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: 2022 12 27 Court File No.: Orangeville 32/2020

Between:

THE CHILDREN’S AID SOCIETY OF THE COUNTY OF DUFFERIN Applicant,

— AND —

W. F. and B. D. Respondents

Before: Justice A.W.J. Sullivan

Heard on: December 19, 2022 Reasons for Judgment released on: December 27, 2022

Counsel: Ms. Kathleen O’Grady................................................... counsel for the applicant society Ms. W. F....................................................................................................... on her own behalf Mr. B. D......................................................................................................... on his own behalf Ms. C. Bellan....................................... counsel for the Office of the Children’s Lawyer, legal representative for the child S. R. W. D.

Endorsement

SULLIVAN J.:

[1] The Children’s Aid Society of the County of Dufferin (CASD) brought a motion pursuant to Rule 16 of the Family Law Rules seeking summary Judgment for the disposition of extended care with access for the child S. R. W. D., born […], 2013.

[2] In the motion, specific access with conditions to the parents is requested and argued as being in the child’s best interest.

[3] The motion is brought within a Status Review Application of the child being found in need of protection in the January 20, 2021 Order of Justice Pugsley.

[4] The Statutory findings regarding S. R. W. D. were also made in the above January 20, 2021 Order.

[5] At this stage the disposition needs to be decided.

[6] CASD argues that this may be accomplished via a Summary Judgment Motion as the facts when considered as a whole, establish that there are no issues that require a trial to resolve in whole or in part including any credibility issue that may be of concern to the court.

[7] The parents of the child, Ms. F. and Mr. D., oppose the motion. They state that there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure.

[8] It is important to note here that this Summary Judgment has been planned for since the May 11, 2022 Settlement Conference between the parties.

[9] Initially the motion date was set to be heard on September 6, 2022. On that date it was rescheduled to November 28, 2022.

[10] The parties therefore had contemplated this motion for some 5.5 months.

[11] CASD served the parents with its motion materials November 8, 2022.

[12] On November 28, 2022, when the motion was to proceed the parents had not filed any responding affidavits.

[13] Both parents have been self-represented for the past year. They had counsel that asked to be removed which was granted.

[14] From my reading of endorsements for 8 appearances over the past year and a bit each parent claims to have been seeking to retain lawyers but have not despite the passage of time and opportunity to do so.

[15] The child S. R. W. D. was assigned a Children’s Lawyer on August 25, 2021 and has been represented from that date.

[16] On November 28, 2022, I heard from the parents that they wish to serve and file responding affidavits to the CASD Summary Judgment motion.

[17] I granted an adjournment of this motion over to December 19, 2022, and set timelines for the parents to serve and file and the other parties to reply.

[18] This I did given the significant order requested by CASD, supported by the OCL for the child. In doing so I considered the direction found in the jurisprudence below to assist self-represented parents, considering their vulnerabilities as clients in CAS matters and the nature of a summary judgment proceeding:

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 Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, and Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA (Kawartha, paragraph 76).

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

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

[19] Given the above, the parents were given a further opportunity to serve and file responding affidavits until December 12, 2022. This I did considering the time that the child was in care and the lengthy litigation and notice the parents have had of this pending Summary Judgment proceeding and position of CASD supported by the OCL.

[20] On December 19, 2022, the motion date, each parent had not served and filed affidavits.

[21] Mr. D. did have an affidavit prepared and it was sworn on December 19, 2022. It was a brief document and was in response to one of the four affidavits filed by CASD.

[22] After providing CASD and the OCL an opportunity to review this affidavit, each did not oppose my accepting this affidavit into the motion record.

[23] Ms. F. did not have an affidavit prepared. She was permitted to make submissions in this motion as was Mr. D.

[24] I have read and relied on the following documents: Mr. D.’s affidavit of December 19, 2022, CASD Notice of Motion and four affidavits, Tabs 22 to 26 of the Continuing Record.

[25] I did receive as submissions a factum from the CASD and one from the OCL along with a brief of case law.

[26] Although not evidence, I did review the Plans of Care filed by the parents to the initial Protection Application and the CASD Plan of Care.

[27] The principle law in these motions that I relied on is as follows:

The Law

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

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

[3] Pursuant to subrule 16 (4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See: Children’s Aid Society of Toronto v. K.T. 2000 ONCJ 20578, 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

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

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

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

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

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

[8] 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.

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

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

[11] As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits (Kawartha, paragraph 76).

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

[13] The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (Kawartha, paragraph 3 of paragraph 80).

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

[28] I have considered that I should exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.

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

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

[31] I find that the evidentiary record is sufficiently comprehensive on all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a trial. Cross-examination of witnesses would add little if any value to the court’s analysis.

[32] Given the length of time the child S. R. W. D. has been in society care, now some 32 months, I find that the resolution of this matter by way of Summary Judgment Motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the Child and Youth Family Services Act (CYFSA).

[33] I am mindful of S. R. W. D.’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H. 2000 ONCJ 3158, [2000] O.J. No. 5853 (Ont. C.J.).

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

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

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

• As noted above this motion is brought within a Status Review. Based on my review of the evidence nothing has changed since the previous order. I also had to review as evidence in this motion the Statement of Agreed Facts from the Application when the protection findings were made.
• CASD evidence shows that although Ms. F. and Mr. D. have said they will either stop or reduce their use of alcohol this has not happened.
• The child S. R. W. D. was apprehended from Ms. F.’s care on May 6, 2020. At the time Ms. F. was struggling with substance use and at the time her daughter’s medical and educational needs were neglected. S. R. W. D. was missing school and at times left unsupervised.
• At today’s hearing Ms. F. indicated on the record that she is supporting Mr. D.’s plan for S. R. W. D. She advised the court that she does not have adequate housing and believes that Mr. D.’s home, that he recently purchased with his sister in Georgetown, is a suitable home for S. R. W. D. She supports Mr. D.’s plan.
• In the CASD affidavits, Ms. F. had notified the court and CASD for about a year now that she was not ready to re-parent her daughter and that she supports Mr. D. in this regard. The CASD family service worker continued to work with both parents offering community-based services to improve their parenting skills and as well to assess the parents' ability to address their use of alcohol.
• CASD assessed Mr. D.’s home and acknowledges that it is appropriate as a shelter. The ongoing concern, however, is Mr. D.’s continued use of alcohol and his lack of insight into this as something that would affect his parenting.
• There is evidence identified to be statements from members of Mr. D.’s family that indicate he continues through to this day to struggle with alcohol use and poor health at times. I recognize this as hearsay evidence and have accepted this in relation to other evidence and as such have not relied on this solely in my findings.
• At the time S. R. W. D. was brought into care Mr. D. was not living with Ms. F. and his access with his daughter was inconsistent.
• Each parent filed an Answer and Plan to the CASD initial Protection Application in July 2020. I have reviewed these to better understand their historical positions in this file.
• Today I have also evaluated the efforts of CASD in assisting the parents to mitigate and reduce the protection concerns over the past 2 plus years and find that CASD has fulfilled its responsibility under the CYFSA in this regard and CASD has while doing so continuously evaluated the strengths and weaknesses of the parenting ability of Ms. F. and Mr. D.
• The parents were asked to participate in rehabilitation programs which they have not completed. Ms. F. did report to CASD that she completed an online rehab program and had a certificate for this work. On today’s date she had not filed this.
• Mr. D. who was being looked at as the main plan for S. R. W. D. between the parents continued to rely on alcohol, did not participate in an ongoing rehab program, argued at times that he was able to moderately drink and care for his daughter.
• Mr. D. at one point in 2022 had agreed to participate in an alcohol-monitoring program (ankle bracelet) but eventually refused to do so stating this intruded on his person and employment. This was a poor decision by Mr. D. and one that I find affects his credibility that he is no longer using alcohol daily.
• In addition, there exists evidence that Mr. D. relapsed during his interaction with CASD. He was charged with a DUI and was drinking during one access visit at his home while a worker was in attendance. Mr. D. argued the DUI charge was withdrawn and that he could parent and moderately enjoy a drink from time to time.
• Neither parent from the evidence before me has provided evidence of any insight into their use of alcohol or other substances historically and presently and how this has and would affect their daughter’s well-being and their ability to care for her needs consistently without the need to be supervised in this regard.
• Each parent in their submission indicated they had completed rehab programs in the past. Mr. D. provided a name of one in Kingston, Ontario, Harbor Light, that he completed but did not provide this detail in his affidavit nor any certificate of completion in his affidavit which he stated he had in his papers at home.
• CASD workers also asked the parents to participate and complete current parenting programs. This was in particular requested of Mr. D. as the main parent planning for his daughter. Mr. D. was unable to participate in this service offered nor any other of his choosing.
• CASD prepared and filed a very detailed affidavit from the Family Service worker that worked with the parents. It provides exhaustive details of CASD efforts to engage the parents in timely services to meet their daughter's needs and address the issue of the parents’ drinking.
• I find this evidence, that has gone undisputed, shows the lack of concerted effort on the parents' behalf to change their behaviour. The say they wish to and will but never do so and months are consumed with little progress. All the while their daughter settles into a pattern of care that meets her developmental needs and that is consistent for her development including offering her time with her parents in a safe manner.
• As argued by the CASD there is no doubt the parents love S. R. W. D. and that she loves them.
• It is often said, however, when it comes to the needs of a child, love is but one ingredient to sufficiently parent a child. The law does not ask of Ms. F. and Mr. D. exemplary parenting. It does, however, ask for honest behaviour to address shortcomings and recognize help in parenting so that S. R. W. D.’s needs are consistently met.
• The evidence filed I find shows that Ms. F. and Mr. D. have not been able to meet this standard such that not much has changed, and the initial protection concerns still exist today. That risk of harm if S. R. W. D. were placed with either of them exists today. I have, as noted above, also considered as part of the evidence in this motion the SAF filed in the Application in relation to the finding in need of protection for S. R. W. D.
• I find the CASD has met the test in this Summary Judgment motion and there is no issue requiring a trial for this court to decide this matter. The process has been fair to all and the litigation timelines long overdue. The facts are clear on the record such that I can decide this matter. No credibility issue need to be resolved.
• See - where the conditions of likelihood of serious risk of harm to the children were still present, no genuine issue for trial - Children’s Aid Society of Toronto v. Persida A. 2003 ONCJ 68555, 2003 O.J. No. 1432 (OCJ) and the law referred to above.
• The Order of Extended Care of S. R. W. D. addresses her best interest needs as set out in Section 74 (2) of the CYFSA in particular the continuity of care and stability and the effect of disruption and risk to her if ordered otherwise. The order for access addresses the need for S. R. W. D. to have contact with her family in a positive manner while maintaining a secure place in a family setting that addresses her needs now and into the future.
• As directed in the CYFSA I have been able to obtain the child S. R. W. D.’s views and preferences in relation to the orders requested. S. R. W. D. has been consistent in expressing her wish to remain with her current caregivers while at the same time maintaining some access with each parent. This evidence is found in the CASD affidavits filed. The OCL indicated this evidence reflects the wishes of S. R. W. D.
• This is the plan that I have reviewed put forward in the Plan of Care filed by the CASD in this Status Review.
• The evidence I accept is that access is important to S. R. W. D. She loves her parents and enjoys visits and looks forward to times she spends with them. This is important contact with family that provides her with a connection to her culture and history with those she cares for.
• An order of no access would not meet S. R. W. D.’s interests as the evidence shows that she benefits from healthy child focused times and interaction with her parents. It assists her in her overall development while maintaining a stable home at her current foster placement. See sections 93, 101, 102, 104 of the CYFSA.
• The parents argued that S. R. W. D. has not told them that she wishes to remain with her current caregivers. This I find is not unusual as she loves them and does not want to hurt their feelings. This I explained briefly to the parents when I informed them at the end of the motion of my finding that the Summary Judgment was made out by the CASD and the main reasons why.
• This I did out of respect for the parents to hear this directly from me, although I indicated that they would receive this decision in short order outlining my reasoning in relation to the law as I have outlined above that support the order as follows:

Order Final

1. The child, S. R. W. D., female, born […], 2013, is placed in the Extended Care of the Children’s Aid Society of the County of Dufferin.
2. S. R. W. D., (holder) shall have access to her parents, Ms. W. F. (Recipient) and Mr. B. D. (Recipient), as agreed and arranged between the Society and the parents, taking into considerations the wishes of the child, to include at least six (6) in-person visits each year in the community for each parent. Discretion regarding the dates, times, locations, and level of supervision of the access shall remain with the Society and the following conditions shall apply to each visit: a) Ms. F. and/or Mr. D. shall confirm the day before their attendance of each visit. b) Ms. F. and/or Mr. D. shall attend and be fully sober when attending each visit, having refrained from the use of illicit drugs, and refrained from the use of any alcohol or legal mind-altering drugs for a period of at least 24 hours in advance of the visit; and, c) Ms. F. and/or Mr. D. shall not smoke or take any mind-altering drugs and/or shall not drink alcohol or take illicit drugs during any access visit.

Released: December 27, 2022 Signed: Justice A.W.J. Sullivan