2006 Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11

Parties

Between:

Children's Aid Society of Toronto

Nicole Horwitz, for the Applicant

Applicant

- and -

O.M. -and- K.R.

Cherry E. Isaacs-Reynolds, for the Respondent father, O.M. No one appearing for the Respondent mother, K.R.

Respondents

Michal Harel, for the child D.M. Alawi Mohideen, for the child M.M.

Hearing Dates

Heard: July 20, 2017, August 1, 2017, and October 25, 2017

Justice: M. Sager

Reasons for Decision

Part One – Introduction

[1] The Children's Aid Society of Toronto (the society) has brought a motion for summary judgment within its Application seeking an order terminating the respondent's (father) access to the children (M.M.) born [...], 2006 and D.M. born [...], 2006, who were made Crown wards by order of Justice Harvey Brownstone on November 27, 2013. The order of Justice Brownstone includes provisions for access by the father to the M.M. and D.M. The father asks that the society's motion be dismissed.

[2] The issue for this court to determine on the society's summary judgment motion is whether the society's request for an order terminating the father's access to M.M. and D.M. raises an issue that requires a trial?

Part Two – Legal Considerations

2.1 Summary Judgment

[3] The society brings this motion pursuant to rule 16 of the Family Law Rules (the rules) – the summary judgment rule. The relevant provisions of rule 16 read as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

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. 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).

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.

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.

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.

POWERS

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

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

ORAL EVIDENCE (MINI-TRIAL)

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

[4] Rule 2 of the Family Law Rules requires the court to interpret the Family Law Rules in accordance with the primary objective of the Family Law Rules, which is to "enable the court to deal with cases justly." Subrule 2(3) provides that,

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

[5] In Children's Aid Society of Toronto v. L.S., 2017 ONCJ 506, Justice Debra Paulseth provides a succinct summary of how rule 16 is to be applied as set out by the Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7. In paragraphs 19-24, Justice Paulseth writes,

[19] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.

[20] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).

[21] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This is the mini-trial procedure set out in subrule 16 (6.2). 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 (paragraph 63).

[22] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).

[23] The court in Hryniak also set out the following:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).

b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).

c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (paragraph 34).

d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).

e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).

f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

g) 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 the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).

h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial (paragraph 58).

[24] The principles in Hryniak have been applied to summary judgment motions in many child protection cases since the amendments to rule 16 became effective. See: Children's Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378, per Justice Timothy Minnema; Children's Aid Society of Toronto v. L.S., 2015 ONCJ 527, per Justice Penny Jones; Catholic Children's Aid Society of Toronto v. A.G., [2016] O.J. No. 4474, per Justice Roselyn Zisman and this court's decision in Jewish Family and Child Service of Greater Toronto v. E.W. and R.C., 2016 O.J. No. 9.

[6] 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 that there is no genuine issue requiring a trial. See: Children's Aid Society of Hamilton v. M.N..

[7] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. See: C.R. v. Children's Aid Society, 2013 ONSC 1357.

[8] 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..

Part Three – Facts Not in Dispute

[9] The facts that follow in this part are not in dispute.

3.1 The Society's Evidence

[10] On November 27, 2013, the society and the parents of M.M. and D.M. signed a Statement of Agreed Facts in which they requested an order making the children Crown wards with access to the father and a paternal great aunt (aunt), A.M., as agreed to by the parties. The Statement of Agreed Facts includes the following fact:

"[Father] and [paternal great aunt] are committed to the children as reflected by their attendance at access visits each Saturday from 1:30 to 6:30 PM. The boys look forward to these visits which are extremely important to them and the plan is for these visits to continue to take place each Saturday and on other occasions as is consistent with the children's best interests."

[11] When the Statement of Agreed Facts was signed, the plan for the boys was to slowly increase the time they spent in the home of their aunt, with the possibility of moving into her home subject to the society's supervision. Were this to happen, the society would bring a Status Review Application requesting an order placing the boys with the aunt subject to the society's supervision. With that in mind, the final court order made based on the Statement of Agreed Facts provides that the father and aunt's access shall be,

"the following minimum periods of time and subject to [the paternal great aunt] meeting the expectations set out in the paragraph below: [only the sub paragraphs relevant to this motion are reproduced below]

a. Access shall continue to take place every Saturday according to the schedule which has been in place since July 2013.

e. [The father] shall have such access as agreed to by him and [the aunt] during [the aunt's] access time.

o. The society may suspend access for cause but shall return to Court seeking an order to vary/suspend access no more than 10 days following the suspension date."

[12] The Statement of Agreed Facts concludes with the following:

"This order is in the children's best interests in light of their extremely challenging behaviours and high needs as it will permit them to utilize the support and resources of the Society while maintaining their relationship with their father, other family members and each other. Further, the Society will continue supporting the children remaining in their current foster placements which will provide them with continuity and ensure the best chance of any service put in place being successful."

[13] On November 23, 2013, Justice Brownstone accepted the Statement of Agreed Facts, and ordered M.M. and D.M. be made Crown wards with access to each other, their father and their aunt. The order includes the terms set out in paragraph 11 above, specifically that the father and aunt shall continue to have access every Saturday and that the father shall arrange his access with aunt during her access time. The order of Justice Brownstone required the society to come before the court within 10 days of suspending the father's or the paternal great aunt's access to the boys.

[14] Following the final order of Justice Brownstone dated November 23, 2013, the society continued to assess the paternal great aunt's plan for the boys, who began to have overnight weekend and holiday visits at her home, but ultimately the boys were never placed in her care. On February 5, 2014, M.M. was moved to a new foster home where he continues to reside at the date of this motion. His brother D.M. joined him in the same home on April 24, 2014 and he too continues to reside in this home.

[15] As the final order of Justice Brownstone contemplated the father's access being arranged with the aunt who, it was anticipated, would have care of the children, other arrangements had to be made for the children's access to their father. On March 24, 2014, the society held a meeting and at that time decided that, as they were not moving forward with the plan to place the boys with the paternal great aunt, she would have access to the boys once per month and the father, who was seeing the boys every weekend at the paternal great aunt's house, would have access every other weekend from 1:00 p.m. to 4:00 p.m. with pick up and drop off at the society's Scarborough branch. This decision was made without the input of the father or paternal great aunt.

[16] On November 14, 2014, the society and the father agreed to move the boys' visits with their father to the society's Saturday Access Program as it appears the father missed some visits between May and November 2014 and had issues with arriving on time to pick up and drop off the children.

[17] Between the end of November 2014 and January 2015, the father consistently attended visits with the boys at the society's Saturday Access Program.

[18] The father did not attend his scheduled access visits on February 14, 21, 28, or March 28, 2015. On at least one of those visits, the father cancelled the visit last minute when the boys already arrived for the visit.

[19] In April 2015, due to the number of visits missed by the father and his inability to be on time for visits, the society advised the father that he was required to attend for the visits 15 minutes before they are scheduled to start; and, he must confirm with the foster father the day before the visit that he will be attending. If he does not, the visit will not take place. During a telephone call with the father on April 8, 2015, the society worker told him that the boys are "very disappointed" when a visit is cancelled.

[20] The society provides no evidence of the quality of the visits between May 2015 and November 2015 but deposes that the father missed visits on June 6, July 4, August 1, and, September 5, 2015.

[21] The society's evidence is that in November 2015, the father advised the foster father that he would not be able to visit the boys for two months due to his demanding work schedule and he had no contact with the boys between November 10, 2015 and February 2, 2016.

[22] After a visit with the boys on February 2, 2016, the society initiated a meeting with the father on February 9, 2016, during which the following was discussed:

(a) The society advised the father that they were going to return to court to seek a change to the boys' access to him;

(b) The society explained to the father how they believed the missed visits impacted the children and their stability;

(c) The father requested permission to take the boys to a birthday party on [...], 2016; and,

(d) Visits were scheduled for the father and the boys on February 12 and 27, 2016.

[23] On May 12, 2016, the father contacted the Children's Services Worker and asked to arrange a visit with the boys. The worker was concerned about the length of time the boys had gone without a visit from their father and asked the father to meet with her on May 18, 2016 to discuss her concerns. The father contacted the Children's Services Worker the day before this meeting was to take place to reschedule, as he was working and unavailable until after 5:00 p.m. The society rescheduled the meeting for May 30, 2016.

[24] On May 24, 2016, M.M. told his Children's Services Worker to tell his father that he would like to see him more. The Children's Services Worker told M.M. that the society has been encouraging his father to visit him and his brother regularly and be more involved in their lives, "however, his dad has not been able to follow through with these suggestions." The Children's Services Worker also told M.M. that they cannot make his father visit him, they can only "encourage him and remind him that it is important."

[25] The society re-scheduled the May 30, 2016 meeting with the father to June 20, 2016 "in order to discuss the Society's concerns regarding his absence from the boys' lives, his failure to attend visits and the impact this continues to have on his children." No explanation was given by the society as to why the meeting with the father did not take place on May 30, 2016 as previously scheduled.

[26] The Children's Services Worker deposed that "On June 27, 2016, [the father] rescheduled our meeting to July 4, 2016, and thereafter the Society rescheduled it to July 13, 2016." The society's evidence does not clarify how a meeting scheduled for June 20, 2016 can be rescheduled on June 27, 2016 and why it was moved again by the society to July 13, 2016. Furthermore, the society provided no evidence as to why visits were not scheduled for the boys to see their father after he contacted the society and requested a visit on May 12, 2016.

[27] On July 13, 2016, the current Children's Service Worker and the Children's Services Worker who was taking over from her met with the father. The society's evidence which was not denied by the father is that the following was discussed at this meeting:

(a) The Children's Services Worker deposed that the father was "reminded that we had not heard from him since March Break.";

(b) The father explained that he was busy at work and he thought that he had arranged with the foster father for the children to call him. The society told the father that this was not the arrangement and that he had been told that if he was not going to be able to attend access he had to let the society know. The society advised they would "look into phone calls";

(c) The society updated the father as to the boys' progress and explained to him once again the "negative impact of not being consistent in his attendance at access visits";

(d) The society told the father that the society is "looking at changing his access" and that as it has been a while since the boys saw him, his "visits would move back to the office and would be supervised";

(e) The Children's Services Worker told the father that the boys' act out following visits and that their behaviour improves when they do not see him; and,

(f) The Children's Services Worker told the father "he either starts consistently showing up for visits or stops attending altogether". A visit was "tentatively" scheduled for August 11, 2016 to be supervised by the Children's Services Worker.

[28] The society's evidence is that on August 9, 2016, the Children's Services Worker called the father and cancelled the visit scheduled for August 11, 2016, as the society felt that access was not in the children's best interest and that the society will be proceeding to court to vary the current order.

[29] The Children's Services Worker deposed that she met with both boys on August 23, 2016 and January 4, February 14, March 29, and April 10, 2017; and, with M.M. on May 24, September 22, and November 23, 2016, and March 13, 2017. At no time did she advise either boy that their father is asking to have access to them but that the society is not prepared to facilitate access.

[30] On May 24, 2016, in the presence of the Children's Services Worker and a Clinical Consultant who conducted a trauma assessment of M.M. and D.M., M.M. said, "I miss my mom,…I want to see my mom,…my dad doesn't come anymore,…when my mom was around, she would come all the time,…"

[31] The Children's Services Worker deposed that on September 22, 2016, M.M. told her that he has not seen his father in a long time and wondered if his dad no longer cared about him. The worker assured M.M. that his father cared about him and they discussed the father's work schedule and the fact that she had recently spoken to the father. The children's services worker deposed that "We talked about his dad's visits, how he doesn't come when he is supposed to and how he gets upset and disappointed when he does not show up. I said that we need to do something to make this better and suggested he write to his dad and I can encourage his dad to do the same."

[32] The society's evidence is that on March 8, 2017, while walking home from school, M.M. walked down the middle of the road and when asked by his foster parents why he did that, he said that he cannot see his mom, he cannot see his dad, what is the point of living.

[33] According to the evidence of the Children's Service Worker, on March 29, 2017, a year since the boys had seen their father, she met the boys at school and deposed that the following took place:

"a. I asked them if they remembered meeting with S.?

b. They said "yes", about adoption.

c. I explained that they were Crown Wards, meaning that the Society is acting as a parent for both of them because a long time ago his parents were struggling to care for them and the plan made was for the boys to possibly live with their Aunt [A.M.].

d. [M.M.] said that he remembered that this did not work out.

e. I said that the Judge had also decided that his father would have visits with the boys on a weekly basis and asked if this was happening.

f. [M.M.] said "no", that his dad visited sometimes every other week but has not visited in a year.

g. I said that this was hard on them.

h. I explained that we need to go back to court to talk to the Judge again about changing this rule because it was not happening.

i. I explained that each has their own lawyer and that the lawyers will talk to them about their thoughts and feelings around adoption and visits with their dad so that they can be their voice and speak to the Judge for them.

j. I said that everyone would have a chance to speak to the Judge about their thoughts and feelings, including their father and the Society."

3.2 Psychological Assessments

M.M.

[34] Between February 2011 and June 2017, M.M. had six psychological assessments by Dr. Daniel Fitzgerald. In 2011, M.M. was assessed to have a very low level of cognitive function. Dr. Fitzgerald assessed M.M. with having a Mild Intellectual Disability and reported that he demonstrates behavior that is indicative of Attention Deficit/Hyperactivity Disorder.

[35] In his second psychological report of M.M. dated September 11, 2012, when M.M. was six years old, Dr. Fitzgerald reported that M.M. continues to exhibit very concerning behavior and may suffer from Oppositional Defiant Disorder.

[36] On December 12, 2013, when M.M. was 7 years old, Dr. Fitzgerald completed his third psychological assessment of M.M. In his report, Dr. Fitzgerald writes that M.M. "is having regular access visits with his father and he reportedly enjoys these". Dr. Fitzgerald reports in his conclusion that M.M. "is now 7 years of age and continues to exhibit serious and concerning social, emotional and behavioral difficulties."

[37] Dr. Fitzgerald completed additional assessments of M.M. in September 2014, December 2016, and in June 2017. The reports can be summarized as follows:

(a) In the 2014 assessment, Dr. Fitzgerald report a significant change in M.M. academically, writing that he is "functioning closer to the average range in terms of his academic performance". While M.M. made significant gains academically, he continued to have ongoing and concerning social and behavioural issues. In this report, Dr. Fitzgerald notes that M.M. "has regular access with his father every other Saturday".

(b) In his December 2016 report, Dr. Fitzgerald writes that M.M. has had some "ongoing contact with his biological father but this access tends to have a disruptive impact on his emotions. The Society has initiated court documents to vary his access with his father on the premise that he is more stable when the access is less frequent." Later in the same report Dr. Fitzgerald notes that M.M. has not seen his father for "almost a year and he wonders about him."

(c) Dr. Fitzgerald reports that M.M. continues to have significant behavioral issues both at home and at school.

(d) Dr. Fitzgerald writes that M.M. "continues to grieve for the loss of his biological parents and has not resolved the issues around his family successfully. He is unlikely to have experienced a secure attachment to his parents in the first place and so their loss is associated with anger and ambivalence which gets acted out in a variety of ways. These unresolved issues make it difficult for [M.M.] to move on and establish new, secure attachments with caregivers." Dr. Fitzgerald reports that the assessment indicates that M.M. is suffering from "chronic feelings of depression and dysphoria".

(e) In his June 2017 report, Dr. Fitzgerald reports that M.M. is "experience very significant social, emotional and behavioral issues." Dr. Fitzgerald reports that there are strong indications that M.M. is suffering from mental health issues. Dr. Fitzgerald notes that the father is seeking access to M.M. and that inconsistent access by the father creates instability and is detrimental to M.M. Dr. Fitzgerald reports that M.M. must be protected from the "disruptive emotional turmoil that could be created through an unstable access arrangement…access should only occur if [M.M.'s] emotional and behavioral issues are well under control. Instability and unpredictability in his life can be extremely destabilizing for him and he will need a concerted effort from those around him in order to help him cope with his emotional and behavioral challenges and optimize his chance for future success."

D.M.

[38] Between February 2011 and the date of this motion, D.M. had five psychological assessments by Dr. Fitzgerald.

[39] In 2011, Dr. Fitzgerald reported that D.M. was also displaying intellectual functioning in the Borderline or low range and that it is possible he will have a learning disability. D.M. was considered to be a passive boy who had difficulty adapting to changes and required a considerable amount of support to manage the activities around daily living. Dr. Fitzgerald reported that D.M. did not display behavioural issues, impulsivity or aggression.

[40] In 2012, Dr. Fitzgerald's report continued to identify D.M. as having difficulty adapting to change and requiring a lot of support in daily activities. In this report, D.M. was identified as having overall cognitive ability in the Low Average range. As D.M. displayed difficulty with inattention and distractibility, Dr. Fitzgerald questioned whether he might have Attention Deficit/Hyperactivity Disorder.

[41] Dr. Fitzgerald's 2013 and 2015 assessments of D.M. can be summarized as follows:

(a) D.M. was reported to have some social, emotional and behavioural difficulties at home and at school.

(b) Test results pointed to D.M. having significant social and emotional difficulties.

(c) D.M. appears as sad and angry and is at high risk for the development of mental health issues.

(d) Between 2014 and 2015, D.M. showed steady gains in school and controlling his impulsivity. D.M. received a significant amount of support at school and improved his level of cognitive functioning.

[42] On December 16, 2016, Dr. Fitzgerald conducted his most recent assessment of D.M. Dr. Fitzgerald reports that the society worker advised him that D.M. shares a close connection with his foster parents. He is also told that D.M. was having contact with his father but that has ceased. D.M. told Dr. Fitzgerald that he would be happy to be adopted by his foster parents and "At the same time he would be willing to have ongoing contact with his biological parents if they were available."

[43] Dr. Fitzgerald reports that D.M. is confused and overwhelmed and is living with a high degree of uncertainty about his future. This is caused by the uncertainty around when he may or may not see his parents and whether he will remain in his current foster home. Dr. Fitzgerald summarizes his report by concluding that D.M. is very comfortable in his relationship with his foster parents but he struggles with instability caused by the lack of clarity of whether he will remain in their care. D.M. told Dr. Fitzgerald that "he wants to remain living in his foster home and would like to be adopted by the foster parents if that were an option. At the same time, he is not clear about the whereabouts of his parents and whether or not they will re-enter his life at some point. This causes a great deal of confusion and uncertainty and is difficult for [D.M.] to tolerate."

[44] In his December 16, 2016 report, Dr. Fitzgerald recommends that D.M. receive psychotherapy or counselling to help him express his feelings and to address the effects of his past and his current confusion.

3.3 The Oral Evidence of Dr. Fitzgerald on the Summary Judgment Motion

[45] After the parties attended in court on the society's motion on July 20, 2017, which was not complete and adjourned to August 1, 2017, the court decided that the attendance of Dr. Fitzgerald to give evidence was required. The court requested that Dr. Fitzgerald attend in court on August 1, 2017 to give evidence, which he did.

[46] The bulk of Dr. Fitzgerald's evidence centered on M.M. Dr. Fitzgerald testified that M.M. has displayed the same pattern of behavior at the age of 11 years and 4 months of age that he did when he was 4 years old. Dr. Fitzgerald's evidence is that while M.M. has made significant improvements cognitively and in his academic performance, despite the stability in his life, M.M. is experiencing significant mental health difficulties.

[47] Dr. Fitzgerald gave evidence that he was advised by the society that on a day to day basis, the frequency and tendency with which M.M. copes with expectations in the home and school is better when he is not seeing his father. Dr. Fitzgerald testified that he was speculating as to why the society and foster parents reported the difference in the boys' behaviour following visits with their father.

[48] Dr. Fitzgerald testified that there is the potential for a negative impact on the boys of re-introducing access to the father as that would be "reintroducing a situation that has a strong emotionality for the children."

[49] Dr. Fitzgerald gave evidence that if access by the father was found to be appropriate, he suggests a cautious approach be taken, for example, by initiating contact initially indirectly through letters, cards or gifts. Such an approach would "optimize the chances for success and minimize the risk for further disappointment in these children's lives". The effect of the contact on the boys could then be explored with them in terms of the impact on them and helping them understand what is happening and to determine how "viable and beneficial" the access is for each child. Approaching access this way, Dr. Fitzgerald explains, controls the process and reduces the prospect of failure.

[50] Dr. Fitzgerald testified that in the course of his assessment, M.M. was not made aware that his father was seeking access to him and his brother. When Dr. Fitzgerald was asked how M.M.'s caregivers should handle a desire or request by him to have contact with his father, he testified that this is a complicated situation and first and foremost, he would want to help both boys understand that they have a permanent home with the foster family, whether it is as a long term foster home or adoption and that this is what everyone wants for them. The boys must have a strong sense that the foster home is a permanent placement for them so that they can enjoy a sense of permanence which they do not have. Once that is established, Dr. Fitzgerald testified that the boys may feel more comfortable "opening up some form of ongoing contact or connection with their biological family". This entire process would take place in a therapeutic setting with a "clinical team" assisting the boys.

[51] Dr. Fitzgerald testified that he would involve therapists who would help the boys through the process. Dr. Fitzgerald added that there are different options for D.M. who may be better able to deal with the issue of access to his father than his brother.

[52] Dr. Fitzgerald gave evidence that he would work with a psychotherapist to explain to M.M. that his father would like to see him but that his caregivers made the decision not to allow that to happen for some time believing that access would be harmful to M.M. Dr. Fitzgerald described this as a complicated situation which requires a clinical team to help M.M. through. Dr. Fitzgerald's hope is that M.M. would be able to process his thoughts and feelings with the help of his clinical team as well as his caregivers and society social workers if they were still involved in with the boys.

[53] Dr. Fitzgerald testified that the relationship the boys have with the foster family and the community in which they reside is "very critical and essential for them". He described the foster family as their psychological family with whom they are very connected. Dr. Fitzgerald expressed grave concern about jeopardizing the stability the boys have in their foster home as he considers this home to be their best chance for permanence and stability.

3.4 The Following Undisputed Evidence of the Father

[54] In support of his request that the society's motion be dismissed, the father relies on his affidavit sworn July 10, 2017. The society did not serve and file a reply affidavit so much of the father's evidence is undisputed.

[55] The father acknowledges that he has missed a number of visits with the boys and that he is not blameless.

[56] The following is a summary of the relevant undisputed evidence of the father:

(a) The father works in construction and obtains employment through a union. At times his work schedule was so demanding that it interfered with his access to M.M. and D.M. He was trying to create economic stability and having no seniority meant that he was not in a position to make demands regarding his work hours;

(b) The father's evidence is that his visits were also cancelled by the society when, for example, they did not have a driver for the boys or they were involved in activities;

(c) The father asked for the foster father's phone number but was only permitted to communicate with him via email, which was difficult as he did not receive emails to his phone and he did not have Wi-Fi on job sites. He did not understand why he was not given the foster father's phone number considering he had never had any conflict with the foster family. His request went unanswered by the society;

(d) It was difficult for the father to plan visits through the society which made the visits extremely challenging for the father;

(e) The father requested make-up visits and changes to the access schedule to accommodate his work schedule but the Children's Services Worker would not work with him to make these changes;

(g) The father deposed that when he asked, the Children's Services Worker would not cooperate to change his visits from early in the day on Saturday to either later Saturday evening or during the week, claiming the children had activities;

(h) The father deposed that the foster father does not approve of him;

(i) The father has completed a parenting course and is involved in personal therapy; and,

(j) The father is concerned that the Children's Services Worker has misinformed M.M. about his intentions with respect to having a relationship with the boys.

3.5 The Society's Litigation Conduct

[57] The society issued the Application to terminate the father's access on October 7, 2016. The Application does not clearly state that the society has suspended the father's access and he has not seen the boys since March 2016. The society's Application was first scheduled to be before the court on November 30, 2016.

[58] On November 28, 2016, the court received a 14B Motion Form requesting, with the consent of all parties, an adjournment of the matter to January 4, 2017. The adjournment was granted. On January 4, 2017, the parties attended in court and the court learned for the first time that the boys were not having contact with their father. The father was given permission to bring a motion for an order for access to the boys on February 23, 2017. What might not have been clear to the court at that time, but is clear now, is that the society should have brought a motion to suspend access. It should not have been the father's responsibility to bring a motion for access as there is a court order in place granting the father access and only gave the society the right to suspend the access if they came back to court within 10 days of doing so. That order created an onus on the society to obtain an order suspending the access.

[59] On February 23, 2017, the matter came before the court at which time no motion was brought by the father seeking access to the boys and the parties all agreed to a two day focused hearing to take place from May 18-19, 2017. The parties agreed to a timeline for the exchange of affidavit evidence.

[60] On April 12, 2017, the court received a Form 14B Motion in which all parties were asking to adjourn the focused hearing as the society had not served their affidavit evidence in accordance with the agreed upon timeline. The court denied the request and instructed the parties to change the timelines for the exchange of their materials.

[61] On May 8, 2017, the court received another Form 14B Motion in which the parties were seeking to adjourn the hearing, as the society had not served their materials. The court endorsed the record as follows: "The parties seek to adjourn the focused hearing that was set for 1.5 days between May 18-19, 2017. I already denied that request on April 12, 2017. I am now advised that the society has not filed any materials in preparation for the focused hearing. This ties the court's hands." At the parties' request, May 18, 2017 was converted to a Trial Management Conference.

[62] On May 18, 2017, the parties attended in court and all counsel agreed to proceed by way of a summary judgment motion, which was scheduled for July 19, 2017. On July 19, 2017, the summary judgment proceeded but was not completed and was adjourned to August 1, 2017. On July 20, 2017, the court released an endorsement requesting Dr. Fitzgerald's attendance at the next court date to give evidence. Dr. Fitzgerald attended in court and gave oral evidence on August 1, 2017. The summary judgment motion was not completed and adjourned to October 25, 2017. On October 25, 2017, arguments on the summary judgment motion were completed and the court reserved its decision.

3.6 Hearsay

[63] The society's evidence contains a significant amount of hearsay evidence, in particular from the foster parents. While the court has approached this evidence with great caution, some comments are required on the quality of the evidence the society attempted to rely upon.

[64] Evidence on a summary judgment motion must be trial worthy. In Children's Aid Society of Toronto v. B.(B.), 2012 CarswellOnt 12801, Sherr, J. states that "My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination."

[65] In Children's Aid Society of Ottawa v. B.(J.), 2016 CarswellOnt 7796, McKinnon, J. holds that the starting point in addressing the admissibility of hearsay evidence is that it is excluded unless it satisfies the tests of necessity and reliability. Necessity and reliability have not been argued in this case by either party.

[66] This court agrees with and adopts the approach to hearsay evidence taken by Justice Sherr and Justice McKinnon.

[67] The society has included statements in their affidavit evidence that amounts to first and second hand hearsay. Included in the society workers' affidavits were many comments and observations made by the foster parents. There is no reason apparent to the court as to why the foster parents did not swear affidavits to avoid this issue. The foster parents were clearly available to swear affidavits as the society filed a very brief affidavit of the foster father upon which it relies on this motion, sworn to advise the court that the foster parents are interested in planning for the boys on a permanent basis but will not do so until they better understand M.M.'s needs.

[68] Some of the hearsay statements contained in the society's evidence are on very important issues and extremely prejudicial to the father such as the boys' behaviour after visits, the boys refusing to attend visits, the foster father's interaction with the father and the father's cancellation of visits and issues around punctuality.

[69] The society relied on hearsay evidence on the number of visits the father missed or was late arriving for or returning the children. As the father arranged for visits directly with the foster father, to meet the test of necessity and reliability, this evidence must be provided by the foster father.

[70] This court agrees with the assertion that evidence on a summary judgment motion must not be compromised or watered down from the quality of evidence expected of the parties in a trial. This is especially the case when the court is asking to make orders permanently severing a child's relationship from a parent. As a result, hearsay evidence proffered by the society for the truth of the content which did not meet the test of necessity and reliability was not afforded any weight by the court.

Part Four – Legal Considerations in an Application to Terminate Access to a Crown Ward

[71] The court must determine whether there is a triable issue within the legal considerations that apply on an Application. The Application is brought pursuant to section 58 of the Act. Section 58 provides as follows:

Access order

58 (1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate. R.S.O. 1990, c. C.11, s. 58 (1).

[72] Subsections 59(2.1) and (3) of the Act provides the statutory authority for varying an order for access to a child who has been made a Crown ward. The subsections provides as follows:

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2).

Termination of access: Crown ward

(3) The court shall terminate an access order with respect to a Crown ward if,

(a) the order is no longer in the best interests of the child; or

(b) the court is no longer satisfied that the requirements set out in clauses (2.1) (a) and (b) are satisfied. 1999, c. 2, s. 16; 2006, c. 5, s. 17 (3).

[73] Counsel for the society argued that the test to be applied by the court is the one set out in subsection 59(2.1) of the act. The society argued that the undisputed evidence before the court on the motion demonstrates that it is plain and obvious that the father's access to the children is no longer beneficial or meaningful to them and therefore should be terminated on a summary judgment motion. The society did not argue that in that event the court finds that the access is meaningful and beneficial to the children, continued access by the father would impair future opportunities for adoption.

[74] Counsel for both M.M. and D.M. disagree with the test as stated by the society and argue that the test for the court to apply is that set out in subsection 59(3). Counsel for M.M. argues that once the society demonstrates that the access is no longer in the children's best interests, the enquiry ends there and access must be terminated.

[75] Both counsel for M.M. and D.M. argue that the uncontested evidence demonstrates that access by the father to the boys is no longer in their best interest and makes the outcome at a trial a forgone conclusion. As a result, both counsel from the Office of the Children's Lawyer support the society's motion.

[76] As section 59(3) of the Act deals with terminating access to a child who is a Crown ward, this is the section the society ought to be moving under. Therefore, I find that the test pursuant to this section requires the court to enquire as to whether the order granting access is no longer in the child's best interest; the relationship between the child and the person who has access pursuant to an order is no longer beneficial or meaningful to the child; or the access order will impair the child's future opportunities to be adopted.

Part Five - Is There a Genuine Issue Requiring a Trial Based Only on the Evidence Before the Judge, Without Using the Judge's Fact-Finding Powers?

[77] The society's position, simply put, is that the father has been unable to commit to regular access to his sons in the manner requested of him by the society. His inability to do so creates instability and threatens their current foster placement. The society also argues, based on the affidavit of the Children's Services Worker that the access, when it did occur, resulted in a spike in negative behaviour by both boys but primarily M.M.

[78] The society further argues that they have discussed with the father on numerous occasions the negative impact his failure to regularly attend for visits has on the children and he provides no explanation for his behaviour. They argue that the father has been given every opportunity to improve his attendance but has failed to effect any positive change. The society argues that there is no genuine issue requiring a trial as the uncontested evidence demonstrates that ongoing access is not in the children's best interest. As the father has not seen the children for the past 15 months and has not provided the court with any evidence to suggest that if access was reinstated anything would be different, the only possible outcome following a trial is termination of access.

[79] Dr. Fitzgerald gave evidence on the motion that the most important aspect of the children's lives at this time is stability in their current placement. Dr. Fitzgerald's evidence is that any order for access by the father must be structured to ensure it does not jeopardize the boys' current placement. Dr. Fitzgerald testified that M.M. must be emotionally stable before he can have access to his father. Dr. Fitzgerald did not testify that access to either child by the father should be terminated.

[80] Counsel for both M.M. and D.M. argue that the evidence shows that the boys are ambivalent about access to their father and that maintaining the consistency and security of the boys' current foster placement, a loving, caring and stable home should be the court's paramount concern on this motion.

[81] Counsel for the children argue that the best predictor of the quality of future access by the father to the boys is historical access. M.M.'s lawyer argues that the father did not exercise access to the boys consistently in the past so he is likely not to do so in the future.

[82] Both counsel for the children argue that access by the father to the boys puts their current foster placement at unnecessary risk of breaking down. They further argue that a breakdown of the current foster placement would be catastrophic to the boys as this is where M.M. has lived for almost 5 years and D.M. for 3.5 years; these are the people who cared for the boys and meet their needs on a daily basis; and, these are people who are considering adoption but would not do so if the father has access to the boys. The children's lawyers argue that ongoing access by the father to the boys is not in their best interest as the evidence is abundantly clear that the risk of harm an ongoing access order would pose to the boys is too high and not one that should be taken. This is so obvious to both counsel for M.M. and D.M. that they support the society's motion on the basis that there is no genuine issue requiring a trial as it is a foregone conclusion that a trial would result in an order terminating the father's access.

[83] The father argues that he shares a loving and meaningful relationship with his sons and that access continues to be in their best interests. He also alleges, and it is not denied, that the society has made it very difficult for him to exercise access and failed to cooperate with him to make adjustments to the access schedule in order to maintain the boys' close connection with him.

[84] The father also argues that the evidence demonstrates that the society has misinformed the children about his intention and desire to see them and have regular contact which has distorted their view of him and their desire to see him.

[85] In Irving Ungerman Ltd. v. Galanis, the Ontario Court of Appeal wrote that "A 'genuine' issue of fact requires that the fact be material to the decision that must be taken in the main litigation. If the result of the proceeding does not turn on the existence or non-existence of the fact that is advanced as genuine issue, then it cannot relate to a 'genuine issue for trial'."

[86] Justice A. Pazaratz stated at paragraph 43 of Children's Aid Society of the Niagara Region v. S.C.: "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."

[87] I find that the evidentiary record does not establish on a balance of probabilities that it is a foregone conclusion that following a trial the father's access to both M.M. and D.M. would be terminated. I find that there are material facts in dispute.

[88] The following are some of the deficiencies in the evidence that provides the basis for the court's conclusion that there are genuine issues requiring a trial:

(a) The society provides little to no information about D.M. The society focused its attention on M.M. both in the written materials and in submissions. In the affidavit evidence, the deponent often refers to "the boys" or "M.M." but rarely to "D.M." Most of Dr. Fitzgerald's evidence centred on M.M. as D.M. has very different needs then his brother. The court knows very little about D.M. and therefore, on the evidence before the court, is in no position to make a final determination that access by his father is not in his best interest.

(b) There is almost no information about the quality of the visits between the boys and their father when they were taking place.

(c) The court has not received any evidence on the potential impact on the children, of the permanent loss of contact with their father.

(d) The court has received insufficient evidence about the efforts the society made or would not make to accommodate the father's work schedule so that he could maintain contact with the boys.

(e) The court received no evidence from a professional or expert witness whose opinion it is that terminating the father's access to the boys is in their best interests.

(f) The court did not receive evidence from the society to explain why they chose not to advise either boy that their father was asking to see them or that the society had suspended his access. Nor did the society give evidence as to why they did not enlist the assistance of appropriate professionals to have this dialogue with the boys.

(g) The court did not receive evidence of any conversation the society had with the boys regarding their views and preferences in relation to terminating access to their father;

(h) The boys began trauma counselling in 2017 yet the court was not provided with any evidence from the counsellor.

(i) M.M. was scheduled to have a psychiatric assessment in 2017 and the results were not available as of the date of the summary judgment motion.

(j) The court did not receive important evidence directly from the foster parents.

[89] The following is a list of just some of the genuine issues in this case that require a trial:

(a) Is any form of access between the boys and their father still in their best interests?

(b) What was the quality of the boys' relationship with their father at the time access was suspended by the society?

(c) Did the society's actions in not allowing access between May of 2016 and October of 2016 effect the relationship between either or both boys and the father?

(d) Did the society's actions in suspending access and failing to bring the matter back to court within 10 days of doing so as required by court order, effect the nature of the relationship between either or both boys and the father?

(e) Did the society's failure to comply with the court order to prepare for and attend on a focused hearing in May 2017, effect the nature of the relationship between either or both boys and the father?

(f) Has the society interfered in any way with the father's access or mislead the children and if so, did this influence the boys' views and preferences in relation to access to their father?

(g) Would access in any form create an unacceptably high risk to either boy's foster placement such that access is not in their best interest?

(h) What are each child's current needs in relation to ongoing access?

(i) Is there a link between access by the father and an increase in the boys' troubling behaviours?

(j) Was the father solely responsible for missing visits with his children or did the society contribute in any way by not cooperating with the father to make changes to the access schedule to accommodate his work schedule?

(k) Has the father made any changes such that ongoing access visits with the boys would be regular and consistent?

(l) Should the society be estopped from arguing that the passage of time and the lack of access since March 2016 is a factor for the court to consider if this occurred due to actions improperly taken by the society?

[90] The onus on the society on this motion is to demonstrate that the outcome of a trial is so obvious that a trial is not necessary. They have not met the evidentiary burden required in order for the court to make the final order the society is seeking on a summary judgment motion.

Part Six – Fact-Finding Powers

[91] Once the court has determined that there are genuine issues that require a trial, the court must next enquire as to whether the use of the court's expanded fact finding powers granted in subsection 16(6.1) of the Family Law Rules will enable the court to decide the issues based on the evidence before the court and without the need for a traditional trial. The court may invoke these powers "unless it is in the interest of justice for such powers to be exercised only at a trial". The Supreme Court of Canada wrote in Hryniak v. Mauldin, that use of the expanded powers granted under the summary judgment rules will not be contrary to the interest of justice if doing so leads to a "fair and just result".

[92] The society issued their Application to terminate the father's access on October 7, 2016, 8 months after they first advised the father that they were going to return to court to request a change to his access and 2 months after the society cancelled a visit scheduled for August 11, 2016, refusing to schedule anymore visits. The Application did not clearly state that the society has suspended the father's access and that he had not seen the children since March 2016. The society did not bring a motion for a temporary order suspending the father's access. The society failed to comply with orders of the court regarding the exchange of affidavit evidence for a focused hearing which resulted in the hearing being vacated. The society now argues, in part, that as the father has not seen his sons in 16 months there is no genuine issue requiring a trial.

[93] The society may have failed to comply with no less than three orders in this case and have possibly failed to meet its obligations to promote the primary objectives of the Child and Family Services Act and the Family Law Rules. There are credibility issues here and the society's conduct will have to be scrutinized further by the trial judge who will determine what, if any impact the society's conduct has on the outcome of this case.

[94] In C.R. v. Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357, the court overturned a decision made on a summary judgment motion and found at paragraph 39 that "the decision is tainted by issues of procedural fairness". At paragraphs 49-50 the court concludes that,

"The motions judge erred in considering the effluxion of time since the mother had last seen the children but not considering the reason for it.

That effluxion of time is a fact. An important fact in the life of the children and may indeed be the governing fact. But when allegations are made that things were unfairly manipulated to create this fact the court has an obligation to inquire. Otherwise there is no judicial oversight.

It seems unfair to deny a mother access without advising her of the reason then turn around and use her lack of a relationship with the children to deny her access. I make no finding whether this in fact occurred. It will be left for the trial judge to determine that and, if it did occur, whether the fait accompli trumps or whether the society should be estopped from raising the issue in this case."

[95] The court cannot resolve this case by invoking the expanded fact finding powers granted by Rule 16 as doing so would not adequately address the lack of evidence, credibility issues and concerns about procedural fairness. There are several issues of fact that may require expert witnesses and there are legal issues which can only be addressed through evidence given in chief and cross examination. As a result, this case requires a trial.

Part Seven – Conclusion

[96] As there are several genuine issues in this case that require a trial, the society's summary judgment motion is dismissed.

[97] An order will go on the following terms:

a) The society's motion for summary judgment is dismissed, there being genuine issues requiring a trial.

b) The trial coordinator shall communicate with counsel to determine if this matter can be set for a 2-3 day focused hearing before the end of 2017. If not, the case shall be adjourned to the January 9, 2018 assignment court at 2 p.m. before Justice Carole Curtis.

c) The parties shall attend before the case management judge on the previously scheduled date of November 30, 2017, at 10:00 a.m. to plan for the trial.

Released: November 14, 2017

Justice Melanie Sager