WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

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

87(8) Prohibition re 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.

87(9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2018-05-16

Court File No.: Toronto CFO-13-10832

Between:

Children's Aid Society of Toronto Applicant

— AND —

E.B. Respondent Mother

Before: Justice Sheilagh O'Connell

Heard on: March 1, 2018

Reasons for Judgment released on: May 16, 2018

Counsel

Julia O'Byrne — Counsel for the applicant society

Respondent mother E.B. — On her own behalf

Nav Rai — Counsel for the Office of the Children's Lawyer, legal representative for the child

O'CONNELL J.:

Introduction

[1] The applicant, the Children's Aid Society of Toronto ("the Society") has brought a summary judgment motion seeking a finding that the subject child, A.B., age 9, ("the child") is a child in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(g) of the Child and Family Services Act, 2010. The Society is also seeking a disposition order placing the child in the care and custody of her adult sister, K.H., pursuant to section 102(1) of the Child, Youth and Family Services Act (formerly a section '57.1 custody' order under the old legislation).

[2] The Society is further seeking a final order regarding incidents of custody and an order that the Respondent mother shall have access to the child in consultation with her wishes, and to occur at a supervised access centre at K.H.'s discretion. Finally, the Society is seeking the usual statutory findings and a finding that the full legal name of the child's father is unknown.

[3] The Office of the Children's Lawyer, on behalf of the child, supports the Society's motion and states that the child wishes to remain living with her sister.

[4] The Respondent mother, E.B., ("the mother") is opposed to the motion and seeks a dismissal of the summary judgment motion and an order that this case proceed to trial. She seeks the return of the child to her care.

[5] In support of its summary judgment motion, the Society relied upon the following evidence:

1. The affidavits of K.H., sworn November 20, 2017 and February 21, 2018;
2. The affidavit of Alberta Danso, sworn November 23, 2017;
3. The affidavit of Murine Blake, sworn November 23, 2017;
4. The affidavit of Christina Raposo, sworn February 13, 2018;
5. The affidavit of Bobbi Reside, sworn February 7, 2018;
6. The affidavit of Brahm Goldenberg, sworn February 13, 2018;
7. The affidavit of Franz Noritz, sworn February 15, 2018;
8. The affidavit of Gillian Aiken, sworn February 21, 2018.

[6] In response to the motion, the mother relied upon the following affidavits:

1. The mother's affidavit sworn August 28, 2017;
2. The mother's affidavit sworn October 18, 2017;
3. The mother's Answer and Plan of Care, dated April 18, 2017.

Brief Background and Overview

[7] The mother has three children, A., age 9, the subject child of this protection application, N.B., age 18, and K.H., age 25. N.B. lives with her father under a child protection custody order (formerly known as a section 57.1 custody order) made in 2016. K.H., who is A.'s adult sister and current caregiver, has lived with her maternal grandparents since she was approximately 6 years old until she became an adult. K.H. now has her own apartment.

[8] The biological father of A. apparently resides in St. Lucia, although his whereabouts are unknown and he has had no contact with A. since her birth. On December 6, 2017, this court made an order dispensing with service of the protection application on him, based on the evidence filed in support of the order requested by the Society. N.B.'s father resides in Toronto, as does K.B.'s father.

[9] A. resides with K.H, pursuant to a temporary care and custody order made by Justice Manjusha Pawagi on October 23, 2017.

[10] The Society has a history of involvement with the mother. On October 17, 2013, the police charged the mother with four counts of assault, two counts of mischief and one count of uttering death threats after N.B. disclosed a number of incidents of being physically harmed and abused by her mother. N.B. alleged that A. was present and witnessed the abuse.

[11] On November 4, 2013, as a result of these criminal charges, the Society removed A. and her teenage sister N.B. from the mother's care and placed them in the temporary care and custody of the maternal grandparents, subject to the supervision of the Society.

[12] On October 24, 2014, approximately one year later, Justice Penny Jones made an order returning A. to the temporary care and custody of her mother, subject to the supervision of the Society. N.B. remained in the care of her maternal grandparents.

[13] In January of 2015, following a trial, the mother was convicted of two counts of assaulting N.B., and one count of mischief. N.B. was 15 years old at the time and she did not wish to return to her mother's care. On October 27, 2016, N. was placed in the care and custody of her father pursuant to section 57.1 of the Child and Family Services Act (now section 102(1) of the CYFSA).

[14] A. did well upon returning to her mother's care and on September 3, 2015, the Society withdrew its protection application with respect to A., and she remained in her mother's care. No protection finding was made with respect to A.

[15] The Society commenced this protection application on April 12, 2017. According to the Society's evidence, in October of 2016, the family service worker received a call from K., the mother's oldest daughter, advising that A. had come to live with her and the maternal grandparents. K. requested that A. be placed with her through a kinship program because she was worried that the mother would take A. from her care. K. expressed concern about the mother's mental stability at that time.

[16] The Society apparently supported this plan but did not take any steps at that time. They closed their file in February of 2017. In March of 2017, K. contacted the Society again and requested a letter in support of her custody application for A. The Society advised K. that they could not write a letter of support outlining its past involvement without the mother's consent.

[17] K. reported to the Society a number of concerns that she had about the mother's mental health and stability, including a disturbing incident in March of 2017 in which she reported that the mother came to her home and started screaming and yelling and pushing at her, causing K. and A. to flee and hide at a neighbour's home.

[18] K. also reported for the first time to the family service worker that when A. came to live with her in October of 2016, the mother had allegedly thrown an apple at A., which hit her in the eye. The mother then brought A. to the grandparents' home and claimed that A. was "possessed". Both the maternal grandfather and K. expressed concerns about the mother's mental health and emotional instability.

[19] On April 7, 2017, the family service worker received a telephone call from A.'s school principal. The principal apparently told the worker that the mother was at the school attempting to remove A. The principal could not stop her because the mother had legal custody and there was no documentation confirming otherwise.

[20] The family service worker, the police and K. all attended at the school. The child apparently advised the worker and the police officer that she wanted to live with her sister K. The Society apprehended A. and placed her in K.'s care. The Society then commenced this protection application and on April 12, 2017, the court placed A. in temporary care and custody of her sister K. on a without prejudice basis.

[21] A. has resided with her sister K. since that time. The Society conducted a formal kinship assessment of K. and she was approved as a kinship provider in May of 2017. The Society's kinship service provider has conducted monthly visits with K. and the child since that time and has no concerns.

[22] On October 23, 2017, following a contested temporary care and custody hearing, Justice Manjusha Pawagi ordered that the child be placed in the temporary care and custody of K. subject to the supervision of the Society and with supervised access to the mother.

[23] A. had regular supervised visits with her mother at the Society's offices until December of 2017. On December 22, 2017, following an incident that occurred at the Society's offices on December 19, 2017, Justice Pawagi suspended the mother's access on a temporary without prejudice basis until January 3, 2018.

[24] On January 3, 2018, the parties entered into a consent order on a temporary basis that access between the mother and the child be supervised by Ujima House or Milan and Associates, or another third party as agreed upon by the Society and the mother, in consultation with the wishes of the child. Since that time the mother's access with the child has been supervised by Milan and Associates.

The Society's Position

[25] The Society submits that there is no genuine issue requiring a trial in this case. The child was in need of protection on April 7, 2017, the date that she was removed from the mother's care, and she continues to be in need of protection for the following reasons:

a. In October of 2016, the mother threw an apple at the child, which hit her in the eye and caused her eye to swell;

b. In March of 2017, the mother pushed K., her adult daughter (the child's caregiver) in the presence of the child and caused K. and the child to hide from the mother in a neighbour's basement;

c. In January of 2015, the mother was convicted of assaulting her middle daughter, N.;

d. The mother denies that she has done anything wrong and has not addressed the Society's concerns about the "apple incident" and about her mental health in general;

e. During supervised access visits, the mother has consistently spoken about the child protection proceedings, criticized the Society and confronted workers in the child's presence and has ignored the child's clear signs that she is being negatively affected by watching her mother's interactions with Society staff during access visits;

f. The child is at risk of future harm because of the mother's denial of the protection concerns;

g. It is in the child's best interests to remain in the permanent care and custody of her older sister K., as she had been in her care since October of 2016, she is thriving in her care, the child and K. have a strong emotional bond and K. is providing a warm and nurturing environment for her. Further, the child consistently states that she wishes to remain in her sister's care and to see her mother on a supervised basis.

The Mother's Position

[26] It is the mother's position that the Society acted in a criminal manner by illegally removing or kidnapping her daughter from her care. She submits that the Society is a corrupt organization and its actions in removing the child were racist and reflective of a long history of systemic racism and cultural genocide against people of African (and Indigenous) descent. The mother asserts that the Society removed her daughter from her care without any evidence that the child has ever been harmed by her. The Society further placed her daughter with K., the adult sister, without conducting a formal safety checklist until the following week.

[27] The mother further submits that this summary judgment process denies her the right to a fair trial and the ability to cross-examine the Society witnesses. She asserts that a mother should not permanently lose her child based on a summary judgment process after her child has lived with her for nine years without incident.

[28] Finally, the mother submits that the child's statements and in particular her wishes to remain living with her adult sister with supervised access to her mother, were made under duress, undue influence and coercion by family members and that OCL counsel has no expertise in ascertaining whether her views have been shaped and influenced.

The Law and Governing Principles

[29] The Society brings this motion pursuant to Rule 16 of the Family Law Rules, otherwise known as the summary judgment rule.

[30] To succeed on a summary judgment motion, the society must prove on a balance of probabilities that there is no genuine issue requiring a trial. "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed" or when there is "no realistic possibility of an outcome other than that sought by the applicant."

[31] Rule 16 is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim or defence, then the court must make a final order.

[32] The legal considerations regarding summary judgment motions in child protection proceedings, and in particular, the evidentiary standard required, were recently summarized by Justice Stanley Sherr in the decision Catholic Children's Aid Society of Toronto v. C.G. and D.S., 2018 ONCJ 193. Justice Sherr explains the following at paragraphs 8 to 14 of that decision:

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..

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.

The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out principles for courts to apply in determining motions for summary judgment. The following principles set out in Hryniak are pertinent to this case:

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

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).

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)."

[33] Regarding the evidence required by the moving party on summary judgment motions, Justice Sherr states as follows:

Many courts require a trial-worthy standard for the admission of evidence on summary judgment motions. See: C.A.S. v. K.V., 2013 ONSC 7480; Children's Aid Society of Toronto v. C.P., 2017 ONCJ 330; The Children's Aid Society of Ottawa v J.B. and H.H., 2016 ONSC 2757; CAS v. N.A.-M., 2018 ONSC 978; CAS (Ottawa) v. M.M., 2018 ONSC 786; A.B. v. J.B., 2017 ONCJ 866.

In Children's Aid Society of Ottawa v. B.J., supra, Justice Jennifer McKinnon held on a summary judgment motion that the starting point in addressing the admissibility of hearsay evidence is that it is excluded unless it satisfies the tests of necessity and reliability.

This court set out its reasons for applying a trial-worthy evidentiary standard on summary judgment motions when it wrote in Children's Aid Society of Toronto v. B.B., 2012 ONCJ 646:

"[25] My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination."

This evidentiary standard for summary judgment motions was recently strongly endorsed in the Report of the Motherisk Commission, February 2018, The Honourable Judith C. Beaman Commissioner. The Commission made a recommendation that the Family Law Rules be amended to explicitly state that on summary judgment motions the court should only permit evidence that would be admissible at trial, and in particular, to prohibit hearsay evidence that does not meet the common law tests for admissibility (see pages 112, 113).

[34] Finally, where a party is self-represented, the court must also be mindful of the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23. See Catholic Children's Aid Society of Toronto v. C.G. and D.S., 2018 ONCJ 193, per Justice Stanley Sherr at paragraph 15, and the decision of Justice Laura Fryer in Gray v. Gray, 2017 ONSC 5028.

[35] These principles include the following:

1. Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.

2. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

3. Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

The Issues

[36] The court must determine if the Society has proven, on a balance of probabilities, that there is no genuine issue requiring a trial of the following issues:

1. A finding that the child is in need of protection pursuant to sections 74(2)(b)(i) and 74(2)(h) of the Act, and if so,

2. A final order that the child be placed in the custody of her adult sister K.H. pursuant to a custody order under section 102(1) of the Act and,

3. A final order that any access between the child and her mother be in consultation with the child's wishes, to be exercised at a supervised access centre at K.H.'s discretion.

The Findings in Need of Protection

[37] The protection finding is essential in child protection cases. If a protection finding is not made, then no further orders, neither protection orders nor section 102 custody or access orders are permissible. In Chatham-Kent Children's Services v. C.P. and W.G., 2014 ONCJ 395, Justice Kukurin explains the following at paragraph 13 of his decision:

The justification for society intervention in the lives of families is the protection of children. The society's authority is subject to a number of procedural checks and balances in the Act, and ultimately to judicial oversight. The pivotal point in a child protection case is the finding that a child is in need of protection. The court is statutorily mandated to make a determination when a child protection application is commenced. The hearing of that issue is subject to some time limits. If a finding is not made, no further orders, neither protection orders nor s.57.1 custody or access orders are permissible. The child protection case ends. Accordingly, the finding is essential. The society now seeks this finding by way of summary judgment. For the court to reach this finding, it must be satisfied on the evidence that there is no genuine issue with respect to a finding that requires that issue to be dealt with in the context of a trial. Essentially, it must be satisfied that such a finding is inevitable, or a foregone conclusion. The summary judgment provisions, in Rule 16 of the Family Law Rules, place an obligation on Respondents in summary judgment motions to put all their evidence before the court, to put their best foot forward, and to do so with facts.

Section 74(2)(b)(i): Risk of Physical Harm

[38] Section 74(2)(b)(i) provides that a child is in need of protection where 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 failure to adequately care for, provide for, supervise or protect the child.

[39] The Society must prove that the risk of physical harm is real and likely, not speculative. The Society does not need to prove that the parent intended to cause harm in order to find a child in need of protection. Physical harm can be caused by neglect or error in judgment. However, it must be more than trifling physical harm. A child may be at risk even if the conduct is not directed specifically towards that child.

[40] The Society relies upon the following evidence to state that there is no genuine issue requiring a trial that the child is at risk of physical harm in the mother's care:

1. Evidence that the mother threw an apple at the child which hit her in the eye and then the mother brought the child to the grandparents' home in October of 2016 where she paced back and forth and told the grandparents and K.H. that the child was "possessed";

2. Evidence that during a conversation with the mother and her adult daughter K.H. regarding the child, the mother became increasingly escalated, started screaming and yelling and then lunged at K.H. and tried to grab and twist her arm, leading to K.H. and the child running out of the home and hiding at a neighbour's home.

3. The mother's previous criminal convictions for two counts of assaulting her middle daughter N. and her past history of abusive behavior to N.

[41] The evidence regarding the mother throwing an apple at the child and hitting her in the eye is inadmissible hearsay, and appears to be based on the child's statements to K.H., her adult sister, who then reported this to the Society. This is double hearsay. The mother denies deliberately throwing an apple at the child which hit her in the eye. She acknowledges that she tossed an apple, which may or may not have accidentally hit the child.

[42] The evidence regarding the mother bringing the child to her adult daughter's and parents' home in October 2016 and leaving her there after pacing back and forth and stating that the child was "possessed" is also denied by the mother. She states that although she brought A. to her parents' home, she did not intend that the child reside there and she never said that the child was "possessed". The mother states that the child was with her during the day and after school on a daily basis, and that the child sometimes slept at the grandparents' home or stayed there during the evenings because of the mother's community development program and work.

[43] In her Affidavit, K.H. denies this and states that the mother left the child with her and the maternal grandparents because she was unable to properly care for her. According to K.H., the mother did not put up a fight and she agreed that she would not take the child back to her apartment or be alone with her. However, K.H. also states that within a couple of days, she was advised by the mother that she did not wish to formally transfer custody of the child to her.

[44] Regarding the mother's criminal convictions for assaulting her middle daughter N. in 2015, the mother did not appeal these convictions and they still stand. Under Canadian law, a criminal conviction is admissible in a civil proceeding and generally constitutes prima facie proof, not conclusive proof, of the underlying facts or guilt, although it can be rebutted with evidence that was not available at the criminal trial. See W.H. v. H.C.A..

[45] However, notwithstanding the mother's criminal convictions in January of 2015 for assaulting her middle child, the Society withdrew its protection application regarding A. in September of 2015, following the mother's convictions. No protection finding was made regarding A. She continued to remain in the mother's care without Society supervision until the Society's current involvement in 2017, or until October of 2016, according to K.'s evidence.

Section 74(2)(h): Risk of Emotional Harm

[46] Section 74(2)(h) states that a child is in need of protection where the child is likely to suffer emotional harm of the kind described in sub clause f(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or neglect on the part of the child's parent. The emotional harm is described under a number of subsections of clause 74(2)(f) as being demonstrated by "serious":

1. anxiety,
2. depression,
3. self-destructive or aggressive behaviour, or
4. delayed development.

[47] There is divided case law on whether expert evidence is required to substantiate a protection finding of emotional harm under the Act. Some courts have held that in order to substantiate a finding of emotional harm, a clinical diagnosis is not necessary, but expert evidence is usually required. See Children's Aid Society of Ottawa v. P.Y.; Re S. (D.); Catholic Children's Aid Society of Hamilton-Wentworth v. C.L.; N.V.C. v. Catholic Children's Aid Society of Toronto, 2017 ONSC 796.

[48] Other courts have held that in assessing the evidence, the court does not require expert evidence to determine whether actual emotional harm has occurred or whether there is an ongoing risk of emotional harm. Simcoe Muskoka Child, Youth and Family Services v L.V., 2016 ONSC 7039. However, in meeting its burden of proof under these sections of the Act, it is not sufficient for the society to simply establish that the child is merely sad or is experiencing some minor emotional unhappiness while in the care of her mother. The evidence must disclose on a balance of probabilities that the harm to the child is "serious". Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447.

[49] Sometimes, the evidence of a child's distressed reactions to parental behaviour is sufficiently clear that a finding can be made without the opinion of an expert. Children's Aid Society of Ottawa v. P.Y. and A.S.; Catholic Children's Aid Society of Toronto v. E.S., 2016 O.J. No. 2558; Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447.

[50] In Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447, the court held that the mother's lack of insight and her inability or unwillingness to acknowledge her daughter's feelings of stress, fear and anxiety was sufficient to demonstrate that there was an ongoing risk of emotional harm to the child.

[51] In the case before me, the Society largely relies on the evidence of the supervised access visits to support its position that there is no genuine issue requiring a trial that the child is in need of protection because she is likely to suffer emotional harm as a result of the mother's actions, failure to act, or neglect.

[52] The Society acknowledges that the mother is able to interact positively with A. some of the time during the visits. However, the Society submits that the mother's negative interaction with the Society supersedes any positive interactions with the child. According to the Society, the mother will spend the majority of the visits yelling and berating society workers instead of focusing on her child. A. is observed in some visits to become disengaged, quiet and distant with a flat affect, and sometimes sitting with her hands covering her ears.

[53] The Society's evidence that the child is observed to be sometimes sitting with her hands covering her ears while her mother is berating Society workers is derived from the hearsay evidence of a summer intern, Reta Magid, as reported in the Affidavit of Ms Alberta Danso, the Family Service worker. This evidence is based on one handwritten observation note by the summer intern and attached to Ms Danso's affidavit regarding a visit that occurred on July 25, 2017. Ms Magid did not provide an affidavit as she had left the Society after her summer position. I could not find any other reference to any other visit where the child apparently covered her ears during access visits while her mother was talking.

[54] This is inadmissible hearsay. While this evidence may be sufficient for a temporary care and custody hearing in which hearsay evidence is permissible under section 94(10) of the Act so long as the court considers it "credible and trustworthy" in the circumstances, the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

[55] The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed or incomplete evidence, particularly when the respondent parent is without counsel. "The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination." See Children's Aid Society of Toronto v. B.B., 2012 ONCJ 646 at paragraph 25, per Justice Stanley Sherr.

[56] The court carefully reviewed the affidavits of all of the workers regarding the supervised access visits. There is direct evidence that the mother does spend a significant amount of the time engaged in very negative interactions with Society workers. There is evidence that the child has been observed to be "distant", "flat", "quiet" and with a "blank stare" during some of these interactions. During one visit on December 19, 2017, a worker described the mother to be repeatedly slamming her hand against the door and yelling at the worker. The child was directly observed to be frightened. There is also evidence that the child is directly observed to be smiling and enjoying some visits with her mother during the occasions when the mother is focused on the child.

[57] Some of the evidence was very concerning, however, the Society did not sufficiently explain how these observations demonstrated evidence of a likely risk that the child will develop "serious anxiety, depression, self-destructive or aggressive behaviour or delayed development", as required by section 74(2)(f) of the Act. Further, there is very little, if no evidence regarding the quality of the access visits now that they have moved out of the Society's offices and are being supervised by Milan and Associates.

Conclusion

[58] I am not satisfied, based on the evidence before me that there is no genuine issue requiring a trial with respect to the protection findings. In my view, this is not a case in which the summary judgment process on the issue of the protection finding is appropriate or fair, particularly given that the mother is self-represented, the stakes for her are very high and granting the motion will deprive her of the procedural safeguards of a trial.

[59] In reaching this decision, I have carefully considered my expanded powers under Rule 16(6.1) and (6.2) of the Family Law Rules which permit me to weigh evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence in determining whether there is a genuine issue requiring a trial in this matter. It is still my view that there should be a focused trial on these issues.

[60] The summary judgment motion is therefore dismissed and a focused hearing will be scheduled before me as soon as possible on the issues of finding and disposition. In Hryniak v Mauldin, the Supreme Court of Canada has made it clear that where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge. This saves judicial time and allows for a fair and expeditious and proportional process.

[61] The court can accommodate dates as early as the end of May and June of this year. The parties will schedule a trial management conference before me with the assistance of the trial coordinator as soon as possible.

Released: May 16, 2018

Signed: "Justice Sheilagh O'Connell"

Footnotes

[1] Now sections 74(2)(b)(i) and 74(2)(h) of the Child, Youth and Family Services Act, 2017 ("the Act" or the "CYFSA"). The Society brought its summary judgment motion under the former legislation known as the Child and Family Services Act. On April 30, 2018, the Child, Youth, and Family Services Act ("CYFSA") was proclaimed into force. The court will refer to the new sections under the CYFSA throughout this decision.

[2] The protection application was amended on September 19, 2017.

[3] The Society's position is set out at paragraph 62 of the Affidavit of Alberta Danso, Family Service Worker.

[4] Children's Aid Society of Oxford (County) v. J. (J.) at para. 8 (S.C.J.)

[5] Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) at para. 80 (S.C.J.)

[6] Rule 16(8) of the Family Law Rules; Simcoe Muskoka Child Youth and Family Services v. L.V. and D.H., 2016 ONSC 7039 at para. 9 (S.C.J.)

[7] See Catholic Children's Aid Society v. C.G. and D.S., [2018] O.J. No. 1612, 2018 ONCJ 193, at paragraphs 14 and 15, per Justice Stanley Sherr.

[8] Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[9] Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903, 2009 ONCA 903 (Ont. C.A.).

[10] Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458.

[11] Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.)

[12] Section 74(2)(h) of the CYFSA replaces section 37(2)(g) of its predecessor, the CFSA. The language is the same.

[13] 2014 SCC 7, [2014] 1 S.C.R. 87 at paragraph 78.