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: 2017-12-05

Court File No.: Sudbury C-80-15

Between:

The Children's Aid Society of the Districts of Sudbury and Manitoulin Applicant

— And —

V.T. and R.T. Respondents

Before: Justice Penny Jones

Heard on: November 10, 2017

Ruling on Summary Judgment Motion released on: December 5, 2017

Counsel

• Dawn V. Dubois — counsel for the applicant Society
• Barbara Burton — counsel for the respondent, V.T.
• Lance Carey Talbot — counsel for the respondent, R.T.

Decision

JONES J.:

Introduction

[1] This is my ruling on the summary judgment motion brought by the Children's Aid Society of the Districts of Sudbury and Manitoulin (Society) heard November 10, 2017 relating to the children E.G.A.T. born […], 2015 and V.R.T., born […], 2016. The Respondents are the natural parents of these children.

[2] The Society seeks an order for Crown Wardship no access for the purposes of adoption.

[3] The Respondents, who are separated, seek the return of their children to the mother with or without supervision. The Respondent father, in the alternative, seeks the return of the children to his care. In the event the court were to make a Crown Wardship order, the parents seek an order for access to the children. There are no community or family placements proposed for the children.

[4] The issue before the court relates only to disposition. On May 29, 2017, the parties consented to a finding that the children were in need of protection under section 37(2)(b)(i) and (ii) of the Child and Family Services Act, R.S.O. 1990, Chapter C-11, as amended (the Act). Section 37(2)(i) and (ii) read as follows:

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

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

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

(ii) pattern of neglect in caring for, providing for supervising or protecting the child;

[5] On November 10, 2017, at my request, the parties filed, as exhibit #1 on the trial, an Agreed Statement of Fact setting out the basis of the finding which included the following areas of concern: poor hygiene and lack of housing, lack of prenatal care, domestic violence, and lack of stability in parents' relationship.

[6] The Respondent V.T. (the mother) and the Respondent R.T. (the father) both take the position that the summary judgment motion should be dismissed and the matter should be sent to trial as there are many material facts at issue that require a trial for their fair resolution.

[7] The Society takes the position that the evidence before the court is compelling, and that the court can fairly resolve the issues by way of summary judgment motion on the evidence filed by utilizing the tools available to the court contained in Rule 16 of the Family Law Rules, O. Reg, 114/99 as amended.

Factual Background

[8] V.T. (the mother) is 24 years of age and R.T. (the father) is 31 years old.

[9] E.G.A.T., born […], 2015, and V.R.T., born […], 2016, are the only children born to the mother and father.

[10] The parents met in April, 2013 and began living together shortly thereafter. Prior to the birth of their first child, the couple lived at the mother's father's residence, which by all accounts was kept in a deplorable condition. The parents blamed the unhygienic living conditions on the father's deteriorating mental health, and his abuse of substances.

[11] The parents first came to the Society's notice due to a community complaint from the Canadian Mental Health Association which reported that the mother was pregnant, was living in unsanitary conditions, and was not accessing prenatal care. Apparently, the premises had had no running water for one year.

[12] E.G.A.T. was born at home. The EMS, who attended at the home birth, reported that the home was filthy, and that if the child had not been delivered on a blanket spread on the kitchen floor, the baby would have been delivered in animal feces and garbage. There were three dogs and nine cats living in the home at the time of the baby's birth.

[13] Attached to the affidavit of Melissa Raymond, child protection worker, sworn February 13 2017, are copies of photographs of the home taken one day after the baby's birth by child protection worker Terri Bresolin. These photos show, among other things, the floors of the apartment covered with empty and opened boxes, garbage, discarded cans, dirty and broken dishes, animal feces smeared on the floor and on crumpled papers on the floor, and dirty clothes, all stacked up and strewn about, as well as a filthy toilet in a feces-smeared bathroom – in other words, photos of a residence not fit for human habitation, let alone fit for a fragile newborn.

[14] The parents did not contest that the home was in a very poor sanitary condition, nor did they question the authenticity of these photographs. Rather, they referred to the home as "messy", and blamed that mess on the mother's father and the mother's brother, taking no responsibility for the state of the home themselves. Child protection worker Terri Bresolin reported that the mother told him that she intended to take the baby home to that residence as she would "clean it up". The mother in her affidavit indicated that she and the father had found another apartment available for March 1, 2015. Regardless, it would appear that the mother intended to take her new born to her father's home until she obtained alternate housing, and she appeared to have no appreciation of how unsuitable that home would be for the baby, even on a temporary basis.

[15] E.G.A.T. was apprehended at birth. The evidence filed indicates that the Society apprehended the child for a number of reasons, namely: the mother was living in deplorable conditions unsuitable for an infant; she had no prenatal care (she claimed not to know she was pregnant until December, 2014 and then delayed seeking prenatal care while waiting for an ultra sound (scheduled to take place the day after the baby was born); and that she had made no meaningful preparations for the baby i.e. no crib, no car seat etc. As well, the Society had concerns about the mental health and cognitive abilities of the mother and father.

[16] In June, 2015, the parents moved from the mother's father's residence into the home of a cousin of the mother and her family. A total of nine adults lived in the home and it was not suitable for a baby.

[17] By May, 2015, the mother was pregnant with her second child.

[18] The parents continued living at the mother's cousin's home until after the birth of their second child, V.R.T. who was also apprehended at birth.

[19] The Society was concerned that the parents had made very little progress in finding suitable housing, making preparations for the care of their children and showed limited parenting ability. Various community and family plans were suggested, then rejected by either the parents or the Society.

Parenting Capacity Assessment

[20] The Society suggested that the parents participate in a parenting capacity assessment, as the Society felt that such an assessment would assist in future planning and answer a number of questions that had plagued the file, including whether the parents were suffering from mental health issues or were cognitively delayed. With the consent of the parents, on January 18, 2016, Justice R.A. Humphrey made an order that Dr. Patricia Ross conduct a psychological assessment and a parenting capacity assessment for each parent pursuant to Section 54 of the Act. The assessment was to be completed and filed by June 30, 2016.

[21] The parents cooperated with the assessment process and the report was completed and filed.

[22] The report indicated that neither parent experienced cognitive deficits.

[23] With respect to the mother Dr. Ross concluded (page 41),

"Overall, an important finding of this assessment is that V. does not experience any cognitive deficits that would be expected to substantially impact either her general functioning as an adult or her capacity to safely and effectively meet the needs of her children. However, outside of this finding, the results of this assessment are highly limited in either providing a complete and definitive understanding of the historical information related to the living conditions of V. at the time of E.'s birth; as well as a prognosis for the future. It is not believed that the psychometric tests provide a complete understanding of V.'s personality and emotional functioning. Also, it cannot be known with certainty the extent to which her progress has been impeded by mental health symptoms related to a long-standing depression, grief specific to the death of her mother and a learned-helplessness being further triggered by both the apprehension of her children and the on-going incorrect belief by service providers that V. was intellectually delayed. Although it is possible that addressing these factors could result in sufficient gains by V., the certainty of this and the amount of time this would take cannot be predicted with any certainty. "

[24] The parenting capacity report contained the results of a number of psychological tests performed on the mother and clinical observations by the psychologist. In summary, under the title "Symptoms and Personality Characteristics" Dr. Ross wrote, (p.17),

"V. obtained an MMPI-2 pattern that indicates paranoid trends and possible a transitory paranoid state. The profile suggests a potential for developed fixed projections of her anger with ideas of reference and of persecution. She is likely to feel unhappy, unappreciated, misunderstood and unfairly treated. In a few cases, this breakdown of reality testing was seen as reflecting paranoid schizophrenic decompensations. …She may be seen as passive-aggressive and manipulative and as occasionally acting out in order to evade stressful life situations. In some related cases an uneven tolerance for frustrations led to angry outbursts toward family members. "

[25] With respect to the father, Dr. Ross concluded, (p.46),

"The reasons underlying R.'s idiosyncratic thought patterns and behavioural presentation were not identified within this assessment. However, general cognitive delays were ruled out. Also, although his verbal comprehension tested as an area of definite weakness, these deficits alone would not account for his unusual presentation.

There would be substantial concern about R.'s ability to safely and effectively parent his children, both on his own and even as an equal partner to V. His idiosyncratic thought patterns would be predicted to substantially impede his judgement, reasoning and decision making as well as impede his capacity to effectively benefit from support and intervention to address any concerns. "

[26] Dr. Ross wrote that psychometric test indicates that R. can be a warm and giving person, but that he tends "to be passive in his relationships and to avoid conflict." She noted that he "will not express either differing views or feelings of anger towards others." (p.44) Dr. Ross described R. as a person who "tends to avoid autonomy and tends to be ineffective in meeting his adult responsibilities and finishing what he starts. In addition to being overly passive and lacking initiative, he has little desire to be more efficient, organized or practical minded. …The MIPS report describes that although he might set goals for himself, achieving these goals would require him to "take charge and act which may go against his propensity to cogitate and introspect." (p. 43)

[27] Dr. Ross also commented on R's propensity to violence as revealed in his MMPI-2 profile. On p.46 she wrote,

"Finally, the MMPI-2 identified an increased risk of a "destructive outburst of rage." Although there is no evidence known to support this risk, it should not be ignored given the impressions formed by the Oxford CAS who interviewed R.'s mother and sister, as well as the general lack of understanding of R gained within this assessment. "

[28] Dr. Ross observed one access visit. Dr. Ross described both parents as loving with their children.

[29] She described V. as mostly presenting with adequate parenting skills but was concerned that she focused on only one child while R. focused on the other child. She described V. as reactive and not proactive in her parenting style. She described R. as presenting with very weak parenting skills at times. During the access visit, Dr. Ross observed nothing that caused her concerns about cleanliness and safety issues.

[30] After receipt of the parenting capacity assessment and in light of the lack of progress made by the parents in the opinion of the Society, the Society amended its protection application to Crown wardship no access for the purposes of adoption.

[31] The mother disagreed with the report's conclusions and felt that she was ready to parent her children. She noted that she was prepared to work with the Society. She felt that much of the lack of progress in addressing parenting and social issues could be laid at the feet of the Society because of their disrespectful approach to working with her and their misconception that she was developmentally delayed. She pointed to the recommendations in the report relating to future working strategies between the mother and the Society.

[32] The father disagreed with the conclusion that he exhibited poor parenting skills or that he could not safely parent his children alone or even as an equal partner with V. As well he questioned the finding that his "idiosyncratic" thought patterns substantially impede his judgment, reasoning and decision making as well as his capacity to effectively benefit from support and intervention to address any concerns. He sought to cross-examine Dr. Ross on the findings in the report.

Domestic Violence

[33] Domestic violence is a significant risk issue in this case. At various times, each parent has accused the other of serious violent offences against him or her perpetrated by the other only to recant such accusations. For example, on June 23, 2016 V. alleged that R. raped her only to recant this on June 27, 2016. On July 25, 2016 R. told the Society that he had been mugged when he suffered various stab wounds in his leg. (It was suspected that such wounds were either self-inflicted or caused by V.) The police were called a number of times to the parents' home. On October 31, 2016 V. was arrested for assaulting R. The Summary judgment record contains police reports and photos of R. at the time the charges were laid. The pictures are quite graphic. The show close up shots of R.'s face and his arm. The face shots show R. with two black eyes and a bloody nose. His arm shows a bite mark. A police report is also attached. In that report R. makes the following statement,

"On October 31st, at approximately 09:00 hrs, he attended at an access visit with his children at the Queensway church. Prior to leaving for the visit V. was upset with him about his Ontario Works payment being deposited late because he had not submitted his documents in time. V. did not appear to be planning to attend the visit so he went to the church on his own. During the visit, he received numerous text messages from V., which he did not answer. V. then attended at the access visit, and visited with him and the children for approximately a half hour until the visit was concluded. After the visit V. was obviously angry with him, and at one point took everything out of his coat pockets and threw it on the ground. R. told her that he was going to walk home, but she insisted that he stay with her and take a taxi home, and further stated that she would have her dad there waiting for him if he left. R. advised he stayed with her and went home in a taxi. R. advised that after they arrived home V. was still angry, and was yelling at him continually. R. attempted to leave numerous times to remove himself from the conflict, but R. repeatedly insisted he stay, pulling him back into the apartment to make him stay. At one point V. instructed him to sit in the chair and when he complied she sat on him to prevent him from being able to leave. At that point she struck him in the face several times, he estimated 7 or 8 times, and he could then feel his nose bleeding. He was not sure if she struck him with a fist or open hand or some of both. He was eventually able to get up and continued his efforts to leave, and during the struggle she hit him on his right arm through his coat, leaving a mark on his arm. He continued to try to leave, and as he was leaving the apartment he observed his neighbour, Andy outside his apartment asking if he should call Police. At that time V. grabbed him by the hair as he was trying to leave. He believed that Andy had called the Police, and he was eventually able to leave the apartment but had fled without getting his shoes as he was just trying to get out of there. He then encountered the Officer on Mead Blvd. R. also described that during the ongoing incident, V. had "strangled" him, and further explained that she had been pulling him back into the apartment by his coat, which then tightened around his neck as it was zipped up. R. also advised that during the struggle V. had pressed her thumb into his right eye and the Officer observed that he had difficulty keeping it open and it was watering profusely. "

[34] As well, the summary judgment motion record contains screen shots of a number of text messages sent just before this incident from V. to R. I have reviewed these text messages and these messages are very angry in tone and verbally abusive to R. complaining about a missing "witches hat" (this was Halloween). V. called R. an "ass hole", a "bastard parent", "a greedy selfish jerk", "mentally fucked" and ended by saying "Thanks for allowing me to be more depressed today and cry hard enough to where I threw up. Thanks a lot." R. did not engage in the name calling.

[35] R. has found it difficult to stay away from V. and has expressed many times to the Society workers that he wishes to reconcile with his wife as he loves her. On a number of occasions he has expressed regret that he did not text the mother back sooner on October 31 2016, presumably because, if he had, she would not have lost her temper and the incident that day would have been averted.

[36] V. told the Society that R.'s version of the events of October 31, 2016 was untrue, but that she did admit biting him and perhaps hitting him in self-defence. On the basis of this limited admission, V. pled guilty to assault and was granted a conditional discharge which contained a provision that she have no contact with R. without his revocable consent and included a requirement that she attend for female offender counselling. At various times R. has indicated to the Society that V. did not assault him, and at other times said that she had assaulted him.

[37] Shortly after sentencing, R signed a consent to permit V. to have contact with him and the parents openly resumed contact with one another. He made it very clear to the Society that he loved V. and wished to reconcile with her. V. told the Society that she was cautious about reconciling with R. and would only do so if they attended counselling. She continued to maintain that R. was the aggressor, although the Society throughout has maintained that she was the aggressor in the relationship and that R. was the recipient of the abuse on the basis of their observations of her behaviour towards R. and towards Society staff at visits.

[38] At various times the parents were seen together and the Society believed the parties had reconciled. At other times, R. indicated that he was afraid of V. and, had to change his bank card three times because she would take his money. At one point, he indicated that he would be concerned for the children's safety if they were placed with their mother.

[39] In August, 2017 R. indicated to the Society that things were getting worse and that V. was threatening to call the police on him and was using the children as pawns against him. Attached to the affidavit of Tracy Stevens, Society Supervisor were copies of screen shots of text messages from V. to R. accusing him of damaging her property and choking and assaulting her. At the same time, in the texts, she is telling him to answer his phone as she is getting peeved off and she would go to his house and pound on his door until her knuckles bleed. The messages are lengthy and the tone is threatening. The Society encouraged R. to revoke his consent to contact if he feared for his safety, and he did so on August 23, 2017.

[40] Around the same time, V. told the Society that R. was at her home and they got into a big fight but that she did not call the police because the fight was just verbal.

[41] After the revocation of consent to contact was signed, V. told the Society that R.'s mother had threatened to stab her and choke her and V.'s father, told the Society that he had seen R. push V. and that he had threatened R. to never touch V. and accused the Society of drugging R.

[42] The parents blamed each other for the domestic violence in the relationship. In their respective affidavits, they minimized the future risk of domestic violence and they assured the court that domestic violence would not be an issue for the children if they were returned to either the mother or the father because they were separated.

[43] To date, the parents have been either unable or unwilling to finally separate and as such, the risk of further domestic violence should not be minimized.

Parenting Evidence

[44] V. has never exercised unsupervised access to her children.

[45] V. filed an affidavit in which she indicated that she was prepared for the return of her children. She noted that she has taken advantage of parenting course available to her including Safe Care and Purple offered by the Society, Triple P Program and the Milestone's course. She also swore that she now had a clean two bedroom apartment suitable for herself and the children. She noted that she intended to live there alone with the children and therefore there would be no way that the children would witness any domestic violence.

[46] V. indicated that her relationship with her children is "loving and joyful" and that the children "greet her with big smiles, reaching for her for hugs and kisses, they call her Mom, they are happy and loving when they are together. When the children are hurt or sick, they reach for their mother for comfort, support and hugs."

[47] V. swore that if the children were returned she would be prepared to cooperate with terms of supervision. She denied being uncooperative with and resistant to the interventions by the Society. She acknowledged feeling defensive to and disrespected by the Society because they refused to accept that she was not developmentally delayed.

[48] The Society worker Pamela Mailloux, in paragraphs 17 - 20 of her affidavit sworn September 22, 2017, disagreed with V's description of her relationship with the children and her relationship with the Society workers. Ms. Mailloux swore that she had observed the children, on occasion, hit their mother in the face and bite her when V. tried to kiss them. As well, she noted that she "has observed the children to be reluctant to attend access with their parents." She noted that E. calls her foster mother "mom" and this upsets V. and when this happens, V. corrects E. and would say, "I told you […] that I am your mommy." Ms. Mailloux noted that when the children are not feeling well they cry out for their foster mother and want to go home. If V. attempts to console the children if injured and to hold them, they will struggle and squirm and push V. to get down, especially the youngest child. Ms. Mailloux also disagreed with the mother's statement that she could be trusted to abide by any rules or conditions placed upon her regarding the children. According to Ms. Mailloux, V. has had to be redirected and or cued in regards to potty training, diaper changes, using her telephone during access, mealtime and snacks. Ms. Mailloux went on to say that V. continues to be defiant and is easily offended if redirected and becomes angry easily.

[49] R. filed an affidavit in which he supports the claim by the mother that the children should be returned to her care. In the alternative, he seeks an order returning the children to his care.

[50] R. has never exercised unsupervised access with his children.

[51] The father acknowledged in his affidavit that initially he had some difficulty with bottle feeding and diaper changing, but overtime he felt that he has developed the skills necessary to parent the children.

[52] The Society filed extensive affidavits outlining the efforts made by access supervisors to provide learning opportunities to the father during access visits. These affidavits detailed how the father showed little insight into child care but deferred to the mother during access and would follow her lead and, when the mother was not present, how he would defer to the lead of the supervisor of access. He had to be cued and or redirected, more so than the mother, in regard to potty training, diaper changes, using his telephone during access, mealtime and snacks.

Cleanliness and Housing – Going Forward

[53] Much evidence was adduced about whether there were occasions when the parents were emitting unpleasant and/or foul odours from their clothing and whether their current homes were tidy. As well, hearsay evidence was adduced by the Society that the mother was responsible for fouling the bathroom at the access centre by smearing blood and feces on the bathroom stall; this was vehemently denied by the mother.

[54] The mother and father denied that cleanliness was an issue at this time. There was no suggestion that the parents were living in squalid conditions as was the case at the time of E.'s birth and at worst, the evidence suggested that their homes might be messy at times and have an unpleasant odour. At other times, the evidence suggests that their homes were clean and suitable.

[55] I did not rely on the second hand evidence relating to the access centre bathroom.

Issues to be Determined

[56] The following are issues to be determined:

a) Is this an appropriate case for summary judgment?

b) If so, what is the appropriate dispositional order in the children's best interests?

c) If Crown wardship order is made, should an access order be made, and if so, to whom?

Summary Judgment Rule

[57] The relevant portions of Rule 16 of the Family Law Rules reads as follows:

16 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.

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.

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 five 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).

Rule 1(7.2) reads as follows:

PROCEDURAL ORDERS

For the purposes of promoting the primary objective of these rules as required under subrules 2(4) and p, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order,

(a) that a party give to another party an affidavit listing documents that are relevant to the issues in a case and that are in the party's control or available to the party on request, or that a party make any other disclosure, within a specified time;

(b) limiting the number of affidavits that a party may file, or limiting the length of affidavits that a party may file (excluding any exhibits);

(c) that any motions be brought within a specified time;

(d) that a statement setting out what material facts are not in dispute be filed within a specified time (in which case the facts are deemed to be established unless a judge orders otherwise);

(e) that questioning be conducted in accordance with a plan established by the court, be subject to a time limit or be limited with respect to scope;

(f) limiting the number of witnesses;

(g) that all or part of an affidavit or any other evidence filed at any stage in a case and any cross-examinations on it, may be used at a hearing;

(h) that a party serve and file, within a specified time, a written summary of anticipated evidence of a witness;

(i) that a witness give all or part of his or her evidence affidavit or another method not requiring the witness to attend in person;

(j) that oral evidence be presented, or that any oral evidence be subject to a time limit;

(k) that any expert witnesses for the parties meet to discuss the issues, and prepare a joint statement setting out issues on which they agree and the issues that are in dispute;

(l) that a party serve and file a summary of argument;

(m) that a party provide to the court a draft order (Form 25 25A, 25B, 25C or 25D) setting out he relief that he or he is seeking;

(n) identifying the issues to be decided at a particular hearing;

(o) that the parties appear before the court by a specific date;

(p) that a case be scheduled for trial or that a trial management conference be conducted; and

(q) that a trial be limited to a specified number of days and apportioning the days between the parties.

Discussion

[58] Rule 16 as amended provides the new road map for determining summary judgment motions. A court is directed to:

1. First review the evidentiary record and give it a "good, hard look" to determine whether there is a genuine issue requiring a trial. In reviewing the evidentiary record, the court is instructed to evaluate the quality of the evidence, i.e. is it firsthand evidence, is it hearsay, and if it is hearsay, does it have the hallmarks of reliability etc.

2. If there is no genuine issue requiring a trial, the court is required to grant summary judgment.

3. Since the 2015 amendments to Rule 16, the court is no longer required to send a matter to trial if it finds a genuine issue for trial. For an historic perspective, see Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161.

4. Rule 16 (6.1) speaks to the situation where the court is called upon to decide whether a genuine issue identified by the court requires a trial for its determination. This rule provides that the court shall consider the evidence, and may exercise any of the following enhanced adjudicative powers for the purposes of determining whether there is a genuine issue requiring a trial, namely, the court may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial. Rule 16(6.2) provides that for the purposes of exercising any of the enhanced adjudicative powers set out in Rule 16(6.1) the court may order that oral evidence be presented by one or more of the parties, with or without time limits on its presentation.

5. Justice Karakatsanis in Hyrniak v. Maudlin, 2014 SCC 7 paras 56 and 57 provides some insight into what the term "interest of justice" means in the context of a summary judgment rule. She wrote,

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

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

6. In deciding whether there is a genuine issue requiring a trial, the court must review the evidence to determine whether there is a material fact in dispute that requires a trial for its resolution. Justice John W. Morden in Irving Ungerman Ltd v. Galanis, (1991), 4 O.R. (3d) 545, at page 550 explained the relationship between a material fact and a genuine issue for trial. He noted that a fact is not material if the result of a proceeding does not turn on its existence or non-existence.

7. The court must identify those material facts that must be proven in order for the relief to be granted. On a summary judgment motion, Supreme Court Justice Karakatsanis speaks to the need for the judge to be confident that she can fairly resolve the dispute on the evidence adduced without a trial.

8. The quality of the evidence must be evaluated. In my decision, Children's Aid Society of Toronto v. O.G. [2015] O.J. No. 1124 I considered this issue in the context of a child welfare proceeding where crown wardship was being claimed and made the following comments in paras 51-52,

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

52. Clearly, not all facts need be proved to the same standard. Uncontested facts or non-material facts might be established through hearsay evidence. However, given the unique character of child protection proceedings, the quality of the evidence proffered to prove a material fact (whether contested or not) must be carefully scrutinized and a court should generally demand evidence that is solid, credible and in most cases, from first-hand knowledge. The party seeking the summary disposition must meet the onus of establishing that there are no genuine issues requiring a trial.

Is There a Genuine Issue Requiring a Trial?

[59] This young couple came to the attention of the Society prior to the birth of their first child. At that time, they were living in squalid conditions, the mother was pregnant but did not seeking prenatal care until very late in her pregnancy. (The mother claimed she was not aware that she was still pregnant because she thought she had lost the baby earlier in her pregnancy. She agreed that she had sought no medical help even when she thought she had experienced a spontaneous abortion.) The baby was born at home in the conditions previously described, and when the couple came to the hospital, hospital staff expressed concerns about their mental health, and their cognitive abilities given the situation, and the fact that they were planning to return home with the baby.

[60] The Society began to work with the parents around housing issues and parenting issues. Within a year, a second child was born. Even then, the parents had not moved into a suitable apartment for their family. At the time the second child was born parents were living with the mother's cousin in a home with nine adults. Shortly after the second child was born, the parents found an independent accommodation.

[61] The Society felt that the parents were making very little progress in addressing their issues. The Society suspected that the parents were cognitively delayed in their development. The parents denied this was the case.

[62] In an effort to plan a way forward, it was agreed that the parents would participate in a section 54 psychological assessment and a parenting capacity assessment. Pursuant to section 54(6), the report is evidence and part of the court file without any further proof.

[63] The section 54 assessment was lengthy and thorough. After reading the affidavits filed by the Society, I am satisfied that the findings in the section 54 assessment informed the positions taken by the Society as to disposition and assisted the Society workers in interpreting the words and actions of the parents.

[64] Although the assessment ruled out the suspicion that the parents were cognitively delayed, it did not support the parents' desire for the immediate return of the children.

[65] In assessing the father's ability to parent, the assessor questioned his ability to parent the children alone and even to parent the children as an equal partner with the mother.

[66] As to whether the children should be returned to the mother, the assessor did not recommend that they be returned but left that to the court. She wrote, on page 46-67,

"If a decision is made to return the children to the care of V. and R., it is advised that this transition occur very slowly, including first moving the access into their home for a few hours at a time (if and when the conditions of their home are deemed acceptable) and then increasing the hours. This would allow the parents to develop strategies that will be effective in caring for their children, as well as allow them opportunities to further develop their parenting skills before assuming the full-time care of the children. "

[67] The assessment report went on to recommend that V. be the primary parent and that R. assume a role of "helper" at the direction of V. and that V. learn to care for both children at all times as well as direct and supervise R. Dr. Ross noted that implementing this recommendation would be challenging and its effectiveness is questionable.

[68] Given the personality of V., the assessor recommended that service providers adopt a different approach when dealing with V. The assessor recommended that service providers make V. feel listened to and that the positives (no matter how small) in any learning situation to be pointed out frequently. She noted that "focusing on the positive would prevent provoking V.'s negative emotions and defensive response that then interferes with her receptiveness and cooperation." (p. 48)

[69] The report also highlighted R.'s passive nature and his reluctance to express differing views or feelings of anger towards others. She described R. as a man who was overly passive and lacked initiative.

[70] Counsel for R. sought to cross examine Dr. Ross on these findings. He noted that this was an expert's report that was evidence pursuant to the provisions of the Act, admitted for the truth of the facts asserted therein. Section 54(6) reads as follows:

54(6) ASSESSMENT IS EVIDENCE—The report of an assessment ordered under subsection (1) is evidence and is part of the court record of the proceeding.

[71] Given the findings and recommendations, it is a report in the record that is very damaging to his client's position.

[72] He argued that professional opinion reports should not be accepted by the court without careful consideration. (It is for the assessor to advise, but the court to decide.) He argued that if this were a trial, the assessor would be called, unless all parties consented to the report's admission without cross-examination.

[73] He pointed to the risk of a miscarriage of justice when a court places undue reliance on unchallenged expert reports. In this regard, he referenced the recent Motherisk hair analysis report scandal and the conclusion in the Motherisk Report that the court must always be cognizant of its role as gatekeeper with regard to the admission of expert evidence.

[74] Counsel also questioned, given how central the findings in the Section 54 assessment were to the Society's case, and the fact that the parents were contesting those findings, how the court could confidently evaluate, without cross-examination, the quality of the opinion evidence and decide what weight to give to such opinion evidence.

[75] I agree with counsel for the father.

[76] Expert reports under the Evidence Act (Ontario), which are sought to be filed, are subject to cross examination at the insistence of the other party. Given the importance of section 54 reports and the special status accorded to them under the Act, I see no reason why this rule would not apply. But for the provisions of section 54 of the Act, a party seeking to admit a parenting capacity report which would support their case would have to follow the provisions of the Evidence Act (Ontario) as to notice, and then to produce the author of the report for cross examination if the other side were to require counsel to do so. See Children's Aid Society of Algoma v. B.A., [2001] O.J. No. 2745 para 40, where Justice Kukurin wrote, "If a party insists that the author of the report be produced at Court for cross-examination, he or she has an absolute right to cross-examine."

[77] I am satisfied that the evidence contained in the Parenting Capacity Assessment represent a genuine issue on which the results of the trial might turn.

[78] At this point, I am required under Rule 16 (6.1) to consider whether the genuine issue I have identified requires a trial for its fair determination, or, (unless I am of the opinion that such powers should only be exercised at a trial,) whether I might employ one of the enhanced adjudicative powers contained in Rule16 (6.1), namely, the power to weigh the evidence, evaluate the credibility of the deponent, or to draw any reasonable inference from the evidence to determine this issue on the summary judgment motion short of a trial. When exercising these enhance adjudicative powers, Rule 16(6.2) allows the court to order that oral evidence be called by one or more of the parties and set time limits at the courts discretion.

[79] In the circumstances, I am prepared to order a "mini trial" under rule 16 (6.2) to determine whether the genuine issue I have identified actually requires a full trial for its fair disposition.

[80] Justice Karakatsanis in Hyrniak supra paras 61, 63, and 65, provides guidance as to how this mini trial should be structured. She wrote,

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

62. 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.

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

Next Steps

[81] I propose to hear evidence from Dr. Ross. Although Dr. Ross is the court's witness, I ask that the Society call Dr. Ross. Counsel for the mother and the father shall then be permitted to cross-examine her. Her notes and records should be made available to all counsel, well before the mini-trial.

[82] As well, I propose to hear from the mother and the father on their responses to the parenting capacity assessment report and on their parenting plans going forward. The parents shall be limited to one hour each in chief although I am prepared to reconsider this time limit on the submissions of counsel for the parents.

[83] In the event that the Society feels it necessary to call a witness after hearing from the parents, I will be prepared to hear submissions in this regard.

[84] After this mini trial, I propose to consider the matter further and to decide whether a full trial is required, whether a trial of an issue in the usual course is appropriate, or whether to proceed to decide the case using the enhanced adjudicative powers available under Rule 16.

Released: December 5, 2017

Signed: Justice Penny Jones