CITATION: Children’s Aid Society of the Niagara Region v. T.- D. and A. 2020 ONSC 5241
DIVISIONAL COURT FILE NO.: 338/15 DATE: 20200904
WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(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 SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse, Pattillo JJ.
BETWEEN:
Children’s Aid Society of the Niagara Region Applicant (Respondent on the appeal)
– and –
M.J.T. and M.A. Respondents (Appellants on the appeal)
V. Benici-Mayer for the Applicant (Respondent on the appeal)
A. Kassa for the Respondents (Appellants on the appeal)
Heard at Toronto by videoconference on August 28, 2020.
Backhouse J.
Overview
[1] The appellants appeal an order granted on summary judgment by Maddalena J.( the “Motion Judge”) on March 24, 2020 to place the appellants’ two children in the extended care and custody of the Children’s Aid Society of the Niagara Region (“CAS”) for adoption with no access to the parents under the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14 (“the Act”).
[2] For the reasons that follow, I have concluded that the Motion Judge’s finding that there are no genuine issues for trial cannot stand; the appeal should be allowed and the matter must be remitted for trial.
[3] In reaching the conclusion that there were no genuine issues for trial, the Motion Judge relied upon hearsay evidence to conclude that the appellants were drug impaired when the children were in their care. No analysis was conducted as to whether the evidence was necessary and reliable. I have found that the evidence was not reliable, would not have been admitted at a trial. and that this constituted an error of law.
[4] Second, the Motion Judge held that there was a presumption against access and that there was an onus on the appellants to show that access would be meaningful and beneficial. This was the test under the old legislation but under the Act, the presumption has been removed and there is no longer an onus on the parents. Those remain factors for the court’s consideration but there is now a more expansive test which was not fully considered by the Motion Judge. As a result, the order that the appellants have no access to the children cannot stand and the matter must be remitted for trial to be determined using the correct factors.
Factual Background
[5] The record before the Motion Judge on the motion for summary judgment contained the following information.
[6] Ms. M.J.T. is the biological mother of I. born on […], 2015, and M.J.., born on […], 2017. Mr. M.A. is the biological father of M.J. and the step-father of I.. I. biological father has had no involvement with I. and was not involved in the subject proceedings.
[7] The police and CAS received an anonymous call on May 29, 2019 about noise and what appeared to be incidents of drug use or trafficking at the appellants’ home. The CAS investigated. The appellants explained that they had allowed the maternal grandmother to stay at their home, which was initially to be for one night and ended up being a month of chaos. The maternal grandmother has a history of mental health issues and involvement with the CAS. By the time CAS attended at the appellants’ home, the maternal grandmother had been removed from the home. On May 29, 2019, the CAS found no concerns with the home environment, no indication of drug use and deemed the children safe. It closed its case on June 3, 2019.
[8] On June 12, 2019, an anonymous call was made to the CAS by a person who said that the maternal grandmother advised that the appellants were found drug impaired and passed out in the home while the child, I., was locked in her room and a male drug dealer who was using heroin and wanted by the police was living in the home. The caller said that I. was found to be soiled and had smeared feces all over the wall of her room.
[9] The police and CAS attended at the home on June 12, 2019. The appellant mother was observed by the CAS worker to be scratching her arms, biting her lip, fidgeting with her hands and with pupils the size of a pinhead. Her mood was described as “erratic” and she complained of a dry mouth. She denied any drug use and explained that she was highly anxious because of the police and CAS presence. No drugs or drug paraphernalia were observed. The partner of the drug dealer was found living in the basement. The appellant mother advised that she had observed the partner using meth in the home, but she was refusing to leave. The partner was removed from the home with police assistance. The home environment was observed to be unsafe with feces smeared on the wall, crib overturned on its side and clothing everywhere. An electrical cord was tied to a doorknob of the linen closet across from the bedroom door. There were no notable concerns with the children’s appearance at that time. The police report stated that the mother “appeared to be under the influence although she thoroughly denied it.”
[10] On June 13, 2019 the police attended at the appellants’ home at approximately 4:00 a.m. as the result of receiving an anonymous call from a neighbor who reported hearing a verbal argument and a female screaming at the appellants’ home. The police report stated that the appellants advised the police that they were arguing over the incident from the day before. The police report noted that both parents were in good health. There was no indication of drug impairment.
[11] On June 19, 2019, the CAS received an anonymous call from a female who said that she had not seen the appellant mother for 6 months, but that the maternal grandmother had told her that the appellant mother is using crystal meth.
[12] On July 10, 2019, the maternal grandmother attended at the appellants’ home uninvited. The appellants denied her entry and advised her to leave. The maternal grandmother then sent threatening text messages to the appellant mother on July 10 and July 12, 2019 that she was calling Family and Child Services and the appellant mother would lose her children.
[13] On July 12, 2019, an anonymous caller to the CAS reported observing the appellants deny the maternal grandmother access to their home on July 10, 2019 and hearing the maternal grandmother shout that the parents were using meth and could not be left alone with the children. Kayla Bucci, a child protection worker with the CAS attended the home on behalf of the CAS. In an affidavit sworn July 16, 2019 and used on the motion for summary judgement, she attests to what she found that day and explains the decision to take the children into care. Persons were present at the home whose appearance suggested chronic drug use. The physical environment at the home was unsafe. There was feces on the wall of I. room again. The appellants admitted to temporarily housing persons who used illicit drugs. The appellant mother had appeared under the influence on June 12, 2019 and continued to present as escalated with no control over her emotional state. She did not follow through with drug screening. (The CAS has subsequently changed its policy and does not accept drug screening.) The physical home environment continued to lack a routine and there was a pattern of neglect with feces on the walls. The appellants had not adhered to a safety plan for the children to have a safe caregiver with the mother and were unwilling to explore other options (i.e. daycare). There were continued reports of drug activity from different sources.
[14] On July 12, 2019, the CAS removed the children from the care and custody of the appellants and placed them in foster care.
[15] There have been no allegations of drug activity at the appellants’ home nor have the police attended the home since the children were taken into care.
[16] The CAS commenced a child protection application under s. 81(1) of the Act on June 16, 2019, seeking an order for interim society care. The next day, Maddalena J. ordered that the children remain in the custody and care of the CAS on a temporary and without prejudice basis.
[17] On June 19, 2019, the children were referred to the Child Advocacy and Assessment Program (“CAAP”) at Hamilton Health Sciences. A report produced by the CAAP assessors stated that M.J. possessed “suspicious” bruises and that both children presented with indications of early childhood neglect. A report of a follow-up assessment of the children by Dr. Elisabeth Canisius stated that M.J..’s behaviour and condition had improved after time away from the appellants, but that concerns with I. behaviour persisted.
[18] The matter was adjourned twice following the order of June 17, 2019. Following the hearing of a motion brought by the CAS for the temporary custody and care of the children during the period of adjournment, the application was set for summary judgment.
[19] The CAS brought an amended child protection application on January 22, 2020, now seeking an order for extended society care for adoption and without access.
Decision of the Motion Judge of March 24, 2020
[20] The parties appeared before the Motion Judge on March 5, 2020 to argue the motion for summary judgment. On March 24, 2020, the Motion Judge released her decision granting the CAS’s motion.
[21] The Motion Judge accepted the CAS’s evidence that the appellants were using drugs in their home and that a drug dealer who was wanted by the police was living with them. The Motion Judge further accepted that prior to the CAS’s removal of the children, I. was found to have “soiled” herself, both children were “unkempt”, and there was feces smeared on a bedroom wall.
[22] The Motion Judge also accepted that the appellants had failed to cooperate with the CAS. The CAS gave the appellants a “safety plan” for the children, but they failed to follow it. Further, the appellant mother refused CAS workers access to the home during unannounced visits, failed to provide drug screens in a timely manner, and did not follow through with counselling as recommended by the CAS. Later on, the appellant mother created an online blog on which she posted details of the CAS’s involvement with her and her children, including confidential information about the foster parents and the full names of the CAS workers.
[23] The Motion Judge accepted the evidence of the CAS regarding the behaviour and condition of the children after they had been placed in a foster home on July 12, 2019. On this evidence, I. was aggressive toward other children in the home, and both children hoarded food and smeared feces on the walls. These observations were supported by those made in the CAAP report.
[24] The Motion Judge wrote that it was “clear… that the parents have not appropriately addressed concerns regarding their children”, and that neither parent had any insight into how their children were affected by their behaviours. Because the “children [had] been severely traumatized and maltreated in the care of their parents”, and because the appellants’ failure to cooperate with the CAS suggested that their misconduct “simply cannot be corrected”, the Motion Judge concluded that there were no issues in the application requiring a trial, and that an order for extended society care for the purposes of adoption was the “one option that is in the children’s best interests”.
[25] Further, the Motion Judge ordered that the appellants have no access to the children. The Motion Judge wrote that “[t]he onus is on the parents to show indeed that access would be meaningful and beneficial”, but this “has not been done by the parents.” Rather, “an access order would negatively impact the children’s best interests and would not be meaningful and beneficial to the children.”
[26] The Appellants commenced this appeal on April 15, 2020.
Court’s Jurisdiction
[27] The Divisional Court has jurisdiction to hear this appeal pursuant to s. 121(1) of the Act and ss. 21.8 and 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Standard of Review
[28] Housen v. Nikolaisen sets out the applicable standard of review in this appeal.[^1] The court is to apply the standard of correctness to questions of law and the standard of palpable and overriding error to questions of fact.[^2] To questions of mixed fact and law, the court is to apply the palpable and overriding error standard unless the question involves an extricable question of law, which is to be determined on the correctness standard.[^3]
Applicable Legislation
[29] The Family Law Rules[^4] provide for summary judgment in family law proceedings, including in child protection proceedings. The relevant provisions are as follows:
RULE 16: SUMMARY JUDGMENT
WHEN AVAILABLE
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
AVAILABLE IN ANY CASE EXCEPT DIVORCE
(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
EVIDENCE REQUIRED
(4) 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.
EVIDENCE OF RESPONDING PARTY
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding 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.
EVIDENCE NOT FROM PERSONAL KNOWLEDGE
(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
NO GENUINE ISSUE FOR TRIAL
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
POWERS
(6.1) In determining whether there is a 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 exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
ORAL EVIDENCE (MINI-TRIAL)
(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
ORDER GIVING DIRECTIONS
(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);
(b) give directions; and
(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).
Analysis
Issues Raised
[30] The appellants submit that:
(1) the Motion Judge erred in finding that there were no genuine issues requiring a trial;
(2) the Motion Judge erred in admitting the hearsay evidence presented by the CAS.
[31] Prior to this court hearing this matter, the parties were asked to address during the course of their submissions the Ontario Court of Appeal’s recent decision in Children’s Aid Society v. J. G.,[^5]. This decision emphasized that the replacement of the former Child and Family Services Act, R.S.O. 1990, c. C.11 by the new Act introduced significant changes in the court’s analysis of whether a parent should be granted access to a child placed in extended society care. I will deal with this issue below.
No Genuine Issue for trial
[32] The appellants submit that the Motion Judge erred in finding that there were no genuine issues requiring a trial with respect to whether they were using drugs and alcohol while the children were in their care. In particular, they submitted that the evidence adduced by the CAS in support of its allegations on this point is hearsay of questionable reliability.
[33] The appellants submit that the Motion Judge did not sufficiently scrutinize the evidence originating from the maternal grandmother. According to the appellants, much of the evidence of drug use presented by the CAS, and accepted by the Motion Judge, originated from the maternal grandmother, including the allegations made by two of the three anonymous callers. The appellants submit that there are reasons to doubt the reliability of this evidence, including the conflict between the maternal grandmother and the appellants, as well as the maternal grandmother’s own past struggles with mental health issues, substance abuse, and criminal activity. Further, in the CAS’s past involvement with the appellant mother, which was extensive and dated back to the time she was a child, there were no indications that she was using drugs.
[34] The appellants also argue that the appellant mother’s behaviour during the CAS’s investigation, including her restlessness and anxiety, resulted from her fear of losing her children due to the child protection application, rather than from drug use as was alleged by the CAS and accepted by the Motion Judge.
[35] The Motion Judge made the following findings under the heading “Current Concerns” with respect to whether the parents were drug or alcohol impaired while the children were in their care:
[18] Upon investigation by the Society, I am satisfied based on the evidence that Ms. M.J.T. and Mr. M.A. were found to be using crystal meth and possible other drugs. Based on the evidence, it is highly likely that a male drug dealer who was using heroin and wanted by the police was living in the home. The parents were found to be drug impaired, and passed out in the home while the child I. was locked in her room. I. was found soiled and had smeared feces all over the wall of her room.
[19] Niagara Regional Police were involved. They attended the home and found the wanted male's pregnant partner in the home, but not the wanted male heroin trafficker.
[22] …. The parents eventually admitted to housing people who used illegal drugs. The Society worker noted Ms. M.J.T. herself appeared under the influence of drugs and losing control. A Niagara Regional Police Report dated June 12, 2019 noted that Ms. M.J.T. was under the influence of drugs, even though she thoroughly denied same. Neighbours reported the same.
[36] The evidence that the appellants were found to be using crystal meth and possible other drugs and were found to be drug impaired and passed out in the home while the child I. was locked in her room came in the form of double hearsay from an anonymous caller who purported to reiterate what the maternal grandmother had said. The opinion expressed in the police report that the appellant mother was under the influence of drugs was a bald statement with no details and was hearsay. In CAS of Hamilton v. M.N., Gordon J. held that a party seeking to adduce hearsay evidence in the context of a motion for summary judgement on a child protection application must show that the evidence is both necessary and reliable, failing which the evidence must be excluded.[^6] As a general rule, Gordon J. wrote that “if evidence is not admissible at trial, it is not admissible on a motion for summary judgment.”[^7]
[37] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, Benotto, J.A. held:
[78] I adopt the approach taken by Sherr J. 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 determination.
[38] The Motion Judge’s reasons do not show that she assessed the necessity or reliability of these hearsay statements.
[39] The statement by the maternal grandmother to an anonymous caller was not reliable, given the grandmother’s mental health issues, substance abuse and threats against the appellant mother and would be inadmissible at trial. The CAS and the police did not find the appellants using drugs or passed out in the home as the Motion Judge’s reasons seem to suggest. There was no observation of the appellant father using drugs and apart from the unreliable hearsay, no evidence of his impairment at any time. There were no neighbor reports of the mother being under the influence of drugs. The police report set out a conclusion only and no basis for reaching that conclusion. Ordinarily, this would not be admissible at a trial. There was no inquiry into why an affidavit from the police officer could not have been obtained.
[40] The Motion Judge’s reasons do not show that she considered the facts that seem to be consistent with the appellant mother’s evidence that the CAS had erroneously concluded that she was a drug abuser - for example, i) the mother’s explanation that her agitation at the time of the CAS and police attendance at her home was due to fear of losing her children; ii) the observations of a CAS worker who attended on an unannounced visit that the mother is “hyper and suffers from social anxiety”; iii) the fact that no drug paraphernalia was found associated with the parents on June 12, 2019 or at any other time; iv) the fact that there was no history of the mother having a substance abuse problem over the course of a very long involvement with the CAS; and v) apart from the one occasion on June 12, 2019, there were no other observations that the mother was impaired either in her home or during twice weekly access visits over the 8 month period the children were in care prior to the summary judgment motion.
[41] The CAS submits that its concerns about the appellants’ drug use formed only a part of the overall basis for the application and there was plenty of other evidence to support the Motion Judge’s finding. It submits that alongside the evidence that the appellants were using drugs, CAS workers gave first hand or personally verified evidence that the children were being neglected, that the home environment was poor, there were “risky looking individuals in an around the appellants’ home”, and the maternal grandmother, whose drug use in the home was admitted by the appellants, continued to be a presence.
[42] The CAS’s position put before the Motion Judge on the motion for summary judgment listed drug use by the appellant mother as the second of six child protection concerns requiring an order for extended care without access. The Motion Judge listed first under “Current Concerns” her finding that the parents were found to be drug impaired and passed out in the home while their daughter was locked in her room. That is a significant finding on its face. It would be speculative to determine what significance the drug impairment findings had on the Motion Judge’s decision that the children should be put in the extended care of the CAS for adoption without access and whether the same decision would have been reached had that evidence been excluded.
[43] It was an error for the Motion Judge to admit the double hearsay evidence and to rely upon it in concluding that the parents were drug impaired. There is concern that that error may have been compounded by a failure to consider the evidence that tended in the opposite direction.
No Presumption against Access
[44] In the Court of Appeal’s recent decision in Children’s Aid Society of Toronto v. J.G., Benotto J.A. emphasized that the replacement of the former Child and Family Services Act, R.S.O. 1990, c. C.11 by the new Act introduced significant changes in the court’s analysis of whether a parent should be granted access to a child placed in extended society care.[^8] J.G. was decided after the Motion Judge’s decision in this matter and it appears that the other Ontario Court of Appeal decisions referred to in J.G. regarding the significant change for children in care reflected in the Act[^9] were not brought to the Motion Judge’s attention. Under the former legislation there was a presumption against granting a parent access to a child placed in extended society care, and in order to overcome that presumption, a parent was required to show that access would be “beneficial and meaningful”.[^10] However, under the new Act, “[t]here is no longer a ‘presumption against access’ and it is no longer the case that a parent who puts forward no evidence will not gain access”.[^11] Rather, the question of whether a parent should be granted access always turns on the best interests of the child as determined through a flexible analysis.[^12]
[45] Applying these principles in J.G., Benotto J.A. set aside the decision of the appeal judge, who had applied aspects of the test mandated by the former legislation, and restored the decision of the trial judge, who had carried out the correct analysis.[^13]
[46] The Act sets out how the court must go about determining whether access should be ordered with respect to a child who is in extended society care:
When court may order access to child in extended society care
104(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.
Additional considerations for best interests test
(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),
(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and
(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.
[47] As shown in s. 74(3) of the Act, the best interests analysis is comprehensive:
Best interests of child
74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[48] The Motion Judge gave the following reasons for finding that access was not in the children’s best interests:
[52] There is still a presumption against access to a child in the case of an order for extended Society care.
[53] The court must still consider if the relationship is beneficial and meaningful to the child. Also, the court has discretion to consider if access will impair future adoption.
[54] Therefore, the court in making an access order must be satisfied that it is in the child’s best interest for that access to occur. The onus is on the party seeking access to the child in extended Society care to establish, on the balance of probabilities, that access is in the child’s best interests.
[66] The court should consider whether an access order would be in these children’s best interests. I am satisfied that an access order would negatively impact the children's best interests and would not be meaningful and beneficial to the children. I am satisfied that it would impede future adoption, particularly given the mother's history of belligerence, and continued lack of cooperation and blogging by putting online the names of Society workers and foster parents. The onus is on the parents to show indeed that access would be meaningful and beneficial. That has not been done by the parents.
[49] It is apparent that the Motion Judge was applying the test for access to a child in extended society care (formerly Crown wardship) under the former legislation. As Benotto J.A. held in J.G., this is a legal error. The appellants under the new test no longer need to show that access would be meaningful and beneficial or whether access will impair the child’s future opportunities for adoption. Those remain factors for the court’s consideration but there is now a more expansive test.,
[50] While conceding that the Motion Judge erred with respect to the onus, the CAS submitted that the decision not to order access was based on the best interests of the children on the record before the court and the Motion Judge came to the right decision.
[51] Again, there is no way of knowing what effect the error in the presumption and onus had or indeed the error with respect to the finding of drug impairment on the decision not to order access. There is no reference in the decision to the detail listed in s.74(3). There was no consideration of the children’s relationship with and emotional ties to the parents.
Conclusion
[52] 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.[^14] 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.[^15]
[53] Having concluded that the Motion Judge erred in relying upon the hearsay evidence to conclude that there was a serious risk of harm to the children because of the appellants’ drug impairment, and erred with respect to the test for access, the finding that there are no genuine issues for trial cannot stand and the matter must be remitted for trial. I would allow the appeal and order that there be a trial before a different judge.
[54] Given the findings with respect to the two errors of law, it is unnecessary to determine whether there were genuine issues requiring a trial with respect to the other issues raised by the appellants (whether the appellants improved their parenting skills or whether the children had been neglected and abused).
[55] The children have now been in temporary care well past the 12 month time period specified in the Act. If possible, the trial should be expedited. If an expedited trial in the courtroom is not possible due to Covid-19 or other reasons, consideration should be given to having the trial take place by videoconference on an expedited basis.
[56] The appellants asked this court to make an order regarding access in the relief sought in their factum. This issue was not addressed by the parties in their submissions at the hearing. If the parties are unable to agree on access, they shall arrange a hearing (if necessary by teleconference) before a Superior Court judge in their jurisdiction to determine interim access.
[57] The CAS raised a preliminary issue with respect to irregularities in the appellants’ filing of documents for this appeal. In addition to clarifying the materials that were before the Motion Judge, I take the Society’s lengthy summary of these irregularities to be support for its claim in its factum for costs on a substantial indemnity basis. At the hearing neither of the parties sought costs so I would not order costs.
Backhouse J.
I agree__________________________
Sachs J.
I agree___________________________ Pattillo J.
Released: September 4, 2020
[^1]: Housen v. Nikolaisen, 2002 SCC 33 at paras. 8, 10, 36. [^2]: Ibid. [^3]: Ibid. [^4]: O Reg 114/99. [^5]: Children’s Aid Society v. J. G., 2020 ONCA 415. [^6]: Ibid at para. 34, citing Children’s Aid Society of Hamilton v. M.N., 2007 13503 (Ont. Sup. Ct.) at para. 30. [^7]: Ibid. [^8]: Ibid at para.1. [^9]: See Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497 and L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18. [^10]: J.G., at paras. 15, 24-25. [^11]: Ibid at para.37. See also 56-63. [^12]: Ibid at paras.37. 46-47. [^13]: Ibid at paras.65-66. [^14]: Hryniuk v. Mauldin 2014 SCC 7 at para. 49. [^15]: M.W., Ibid at para. 76.