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: 2024 05 27 COURT FILE No.: Sudbury C228-20

BETWEEN:

The Children’s Aid Society of the Districts of Sudbury and Manitoulin Applicant,

— AND —

D.C., D.G., N.L., M.C., and R.L. Respondents

Before: Justice G. Jenner

Heard on: April 26, 2024 Reasons for Judgment released on: May 27, 2024

Counsel: Renée Costantini............................................................ counsel for the applicant society George Florentis......................................................... counsel for the respondents, D.C. James Weppler, counsel for the Office of the Children’s Lawyer, legal representative for the children No appearance on behalf of D.G., previously noted in default No appearance on behalf of N.L., deceased No appearance on behalf of M.C, previously noted in default No appearance on behalf of R.L., previously noted in default

JENNER J.:

REASONS FOR DECISION

Part One: Introduction

[1] The applicant society brought a motion for summary judgment as to whether the children subject to this proceeding are in need of protection (the “protection finding”). The children are A.A. (17) and B.B. (13). Both are represented by counsel on behalf of the Office of the Children’s Lawyer (“OCL”). Their mother, D.C., is the only respondent who participated in the motion. D.G. is the father of A.A. and has previously been noted in default. N.L. was the father of B.B. but is deceased. M.C., the children’s maternal aunt, and R.L., her spouse, have been caregivers to the children during a previous period in this litigation but have been noted in default.

[2] The society argues that the children are in need of protection because there is a risk that they are likely to suffer physical harm, sexual abuse and exploitation, and emotional harm resulting from their mother’s failure to protect them. Specifically, the society argues the respondent mother has engaged in a pattern of permitting the children to be exposed to toxic and abusive male adults. Most particularly, the respondent mother has allowed Y.B. to be a presence in her home and the children’s lives, despite his numerous physical and verbal attacks on her, often witnessed by the children, and despite his making inappropriate and sexually explicit comments in front of A.A. She has not, the society contends, taken the necessary and appropriate steps to involve the police and engage with service providers to address the danger.

[3] The OCL, on behalf of the children, agrees that the children are in need of protection. The respondent mother opposes the society’s request and seeks a return of the children to her care.

[4] This case presents with the following additional features.

[5] First, a significant portion of the evidence filed by the society was presumptively inadmissible hearsay. The respondent mother opposed its admission. The society declined a voir dire to consider the potential admissibility of the impugned material under the principled approach to hearsay. The OCL remained silent on the hearsay issues when they were identified at the outset and did not request a voir dire. During submissions, however, the OCL sought to rely on portions of the society’s hearsay evidence. The court reminded counsel that those materials were not admitted into evidence.

[6] Second, despite the application being initiated on December 3, 2020, no hearing to determine the protection finding was scheduled until April 25, 2024. This raised questions as to the material time period for the protection finding, and to what extent the court should consider more recent evidence which may support a conclusion that potential risks at the outset of the litigation have been mitigated or resolved. Indeed, the society acknowledged at the outset of the motion that their protection concerns are no longer extant, and indicated that they expected to pursue a motion to withdraw the application in future. The protection finding hearing was seen as a necessary step, however, because the OCL was seeking that an assessment of the children be ordered, which could not occur while the protection finding remained pending.

[7] While the evidentiary issues related to hearsay were decided conclusively at the outset of the hearing, these reasons will address them. The reasons will also explain my findings that (i) there is no genuine issue requiring a trial with respect to the protection finding, and (ii) based on the record before me, the children are not in need of protection.

Part Two: Procedural History

[8] This child protection application was issued on December 3, 2020. The matter was first in court on December 4, 2020. The court made orders identifying the children, requesting the involvement of the OCL, and temporarily placing the children in the care and custody of their maternal aunt, M.C., and her partner, R.L. Access by the respondent parents was to be supervised by the society at its discretion. There was a clause stipulating that Y.B. was to have no access to the children.

[9] The OCL began to participate at the next appearance on January 5, 2021. A settlement conference was held on March 25, 2021. The respondent mother had not yet filed an answer but did attend and was represented by counsel. She ultimately filed her answer on June 8, 2021. The respondent father, D.G., did not attend any court appearances, did not file an answer, and was noted in default on August 18, 2021.

[10] On December 15, 2021, the society discovered that the temporary caregiver R.L. had been accused and charged with incest, sexual assault, and anal penetration against his 8-year-old daughter in 1990. The society further learned that he had pleaded guilty to sexual interference and was on probation for a term of three years, with conditions that included not having any contact with his daughter or any female under the age of 14 except in the presence of another adult. [1]

[11] As a result, the children were temporarily placed in society care by court order dated December 17, 2021. The access conditions remained the same, except that a provision was added for the maternal aunt, M.C., to have access in accordance with the children’s wishes. That order remains in effect. The society also amended its application at that time.

[12] The matter was then adjourned from time to time as the society and the respondent mother worked to increase her access to the children and to monitor the situation. None of the respondent father D.G., M.C, nor R.L. responded to the amended application, and all were noted in default on August 17, 2022.

[13] Following a settlement conference on September 19, 2023, it was determined that the application was unlikely to resolve, and the matter was adjourned to February 23, 2024 for the OCL’s motion to obtain an assessment of the children. The matter was also posted to November 14, 2023 to canvass trial dates. On that date, the issue of the protection finding arose. The respondent mother, through counsel, advised she was not consenting to a protection finding. It was determined that the protection finding would need to be argued before the OCL’s motion for an assessment. The protection finding hearing was adjourned to the same date as the OCL motion.

[14] On February 23, 2024, the motions were rescheduled on consent to April 26, 2024. The society pursued the protection finding in the form of a summary judgment motion. The court heard argument on that motion only and reserved its decision. These reasons reflect the court’s decision on the society’s summary judgment motion.

Part Three: Issues

[15] I have divided the issues as follows:

(1) The hearsay evidence. (2) What time period is material for the protection finding? (3) Is there a genuine issue requiring a trial as to whether the children are in need of protection? (4) Are the children in need of protection pursuant to s. 74(2)(b)(i)-(ii), (d), or (h)?

Part Four: The Evidence

[16] On this motion, the society filed three affidavits. The first belonging to Megan Fournier, Child Protection Worker, dated December 3, 2020; the second belonging to Natalie Forget, Child Protection Worker, dated December 17, 2021; and the third belonging to Crystal Voz Chezzi, Child Protection Worker, dated December 3, 2020.

[17] The respondent mother filed her own affidavit, dated February 16, 2024.

[18] The OCL did not file any evidence on the motion.

4.1 The presumptively inadmissible evidence

[19] A significant majority of the contents of the affidavits filed by the society was hearsay. While I will not detail every instance, the broad categories of hearsay included:

i. information provided to the affiants by the Greater Sudbury Police Service (“GSPS”); ii. information provided to the affiants by the maternal aunt, the respondent M.C.; iii. information relayed to the affiants from another society employee; iv. information provided to the affiants from third party civilian witnesses; and v. information provided to the affiants from the children subject to the proceeding.

[20] No notices were filed by any party with respect to statutory exceptions to the rule against hearsay. No party sought to have the evidence admitted under a traditional hearsay exception or under the principled approach to the admissibility of hearsay. All participating parties were represented by experienced counsel.

4.2 The balance of the evidence

[21] With respect to the evidence of Ms. Fournier, when the inadmissible hearsay is excised, the following remains:

(i) On March 25, 2020, Ms. Fournier attended the respondent mother’s home to meet with the family. At this meeting, there was a discussion of the child A.A. being given a phone by Y.B. The source of that information is undisclosed; however, the respondent mother effectively acknowledged the gift when she shared that, as a result, she had blocked Y.B. and would not allow him into the home (para. 21). (ii) On June 6, 2020, Ms. Fournier attended the respondent mother’s home unannounced and met with the family. The respondent mother told her that Y.B. does not come around anymore but admitted that she talks to him from time to time. When confronted afterwards about a disclosure that the child B.B. had made about Y.B. being rude to his mother, and arguing with her, the respondent mother did not deny it, and acknowledged that Y.B.’s words were inappropriate. The respondent mother advised that she would tell Y.B. that he cannot come around. During a home visit on June 9, 2020, the respondent mother indicated she had not yet asked Y.B. to stop coming by (paras. 24-27). (iii) On July 13, 2020, Ms. Fournier attended the respondent mother’s home unannounced. She knocked several times and heard movement in the home, but no one answered. She telephoned the respondent mother several times but received no answer. She also attended Y.B.’s home but there was no answer. She attended the respondent mother’s address the following day and again on July 15, 2020, but there was no answer (paras. 29-30). (iv) At a scheduled visit on July 17, 2020, the respondent mother advised Ms. Fournier that she did not want to be with Y.B. and had informed him if this, but that he would not stop talking with her and he wanted a relationship. When advised of such, he would make threats or “freak out”. She explained that during a recent incident he was trying to get into the house and was banging on doors and windows. She eventually let him in and when she did, he told her that his next move would have been to slash her tires. He entered the home and a verbal argument occurred which escalated to him slapping her and her slapping him. B.B. witnessed the violence. A.A. heard the argument. For narrative purposes, it is important to note that this incident generally lines up with a call that D.C. made to police on July 13, 2020. The respondent mother further indicated that Y.B. calls her names and treats her poorly in front of the children. Ms. Fournier called the communications department at the GSPS on July 24, 2020 to report the additional information relating to the incident of July 13, 2020. The communication department would not take the information. The reason provided was that it was an open investigation. She was transferred to the officer that dealt with the matter on July 13, 2020, Sgt. Charbonneau, and left a voicemail (paras. 34-35). (v) On July 27, 2020, Ms. Fournier attended the family’s home for a scheduled visit. The respondent mother acknowledged historical use of Percocet pills “years ago”. She also expressed being fearful of Y.B. Ms. Fournier suggested calling police. They placed a call together, but no officer was available. Police advised they would send someone soon. Ms. Fournier encouraged the respondent mother to report Y.B.’s behaviour (paras. 37-38). (vi) On September 11, 2020, Ms. Fournier attended the respondent mother’s home jointly with Cst. Sajatovic of the GSPS. The respondent mother expressed a desire to provide a statement, as she wanted Y.B. out of her life. She repeated that she was fearful of him. She provided details about his recent behaviour, including him banging on her door, threatening her, entering her home without permission, harassing her, and verbally abusing her. Cst. Sajatovic informed her that without concrete proof it would be difficult to charge Y.B. The respondent mother provided the officer with her phone, which included hundreds of missed calls and texts from Y.B. The officer indicated he would consult with his supervisor regarding charges of harassment but indicated that because she had responded to the text messages it might be difficult to charge. [2] The officer indicated that he would be speaking with Y.B. and advising him not to attend the respondent mother’s home. The respondent mother advised that Y.B. had been attending her home daily. He would mostly remain outside, but he had entered her home. He would knock and yell until she opens the door. She advised that he has spent the night on one occasion since Ms. Fournier’s last visit, but that the children were not present (para. 40). (vii) On November 10, 2020, Ms. Fournier attended the home for a scheduled visit. The respondent mother reported that Y.B. is not in her home as much, but often comes over to fix things every second day or so. They will spend time in the backyard but occasionally he comes in the house. He brought B.B. out for Halloween (para. 44). (viii) On an unspecified date following November 30, 2020, Ms. Fournier and her colleague Natalie Forget attended the respondent mother’s home unannounced. The respondent mother advised that Y.B. has been coming around regularly but has not been causing any issues. She advised he was staying with a friend a few doors down. She has started letting him in whenever he asks to prevent him from getting upset. She was advised that the children were being removed and brought to a placed of safety. The respondent mother complained that it was not right, and that Y.B. was the only person she had for support (para. 49).

[22] With respect to the evidence of Ms. Forget, when the inadmissible hearsay is excised, the following remains:

(i) On December 4, 2020, when Ms. Forget was picking up the respondent mother for an access visit, she was not ready and caused a 30-minute delay. En route, the respondent mother advised that Y.B. continued to attend her home. She acknowledged that he does not treat her or the kids well, but she does not feel comfortable calling the police. She was urged to contact violence against women services (para. 12). (ii) On December 10, 2020, the respondent mother advised Ms. Forget that Y.B. was present in her home more often now that the children were not there. He threw and broke things when he read the society’s court papers. He had been yelling and screaming at her, telling her “you will only get rid of me if you kill me” (para. 13). (iii) On December 16, 2020, Ms. Forget made a referral to the Centre Victoria pour Femmes with the respondent mother’s consent (para. 16). (iv) On December 17, 2020, the respondent mother advised Ms. Forget that Y.B. continued to attend her home often and said that she missed her children (para. 17). (v) On December 29, 2020, the respondent mother was again late for an access visit. The respondent mother shared that the children had never been to see a dentist. She also indicated she had not yet heard back from the Centre Victoria pour Femmes (paras. 19, 21). (vi) During a home visit on January 14, 2021, the respondent mother expressed understanding of the society’s position that Y.B. posed a risk to the children, and expressed a willingness to do anything because she wanted her children home. She advised she had not been in touch with the Centre Victoria pour Femmes since the initial call. Ms. Forget and the respondent mother discussed applying for a restraining order, but the respondent mother expressed that she was not confident she would be able to abide by such an order (para. 22). [3] (vii) During an access visit on January 15, 2021, Ms. Forget noted that the respondent mother did not make any efforts to engage with her children (para. 23). (viii) During a meeting on February 24, 2021, the respondent mother acknowledged to Ms. Forget that her relationship with her daughter, DC, was strained (para. 27). (ix) On December 8, 2021, Ms. Forget questioned the respondent mother about jittery behaviour and scabs on her arms, inquiring about possible drug use. The respondent mother denied drug use and indicated that the scabbing was caused by dry skin. She maintained that her last use of Percocet was approximately 2-3 years earlier (para. 38).

[23] The affidavit also speaks in a general sense to the respondent mother being disengaged during access visits, smoking cigarettes in the home, and not spending meaningful time with the children. This information is not sourced, however, and it is unclear whether these observations were Ms. Forget’s. Indeed, they appear to possibly be an amalgam of observations of different society employees (see paras. 39-41). In any event, I do not understand the Society to be advancing these observations as independent grounds for a protection finding.

[24] With respect to the evidence of Ms. Voz Chezzi, when the inadmissible hearsay is excised, the following remains:

(i) In April 2022, the society had a discussion with the respondent mother regarding her lack of involvement with services and her unwillingness to recognize the protection concerns which were preventing consideration of returning the children. She began to meet regularly with her clinician from Centre Victoria Pour Femmes. She ended her relationship with Y.B. and has been meeting with her clinician regularly to address issues of healthy relationships, healthy family relationships, communication, trauma, and grieving. Since April 2022, she has made progress in addressing the child protection concerns (paras. 10-11).

[25] The salient points from the respondent mother’s evidence are as follows:

(i) She has not been in a relationship with Y.B. for approximately two years. (ii) She understands that Y.B. made inappropriate comments to A.A., and that continuing the relationship with him would not be positive for the family. (iii) She has not seen Y.B. walk past her residence for approximately two months, and when he has walked past, he has not bothered her or the children. (iv) She no longer maintains communication with Y.B. (v) She is continuing to meet with her worker on a regular basis and attends counseling every three months with a clinician from Centre Victoria Pour Femmes. (vi) In May 2023, she applied for a peace bond against Y.B. She was unsuccessful due to “limited information and no recent concerns warranting such.” (vii) Access is taking place in her home. B.B. attends every second weekend from 12:00pm to 6:00pm on Saturdays and Sundays. A.A. has overnight visits every second weekend. She reports it is going well and there are attempts underway to expand access.

Part Five: Analysis

5.1 Additional comments with respect to the hearsay evidence

[26] Hearsay is presumptively inadmissible: R. v. Baldree, [2013] 2 S.C.R. 520, at para. 2. Absent consent, hearsay can only be admitted pursuant to a statutory exception, a common law exception, or by applying the principled approach to the admissibility of hearsay. The principled approach and the necessity and threshold reliability criteria identified by the Supreme Court of Canada in Khan apply to both criminal and non-criminal proceedings: Khan v. College of Physicians and Surgeons of Ontario, [1992] O.J. No. 1725 (C.A.); Children’s Aid Society of Ottawa-Carleton v. L.(L.), [2001] O.J. No. 4587, (S.C.); Children’s Aid Society of Metropolitan Toronto v. M.(R.), [1992] O.J. No. 1097.

[27] The rule against hearsay applies to motions for summary judgment in child protection matters. Evidence on a summary judgment must be trial-worthy and the court has a duty to carefully screen inadmissible evidence, including hearsay: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 80; Children’s Aid Society of Toronto v. B.B., [2012] O.J. No. 4855, at para. 25.

[28] When the hearsay concerns were raised by the court—and they were raised in a highly specific fashion identifying each category of hearsay—the society abandoned any reliance on the hearsay and did not pursue a voir dire to determine admissibility. The only exception to this was the respondent mother’s admissions from time to time to society workers. Such utterances were recognized by the parties and the court as admissions against interest and were admitted without resort to the principled approach.

[29] In the face of the society circumscribing its case to the non-hearsay evidence (and the respondent mother’s admissions against interest), counsel for the OCL remained silent. Counsel did not request the court embark on a voir dire to determine admissibility and made no indication that they wished to rely on the hearsay material independent of the society’s position. However, during the submissions phase of the motion, counsel for the OCL began to refer to the hearsay. When this occurred, the court reminded counsel that the evidence had not been accepted and was not being considered by the court. OCL counsel expressed concern at not being permitted to provide evidence “from counsel table,” and, at the close of all submissions, sought to adjourn the matter such that a further affidavit could be provided. This request was denied.

[30] The society’s motion for summary judgment on the protection finding was served and filed on February 14, 2024. The court finds there was ample time for the OCL to file evidence on the motion. Unfortunately, it seems that the OCL planned to rely on the hearsay evidence of the society, without confirming that all parties would consent to its admissibility, and without preparing to advance argument for its admission in a voir dire.

[31] Respectfully, the law with respect to hearsay is well-established. Self-represented litigants may pose special challenges for the court in navigating evidentiary issues. Here, the parties are represented by experienced counsel. Counsel should not assume that hearsay evidence will be accepted by the court absent consent, that counsel will be able to amplify the evidentiary record during submissions, or that the matter will be re-opened and adjourned for further evidence to be marshalled.

[32] Rather, where a party intends to rely on hearsay in a summary judgment motion, it behooves them to alert the other parties well in advance of the motion. This permits discussions regarding whether the evidence may be admitted on consent, or whether a voir dire will be needed. This should be done at a sufficiently early stage to inform scheduling decisions. I note that had a voir dire been requested in this matter on the day of argument, the motion would have far exceeded the time set aside.

5.2 What time period is material for the protection finding?

[33] In applying the summary judgment framework to the protection finding question, a threshold issue emerges: should the court examine the children’s circumstances at the start of the proceeding, the hearing date, or some other date?

[34] The jurisprudence on this temporal question has been mixed, with two approaches having emerged. Both originate with the predecessor statute, the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), but carried into the CYFSA era.

[35] The ‘flexible approach’ is exemplified by Children’s Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754 (Ont. Fam. Ct.). This approach developed in response to efforts to limit a society’s ability to lead evidence of protection concerns which post-dated the commencement of the application. In K.R. and C.W. the court made the following observation, at paras. 49-50:

The conclusion that s. 37(2), 47(1) and 57(1) refer only to the start date is to interpret the Act in a manner that would undermine the purposes of the CFSA. If under the CFSA the only time that can be considered when determining protection is the start date, it might result in the court returning a child to a person even if the court came to the conclusion the child was in need of protection at the time of the hearing as opposed to the date of apprehension. This could potentially put a child in need of protection and potentially at risk, and would require a new apprehension after return. This cannot be in the best interests of a child. The legislation emphasizes the need to avoid having children in limbo. It cannot be in the child's best interests to create such a scenario. The Act intends to eliminate delays within the Child and Family Services Act and places limits on how long children can spend time in care. Restricting the relevant date for a finding to the start date is an interpretation that conflicts with the other sections of the Act and may be contrary to the best interests of protecting children from harm. It is contrary certainly to the direction of the Supreme Court of Canada.

I have come to the conclusion that the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date. This is consistent with the Act and certainly consistent with the Supreme Court of Canada decision [in The Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165].

[Emphasis added.]

[36] This flexible approach found support in myriad cases which followed: see Children’s Aid Society of Brant v. T.(J.A.), 2005 ONCJ 302, Kenora-Rainy River Districts Child and Family Services v. P.N.R., [2023] O.J. No. 3149, at paras. 133-143; Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251; Catholic Children’s Aid Society of Toronto v. A.T., 2019 ONSC 3191; Children’s Aid Society of Toronto v. S.M.T., 2018 ONCJ 540; Children's Aid Society of London and Middlesex v. T.Y., 2017 ONSC 3460; Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, P.W. v. CAS, 2022 ONSC 268.

[37] The competing approach, termed by critics as the ‘rigid approach’, was developed in N.V.C. v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796, [2017] O.J. No. 525, which held that the court should apply the test for the protection finding as of the date of the hearing. N.V.C. concerned a child who had been apprehended in September 2013 when the parent consumed a large amount of alcohol when the child was in their care. The protection finding hearing did not take place until November and December of 2016, some three years later. The court concluded that for the child to be found in need of protection due to risk of harm, the society bears the onus of proving that the risk exists at the time of the hearing. The court was guided by the plain meaning of the words of the predecessor provisions, which employed the present tense when referring to whether there is a risk or whether the child is likely to suffer harm. In the court’s view, the plain words signalled a “present risk of future harm” (paras. 54-59). The court observed as follows, at para. 70:

The wording "is in need", or "is likely to suffer harm", necessarily looks to the present to inform the future risk of harm, not the past. Past history, if it is not a current problem, cannot support the required onus of proof upon the Society at a trial. To conclude otherwise makes no sense and would render the first part of the bifurcated hearing meaningless.

[38] N.V.C. drew criticism from the court in Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, at paras. 90, 94, and 95:

…With respect to the Court in N.V.C., the N.V.C approach is contrary to the paramount purpose of the CYFSA as set out in s. 1, to “promote the best interests, protection and well-being of children” …

In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.

If the risk is not present on the day of the hearing, the N.V.C. approach would require the court to refuse a request for a protection order. Such a rigid approach could place the child at risk. Of course, this depends on the circumstances and the type of risk that caused the Society to commence protection proceedings.

[39] Ultimately, the flexible approach has prevailed. In addition to gathering the preponderance of support, it was endorsed and adopted by the Divisional Court in in K.R. v Children’s Aid Society of London and Middlesex, 2023 ONSC 379, at para. 41.

[40] The Divisional Court also observed, at para. 43, that the competing approaches were not so distinct:

… a close reading of N.V.C. suggests that the judge in that case adopted an approach that was not that different from the one adopted by Horkins J. in R.M. I acknowledge that N.V.C. states (at para. 57) that the risk of harm must be determined at the time of the hearing. However, N.V.C. goes on to state (at para. 64):

It is obvious that for the state to intervene, apprehend a child, and place her in foster care on a temporary basis, there must be a finding that the child is in need of protection at the time of the intervention. As well, in a hearing to finally determine the issue of present risk of future physical harm, it is equally obvious that a finding must be based upon all of the relevant evidence at the date of the hearing.

The N.V.C. decision, like R.M., envisions a review of all the evidence at the time of the hearing. In my view, that encompasses both the facts as they exist on the date of the hearing and the history of the participants in the trial. By considering the entirety of this evidence, a trial judge can arrive at a complete and accurate risk assessment. [4]

[41] The flexible approach invites the court to examine evidence across the timeline in conducting its assessment. But does it follow that the flexible approach requires a court to make a protection finding if the record demonstrates that at any point the children were in need of protection? That is not my reading of the jurisprudence. In K.R. v. CAS London and Middlesex, the Divisional Court made no such suggestion. It is certainly not the message of K.R. and C.W., which rejects an absolute rule. And R.M., in explaining that a risk which is not manifesting at the time of the hearing may justify a protection order, stipulated that it is fact-dependant. The necessary corollary is that in some circumstances, the court may view a past risk as resolved, or sufficiently resolved so as to bring the risk below the legal threshold for a protection finding.

[42] Indeed, to mandate a protection finding in such circumstances would inject a different manner of rigidity into the framework, which could equally run contrary to the primary purpose of the Act. K.R. and C.W. recognized that fixating on the date of intervention risked the return of a child who was in need of protection at the time of the hearing. But the primary purpose can also be jeopardized by locking the court into a historical protection finding irrespective of later developments, including the significant and sustained resolution of the protection concerns, and after a carefully considered determination that the risk will not re-emerge. It would be contrary to the best interests and well-being of a child to extend the litigation only for the court to confirm at a disposition hearing what is already established on the evidence: that a court order is not necessary to protect the child in the future. In my view, the flexible approach permits the court to avoid extending a child’s legal limbo in such circumstances.

[43] In my view, the Divisional Court concisely captured the appropriate method as follows, in K.R. v. CAS London and Middlesex, at para. 42:

…the risks will change over time, and … the judge hearing the case must consider all of the facts to determine whether the risk exists and/or may return, even if it is under control or resolved at the time of the hearing.

[44] It is this encapsulation of the approach that I will apply to the present case.

5.3 Is there a genuine issue requiring a trial as to whether the children are in need of protection?

[45] Summary judgment motions are governed by r. 16 of the Family Law Rules and the Supreme Court of Canada’s guidance in Hryniak v. Mauldin, 2014 SCC 7.

[46] 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.” 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.” 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. The parties are expected to put their best foot forward, and the court should not assume that the evidence will be amplified or improved at trial: Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26.

[47] Despite s. 16(4.1), the burden of proof rests on the party moving for summary judgment. 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, at para. 80; L.M. v. Children’s Aid Society of the Region of Peel, 2019 ONCA 841, at para. 49.

[48] The applicable test is set out in Hryniak, at para. 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.

[49] The court added, at para. 50, that “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.”

[50] This framework applies to the child protection context, but the court must be sensitive to the particularly high stakes and Charter rights of parents and children implicated in such cases: see L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, at para. 48.

[51] Applying that framework to the present case, the court finds that there is no genuine issue require a trial with respect to the protection finding. The record is not voluminous. The singular issue is whether the children are in need of protection, which the society bears the onus of proving on a balance of probabilities. Each party is presumed to have put their best foot forward. As is explained below, taking the evidence at the most favourable to the society, the court finds that the society has not met its onus. As such, summary judgment is an appropriate and proportionate means to achieve a just result. Neither the additional powers under r. 16(6.1) nor the trappings of the full trial are necessary to resolve the issue. While further procedures would permit the court to explore the credibility of the witnesses, there is no need to do so in the circumstances of this case. The court finds that those credibility findings would not be material, in the sense that the outcome of the proceeding does not turn on them: see Children's Aid Society of Toronto v. T.(K.), at para. 12.

5.4 Are the children in need of protection pursuant to s. 74(2)(b)(i)-(ii), (d), or (h)?

[52] Again, the definitional pathways of a child in need protection pursued by the society in this case are the risk of physical harm (s. 74(2)(b)), the risk of sexual abuse or exploitation (s. 74(2)(d)), and the risk of emotional harm (s. 74(2)(h)). There has been no suggestion of risk that the respondent mother will herself physically assault or sexually exploit the children. The society’s central concern is the respondent mother’s failure to take steps to address the risk Y.B. poses to the children, and the impact his actions towards her may have on the children emotionally. At its highest, the admissible evidence discloses the following with respect to those risks:

i. Sometime prior to March 25, 2020, Y.B. gave a phone to A.A. The respondent mother advised the society that she responded by blocking Y.B. ii. The respondent mother did not deny that, sometime before June 6, 2020, Y.B. communicated in a rude and inappropriate way in front of B.B. iii. In an around July 2020 the respondent mother explained that she did not want to be with Y.B. He reacted by harassing her with unwanted communications. He had been coming around the house almost daily. While he would mostly remain outside, he had been inside. He tried to force his way into the house and was banging on doors and windows. He threatened her and slapped her. B.B. witnessed this. A.A. heard it. The respondent mother reported this to the police in September 2020. The police advised her that without corroboration, it would be difficult to charge Y.B. iv. During the period before July 2020, Y.B. called the respondent mother names and treated her poorly in front of the children. v. Up until at least November 2020, the respondent mother continued to allow Y.B. on the property about every second day, and he would come in the house occasionally. She would let him in when he asks, to prevent him from getting upset. Once the children were removed, in December 2020, Y.B. continued to come around. When he found out about the society’s intervention, he yelled and screamed and said she’d only be rid of him if she killed him.

[53] The evidence discloses no specific behaviours on the part of Y.B. after December 17, 2020. Neither does the evidence establish to what extent the respondent mother continued to see Y.B. following that date. The society’s evidence does disclose that as of April 2022, the respondent mother began to meet regularly with a clinician from Centre Victoria, and was addressing issues of healthy relationships, communication, trauma, and grieving. The society’s evidence also confirms that as of April 2022, the respondent mother had ended her relationship with Y.B.

[54] Is there a risk the children are likely to suffer physical harm at the hands of Y.B.? And is any such risk as a result of the respondent mother’s failures or omissions? The answer to both questions, on the evidence before the court, is no.

[55] “Likely” has been interpreted in this context to mean “more probable than not”: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, at para. 17. The past is a good predictor of the future. There is no evidence that Y.B. ever physically assaulted or directly threatened the children. The evidence relating to the incident in July 2020 and Y.B.’s response to learning of this application raises concerns over Y.B.’s general potential for violence, including in a domestic setting. But those instances are not sufficient, in my view, to ground a finding that there was or continues to be a risk that it was more probable than not that Y.B. would physically harm the children. In coming to this conclusion, I am mindful that verbal abuse, aggression, and inappropriate situations can be evidence of a risk of physical harm: see The Children’s Aid Society of Ottawa v. K.D. and D.A., 2021 ONSC 7147, at para. 62. I am simply unpersuaded of that risk of likely physical harm on the minimal evidence presented as to Y.B.’s conduct toward the children.

[56] Independent of the degree of risk that Y.B.’s penchant for violence would extend to A.A. and B.B., I am not persuaded of the likelihood that such harm would arise as a result of the respondent mother’s failure to adequately protect the children, or from her pattern of neglect, as required by s. 74(2)(b)(i)-(ii). While there is evidence that the respondent mother was reluctant through the course of late 2020 to fully engage the police to protect herself from harassment and physical abuse, she did take some concrete steps. Those steps included contacting police and providing them with an account that, on the limited record before the court, justified charges being pursued. While her efforts to exclude Y.B. from the home between July 2020 and December 2020 were lacking, it does not follow that she would not take further steps to protect the children from physical harm.

[57] I must also consider the evidence following the period of concern. There is no evidence at all of Y.B. being in the family home beyond December 2020. The society’s own evidence is that the respondent mother terminated the relationship at least two years ago, and that the mother has accessed services and mitigated the society’s concerns. I am mindful that a resolved risk may re-emerge, and I must consider that in my analysis. I cannot conclude that there is zero risk that the respondent mother will re-associate with Y.B. But on the evidence before me, which includes both the uncontradicted evidence regarding mitigation, and the significant passage of time, I am not persuaded that the risk is sufficient to meet the legal standard for a protection finding. The court finds that the children are not in need of protection via s. 74(2)(b).

[58] Nor am I persuaded that the children are at risk of likely sexual abuse or exploitation by Y.B. due to the respondent mother’s failure to protect them. There is simply no admissible evidence before the court that would ground a risk of sexual abuse or exploitation. The only evident which approaches the issue is Y.B.’s providing A.A. with a phone. That, in conjunction with other evidence, could raise real concerns with respect to grooming. Standing alone, it can lead to no more than speculation. Moreover, as with the risk of physical harm, the evidence does not persuade me that the respondent mother would fail to protect her children against this risk by involving appropriate authorities. I am also unpersuaded that any risk that did exist remains present or is likely to re-emerge, for the same reasons provided above with respect to the risk physical harm.

[59] The remaining theory advanced is that there is a risk of likely future emotional harm. To qualify the risk must be of emotional harm demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development: s. 74(2)(h) of the CYFSA. Expert evidence is often, though not universally required: Children’s Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (S.C.); Children’s Aid Society of Owen Sound and Grey (County) v. T.(J.)., [2003] O.J. No. 5904; Halton Children’s Aid Society v. M.M., 2017 ONCJ 569.

[60] Exposure to intimate partner violence can certainly create a risk of emotional harm. Witnessing violence perpetrated against a parent can have an abusive and detrimental impact on a child’s development: Children’s Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 (O.C.J.), aff’d 2005 43289 (ON SC), [2005] O.J. No. 4718 (S.C.), aff’d 2007 ONCA 474, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 462); Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903, [2009] O.J. No. 5422, (Ont. C.A.), Halton Children’s Aid Society v. M.M., 2017 ONCJ 569.

[61] During the incident in July 2020, Y.B. bullied his way into the home, verbally abused and threatened the respondent mother, and ultimately physically assaulted her. This was witnessed in some fashion by the children and is of concern to the court. It was as a result of the respondent mother’s failure to act—her failure to intervene earlier to eject Y.B. from their lives, with or without police assistance—and is representative of the kind of intimate partner violence that is often probative of the potential for emotional harm. It was also accompanied by a pattern of verbal abuse and threatening, though there is no evidence of a further incident of physical violence.

[62] There is, however, no evidence before the court, expert or otherwise, indicating that the event caused either child to suffer emotional harm. There is no evidence regarding what particular manifestation of emotional harm is of concern to the society. There is no evidence addressing the passage of time and the fact that the children are now more than three years older. Indeed, one child is on the cusp of adulthood. Given those gaps in the evidence, the court will not leap from the exposure to intimate partner violence to the conclusion that, on a balance of probabilities, there is a real likelihood of serious emotional harm for these children in the required form: see Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, at para. 16.

[63] Moreover, when I ask myself whether such a risk exists presently, in the light of the more recent evidence, I am not persuaded that it does. I include in that assessment the question of the likelihood of any risk’s possible return. Again, the Society’s most recent evidence with respect to Y.B. dates back more than three years. His relationship with the respondent mother terminated at least two years ago. The respondent mother has taken the necessary steps to address her past conduct. She has gone so far as to apply, albeit unsuccessfully, for a peace bond recognizance against Y.B. This evidence is unchallenged and uncontradicted by the society or the OCL, both of whom are obligated to put their best foot forward on this motion.

[64] Applying the flexible approach to this particular case, I am not prepared to make a finding that the children are in need of protection. In arriving at this outcome, I am mindful of the paramount purpose of the Act as set out in s. 1: “to promote the best interests, protection and well-being of children.” It is clear on the evidence and is reflected in the candid position of the society, that were this matter to proceed to a disposition hearing, the court would conclude that no further court order is necessary to protect the children in the future. A finding fixed in events from July 2020 to December 2020, despite what has since transpired, could only serve to extend this child protection litigation towards its fourth anniversary when the initial protection concerns have been dormant for the majority of that period. That does not serve these children’s best interests or well-being, and does nothing to protect them.

[65] Accordingly, the court will not make a finding that the children are in need of protection.

[66] One further observation: cases such as this, where the protection finding hearing takes places years after the application is commenced, should be anomalous. Section 94(1) of the CYFSA stipulates that the court shall not adjourn a protection hearing more than 30 days without the consent both of the parties present and the person who will be caring for the child. Section 96 provides that when the determination as to the protection finding has not been made within three months of the commencement of the proceeding, the court “shall by order fix a date for the hearing, and the date may be the earliest that is compatible with the just disposition of the application.” In addition, r. 33 of the Family Law Rules sets out a requirement that the hearing take place within 120 days of the start of the case, though pursuant to subrule (3) the court may lengthen that time if, and only if, it is in the child’s best interests.

[67] While these requirements do not converge to create an immovable, hard deadline, neither do they contemplate delay of three to four years before a determination of the protection finding, as occurred both in this case and in N.V.C. As this court recognized with respect to the predecessor legislation in Children’s Aid Society of Peel v. D.(C.), 2015 ONCJ 573, at para, 70,

…the structure of the CFSA is to make a protection finding a threshold issue to be determined so that the court can determine if it is necessary to make a disposition involving some level of intrusion into the life of the family. When the threshold issue is being determined over three years after the apprehension the purpose of the Act is frustrated.

[68] It should come as no surprise that such cases create special challenges in applying the evidence to a protection finding. Given the mandatory language of s. 96 and the limited exception under r. 33(4), such cases should be rare.

Part 6: Conclusion

[69] As the society has not demonstrated, on a balance of probabilities, that the children are in need of protection, the society’s application is dismissed. The children are ordered returned to the person who had charge of them prior to the society’s intervention, the respondent mother.

Released: May 27, 2024 Signed: Justice G. Jenner

[1] See affidavit of Natalie Forget dated December 17, 2021, at paras. 7-8. Ms. Forget does not clarify the date of the plea. [2] Explanation for police inaction may be found outside of the very limited record before the court, but the court observes that on its face, the respondent mother’s account of Y.B.’s conduct would appear to exceed the threshold for laying charges besides criminal harassment. [3] It is unclear whether she wrongly believed that she would be bound by conditions. [4] I would add that N.V.C. should also be understood in light of the specific protection concerns raised in that case. A “child in need of protection” is a defined term. Section 74(2) of the Act particularizes 17 pathways for the determination. The majority of those pathways are set out in pairs, with one pathway referencing a past specific harm, and the second referencing the risk of such harm in the future. In N.V.C., no ‘past harms’ were advanced; only concerns with respect to risk of future harm. In that very particular context, the textual analysis in N.V.C. is persuasive, if less-well suited to the other pathways under s. 74(2).