Court File and Parties

Citation: Children's Aid Society of Brant v. S.G., 2018 ONCJ 958

Date: December 17, 2018

Court File No.: FO-18-01

Ontario Court of Justice Family Court

In the Matter of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14

And In the Matter of: M. G-D., a child apparently in need of protection.

Between:

Children's Aid Society of Brant Applicant

-and-

S.G. & R.D. Respondents

Reasons for Judgment

Before the Honourable Justice K.A. Baker

on December 17, 2018, at Brantford, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(7) AND 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

Appearances

• E. Lee, Counsel for the Applicant
• P. Fallon, Counsel for the Respondents

Judgment

BAKER, J.

This is my judgment on the applicant's motion for summary judgment in relation to its protection application for the child, M. G-D. born […], 2017 and now aged one year.

The Society was seeking preliminary findings, protection findings and an order of disposition placing the child in extended care with no access.

The claim on the preliminary findings, including the finding that the child was not First Nations, Inuk or Métis was not approved.

The protection findings and the order of disposition at least were being opposed by the parents.

Procedural History

A few days prior to the scheduled hearing date of December 11, 2018, the applicant brought a motion to adjourn the hearing and to add the Ojibway of the Turtle Clan as a party to the proceeding. This was made returnable on an urgent basis on Friday, December 7, 2018. The only court available on that date was a completely booked criminal court. The motion could not be heard and it was adjourned in front of me as the case management judge—sorry—as a judge hearing the motion for summary judgment to be heard on December 10, 2018.

At that point, the agent appearing for Society counsel having carriage of the matter advised that it had been determined that there was no such entity as the Ojibway of the Turtle Clan; the motion was withdrawn by the Society.

The court was advised that the parties would be able to come to a statement of agreed facts on the issue of the child's status as First Nation and the hearing of the motion for summary judgment on the following day could be confirmed.

The endorsement on that date specifically required the Society to, "Be prepared to address all preliminary findings, including the child's status as First Nation."

The Society's request for leave to call brief viva voce evidence on the issue of preliminary findings was also granted.

First Nations Status Determination

At the outset of the hearing of the motion for summary judgment, the court was presented with a statement of agreed facts that responded to the question is the child First Nation, Inuk or Métis with the letters NA beside it, presumably meaning not applicable.

This is a completely inappropriate response to the question. The legislation requires the court to make a finding as to whether the child is First Nations, Inuk or Métis. It is never a question that is "not applicable".

In a child protection proceeding it is a vital question and a determination that the court is statutorily obligated to make.

The court then inquired if, in fact, the parties intended the answer to the question about whether the child was First Nations to be no. Counsel responded in the affirmative. This was difficult to reconcile with the evidence and with Regulation 155/18, which indicated that the father identifies as First Nation, that being a ground for a child to be found as First Nation.

When this was pointed out to counsel, counsel changed their positions and agreed that the child is, in fact, First Nation.

Oddly, in the first draft of the statement of agreed facts, despite the assertion that the child was not First Nation, the parties had agreed that the child had a band or their native community of "Ojibway".

Having reached consensus on the First Nation status of the child, the court then moved on to the determination of the native community. It was immediately evident that "Ojibway" was not a proper description of the child's native community. The matter was stood down for the Society to make belated inquiries about the child's correct native community.

It should be noted that by that point the child protection proceeding had been before the court for a year.

Prior Adjournment and Disclosure Issues

A hearing of December 11, 2018, was the second time the motion for summary judgment had been scheduled. It had originally been scheduled to be heard on October 22, 2018. On that date the motion hearing was adjourned at the parents' request because the Society had made only very recent disclosure to the parents which prevented the parents from adequately responding to this very important motion.

In its original Notice of Motion seeking summary judgment, the Society sought findings inter alia as follows:

1(ii) Is the child First Nations, Inuk or Métis? No. 1(v) Child's bands and First Nations Inuit or Métis Communities? Not applicable.

None of the three supporting affidavits, including those of the family service worker and the child service worker addressed whether the child was, in fact, First Nation.

The motion was then amended on October 11, 2018 with a stated return date of December 5, 2018, (although the matter had been adjourned to December 11, 2018 and, in fact, the motion was not addressed on December 5, 2018).

In this new motion the Society sought the same findings, that is that the child was not First Nations and that the native community was 'not applicable'. Again, the issue of whether the child is First Nations was not addressed in any of the three supporting affidavits filed with the amended motion, including that of the family service worker and the child service worker.

Five days later, the motion for summary judgment was again amended to reflect the correct previously scheduled return date of December 11, 2018. Still the same findings were sought. No further affidavits were filed to address any of the issues, including the requested preliminary findings.

In his affidavit to the motion for summary judgment sworn November 1, 2018, the respondent father indicated that he identifies as Ojibway from the Turtle Clan of the First Nations Reserve. He said therein that he does not have a "status card" and that the child does not have status as First Nations.

The Society served and filed an affidavit sworn by the family service worker on November 23, 2018, responding to the parents' material, including the father's affidavit. In it the worker deposes: "The Society was unaware of Mr. D.'s cultural heritage until Mr. D.'s affidavit dated November 1, 2018. This is the first time I have been made aware of his heritage. The Society is in the process of inquiring of Ojibway of the Turtle Clan for Mr. D.'s and the child M.'s potential native heritage."

Four days later on November 27, 2018, the Society issued its motion to add "Ojibway of the Turtle Clan" as a party to the proceeding and to adjourn the hearing date of the motion for summary judgment. The supporting affidavit indicates that the Society needed time to determine whether "Ojbwa" O-J-B-W-A (sic) of the Turtle Clan recognizes Mr. D. as a member and whether the proceeding should be transferred to Ogwadeni:Deo, the local native services protection agency.

It is apparent from the subsequent developments that the Society did not use the time prior to commencing its motion to determine whether there even was an entity called "Ojbwa" O-J-B-W-A, or Ojibway O-J-I-B-W-A-Y of the Turtle Clan" prior to asking the court to add this entity as a party and to adjourn this important motion with respect to a child who, at one year, has been in the Society's care his whole life.

Even after it withdrew its motion to add the non-existent native community as a party, the Society did not, despite court instruction to do so, clearly assess whether the child was First Nation, and if so whether there was a native community that was a party. The determination of those issues thus subsumed about three hours of scheduled hearing time and required the direction of the court to call a witness. It was apparent during numerous discussions and stand-downs that occurred during this time that no one understood precisely what questions needed to be asked or what the test was, let alone how to apply the information obtained to the legal test.

Systemic Concerns

These events were highly problematic for a number of reasons.

First, the spurious motion consumed judicial resources, including on the first return, the resources of a criminal court when a family court was not available. That court was not able to complete all of its work before it on that date. There can be little doubt that the imposition of this matter did not assist in that regard.

Second, the allocation of judicial resources to the hearing of this motion for summary judgment was threatened. This occurred after the Society's lack of timely disclosure had already caused the adjournment of the first hearing date at the last minute.

Further, a matter that could have been argued in a much more expeditious fashion was extended by some three hours, because the time had to be allocated to an issue that should have been dealt with much, much earlier in the proceeding.

Third, there was the risk that this motion would have to be adjourned given the spectre of the addition of another party. This would have resulted in the child remaining in limbo for another potentially substantial period of time. The risk was increased by the fact that the matter was brought at first instance to a criminal court, which would not have had the benefit of the background held by the family court justice, nor the time to consider the potential implications of the Society's request, supported by the parents.

This is a young child who has been the subject of an application seeking extended care without access. He has been in the Society's care his entire life. His right to an orderly and expeditious hearing of the pertinent issues should never have been compromised by the lack of follow through on legislatively prescribed requirements.

Statutory Obligation to Determine First Nations Status

Section 90(2) of the Child Youth and Family Services Act reads as follows:

"As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child's name and age;

(b) whether the child is a First Nations, Inuk or Métis child and, if so, the child's bands and First Nations, Inuit or Métis communities; and

(c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed."

The early determination of whether a child is First Nation and the appropriate native community is a particular priority for a number of reasons. First, it triggers an obligation by the Society to meet the child's cultural needs. Second, if there is an identifiable native community, that community is a party to the proceeding and service is required.

Child protection proceedings are conducted in the adversarial, not the inquisitorial style. The court thus must rely on the parties to provide the requisite evidence in order to determine the issues.

As noted in the Children's Aid Society of Algoma v. C.A. (2018) ONCJ 592, the obligation of Section 90(2) of the CYFSA is an obligation the law places on the court. It implicitly expects the parties before it to provide the "information" it needs to fulfill this function.

The Society as an institutional litigant, has a responsibility to ensure that its application is prosecuted in an efficient fashion, mindful of the legislative requirements and of the impact of delay on children. This requires making early and proactive inquiries about the identification issues. This didn't happen here. It was merely happenstance that the proceeding was not upended by the situation.

In my view, the Society's assertion that its worker was only "informed" of the father's status through service of his affidavit on November 1, 2018, does not assist it. Parents caught up in child protection proceedings are often stressed and vulnerable. It's not reasonable to assume that the parents will understand the need to self-identify at an early stage. Even where the parents have counsel, counsel's primary obligation is to his or her client. When a child is in Society care, the Society is that child's guardian. The Society, therefore, has an obligation to that child to ensure these inquiries are made early and proactively.

Court's Supervisory Role

These events have, however, also been a "wake-up call" to this court. Although the court is dependent on parties providing evidence, the court should be extremely mindful of its supervisory role to ensure that findings are, indeed, addressed "as soon as practicable".

In 2015, the Truth and Reconciliation Commission released a call to action under the heading Child Protection. It called upon the federal, provincial, territorial and Aboriginal governments to commit to reducing the number of Aboriginal children in care. To that end, it asks the governments inter alia to "Ensure that social workers and others who conduct child welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing."

It also implored governments to establish as an important priority a requirement that placements of Aboriginal children in temporary and permanent care be culturally appropriate.

Neither of these steps can be effected if the Society is not diligent in ensuring early identification of First Nation children and their bands or native communities.

It is now widely recognized that the "Sixties Scoop" perpetuated an injustice on Aboriginal communities, families and children. That was a significant driver to the amendments of the governing legislation that require early identification, participation of native communities in proceedings and priority for placements of First Nation, Inuk and Métis children that are congruent with the child's heritage.

As a society, we have to be vigilant that these protections have not be legislated for naught. It is the court's hope that all involved will consider what transpired in this case and immediately put into place measures to ensure that necessary training and protocols are reviewed and updated to ensure that these requirements are met in every case.

Determination of First Nations Status

In the instant case, ultimately after hearing evidence from the father, the court was provided the necessary evidence to determine that the child does not have a specific native community within the meaning of the legislation.

A motion for summary judgment was then heard on the disputed issues of protection finding and disposition.

Background of the Application

The Children's Aid Society of Toronto commenced this application at first instance as the child was initially located in its jurisdiction. The Society claimed the child was in need of protection pursuant to Section 74(b)(i) and (ii) of the Child Youth and Family Services Act. The matter was then transferred to this Society's jurisdiction.

This Society then amended the application but continued to seek the same protection findings and disposition of extended care of no access. The same relief that was advanced in each of the motions for summary judgment.

At the outset of this hearing, the Society withdrew its claim respecting a finding pursuant to Section 74(b)(ii). This was appropriate as the parents have no other children and have never had the child in their care, and accordingly, there would seem to be no evidential basis to sustain a finding that there was a pattern of neglect in caring for and protecting the child.

The Child's Medical Condition

The evidence amply demonstrated that M. is a medically fragile child. He has been diagnosed with a serious congenital heart condition known as ventricular septal defect as well as double outlet right ventricular transposition of the arteries, pulmonary stenosis and pulmonary atresia. He required the administration of oxygen at birth and he had heart surgery in June 2018. He will require further surgery in the future. He must attend Sick Children's Hospital in Toronto on a regular basis for cardiac follow-up and checks of his oxygen and saturation levels. He requires close monitoring of his weight and a referral was made to a dietician shortly after his birth. The foster parents attend to undertake spot-checks of his oxygen saturation levels in the home. He is also receiving numerous services, including physiotherapy from Lansdowne Children's Services to address his poor gross motor skills. Lansdowne is also following M.'s development more generally, which has been described as below the fifth percentile.

M. also has a cleft lip and palate. At one point the Society was alleging he also had Down Syndrome, although there seems to be no medical basis for that assertion.

In one of the Society's affidavits in this matter, it was asserted that Down Syndrome would "explain" various other medical conditions including the cleft palate; an assertion that seems remarkable even to a layperson.

In any event, that particular allegation of Down Syndrome was not relied upon in argument.

The Society entered into evidence a letter from nurse practitioner Catherine Chant-Gambacort, dated November 5, 2018. It reads as follows:

"This is a letter to support the need for close support and ability to access medical care. M. is an infant with a complex heart condition who has undergone a lengthy cardiac repair and will require further surgery in the future. He is currently stable from a cardiac perspective, but it should be emphasized that he would greatly benefit from a caregiver that would respond to his medical needs and understands when and how to access medical care when necessary."

There was additional evidence that demonstrates that when M. becomes ill he can become very ill very quickly and he requires timely medical attention.

Housing and Stability

The parents have a history of transience that substantially predates the child's birth. When the mother was pregnant she was residing with a cousin, E.G. A month before the child's birth the mother was removed from Ms. G.'s home by Ms. G. after an argument occurred between the two. Ms. G. made it clear to the society worker that the mother was not welcome back. The parents then mutually moved into the home of a family friend named "C". They did not enjoy a room of their own at C.'s home. A week after the child's birth, the mother admitted that she was not prepared to take the child home at that point as she did not have a suitable residence for him. The living arrangement with C. came to an end in June 2018. At that point the mother moved in with the maternal grandmother for a brief period of time. When that broke down she moved back to C.'s residence.

In August 2018, the parents moved into the home of friends named B.M. and S.D. The parents' evidence is that this is a suitable and appropriate home for the child. The other residents of the home, being S.D. and B.M., have also sworn affidavits attesting to the suitability of the home. The Society would not know, as its workers apparently have not attended the home to assess it.

What is clear, however, is at the time of the child's birth the child had high needs and the child did not have stable housing. This is a basic requirement for any child, but particularly so for a medically fragile child.

The evidence is overwhelming that this child was in need of protection pursuant to Section 74(2)(b)(i) at the time of his birth and for several months thereafter.

The outcome of trial on this ground of the protection finding is, I find, a foregone conclusion.

Standard of Evidence on Summary Judgment

This brings me to disposition and in particular the issue of whether the child should be placed in the extended care of the Society.

Before turning to my analysis of that issue, I will first discuss the standard of evidence required on a motion for summary judgment, particularly one seeking the most intrusive and significant relief available.

The issue of the admissibility of hearsay evidence often arises at motions for summary judgment. Here the Society evidence includes hearsay evidence. Rule 16(5) would seem to permit the introduction of hearsay evidence in motions for summary judgment. It provides as follows:

"16(5): Evidence not from personal knowledge

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."

There has been a substantial debate in the jurisprudence as to how to interpret this rule and how to deal with hearsay in these motions. Wherever a court falls on the spectrum of the admissibility of hearsay evidence, however, what is clear is that the quality of the evidence must be evaluated.

In Children's Aid Society of Toronto v. O.G., [2015] OJ No. 1124, the court commented as follows:

"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."

Many courts have adopted the principled approach to the admission of hearsay which, of course, is the same approach taken in trial. This was the approach adopted by Justice Mackinnon in Children's Aid Society of Ottawa v. J.B. and H.H., (2016) ONSC 2757. Justice Sherr also weighed in on the quality of the evidence required in motions for summary judgment in Children's Aid Society of Toronto v. B.(B.) 2012 ONCJ 646 saying:

"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."

He then went on to opine that:

"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."

I agree. The stakes are high in a motion for summary judgment seeking extended care, no access. It is critical that the court rely only on high quality evidence that definitively establishes the contentions of the moving party.

This principle also requires that the court be dubious of the introduction of evidence that purports to adduce a social worker's opinion presented as evidence of an underlying fact or protection concern.

Society's Alleged Protection Concerns

In this case, the Society argued that there were four underlying protection concerns that render the success of its claim on disposition the obvious outcome. These are as follows:

1. Lack of a suitable plan by the parents to care for a medically fragile child;
2. Pattern of transiency;
3. The parents' plan is highly contingent on other people; and
4. The parents lack of follow through with remedial services.

Parental Plan for Medical Care

Dealing first with the parents' plan for this child: The Society's concern seems to rest on two bases: first, the parents have not attended the child's medical appointments regularly. Two, the parents do not have their own car and thus would struggle with taking the child to medical care promptly should he require it, which he predictably will.

There are difficulties with the Society's evidence in this regard. It is true that the parents are dependent on family or friends or, indeed, the Society for rides to attend medical appointments. But the Society apparently stopped providing rides to the child's appointments in June of 2018. There was no definitive evidence about whether the parents did or did not attend the child's appointments thereafter. At one point in July 2018, the parents asked for an authorization by the Society to obtain information from Sick Children's Hospital where the child was receiving services. This seems somehow connected to their ability to attend appointments. In an out of court examination the family service worker was asked whether thereafter the parents had attended all medical appointments for the child. The answer was "I'm not sure."

In her affidavit of October 11, 2018, the family service worker asserted that, "On a few occasions when the Society was unable to organize transportation to and from medical appointments, Ms. G. and Mr. D. did not arrange to transport themselves to medical appointments and did not attend these appointments."

Presumably, this applies to the time prior to June 2018 when the Society stopped providing transportation. There was, however, a remarkable lack of particularization to this accusation. Where was the appointment or appointments that the parents did not attend? How much notice were they given of the Society not being able to help? What was the nature of the appointment? Was it routine or important? How many appointments were missed or attended? The family service worker then goes on to assert: "The Society is not confident in the parents' ability to take the child to all of his medical appointments and/or to an emergency room when needed."

The problem is that there is an insufficient level of detail for the court to come to the same conclusion.

Addressing the parents lack of transportation in examination out of court the family service worker was asked: "So they need their own car?" She answered "Yes." This would seem to be a classic instance of the application of middle class standards to impoverished individuals.

The requirement is not that the parents must own their own car to be able to care for this child. They should be able to problem solve to make sure that they can ensure all of the child's care, including attending to his routine and urgent medical needs.

The mother has deposed that she has the assistance of a roommate, B.M. and her cousin E.G. and Ms. G.'s mother J. who are all prepared to provide transportation. The Society's response is to dismiss this plan out of hand as each of these individuals are employed and presumably would have some limitations to their availability. In fact, the family service worker says, "None of them have assisted the parents with transportation in the past for attending M.'s medical appointments as far as the Society is aware."

It is difficult to know what to make of this statement. That's because of the worker's admission that she doesn't know what appointments have been missed or attended since the Society has stopped giving rides. That would be vital information.

The Society has a duty to work with parents to try to address the protection concerns. The Society doesn't seem to have tried to work with the parents to see if a plan can be put into place for reliable transportation. Rather, the Society seems to have simply insisted the parents go out and buy their own car, which would not seem to be tenable.

Although it was not explicitly argued, the Society also seems to rely on its perception that the parents don't really understand the child's medical condition and needs. For example, paragraph 26 of the family service worker's affidavit sworn October 11, 2018, the worker refers to a medical appointment she says occurred on May 31, 2017. This would have been seven months before the child was born and so presumably the worker is referring to May 31, 2018. The worker says the parents "appear (sic) very overwhelmed when presented with the information" in relation to the procedures of heart surgery. She said the father was anxious and chewing his finger and that the parents sat and passively listened to the doctor.

First, it is completely understandable that parents would be anxious and feel overwhelmed when their baby is facing a heart surgery.

Second, there is no indication that anyone in attendance tried to engage the parents to make sure that they were understanding the information conveyed and to give them an opportunity to ask questions.

Pattern of Transience

The next identified concern is a pattern of transience. The parents have lived in the same house since August 2018. Their evidence, unrefuted by the Society, is that it is stable and suitable. The Society seems to have written off the parents' housing because the parents' names are not on the lease. This seems like an arbitrary factor. An assessment of the accommodation to determine if it is, in fact, stable and suitable is required.

Contingency on Other People

Next is the concern that the parents' plan is highly contingent on other people. The Society routinely accepts plans that rely on community and family supports. The mere fact that the parents need help doesn't render them incapable of caring for the child if they have that help. Again, the Society does not seem to have undertaken a careful assessment of the parents' plan, including the viability of their supports.

Lack of Follow Through with Services

Finally, there is the parents alleged lack of follow through with services. It is always helpful in this regard to turn to the plan of care filed in the proceeding. The first plan of care was signed February 26, 2018, two and a half months after the proceeding was commenced, rather than the 30 days required by the Rules.

The parents at that point were unrepresented. The plan was simply mailed to the parents on March 2, 2018. Paragraph 12 of the requisite plan of care form reads as follows: "This plan of care was served on and its details explained to the respondents and others named below." Both the parents were named underneath that provision and the family service worker's name appeared as the person who "explained the plan". Under date of explanation the document reads, "TBD", presumably meaning to be determined. Society counsel was unable to point to any evidence that confirmed the plan was, in fact, explained.

An amended plan of care was signed October 1, 2018. The affidavit of service of the plan alleges the amended plan signed October 1, 2018, as well as the amended protection application and supporting materials were served on parents' counsel, Patrick Fallon, on August 10, 2018, almost two months before it was signed.

Although the same family service worker signed the amended plan, paragraph 12 of that plan did not identify anyone who explained the plan and left entirely blank the date of explanation column.

Both plans of care identified the following as required services:

1. The parents to work in a cooperative manner with the Society and take direction from the family service worker and meet as scheduled;

2. Parents to meet with the society worker to attend at the home for scheduled and unscheduled visits;

3. Parents to sign release of information allowing the Society to communicate with service providers;

4. Parents to attend services deemed necessary by the society worker, including a parenting program through the Pregnancy Resource Centre in Brantford.

The plan says they were to refer themselves to that service. There are various other requirements set out in the plan of care, including attendance at drug testing, not using alcohol or non-prescription drugs prior to access; obtaining suitable accommodation; advising any change in address or telephone and "to ensure their mental health needs are met."

In the Society factum, the only deficiency in service attendance identified as a lack of attendance in the parenting program. No other deficiency seems to be noted or argued or indeed apparent from the evidence. There was no evidence identified the worker either explained the plan or helped the parents get to the pregnancy centre for the requisite programming.

It is difficult to draw an adverse inference from the parents' failure to attend a single program when they don't seem to have received any clear and personal help or direction in that regard.

Society's Obligation to Provide Services

In the Children's Aid Society of Hamilton v. E.O., a decision of the Ontario Superior Court, Justice Gordon reviewed the jurisprudence about the Society's obligation to provide services to families. He began by considering Section 15 of the then governing legislation, the Child and Family Services Act, now Section 34 of the CYFSA, which sets out the duties of a Children's Aid Society. This includes the obligation to: "provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children."

Justice Gordon began by citing Catholic Children's Aid Society v. M.L., [1989] O.J. No. 659 (Ont.U.F.C.), Wallace, J. spoke of service requirement as follows:

"The Court recognizes that the Society's requirement to provide services is not an ongoing obligation to hold the hand of its clients and the Court recognizes that the Society often operates under budgetary and staffing constraints, but when such an obvious and specific problem exists with a particular client, the Society must provide an individually – appropriate service in order to satisfy its mandate."

Justice Gordon then reviewed Catholic Children's Aid Society of Hamilton-Wentworth v. L.G., [2002] O.J. No. 2577, another decision of the Superior Court of Justice in which Stayshyn, J. expanded on this obligation saying:

"I am aware that the Society has a statutorily mandated obligation to provide services to families for both the protection of children and the prevention of circumstances requiring the protection of children. Services also need to be implemented to maintain the integrity of the family unit.

"I further note that the duty to provide services is an integral part of determining whether or not the risk to a child can be adequately addressed if that child were to remain with or be returned to his parents. Without having made efforts to provide such services, and availing parents of every reasonable opportunity to take advantage of those services, their ability to benefit from them cannot be assessed.

"In this regard, case law is replete with dicta supporting the proposition that the Society's obligation to provide services has a broader component than merely pointing out to a parent that a particular service exists.

"Moreover, it may be that the essence of a Society's duty to provide services is to create a unique agenda that is sensitive and responsive to an individual parent's needs. If necessary, this entails setting aside a worker's own agenda, reaching beneath a parent's refusal to accept services and 'walking with' them 'through the assistance'."

There is a dearth of evidence on this motion to establish that the Society has provided individual appropriate services. The court is, thus, without the "integral part" to permit it to determine whether the risk to the child can be adequately addressed if the child were to be returned to the care of his parents.

Attendance at Access

Finally, there is the Society's allegation that the parents haven't attended access regularly. The evidence cited in this regard was out of the family service worker. Unfortunately, the majority of the evidence was unsourced hearsay that simply asserted the parents didn't attend various visits. The Society also don't seem to have addressed the mother's rejoinder that she missed some of the visits due to feeling unwell and that she had, in fact, been instructed not to attend for visits if she was unwell.

Conclusion

I am not satisfied that the Society has met its onus and identified on solid and admissible evidence that it is in the interests of justice that the case be decided summarily. There are too many uncertainties in the current evidence to proceed even to focused hearing. The balance of the motion for summary judgment is dismissed.