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

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

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

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

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

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

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

Ontario Court of Justice

DATE: 2021 02 08 COURT FILE No.: Thunder Bay FO-19-195-00

BETWEEN:

Dilico Anishinabek Family Care Applicant

— AND —

K. T-H, L.W. Wabigoon Lake Ojibway Nation Respondents

Before: Justice D.J. MacKinnon

Heard on: September 21, November 10, 2020 Reasons for Judgment released on: February 8, 2021

Counsel: K. Burns...................................................................................... counsel for the applicant(s) M. Frangione.................................................................... counsel for the respondent, L.W. S. Filipovic…………………………………………….counsel for the respondent, K.T-H. S. Clemence……………………………….counsel for Wabigoon Lake Ojibway Nation L. Conti……………………………………………………..Office of the Children’s Lawyer ............................................................................................ Legal representative for the child

MacKinnon J.:

Background

[1] P.W. is six years old and is the daughter of L.W. (father) and K.T-H.(mother). She lives with her parents in Thunder Bay. L.W. is a member of Wabigoon Lake Ojibway Nation.

[2] The father has an older daughter from a previous relationship, M.W. In February of 2019 M.W. gave a statement to the police in Sioux Lookout Ontario describing that she had been a victim of sexual assault by her father beginning at about the age of six years. In particular, she describes four incidents occurring during visits with her father, which included sexual intercourse and oral sex. As a result, L.W. was charged with sexual offences against M.W. in Alberta where the offences are alleged to have occurred. There is an existing criminal court case there. M.W. says, in part, that she made her complaint to try to protect her half-sister P.W. The criminal case was set for trial in the summer of 2020 but was delayed due to Covid 19.

[3] Dilico Anishinabek Family Care brings this application to the court under the Child, Youth and Family Services Act (CYFSA) for an interim and final order that the child P.W. is in need of protection and that the disposition should be that the child be in the care and custody of her mother K.T.-H. subject to terms of supervision for six months. The grounds stated by the agency are s.74(2)(b)(i) a risk of physical harm and s.74(2)(c) which is a risk of sexual abuse or exploitation.

[4] The agency became involved with the family of P.W. prior to the allegations of M.W. as a result of domestic matters between L.W. and K.T.-H. which required police intervention.

[5] In August of 2019, Justice Elder warned Dilico that a Wagg motion was necessary to allow the disclosure of the videotaped statement of M.W. and the admission of it into evidence. Contrary to the submissions of the Respondent father, I do not find that this was an order.

[6] A year later in September of 2020, Dilico had still not brought a Wagg motion to allow disclosure of the videotape of the statement given by M.W. However, the videotape itself was disclosed to the parties and is filed as attached to an affidavit of a worker. In addition, the agency had the statement transcribed by someone in their office and the transcription was also provided.

[7] Interim issues related to the care of P.W. were the subject of a decision previously released by this court in December of 2020. P.W. resides with her parents under conditions of supervision.

Motions before the Court

[8] The father L.W. brings a motion seeking to have the application of the agency struck pursuant to the summary judgment provisions of the Family Law Rules on the basis that there is no genuine issue requiring a trial.

[9] The position of the father is that, as the agency did not bring a Wagg motion, that the videotaped statement cannot be entered as evidence. In furtherance of that argument, the father relies on the answers of the agency to a Request to Admit, which he argues show that the agency did not interview or interact with M.W. at all, produce an affidavit from her, or investigate the matter.

[10] The Wabigoon Lake Ojibway Nation brings a motion to have the application of Dilico dismissed on the basis that the Applicant agency failed to provide disclosure of the case to the First Nation and failed to consult with them effectively.

[11] During the course of the interaction between P.W. and the Children’s Lawyer, the child P.W. made an allegation of sexual abuse against her father L.W. to the Children’s Lawyer. This was investigated by Dilico and unverified.

[12] Counsel for the father and the mother argued before me that the OCL should not be allowed to present a position on behalf of the child as a result. This was dismissed on the basis of Ludwig v. Ludwig, 2019 ONCA 680, [2019] O.J. No. 4437.

[13] Dilico has brought a motion to have portions of the affidavit of the Chief of Wabigoon Lake Ojibway Nation struck as hearsay which I will deal with first.

Striking Part of the Affidavit of Chief Pitchenese

[14] The agency seeks to have paragraphs of Chief Pitchenese’s affidavit of January 8, 2020 struck. Chief Pitchenese is the leader of Wabigoon Lake Ojibway Nation and related to L.W.

[15] The deponent, commencing in paragraph 14, suggests that M.W. is a liar, a thief, frequently in trouble, a drug user and that her mother has made similar allegations about her father. She states that her sources of information are community members.

[16] These statements are clearly hearsay and unfounded. There is no exception into which these hearsay statements may fall. Paragraphs 14 to 17 of the affidavit of Chief Pitchenese dated January 8, 2020 are struck from the record.

[17] In cases of child sexual abuse, the abusing actions are often hidden, occur in private, are often explained by the adult, and silencing to the child. No one but the parent and child know the truth of their interactions.

[18] The affidavit also complains about the actions of “state agents” and “state actors”. The Chief chastises the Office of the Childrens Lawyer for not supporting the status quo of the child wanting the father home. The OCL is also criticized for not bringing a support person with them for questioning of the child and for somehow assisting the case against the father. In regard to the agency, she calls their interaction with the child, “habitual exposure of adult topics and interrogations for the child P.W.”

[19] These statements do not add to the discussion of the important issues related to P.W.

Summary Judgment

[20] Summary judgment is a process to end litigation in cases where there is no genuine issue requiring a trial. This is because court proceedings are expensive to the parties and the court, emotionally taxing and use time and resources which should be reserved for those cases which require a trial for resolution.

[21] In the Ontario Court of Justice, Rule 16 of the Family Law Rules allows a motion to be brought to request such an order.

[22] The Rule sets out the following:

WHEN AVAILABLE

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) .

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

[23] It is available to parties such as the Respondent father, L.W., and Wabigoon Lake Ojibway Nation to bring motions for summary judgment pursuant to this rule. In this unusual case, it is the Respondents to the Application of the agency Dilico which bring this motion.

Onus

[24] The party bringing the motion for summary judgment has the onus to show that there is no genuine issue requiring a trial. This is done by serving an affidavit and other material supporting facts which prove that there is no real issue requiring a trial.

[25] As the Court of Appeal said in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316:

The burden of proof is on the party moving for summary judgment. 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.

[26] In the present case, the roles are reversed from the ordinary usage of Rule 16 by child welfare agencies. In this case the Respondents have the onus of establishing there is no genuine issue for trial by producing evidence. What is the onus on the responding agency? According to Kawartha, it is not strictly necessary that the responding party prove that there is a genuine issue for trial, but rather that the Respondents/moving parties in this case establish that there is no genuine issue requiring a trial. The ultimate burden of proof is on the movers.

[27] There is an inherent contradiction between the onus in the summary judgment motion and the onus in the Application before the court. The agency has the onus of proving the reasons that P.W. is in need of protection in the case proper. The Respondents on this summary judgment motion have the onus of proving that summary judgment should be granted.

[28] Summary judgment can be granted where the moving party has met its onus, but in regard to child protection matters, the court has shown a cautious approach. The test, approved by the Court of Appeal in Kawartha is set out in their adoption of the comments of Justice Zisman in Children’s Aid Society of Toronto v C.J.W., 2017 ONCJ 212, at paras. 66-67:

In assessing whether or not a society has met its obligation of showing there is no genuine issue requiring a trial, courts have equated that phrase with “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed”, and “where there is no realistic possibility of an outcome other than that sought by the applicant”.

[29] I see no reason to apply a different standard to the onus on the Respondents under Rule 16. The onus on the Respondents in this motion is that there must be proof that there is no evidence supporting the grounds alleged by the agency, or that there is no realistic possibility of an outcome other than the dismissal of the case of the agency.

[30] What are the indicators that the onus has been met? The Supreme Court speaks to this in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paragraph 49:

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.

[31] One could see that perhaps a complete, voluntary and unequivocal recantation by a child who had alleged sexual abuse, confirmed in a written statement or video, absent any other evidence, may be the type of fact that could be persuasive in a motion for summary judgment brought by those responding to an application by an agency.

Evidence

[32] Rule 16 provides that, in considering the evidence provided by the parties, the court may weigh the evidence, evaluate credibility and draw inferences and may also order oral evidence in its analysis to determine if a genuine issue exists which requires a trial.

[33] In Kawartha, Benotto J. addressed the issue of evidence on a summary judgment motion:

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.

The Key Issue

[34] In regard to allegations of domestic violence which may impact on the child, the agency did not apprehend the child on this basis and, in accordance with their answers to the Request to Admit, closed their file.

[35] Similarly, there is no evidence of neglect of this child. In regard to the risk of physical harm, this can only be linked to the sexual harm allegation.

[36] The key issue in this case is whether M.W. was sexually abused by her father L.W., such that P.W. is at risk of sexual harm.

Evidence in This Case

[37] Much of the evidence elicited in this case relate to the following:

a. The failure of Dilico to investigate the allegations of M.W. ; b. The failure of Dilico to provide timely disclosure in this case; c. The failure of Dilico to bring a Wagg application in regard to the videotaped statement of M.W.

[38] It is clear from the answers given by Dilico that they did not investigate the allegations of M.W. in any meaningful way. They did not interview M.W. in regard to her allegations. They did not interview her mother or others involved. While it seems as though the agency tried to obtain the child welfare records of the family from their time in Alberta, only the sparsest summary has been provided but not the full records.

[39] This failure is not relevant to the summary judgement motion of the Respondents. There are no cases where such a failure of the agency in its duty under the CYFSA alone resulted in the entire application of the agency being dismissed on a summary judgement motion.

[40] The application of the agency is meant to protect P.W. in the least intrusive method – that is, supervision with her mother. The Child, Youth and Family Services Act has, as its primary objective, the protection of children. The rights of a child to be protected by the CYFSA and its mandated agency are at the heart of the statute. As a society, we have accepted that protection of children is a social imperative. However, a failure to provide sufficient evidence to support the grounds of protection may result in the dismissal of the case.

[41] The failure of the agency to provide timely disclosure or to consult with the First Nation will be dealt with under the motion for summary judgment brought by the First Nation.

[42] The Respondent, L.W., takes the position that the agency is required to put their best evidence forward in defence of the summary judgment motion. This has been accepted as the proper approach for those responding to summary judgment motions. It does not, however, replace the onus on the mover of such a motion.

[43] As the agency did not bring a Wagg motion in regard to the video of the statement of M.W., the Respondent suggests that it should be viewed that there is no evidence and therefore no issue requiring a trial.

The Wagg Motion

[44] In her decision in the prior summary judgment motion, Elder J. clearly advised the Applicant agency to bring a Wagg motion in order to allow a full hearing of any privacy or prosecutorial interests in the case file in the criminal matter. The agency did not bring a Wagg motion.

[45] At the time of the first summary judgment motion, the video of the statement had not been provided to the parties. Now, all parties have the videotaped statement of M.W..

[46] Is a Wagg motion necessary?

[47] D.P. v. Wagg, [2004] O.J. No. 2053, was a decision of the Ontario Court of Appeal. In a civil case, a doctor was alleged to have sexually assaulted his patient. The criminal charges against the doctor were dismissed on the basis of a violation of the Charter of Rights. The complainant/Plaintiff sought disclosure from the doctor of the Crown brief for use in the civil matter.

[48] The Court of Appeal noted that the brief contents had to be disclosed in the Affidavit of Documents but that a hearing would be held on notice to the Attorney General and other parties who had privacy interests to assist in vetting the information, or the parties could consent to the use. The Divisional Court had also held that the doctor was not required to produce his statements given to the police. This was overturned on appeal.

[49] Wagg has generally stood for the proposition that materials from criminal proceedings that may be relevant can be compelled and disclosed but after the privacy interests have been reviewed by the court. That review requires a hearing.

Compellability

[50] Unlike the Wagg case, the videotape in this case was produced by the child welfare agency and not by the Respondent father. This avoids the issue of the implied undertaking by his counsel that the Crown brief would not be disclosed. As his charges in Alberta had reached the trial stage, it can be assumed that the brief had been provided to his counsel in Alberta, and that if an Affidavit of Documents was required he would have had to list the contents of the brief which would include this videotape.

[51] There is an order dated September 24, 2019 in which all parties consented to the Calgary Police Service releasing the case file including witness statements, the video recording of the interview and any transcript. The Calgary Police Service also consented. The case file has not been provided. The Crown Attorney in Calgary did not consent to the disclosure of the evidence.

[52] No one has suggested that they require the Crown brief in order to proceed with or defend in this case. If the Crown brief was required, it is likely the Respondent father, if he has a copy and would be compelled to disclose it after a Wagg motion.

[53] In this case, the videotaped statement of M.W., taken by a police officer in Ontario for the purposes of a criminal prosecution occurring in Alberta, is the only piece of evidence which it is suggested requires a Wagg hearing.

[54] A Wagg hearing is not required to compel this evidence. It is in the possession of the child welfare agency, and now in the possession of all parties. It does not need to be compelled.

[55] The context in which this videotape would be used is within the protections of the CYFSA prohibiting any disclosure of the videotaped statement by anyone. While there may be prosecutorial concerns over the statements to be given by M.W. or the concerns of L.W. in testifying in this proceeding, the CYFSA court is not a public court and there are protections available for the witnesses under the Evidence Act.

Admissibility

[56] The Respondent father takes the position that, without a Wagg hearing, the videotaped statement is not admissible for the purposes of supporting the grounds of protection claimed by the agency. Is a Wagg hearing needed in order to allow admission of this videotaped statement at trial, as suggested by the moving parties?

[57] The benefit of a Wagg hearing is that other interests are fully canvassed and conditions can be set for the protection of those interests. This is a consideration regarding compelling of the evidence certainly. The admission of the evidence is an issue for the trial judge.

[58] The interests in privacy related to this matter would be those of L.W., M.W. and possibly the mother of M.W. and her brother.

[59] The admission of the videotaped statement at trial would depend on the use of the videotape. A videotaped statement by itself is hearsay. Would it be introduced for the truth of its allegations or for the fact that it was given? It is a prior statement which can be used for contradicting a witness.

[60] In s.18.3(1) of the Ontario Evidence Act, testimony is allowed to be taken from a witness under 18 years of age by videotaping, provided that the trial judge is present along with the parties, and the parties are allowed to examine the witness. Then the testimony would be played in court in its entirety so that the witness need not appear in person.

[61] Unlike section 18.3(1), the Ontario Evidence Act sets out in s.18.3(6) the following:

18.3(6) With the leave of the court, a videotape of an interview with a person under the age of 18 may be admitted in evidence if the person, while testifying, adopts the contents of the videotape.

[62] In s.18.3(6), a witness under the age of 18 can adopt his or her video statement while testifying. This would limit the exposure of a young person to the court system, and also allow the witness to be available for cross-examination, thus reducing the risk of unfairness.

[63] In addition, under the Child, Youth and Family Services Act, the following consideration is given:

Evidence

Past conduct toward children

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

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

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

[64] The statement by M.W. is an oral statement, relevant to the proceedings and is admissible under the CYFSA in regard to the issue of past conduct of the father. While some of the safeguards under the Evidence Act such as an oath and a certified transcript are missing in this case, the section clearly contemplates the authority of the court to accept such evidence despite the Evidence Act provisions.

[65] It cannot be said that the videotaped statement is not admissible for any purpose at a trial.

[66] Can the videotaped statement be admitted on this motion?

[67] The evidence adduced by all parties contain their narratives of how and why the matter is before the court today. I accept that more could have been done by the agency to obtain evidence to substantiate the allegations of M.W., however I suspect that all parties have had difficulty obtaining actual evidence from Alberta.

[68] The child welfare agency has not provided a reason why the young person was not required to swear an affidavit about these incidents. Conversely, however, it seems that it would not be a good precedent to require children to give affidavits in regard to sexual abuse in this type of proceedings.

[69] For the purposes of this motion, I consider the videotaped statement to be admissible pursuant to s. 93 (1)(b) of the CYFSA.

Summary Judgment Analysis

[70] The onus is on the moving parties to present facts to support that they should be granted summary judgment.

[71] Are there facts presented by the Respondents in regard to the sexual abuse allegations that are compelling?

[72] The two persons having direct evidence in regard to the allegations would be M.W. and L.W.

[73] The allegations as set out in the videotaped statement of M.W. are as follows:

1. She and her brother were on an access visit with their father in a hotel room in Calgary or Edmonton when she was about six years old. Her father made her go down to his erect penis and put it into her mouth. He then indicated he wanted to put his penis in her vagina, which he did do she says. Afterwards, she went to the washroom because of the burning sensation, and stayed there until she was sure he was asleep.
2. In 2009 it was in the summer and her brother was out with their cousins. Her and her dad were laying on the couch. He told her to hold his penis while he slept. He had an erection. When he was sleeping she took her hand out of his pants. She describes the room.
3. The third incident was when they were staying in a guest room in someone’s house. He woke her up and told her that he was going to do something to make her feel good. He turned the light on and spread her legs and put his mouth on her vagina but she fell asleep.
4. In the summer of 2015 in Thunder Bay. M.W. and her father were each on a couch watching a movie. She got up to go to the kitchen to get something to eat. She saw noodles on the top of the cupboard. He put his hands on both sides of her stomach. His hands were close to her bra. She pulled her sweater down and did not get any food.

[74] What does L.W. say about the allegations of M.W.?

1. Affidavit of July 8, 2019. L.W. says that M.W. was angry because he refused to give her money for a trip to Winnipeg. This was not the first time she made accusations which were proven to be untrue.
2. Affidavit of January 7, 2020. L.W. denies ever inappropriately touching any of his children in a physical or sexual manner. He reviewed his disclosure and noted that M.W. does not remember when anything happened. He wants cross-examination.
3. Affidavit of July 7, 2020. The Respondent says that he only had his daughter in his care for one month. He applied for custody due to her mother’s drug problems in 2009. Prior to 2008 M.W. lived primarily with his mother as he worked when they lived in Calgary. He worked full time and was not responsible for taking M.W. to school or any other custodial tasks. When he lived with M.W. his three siblings and their children also lived with them. He moved to Lloydminster in 2011.

[75] Neither position is bolstered by actual supporting facts. This is a case, as is usual in regard to cases of child abuse, that allegations must be tested and evidence of the complainant and the respondent assessed.

[76] In his affidavit of September 7, 2020, L.W. says that there were problems with the taking of the video statement of M.W. especially as the mother of M.W. was present and he had had a tumultuous relationship with her. He believes M.W. was coached by her mother. There are many things he claims that M.W. does not seem to remember. He questions why there was no evidence of any interview of his son. He questions how the physical acts could actually have occurred.

[77] All of these questions raised by L.W. point to a need for cross-examination of M.W. However, I also note that there is no evidence adduced by L.W. supporting his contentions. In some ways, L.W. is in the same position as described by Justice Kukurin in Children’s Aid Society of Algoma v. W.(E.) et al. when he says, referring to sexual abuse allegations, “what can a respondent offer in response except a bold assertion that it did not happen, a denial?”.

[78] In this case however, I believe that some evidence could have been entered if it existed related to the following:

a. Affidavits from others peripherally present such as M.W.’s brother or other family members; b. Proof that L.W. did not visit the children during those years if that is the case; c. Proof that M.W. made other similar accusations that were untrue.

[79] In other words, as the mover of the summary judgment motion, and having the onus to show facts that support that there is no genuine issue for trial, the Respondent father was required to produce actual facts, not argument and innuendo.

[80] The difficulty in doing so for the Respondent father, just as it would be if the agency made a similar motion, is that at its core, the issue of the alleged sexual abuse of M.W. cannot, in my view, be determined without a hearing.

[81] Would the allegations, if proven, provide a basis for a finding? The Respondent father argues that even if a past parenting issue such as alleged were found to be true, it cannot form the basis of a finding. He quotes in his Factum:

In determining whether the child is in need of protection, past incidents cannot be exclusively relied on as evidence of the possibility of future incidents where children were being cared for properly at the time of trial. S.W. v. Catholic Children’s Aid Society of Metropolitan Toronto at paras 11 and 12.

[82] The S.W. case is distinguishable. The single mother in that case had suffered from alcoholism, mental illness leading to suicide attempts, instability in her relationships and work, financial difficulties, and numerous moves. The mother recognized her problems and worked hard to stabilize her life and to deal with her addictions and mental health so that her present situation was not the same as her past. The trial judge relied on the past to find that the children were in need of protection.

[83] The prior dysfunctional life of the mother in S.W. was recognized by her and she worked to change her circumstances in a way that could be assessed. Did she engage in treatment? Was she compliant? Did she have a stable home? This type of change can clearly be evidenced and demonstrate that the prior circumstances had been abated.

[84] Sexually abusing behaviours in regard to children are often crimes which occur in private, outside of the public eye where drunkenness and instability are more clearly identified. If sexual abuse allegations in the past are founded, it is more difficult for a parent to prove that they have remedied that situation in the present and thus reduced the risks in the future.

[85] S.W. does not stand for the proposition that the past can never form the basis of findings. It does direct courts to look to the present to see if past issues remain a concern for the future.

[86] The past is not clear in this case and cannot be resolved by affidavit evidence which does not contain persuasive facts. As I stated earlier, the determination of whether the sexual abuse and exploitation of M.W. is real requires a full examination. Should it be found to be a proven ground of protection, the disposition stage would address the measures necessary to protect P.W. We are far from those determinations at this time.

[87] I find that the Respondent father has not provided facts that persuade me that there is no genuine issue requiring a trial. A trial is necessary to assess, on a balance of probabilities, whether the events described by M.W. occurred. In applying Hryniak, I am unable to determine this matter as I am unable to make the necessary findings of fact on the evidence before me.

Motion of the First Nation

[88] The First Nation has brought a motion to have the Application of Dilico dismissed or struck. The basis for the motion claimed by the First Nation is that the agency failed to provide “sufficient” disclosure and was in breach of the order of May 19, 2020 and failed to consult with the First Nation.

[89] The Application was issued on June 24, 2019 and served on the First Nation on July 17, 2019. The First Nation objects that the agency obtained a court order without their participation on June 25, 2019 and that there was no reason for not serving the First Nation in advance of the first court date.

[90] The order of June 25, 2019 does not compromise the interests of the First Nation. While dates were set for the argument of the temporary care hearing and the motion of the father for summary judgment, the remainder of the terms and conditions to which the mother and father were subjected to are on a “without prejudice, interim” basis. The mother was represented by counsel, and the father had counsel appearing as a friend. The service of a month later, while unexplained, need not have been prejudicial to the First Nation.

[91] I note that the period of time between the service of the application on the First Nation and their filing of an Answer on July 10, 2020 was close to one year. Family Law Rule 10 sets out that the Respondent has thirty days to serve and file an Answer. The First Nation failed to do so and were in default.

[92] The consequences of failing to file an Answer are found in Rule1(8.4):

a. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13)(service of order). b. The party is not entitled to participate in the case in any way. c. The court may deal with the case in the party’s absence. d. A date may be set for an uncontested trial of the case.

[93] As a result, Dilico was not under an obligation to provide any disclosure to the Respondent until the service of an Answer. The service of an Answer demonstrates the real interest of the party, shows that the party attorns to the jurisdiction, has a stated position and is prepared to work within the court structure. Until that time, the First Nation was in default and not entitled to disclosure. An Answer was not served until the same day as the motion to strike.

[94] Often a party will ask the court to note in an endorsement that a responding party is in default. This requires the court to review the circumstances of service and determine if the party has failed to reply within the thirty-day period. The party is already in default but it is “noted” so that any other judicial officer is aware of the status of the party.

[95] Another argument of the First Nation is that the agency failed to adequately consult with them. There is no evidence supporting the standard of consultation required involving an unresponsive party.

[96] It is troubling that there appears to have been little interaction between the Wabigoon Lake Ojibway Nation and the agency, especially as the First Nation suggests in the affidavit of Chief Pitchenese dated September 8, 2020 that the First Nation always made their interest in the matter clear.

[97] The Child Youth and Family Services Act views the participation of the First Nation as essential to decisions involving their children. Chief Pitchenese is correct that information is necessary to that participation. As set out above, however, the requirement to provide disclosure is incorporated within the formal participation regime set out in the Family Law Rules. While any lack of voluntary sharing of basic information is disappointing, it is not grounds on which I can dismiss the Application of the agency.

[98] As a result of these circumstances, the motion of the First Nation to strike is dismissed.

Conclusion

[99] Based on the above, the motions for summary judgment are dismissed.

[100] I have considered whether the summary judgment determination could be enhanced by the requirement for viva voce evidence from M.W. and L.W. As this would be a motion only, the court would be limited by having to determine the motion only and not the substantive child protection issues.

[101] In my estimation, the only real issue in this case is the resolution of the allegations of M.W. This is best accomplished by a hearing that addresses that issue. If there is no protection finding, P.W. can resume living with her parents without the involvement of the agency. If there is a finding, the court will set a hearing on disposition. This is more expedient than setting a trial on all matters.

[102] As a result of this determination, I direct that the matter shall proceed as follows:

a. The matter shall be set for a focused hearing. b. The hearing shall be for the purpose of determining the protection findings in this case. c. Both M.W. and L.W. shall testify. d. Materials filed on these motions can be considered at the hearing. e. M.W. shall be afforded the following if she wishes: i) Leave to adopt her videotaped statement; ii) A screen or CCTV for testifying; iii) A support person present. f. Other witnesses are to be approved by the court during a trial management conference. g. A statement of agreed facts will be entered into by the parties in regard to non-contentious facts. h. The Office of the Children’s Lawyer will determine if it intends to rely on the allegations made by P.W. to Ms. Conti. In the event that the OCL determines to put those statements forward, Ms. Conti shall not represent the child at the focused hearing. i. The hearing will require 5 days. The Applicant shall have two days. The Respondents shall have two days. One day will be available for argument. Further time determinations shall be discussed at the trial management conference. j. Cost submissions in writing served and filed within 10 days with responding submissions served and filed within 10 days after service. k. Matter is adjourned to February 23, 2021 at 10 a.m. to set a date.

Released: February 8, 2021 Signed: Justice D.J. MacKinnon