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.

(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.

(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: June 26, 2019

Court File No.: Sault Ste. Marie File No. 60/17

Between:

Children's Aid Society of Algoma, Applicant

— AND —

H.M.

P.W.

Respondents

Before: Justice John Kukurin

Heard on: June 21, 2019

Reasons for Judgment released on: June 26, 2019

Counsel

Jennifer Mealey — counsel for the applicant society

Lindsay Marshall — counsel for the respondent mother, H.M.

Shadrach McCooeye — counsel for the respondent father, P.W.

Jasmine Gassi Harnden — Office of the Children's Lawyer for the children, E. and F.

KUKURIN J.:

Introduction

[1] This is a decision on a number of motions, outlined in more detail below, that are brought in an amended child protection application with respect to two children, ages 7 and 6. The only motion of importance in these Reasons, however, is how the court treats claims by litigants to excise (strike) affidavit material filed in support of a summary judgment motion when that material is claimed, in the aftermath of the Kawartha decision, to be material that would not be admissible at trial.

Background

[2] The claim in the main child protection application is for a finding that the children are in need of protection under grounds set out in s.37(2)(b)(i), (g) and (h) of the Child and Family Services Act (the CFSA). This has since been replaced by the Child, Youth and Family Services Act (the CYFSA) which governs this proceeding.[1] The applicant society seeks a disposition after a finding is made placing the children with their mother subject to a twelve month supervision order with conditions. It also seeks an order that the father have access that is supervised and subject to nine conditions. It is fair to say that the society has fewer concerns with the mother's parental care, and that its main protection focus is on the father.

[3] The society commenced its application in April 2017. In that application, it sought placement with both parents subject to a supervision order with conditions. At that time, it also sought and obtained an interim "without prejudice" order for temporary care and custody to both parents subject to supervision and conditions. However by August 2017, it obtained an amended temporary care and custody placement with the mother only (as the parents had separated), with access to the father subject to conditions. It soon thereafter changed its claim by filing, in November 2017, six months after commencement, an amended child protection application.

[4] What followed in the 1½ years after this amended application was a succession of motions by the society seeking several amendments to the temporary paternal access, for legal representation of the children, for non-party (ie police) records, for a parenting capacity assessment of the father and, in November 2018 for summary judgment. Most were heard and granted by the court. Some were not heard until now.

[5] The society's summary judgment motion sought, under the CYFSA, which was by then in force, an order under s.102(1) for deemed custody to the mother, and restricted access to the father. The access restrictions included the supervision of his access at the discretion of the mother, the frequency, duration and time of his access, and whether it include overnights, to be subject to the wishes of his two daughters, ages 7 and 6. The motion completely omitted any request for a finding that the children were in need of protection, and abandoned any claim for a protection order.

[6] In the meantime, the [Kawartha decision][2] was released by the Ontario Court of Appeal. It has provided appellate guidance, in particular, in summary judgment litigation under the CYFSA. This case has already been cited in several reported decision in trial courts, and very clearly has implications in the summary judgment motion in this case. In fact, the father's most recent motion seeks to have the court excise from the continuing record whatever evidence other parties seek to rely on that would not be admissible at trial. This is clearly based on language taken from Kawartha.

[7] And so, the court is now presented with some motions to determine and decide.

The Motions Before the Court

[8] The active motions before this court are:

• Motion at Tab 4, Vol. 2 — the society's aforementioned motion for summary judgment for a s.102(1) deemed custody and deemed access order.

• Motion at Tab 12, Vol 3 — by the society for a parenting capacity assessment (PCA) of the father under s.98 CYFSA

• Motion at Tab 19, Vol. 3 — the aforementioned motion by the father seeking that the court excise from the material relied upon in the society's summary judgment motion anything that would not be admissible at trial (i.e. motion to strike).

• Motion at Tab 23, Vol. 3 — a replacement motion by the society for summary judgment, this one including a finding that the children are in need of protection.

• Motion (made orally) — by the society as a preliminary matter on the day of hearing to amend its summary judgment motion at Tab 4, Vol. 2 to coincide with the claims it makes in its motion at Tab 23, Vol.3.

[9] The simplest motion was the one seeking a PCA of the father. The society withdrew this motion explaining that the proposed assessor had since committed to two other assessments for this same society, and did not have the time to do one in this case. It is unclear if the society will renew this motion with another assessor. The father indicated that he wished to claim costs on the society's withdrawal of this motion.

[10] The motions for summary judgment (at Tab 4, Vol 2 and Tab 23, Vol 3) are not identical. The society seems to have awoken to the glaring omission that its earlier motion had no claim for a finding. A finding that a child is in need of protection is a pre-requisite for the disposition order sought in this case, namely for deemed maternal custody and deemed paternal access. The problem with the replacement motion is that it was served very late and filed very late. The society acknowledged its tardiness but argued that no one was prejudiced as it was crystal clear from the evidence filed in support of its first (and defective) summary judgment motion that the society was also seeking a finding that the children were in need of protection. While it is true that it had disclosed this intention, the society appears to seek a finding in its new summary judgment motion under grounds in paragraphs (b)(i), (g) and (h) of s.74(2) CYFSA which are not the same as the original grounds on which they sought a finding under the CYFSA. So from the standpoint of the court, and I imagine of the respondents as well, there is still some confusion as to what they are here to argue for or against.

[11] This late filing of the society's new motion for summary judgment was further aggravated by late service and filing of the mother's affidavit, ostensibly in response to the father's motion to strike. It was sworn the day before the date set for hearing of the summary judgment motion and for hearing the father's motion to strike. The mother and the society wanted it before the court; the father objected claiming he had no opportunity to review it with his counsel or to reply to it.

[12] There is a third complication. The father had a motion (at Tab 4, Vol. 3) seeking to vary his interim access. This motion was argued before another judge on June 11, 2019 who reserved her decision. The father argued that he needed that decision before he could argue whatever summary judgment motion claims the society was making. The society argued that this was an attempt to delay as interim access variation had little, if anything, to do with its summary judgment claims which were for final orders.

[13] Ultimately, the summary judgment motion claims were not heard as time was wasted in sorting out these eleventh hour filings, the objections to them, the oral motion of the society, and what evidence the parties wanted before the court on the argument on the summary judgment motion.

[14] One thing was more or less agreed upon, namely, that before the summary judgment motion could be argued, the motion of the father to strike evidence filed in support of that motion had first to be argued and decided. These Reasons relate mainly to the father's motion to strike. The summary judgment motion(s) necessarily were adjourned to set a new date for argument. This conveniently avoided the late filing complaints as there will now be plenty of time to review them.

Motion to Strike (Excise)

[15] The first question put to the father's counsel was the court's authority to strike evidence filed in the court record. The authority to do so relied upon by the father was Rule 1 (8.1) and Rule 1 (8)(c) of the Family Law Rules.

[16] Rule 1 (8.1) seeks to have parties, and even non-parties comply with the Rules. It permits the court to impose consequences for non-compliance.

Rule 1(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g). O. Reg. 322/13, s. 1.

[17] Rule 1 (8) specifies the sanctions or measures that a court can impose on the non-compliant litigant. In the context of the present motion, the particular sanction sought by the father is in clause (c):

Rule 1 (8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

[18] Although not referred to in the argument before me, I note that there is also another subrule that permits the court to strike all or part of a document for a variety of other reasons, one of which is that the document may "make it difficult to have a fair trial".

Rule 1(8.2) The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process. O. Reg. 322/13, s. 1

[19] These are all discretionary rules. The purpose of the Rules is set out comprehensively in Rule 2. Their primary objective is to enable the court to deal with cases justly. Dealing with a case justly includes a number of considerations, the first of which is to ensure that the procedure is fair to all parties. Moreover, the Rules deputize the litigants and their lawyers to assist the court in promoting the primary objective.

Rule 2 (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

Rule 2 (3) Dealing with a case justly includes,

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

(b) saving expense and time;

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

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

Rule 2 (4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

[20] Clearly, the court can strike out, or excise from the evidence, affidavit material. The question is "should it do so?" To answer this question, the court has to scrutinize the particular objectionable passages in the affidavit(s) to see whether and how they may offend the Rules and/or fail to advance the primary objective of dealing with the case justly.

[21] As a starting point, it is the party seeking to strike that bears the onus to satisfy the court. In this case, that party is the father. I am not aware that there is any order made in this or any related proceeding that the other parties have not complied with. Nor did I hear any submission that these other parties have failed to comply with any particular Rule (apart from too short notice of its most recently served materials). As for demonstrating that the pre-requisites in Rule 1(8) and Rule 1(8.1) are concerned, the father has failed to satisfy the court.

[22] However, the affidavits filed by the society and by the mother may make it difficult to have a fair trial, or may delay having a fair trial. Also, they may not comply with the directive to help the court deal with this case justly by ensuring that the procedure is fair to all parties.

[23] At the outset, I have to voice a judicial complaint that is an echo of many similar ones of my brother and sister judges.[3] That complaint is with respect to the quality and quantity of the evidence that almost universally accompanies a summary judgment motion in a child protection case. In the present case, for example, the continuing record consists of three volumes, the first being two inches thick and the second and third being 1½ inches thick. By far, the bulk of these volumes consist of filings by the society. This is unsurprising as this case is very clearly in "backlog", with all of the temporal directives provided for in the CYFSA and the Rules totally missed. The thickness of continuing record volumes is accentuated by type font that is 11 at best, perhaps even 10, and is single spaced. In short, lots of reading. Exhibits to affidavits can be even more visually obscure, often handwritten and illegibly scrawled.

[24] Why this judicial carping? It is because the society, in its summary judgment notice of motion, has to indicate what material it is relying upon for its motion claims. In this instance, the society indicated it was relying on "all materials filed in the Continuing Record to date". This was exacerbated by additional affidavit materials which were properly identified in the replacement motion produced by the society on the eve of the hearing, too late for any judge who had read and reviewed the entire record before that date. The affidavit accompanying the summary judgment motion had 150 pages of exhibits attached, many of marginal relevance to the case, and appended holus bolus just as they arrived from a non-party records custodian. If the practice of simply placing huge quantities of material before a judge hearing a summary judgment motion continues, judges may start insisting on formal motion records and motion factums from litigants where the issues are tied to specific factual events, with the description of the location of the factual event identified by volume, tab, page and paragraph number.

[25] In the present case, my criticism is directed more at the father as he is the motion applicant in his motion to strike. I would have expected that the father would identify by location in the society's (or the mother's) evidence, those passages he wished the court to strike. In fact, I imagined that this would be contained, if not in the notice of motion itself, then in the affidavit which has to accompany the notice of motion. These were not identified. In fact, the father wanted the court, in its gatekeeping role, to read the voluminous society (and lesser maternal) material, select those paragraphs that it found would not be admissible at trial (a la Kawartha) and declare them to be excised from the evidence on the summary judgment motion.

[26] In addition, the father through his counsel in argument (although not claimed in his motion), asked that the court perform a similar vetting process for all business, medical, and hospital records that the society had inserted in its evidence on the summary judgment motion, without his needing to specify what particular record he was referring to, or the reason why it should be struck.

[27] Why the identification of the specific material sought to be struck was not forthcoming from the father's counsel was explained thus:

(a) Kawartha placed the onus on the summary judgment judge to review the file for non-trial worthy material, and eliminate it. [at paragraph 80]

"3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial."

(b) The Kawartha decision did not place on the litigant seeking to strike, any obligation to specify the material sought to be struck. The reality, according to the father's lawyer, is that this would entail a monumental task that was not covered by any remuneration that the father in this case could reasonably be expected to afford to pay. Nor could the father's lawyer afford the time to go through the entire evidence to perform this exercise.

[28] The basis for the father's request to strike was exemplified by passages from two affidavits of society workers, both sworn in 2017 – some two years ago. The father correctly identified where the alleged offending material was and referred to paragraph numbers. While he did not state why each passage was offensive and thereby should be struck, he did generally advert to non-compliance with Rule 14(19) which sets out when hearsay evidence is admissible on motions

Rule 14 (19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed. O. Reg. 114/99, r. 14 (19).

[29] The first of these passages were reports by a teacher, a speech language pathologist and a school principal identified by name. No explanation was given why the original sources of this information did not swear their own affidavits. The affiant neglected to say she believed that the information they conveyed was true. Other evidence dealt with the identification of the children. Other evidence was under the heading "Assessment" and included opinions of the society summarized by its society worker affiant, clearly not an expert. The second affidavit was similar.

[30] With respect to documentary evidence, the society has filed mainly as attachments to affidavits of its workers, copies of hospital records, medical records, unsworn letters from individuals, even an ECG printout of the father's cardiac sinus rhythms. Many of these were served long ago. For purposes of the summary judgment motion, the society served its statutorily required notices of its intention to introduce these records as part of its evidence only June 7, 2019, fourteen days before the scheduled hearing. This appears to be sufficient notice under the Evidence Act (Ont).

[31] The society also provided notice of its intention to produce records that fall within the purview of s.93 of the CYFSA.

S.93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[32] The contents of these documents are admittedly hearsay. They are produced either as business records (under s.35 Evidence Act) or as medical records (under s.52 Evidence Act) or as evidence of past conduct of the father towards a child under s.93 CYFSA. However, they also contain opinions from individuals who have not been qualified as experts to give opinions. They contain information that the person who made the record could only have been obtained from another source, often unidentified by name (tantamount to second hand hearsay). In other cases, the record is clearly not made contemporaneously with the occurrence recorded. There was no evidence that the recorder was under any duty to record. The society's introduction of any such records as "business records" does not have the pre-requisites mentioned in [Ares v Venner][4], the seminal case authority for introduction of these as business records. Moreover, the bulk of the hospital records do not relate to the conduct of the father to a child or children at all. They are more concerned with his mental health at a particular point in time.

[33] The father has a point in his objection to the society's documentary evidence. Rule 14(18) clearly expresses a preference of evidence to be first hand.

Rule 14 (18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. O. Reg. 114/99, r. 14 (18).

Litigants, especially children's aid societies in child protection cases, often forget or overlook this preference, and move quickly to adduce hearsay evidence.

[34] While hearsay is clearly contemplated as being admissible in a summary judgment motion, such hearsay must comply with the pre-requisites in Rule 14(19) and even then, Rule 16(15) invites what I would consider pejorative judicial treatment of such evidence. In short, hearsay evidence is not the best evidence in many cases, but the best evidence is preferred.

Rule 16 (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. O. Reg. 114/99, r. 16 (5).

[35] In summary, both sides deserve some criticism on this motion. The society could have given its notices much earlier. It could have vetted its documents and culled those that have no or marginal evidentiary value. It could have ensured that evidence that was critical to its motion claims was from affiants who were first hand witnesses, or at least explained why such persons could not file these. It could have made sure that its affiants swore that they believed that the hearsay evidence they presented was true. It could have vetted the information contained in records or affidavits it presented to the court to ensure they did not contain opinions from non experts. It could have done something to show that the records were contemporaneous with the events recorded, that the person making the record had a duty to record, and that the record was accurate.

[36] While the father potentially may have some valid criticisms of the society's evidence, except for the brief references in his two examples, he has failed to specify what parts of the society's evidence he wishes the court to strike. His specific references I equate to the tip of the tip of an iceberg. These were relatively innocuous in the context of the summary judgment motion, and even excising them would leave an enormous amount of material that the father would still have to address. For the father to expect the court to review all of the evidence and select and weed out what is or is not trial worthy evidence is a fruitless expectation. For one thing, the court needs to know from the objector what the objection is, and why it warrants excision. From the other side, the court needs to know its response to the objection and why excision is not warranted. The court works with parties and their lawyers to arrive at a resolution. It provides decisions on both procedural and substantive issues. But it is not going to do this on its own.

[37] When the Ontario Court of Appeal stated that

"The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial",

My interpretation of this was that if the evidence was not going to be admissible at a trial, it had no business being before a court on a summary judgment motion. That said, it should be obvious that evidence such as hearsay is clearly admissible on a summary judgment motion, but would be stopped dead in its tracks at the entrance to a trial courtroom. How the court reconciles this is by the weight it gives to hearsay evidence on a summary judgment motion. Some evidence, even hearsay, may be accepted at face value. Some may be discounted. Some may be outright rejected. Each piece of evidence has to be judicially weighed and this happens at the actual hearing of the case, whether the hearing is by summary judgment motion or at a formal trial (or even a mini trial or a focused hearing).

[38] In summary, the father mostly fails in his motion to strike. The examples he specified, I am prepared to concede mostly do not pass the test for hearsay evidence on motions. If he wishes these excised, they will be, but the society will have an opportunity to rehabilitate the evidence in the portions struck if it wishes to do so. This is clearly not what he wants the court to do on this motion. To the extent that his motion relates to striking other evidence of the society, including any records tendered (which he did not even address in his motion to strike), the father's motion is dismissed.

Disposition

[39] The motions for summary judgment at Tab 4, Vol. 2 and Tab 23, Vol 3 are adjourned to the trial co-ordinator on July 8, 2019 at 1:00 pm to set a new date for hearing arguments on either one or both of these motions. I do not rule on the society's oral motion to amend its Tab4, Vol. 2 motion. It can decide what exactly it wants to argue after some reflection.

[40] The motion for a PCA of the father is withdrawn.

[41] The father's motion for variation of his interim access is awaiting a judicial decision. I do not know when it will be available. It has little to do with the summary judgment motion(s) of the society. I disagree that the father needs to know the outcome of that access motion before he can argue the summary judgment motion.

[42] I do not know what costs claims anyone wishes to make and for what motion(s). If anyone wants to proceed with a claim for costs of any step taken before me, they should so indicate by filing a notice of motion for such costs with the appropriate supporting evidence and written submissions.

[43] I expect that motions to strike may become more popular following the release of the Kawartha decision. I do not foresee societies readily or willingly reducing the number of their summary judgment motions simply because of Kawartha. At best, they will be more cautious with their evidence. I hope that this decision assists the parties by indicating judicial expectations when faced with motions to strike evidence in child protection cases.

Released: June 26, 2019

Signed: "Justice John Kukurin"

Footnotes

[1] The analogous grounds under the CYFSA are under s.74(2):

(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, supervise or protect the child,

(h) - there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(j) - the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent or the person having charge of the child does not provide treatment or access to treatment, or where the child is incapable of consenting to treatment under the Health Care Consent Act, 1996, refuses or is unavailable or unable to consent to the treatment to remedy or alleviate the condition

[2] Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316

[3] For example, see Children's Aid Society of Toronto v. M.F., [2001] O.J. No. 6076, (Katarynych Ont C.J.) at paragraphs 16 to 18.

[4] Ares v. Venner, concludes at the penultimate paragraph of the decision "Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so."