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

Ontario Court of Justice

Date: December 5, 2017

Court File No.: Toronto CFO-13-10927-00A2

Between:

Children's Aid Society of Toronto Applicant

— And —

S.T. and M.C. Respondents

Before: Justice Alex Finlayson

Heard on: November 21, 2017

Reasons for Judgment released on: December 5, 2017

Counsel

Yvonne Fiamengo — counsel for the applicant society

No appearance by or on behalf of S.T., even though served with notice.

Lester Ramirez Cuellar — counsel for the respondent, M.C.

Herschel Gold — counsel for the Office of the Children's Lawyer, legal representative for the children, A.C. and S.C.

PART I: NATURE OF THIS MOTION AND OVERVIEW OF THE PARTIES' POSITIONS

A. Overview

[1] This is my ruling respecting a summary judgment motion launched by the Applicant Children's Aid Society of Toronto (the "Society") in this matter. The Respondent mother, S.T., and the Respondent father, M.C. The Respondents are the parents of two boys, A.C., age 12 and S.C. age 11. On this summary judgment motion, the Society asks that I make the statutory findings pursuant to section 47 of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended, that I find the children are in need of protection pursuant to sections 37(2)(b), (i) or (l) of the Act, and that I make A.C. and S.C. crown wards with access to their parents in the Society's discretion.

[2] The Society says it intends to bring a Status Review Application and seek a "section 65.2 custody order" in favour of the foster parents if I grant the crown wardship order it seeks. The Society refers to this as the "only viable, long term plan" for this family.

[3] The children came into care in 2013 when the mother reached out to the Society for assistance. The mother now lives in Quebec.

[4] The mother did not attend and make any submissions at the hearing of the summary judgment motion. She did not file an Answer or Plan of Care in this proceeding. At a Settlement Conference before Justice Pawagi on October 17, 2017 heard between the date the Society launched this motion and the date the motion was heard, the mother advised the Court that she was not presenting a plan, and that she simply wanted access as set out in the Society's materials (ie. in the Society's discretion). Pawagi J. noted her in default that day.

[5] The father is 30 years old. He is unemployed and receives social assistance of $350.00 per month. He resides with his mother in a one bedroom apartment. In contrast to the mother, the father filed a plan and persuasive motion materials resisting the Society's summary judgment motion. His plan includes the return of the children to his care. He cannot currently afford larger housing, but if the children are returned to his care, his social assistance will increase and he says he will be entitled to increased child tax credits. His longer term plan is to seek employment after a transition period once the children are returned to his care.

[6] Currently, the father sees the children every Thursday for 2 hours in the evening and every Saturday afternoon from 11 am to 8 pm. He spends time with the children in the library or in the community. This represents an expansion from access he enjoyed previously.

B. The Parties' Positions

[7] The Society articulates five reasons for the crown wardship order sought. They are:

(a) The children have been in the temporary care and custody of the Society continuously since November 29, 2013;

(b) Since early 2016, the Society says it has been clear with the father that he needs to look for accommodation for his children and demonstrate independence and stability;

(c) The children have not had an "extended visit" with their father. Before the children could be returned to their father's care, expanded visits would first have to be tried;

(d) The statutory time limits for the children being in care have been "far exceeded"; and

(e) Apparently A.C. is angry at his father for failing to secure housing, and he is anxious about having to leave his current caregivers.

[8] While the Society presented the reasons for the crown wardship order sought as varied, they are, in my view, all highly related to the father's housing situation.

[9] At the outset of the motion, father's counsel advised the Court that there had been some recent settlement discussions, so I held the matter down to permit those settlement discussions to continue. Then, later in the morning, the Society informed me that the father "would neither consent nor oppose" the summary judgment motion provided that I make an access order, the terms of which counsel had written on a piece of paper that I reviewed. That paper states that the father would have access on alternating Saturdays from 10:00 am to 8:00 pm, plus additional access as agreed upon by the father and foster parents taking into account the children's wishes and in consultation with the Society. The draft also contains non-specific access over the Christmas holiday, and access between the children and their mother in the discretion of the Society.

[10] In response to a question from me, counsel for the children advised the Court that the children want to return to reside with their father. Without further elaboration, he also told the Court that the children are simultaneously aware of the "reality of this case".

[11] When I asked father's counsel to clarify the father's position, he confirmed what the Society had said, that he "would neither consent nor oppose", while telling me the arguments the father would make if the motion was argued. The Society then asked to make further submissions and the summary judgment motion was argued.

C. The Record Before the Court

[12] This is a very serious motion. The Society proceeded as if summary judgment motion was a forgone conclusion. It is not. The record that the Society put before the Court is inadequate to support summary judgment respecting the disposition the Society seeks in my view.

[13] With its Notice of Motion dated September 18, 2017, the Society served the affidavit of Children's Service Worker Sarbjit Mahal sworn September 18, 2017. The Society's Notice of Motion did not indicate that the Society was relying on any affidavits previously filed.

[14] The Society did not file a Summary Judgment Motion Record containing any other evidence, other than Ms. Mahal's affidavit.

[15] The Society filed a seven page factum. Paragraph 7 of the factum cites paragraphs 33 and 34 of an affidavit of Laura Tobin sworn November 28, 2013. This is an affidavit that the Society filed at the time of the apprehension. Those two paragraphs refer to partial discussions with the parents on the day the children were apprehended.

[16] The Society did not file the Confirmation form that is required by Rule 14(11)(c) of the Family Law Rules. It did not direct the Court what to review in the current motion materials, nor anything else previously filed in the Continuing Record. It did not put the father on notice that it was relying on any materials previously filed in the record.

[17] Regarding the substance of the materials filed for the summary judgment motion:

(a) Although the Society seeks a finding pursuant to pursuant to sections 37(2)(b), (i) or (l) of the Act, its Notice of Motion refers only to section 37(2)(b). Then, in the overview section of its factum, the grounds are expanded to include sections 37(2)(i) and/or (l). But then, in the "Orders Sought" section of its factum, the Society said it wanted a finding based only on section 37(2)(b);

(b) The Society's materials do not explain which parent had "charge of the children", a necessary finding that must be made to support a finding under section 37(2)(b). The Society did not point me to the evidence it says supports findings under this section of the Act in either its written materials or in oral submissions. I reviewed the pleadings to learn that the mother was the parent who had charge of the children at the time the proceeding commenced;

(c) Throughout the argument, it was unclear which finding the Society wanted the Court to make. In response to a question from me about this, the father said that he would "not oppose" a finding pursuant to section 37(2)(l) of the Act. Although its factum claims otherwise, the Society then stated that I could not make a finding pursuant to that section given the lack of the parents' consent;

(d) The Society then submitted that I should make a finding based on section 37(2)(i) due to "abandonment". The Society did not explain in its submissions which parent had "abandoned" the children;

(e) In addition to merely stating the statutory sections pursuant to which it seeks a finding, the Society's factum's overview states that the children have been in care for almost four years. No other basis for the orders sought is provided in the overview;

(f) Neither the factum nor Ms. Mahal's affidavit explains why the protection proceeding even commenced. That information is located elsewhere in the Continuing Record, but was not put before me on this motion by the Society;

(g) The Society's materials provide no other reasons, other than the father's lack of housing, or reasons that are intricately connected to the father's lack of housing, for the orders sought;

(h) The Society did not provide the Court with any evidence that the father's current residence is problematic, apart from its size. I do not know whether the small size of the housing is the full extent of the problem;

(i) The record before me does not raise any concerns about the paternal grandmother, with whom the father resides, either, which I would have expected to see, if there was a problem with a return to the father;

(j) There is no evidence regarding why the father was not, or could not have had an "extended visit", or overnights, or even day visits in his home;

(k) Ms. Mahal's affidavit contains hearsay on a pivotal points, which I will address further below. The hearsay fails to meet the test for admission on a summary judgment motion;

(l) The father filed persuasive responding materials, consisting of his affidavit sworn November 16, 2017, a factum and a Book of Authorities. The Society did not file a reply affidavit to respond to genuine issues requiring a trial that the father raised in his responding affidavit;

(m) The Society's factum lists only 12 paragraphs of facts with very little detail;

(n) The Society's factum contains only seven paragraphs of law about summary judgment. There is no analysis regarding how those principles ought to be applied to facts of this case;

(o) The Society's factum makes no mention of any other sections of the Child and Family Services Act other than the reference to the various findings sought, nor does it contain any analysis respecting how or why the Court should grant either the findings sought, nor the disposition sought, nor does it explain why a return to the father is not appropriate, nor what efforts the Society has made to assist the father; and

(p) The Society did not provide the Court with copies of any of the authorities it refers to in its factum.

D. Summary of this Ruling

[18] I am making the statutory findings sought by the Society and making a finding that the children are in need of protection pursuant to section 37(2)(i) of the Act based on the mother's abandonment of them.

[19] However, the Society did not meet its onus to obtain an order for summary judgment respecting disposition and so I am dismissing that aspect of the summary judgment motion. If I am mistaken about this, I also find that the father's materials raise several genuine issues requiring a trial concerning disposition.

[20] I am directing that a trial proceed before me.

[21] There is a court date on December 18, 2017 in this matter. I am inviting the father to come to court with a proposal for the expansion of his access pending trial, which may include a request for financial assistance from the Society. My reasons for this are set out below.

[22] Based on the record before me, and in fairness to the father and to these children, I am not prepared to make these boys crown wards on a summary basis and an insufficient record when there may be other long term, viable options in their best interests.

PART II: APPLICABLE LEGAL PRINCIPLES

A. Legal Principles Concerning Summary Judgment

[23] The relevant provisions of Rule 16 of the Family Law Rules are:

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.

ORDER GIVING DIRECTIONS

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

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

(b) give directions; and

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

[24] Rule 2 is the Family Law Rules' interpretative provision. It informs how Rule 16 is to be applied. See Children's Aid Society of Toronto v. O.M. and K.R., 2017. The primary objective of the Family Law Rules is to deal with cases justly. Rule 2(3) directs the Court to employ a fair process as part of its mandate to do justice.

[25] 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 in light of Hryniak v. Mauldin, 2014 SCC 7. Paulseth J. says the following at ¶ 19-24:

[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 (OCJ), 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 (OCJ).

[26] At ¶ 6-8 of Children's Aid Society of Toronto v. O.M. and K.R., Justice Melanie Sager adds some other principles from the cases, which continue to apply in the post-Hryniak jurisprudence:

[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., [2007] O.J. No. 1526 (SCJ).

[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., [2000] O.J. No. 4736 (Ont. C.J.).

B. Legal Principles Concerning Hearsay on a Summary Judgment Motion

[27] Rule 14(19) of the Family Law Rules states that an affidavit may contain hearsay evidence if the source is identified and the affiant believes the information to be true. Although hearsay is admissible on a motion, including on a summary judgment motion, rule 16(5) contains a caution when a party seeks to rely on hearsay for the latter. Pursuant to rule 16(5), the Court "may draw conclusions unfavourable to the party" tendering hearsay evidence on a summary judgment motion.

[28] At ¶ 21-29 of Halton Children's Aid Society v. L.S., 2015 ONCJ 317, Justice Victoria Starr considers a number of cases and sets out a helpful four part framework for considering hearsay on a summary judgment motion. I reproduce the framework verbatim:

1. Firstly, the deponent should identify the source of the information and identify that the source is the original source of the information, or that that person is the person with the personal knowledge or observation of the fact alleged;

2. Secondly, the deponent must explain the reason why the original source of the information has not sworn his or her own affidavit and therefore why it would be necessary for the court to accept hearsay evidence on those facts as opposed to the direct evidence of those facts;

3. Thirdly, the deponent must explain the circumstances of how the hearsay evidence was obtained, why the source would have knowledge of the information and the full details of the information and the source so that the court can ascertain the soundness of the information and the source and assess some kind of level of reliability to that evidence; and

4. Lastly, the deponent must explain not only that they believe the evidence from the hearsay source; they have got to give for every piece of hearsay, reasons why they and the court should believe and rely on that untested evidence.

[29] Sager J. rejected various hearsay statements in Children's Aid Society of Toronto v. O.M. and K.R. She held that evidence on a summary judgment motion must be "trial worthy". To be admitted, hearsay must meet the necessity and reliability tests. I find her analysis of the specific problematic evidence in that case, which is located at paragraphs 67-70 of the decision, to be analogous and helpful to my determination in this case. She held:

[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.

[30] As I will explain below, in this case, the same Society has repeated the same errors respecting the evidence in certain respects and I am not placing any weight on the offending evidence.

C. Applicable Legal Principles Concerning the Orders Sought by the Society

[31] There are a number of principles that I must consider and apply concerning disposition. At ¶ 25 of C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 (S.C.J.), Perkins J. set out the statutory pathway following a finding that the children are in need of protection. Regarding disposition, Perkins J. said:

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

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

[32] In following this statutory pathway, this Court must be guided by the paramount purpose of the Act set out in section 1(1), which is "to promote the best interests, protection and well-being of children." There are a number of provisions in the Act geared towards family reunification which must also be considered. For example, the other purposes set out in section 1(2) of the Act include that the Society should help the parents in a manner that supports the autonomy and integrity of the family unit. The Court should consider the least disruptive course of action that is available and appropriate in a particular case.

[33] Section 15(3) of the Act lists the functions of the Society. Among the functions are that the Society is supposed to provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children. This is required by section 15(3)(c).

[34] These themes are repeated again in section 57 of the Act. Section 57(2) requires the Court to consider the efforts the Society or another agency or person has made to assist the father prior to intervention under Part III of the Act. And section 57(3) of the Act prohibits the Court from making an order for Crown wardship unless the Court is satisfied that less disruptive alternatives, including non-residential services and the assistance that I have outlined above, would be inadequate to protect the child.

[35] On the other hand, the Court is also required to take into account the children's need for continuity of care and for stable relationships within a family environment pursuant to section 1(2) of the Act and a myriad of best interest factors set out in section 37(3) of the Act.

[36] In this case, the children have been in care for four years, which is a lengthy period of time. As the children are over 6 years old, section 70(1)(b) applies. At first blush, it may appear therefore that the only two options in this case concerning disposition are to make the children crown wards or to return them to the father under a supervision order. However section 70(4) of the Act may also allow the Court to extend the time the children are in care.

[37] All of these principles need to be weighed in arriving at the correct result. Simply, I cannot say, based on the record, that the Society has discharged its duty to this family, that no lesser alternatives are available, nor that section 70(4) of the Act is not available or appropriate. I say this for the following reasons.

PART III: ANALYSIS

A. The Society's Evidence

[38] The Society's evidence is the following:

(a) The children were placed in the temporary care of the Society on November 29, 2013. The basis for the apprehension is not explained;

(b) The mother left for Montreal in mid-December, 2013, where she continues to reside;

(c) The mother has semi-supervised visits at the Society's office once a month;

(d) The mother has not presented a plan of care for the children and was noted in default on October 17, 2017;

(e) The Society states that at the commencement of these proceedings in 2013, the father was unable to plan for the care of his children primarily due to outstanding criminal matters;

(f) The father has twice weekly, unsupervised visits, with the boys in the community. The Society admits that the father has had "fairly regul[ar]" visits with the father and that his visits with the children have increased in frequency and duration;

(g) The Society admits that the father has developed a positive, nurturing relationship with the children and he has developed a positive working relationship with the foster parents;

(h) The Society admits that the father has attended several access programs and parenting education groups, with favourable feedback from group leaders and staff;

(i) The father has stated his desire to plan for the children since early 2016;

(j) The Society says its workers have made "diligent efforts" to assist the father in securing housing without success;

(k) The father does not have suitable, stable housing for himself and the children;

(l) The father is currently not maintaining contact with the Society;

(m) The children have remained in the same foster home where their needs are being met; and

(n) Both children are exhibiting symptoms of anxiety and are receiving treatment for same.

B. Prior Legal Proceedings

[39] The Society commenced the protection application on November 29, 2013. It sought findings pursuant to section 37(2)(b) and 37(2)(i) and it asked that the children be made wards of the Society for 6 months, with access between the parents and the children in the direction of the Society.

[40] On November 29, 2013, Scully J. placed the children in the temporary care and custody of the Society on a without prejudice basis and made an access order for the parents to be in the discretion of the Society.

C. The Society's Failure to Explain the Litigation Drift

[41] This matter was then adjourned 19 times between November 29, 2013 and November 21, 2017, until I heard the summary judgment motion. The Society did not provide any evidence or explanation respecting these multiple adjournments. There is no indication in any of the multiple endorsements that the Society ever opposed any of the adjournments. Rather, the endorsements indicate that the adjournments were either on consent, or the endorsements are silent as to the parties' positions. Some of the adjournments are for well over 30 days. The Society's consent would have been required for this; see section 51(1) of the Act. Despite this, the Society heavily relies on the length of time the children have been in care to support the disposition order it seeks, while actively participating in the litigation drift.

[42] Based on my review of the record, there appear to have been two distinct phases of the prior proceedings in this case. Between November 29, 2013 and 2015, several of the endorsements indicate the matter was being adjourned because the parties awaited the outcome of the father's criminal trial. The Society does not now raise the father's prior involvement in the criminal justice system as a protection concern to support the disposition it seeks, although this was not always the case. In 2015, after the criminal proceeding was disposed of, the Society launched a motion for a parenting capacity assessment. Weagant J. dismissed that motion on January 11, 2016.

[43] The Society did not refer to, or explain, this unsuccessful motion for an assessment in its summary judgment motion, nor did it provide any context for the other delays. I learned about this motion only in reading the father's responding motion materials. The father said that the Society wanted a "sexual risk assessment" of him. He goes on to explain that the Society would not seriously consider him until after Weagant J. disposed of that assessment motion. This explanation is unopposed as the Society did not reply to the father's affidavit. In addition the endorsements also corroborate the father's account.

[44] After that, the focus of the endorsements shifts to the father's lack of housing. Specifically, there are endorsements of March 31, 2016, October 31, 2016 and March 20, 2017 that refer to this.

[45] There only endorsement that indicates the Society is considering the father's plan is dated June 15, 2016. This lends credibility to the father's statement that the Society refused to consider him until mid-2016. But the documentary evidence raises questions about the extent to which the Society was actually considering the father. As I will explain below, 6 days before this endorsement, the Society held a meeting and made the decision to pursue an order for crown wardship. Then three months later, on September 16, 2016, the Society amended its pleading to seek a finding under sections 37(2)(b)(i), 37(2)(i) and 37(2)(l) and asked that the boys be made crown wards with access.

[46] The Society then waited another year to launch its summary judgment motion. Before proceeding with it, the parties had a Settlement Conference before Pawagi J. on October 17, 2017. Her endorsement reads in part, "Settlement conference held re CAS SJ motion. Opinion given." Pawagi J. then scheduled the summary judgment motion before me.

D. The Father's Explanation for the Litigation Drift and the Evidence of the Society's Assistance Respecting Housing

[47] Again, the Society chose not reply to the father's affidavit. As such, much of the father's evidence is unopposed.

[48] A sizeable portion of the father's responding affidavit pertains to his historic, conflictual relationship with the mother, during which he was charged with certain criminal offences. I do not intend to repeat this history but it was the father's affidavit, not the Society's, that explained to the Court the circumstances giving rise to assault and sexual assault charges that he faced.

[49] By early 2013, the father's relationship with the mother was over. In 2013, the mother went to Montreal with the children. He attempted to get information about the children's whereabouts from the Society, and according to him, the Society refused to tell him. The Society did not file any reply evidence and so the father's evidence in this respect is not responded to.

[50] The children were placed in the temporary care and custody of the Society on November 29, 2013. It was the father, not the Society, who told the Court that this was as a result of the mother asking the Society for help.

[51] There is some merit to the Society's complaint that the father was unable to present a plan at the outset of this proceeding primarily due to criminal charges. However, it is not clear to me when precisely his inability to plan ended, or whether the Society seriously intended to consider any plan from the father regardless.

[52] The father presented an Answer and Plan of Care on January 13, 2014, soon after this proceeding commenced, in which he stated that he was living with his mother in a small space that was not suitable for the children. He said that he planned to obtain housing with adequate space for the children once his pending criminal charges were fully adjudicated.

[53] The father was convicted of two assault charges against the mother and was placed on probation until November of 2014. He was acquitted of a sexual assault charge on July 3, 2015. It appears that until this date the father did not have a serious plan before the Court.

[54] The father's evidence, to which the Society did not reply, is that the Society opposed any plan placing the children with him at least until January 11, 2016 when Weagant J. dismissed the motion for the assessment. Even then, there is very little evidence that suggests the Society was seriously considering the father.

[55] There is almost no evidence to support the Society's assertion that it was "diligent" in trying to assist the father respecting housing, even if the Court restricts its review of the evidence to post-2016. In a nutshell, the evidence is that there were some conversations with the father, which are not evidence of assistance, and the Society authored three letters to Ontario Works (not attached to the Society's affidavit materials), and one fax. Some of these so-called efforts were made on the eve of Court dates at which updates were given. The Society also relies on hearsay to support the statement that its efforts were "diligent".

[56] When I scrutinized the record before me, it appears that in between many of the adjournments, the Society did nothing to assist.

[57] Specifically:

(a) On January 13, 2016, Family Services Worker Rowena Morin met with the father to set out the Society's "housing expectation prior to considering having the children reintegrate with him, including the need for home visits and a gradual reunification plan." This is hearsay evidence. The Society did not provide affidavit evidence from Ms. Morin, nor did it explain why this was not obtained, nor did it argue necessity or reliability respecting this evidence. This evidence does not meet the four part test for admission set out in Halton Children's Aid Society v. L.S. This evidence does not even explain what the "housing expectation", "home visits" and "gradual reunification plan" then were. This is also not evidence of assistance; rather it is a statement of expectations that the Society says it told the father;

(b) The next event after this purported statement was an attendance in Court on March 31, 2016. The endorsement indicates that the father is still looking for housing. There is no evidence in the record that the Society regarding what the Society did to assist between January 13, 2016 and March 31, 2016;

(c) The next event in the case is June 6, 2016, on which date the Society held a Branch Conference meeting. At this Conference it made the decision to seek Crown wardship for the boys. It said that it would consider whether the father could plan for the children only if he secured housing, and only after he had community and home visits;

(d) Then, 9 days later on June 15, 2016, there was a court attendance. This Court's endorsement says that the Society is considering the father's plan. The Society did not explain this possible discrepancy in positions in its summary judgment motion materials;

(e) Apart from a letter apparently written to Ontario Works on June 2, 2016 to request funding for the father for housing, a copy of which was not attached as an exhibit to the Society's motion materials, I was given no other evidence of any efforts to assist the father with housing between the March 31, 2016 court attendance and the June 15, 2016 court attendance;

(f) The next Court date was August 18, 2016. Three days before that, on August 15, 2016, the Society wrote a second letter to Ontario Works (also not supplied as part of the motion materials). Then, on August 16, 2016, the Society met with the father. The meeting is not evidence of assistance. Rather, the evidence is that during this meeting, the father advised the Society of the difficulties he was having respecting his housing search based on his limited income. The Society told the father that he needed to plan for the children and "the law requires a permanency plan";

(g) On September 22, 2016, the Society wrote a third letter to Ontario Works (not supplied as part of the motion materials);

(h) The next Court date was October 31, 2016. Other the September 22, 2016 letter, there is no evidence of any other assistance between the August 18, 2016 meeting and the October 31, 2016 court date;

(i) On November 17, 2016, the Society offered a case aide, Nadia Iskandar, to assist the father with his housing search, but the Society's hearsay evidence, purportedly of Ms. Iskandar, is that the father did not follow through. Like the evidence described in paragraph 57(a) above, this evidence does not meet the four part test for admission set out in Halton Children's Aid Society v. L.S.;

(j) There were further court dates on January 18, 2017, March 20, 2017, September 28, 2017 and October 17, 2017. The Society sent Ontario Works a copy of the children's birth certificates on April 20, 2017;

(k) There is hearsay evidence of a conversation held May 24, 2017 between an Ontario Works worker and Family Services Worker Gordon-Steenburgh during which the Ontario Works worker apparently told the Society that Ontario Works needed a letter from the Society to update the "current status and plan". What that means was not explained, and there is no evidence that the Society provided that "current status and plan". Moreover, like the evidence described in paragraph 57(a) above, this hearsay evidence does not meet the four part test for admission set out in Halton Children's Aid Society v. L.S.; and

(l) There is no evidence of any other efforts from the Society leading up to the various Court dates in 2017. While there is evidence that the Society called the father on February 20, 2017 and August 2, 2017 to follow up with him about housing, this is not evidence of assistance. Rather, it appears these were calls to get information from the father.

[58] The Society's efforts to assist and the father's housing are pivotal issues in this case. There is almost no direct evidence of the Society's efforts to assist. I am not prepared to place weight on any of the Society's hearsay evidence cited above.

[59] And, the direct evidence of assistance is contested. The father's evidence, to which the Society did not reply, is that to even get the Ontario Works letters, he had to request help from the Society on a number of occasions. The Society delayed in providing it for months, even after Weagant J. dismissed the motion for the assessment.

[60] The father's evidence is that he has inquired into about 30 different apartments. The father's affidavit is also detailed regarding the difficulties he has faced. In many instances, he has not been approved due to his poor credit, or when various landlords did not respond to him.

[61] The father questions why the Society did not make first and last month's rent available to assist him, while simultaneously thousands of dollars have been spent to support the foster family. In response to this submission, the Society argued that the father's access to first and last month's rent is not really the issue, and it pointed to an entry in the father's affidavit where he was given first and last month's rent from Ontario Works in early 2017, but that still did not result in housing.

[62] That argument ignores the father's explanation in his affidavit about the cumbersome and time consuming process that is required to get financial assistance from Ontario Works. According to the father, the process results in delays that are not conducive to finding a rental property in Toronto's rental market.

[63] During argument in response to a question from me, the Society stated without explanation that there is a program, perhaps offered through the Society, through which the father could apply for assistance for rent. I was not given any details as to the specifics of this program, nor is there any evidence that the father was ever advised by any of the workers about the specifics of this program, nor that the father was ever told to apply for this program, nor that any of the workers ever assisted the father to make such an application.

[64] Although made in the past tense, the father's comment about money paid to the foster parents does not only relate to the past. The Society says its plan to pursue a section 65.2 custody order is based in part to "permit the foster parents to become eligible for funding to support their care of the children and facilitate greater permanency".

[65] Meanwhile, the father's plan involves the return of the children on a graduated basis, which he says will grant him eligibility for Child Tax Benefits and therefore more income. According to the father, if the children are returned to his care, his Ontario Works will also increase. This may also bump him up on the wait list for larger housing. But he has not been given the opportunity to implement this plan. The viability of this plan is an issue for trial.

E. The Evidence Concerning the Children

[66] The Society's evidence about the children, their wishes and anxiety is also problematic. It either fails to explain the foundation for this evidence, it is contested, or it is based on hearsay that does not meet the four part test for admission set out in Halton Children's Aid Society v. L.S.

[67] The Society says the children are receiving good care and stability in their foster home. According to Ms. Mahal, they are doing well at school and in their activities. The Society did not offer any affidavit evidence from the foster parents, or from the children's educational or directly from the children's health care providers.

[68] Ms. Mahal states that A.C. told her he "is happy to remain with his foster parents on a long term basis as he feels they are like "real parents" and S.C. apparently advised that "he would like to remain in his current placement long term." Meanwhile, the Children's Lawyer submitted the children wish to return to reside with their father.

[69] The Society argues that A.C. is suffering from anxiety related to the ongoing uncertainty as to his placement, but it chose not to file any evidence from A.C.'s therapist. Instead, Ms. Mahal's affidavit contains hearsay purporting to give a therapist's opinion and double hearsay about the child's wishes. This is precisely the type of evidence that runs afoul of rule 16(5) and the case law.

F. The Evidence Concerning the Children's Relationship with their Father

[70] The father gave the Court information respecting the history of his access with the boys and details about his current visits. The evidence, which the Society admits, is that the father and the children share a significant bond.

[71] While the Society did list some visits that the father has missed, it did so without explanation. In his response, the father provided an explanation.

[72] Again, one of the main grounds upon which the Society relies to support its request for summary judgment is the fact that the father has not had a visit in his home. Other than the fact that the father lives in a one-bedroom apartment with his mother, I was given no evidence to explain why the father could not have had such a visit, even during the day. There is no evidence that the Society ever even offered the father a visit.

[73] The Society argued that the father should have moved for extra access. I am not prepared to assign fault to the father and penalize him and the children by making an order for crown wardship based on this submission. Both parties' efforts respecting pursuing access can be canvassed at trial. What is clear at this stage is that the Society had an order for access in their discretion and that discretion was not exercised.

[74] I am not persuaded at this stage that such visits are necessarily a prerequisite to the return of the children in this case. I say this because the Society acknowledges that the father has engaged in several access programs and parenting education groups, with favourable feedback from group leaders and staff.

G. The Evidence of the Father's Programming

[75] The father elaborated about his efforts to learn how to parent in his affidavit. He has provided 7 examples of courses and programs in which he engaged between 2013 and 2016, supported with documentary evidence as exhibits. The father's perception is that despite his efforts to engage in these programs, the Society did not support him or cooperate with him. According to the father, it was only after Weagant J. dismissed the motion for the assessment in early 2016 that the Society may have changed its perspective, but even then, it only agreed to semi-supervised visits.

[76] There is a genuine issue requiring a trial respecting the father's parenting skills in light of his access visits and this programming. Given the positive evidence of the father's visits and the programming he has engaged in, it is an issue whether the children could be returned under a supervision order, even in the absence of extended visits. Alternatively, there is an issue for trial regarding whether the children could be returned to the father on a graduated basis.

[77] I am aware that there is conflicting case law concerning whether this Court may extend the time A.C. and S.C. remain in care pursuant to section 70(4) of the Child and Family Services Act. Justice K.A. Baker recently explained the different lines of authority in Children's Aid Society of Brant v. R.E.M., 2017 ONCJ 659 (C.J.).

[78] One line of authority states that the six month extension in section 70(4) is a "hard cap", meaning that once children 6 years of age and over are in care for 24 months there can only be a further 6 month extension. Therefore, once children are in care for 30 months or more, the 6 month extension has already been used up and no further extensions can be granted.

[79] The other line of cases adopts a more flexible approach. Those cases say that section 70(4) can be read harmoniously with the overarching purposes of the legislation and the power to make an order for Society wardship can be invoked at the time of disposition regardless of how long a child has already been in care in an appropriate case, if that is consistent with the child's best interests.

[80] Neither counsel referred to, or argued either line of authority at the summary judgment motion. This issue needs to be fully argued based in this case on a proper record. A trial with a complete record is required for the Court to decide which approach to apply, and if it is to be the latter, whether it is in the children's best interests to make an order for Society wardship or a graduated return.

H. Summary Judgment Respecting Disposition Is Not Appropriate In this Case and the Genuine Issues Requiring A Trial

[81] This case appears to turn almost entirely on the father's poverty and lack of housing. As a result of the manner in which the case has unfolded, the boys have been in care under a temporary order beyond the statutory time limits. I am left with serious questions about the Society's real efforts to assist the father and regarding the Society's argument that its plan is the only long term, viable one.

[82] Summary judgment motions, particularly those asking that children be made crown wards, are very serious and call upon the Court to make profound, life altering orders using a shortened process. Summary judgment can sometimes be a proportionate and fair way to dispose of a case. While there are good reasons to proceed by way of summary judgment in many cases, I find that the evidence presented to me in this case falls short. In this case, the process is also unfair to the father and the children.

[83] That said, the Society did provide the necessary evidence to support the statutory findings it seeks. The evidence filed supports the finding that the children are in need of protection pursuant to section 37(2)(i) of the Act based on the mother's abandonment.

[84] However, I am directing a trial respecting disposition. I find that the Society has failed to discharge its onus on this summary judgment motion to persuade the Court that there are no genuine issues requiring a trial. I also find that the father's evidence raises genuine issues requiring a trial.

[85] The following issues require a trial:

(a) Whether the Society has met its duty to provide services to this family and to support family reunification;

(b) Whether the father's efforts to pursue family re-integration are sufficient or insufficient;

(c) Whether less disruptive alternatives would be inadequate to protect the children;

(d) The viability of the father's financial plan to support the return of the children to his care;

(e) Whether the children may be returned to the father pursuant to a supervision order; and/or

(f) Whether this Court should extend the time lines pursuant to section 70(4) of the Act and make either a further order for Society Wardship, or an order for Society Wardship followed by a supervision order.

[86] In accordance with the Supreme Court's comments in Hyrniak v. Mauldin, I am directing that the trial proceed before me as I heard the summary judgment motion. I intend to use the Family Law Rules at the Trial Management Conference to craft a process and to ensure that the trial proceeds as expeditiously as possible having regard to the issues and the children's best interests, and in as focused a manner as possible.

[87] I have decided to direct a trial, even in the face of the father's last minute change in position by which he seems to have abandoned the position he initially took resisting summary judgment. Even if I did not have as many questions as I have articulated herein, I would not have been prepared to grant summary judgment based on the father's equivocal statement, given on the morning of the motion, that he will neither consent nor oppose the order sought by the Society provided he gets some scaled back access.

[88] If the father comes to court with an unequivocal, signed consent, supported by a signed Statement of Agreed Facts, then I will consider it. Otherwise this matter will proceed to trial.

[89] Neither party made any submissions regarding whether I should have resort to the expanded powers in rule 16(6.1) to decide this motion, nor did either party ask me to direct oral evidence pursuant to rule 16(6.2) for the purposes of exercising the rule 16(6.1) powers.

[90] In arriving at my decision to direct a trial concerning disposition, I have considered both parties' evidence, but I also found it appropriate to weigh the evidence. I have explained above where I have weighed the evidence. In this case, I did not need oral evidence to decide whether there are genuine issues requiring a trial.

I. Next Steps

[91] There is a return date of December 18, 2017 in this matter booked before me. This date shall proceed as a Trial Management Conference.

[92] If the father chooses to make a request for additional access on December 18, 2017 to commence immediately, I will entertain it as a request pursuant to section 58 of the Act to change his access pending trial. There is ample evidence in the record before me to support additional access. I am relying on the recent decision of Sherr J. in Catholic Children's Aid Society v. R.M., 2017 ONCJ 784 (C.J.), and find that the appropriate threshold has been met for the Court to change access. I am also prepared to entertain a request for overnights pending trial.

[93] There is an inherent unfairness for the Society to argue that the lack of an extended visit as a basis to support the order it seeks while being unwilling to facilitate such a visit and arguing that inadequate housing is an impediment. It is in the children's best interests that the father is in a position to put his best foot forward at the trial so that the Court can decide the issues with the best evidence. It is also in the children's best interests that all conditions be put into place now for them to have meaningful access with their father.

[94] More can be done to assist him to secure housing and so that should be done.

[95] Given the Society's submission that there is a program that may assist with rent, it should provide the father, and the Court, with the complete details regarding how the program works, and if he is eligible for it, the Society must take all steps to help assist him to access this funding. If there are any practical problems, including any delay inherent in the program that will limit the father's ability to access this funding, or if the funding is insufficient, then I will hear argument on December 18, 2017 about whether I should order the Society to provide the father with funds for rent pending trial.

[96] I appreciate that the Court cannot order the Society to provide financial assistance to the father as a term of supervision pursuant to section 57(8)(c) of the Act. However I am not making a supervision order at this stage.

[97] Section 58 of the Act allows the Court to make an access order and impose "such terms and conditions on the order as the court considers appropriate". It does not contain the same statutory language prohibiting the Court from ordering financial terms as the section respecting a supervision order does.

[98] There is appellate authority that addresses this statutory distinction. In Children's Aid Society of the Niagara Region v. S.(L.), 2009 CarswellOnt 38 (S.C.J.), this Court ordered the Society to pay for access costs to ensure a parent saw the child. The Society appealed but the appeal was dismissed, although the Court stated that such payment orders are unusual and will not become routine. Nevertheless there is authority for them.

[99] The reasoning in Children's Aid Society of the Niagara Region v. S.(L.) is not limited to orders requiring the payment of transportation costs to ensure access. Rather payment orders are an available tool to ensure access happens.

[100] This case may very well fit within the unusual category of cases. This case involves a parent who, according to the Society, has not had an expanded visit because of his housing, a parent who has been unable to secure housing, a Society that has not exercised its discretion to allow for expanded access in his current home as a result, and a Society that is relying on the latter in seeking a crown wardship order.

[101] Therefore, the father should come to Court with a proposed schedule and conditions of access, which may very well include payment terms to assist him with housing to facilitate his access and I will consider that. The Society and the OCL are at liberty to object to this proposal. The parties should exchange their proposals in advance of the next date. I will hear submissions if there is no agreement. My decision to make a payment order will turn in part on the sufficiency and availability of funding through the program referred to by the Society. The Society may bring any other relevant evidence to my attention concerning this funding issue if it wishes.

[102] To ensure that the father is fully able to make a comprehensive proposal, the Society is required to provide the complete details of the rent program with rent within 48 hours of the release of this decision. The precise information I require the Society to provide to the father and the Court is listed below.

[103] By way of further directions for trial, as the Society's efforts to assist the father have been put in issue by the Society, and their bona fides are questioned by the father, and there are a number of gaps in the Society's evidence and hearsay, the Society's evidence for trial should address these gaps and deficiencies.

[104] It will be important for the Court to be given specific evidence regarding the increased income the father will receive from Ontario Works if the children are returned to his care, when those funds will begin to be paid to the father if the Court decides to return the children to his care either immediately or on a graduated basis, if the father does not have housing of his own by the time of trial what wait lists will apply respecting housing if the Court decides to return the children to the father on a graduated basis or on an immediate basis, what tax benefits he will receive in either scenario, and any other relevant specifics and logistics related to his financial circumstances and housing.

[105] Finally, as a number of issues turn on various financial considerations, the Court also requires evidence of amounts paid for the children in care to date and specifics of the funding that will be available to the foster parents under a section 65.2 custody order.

PART IV: ORDER

[106] I make the following orders:

(a) There shall be the statutory findings as set out in paragraph 3(a) of Ms. Mahal's affidavit sworn September 18, 2017;

(b) There shall be a finding that the children, A.C. and S.C. are in need of protection pursuant to section 37(2)(i) of the Act;

(c) The following issues require a trial:

(i) Whether the Society has met its duty to provide services to this family and to support family reunification;

(ii) Whether the father's efforts to pursue family re-integration have been sufficient or whether they were insufficient;

(iii) Whether less disruptive alternatives than crown wardship would be inadequate to protect the children;

(iv) Whether the father's plan, including the financial aspects of his plan, to support the return of the children to his care is viable and is in the children's best interests;

(v) Whether the Society's plan is in the children's best interests;

(vi) Whether the children ought to be returned to the father pursuant to a supervision order; and/or

(vii) Whether this Court should extend the time lines pursuant to section 70(4) of the Act and make either a further order for Society Wardship, or an order for Society Wardship followed by a supervision order;

(d) Within 48 hours, the Society shall provide the father's counsel with detailed information in writing explaining the program that is available to assist with funding for rent, the eligibility criteria, a statement regarding whether the father is eligible or likely eligible, details of what must be done to make the application, whether there is any delay inherent with the application (ie. how long and on what conditions will funding be made available once the application is made), and what amounts are covered and for what purpose. If this is an option that the father chooses to pursue, then the Society is ordered to take all steps to assist the father in the completion of the application and to secure the funding;

(e) The Society shall take all other reasonable steps to assist the father with securing housing pending trial;

(f) The father shall come to Court with a proposed schedule for his access and any conditions, which may include financial conditions and other non-financial conditions to assist him secure housing, pending trial. The proposal shall be provided to the Society and the OCL in advance of the next Court date. If the Society or the OCL object, either shall tell the father in writing the basis of the objection. I will decide any disputes; and

(g) The next date is a Trial Management Conference. The Society shall complete and circulate a detailed draft Trial Management Endorsement Form by Monday, December 11, 2017. The parties shall come to Court with a form completed in draft, which can then be finalized on December 18, 2017.

Released: December 4, 2017

Signed: Justice Alex Finlayson

Footnotes

[1] As I will explain below, the Society would not consider a return to the father during the first two years the children were in care.

[2] Reasons (c) and (d) are related. There have been no "extended visits" and the children have now been in care for too long to try such visits. Yet the Society did not facilitate any "extended visits" throughout the interim stage of this case, which it could have. The governing access order has provided for access in the discretion of the Society since November 29, 2013.

[3] The Society relies on inadmissible hearsay to support this assertion, which I address further below.

[4] This represents a reduction from the access the children currently enjoy with their father.

[5] It is unclear whether the draft refers to this Christmas only.

[6] The Society's Notice of Motion is dated September 18, 2017.