WARNING The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication. — The court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., 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.

(8) Prohibition: 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) Idem: order re adult. — 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.

85.— (3) Idem. — A person who contravenes subsection 45(8) or 76(11) (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.

C.G. et al., 2016 ONSC 4332

Court File and Parties

FILE NO.: AP-67-15 DATE: 2016-06-29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CHILDREN’S AID SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN Applicant (Appellant on Appeal) – and – C.G. and D.S. Respondents

Counsel: Dawn V. Dubois for the Appellant George Florentis for the Respondents

HEARD at Sudbury: May 9, 2016

JUDGMENT ON APPEAL

A.D. KURKE J.

Overview

[1] A.G. was born […], 2014 at Health Sciences North in Sudbury, Ontario. On […], 2014, at about 2:40 p.m., a nurse at the hospital contacted the Children’s Aid Society of the Districts of Sudbury and Manitoulin (“the CAS” or “the appellant”). The newborn’s parents, mother C.G. and father D.S. (collectively “the respondents”), had left the hospital, leaving A.G. with a friend of theirs, “G.”, who had been present at the birth. Prior to that contact, the CAS did not know that A.G. had been born, or even that her mother C.G. was pregnant, though the CAS had been heavily involved with the respondents and their older children for years. G. produced a written agreement with the respondents that gave her custody of A.G., and discretion over access of A.G. to the respondents. The CAS apprehended A.G. on […], 2014.

[2] While G. was allowed access to A.G. for a period of time after her birth, it was terminated in May of 2015, and she has not had access to A.G. since.

[3] The CAS moved for summary judgment, seeking Crown wardship for A.G. with no access. On November 19, 2015, after a two-day hearing, Kukurin J. (“the motions judge”) denied the summary judgment motion.

[4] The CAS appeals on the grounds that the motions judge erred by dismissing the motion for summary judgment. In particular, the CAS submits that the motions judge erred in the following ways:

a. By ruling that G.’s party status was an issue requiring a trial;

b. By ruling that the issue of who had “charge” of the child at the time of apprehension was an issue requiring a trial;

c. By ruling that the validity of the custody agreement between the respondents and G. was an issue requiring a trial;

d. By not finding that A.G. was in need of protection, either by way of “risk of harm” or “abandonment” pursuant to s. 37(2) (b) or (i) of the Child and Family Services Act, R.S.O. 1990, c.C11 (“ CFSA ”).

[5] A.G. turned one year old at approximately the same time that the decision denying summary judgment was appealed by the CAS. A.G. was taken into care from the hospital and has been in the continuous care of the CAS from the day after her birth to the present.

[6] In hearing this appeal, I had the same affidavit material and thus the same evidence as the motions judge, which included affidavits of the CAS and of G.

[7] For the reasons set out below, I allow the appeal and find that A.G. is “a child in need of protection” on the basis of s. 37(2) (i) of the CFSA .

Background

[8] The respondents had three children in their care before A.G. These three children had been found in need of protection pursuant to s. 37(2) of the “ CFSA ”. Custody of the oldest had been awarded to his maternal grandmother, while custody of the younger two, the biological children of the respondents, was granted to the paternal grandparents pursuant to s. 57.1 of the CFSA on […], 2014, fewer than three months before the birth of A.G.

[9] A.G. was born […], 2014 at Health Sciences North in Sudbury, Ontario. On […], 2014, at about 2:40 p.m., a nurse at the hospital contacted the CAS about A.G.’s birth. The respondents had left the hospital, leaving A.G. with G., who had been present at the birth. Prior to that contact, the CAS did not know that A.G. had been born, or even that C.G. was pregnant.

[10] That was by design of the respondents. On […], 2014, immediately after the birth of A.G., the respondents and G. signed a “Child Custody Agreement”. G. was designated in the document the “Custodial Mother”. The agreement provided:

1. [The respondents] are the biological parents of [A.G.] born […], 2014 and hereby grant G. full/sole custody of [A.G.].

2. The biological parents shall have access to the child [A.G.] at the sole discretion of G.

[11] The agreement was signed by all parties but was not notarized by a lawyer or on legal letterhead. Accordingly a concerned nurse contacted the CAS for assistance. The CAS attended at the hospital immediately, and A.G. was apprehended. On the child’s discharge from hospital on December 1, the CAS placed her in a foster home.

[12] In an interview with CAS worker Amanda Tessier on […], 2014, G. explained that the plan for G. to “adopt” A.G. had been devised two months prior. C.G. approached G. to adopt her child. C.G. did not share this plan with the CAS because she was afraid that the CAS would not approve G. to care for the baby.

[13] Child Care Worker Ginger Radey spoke with C.G. on December 2, 2014. C.G. told Radey that she had been avoiding contact with the CAS because of her pregnancy. The respondent D.S. was the father, but C.G. also had not wanted D.S.’s parents, who had custody of the younger two children, to know about the pregnancy. C.G. acknowledged her inability to care for the child.

[14] The respondents have had issues as parents that have caused concern to CAS and the courts. Drug use, family violence, inability or unwillingness to remain apart from one another, and lack of cooperation with the CAS were extensively documented in materials put before the motions judge.

[15] On December 3, 2014, Keast J. placed A.G. in the interim care and custody of the CAS. The respondents were to have no access, but G. was to be given access; whether that access was supervised was to be at the discretion of the CAS.

[16] The CAS began to work up a “kin assessment” of G., involving home visits with G. in December 2014 and January 2015. The CAS did not view G. as an acceptable placement, and their concerns are reflected in the May 14, 2015 decision of Humphrey J.

[17] The CAS went forward on an application for Crown wardship with no access, and seeking to have A.G. adopted. While it initially sought a finding that A.G. needed protection only on the basis of “abandonment” pursuant to s. 37(2) (i) of the CFSA , the CAS added grounds relating to risk of physical harm, pursuant to s. 37(2) (b)(i) and (ii).

[18] On April 28, 2015, G. moved for party status under rule 7(5) of the Family Law Rules , O.Reg. 114/99 (“ FLR ”). Her motion was noted withdrawn on consent on May 1, 2015 before Humphrey J., who went on to order that “[n]o further motion for party status shall be brought by Ms. G. in this proceeding without leave of the Court.” G. made no further efforts for party status prior to the matter being dealt with by the motions judge on the CAS motion for summary judgment.

[19] In a Decision of May 14, 2015, Humphrey J. struck out the clause in the order of Keast J. granting access to G., who, he found, “is not related to the child or [C.G. or D.S.]”. Justice Humphrey went on to find (in paragraph 4 of his decision):

The Society explored [G.] as a caregiver for the child. It does not approve her for placement of this child. The affidavits filed in support of its motion [for Crown wardship] indicate that her plan of care at present is not sustainable given the observed deplorable condition of her accommodation and the uncertainty regarding how she would manage the child. She has no employment and little education and her financial resources are said to be meagre. No admissible evidence was proffered by the respondents to support her continued access to the child upon the hearing of this motion. This is the third time Ms. G. has come forward as a caregiver for parents unrelated to her who have been unable to care for their children.

[20] In his Decision, however, Humphrey J. did permit the respondents to advance G. as a potential caregiver for A.G. at trial, though he found (para. 7) that this would “require a more fulsome explanation of her circumstances and her plan.”

[21] G. moved for leave to appeal Humphrey J’s access decision to Divisional Court on May 21, 2015. She abandoned her effort at appeal on June 26, 2015, reflected in an Order of that date.

[22] The motion for summary judgment was argued August 17, 2015 and September 29, 2015. There is no indication that G. ever applied again for party status. Rather, counsel for the respondents advanced G. as central to their plan of care, and filed her affidavit as their evidence at the hearing.

[23] On November 19, 2015 the motions judge released judgment. The CAS appealed on December 17, 2015.

[24] Neither the respondents nor G. have had access to the child since May 15, 2015. More than a year has passed for this child since then and the child has been in care for more than 18 months.

Standard of Review

[25] The standard of review on a question of law is correctness. Questions of mixed fact and law which involve the application of a legal standard to a set of facts are subject to appellate review on a standard of palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. A palpable error is one plainly seen on the face of the record, where for instance the presiding judge failed to consider relevant factors or evidence: see Catholic Children’s Aid Society of Toronto v. G.S., 2004 ONSC 7360, [2004] O.J. No. 3460 (S.C.), at para. 17.

Legislation

Child in Need of Protection: CFSA s. 37(2) (b) and (i)

[26] In this case, the CAS sought a finding that the child A.G. was in need of protection on the bases of ss. 37(2) (b)(i) and (ii) and 37(2)(i) of the CFSA , which provide:

37. (2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

(i) the child has been abandoned, the child’s parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody[.]

Summary Judgment

[27] The Family Law Rules provide for summary judgment in child protection cases in Rule 16:

16.(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.

NO 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.

[28] Recent amendments expand the powers of the motions judge on summary judgment by permitting the judge, in order to determine whether there is a genuine issue for trial, to weigh evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence ( Rule 16(6.1) of the FLR ). The motions judge may also conduct a mini-trial with oral evidence ( Rule 16(6.2) ), determine issues of law and grant judgment thereby ( Rule 16(8) ), and give directions on trial issues ( Rule 16(9) ).

[29] Summary judgment is not reserved only for the clearest of cases. Rather, the Court must ensure that the best interests of the child can be addressed on the evidence before the court. If there is no triable issue, the best interests of the child require the certainty about the child’s future that the conclusion of the matter can provide: see R.A. v. Jewish Family and Child Service , [2001] O.J. No. 47 (S.C.), at para. 20 . In practical terms, “no general issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant”: see Children’s Aid Society of Niagara Region v. S.C., 2008 ONSC 52309, [2008] O.J. No. 3969 (S.C), at para. 43.

Issue 1: G. as party

[30] In his discussion about parties to the proceeding, the motions judge pointed out that s. 39(1) of the CFSA included the child’s parent as a party, and that the definition of “parent” in s. 37(1) included an individual having “lawful custody of the child” and an individual who “under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.” The motions judge continued at para. 45 that the CAS had decided that G. was not a statutory party, and he held that “[w]hether G. should or should not be, or more precisely, is or is not, a party in this case is without any doubt a genuine issue. In fact, it is the pivotal issue.”

[31] The motions judge considered the course of the proceedings in the case, and decided that no prior judge involved in the case had made an order “that G. is not a party” (para. 46). Even after reviewing the order of Humphrey J. of May 1, 2015, that “No further motion for party status shall be brought by Ms. G. in this proceeding without leave of the Court”, the motions judge found that G.’s “party status, or lack of party status, is not enshrined in any formal order, is not able to be appealed, and remains an issue in this case.” He concluded that “this is still an issue that could be one requiring the court’s consideration and decision. It remains, in the submissions made on behalf of the parents…, a live issue that requires a trial” (para. 55).

Analysis

[32] With the greatest respect, in holding that the issue of G.’s party status was an issue requiring a trial, the motions judge fell into legal error.

[33] The issue of G.’s party status was clearly dealt with by Humphrey J. in his May 1, 2015 Order, which provided for an application by G. to achieve that status. That G. was not a party to the proceedings was recognized by G. herself in her affidavit of August 12, 2015, at para. 31, which begins: “As I am not a party to the proceeding…”. This affidavit was before the motions judge, and is referred to in para. 20 of his Reasons.

[34] There is no evidence in the record that G. sought leave to bring a motion for party status pursuant to the May 1, 2015 Order of Humphrey J. How could this be an issue at all for determination, when G. did not even seek party status using the route established for her by the Order of Humphrey J.? And if G. did seek that status before the motions judge, and he was concerned about her party status, why did he not establish G. as a party immediately, rather than postpone decision on this issue to the trial judge?

[35] The question on summary judgment of whether there exists a “genuine issue requiring a trial” relates to genuine issues of material facts. As Sherr J. noted in Catholic Children’s Aid Society of Toronto v. L.M., 2011 ONCJ 146, at para. 9:

The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every dis-agreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact.

[36] In his Reasons, the motions judge defined three issues for his determination in the context of the motion for summary judgment: “finding in need of protection, disposition, and … access” (para. 23), and that assessment appears unassailable. But to which of these issues, then, can G.’s party status be linked?

[37] The short answer is that G.’s party status can be linked to no trial issue, because it is a preliminary issue - a procedural step that precedes determination of the material issues legitimately before the court for substantive determination: see for example Children’s Aid Society, Region of Halton v. T.(J.), 2014 ONCJ 314, at paras. 3, 21-24. G. was available to be advanced as a potential caregiver by the respondents as part of their plan of care; her availability as a party was not itself a material fact whose determination required a trial.

[38] The motion judge erred in law in adopting the respondents’ view that G.’s party status was a “live” issue that required a trial.

Issue 2: Validity of the custody agreement

[39] The validity of the custody agreement in this case was the central issue for determination on the motion for summary judgment. The respondents acknowledged that they were not in a position to care for A.G.; they advanced G. as their plan of care, pursuant to the agreement that they entered into immediately after A.G.’s birth. If the agreement was valid, the respondents could be found to have appropriately left their child A.G. in the nurturing hands of an alternate caregiver. If invalid, the respondents abandoned A.G. at the hospital, having put in place no reasonable plan for A.G.’s long-term care. In such circumstances, A.G. could be found in need of protection pursuant to s. 37(2) (i) of the CFSA .

[40] The motions judge considered this issue neither “esoteric” nor “frivolous” (para. 58). He was of the view that there had been no judicial pronouncement on the validity of the agreement (para. 59), and that the agreement raised the important question (para. 60): “Can parents faced with the potential loss of their children to the society, and through the society to strangers, circumvent or avoid this eventuality by voluntarily placing their children in the custody of a caregiver who is able to adequately parent the child?” He held, at para. 80, that the validity of the agreement was “an argument for trial”.

Analysis

[41] Respectfully, presuming that the motions judge meant that the question of the validity of the custody agreement was an issue requiring trial, he erred.

[42] It is not the place of this Court to suggest that an agreement passing custody of a child from a birth parent to another person will never merit the protection of a court. However, in the exercise of a court’s jurisdiction over matters involving the CFSA , it is essential that the court always bears in mind the paramount purpose of the CFSA , as set out in section 1 :

1(1) Paramount purpose

The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

[43] The purposes enunciated in child protection legislation must guide the conduct and thinking of the court: Fortowsky v. Roman Catholic Children’s Aid Society for Essex (County) , [1960] O.J. No. 600 (C.A.) , at para. 6 . The best interests, protection, and well-being of children must animate the decisions of the courts in child protection cases.

[44] In the particular circumstances of this case, on uncontested evidence before the court at the hearing of the motion, the respondents purported to vest in their friend and themselves greater rights of custody and access than they knew they could possibly achieve after the anticipated intervention of the CAS.

[45] When the intention of such a document as the agreement in this case is to frustrate the statutory duty of the CAS to ensure that children are protected, in situations where the parties to that agreement have reason to know or even suspect that a statutory child welfare agency will intervene in the ordinary course and seek to prevent or limit custody or access to the parties to the agreement, then courts must refuse to give effect to such arrangements: cf. Children’s Aid Society of Cape Breton-Victoria v. H.A., 2004 NSSF 49, 223 N.S.R. (2d) 45 (S.C. Fam. Div.), at paras. 12-17.

[46] To do otherwise is to permit parents who present protection concerns to contract out of legislation that seeks to ensure the best interests of children. The most vulnerable person involved in such an agreement, the child, has no say in it. Yet the CAS was created to protect the child’s best interests. As Rogers J. noted in Child and Family Services for York Region v. P.E. , [2003] O.J. No. 4884 (S.C.) , at para. 4 , “the society has a mandate to protect children, and children have a right to be protected.” In a related and applicable sentiment, in the context of child custody issues between parents, Spence J. properly observed: “ when it comes to children, parents must be discouraged from engaging in self-help”: see Children’s Aid Society of Toronto v. S. A., 2008 ONCJ 348, at para. 53.

[47] The uncontested evidence before the motions judge was that the respondents and G. attempted to use their agreement to avoid oversight by the CAS, as they feared that the CAS would not approve of G. Respondent C.G. even hid her pregnancy from the CAS to avoid CAS intervention. In addition, a right of access to these parents in the discretion of their friend G. undermines the legitimate protection concerns of the CAS. Accordingly, the agreement was created to block intervention by the CAS, and cannot be given effect; it is a nullity.

[48] Therefore, the motions judge erred by holding that the validity of the custody agreement between the respondents and G. was an issue requiring a trial.

Issue 3: Child in Need of Protection

[49] On the ground of child abandonment as the basis for the finding that A.G. was “in need of protection”, the motions judge reasoned as follows, at paragraphs 78-80:

[78] I am unable to conclude that there is no genuine issue for trial with respect to this ground. The argument of the society on this issue is not exactly clear. It may be either

(a) that leaving the child in the hospital in the care and custody of [G.] was an abandonment of the child, as [A.G.] was a totally incompetent custodian and caregiver; or

(b) that the "Child Custody Agreement" was a nullity in terms of transferring care and custody, and the child was essentially left with only hospital personnel as her only (lifelong) custodian, a totally unacceptable arrangement tantamount to abandonment.

[79] In the case of the former, there is some evidence that [G.] was acting in a competent caregiving manner while the child was still in the hospital, and that her care of the child during the period she was exercising access was, with one alleged exception, fairly satisfactory. That one exception was addressed and explained by her and the jury is still out on whether this was a dereliction of her care of the child, or an acceptable delegation of child care to her sister, a mother of three, temporarily, while she went to the bathroom. In short, this is not an area where the evidence is anywhere close to establishing that [G.] was so inappropriate a caregiver that leaving the child with her was in effect abandoning the child.

[80] In the case of the latter, the society has not provided any convincing argument that the "Child Custody Agreement" was a nullity, or that it was invalid, or that it did not do what it purported to do, namely transfer custodial rights from the biological parents to [G.]. This is an argument for trial, not only as an issue of law, but in this case, with respect to this particular agreement, more an issue of mixed fact and law.

[50] In its submissions concerning abandonment, the appellant argues both that A.G. was literally abandoned by the respondents and also that, without a valid custody agreement, the court must find that insufficient arrangements had been made for A.G.’s care and custody under s. 37(2) (i) of the CFSA . The respondents, like the motions judge, point to the custody agreement between themselves and G. as capable of creating arrangements sufficient to avoid a finding under s. 37(2) (i).

Analysis

[51] The motions judge committed palpable and overriding error in refusing to find, on the uncontradicted evidence in this case, that A.G. was in need of protection pursuant to s. 37(2) (i) of the CFSA .

[52] The motions judge found, in paragraph 79 of his Reasons, that the evidence did not establish that G. was so inappropriate a choice as caregiver that it was abandonment to leave the child with her. I cannot say that that finding by the motions judge was so ill-considered as to represent palpable and overriding error.

[53] However, it is clear from paragraph 80 of the motion judge’s Reasons that the CAS argument went beyond mere “abandonment” simpliciter , to that portion of s. 37(2) (i) of the CFSA which states that a child is in need of protection where “the child’s parent … is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child’s care and custody …”. The CAS argument was and is that, in the absence of a valid custodial agreement that makes adequate provision for the child’s care and custody, the child is in need of protection, as she was left by her parents at the hospital or simply with their friend G., without any sufficient provision for her care and custody.

[54] Because the motions judge erred in not holding that a court must not give effect to the custodial agreement in this case, he ruled that the determination of the abandonment issue, like the validity of the custodial agreement, was a matter requiring trial.

[55] This was palpable and overriding error. I have already found error in the holding that the validity of the custodial agreement was a matter for trial - the agreement cannot be given effect. Without that agreement, A.G.’s parents must be found to have made no adequate provision for her care and custody when they walked out on her and were unavailable to her, leaving her at the hospital with their friend, with no intention of returning.

[56] Having found that the motions judge made these errors, I do not need to continue on to consider the issues of who had “charge” of A.G. or whether A.G. was in need of protection also pursuant to s. 37(2) (b) of the CFSA .

Conclusion

[57] For the above reasons, the appeal is allowed.

[58] Section 134(1) of the Courts of Justice Act , R.S.O. 1990, c. C.43, permits this Court, sitting in appeal, (a) to “make any order or decision that ought to or could have been made by the court or tribunal appealed from”, and (b), to order a new trial. Moreover, “on a child protection appeal, a substitute order rather than a direction for a new trial should issue whenever reversible error is found”: see T.W. v. Children’s Aid Society of Renfrew and Pembroke , [1999] O.J. No. 3210 (S.C.), at para. 30 .

[59] In my respectful view, had the motions judge not erred in the ways set out above, he must and should have found that the child A.G. was a child in need of protection on the motion for summary judgment pursuant to at least CFSA s. 37(2)(i). I find that, on the evidence on the summary judgment motion, there was no realistic possibility of an outcome other than that one, but for the errors committed by the motions judge.

[60] On the evidence that was before the motions judge, and that is before this Court on appeal, pursuant to s. 47(2) of the CFSA I find that:

a. A.G. was born […], 2014. She is one year old;

b. The child was apprehended at Health Sciences North in Sudbury, Ontario on […], 2014, and subsequently taken to a place of safety.

[61] I find that the child A.G. is in need of protection pursuant to s. 37(2) (i) of the CFSA .

[62] The Appellant also requests that this Court make an order for Crown wardship without access. That I am unwilling to do.

[63] It was part of the May 14, 2015 Order of Humphrey J. that G. could be advanced by the respondents on the trial of the matter as a potential caregiver, although this would “require a more fulsome explanation of her circumstances and her plan.” Perhaps in answer to that suggestion, the respondents put forward an affidavit of G., sworn August 12, 2015, at the motion for summary judgment.

[64] The motions judge, having decided that the case required a trial for the various reasons considered above, stated at para. 84 of his Reasons that the available options for decision, in light of the time that had passed with A.G. in CAS care, mandated a choice of disposition between Crown wardship and placement with G. Indeed, the time limits in s. 70 of the CFSA continue to be of concern in this proceeding, and encourage conclusion with all deliberate speed.

[65] On the affidavit material before the court on the motion, there were issues that could have been, but were not, explored about G.’s suitability to parent A.G., using the expanded powers for conducting a mini-trial with oral evidence pursuant to Rule 16(6.2) of the FLR . It is not this Court’s place to conduct such a hearing. It may also be that the CAS will want to investigate G.’s suitability further, given the new living arrangements she describes in her affidavit, among other things.

[66] At the request of the parties to this appeal, having reached this position, I make the following order:

The case is remitted back to the Ontario Court of Justice, before a different judicial officer than the judge on the motion for summary judgment, for the hearing of an expedited two-day trial, on fixed dates, to determine disposition under s. 57(1) or s. 57.1 of the CFSA .

[67] In order to ensure that the matter is not unduly delayed, I also order that

The CAS may bring a further motion for summary judgment regarding disposition, on Notice to the respondents and G.

[68] No costs were sought on the appeal, and none are ordered.

Date: June 29, 2016 A.D. Kurke J.

C.G. et al., 2016 ONSC 4332 FILE NO.: AP-67-15 DATE: 2016-06-29 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: THE CHILDREN’S AID SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN Appellant – and – C.G. and D.S. Respondents JUDGMENT ON APPEAL A.D. Kurke J. Released: June 29, 2016