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: 2019-10-27

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: September 30, 2019 and October 23, 2019

Reasons for Judgment released on: October 27, 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.:

The Summary Judgment Motion

[1] This is a decision on a summary judgment motion (at Tab 22, Vol. 3) brought by the applicant society seeking:

(a) A finding that the two children are in need of protection;

(b) A disposition order of deemed sole custody to their mother;

(c) An order for supervised access to the father subject to terms and conditions.

The Child Protection Application

[2] The motion for summary judgment is brought in a child protection application initially returnable on April 26, 2017, which was then amended on November 3, 2017, and further amended on June 27, 2019 (and is now at Tab 23, Vol. 3).

[3] The current child protection application seeks findings that the children are in need of protection from their father on the following grounds set out in the Child, Youth and Family Services Act (the CYFSA):

(a) S.74(2)(b)(i) – risk of physical harm

(b) S.74(2)(h) – risk of emotional harm

[4] The motion for summary judgment (Tab 22 Vol 3) seeks that findings in need of protection be made on these same grounds, but by way of summary judgment.

[5] The disposition claim by the society in the current summary judgment motion (at Tab 22 Vol 3) is for an order of sole custody to the mother. This is an order under s.102(1) CYFSA, which is a custody order deemed by s.102(1) CYFSA to be an order made under the Children's Law Reform Act (the CLRA). Section 102(1) provides:

S.102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[6] This is a different claim for disposition than the society has in its current child protection application. In its current amended application, it is seeking an order placing the children with their mother subject to society supervision for twelve months with conditions. This society does not make s.102 claims in its applications for policy reasons. However, it occasionally will make them in a motion for summary judgment brought in its child protection application. While this may seem somewhat inconsistent, it apparently has the authority to do so by virtue of Rule 16(1):

Rule 16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

[7] So long as a claim is made (presumably in a pleading) by any party in the case for a s.102(1) CYFSA deemed custody order, the society can make such claim in a summary judgment motion in the same proceeding. In the present case, the respondent mother has such a claim in her Answer and Plan of Care.

[8] The society also seeks, in its most current amended application an order for supervised access to the father. More correctly, it seeks an order that places restrictions and conditions on any access that the father may be granted to the two children. Moreover, it seeks that this be a s.102(2) access order that is deemed to be made under the CLRA. Section 102(2) CYFSA provides:

S.102 (2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act

[9] The motion for summary judgment seeks an order for paternal access to be made by way of summary judgment that is similar in its wording to that in the society's claim in its child protection application, except that in the summary judgment motion, it is the mother, not the society, that has the discretion whether to supervise the father's access, and she has to approve any access supervisor of the father, failing which, any access of the father is to take place at Algoma Family Services [the entity that operates a Supervised Access Centre locally]. The terms and conditions are also similar but have a few changes, with the mother having the discretion to decide the frequency, timing, location and format of paternal access, including whether any access is overnight, and the father is to refrain from making derogatory comments about the mother and the maternal family during his access.

The Law on Summary Judgment Motions

[10] The current law that applies to summary judgment motions in child protection proceedings is almost invariably mentioned in the body of decisions reported since the coming into force of the CYFSA (on April 30, 2018) and since the release of the Kawartha decision by the Ontario Court of Appeal in 2019 (on April 18, 2019).

[11] I use the following summary of that law which I admit to borrowing verbatim from Justice Jain in her recent decision Simcoe Muskoka Child Youth and Family Services v. K.R., [2019] O.J. No. 3095 [in paragraphs 14 to 26], which I find to succinctly and efficiently set out that law:

14 The burden of proof is on the party moving for summary judgment (the Society). Pursuant to r. 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.

15 Pursuant to r. 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. (See: Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.))

16 A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial. The parents need more than genuine and heartfelt expressions of their desire to resume care of the child. There must be something discernable from the parent's evidence to show they face some better prospects than what existed at the time of the Society's removal of the child from their care. (See: Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.); Catholic Children's Aid Society of Hamilton v. W. (B.). 2015 ONSC 7621, para. 90)

17 Although r. 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. (See: Kawartha Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, para. 2 of para. 80)

18 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 (See: Kawartha, at para. 76).

19 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. (See: Kawartha, at para. 1 of paras. 80 and 64).

20 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. (See: Kawartha, at para. 3 of para. 80).

21 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". (See: Kawartha, at para. 72).

22 Rule 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.

23 Rule 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.

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

25 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. Hyrniak 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 r. 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.

26 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 (See: Hryniak, at para. 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." (See: Kawartha, p.63)

[12] While all of the foregoing apply to all summary judgment motions, for the purposes of the present case, these provisions confirm that the onus rests with the society, that the court should proceed exceptionally cautiously, that the court should be confident that a fair and just determination can be made of the essential issues in the case by the summary judgment procedure, that the court should not admit evidence that would not be admissible at trial, and that, in determining the primary and overarching issue "is there an issue requiring a trial", the court can weigh the admissible evidence, assess the credibility of a deponent, and draw whatever reasonable inference it can from such admissible evidence.

Essential Determinations Required in Child Protection Cases

[13] There are three main areas that the court hearing child protection matters must pronounce upon. These are the finding that a child is in need of protection, what becomes of that child after the decision on finding is made (i.e. the disposition). The third area is not always, but more often than not, present, namely access.

[14] In the summary judgment procedure, at least for this case, the court must find that there is no genuine issue with respect to each of these three elements. I would also add that, in addition, the order that the court is asked to make by summary judgment with respect to each of these three areas, must be the appropriate order to be made in the circumstances of the case. By way of example, if the court finds that there is no issue with respect to a finding, and it proceeds to make that finding, this does not automatically mean that a s.102 deemed custody order will follow simply because it is sought in the summary judgment motion.

(A) Finding in Need of Protection

[15] It is perhaps trite to state that, without a finding that the child, or children in this case, are in need of protection, the case goes nowhere. It is the threshold determination on which the balance of the case rests. No disposition, and no access orders are possible under the CYFSA unless and until a finding is made. However, if the summary judgment motion is dismissed because a finding is not made, the applicant society gets another kick at the can. This is at a trial of its child protection application. In fact, the trial in this case is actually scheduled to commence in about one week hence and is scheduled for a duration of over a week.

[16] As indicated above, the society claims that there is no issue that requires a trial with respect to a finding that the children are in need of protection. What this is effectively tantamount to, is that it is a foregone conclusion, or that there is no possibility other than that such a finding will be made.

[17] Findings in need of protection are not unlimited. In fact, the limitations of such findings are set out in the CYFSA, the statute that governs child protection proceedings. There are a limited number of grounds on which the court may find a child to be in need of protection, all of which are set out in s.74(2) of the statute. However, the society relies on only two of such grounds in this case.

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

[18] Firstly, the society relies on s.74(2)(b)(i) CYFSA as a basis for finding the children in need of protection. This ground is the 'risk of physical harm' ground.

S. 74 (2) A child is in need of protection where,

(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,

[19] The risk, on this ground, is that the child is more likely than not to suffer physical harm. While the kind of harm is unspecified in the statute, it must be "physical" in nature. "More likely than not" applies to the risk. In other words, if the risk is present, but is very slight, that is not enough. But it need not be a risk that is overwhelmingly sure to materialize. It must be a risk that physical harm to these children is more likely to happen than not. Because it is 'risk', it must necessarily be of harm in the future. It is based on the premise that risk will exist if the children are in care of the father.

[20] In addition to the foregoing requirements of this ground, the onus still remains on the society to satisfy the court that the risk of physical harm is because it is either going to be inflicted by the father, or is going to be caused by, or resulting from, the father's failure to adequately care for, or provide for, or supervise, or protect the children.

[21] All of the foregoing the society has to show based on admissible evidence, and the standard of proof is the balance of probabilities. That standard is also 'more likely than not'.

[22] So what has the society shown in this summary judgment motion with respect to risk of physical harm? The best predictor for future physical harm being occasioned to these children is the fact that they have suffered past physical harm. Have they? In fact, there is absolutely no evidence that they have, and none that they have at the hands of their father. There are no medical reports outlining any physical medical findings with respect to either child. Neither the mother, nor OCL counsel can point to any physical harm that has befallen them in the past that can be related to the father directly, or to his default in his parental role with them. So factual physical harm in the past is no basis to suppose that a risk of future physical harm will be occasioned to them in the future.

[23] But past physical harm is only one basis on which to base risk of physical harm. What other factual circumstances from the evidence are there from which the court is able to infer that the risk of physical harm to these children is likely? The main circumstance relied upon by the society, and the mother, is that the father suffers from a mental health condition, and it is that condition that is tied to his behaviour that, in turn, creates the risk of physical harm that is required by s.74(2)(b)(i) CYFSA.

[24] Mental health conditions are within the purview of medically qualified personnel. In particular, they are in the particular area of practice of psychiatrists who are often called upon to examine persons and to diagnose their mental health afflictions. Was the father ever one of these? In fact, he was. He was involuntarily admitted to hospital after a missing person report made to the police by his wife and mother-in-law, resulted in his being picked up by police and being taken to the hospital. He was seen first by Dr. Crookston, who was not a psychiatrist, and then by D. Adebowale, who is a psychiatrist. He was at the hospital for over three weeks, long enough for a good psychiatric examination.

[25] The outcome was a discharge diagnosis of "bizarre behaviour" and a discharge from the psychiatric unit. I know of no mental health disorder diagnosis of "bizarre behaviour", and suspect that many persons, otherwise normal, might occasionally indulge in bizarre behaviour. Also, the psychiatrist does not specify what behaviour he found bizarre and what he did not. In any event, the father was clearly discharged and is roaming free, unsupervised and unmedicated in the community. The medical notes from the hospital seem to indicate that the father was not a problem while he was there. He eventually provided the blood test materials requested of him. He seemed to co-operate in answering questions of the psychiatric staff. At worst, he declined medication, gave some unusual answers to questions, made some unusual statements, and behaved idiosyncratically compared to what I would informally call community norms.

[26] From the point of view of the medical community, I do not find that the society has shown that the father suffers from a mental disorder or an identifiable abnormal mental condition. The mother, who lived with him until their separation in 2017, also says that he suffers from untreated mental health issues, but she does not say what these mental health issues are. She is less credible in making such statement than is Dr. Adebowale who is a psychiatrist, who is medically qualified, and who did provide a discharge summary. Moreover, she is clearly adverse in interests to the father in this case. I suspect that many wives might well say, and be quite convinced, that their husbands suffer from mental health afflictions, and I take these kinds of comments to be very subjective. I put some, but little weight, to such statement from the mother, in absence of detail, and particularly in absence of how the father's mental health condition might affect the physical well being of the children.

[27] The father states and reiterates that he does not suffer from any mental health problems. I also put little weight on this denial, but acknowledge that it is a denial. He adduces no credible evidence from any medical or mental health professional. However, the onus is not on him to do so. It is on the society to establish not only that he does have mental health problems, but that such mental health problems somehow are causally connected to a risk of physical harm for the children. The society has not done so. At best, it has established a number of factual circumstances from which it appears to want the court to conclude that such risk exists. I am not prepared to do that. I do not conclude this is a foregone conclusion.

[28] From the viewpoint of the children, their views and wishes expressed through their OCL counsel were subject to a voir dire held in this summary judgment motion. Among the statements admitted were the following:

• they do want to see their father
• they want to see their father in person
• they want to be able to hug and kiss him

These sentiments are not those that I would expect from children who feel that they may suffer physical harm from being with their father. However, they are the views and wishes of six and seven year old children and, at those ages, they may not be as savvy with respect to their exposure to risk of physical harm as they may be at more mature ages. I put very little weight to such sentiments from the perspective of considering a finding that they are children in need of protection on grounds of risk of physical harm emanating from their father.

[29] The society's theory on this finding ground seems to be that the father is suffering from a mental health condition which makes him susceptible or likely to lose his temper. And if he loses his temper, the children may get caught in the crossfire between him and whoever he is angry with. They may be physically hurt in the crossfire. The society believes that this is the risk of physical harm that it ultimately wishes the court to find. In this summary judgment motion, it wishes the court to find that the existence of such a risk is a foregone conclusion, or that it is so self evident that a trial is not necessary to make such finding.

[30] In support of such a theory, the society points at evidence that describes what had occurred on March 29, 2018 at a scheduled access visit. The father apparently arrived in an elevated emotional state, pointed a finger at the access supervisor, was agitated and was yelling, without regard for other families in the access facility, refused to be calmed down, blamed the society for his problems, ultimately went outside when his children arrived by car at the access centre, stuck his head in the car window with his face very close to those of the children, and yelling at the children at the top of his lungs said that the society was the wolf taking them, his sheep, away from him, after which he moved quickly and erratically away and yelling "fuck you" to the access supervisor, and gave her and society staff the finger. When police arrived, things had calmed somewhat and nothing was done. Throughout all of this clearly bad behaviour, the father struck no one, hit no one, didn't verbally threaten to hurt anyone and was not actually charged by police with any offence when they later showed up. The father had a nasty bark but not much of a bite on this occasion.

[31] This is probably the most egregious behavior of the father but there were others. He allegedly physically picked up E. and placed her on the sofa in an access visit. This is apparently contrary to society imposed rules of parental access. If this is physical harm, then the society should have relied on (a) grounds. He also had a blow-up or a meltdown after a court appearance and was using inappropriate language and appeared very threatening to society personnel. Was he threatening? He says he was not. Everyone else was of the view that he was out of control. He says his anger was justified. In fact, the father seems to become angry mainly at the society, and not all society workers, and not all of the time.

[32] The society indicates that it has sought a court ordered assessment of the father but did so within the terms of an interim supervision order, not by way of an order for an assessment under S.98 CYFSA. The court declined to make such order. The father was consistently refusing to undergo an assessment in any event. The society has no such assessment and no plans to obtain one.

[33] The father responds to all of the society's allegations about him and his abnormal behaviour. This is behaviour that pre-dated the commencement of this proceeding, and that occurred afterwards as well. The society's evidence includes several affidavits of maternal family members who report the father's strange and eccentric, often fantastic, statements and beliefs. The father however, responds to many, if not all of these, often in as much or more detail as is contained in the society's affidavit material. Often, he denies that he made a statement that someone attributes to him. At other times, he explains that a statement was exaggerated or misheard, or its meaning was taken out of context, or it was not understood at all. The point is that he does respond and often times, his response is not incredible. Accordingly, he raises the issue of contradictory evidence, the truth of which the court cannot decide based on only affidavit evidence, even after applying the powers permissible by the Hryniak decision to be applied to summary judgment evidence.

[34] Ultimately, the society has not convinced me that I can conclude in this summary judgment motion that there is no question but that s.74(2)(b)(i) CYFSA grounds exist, namely the risk of physical harm to these children. This court is directed to consider all of the summary judgment evidence extremely cautiously. As stated above, 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. I do not conclude that this case presents the foregone conclusion on risk of physical harm grounds that permits me to make this finding by summary judgment. It may be such a finding will be made after trial, and if it is, it is better that it be so.

[35] As a postscript to this ground, counsel for the father indicated that there could be no finding on this ground with respect to anything that occurred after the children were no longer in the father's care. This, it was argued was only until November 2017 (according to the court record it was Dec 19, 2017) when the court, while on reserve on a motion to vary temporary care and custody, made a temporary order that deprived the father of care and custody of his children.

[36] I disagree that only factual circumstances pre-dating this date are relevant to a finding in need of protection. The existing case law indicates that the court may consider events that occurred prior to society intervention, at the time of society intervention, and those that occurred after society intervention and during the course of the proceeding.

Section 74(2)(h) CYFSA – Risk of Emotional Harm

[37] The society's other ground for a finding is s.74(2)(h) CYFSA. This ground is the "risk of emotional harm" ground. It was never, in my view, an easy ground to prove and, in the climate change that Kawartha has brought about, it is even more difficult. Because clause (h) grounds refer back to clause (f) grounds in the statute, I am taking the liberty of blending their provisions in an effort to make them more understandable.

S.74(2)(h) provides that a child is in need of protection [on this ground where] there is a risk that the child is likely to suffer emotional harm of the following kind:

(i) serious anxiety (ii) serious depression (iii) serious withdrawal (iv) serious self destructive or aggressive behaviour, or (v) serious delayed development

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;

[38] The society made few, if any submissions on this ground, but since it did not abandon this ground, I feel compelled to deal with it in the context of this summary judgment motion. For a finding on this ground by summary judgment, a society has a more difficult task than it has at trial. It must convince the court that the existence of this ground is so obvious that it is a foregone conclusion.

[39] In this case, it is far from that. There is no evidence of past or even present demonstration by either child of any of the symptoms numbered (i) to (v) above, much less any serious ones. More difficult for the society to prove is that, if such emotional harm were to emerge from either child in the future (and when we speak of risk we are clearly speaking of the future), that it will result from the actions, failure to act or pattern of neglect on the part of the father. Even the descriptive word 'serious' means that there is some line drawn between what is serious and what is not serious in terms of the symptoms of emotional harm required for this ground. Who is to draw that line? I suggest that for the majority of cases where this ground is relied upon, demarcating whether a symptom is "serious" often lies in the domain of a mental health practitioner, not a society worker, and not the court.

[40] In circumstances such as in this case, where there is no prior indication that any child has suffered the kind of emotional harm required by the statute, and in absence of professional expert opinion, it would be foolish of me to make a finding that either child is in need of protection because of a risk of emotional harm.

[41] It would be doubly foolish of me to find, by summary judgment, that the society has presented factual evidence that supports that the emotional harm ground on which it relies is so plain and obvious, and that there is no realistic possibility of an outcome other than that such a finding will be made at trial. To the contrary, it has proved almost nothing at all with respect to this ground in this summary judgment motion. Accordingly, I do not make such a finding by summary judgment.

Disposition

[42] Having failed on the required and crucial element of "finding" in this summary judgment motion, the society is technically estopped from proceeding further.

[43] However, in the event I am wrong in dismissing the summary judgment motion on the finding aspect, I also have concerns with respect to disposition.

[44] The society seeks a s.102 deemed custody order in favour of the mother in this summary judgment motion. This requires that this disposition is not only in the best interests of the children, as all such disposition decisions must necessarily be, but also that this disposition is plain and obvious, is a foregone conclusion and that there is no other reasonable outcome but this one. In short, that there is no issue for trial with respect to the disposition sought.

[45] The fact is that the father has thrown a lot of stones at the mother in the evidence. The society says mostly good things about the mother and her parenting. So does the mother. However, the society's responses to the allegations of the father are at best hearsay from the mother or her family. The father says that she is a drunk, that she drinks every day, that she has driven while intoxicated, that she uses marijuana every day, that she used to use cocaine and that her attitude is that there is nothing wrong in using it, that she is an incompetent parent, that she hardly ever cooked anything, that she was not the children's primary caregiver, that she has gotten into rages, namely "uncontrollable emotion and violence" and smashed things. Not all of these are answered by the society. The mother responds to many but not all. As a result, there may be some triable issues with respect to the factual evidence of the parties, issues that cannot be resolved on the untested affidavit evidence that is before this court in this summary judgment motion.

[46] If even half of what the father says is accurate, then perhaps a protection order is more appropriate than a deemed custody order.

[47] I am not prepared to concede that the society's evidence, together with the mother's evidence, are such that they lead to the conclusion that there is no genuine issue for trial on the issue of disposition.

Access

[48] I may as well share my thoughts on access. The father's access has been a bone of contention that has persisted for over two years. The father's access has been cut back, then cut back again and he is now relegated to telephone access only. Even that is not regular as the children do not have access when they don't feel like it.

[49] The location of access has been a problem as well. The father contributes to this with his attitude and behaviour. The children do as well. The society makes it clear that the father is a difficult person to deal with. He also says that the society is difficult to deal with.

[50] Overall, I would say that whatever the objective has been for paternal access, it was far from achieved. That is not to lay all the blame at the feet of the society. It has on many occasions gone above and beyond what would normally be expected of a society to accommodate the children primarily, but also the father. The mother did at one time, supervise the father's access. She no longer does, or is willing to do so.

[51] Both the society and the mother want the father's access to be supervised. The plan for paternal access is that it is to be supervised by a person approved by the mother and failing that, the father will exercise access at the Supervised Access Facility which is operated by the Algoma Family Services agency.

[52] This all sound very nice but the reality is that neither the mother nor the society has identified a person who is willing to supervise paternal access. There is no one on the father's side of the family as he is alienated from all of them. The mother's side of the family is all aligned with her and adverse to the father. If one of them is willing to do so, it likely won't be for long. The society wants out. It has its own supervised access program but it will not be available if a s.102 order is made. Moreover, it did not have much success with this father and his access.

[53] The backup plan has Supervised Access Facility manager, David Paquin. He has an affidavit which is filed as part of the society's evidence in this summary judgment motion. Essentially, he says that if the father becomes too much of a problem, his agency may terminate its services. For a father who the society very clearly identifies as a problem access parent, it is almost certain that the Supervised Access Facility will end up doing just that. This will leave the father with no access.

[54] This may not be so bad except for the fact that the children have made it plain and clear that they want to see their father, and they want to see him in person.

[55] The upshot of all of this is that access is not an issue that can be resolved by summary judgment. There are triable issues relating to paternal access if access is in the running in this case.

Summary and Conclusions (and Comments)

[56] In the end, the summary judgment motion at Tab 22, Volume 3 is dismissed for the Reasons set out above.

[57] The CYFSA is a statute that grants extraordinary powers to an agency to intrude and intervene in the families of our province. While this intervention is subject to the oversight of the court and must be carried out in accordance with the provisions in the statute, oftentimes it seems to stray outside those boundaries. The most obvious is that timelines are hardly ever complied with and this, in itself, is an unjustified exercise of this power.

[58] I point out that more frequently, the family dynamics in families involved with the child protection system are what a society seems to become concerned about more so than the protection, well being and best interests of children. A society will take the side of one parent over another for a number of reasons. The other parent may just be a bad parent, or that other parent refuses to work with the society, or that other parent may be a pain to work with, or that other parent may simply want to fight the society at every turn, or that parent may have mental health problems that make him or her almost impossible to deal with. It is much easier to champion the better parent and try to adjust the custodial regime in the family in favour of that better parent. However, while this may be the right solution, this is not the main purpose of the CYFSA or of a society. Societies should ensure that they have a legitimate child who is in need of protection in their child protection cases. Custody and access adjustments are more properly the subjects of the Children's Law Reform Act in Ontario.

Released: October 27, 2019

Signed: "Justice John Kukurin"