WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
COURT FILE NO.: C40/20 DATE: 20220110 ONTARIO COURT OF JUSTICE
B E T W E E N:
THE CHILDREN’S AID SOCIETY OF BRANT M. PILCH, COUNSEL FOR THE APPLICANT APPLICANT
- and -
K. A. W. E. PORTER, FOR THE RESPONDENT K.A.W. RESPONDENT
J. K. K. RESPONDENT D. MALTBY, FOR THE RESPONDENT J.K.K.
HEARD: DECEMBER 14, 2021
JUDGMENT ON MOTION FOR SUMMARY JUDGMENT
[1] This is my judgment on the Motion for Summary Judgment brought by the Applicant Society, seeking a protection finding and an order of disposition of extended care. The notice of motion signed October 15, 2021, also seeks an order that there be no access to either parent. At the hearing of this matter on December 14, 2021, the Society abandoned its request for ‘no access’ orders and sought an order that the parents have access in the discretion of the Society as to frequency, duration and arrangements for supervision, with a minimum of three visits per year.
[2] The motion did not address statutory findings, which do not appear to have been made. There is evidence of these particulars before the court, which is not disputed.
[3] The Respondent parents did not file any materials in response to the motion. They did appear however, and counsel argued that the Society materials are evidentially deficient and not trial-worthy. Accordingly, they say the Society has not discharged its onus to show there is no genuine issue requiring trial.
[4] The only affidavit filed together with the notice of motion for summary judgment is that of Carrie Davidson, sworn October 15, 2021. Ms. Davidson became the assigned family service worker on August 9, 2021. The first meeting she had with the family occurred on September 28, 2021. This proceeding has been before the court since February 7, 2020. It is apparent from this, that Ms. Davidson is only able to provide evidence with respect to a very limited amount of time that the Society has been involved with the family.
[5] The Notice of Motion indicates that the Society is also relying upon the affidavit of Josiane Heroux, sworn April 9, 2021. This affidavit was originally filed in support of the amended, amended Child Protection Application. Clearly, it was prepared for a different purpose and not for a motion for summary judgment. Different evidentiary standards would have applied to its admission at the time of its submission. To deal with this situation, Society counsel Ms. Pilch indicated that the Society was only relying upon the aspects of Ms. Heroux’s affidavit that do not constitute hearsay.
[6] This approach to an important motion is problematic. Rule 16(4) of the Family Law Rules sets out the evidence required on a motion for summary judgment. It reads as follows:
“The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.”
[7] It is clear from the subrule that the party moving for summary judgment must tender affidavit or other evidence that is specifically purposed to the motion. Neither affidavit relied upon by the Applicant was designed to set out, “specific facts showing that there is no genuine issue for trial”.
[8] The first eighteen paragraphs of Ms. Heroux’s affidavit largely constitute inadmissible hearsay. The affidavit then goes on to provide a chronological account of various dealings Ms. Heroux had with the parents. There is no clear identification of facts that demonstrate no genuine issue for trial.
[9] The one affidavit prepared specifically for the purpose of this motion and filed with the motion, that of Ms. Davidson, does not even come close to meeting the requirement set out in the Rule. That affidavit is 22 paragraphs in length. It is basically a detailed regurgitation of exactly two meetings with the parents and nothing more.
[10] There are good policy reasons for requiring that the moving party on a motion for summary judgment to serve and file a complete record of admissible evidence with the motion. Responding parties are put at a disadvantage when they are referred to affidavits that contain improper evidence that does not meet the standard for a motion of this nature. Respondents are expected to put their, “best foot forward” in responding to the motion. It is virtually impossible to do so where in a situation where the Applicant is proposing on the face of its materials, to advance inadmissible evidence.
[11] Motions for summary judgment, especially ones seeking extended care without access, are important proceedings for Respondents and children. It is not unreasonable to insist that a proper evidentiary record, prepared specifically for the purpose, be before the court.
[12] As the Supreme Court of Canada noted in New Brunswick (Minister of Health and Community Services) v. G. (J.),
“The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s is as well.”
[13] The Applicant’s rather cavalier approach to its evidence in this matter is not congruent to the significance of the interests at stake.
[14] In Kawartha and Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the Ontario Court of Appeal underlined that fact that parents in child protection proceedings are, “typically the most disadvantaged and vulnerable within the family law system.” Speaking for the full court, Benotto, JA went on to comment on the significant imbalance between parents and Children’s Aid Societies, noting that parents, even when represented by counsel, are, “simply overpowered”. Fairness in the child protection context demands recognition of these dynamics.
[15] The Society has a duty to act fairly towards parents. It is difficult to see how such slipshod preparation of evidence to address such important issues, is consistent with that duty.
[16] As a litigant, the Society also has a duty pursuant to subrule 2(4) of the Family Law Rules to assist to promote the primary objective of the Family Law Rules -that is to deal with cases justly. Dealing with cases justly includes:
a) Ensuring the procedure is fair to all parties; b) Saving expense and time; c) Dealing with the case in ways that are appropriate to importance and complexity; and d) Giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[17] The Society has not prepared its case in a manner consistent with that duty.
[18] In filing inadequate evidence and indicating an intention in the notice of motion to rely on an affidavit that contains deficient and indeed inadmissible evidence, the Society invites unfairness to seep into the process. It is not enough for counsel to say at the commencement of the hearing that the Society is not relying on the inadmissible hearsay evidence. The notice of motion specifically indicates an intention to rely on that evidence. That evidence should not even be before the court on the motion. It certainly does not further the objective of saving expense and time and giving appropriate court resources to the case to set up a situation where the parties and the court must comb the evidence to determine what is admissible for the specific hearing and what is not.
[19] Neither was the process facilitated by the Applicant’s (and the Respondents’) failure to file Facta despite an order requiring filing.
[20] Mindful of these caveats, I turn to the evidence.
[21] The Society says that there are three main protection concerns that preclude the child being returned to the parents and that remain unaddressed. These are a) domestic violence, b) mother’s drug use and c) transience and unstable housing more generally.
[22] The first eighteen paragraphs of Ms. Heroux’s affidavit that address substantive issues are entirely hearsay. They do not even cite sources of the information. Although Ms. Heroux deposes that they are true, “to the best of (her) knowledge, information, and belief” it is difficult to see that any effort has been made to confirm the assertions. They would seem to be adopted wholly from notes of other unnamed Society employees. I have disregarded these assertions in totality.
[23] Although Ms. Heroux says she was assigned the file on August 26, 2019, the first evidence set out that is clearly based on Ms. Heroux’s personal knowledge relates to a meeting on June 30, 2020, some ten months after she assumed the file.
[24] The Protection Application for the subject child, J.J.E.K. was first before the court on February 7, 2020. It is clear that the child was removed from parental care as of May 27th or 28th, 2020. Although Ms. Heroux would seem to have been the assigned worker at the time, she provides no evidence about the circumstances of the removal based on her personal knowledge.
[25] In her first meeting with the parents, Ms. Heroux raised her, “worry” about domestic violence. However no admissible evidence as to the basis of this “worry” is set out.
[26] Ms. Heroux then recounts a discussion between herself and the mother on July 10, 2020, wherein Ms. Heroux expresses concern about bruises that she observed on the mother’s face on May 28, 2020. The mother agrees that she should, “focus on herself and getting J.J.E.K. back to her care”. Unfortunately, Ms. Heroux does not describe the bruises, and does not connect it to the vaguely described “domestic dispute” she says occurred on May 27, 2020. This evidence is simply neither specific enough nor clear enough to conclude that there is domestic abuse between the parents.
[27] Ms. Heroux goes on later, at paragraph 24(a), to say that the Society would not approve a joint plan for the parents to care for J. due to the father’s, “abusive behaviour toward Ms. W.” But this does not constitute evidence upon which the court can conclude there has been domestic violence. In this context, it should also be noted that both parents specifically denied domestic violence.
[28] Turning to the evidence on the issue of transience/unstable housing: It is clear that as of July 31, 2020 the parents were staying in the Days Inn hotel, while the mother, “had gone back to her home” apparently referring to (an address) in Brantford. By August 20, 2020, the father was staying at the Four Stars motel in Brantford, while the mother, “had gone back to her home” apparently referring to (an address) in Brantford. There is also an offhand comment made by the father that the mother was paying for, “all the hotels where they stay”. The number of hotels and the length of respective stay, however is not specifically set out in the evidence.
[29] By October 2020, the parents had moved into a friend’s apartment on Colborne Street in Brantford. During a meeting that day, the parents were said to have asserted that the father was, “still trespassing at Ms. W.’s apartment on Pearl Street”. It is difficult to understand that statement given immediately before there is an assertion that the parents were living with their friend on Colborne Street. At paragraph 35, Ms. Heroux indicates that the father was still living at the Colborne Street address by February 5, 2021.
[30] There is no evidence whatsoever about the parents’ living arrangements from late March 2021 until Ms. Davidson picks up the story in late September 2021.
[31] The only reference to the parents’ living situation in Ms. Davidson’s affidavit is made at paragraph 5. It reads, “I advised that I had attempted to contact them at the motel they were staying in, but was advised that they were no longer staying there. J.K. said he and K.W. are staying at his daughter and her boyfriend’s place located at (an address) K.W. said that she still has her unit at (an address) but that she is not staying there.”
[32] When Ms. Davidson next met with the parents, she met at the office on October 8, 2021. There is no indication that their living situation was even addressed.
[33] There is no evidence that the Society made any effort whatsoever to investigate whether the parents’ current living situation would be suitable for the child or indeed to ascertain whether their living situation is now stable.
[34] Taken at its highest, the evidence would suggest that the parents have experienced periods of transiency. But it is not sufficient to establish that the parents have recently experienced transiency or that their current living situation is unsuitable and/or unstable.
[35] Then there is the issue of mother’s drug use. The admissible evidence capable of demonstrating that this is a past or current protection concern can be summarized as follows:
a) On December 22, 2020 the mother advised Ms. Heroux that she would, “like to be on methadone again, or on suboxone”. b) On February 5, 2021, the father advised Ms. Heroux that mother was, “using drugs actively” and had been doing so since the “apprehension” of J.J.E.K. The father went on to express the concern that mother was not coping well, and this might lead to further (my emphasis) drug use on her part. c) On the same day the father said that he could be the main caregiver, “if Ms. W. was to remain addicted to drugs”. d) On February 18, 2021 mother advised that she still had a plan to get suboxone prescribed to her. e) On March 23, 2021, the parents, “did not dispute that Ms. W. is struggling with an addiction…” f) On September 28, 2021 the mother advised, “that she had used about a month ago”. g) On October 13, 2021 the father advised that the mother seemed, “not right” and he suspected that she may be using. h) On the same day, the mother later acknowledged to Ms. Davidson that she had last used drugs one month prior. The drugs used were opiates and amphetamines and they were smoked.
[36] The protection findings sought by the Society are pursuant to section 74(2)(bi) and (bii) of the CYFSA. That is, the Society alleges that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by that person’s a) failure to adequately care for, provide for, supervise or protect the child or b) pattern of neglect in caring for, providing for, supervising or protecting the child.
[37] It is impossible to say on this evidence that the Society has established that transience/unstable housing have put this child at this risk. The child was in care at the time of the demonstrated transience. It is also a matter of indisputable fact that parents often suffer financial hardship after a child is removed from their care. Parents should not be penalized for poverty.
[38] The bald allegation of domestic violence is also not made out on this evidence and thus cannot constitute a basis to find the child in need of protection. The question then becomes: does the evidence of mother’s drug use demonstrate that there is no genuine issue requiring trial on the issue of the protection findings?
[39] Here, it is notable that neither parent has filed evidence to dispute the Society’s evidence. This is particularly important in relation to father’s statement that the mother had been using drugs since the child was removed from parental care. The mother has acknowledged that her drugs of choice are opiates and amphetamines. These are serious drugs that are closely regulated. There is no evidence that the mother has a prescription for these drugs. The logical inference then is that these are street drugs and the mother is thus involved in the drug culture.
[40] The subject child is three and one half years of age. He is extremely vulnerable.
[41] The parents have presented a joint plan to care for the child. There is an obvious risk to a child’s safety and well being if one of the parents in the home is using illegal drugs. This is especially so where the other, allegedly non-using parent has not presented any plan for how to mitigate the risk and protect the child from the drug using parent.
[42] I accordingly find that the Society has met its onus to demonstrate that there is no genuine issue requiring trial in relation to a protection finding under section 74(2)(b)(i).
[43] There is no admissible evidence that the parents have a pattern of failing to meet the child’s needs either when the child was in their care or during visits. I accordingly decline to make a finding under section 74(2)(b)(ii).
[44] This brings me to the issue of disposition. I start with the premise that an order for extended care is the most profound order a family court can make. It requires comprehensive and sound evidence. As noted by the Court of Appeal in Kawartha and Haliburton Children’s Aid Society v. M.W., quoting Sherr, J. of the Ontario Court of Justice, in “Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 646, at para 25:
“My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make a determination.”
[45] What is manifestly lacking here is cogent, reliable and indeed admissible evidence that would allow the court to meaningfully weigh the criteria under section 74(3) and thus determine the best interests of this child on both the issues of placement and access. This is most unfortunate, as the child’s current placement is not a long term option. This child is deserving of stable placement and a secure place as a member of a family. He should not be subject to further delay. But neither should such an important adjudication be premised on inadequate evidence.
[46] Order to go –
Final order to go making the following statutory findings: a) The child’s name is J.J.E.K. b) His date of birth is June XX, 20XX and he is currently 3 years of age. c) The child is not First Nations, Inuit or Metis. d) There is no Band, First Nation Inuit or Metis community. e) The child was brought to a place of safety from (an address in) Brantford, Ontario. f) The full name and dates of birth of the child’s parents are as follows: Mother: K.A.W., born November XX, 19XX. Father: J.E.K., born July XX, 19XX.
Final order finding the child in need of protection pursuant to section 74(2)(b)(i) of the Child and Family Services Act.
The Society’s motion for summary judgment as it relates to disposition including both placement and access shall be dismissed.
This matter is otherwise adjourned to January 27, 2022 at 11.30 a.m. for trial management conference on issues of placement and access.
Parties to serve and file Briefs and Confirmations in accordance with the Family Law Rules.
Justice K. A. Baker Released: January 10, 2022
