WARNING

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

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

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

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

87(8) Prohibition re identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

87(9) Prohibition re identifying person charged.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2019-09-19

Court File No.: Woodstock C190/18

Parties

Between:

Children's Aid Society of Oxford County Applicant

— AND —

A.F.

M.S.

J.P. (deceased)

Respondents

Before the Court

Justice: S. E. J. Paull

Summary Judgment Motion Heard: September 4, 2019

Reasons for Judgment Released: September 19, 2019

Counsel

Benjamin McIver — counsel for the applicant

A.F. — on her own behalf

M.S. — on his own behalf

Jennifer Bolduc — OCL counsel for the children

PAULL J.:

Introduction

[1] The Society has brought a motion pursuant to rule 16 of the Family Law Rules seeking a finding that the children A.S. born […], 2010 and A.P. […], 2003 are in need of protection pursuant to section 74(2)(bi-ii) and (h) of the CYFSA. It seeks the disposition of a six month supervision order with the child A.S. placed with K.S. (M.S.'s former partner), and A.P. with A.T. (A.P.'s adult stepsister).

[2] The children's mother, A.F. and her partner, M.S. (who is the biological father of A.S.), oppose the motion and seek the immediate return of the children. In essence they feel that there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure. J.P. the biological father of A.P. is deceased.

[3] Counsel for the children supports the Society's motion and indicates that her clients' views and preferences are to remain in the kin placements where they have been since the fall of 2018.

[4] In addition to the submissions of the parties I have reviewed the affidavits at tabs 11 to 18, including the joint affidavit of the respondents who were granted leave to file it on the date of hearing, and the documents filed by the applicant pursuant to an Evidence Act notice, and the applicant's factum.

The Law

[5] The Society brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.

[6] The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[7] Pursuant to subrule 16(4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

[8] Although subrule 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. Kawartha Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80.

[9] Subrule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[10] Subrule 16(6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence
2. Evaluating the credibility of a deponent
3. Drawing any reasonable inference from the evidence

[11] Pursuant to subrule 16(6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[12] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

[13] Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact finding powers to decide if a trial is required.

[14] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak - paragraph 49). As the Supreme Court stated, at para. 50 of Hryniak, "the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute." (Kawartha, paragraph 63).

[15] 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. This cautious approach promotes Hryniak's principle of reaching a fair and just determination on the merits (Kawartha, paragraph 76).

[16] Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (Kawartha, paragraph 1 of paragraph 80 and paragraph 64).

[17] 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. (Kawartha, paragraph 3 of paragraph 80).

[18] The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue "for trial" or "requiring trial" analysis that incorporates these considerations. The test of "no genuine issue for trial" has been referred to in a number of ways. It has been equated with "no chance of success" or that it is "plain and obvious that the action cannot succeed". The test has also been enunciated as being when the "outcome is a foregone conclusion" or where there is "no realistic possibility of an outcome other than that sought by the applicant". (Kawartha, paragraph 72).

[19] Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council. (Kawartha, paragraph 4 of paragraph 80)

Background and Evidence

[20] The Society commenced a Protection Application dated November 7, 2018 seeking a six month supervision order with A.S. placed with K.S. and A.P. placed with A.T., with access to the parents. Both children were brought to a place of safety by the applicant in early November 2018 and on November 7, 2018 an interim without prejudice order was made placing the children in the kin homes.

[21] On November 28, 2018 the placement portions of the order were made interim with the access portions remaining without prejudice. On the next return date of December 18, 2018 the remaining terms regarding access were made interim.

[22] The respondents filed individual answers with the assistance of counsel outlining a joint plan to have the children returned to their care and took the position that the protection application should be dismissed. Alternatively they sought return of the children pursuant to terms of supervision, and in the further alternative, unsupervised access.

[23] The settlement conference scheduled for April 12, 2019 did not take place as the parents both confirmed they had discharged their respective counsel and were now self-represented. The settlement conference was rescheduled for June 27, 2019. The settlement conference did not proceed on that date with the presiding Justice noting the following in the endorsement:

"The R-father is quite escalated and nothing can be accomplished in his current state. Neither parent has filed a Settlement Conference Brief. Matter adjourned to July 10, 2019 10 AM in front of the Case Management Judge to determine if a further pre-trial is warranted. Parents are urged to go to the FLIC clinic Wed. July 3/19 commencing at 9 AM."

[24] The matter was next returnable on July 10, 2019 at which time the applicant indicated its intention to bring the summary judgment motion. The applicant submits that the protection concerns relate to M.S.'s mental health struggles which appear to be exacerbated by his drug use, domestic violence and conflict between the parents, including in the presence of the children, and physical conflict between M.S. and the children when they have tried to intervene during parental conflict.

[25] The Society attempted to work voluntarily with the parents prior to commencing the protection application but their engagement was inconsistent. Since April 30, 2018, when the family was forced to vacate emergency housing, they had been unable to find a stable residence. A.S. was residing with K.S., and A.P. was residing with a friend for a period of time. As of September 6, 2019 it appears A.S. was residing with K.S., and A.F. and A.P. were in a hotel. A.P. later went to reside with A.T. after she presented a plan.

[26] The applicant alleges that the current concerns arose from an incident on September 6, 2018 when M.S. unexpectedly showed up at the Society offices in a highly agitated and un-kept state with fresh scratches on his arms, legs and knuckles. He made incoherent statements and stated he was worried he had hurt or killed someone as he did not know what was real anymore. He acknowledged to the worker regular use of crystal meth. He was taken by police to Woodstock General Hospital for an assessment.

[27] The business records of the Woodstock General Hospital regarding M.S.'s admission on September 6, 2018 state the following:

1. "Brought in by police, went to CAS today stating he felt like he was going to kill someone. Has been having delusions, seeing dead animal heads and parts. Pt is rambling, reports seeing animal parts, "feel like ive hur someone based on the pictures I see" [sic] Pt denies being suicidal/homicidal. Reports doing meth three days ago. Poor eye contact, rigidity."

2. "Admits to Meth use, understands his behaviour is abnormal and causing concerns. No aggression, no self-harm/suicidal risk, logical but admits to abnormal thoughts and delusions…"

3. "Admits to crystal meth use three days ago, has been using for roughly a year",... and "has been using and experiencing similar symptoms for roughly a year".

4. The records noted that M.S. was logical but admitted to abnormal thoughts and delusions that he realizes might be related to his drug use. There were no immediate safety concerns noted and he denied interest in counselling and was later released.

5. The Emergency Record notes the diagnosis at discharge of "drug abuse".

[28] The police records filed for that date indicate the police attended in response to a report of a male who was confused and acting strange. EMS were originally dispatched and requested that police attend. The occurrence report notes that upon arrival police located M.S. who was calm and cooperative and advised he believed he needed to go to the hospital to speak to a doctor and someone with the CMHA. The report notes that he advised he was delusional and was seeing things that were concerning him and advised police that he was having thoughts of either harming himself or someone else and was seeing severed heads of animals. Police transported him to the Woodstock General Hospital for an assessment.

[29] The Society workers located the family at the Westmount Hotel where they were living at the time, and depose that A.F. acknowledged that M.S. often disappears at night and comes home with scrapes and cuts. The parents were required to move as they were behind on their hotel bill which the Society covered.

[30] The Society maintained its involvement with the family and took the position that M.S. continued to demonstrate concerning and delusional behaviour.

[31] The Society alleges that the children have made disclosures that support that there are protection concerns. A.S. stated his father was a drug addict and reported domestic violence occurring in the home. A.S. also indicated that he observed his brother A.P. fighting with M.S. while trying to protect their mother.

[32] A.P. was spoken to independently and confirmed his brother's account including the domestic violence, and of him intervening on a number of occasions.

[33] During meetings with the parents in October 2018 the worker deposed that A.F. acknowledged that the statements of A.S. and A.P. were true, including that A.P. had come between her and M.S. during physical altercations, however she minimized the impact on the children.

[34] The worker further deposed that during a meeting with M.S. on October 22, 2018 he acknowledged the violence towards his wife and A.P., and admitted he puts his hands on his wife when she is not listening to him or he is frustrated. He also admitted that he had "wrestled" with A.P. on numerous occasions, including an incident where he pushed him against a wall in anger. He also minimized the impact this could have on the children.

[35] On October 25, 2018 at a meeting between the parties, which involved the presence of the police, a safety plan was put in place that M.S. would reside apart from A.F. and the children until the issues were addressed. At that time the children remained in their respective kin placements.

[36] On November 5, 2018 both parents attended the Society offices in an agitated state. Father was incoherent explaining that people were out to harm him and his family. A.F. agreed with these comments. The parents also advised that they were not in agreement with residing apart from each other and the children.

[37] It was at that time that the Society removed the children to a place of safety and commenced the protection application.

[38] The applicant also noted as a concern continuing housing instability at the time of intervention. The family had been in emergency housing and in hotels since at least early 2018. The parents lived at the Tulip Motel from October 2018 to February 2019. However the parents acquired rental housing in February 2019 where they have remained which has been assessed by the applicant to be clean and appropriate.

[39] The parents provided a joint affidavit. There are two sections to the affidavit, the first seven pages are in response to specific paragraphs in the workers affidavit, with the second portion entitled "Our story of the [S., F., T., P.] family", and includes numerous references which suggest it was the evidence of M.S.

[40] The parents deposed in the first portion of their affidavit to the following:

1. When they resided on the rural property on 11th line, which was adjacent to a scrapyard where M.S. got a job, there were repeated trespassers to the property over the period of several months which created safety issues for the family. No one believed them regarding these issues and M.S. was fired from his employment there and as a result the family was forced to vacate the home on very short notice.

2. As of September 6, 2018 M.S. was not living with A.F. at the hotel but had been there the day before. M.S. was also not living with her and the children earlier in the year at Emergency House. M.S. joined A.F. and A.P. on October 1, 2018 at the Tulip Motel.

3. They denied making any of the comments to the workers related to M.S.'s mental health, including that he disappeared at night, or that he had unexplained injuries.

4. At paragraph 56 it states A.S. has never been involved in violence between the parents.

5. At paragraph 59 it states A.P. has "never intervened in violence" between the parents. There was one incident of a "wrestling brawl" between A.P. and M.S. but was instigated by A.P. who "went at" M.S. over a disagreement concerning a pair of speakers.

6. The parents lived at the Tulip Motel from October 1, 2018 to February 1, 2019 after which point they secured rental housing.

7. They acknowledge not participating in the Family Violence Counselling Program however it was the result of not receiving return calls from the program.

8. They acknowledge that M.S. did not participate in the Caring Dads program in the spring of 2019 but that he did agree to sign up for a later program.

9. They acknowledge that mental health supports were not accessed but that M.S. did register for the Anger Solutions Program after the court date on July 10, 2019.

10. The parents deny that M.S. has ever been angry or escalated during access but did experience on one occasion "an emotional time" during access when the worker entered the room and would not leave to permit the last few minutes of access to continue uninterrupted.

11. The parents are strongly of the view that there are no protection concerns, there is no risk of harm to the children, and that they should never have been removed from their care.

[41] The following is deposed to in the second portion of the parents affidavit:

1. In late 2016 M.S. lost his job and the family was experiencing significant financial and personal stresses. The affidavit included the following reference concerning that time:

"Through this start of this journey there started more arguments panic and frustration. I M.S. fell into some childish decisions of escape, serenity, pathetic acts weakness. Say what you will (acts of experience and learning) drugs (Meth). During this was loosing abit of myself every day not just due to what a lot of people would think (drugs) but do to the fact that the the job security was not there loss of place we call home, the arguments that seem to arrive and make more stress thinking you could loose everyone that you love and live for meaning the happy home was dwindling and self-worth was starting to seem nonexistent. [sic]"

2. The family moved into a home in the summer of 2017 (on the 11th Line next to a scrapyard) that included an employment opportunity for M.S. Trespassers were often present which created safety concerns and resulted in calls to the police. M.S. felt their concerns were not taken seriously by family members, CAS, and the police, "due to the improper things that I was doing (drugs and arguing with my wife)…", who were all of the view that he was hallucinating.

3. M.S. had a pellet gun and would stand guard over the family and would shoot in the vicinity of people in the yard at night.

4. There were two physical altercations between M.S. and A.P. The first occurred when M.S., "pushed [A.P.] up against the wall to give him a little bit of a scare", because he was being careless with A.S. The second incident was, "out in the yard I am proud of him I realize why he was angry and we wrestled no hits just wrestling I am proud of him for the reason he was standing up [sic]." M.S. also acknowledged similar historic incidents with his other child. This was concluded with the statement from M.S. that,

"I acknowledge and always have to all kids and wife that my that my actions were never excusable and always made sure they knew I loved them and will never be mad or hate them, and I at times (most) I was an ass hole and I was sorry."

5. The following passage also appeared at the end of the affidavit:

"Through these moments my faults M.S. born 1978 july 27 have bought a gun (shot gun) which is now not in my possession the people have disposed of that which I am thankfull for. I M.S. also had moments of throwing spears into areas of the yard running axes into areas where people may have been throwing weights (5 and 10 pound) driving a car through the yard with a yard vehicle in hopes that people would scare off yet they did not. my actions in a state of mind of fear and did not have any where else to turn for the thoughts of more arguments, treated like a moron, fear of loss of our children my acts (M.S.) and attempts to scare were reckless and I will explain why later. To some extent they would say necessary at all costs to protect family wich our Police Department or government did not make us feel safe. I M.S. I'm not excepting my actions as justified again I will explain later. Also I have faught with my wife where I have told her in my state of not being a man to make my wife feel safe or loved. I have held her by her throaght at more than one occasion which is the action of a piss ant that has showen no worth to his family for the action of hurting the woman he calls his best friend and life there is no excuse (goal is and has been wife and kids wife and kids wife and kids) my actions at some points have not said so. I also have been involved in drugs (meth) I have threatened my wife with her life. Was not ment as it sounds but being said with the actions I have done says otherwise [sic]."

[42] The police records filed confirm contact with M.S. in October 2017 at which time he was in a highly agitated state claiming he had barricaded an intruder into a room in the home. When police investigated they determined that no one was there. The CMHA mobile crisis unit attended and observed that M.S. was actively delusional and hallucinating but not a threat to others at the time.

[43] Since intervention the applicant takes the position that the protection concerns have continued and have not been adequately addressed by the parents.

[44] In terms of services, the parents successfully completed the Triple P program between April and May 2019.

[45] They have not followed through with the Family Violence Counselling Program where they were both referred in November 2018, and M.S. did not complete the Caring Dads Program. Neither parent returned to the outpatient counselling or enrolled in a program provided through the Mental Health Services of Oxford County, other than the single session they attended on May 30, 2019 when accompanied by a Society worker.

[46] The worker recommended the Anger Solutions Program through CMHA and provided information about the program, which starts in September, the parents elected not to register or commit to the program at that time.

[47] M.S. has not followed through with attending Thames Valley Addiction Services having been repeatedly provided with information by the worker about its services.

[48] The parents advised in their submissions that M.S. was scheduled to commence the Caring Dads program that evening, and that they have had trouble connecting with community supports as they often do not get return calls. A.F. acknowledged not a lot of progression with supports but that they are making efforts.

[49] Access by A.S. to both his parents currently occurs on Tuesdays and Thursdays for two hours supervised by the Society.

[50] There had been some community access which was cancelled by the applicant as a result of continued concerns with M.S.'s presentation. He had been argumentative with staff and made inappropriate comments to the children at access. On June 25, 2019 M.S. was yelling and swearing and ranting about the Society in front of A.S. This was the incident where the parents acknowledged that M.S. had "an emotional time" in the child's presence at access.

[51] The worker also deposes that M.S. has attended the home of K.S. without consent to see A.S. on numerous occasions and notes that M.S. has texted incoherent statements to K.S. at times including at night. The respondents do not contest these allegations.

[52] A.P. is not having regular access and has declined to attend supervised access offered by the Society. He has had no access since December 2018 by his own choice.

[53] OCL counsel on behalf of the children reports that A.P.'s views and preferences are to remain residing with his sister at present, that he seeks no contact with M.S., and wants access to his mother to be subject to his wishes.

[54] OCL counsel reports that A.S.'s views and preferences are first that he wishes to remain in the home of K.S., with his second choice to be back with his parents subject to "rules" which include no arguing. He identified his third choice would be to live with A.P. and K.S. A.S. also reported that he would like access to remain as it is presently which is supervised two times per week by the Society.

[55] I have not considered the evidence of the statements regarding domestic violence and drug use purportedly made by the children for the truth of their content. The Society, given its position on finding, should have fully addressed the question as to whether or not their statements were inherently trustworthy and should be admissible for the truth of their contents under the principled approach to the admission of hearsay as outlined in R. v. Bradshaw, 2017 SCC 35. There is insufficient evidence before the court on the circumstances surrounding the children's statements to determine that they meet the standard of necessity and threshold reliability in order to admit them as evidence of the truth of their content.

[56] Further, any other hearsay statements in the affidavit evidence filed on behalf of the Society I have given little weight to on the summary judgment motion as the case law is now settled that evidence on these motions should only be of a standard that would be admissible at trial.

[57] M.S. acknowledges meth use in his affidavit and does not contest the evidence related to the contents of the Woodstock General Hospital records for September 6, 2019 and the police records that outline the admissions he made regarding drug use and delusions, or the observations and diagnosis of "drug abuse" made on discharge from the hospital.

[58] On the basis of these acknowledgements and the uncontested evidence from the hospital records I accept that M.S. has serious drug use issues which have adversely impacted his mental health and likely caused delusional behaviour for at least a year prior to his hospitalization in September 2018.

[59] The respondents deny that A.S. was ever involved in violence between them. There evidence with respect to A.P. is less clear. In the first portion of their affidavit they deny that A.P. was ever involved in violence between the parents and state that there was one incident of a "wrestling brawl" which was instigated by A.P. when he "went at" M.S.

[60] In the second portion of their affidavit M.S. acknowledges two altercations with A.P. where he pushed him up against the wall to give him a scare, and another in the yard involving wrestling. He deposed that he was, "proud of [A.P.]… I realize why he was angry and we wrestled… I am proud of him for the reason he was standing up [sic]". He did not fully explain what he meant by this but I took it to mean that he was proud of A.P. for standing up to him while the parents were involved in conflict, and that on this occasion A.P. had intervened in the physical altercation.

[61] Most importantly the respondents left uncontested the allegations that the children were repeatedly exposed to domestic conflict and violence between them. On the basis of this and M.S.'s acknowledgement that he held A.F. by the throat on more than one occasion and threatened her life, I accept that the children have been exposed to domestic violence and conflict between the parents.

[62] This is further reflected by A.S.'s views and preferences as expressed by his counsel that he wishes to remain with K.S. and would only want to return home if there were rules including no arguing between the parents, and likely part of the reason A.P. is not seeking access to his stepfather and not currently exercising access with his mother.

[63] Based on the evidence presented by the Society that is corroborated by the third-party business records and uncontested by the respondents, or based on the respondent's admissions, the following findings of fact can be made on the evidentiary record before the court:

1. The family had been under significant financial stress since at least late 2016 that resulted in lengthy periods of housing instability and increased the conflict between the parents.

2. At the time of intervention in November 2018 the family had been without stable housing for several months, and lived in a hotel where the Society was required to pay an outstanding bill on their behalf when they were unable to do so.

3. M.S. has struggled with meth use for at least a year prior to his hospitalization on September 6, 2016, which has exacerbated his mental health issues and likely contributed to delusional behaviour that he has exhibited to the Society workers, the police, and staff at Woodstock General Hospital. M.S. has attended the home of K.S. without consent to see A.S. on numerous occasions and has texted incoherent statements to K.S., including in the night.

4. M.S. has also exhibited escalated behaviour during access visits which resulted in community access being removed, in meetings with Society workers, as well as before the court at the settlement conference on June 27, 2019.

5. The parents have engaged in verbal and physical conflict. The domestic violence has included M.S. holding A.F. by the throat on more than one occasion, and has included M.S. threatening her life.

6. The children have been exposed to domestic conflict between the parents, with A.P. being involved in physical conflict with M.S. on at least two occasions.

7. The parents continue to minimize the protection concerns and the impact of M.S.'s unaddressed drug use and mental health issues on the family, and the impact on the children of exposure to domestic violence and parental conflict.

Analysis

[64] I have considered that I should exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants. In this case the state has taken intrusive measures into this family and removed the children from their parent's care.

[65] I find that it is in the interest of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate the dispute.

[66] I find that I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility.

[67] I find that the evidentiary record is sufficiently comprehensive on all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a trial. Cross-examination of witnesses would add little, if any value to the court's analysis. Many of the material facts of this case have either not been disputed or are the subject of admissions in the respondent's affidavit noted above.

[68] Given the length of time this proceeding has been outstanding, I find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.

[69] I find that the Society has established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought, and that the responding parties have not met their onus of establishing that there is a genuine issue requiring a trial on any issue.

[70] I find that if this matter proceeded to trial there is "no realistic possibility of an outcome other than that sought by the applicant".

[71] I reach these conclusions for the reasons that follow.

Findings

[72] The information concerning the statutory findings was not disputed and accordingly an order shall issue pursuant to paragraph one of the motion at tab 10.

[73] The Society is seeking findings of a risk of physical and emotional harm under section 74(2)(bi-ii) and (h).

[74] As the Court is being asked to make orders regarding both finding and disposition, in accordance with section 93(2) of the CYFSA, it is important that the court only consider evidence with respect to the finding and not the disposition at the first stage of the summary judgment motion.

[75] In cases where the Society is alleging that the child is in need of protection due to a risk of physical harm, the following principles have been applied.

[76] Clause 74(2)(b) involves a risk of physical harm to the child. This must be proved on a balance of probabilities. The risk is that the child is likely to suffer physical harm. "Likely" to suffer has the implied connotation of "more probable than not". There are three separate circumstances which may qualify for a finding on (b) grounds. The risk may be a likelihood that:

(a) the physical harm is inflicted by the person having charge of the child; or

(b) the physical harm is as a result of the failure of the person having charge in adequately caring for, providing for, supervising or protecting the child; or

(c) the physical harm is a result of a pattern of neglect by the person having charge in caring for, providing for, supervising, or protecting the child.

[77] The risk of harm must be real and likely, not speculative: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[78] A child may be at risk even if the conduct is not directed specifically towards that child: Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.).

[79] Verbal abuse, aggression, and inappropriate situations that children are exposed to can constitute risk of physical harm: Catholic Children's Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, at para. 380.

[80] Instability of housing and caregiving arrangements can create a risk of harm under (b): Catholic Children's Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, at para. 380.

[81] The court writes in paragraph 112 of Children's Aid Society of Simcoe County v. T.W., [2012] O.J. No. 2866 (SCJ):

112 There is a substantial body of jurisprudence that stands for the proposition that where a parent is abusing drugs or alcohol, the child is at risk: Lennox and Addington Children's Family and Services v. S.W., 2010 ONSC 2585, [2010] O.J. No. 1862 at paras. 6, 13-15, 22, 47-51, 58-62, 106; Children's Aid Society of Ottawa v. M.C. at paras. 22-24, 31, 34; Children's Aid Society of Waterloo Region v. F.(S.J.M.) at paras. 12-13; Children's Aid Society of London and Middlesex v. S.M., [2000] O.J. No. 2064 (S.C.J.) at paras. 22-23; Children's Aid Society of Durham v. M.F., [2000] O.J. No. 4007 (S.C.J.) at paras. 3-5, 12-14; Children's Aid Society of Hamilton v. L.V., [2009] O.J. No. 1468 (S.C.J.) at paras. 11, 13, 70, 80-81, 83, 94, 97; Children's Aid Society of Owen Sound v. A.L., [2008] O.J. No. 5133 (Ct. J.) at paras. 34, 40, 58-61; Children's Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 at paras. 28-32; Frontenac Children's Aid Society v. S.A.E., [2001] O.J. No. 5487 (S.C.J.) at paras. 3, 23, 27, 29. As Perkins J. stated in Children's Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 (S.C.J.) at para. 30:

The father's objection to the trial judge's taking judicial notice of certain facts surrounding drug addiction is not well founded. The substantial impairment of a person's parenting abilities caused by cocaine, to the point of obliviousness and unconsciousness, and the resulting risks to children in the parent's care, are facts commonly understood by reasonable people, and all the more by judges who hear child protection cases. That there is a serious risk of relapse among people who have been regular users of narcotics is similarly well known. We are long past having to prove these basic facts in each case.

[82] Rudeness and verbal abuse to a worker, is not by itself a basis for finding a child in need of protection, unless it is happening in front of a child. Children's Aid Society of London and Middlesex v. A.W., 2015 ONSC 2224.

[83] A parent's repeated pattern of exposing a child to domestic violence, is a ground for finding that a child is at risk of likely suffering physical harm and is in need of protection under s.74(2)(b)(i) and s.74(2)(b)(ii) of the CYFSA) (see paras. 47 to 49). Children's Aid Society of Algoma v. J.B., 2019 ONCJ 6.

[84] As such, physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addictions, inadequate shelter/food are common circumstances leading to findings of physical harm/risk of physical harm.

[85] With respect to the risk of emotional harm a pattern of domestic violence has been accepted as creating a risk of emotional harm: Children's Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 (O.C.J.), aff'd , [2005] O.J. No. 4718 (S.C.), aff'd 2007 ONCA 474, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 462); Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903, [2009] O.J. No. 5422, (Ont. C.A.). In Children's Aid Society of Toronto v. S.A.C, supra after hearing expert evidence on domestic abuse, Justice Zuker conducted a lengthy review of caselaw involving domestic violence in child protection, as well as social science literature on the effects of abuse, the dynamics of abusive relationships, and the interplay between domestic violence and substance abuse. His findings include:

1. Witnessing violence perpetrated against their mother may have an abusive and detrimental impact on a child's development.

2. Children may feel guilty, blame themselves and feel depressed.

3. They can develop fears, insecurity and low self-esteem as a result of witnessing domestic violence

4. They can suffer emotional confusion that can result in bedwetting, nightmares, sleeping or eating disturbances, self-harm and weight loss.

[86] With respect to the case before the court, the evidentiary record clearly establishes the children are in need of protection. In this case the risks relate primarily to the risk of physical and emotional harm to the children as a result of the exposure of the children to a pattern of domestic violence and conflict between the parents.

[87] The children have been repeatedly exposed to inappropriate adult conflict and violence. Both children independently expressing views and preferences to remain out of the care of the parents at this time.

[88] The concerns with M.S.'s anger and regulation continue at access resulting in the community portion being removed. The inappropriate behaviour has occurred in A.S.'s presence with the parents acknowledging that M.S. had "an emotional time" when he escalated as a result of the access supervisor's presence. Both parents continue to minimize the concerns and the impact on the children. This was clearly evident in their affidavit.

[89] These risks have been compounded by M.S.'s unaddressed drug use and mental health issues, and the evidence is compelling that this has been a long-standing concern. The impact of M.S.'s unaddressed drug use and mental health issues clearly pose a risk of harm to the children. There are examples of M.S.'s delusional and concerning behaviour before and after Society intervention, including his presentation at the hospital, and in his attendances at K.S.'s home and his incoherent communications with her.

[90] These risks have been further compounded by the parent's failure to acknowledge and address the issues in a more proactive manner. Apart from their successful completion of the Triple P program they have not followed through with domestic violence counselling and M.S. has not accessed any mental health or drug counselling or domestic violence counselling. In the circumstances successful engagement with the supports would be necessary in any effort to mitigate the risks.

[91] While there is no evidence that the children have suffered actual physical harm, there is a significant risk of physical and emotional harm based on their exposure to domestic violence, and as a result of M.S.'s unaddressed drug and mental health issues.

[92] I note that the Society seeks a finding in its summary judgment motion of a risk of emotional harm which was not pled in the original Protection Application. Council for the applicant made no reference to this in his submissions.

[93] The court has discretion to make a finding that a child is in need of protection pursuant to a clause of the Act not pleaded, if justified by the evidence, the parent had prior disclosure of the relevant evidence, is not caught by surprise and has had a full opportunity to test this evidence. Durham Children's Aid Society v. R.S. and J.M., [2005] O.J. No. 570 (SCJ) and Children's Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754 (SCJ-Family Court), where Justice Czutrin stated:

"While it is better practice, and the sections are set out in the forms to plead the subsections relied on, the court cannot be prohibited from finding a child in need of protection if the appropriate box has not been checked off, especially where the facts support such a conclusion. Events in a child's life are ever evolving and not frozen to events that existed at the beginning of the court process. It is open for me to find a child in need of protection where the evidence supports the facts that fall under any subsection of s. 37 where the evidence and facts have been established, and as in this case, cannot come as a surprise."

[94] As noted above a finding that the children are at risk of emotional harm is supported by the evidence. The parents had prior disclosure of the evidence and had the opportunity to respond. They also had notice that this finding was sought in the motion for summary judgment. On this basis a finding that the children are at risk of emotional harm shall also be made in spite of it not being pled in the original Protection Application.

[95] On the basis of the foregoing the applicant has satisfied the onus on a balance of probabilities that the children are at risk of physical and emotional harm.

Disposition

[96] For the following additional reasons the applicant has satisfied the burden of establishing that the least intrusive order consistent with the protection and best interest of the children is that they remain in their current kin placements with access remaining at the discretion of the Society.

[97] Sections 101 and 102 of the CYFSA provide that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders:

1. that the child be placed in the care and custody of a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months;

2. that the child be placed in interim Society care and custody for a specified period not exceeding 12 months;

3. that the child be placed in extended Society care until the order is terminated under section 116 or expires under section 123;

4. that the child be placed in interim Society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months; or,

5. that one or more persons be granted custody of the child, with the consent of the person or persons.

[98] Sections 101(2), 101(3) and 101(4) of the CYFSA require the court to consider additional factors when determining the issue of placement. These factors include whether there are any less disruptive alternatives such as community or extended family placements. The court must also consider what efforts the Society has made to assist the child before intervention.

[99] The court's decision must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations.

[100] The court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of children.

[101] The governing principle when considering the placement of a child is the "best interests of the child". The factors to be considered in determining best interests of a child are contained in section 74(3) of the Act, which provides as follows:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

a. consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

b. in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

c. consider any other circumstance of the case that the person considers relevant, including,

i. the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

ii. the child's physical, mental and emotional level of development,

iii. the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. the child's cultural and linguistic heritage,

v. the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

vi. the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

vii. the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

viii. the merits of a plan for the child's care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

ix. the effects on the child of delay in the disposition of the case,

x. the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

xi. the degree of risk, if any, that justified the finding that the child is in need of protection.

[102] The Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act which is to promote the best interests, protection and well-being of children. Under section 101(2) of the Act a court is required before making a disposition to consider what efforts the Society or other agency has made to assist the child before making an order that would remove a child from a parent's care.

[103] The evidence in this case sets out significant efforts to support the family both before and after the Society's intervention by way of its Protection Application, particularly in terms of working with the family prior to intervention to mitigate the concerns on a voluntary basis by developing a safety plan and by continuing to make referrals for supports for the parents to address the particular concerns.

[104] The Society's plan is for A.S. to remain in K.S.'s care and A.P. to remain with A.T. for a period of six months under terms of supervision. With respect to the placement of A.S. with K.S. the applicant takes the position that K.S. has worked cooperatively with the Society and A.S. is doing well and is settled in her care. He has improved school attendance and performance, and has an IEP and a speech language pathologist. A.S. has also attended a program for children exposed to domestic violence. The applicant has no protection concerns with K.S.

[105] With respect to the placement of A.P. with A.T., he is doing well and is settled in her care but continues to have struggles behaviourally and academically with school. The Society has no protection concerns with A.T.

[106] The parents plan also has merit. They have maintained appropriate housing since February 2019, they have completed the Triple P program, and have apparently taken steps to engage the other programming. They also clearly love their children and strongly desire to reunite as a family.

[107] The court has also taken into consideration the children's views and wishes, given due weight in accordance with the children's age and maturity pursuant to section 74(3) of the Act. Ms. Bolduc reports that the children have consistently expressed a desire to remain in their current placements. A.S. reports that he is content with the current supervised access arrangements in place, and A.P. reports that he does not wish to have access with M.S., and that any access with his mother be pursuant to his wishes.

[108] The children's views must be considered in context based on the circumstances of the significant risk that the court has found exists. On that basis their views and preferences are not unreasonable and ought to be given significant weight in the circumstances.

[109] Until the parents are able to more fully acknowledge and address the issues, I am of the view that family reunification at this time would very likely be unsuccessful and would expose the children to further risk of harm that would not, in the current circumstances, be sufficiently mitigated by terms of supervision. For the same reasons the best interests of the children necessitate that the access remain supervised and at the discretion of the Society.

[110] While the parents need to take further steps to address the concerns before the family can safely reunite, or for the access to progress to unsupervised, the parents should be provided with every opportunity to succeed. A.F. advised in submissions she would be interested in pursuing counselling with A.P. as a way of moving forward because he is presently choosing not to exercise access. I was advised by OCL counsel that A.P. would not likely be interested in attending counselling at this time. However, A.P. should be encouraged to reconsider, so that he can be engaged in a plan that can help the family to repair the serious fracture that has occurred.

[111] If A.P. sees that his parents are working hard in counselling and programming to address the issues he may be more likely to be persuaded to engage himself. Further, if the parents follow through and are successful with the programming requested and in addressing the concerns it would be appropriate for the Society to reassess the access to A.S., with a view of expanding it and moving it to unsupervised time in the community and in the family home.

[112] In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1(1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74(3) of the CYFSA.

[113] However, the factors in subsection 74(3) of the CYFSA are subject to the paramount duty in s. 1 to protect the best interests of an apprehended child. In other words, family and parental relationships are to be recognized only to the extent that they are "consistent with the best interest, protection and well-being of the children". Syl Apps Secure Treatment Centre v. D.(B.), 2007 SCC 38, [2007] S.C.J. No. 38 (S.C.C.).

[114] In terms of disposition, when the evidence as a whole is considered the least intrusive order consistent with the adequate protection of the children and consistent with their best interests is an order for the supervision orders as requested, with access to the parents at the discretion of the Society. Hopefully the parents will begin to take more meaningful efforts to address the protection concerns that are abundantly clear on the evidence so that access may begin for A.P., and progress for A.S., so the family can move towards reunification.

[115] On the basis of all the considerations outlined herein there is no genuine issue requiring a trial on either findings or disposition and a final order shall issue as follows:

1. Summary judgment is granted for findings and disposition as outlined in the motion at tab 10 pursuant to paragraphs 1-7 therein.

Released: September 19, 2019

Signed: "Justice S. E. J. Paull"