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

Date: June 7, 2019

Court File No.: C151/15

Ontario Court of Justice

Parties

Between:

Brant Family and Children's Services (o/a The Children's Aid Society of Brant)

Applicant

– And –

A.H.

Respondent

– And –

C.T.

Respondent

Counsel and Hearing

Before: Justice K.A. Baker

Heard on: June 3, 2019

Reasons for Judgment released on: June 7, 2019

Counsel:

• E. Capitano — Counsel for Brant Family and Children's Services
• E. VanLooyen — Counsel for Respondent A.H.

Judgment

BAKER, J.:

Introduction

[1] This case is about three children. They are Ju. T, who is 4 years old, Je. T. who is a year and a half and Ja. T, who is soon to be a year. All three children are currently in foster care.

[2] A.H. is the mother of the children. C.T. is the father of the children. Mr. T. is not participating in this litigation and has been noted in default. Ms. H. is most definitely participating in this action. She wishes to have all three children returned to her care, or in the alternative, to have access to them.

[3] The two older children were removed from the mutual care of the parents in November 2017. The youngest, Ja. was taken into the Society's care immediately after his birth in June 2018.

The Motion for Summary Judgment

[4] More recently, the Society commenced a motion for summary judgment seeking protection findings and an order of disposition for all three children. Shortly before the hearing was to commence, the participating parties were able to reach an agreement about some background facts and agreed to findings of protection. A final order was made accordingly. The only remaining issue then is disposition.

[5] The Society says all three children should be removed permanently from the mother and placed in extended care. The motion for summary judgment further sought an order for no access by either parent. The Society's plan is to place all three children for adoption in a single family as a sibling group.

[6] In argument, the Society conceded that there is a genuine issue requiring trial regarding access as between the children and their mother. The Society also actively supports an order for sibling access in the event that any future plan for the children should include separation of the sibs.

The Significance of Child Protection Decisions

[7] The decisions made in child protection courts have life changing consequences for parents, families and children. The court is conferred with the awesome power to permanently separate parents and children. Children are set on courses that potentially lead them to estrangement from their biological family. Parents are left forever grieving the loss of their offspring.

[8] The significance of these decisions and their impact on people has been commented upon and recognized by courts repeatedly.

[9] In New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, Chief Justice Lamer, as he then was, held:

I have little doubt that state removal of a child from parental custody pursuant to the state's parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent. The parental interest in raising and caring for a child is, as La Forest J. held in B. (R.), supra, at para. 83, "an individual interest of fundamental importance in our society". Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as "unfit" when relieved of custody. As an individual's status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state's conduct. [paras. 60-61]

[10] The relief now described as "extended care" was formerly known as Crown Wardship. In Children's Aid Society of Hamilton v. M (M.A.), (2003) O.J. No 1274, the court commented, "A Crown Wardship order is probably the most profound order that a court can make. To take someone's children from them is a power that a judge must only exercise with the highest degree of caution, only on the basis of compelling evidence and only after a careful examination of possible alternative remedies".

That is a sentiment oft repeated in the jurisprudence.

Summary Judgment in Child Protection Proceedings

[11] It is difficult enough to weigh these decisions in the context of a trial, where the court has the benefit of hearing directly from witnesses. Witnesses are tested in the crucible of cross examination and as a result, the court is able to fulsomely assess credibility. What is necessary in order for the process to essentially be "short circuited" through determination without benefit of oral testimony? What constitutes "compelling evidence" in a summary judgment motion? What does it mean to take a "cautious approach" to these motions?

[12] The Ontario Court of Appeal has provided some guidance on these points in the recent decision of Kawartha-Haliburton Children's Aid Society v. M.W., (2019) ONCA 2029. First, it quoted with approval from lower court decisions that stated that "no genuine issue for trial" equates to a situation where it is "plain and obvious that the action cannot succeed" or where there is "no realistic possibility of an outcome other than that sought by the applicant", or where the outcome of trial is a "foregone conclusion".

[13] Benotto, J. then went on to discuss the requirement that the process of adjudication must be fair and just, and said, "As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings."

[14] The court then went on to discuss the standard of evidence required for a fair and just adjudication in summary judgment. Justice Stanley Sherr of the Ontario Court of Justice has been an outspoken proponent of what might be termed the "trial worthy evidence rule". That is, a requirement that evidence at summary judgment be of sufficient quality such that it would be admissible at trial. This standard was adopted by the Ontario Court of Appeal who quoted with approval from Justice Sherr's decision in Children's Aid Society of Toronto v. B.B., 2012 ONCJ 646, saying in part, "The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be based on flawed evidence. The summary judgment 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 determination."

[15] At paragraph 80 the Ontario Court of Appeal then set out the proper approach to summary judgment in child protection proceedings. On the subject of evidence, it said, "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."

[16] With this admonition in mind, I turn to the evidence in the instant case.

The Society's Evidence

Drug Use Allegations

[17] The Society has identified two main current child protection issues in this case. These are, first, drug use, in particular high levels of THC consumption and use of methadone, which is not prescribed to the mother. The second concern can be properly characterized as parenting inadequacy. This is said to manifest in two ways. First, through a failure to attend medical appointments for the children. Second, by the mother having difficulty in managing and attending to all three children over access periods and in parenting groups.

[18] The Society also says the mother has become somewhat disengaged with its workers of late, and this would prevent a supervision order from mitigating the remaining risk.

[19] Beginning with the concern about drug use, the evidence in this regard is set out in the affidavit of Family Service Worker, Katrina Pearson sworn April 8, 2019, at paragraphs 6-8 and at the related Exhibit 'A' of that affidavit. Paragraph 6 of the affidavit states as follows: "On December 4, 2019, Ms. H. submitted to a nail test for drugs and alcohol as arranged through the Society. On January 3, 2019, the Society received the results which showed positive for Methadone and THC metabolite. Attached as Exhibit 'A' to this my affidavit is a copy of the test result dated 2018-12-28".

[20] The test report is duly attached and indeed shows the positive results as noted by Ms. Pearson. The report does not describe the testing protocol, set out any basis for the results, or explain the numbers set out therein in relation to quantities of drugs found in the system.

[21] To address those issues, the Society relies on paragraph 8 of Ms. Pearson's affidavit. It reads as follows:

"On February 13, 2019 I spoke with Harvey Tenenbaum PHD from Viaguard Accu-Metrics, the company that completed the drug test. Mr. Tenenbaum provided me with an interpretation of the results outlined in Exhibit 'A'. Mr. Tenenbaum advised that the THC results suggested, "habitual use", "virtually daily". Mr. Tenenbaum further advised that the levels of methadone showed indicates regular use, (sic) that would not be daily but used on an "ongoing substantive basis" suggesting consumption multiple times per week..."

[22] Ms. Pearson apparently requested a letter of this interpretation including information regarding Mr. Tenenbaum's qualifications, but this was apparently never received.

[23] The Society is asking the court to rely on what amounts to expert opinion about the meaning of the drug test result, including the presence of drugs in the mother's system and the frequency with which mother would have had to consume those drugs in order to achieve those results. The evidence is offered by way of hearsay, with all the inherent dangers thereof. It is offered without any basis by which to qualify Mr. Tenenbaum as an expert in drug test interpretation. There is no indication whether the laboratory was forensically approved or whether it applied forensic standards.

[24] Such evidence offends the hearsay rule. There is no basis, and indeed no explicit request to admit the evidence on the basis of a principled exemption. There is no threshold reliability to the evidence.

[25] The casual admission of unreliable evidence of drug testing has gotten us as a society in trouble before, and not very long ago. Between 2005 and 2015 the Motherisk laboratory at the hospital for Sick Children in Toronto tested more than 24,000 hair samples for drugs and alcohol from over 16,000 different individuals. The Honourable Susan Lang's independent review in 2015 found that this testing was "inadequate and unreliable for use in child protection and criminal proceedings" and that the use of this evidence had, "serious implications for the fairness of those proceedings".

[26] In the report of the Motherisk Commission, Commissioner Judith Beaman noted that, the discovery that unreliable test results had been used as expert evidence in child protection proceedings for so many years had undermined the public confidence in the fairness of our justice system, particularly how it treats vulnerable people.

[27] Children were permanently separated from parents based on faulty evidence. Tremendous harm was done to children and families. All based on faulty and inadequate science. The only good coming out of this revelation was that it taught us what questions to ask when a court is presented with what purports to be "science".

Question one: What is the exact nature of the proposed expert's expertise? Is he or she actually qualified to render an impartial opinion to the court?

Here the answer is obvious: We have no idea.

Question two: Is this a forensically accredited laboratory that applies forensic standards and that accordingly produces reliable results?

Here the answer is obvious: We have no idea.

[28] Today's evidence of nail test results must not be permitted to become the equivalent of yesterday's hair testing debacle.

[29] This evidence is inadmissible and there is accordingly no evidential foundation to the Society's allegation of drug abuse by the mother.

Parenting Capacity — Access Notes

[30] Turning now to the Society's allegations about a lack of parenting capacity. The Society invited the court to review the approximately fifty pages of access notes appended to mother's affidavit in support of the Society's allegation. These notes cover visits over the three month timeframe from September until December 2018.

[31] There are a number of problems with this approach. While the records may constitute "business records" and thus may be admissible in that fashion, they are far from the best evidence of access. Access notes summarize a two-hour visit in 8 or 10 or 14 lines. They are largely an account of various transactions between parent-child and any other visit participant.

[32] In this case, the society asserts that the records demonstrate that mother has difficulty in dividing her time amongst her children, engages in passive parenting, and basically, "off loads" much of the care of two of the children to the maternal grandmother, who also attends visits. The Society also complained that the oldest child Ja. was permitted to play on an electronic tablet during visits.

[33] These themes were certainly not immediately evident from the court's review of the access notes. In fact, the assertion of these problems was difficult to reconcile with the repeated positive comments in the visit notes. The notes variously indicated:

• "mom did a lot of running around";
• Ja. playing on the tablet during a visit "made sense";
• "good visit-visit went well";
• "good job" mother, "doing things needed by children";
• "A. (mother) is doing more for the children";
• "A. quite focused on all the children during the visit. Overall the visit was good";
• "very good visit";
• "visit went very well today";
• "good visit";
• "overall good visit today".

[34] If the Society wishes the court to draw an inference that mother is highly dependent on her mother to manage the children during a visit or that mother is a passive parent, much better evidence is going to be required. Logically, the way to do this is to have each witness depose an affidavit about the themes of their observations about access with specific examples of each. It is not reasonable to ask the court to read three months of access notes and try to divine, from these highly summarized notes, whether the mother consistently demonstrated good parenting during access and whether she is capable of parenting the children.

[35] I appreciate that it may not be easy for the Society to obtain such evidence, particularly given the relevant witnesses have apparently all been let go from their employment for fiscal reasons. But this court cannot make critical decisions about these children and this parent on the basis of inadequate evidence merely because it would be difficult to obtain relevant and determinative evidence.

Parenting Capacity — Parent-Child Interaction Group Reports

[36] The Society also relied on reports of three parent child interaction groups that the mother attended. There were obvious problems with this evidence also. First, the reports were simply appended to the affidavit of the group facilitator, Jennifer Kirby, with the deponent saying that she was the author and that she "confirmed" the content thereof. This is not the same as swearing to the truth of the specific content of an affidavit. It may seem a banal point, but it is an important one. The acts of writing up and signing a report, and swearing to the truth of an affidavit, are different from one another. There is a reason that a deponent has to appear before a commissioner and swear to the truth of their affidavit. That formality impresses upon the deponent the solemnity of the occasion of swearing to the truth of the affidavit content. It is an offence to swear a false affidavit.

[37] It is not the same to just say, I am the author of the reports and I "confirm" their content.

[38] The reports themselves were obviously not prepared contemporaneously and were not business records. It is impossible to ascertain whether certain assertions are made on the basis of the observations of the author, or on the basis of information provided by other staff to the author. The reports also contained substantial opinion evidence. This itself is problematic, as the only evidence about Ms. Kirby's qualifications are that she is a family support worker in the child development unit and a facilitator for the Parent Child Interaction group.

[39] Some examples of this opinion evidence are as follows:

In the report dated November 1, 2018 Ms. Kirby opines:

"At this time there has (sic) been limited measurable improvements in A.'s knowledge acquisition despite concentrated, multi contact service. It is unlikely A. will be able to meet the challenges of on-going learning related to parenting…With ongoing support, A. has been unable to meet the needs of her children effectively. She does not possess the skills necessary to parent Ju., Je. and Ja. on a full time basis."

In her report of April 12, 2018, Ms. Kirby opines:

"A. appears to have a lack of understanding of some of Ju.'s developmental needs. Her ability to meet his needs remains inconsistent."

These kind of conclusions are also difficult to reconcile with other comments in the notes about the mother and grandmother "working well together at group to meet the needs of all three boys" (Oct. 16, 2018) and comments that the mother, "did well today on your own" (October 23, 2018).

[40] Both of these "assessments" of mother's parenting occurred more than a year ago. They are not current.

[41] It is simply impossible to draw sweeping conclusions about the mother's parenting ability based on this kind of evidence.

Failure to Attend Medical Appointments

[42] The Society also alleges that mother has not been attending service appointments for the children, despite being kept appraised of these meetings. The evidence is certainly persuasive that the children Ju. and especially Je., have special needs. There is ample evidence to support the Society's contention that these children in particular require a caregiver who can ensure they receive the necessary services. There is evidence also to support the Society's contention that the caregiver must be able to advocate for these children. If the mother is unable to do this for the children, it would certainly be of major concern to the court.

[43] The Society relied upon the affidavit of child service worker Sarah Milne, sworn April 4, 2019 and the appended Exhibits in this regard. Exhibit 'D' of that affidavit is a letter to the mother dated January 10, 2018, which sets out six appointment times and places scheduled between January 30th and March 29, 2018. Ms. Milne deposes that when she asked the mother about attending the first of these appointments on January 30, 2018, the mother responded that it was too early in the morning for her to attend with her mom.

[44] There was then a further ophthalmology appointment on February 6, 2018 which the mother did not attend. Although Ms. Milne says she told the mother of the appointment, the appointment was not on the letter. In fact, the letter speaks on an ophthalmology appointment on February 5th, 2018.

[45] There was another appointment on February 12, 2018 that the mother did not attend, again saying it was too early in the morning and that she did not want to wait in the cafeteria whilst the scan was being undertaken.

[46] Mother also did not attend an appointment on February 21, 2018. That appointment was noted on Ms. Milne's letter to the mother.

[47] Mother did attend a March 2, 2018 appointment although it was not noted on the letter. Mother also attended the appointments of March 22nd and March 29th.

[48] The mother for her part, deposes in her responding affidavit sworn May 10, 2019, that she has a vehicle and attends the children's appointments when the Society notifies her of them and provides her at least, "a bit of notice". Mother also points out that she is currently employed part time and was employed on a full time basis for a period of time in 2018.

[49] It is not possible to ascertain from the Society's materials when and how mother was notified of appointments subsequent to those set out in Ms. Milne's letter.

[50] In summary, the evidence is that mother missed several appointments over a two month period between January and March 2018 despite having been notified in advance of them. There have also been other missed appointments, for which mother has provided an explanation. There is also evidence that mother was using a cell phone during a medical appointment on March 29, 2019. While rude, such behaviour does not conclusively demonstrate that mother was indifferent to the information being communicated during the appointment.

[51] It is also notable that mother has offered into evidence a letter from her family physician, Dr. Spicer dated February 22, 2018, which indicates that prior to their removal from her care, there were no concerns about the mother's care of the medical needs of the children.

[52] The evidence about mother missing appointments is dated and lacks detail. In early 2018, when mother clearly missed the children's appointments her personal situation was much different than it is today. It would seem that at that point, mother remained in a relationship with the father. Since then, mother has moved in with her mother, who is a substantial source of support and help to her. The evidence is unclear what advance notice has been provided of appointments since that time and what appointments have been missed.

[53] There also is scant evidence about the worker's efforts to try to problem-solve any issue of mother not regularly attending the children's appointments.

Alleged Disengagement with Workers

[54] Turning now to the allegation that mother has not recently been engaging with the family service worker. In its Factum, the Society states, "There has been a decrease in Ms. H.'s attendance with the worker or at meetings with Ms. H. missing 4 in the month of February, including a child and family planning meeting for which she initially confirmed attendance. She has not met with the worker since March 7, 2019."

[55] The reference for this statement is cited as Vol. 3 Tab 31, para 2-5 Affidavit of Ashley Ciccone dated April 9, 2019.

In point of fact, paragraphs 2-5 of the affidavit of Ms. Ciccone read as follows:

2. On March 7, 2019 Katrina Pearson (another child protection worker) completed a transfer meeting with Ms. H. Ms. H. denied any methadone drug use. Further she advised that she has had no contact with Mr. T.

3. I called Ms. H. on March 26, 2019 to arrange a home visit & left her a voicemail. I received no response.

4. I texted Ms. H. on March 28, 2019 to arrange a home visit. Between March 28-April 2, 2019 we texted and were able to arrange a meeting at the Society's offices in the afternoon of April 5, 2019.

5. On April 5, 2019 in the morning Ms. H. texted me to cancel our meeting as she wasn't feeling well. I texted her back to see if she was available to meet following her access visit on April 16, 2019. I'm waiting to hear back.

6. Since the beginning of March, Ms. H. and her mother have been attending access visits consistently and on time.

[56] As can be seen in this recitation, there is an absence of evidence to demonstrate the allegation of four missed visits in February including a child and family planning meeting for which mother initially confirmed attendance. There is also an absence of evidence in the cited provisions to demonstrate that mother has not met with the worker since March 7, 2019.

[57] There is also little evidence about concerted efforts on the part of the worker to have meetings with the mother, nor evidence about the purpose of such meetings and why not having them would be problematic. I am not prepared to accept the Society's contention that this evidence demonstrates that mother has disengaged with the Society worker such that a supervision order could not mitigate the concerns.

Conclusion

[58] Accordingly, I find that the Society has not met its onus to demonstrate on a balance of probabilities that there is no genuine issue requiring trial on the issue of disposition. As the Society conceded that trial is required at least on the issue of access in any event, the matter was previously scheduled for the Ready List of June 11, 2019 at 9:30 a.m. for the trial sittings of July 8-12, 2019. A Trial Management Conference has similarly already been scheduled.

[59] Accordingly:

1. The Society's motion for summary judgment shall be dismissed.

Dated at Brantford, Ontario

This 7th day of June 2019

The Honourable Justice K.A. Baker