ONTARIO
SUPERIOR COURT OF JUSTICE
This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) 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.
85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both
COURT FILE NO.: FC-2079-09
DATE: 2015-08-20
BETWEEN:
Children’s Aid Society of Hamilton
James Wood for the Applicants
Applicants
- and -
S.B., B.L.G., D.C., R.C. and N.G.
David Walkling for S.B.
James Orme for B.L.G.
D.C. self-represented
Respondents
HEARD: August 12, 2015
The Honourable Mr. Justice R. J. Mazza
[1] This is a summary judgment motion brought by the Society regarding three children: T.G., born […], 2008; D.C., born […] 2011; and D.C., born […], 2013.
[2] The mother of the children is S.B. The father of T.G. is B.L.G. Both D.C. and D.C. is father D.C.
[3] Mr. Wood represents the Society; Mr. Walkling represents the mother; Mr. Orme represents the father B.L.G. And the father D.C. is self-represented.
[4] Only Mr. Wood and Mr. Walkling filed a factum. Mr. Orme endorses the arguments presented by Mr. Walkling, as does D.C.
[5] The paternal grandfather, R.C., and the step-paternal grandmother, N.G., although parties to the proceeding, were noted in default.
[6] It is my intention to make liberal use of the factums presented by counsel in addition to considering their respective submissions.
Submissions by Mr. Wood
[7] Mr. Wood’s factum began with a summary of the background of the parties.
[8] Subsequent to the birth of the child T.G. and the child D.C., the Society commenced a protection application on or about […], 2013.
[9] Between 2011 and 2013 the Society appeared to have concerns regarding “physical harm/injuries to T.G. and D.C. as a result of neglect or lack of supervision; T.G.’s poor school attendance; significant hygiene issues; report of violence in the home between the mother and D.C.; and the mother’s failure to renew D.C.’s daycare subsidy.”
[10] Based on an assessment by Dr. Canisius of CAAP, the children T.G. and D.C. were described as being “extremely filthy, covered in bed bugs and bed bug bites, infested with head lice, and D.C. had a cut on her face and needed to be seen by the emergency department”.
[11] On October 7, 2013, a final order was made pursuant to the order of Justice Pazaratz based on Minutes of Settlement filed that the children were found in need of protection, and were subsequently placed in the care of the paternal grandfather and his partner for a period of six months subject to the supervision of the Society.
[12] Following a status review application on March 26, 2014, the children T.G. and D.C. remained in the care of the paternal grandfather and his partner for a further six months subject to the supervision of the Society with access to all parents.
[13] As for the child D.C., a final order was made on April 7, 2014, making her a ward of the Society for a period of six months with access to the parents.
[14] On April 24, 2014, T.G. and D.C. were apprehended from the paternal grandfather and his partner based on what was alleged by the Society to be a “lack of supervision, neglect and use of physical discipline”.
[15] Although the Society had intended to commence a reintegration plan with the parents, the Society described its concerns “including inappropriate meals and snacks and not enough bottles for D.C.; failure to recognize and read the children’s health conditions, such as fevers, rashes, and scratches; the patents engaging in verbal conflict in the children’s presence; D.C.’s behaviours increasing after access was increased”.
[16] As the reintegration plan did not go as planned, the Society appointed a home management worker to begin working with the mother on a biweekly basis, but the mother missed three consecutive and on the whole four appointments.
[17] There was further concern about the mother’s substance abuse and that between July 2014 and September 2014, the mother completed “four out of six scheduled sessions of the “Taking Steps” program through the Alcohol, Drug & Gambling Services (ADGS).” This session was closed September 9, 2014, as the result of the mother’s failure to contact ADGS to complete the programming.
[18] The Society also alleged the mother failed to recognize the children’s special needs, the child T.G. having ADHD, the child D.C. being diagnosed with global development delay and the child D.C. having breathing issues from a condition known as laryngomalacia.
[19] On March 2015, the Society met with the mother and the mother presented the Society with a plan of care, including her support system.
[20] In the affidavit of Marie Spoelstra, family services worker, Ms. Spoelstra was not content with the particular plan of care, as it appeared that the family would in fact be “parenting” the mother.
[21] The affidavit went on to say that the Society expressed concerns over the mother’s inability to supervise all three children simultaneously and instead chose to rely on the parent support worker. The mother was also observed not engaging with the children during the visits; failing to say good-bye or greeting the children; failing to change D.C. and D.C.’s diapers; and failing to plan activities.
[22] As for the father, D.C., he clearly admitted he had anger management issues and smoked marijuana. B.L.G.’s access was put on hold because his attendance was inconsistent. B.L.G. requested that T.G. be placed in his care, but he had not been an active participant with the Society and his access has been terminated.
[23] In his effort to provide the Society with a viable option, he suggested his aunt be a potential caregiver. The aunt failed to attend a meeting with the Durham Children’s Aid Society and has not had further contact with the Society.
[24] After the birth of the third child, D.C., the Society commenced a protection application. The child was brought into care and has been in care since birth.
[25] Mr. Wood submitted that as described in Paragraph 33 of his factum, all three children have special needs and require a great deal of care, which the mother is not capable of providing.
[26] Moreover, he reminded the court that on the birth of the third child, D.C., the child’s meconium sample at birth was positive for cannabinoids, codeine and morphine, which suggested that while the mother was making efforts to have the other two children returned to her care, she was in the midst of using drugs during her pregnancy with her youngest child, and appeared to have done very little to remedy her addiction or rehabilitate herself, as suggested from the missed sessions with the ADGS.
[27] In anticipation of the argument presented by Mr. Walkling that expert evidence needed to undergo the process of a voir dire; that the experts’ testimony must meet the threshold of test of reliability; and that the court must be cautious about whether it accepts the impartibility of such opinions, Mr. Wood submitted that the Society is not relying on the opinions of the experts, but simply on the observations made by the experts with respect to the children in each of these reports.
[28] Further, as for whether the affidavit evidence may stand alone without cross examination, Mr. Wood submitted that cross examination of the affidavits on a summary judgment motion is not necessary; that the court has the power to give whatever weight it chooses to the affidavit material.
[29] As for the issue of access, the court must be satisfied that not only is it beneficial and meaningful, but it will not interfere with the possibility of the children being adopted.
[30] He went on to say that the three criteria, beneficial, meaningful and not impairing the child’s future opportunity for adoption are conjunctive, and thus as stated by Justice Pazaratz in the case of the Children’s Aid Society of Hamilton v L.S. that “it places an onus on the parents to satisfy the court that access to the Crown ward will not diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption”.
[31] Mr. Wood submitted that the parents have failed to discharge that onus.
Submissions by Mr. Walkling
[32] Mr. Walkling agreed with the sequence of events with respect to the children being apprehended, but stated that there was considerable disagreement over the material facts.
[33] Mr. Walkling further submitted that although it is not disputed that the children were apprehended approximately 28 months ago, but that the Society is relying on only three workers who appeared to be involved with the family over that period of time, namely, Marie Spoelstra, family service worker; Corine MacDonald, a child protection worker; and Toni Lazar. Yet the worker Ms. Dabrowski, who appeared to have principal carriage of the file, had not provided an affidavit for the purpose of these proceedings.
[34] He submitted that when the court is being asked to make such a draconian order, namely severing the children from their biological parents, the Society should be put to a higher standard than merely the affidavit of a worker who in fact has seen the children on seven visits, another worker who has picked up the file some seven months ago and choosing not to provide an affidavit from the worker who, in fact, had the file for approximately 18 or 20 months.
[35] Turning to the current affidavits beginning with Ms. Lazar, Mr. Walkling submitted that the Society has appeared to heavily rely on the observations of Ms. Lazar in support of its position to request this court to sever the relationship between the children and the mother and the relationship amongst the children themselves. Ms. Lazar supervised eight visits, and although there were a number of visits over the years through a number of visit supervisors, the Society has relied on the evidence of this one visit supervisor.
[36] Secondly, the Society is also relying on the evidence of Ms. Spoelstra, who has been on the case for only seven months, and the affidavit of MacDonald, the children’s service worker, who Mr. Walkling submitted, “had not very much to add”.
[37] Mr. Walkling further submitted in addition to the affidavits being “replete with either second-hand hearsay or speculation”, the workers’ personal observations are minimal.
[38] To elaborate and beginning with the affidavit of Ms. Spoelstra and citing Paragraph 19 as an example, Mr. Walkling submitted that Ms. Spoelstra admitted that “the source of my information are the case notes of the worker to whom the information was provided”, which is followed by her Paragraph 20, which indicated that not only is it based on her personal involvement, but also based on “information contained in the Society’s records”. From that information Ms. Spoelstra indicated that the Society had the “following concerns as set out below”.
[39] Mr. Walkling submitted that this is inappropriate affidavit material, as it is contrary to Rule 14, which states that an affidavit raised on a motion shall “as much as possible contain only information within the personal knowledge of the person signing the affidavit”. Moreover, other information should only be information in which “the source of the information is identified by name and the affidavit states that the person signing it believes the information is true”. (See Rule 14(19)(a)).
[40] Mr. Walkling therefore submitted that some of the information relied on by Ms. Spoelstra it is not firsthand information. Some of the information appears to be notes from an unidentified Society worker, or workers, which Ms. Spoelstra reviewed and entered into her affidavit and is asking the court to accept as truthful.
[41] Moreover, in referring to the Society’s involvement with the family between 2008 and 2011, at Page 10 of Ms. Spoelstra’s affidavit, Mr. Walkling submitted that Ms. Spoelstra was assigned the file in November of 2014, and yet makes references to occurrences with the family between the years of 2008 and 2011, which therefore can only be based on notes reviewed by the worker.
[42] Mr. Walkling also suggested to the court that it should be wary of the Society’s repeated use of the words “we have concerns”, which he says are rampant throughout the affidavit. And examples such as “concerns over neglect of T.G.’s basic needs” and “concerns over the mother’s substance abuse”, Mr. Walkling submitted, are not statements of fact.
[43] Other phrases such as “limited caregiving skills”; “neglect of T.G.’s basic physical needs”; “budgeting issues”; “limited parenting skills”; “adult conflict”; “a lack of supervision”, are all phrases which Mr. Walkling submitted are general in nature and, again, are not supported by specific facts.
[44] In view of the fact that the parents are not allowed to make general bold statements and must support their statements with specific facts, Mr. Walking submitted so too must the Society be held to the same standard.
[45] Moreover, the Society has also presented affidavit evidence which is inconsistent with the actual facts. For example, inconsistent evidence is demonstrated in Paragraph 24 of Ms. Spoelstra’s affidavit wherein the mother is described as showing “limited progress” in spite of the Society’s lengthy involvement. Yet, Mr. Walkling submitted, the affidavit of his client would indicate that the child was returned to her in 2010. This was then followed by a supervision order for about six to nine months, after which, the file was closed.
[46] Mr. Walkling submitted the purpose of such comments is to give a bad slant to the facts. But in reality the evidence would appear to be contrary to the facts, that is, “limited progress” is inconsistent with terminating the order.
[47] Paragraph 25 of the affidavit, Mr. Walkling submitted, contains allegations that T.G. had cuts and bruises to her face on more than one occasion. However, they do not give the specifics as to the cause of the cuts and bruises or whether they are minor or severe.
[48] Mr. Walkling then spoke of misquoting, which he submitted undercuts the entire affidavit. In Paragraph 40 of the same affidavit there is a reference made to Dr. Hawisa who examined T.G. and D.C. and apparently raised “the possibility of lack of supervision”.
[49] Mr. Walkling submitted that is a misquote since Dr. Hawisa never raised it.
[50] In support of his position he referred the court to the affidavit of Corine MacDonald and specifically Exhibit “D” of the affidavit of Ms. MacDonald wherein Dr. Hawisa noted that the information he relied on was information reported to him by Ms. Guidice.
[51] At Page 2 of that report there were at least five paragraphs beginning with Ms. Guidice reported.
[52] Under the heading of Supervision, for example, it states:
“We have discussed with Ms. Guidice there are concerns regarding supervision with [the father]. It appears the family has multiple children in the home under the age of 5, and we have stressed the need for adult supervision at all times.”
[53] Further, Ms. Spoelstra went on to suggest that Dr. Hawisa indicated that the grandfather smacked T.G. and D.C. on the butt, explaining the force was “more guiding the children across the road on their backside”. However, in the actual report of Dr. Hawisa, he made reference to D.C.’s comment as having “given them a tap on the butt”.
[54] He submitted there are also references made with general terms such as neglect, but nothing specific.
[55] Mr. Walkling also made reference to allegations of domestic violence by D.C., the father, which is not supported by any evidence; and allegation that D.C.’s (the child’s) daycare was never renewed, yet there was no evidence to suggest that D.C. was ever in daycare.
[56] Mr. Walkling went on to cite other examples, all of which he submitted support his argument that the evidence relies on hearsay, is unsubstantiated by facts, or is in fact inaccurate.
[57] In turning to the medical reports attached as exhibits to the affidavit of Corine MacDonald, he submitted that opinions were rendered throughout these reports by doctors who were not experts to render such opinions, or who have never been qualified as experts.
[58] Mr. Walkling submitted that there were approximately 12 different areas where the doctors had given opinions they were not qualified to give.
[59] Beginning with Dr. Klein, whose report is attached as Exhibit “I” to the affidavit of Corine MacDonald, Mr. Walkling drew the court’s attention to the doctor’s conclusions, which read as follows:
Impression and recommendations:
Information presented is consistent with a severe self regulation deficit in the context of chronic history of complex trauma (neglect, exposure to violence, multiple caregiver separations), which is known to cause problems in self-regulation due to maladaptive brain development (i.e. developmental brain injury).
[60] Dr. Klein goes on to say further:
[T.G.’s] clinical picture provided, given complex trauma exposure, is suggestive of “C type” insecure attachment strategy, i.e. resistant and with features of “reactive attachment disorder, disinhibited subtype”.
[61] This is an opinion, Mr. Walkling submitted, given by a doctor who has never seen or interviewed the child; nor had he met the mother or the father. Dr. Klein is neither impartial, nor are his comments relevant, given the circumstance of the family from which he received the information.
[62] Continuing with the opinions given by the doctors who examined the children, primarily Dr. Canisius, Mr. Walkling made a general submission that the court ought not to accept the opinions of Dr. Canisius because they were made without direct interview of the children or the parents.
[63] Turning to examples of what Mr. Walkling considered to be inappropriate opinions and referring to the report of Dr. Canisius of July 5, 2013, he quotes Dr. Canisius as stating the following under the heading “Recommendations”:
Following the assessment and review information provided by the agency, CAAP has the following recommendations:
- D.C. and her half-sister, T.C., were identified as children in need of protection.
Mr. Walkling submitted that the doctor’s opinion was given prior to any findings that the children were, in fact, in need of protection and he submitted that Dr. Canisius is not entitled to come to that conclusion on information based on just one litigant.
[64] As well, Mr. Walkling submitted, Dr. Canisius had contravened the rule against giving an opinion on the ultimate issue and, in fact, had essentially usurped the judge’s power to render that opinion based on all of the evidence which has yet to be determined.
[65] Also Mr. Walkling submitted, Dr. Canisius used the following expressions: “exposed to significant neglect, rash due to poor hygiene and infrequent diaper changes, covered in bed bug bites.” Again at page 42, Dr. Canisius quotes, in referring to D.C., the two year old child that she has “concerns of exposure to significant neglect who has shown signs of significant improvement in her ability to socially interact and engage with other since being in foster care.” Mr. Walkling submitted, again, it is an opinion which is not impartial and is based on information passed on to Dr. Canisius.
[66] In addition, Mr. Walkling submitted, it should be concerning to the court that in spite of T.G.’s explanation as to the reason for her injury on Page 4 of the same report of Dr. Canisius, namely, that her injury was caused by falling on a toy, Dr. Canisius concluded that that explanation was too vague and instead gave her opinion that given that what she referred to as “the previous disclosures of injuries being caused by her stepfather, inflicted injuries is a possible concern as a mechanism would cause bruising to her right eye.” At Page 5 of the report Dr. Canisius makes certain recommendations preceded by a preamble, which reads as follows:
“Following the assessment review of information provided by the agency, CAAP has the following recommendations:
1, [T.G.] and her half-sister [D.C.] were identified as children in need of protection. A safety plan was put into place following the children’s assessment in clinic;
- In view of concerns around [T.G.]’s exposure to significant neglect, screening blood work was ordered to rule out nutritional deficiencies, specifically iron deficiency…
This is an opinion, Mr. Walkling suggested, which was given based on information passed on to the CAAP assessor rather than on direct observation. Furthermore, Dr. Canisius relied on a conversation with Ms. Dubrowski in the absence of the mother who was not available at the time.
[67] Mr. Walkling contrasts these opinions rendered by Dr. Canisius with the opinion of Dr. Hawisa, who said at Page 6 that he could not come to any conclusion about the bruising of D.C.; the best he could do was call it suspicious bruising but he also stated “while an inflicted injury was possible it was explained to Ms. Guidice [society worker] that D.C. could also obtain this bruise by falling on an object.” Dr. Hawisa’s opinion is an example of a fair assessment and not one dependent upon information passed on to him by a third party.
[68] Referring to his client and the plan suggested by the society, Mr. Walkling submitted that his client had been told that the society required a plan of care. Paragraph 110 of Ms. Spoelstra’s affidavit indicated that Ms. Spoelstra advised the mother that she needed to present a plan which included the mother’s support system. However, in spite of the fact that the mother produced a very detailed plan (see Paragraph 121 of the affidavit of Marie Spoelstra sworn July 8, 2015), Mr. Spoelstra rejected the plan on the basis that the mother’s support system would, in fact, be “parenting” her.
Analysis and Conclusion
[69] In determining whether a court should grant the motion of summary judgment, the court has a duty to review the evidence presented by both parties. The evidence presented should be substantially the evidence the parties intend to call at trial. It may be the case that either party will call additional evidence, but for the purpose of a summary judgment motion the court must have a relatively clear picture of evidence to be presented by both sides if the matter were to proceed to trial.
[70] The moving party in any summary judgment motion must satisfy the court that there is no genuine issue for trial. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material (Children’s Aid Society of Toronto v T. (K.) 2000 20578 (ON CJ), [2000] O.J. No. 4736 (O.C.J.)).
[71] A genuine issue for trial requires that there be some connection between a determination of a triable issue and the outcome of the trial. If the determination of the issue will have no bearing on the outcome of the trial, it is not a genuine issue for trial.
[72] In determining whether a Society has met its obligation of showing that there exists no genuine issue for trial, Mr. Justice Heeney indicates that in the Children’s Aid Society of Oxford (County) v J.(J.) 2003 2388 (ON SC), [2003] O.J. No. 2208 (S.C.J.) stated:
“As to what constitutes “no genuine issue for trial, the Ontario Court of Appeal has equated that phrase with no chance of success”, and “plain and obvious that the action cannot succeed” (Prete v Ontario 1993 3386 (ON CA), 16 O.R. (3d) 161, leave to appeal to SCC refused [1994] S.C.C.A. No. 46, 110 D.L.R. [4th] vi.”
[73] As Justice Chapnick stated, the outcome is “a foregone conclusion” (Catholic Children’s Aid Society of Metropolitan Toronto v O. (L.M.) 1996 7271 (ON SC), 139 D.L.R. 4th 534).
[74] The responding party faced with a prima facie case for summary judgment must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials or self-serving affidavits must be insufficient and defeat a claim for summary judgment (Children’s Aid Society of Metropolitan Toronto v A.(M.) [2002] O.J. No. 2372 (O.C.J.).
[75] Case law has indicated that the responding party has the obligation to “put their best food forward”.
[76] In arriving at my decision as to whether or not the Society has established that there is no genuine issue for trial, I note with interest the following comments made by Henderson J. in the Children’s Aid Society of Niagara Region v R. (P.) [2005] CarswellOnt 1405 (S.C.J.):
“An order to permanently remove someone’s child from them will have dramatic and life-altering effects. Therefore, a judge should only exercise his or her power to do so after careful examination of the evidence and the possible alternatives.”
[77] In coming to my conclusion, I have reviewed the affidavit evidence, including the references made to various paragraphs and exhibits attached to those affidavits, and I have considered the parties’ submissions.
[78] Based on the evidence before me, I find the Society has not established on the balance of probabilities a prima facie case for summary judgment. The evidence as I have considered it in my deliberations does not satisfy me that a Crown wardship order without access would be a foregone conclusion if this matter were to proceed to trial.
[79] Beginning with the affidavit material, I accept Mr. Walkling’s arguments that in all three affidavits, particularly in the affidavit of Ms. Spoelstra, there does contain unverified hearsay. The affidavit clearly sets out that some of the observations made by Ms. Spoelstra were based on records and notes of other workers which she had reviewed in preparation of her affidavit. Clearly her observations, at least on the face of it, appear to be mixed with opinions rendered by other workers, one or more who were unidentified. The same can be said of the affidavits of Ms. MacDonald and Ms. Lazar, both of whom indicated that they had reviewed the records and notes of the Society.
[80] I find that in view of the fact that the Society is asking for an order which will permanently sever the relationship between the children and their parents and grandparents, the responding parties are entitled to challenge and cross examine the affiants as to the accuracy of this affidavit material.
[81] In general, however, it should be noted that a worker’s reliance on records and notes of the Society does not necessarily in and of itself render the affidavits unreliable particularly in cases where the Respondents have not provided persuasive evidence which would assist the court in concluding that a triable issue exists.
[82] Turning to the reports, without determining whether or not the doctors are experts and capable of making findings based on their expertise, at the very least, some of those findings appear to be conclusions which they have rendered based on information passed on to them.
[83] I find that the examples quoted to me by Mr. Walkling require further exploration regarding the admissibility of these documents, as well as the accuracy of the conclusions set out in those documents and whether these various doctors had the expertise to rely on third party sources in assisting them in coming to their conclusions. I find that the parties should be given the opportunity to challenge either the admissibility and/or accuracy of those conclusions.
[84] As well, I have the affidavits of both the mother and the paternal grandparents, which include exceedingly more detail than mere allegations, blanket denials, or self-serving content. I find that they are supported by specific facts, which on the face of them are palpable and are worthy of consideration by a trial judge.
[85] Further, I cannot accept Mr. Wood’s submissions that the Society is only relying on the observations of the doctors set out in their reports. If the court were to accept that submission, it would be giving weight to parts of the reports that would be out of context with the whole report. I find that to do so would be unfair to the responding parties and would fetter their right to challenge the admissibility of the entire reports, or at the very least to challenge whether all of the observations were direct and free of any influence from third party sources.
[86] Moreover, keeping within the context of the best interests of the children as set out under Section 37 of the Child and Family Services Act, I am concerned that the detailed plan of care presented by the mother outlining her support system may have been summarily rejected by the Society without proper consideration as to its viability. Although Ms. Spoelstra noted that “…the mother did not explain these tasks during this meeting”, this court wonders why Ms. Spoelstra did not ask the mother to explain the tasks. As well, Ms. Spoelstra did not provide a detailed explanation of the term “parenting” and why, on that basis, the plan was not given further consideration.
[87] In that regard, I am reminded of the case of the Children’s Aid Society of Algoma v K.A.H., 2003 52552 (O.C.J.) at Paragraphs 247 and 251, the judgment of Keast J. in which the judge states as follows:
The society, and as well, the foster parents, have criticized Mrs. N.S. for failure to come forward earlier and present a plan. This is a criticism of extended family members that is often heard in these cases. This criticism raises the issue of who has what obligation and why?
The answer involves a consideration of the philosophy of the Act, both in theory and in practice, and in particular the Operation of subsection 57(40). The court must consider an extended family placement before moving on to the option of Crown wardship.
The philosophy is to reunite children and their primary families. The focus is on the least intrusive approach, so as to manage protection concerns by continuing the placement of children with the families and, if that is not an option, to consider placement with extended family members. The complete removal and the interim or permanent placement of children to foster or adoptive parents, who are not within the family constellation, is a “last resort” option.
The reason for this philosophy is that, in theory, all things being equal, it is the best interests of children to place them with their primary or extended family. To ensure compliance with the theory in actual practice, the court is mandated to consider an extended family placement before considering the drastic orders of society or Crown wardship.
If the court is mandated to consider an extended family placement, then it logically flows that the party that has carriage of the proceeding and the burden of proof, being the society must, as part of the burden of proof, provide information to the court for consideration of an extended family placement.
[88] In conclusion I find that the Society has not met the onus in establishing that there is no genuine issue for trial, and accordingly the Society’s motion for summary judgment is dismissed.
[89] This matter is to proceed to trial.
[90] With respect to the trial of this matter, given that I am now sitting as a supernumerary judge and given the limitations of my sitting time, I am not seized.
Mazza, J.
Released: August 20, 2015
COURT FILE NO.: FC-2079-09
DATE: 2015-08-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hamilton Children’s Aid Society
Applicants
- and -
S.B., B.L.G., D.C., R.C. and N.G.
Defendants
REASONS FOR JUDGMENT
Mazza, J.
Released: August 20, 2015