COURT FILE NO.: FC-16-1642
DATE: 2018/02/06
SUPERIOR COURT OF JUSTICE OF ONTARIO
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of M.M. and C.L.
RE: The Children’s Aid Society of Ottawa, Applicant
AND
M.M., Respondent, Father
AND
C.L., Respondent, Mother
BEFORE: Madam Justice D. Summers
COUNSEL: Tara MacDougall, for The Children’s Aid Society of Ottawa, Applicant
Cedric Nahum, for the Respondent, Father
Annemarie Roodal, Kevin Doyle, for the Respondent, Mother
HEARD: December 12, 2017
endorsement
Nature of the Proceedings
[1] This is a motion for summary judgment brought by the Children’s Aid Society (the Society) under Rule 16 of the Family Law Rules, O.Reg. 114/99 (FLR’s) on an Amended Protection Application. The Society seeks a finding that the child, S. (D.O.B […] 2005) is in need of protection under one or all of sections 37(2)(b)(i), 37(2)(b)(ii) (physical harm), 37(2)(c) (sexual molestation) and 37(2)(g) (emotional harm) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA). The disposition sought is an order under s. 57.1 of the CFSA placing the child in the custody of the mother, with access to the father, at the mother’s discretion.
[2] The mother consents to the motion. The father opposes, and asks that the matter proceed to trial where he seeks to have the child returned to his care.
[3] On January 22, 2018, I released a brief endorsement dismissing the Society’s motion with reasons to follow. These are my reasons.
Background
[4] The mother and father separated in 2007. Four years of custody litigation ensued. In 2011, at a Settlement Conference, they signed Minutes of Settlement agreeing to joint custody and equal parenting time under a three day/ four day schedule in alternate weeks. Although the Minutes provided for an alternating week schedule when S. reached 8 years of age, at that time, the parents agreed to continue the original schedule. Neither party ever sought to formally vary their order to clarify their ongoing agreement.
[5] The only prior involvement of the Society with this family was in 2007 after separation as result of an access dispute. The father attended for access based on what he stated was a verbal agreement. The mother denied any such agreement and refused to release the child. The police were called. The father was told he could not remove S. from the mother’s care. He learned later that the mother told the police and the Society that he had threatened her – an allegation he still denies.
[6] This protection proceeding arose out of events that occurred between June 23, 2016 and August 11, 2016, when S. was apprehended.
[7] On June 23, 2016, the parents and child attended an appointment with her pediatrician. S. had been acting out in school in ways that included angry outbursts, swearing at her teacher, trembling, and crying in class. While waiting for S. to finish speaking privately with the doctor, an argument erupted between the mother and the father about child support. The disagreement continued into the parking lot. The mother contacted the Ottawa Police Services (OPS) but the father left before they arrived.
[8] This incident was reported to the Society. It was stated that the father had acted toward the mother and others in a verbally aggressive and physically intimidating manner, in the presence of S.
[9] The next incident occurred on July 31, 2016. The parties spoke by telephone that day and disagreed about when the father’s access with S. would end. The mother said he was to return the child that morning at 10:30 a.m.; the father argued that they had verbally agreed that access would not end until the next day, August 1, at 10:30 a.m. The mother denied any such agreement and contacted the police.
[10] The police attended the father’s home that evening with a copy of the custody order in hand. After a heated exchange with the father and observing the child to be tearful and frightened, the police removed S. from her father’s home and returned her to the mother. This incident was reported to the Society with a description of the father as angry and confrontational. It was also said that his thoughts seemed somewhat erratic.
[11] The child protection worker assigned to the case met with the father on either August 10th or 11th, 2016. The father insisted the meeting took place on the 10th whereas the child protection worker stated it was on the 11th. Each has very different versions of the other’s behaviour on that day. That was the only meeting ever between the Society and the father. Declaring his profound mistrust of the agency, the father has since refused all requests to meet or cooperate with them to address their safety concerns for S. He denies any wrongdoing and believes that cooperating with the Society will somehow add credibility to their position that he poses a threat to his daughter.
[12] On August 11, 2016, the child protection worker learned from the mother that S. had been returned to her father’s care that day in compliance with the custody order. The mother told the worker that she was concerned for her daughter’s safety. That evening, the police and a different child protection worker made an unannounced visit to the father’s home. Another heated exchange ensued between the father, the police and the child protection worker. Eventually, the worker was able to have a private conversation with S. who was scared and teary, and the decision to apprehend was made. The father and child have not seen one another since that night.
[13] On August 16, 2016, Justice Mackinnon made a temporary, without prejudice, order placing S. in the care of her mother subject to the supervision of the Society. The father was granted supervised access.
[14] The interim care and custody motion was not argued until March 13, 2017. On March 22, 2017, Justice Sheard ordered temporary care and custody to the mother subject to the supervision of the Society. The father was granted access at the Society’s discretion and multiple conditions were ordered.
The Issue
[15] The issue to be determined is whether there is a genuine issue requiring a trial.
The Rule
[16] Rule 16 of the FLR governs motions for summary judgment. For purposes of this motion, the key sections of the Rule are:
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. O. Reg. 69/15, s. 5 (1).
Position of the Parties
[17] The Society argues that it has made out a prima facie case that there is no genuine issue requiring a trial. As proof, they rely on multiple statements made by S. to the five child protection workers involved in the file and to various third parties who have recounted the child’s statements back to the Society. These third party reports include statements that the child allegedly made to her teacher, to her counsellor at Catholic Family Services, and to the police officers involved in the case. The statements support the claims that S. was sexually abused either by her father or someone else while in his care; that the father forced her to watch pornography with him; that the father pushed and hit S. hard enough to leave bruises; and, that he is prone to angry outbursts that cause him to yell and swear at S. and others in a way that frightens her.
[18] The Society also relies on the child’s repeated statements that she does not wish to see her father, even in a supervised setting, and the fact that father and daughter have not seen one another since she was apprehended because he refuses to cooperate or even communicate with the Society.
[19] The Society also presented evidence indicating that the mother has cooperated with it from the outset and no concerns have been noted regarding her ability to care for S. The mother has ensured appropriate professional supports for S. since her apprehension. S. appears to be happy and doing well in her care. The Society submits that an order placing the child in the sole custody of the mother is the least intrusive disposition that is consistent with the child’s best interest.
[20] The father advances three arguments in defence of this motion for summary judgment. His principal argument is that much of the information relied on by the Society is inadmissible hearsay. He states that the affidavits filed by the child protection workers are rife with hearsay including double hearsay repeating third party accounts of the child’s alleged statements. One example is the child protection worker deposing to what the mother told him about what S.’s teacher reported that S. said to her.
[21] The allegations made by the Society and the mother are highly disputed by the father. He argues that she has been trying to orchestrate sole custody for herself since separation. He says she is manipulative and that her account of events is less than fulsome and should not be believed. He points to the new and evolving nature of the child’s allegations since apprehension and questions the extent of the mother’s influence over S. His concern is for parental alienation.
[22] The father argues his need and right to test the evidence against him. His evidence before the court consists largely of denials and in some cases, his version of events – especially those leading up to the apprehension. In this instance, it is difficult to imagine how he could do more than deny the allegations against him.
[23] Dates for cross-examinations had been discussed by counsel but a misunderstanding and subsequent scheduling conflict did not leave sufficient time for the parties to complete examinations before the return of the motion. With the trial scheduled to proceed in February, 2018, a decision was made to proceed with the motion, without conducting cross-examinations.
[24] Finally, the father submits that the Society did not given proper notice of all of the evidence that they intended to rely on in this motion. Their Notice of Motion lists only one affidavit whereas four were argued in their Factum and oral presentation.
Analysis
(i) Hearsay
[25] The central concern in this motion is the Society’s significant reliance on hearsay statements considering the inherent vulnerabilities in such evidence.
[26] In The Children’s Aid Society of Ottawa v. J.B. and H.H., 2016 ONSC 2757, Justice Mackinnon stated, “The starting point in addressing the admissibility of hearsay evidence is that it is excluded, unless the proponent of the evidence satisfies the court that the two branches of necessity and reliability have been met on a threshold basis.” She goes on to state her agreement with Justice Sherr in Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 646.
He said:
“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 that determination.”
[27] The Society submits that the child’s hearsay statements are both necessary and reliable and should, therefore, be admitted into evidence. On the issue of necessity, I accept the argument that the age of the child and the nature of her disclosures make it inappropriate for her to give direct evidence under oath and to be subject to cross examination.
[28] I do not, however, accept the Society’s argument that the hearsay statements meet the threshold test of reliability because many of them were made to the third party professionals such as child protection workers, teachers, counsellors and police officers. Counsel argued that child protection workers take interview notes knowing that the information in those notes may be relied on in court, therefore, they invite greater deference. While the accuracy of the notes is an important factor to consider, it does not address the reliability of the declarant’s statement, and is, therefore, insufficient on its own to establish threshold reliability.
[29] Moreover, the professional role of the note-taker is more persuasive where the affiant is aided by his or her own notes than is the case where the affiant deposes to his or her understanding of another worker’s notes about statements made by the child. This is especially so when the corresponding case notes have not been provided.
[30] In a similar vein, it is argued that the child’s statements to her counsellor are reliable because the counsellor is someone who is under a duty to report potential abuse and that those statements are inherently reliable because they were made spontaneously by the child in the context of the counselling relationship. The difficulties with that submission are twofold. First, a professional obligation to report is not, in and of itself, an index of reliability. Second, there is no evidence here to support the characterization of the child’s statement as spontaneous or otherwise.
[31] The Society led evidence that the child had sixteen sessions with the counsellor over several months. Neither case notes nor an expert report from the counsellor were tendered to provide context to the child’s statements.
[32] Much of the remaining disclosure relied on by the Society consisted of statements made by the child to a police officer with the Sex Assault & Child Abuse Unit in a formal interview that lasted for more than two hours. It was argued the circumstances surrounding those statements bestow a degree of reliability. Specifically, the Society refers to the fact that the statements were made to an officer, at the police station, in a formal interview setting. The Society elaborated further to say that the child protection worker affiant was present at the police station and observed the interview. Although the worker’s presence might be implied from his affidavit, he does not actually say that he was present and heard the statements made by the child.
[33] Below, I summarize a few of the most cogent examples of the hearsay statements proffered by the Society. Without more, these statements cannot be taken as meeting the test for threshold reliability:
On September 8, 2016, the child protection worker states that he spoke with the mother by telephone. The mother said that S. disclosed to her teacher that she was worried that she may have a mental illness because she rocks back and forth on her bed and makes sounds.
On September 22, 2016, the child protection worker states that S.’s teacher called the Society to report a disclosure from S. describing a memory of being at a park with her father when she was two or three years old and he let her go off with a stranger who then “touched her down there” and then pointed to her genital area. The teacher further reported S. telling her about another time when she was 7 years old when her father let her go off with a stranger. S. did not mention any touching but said she felt uncomfortable. According to the teacher, S. also said that she was having trouble in school because these memories kept popping up.
On February 23, 2017, the protection worker states that S.’s counsellor at Catholic Family Service called the Society to advise that S. had just disclosed a blurry memory of someone touching her and that person was her father. No other details were disclosed. The child protection worker further deposed that the counsellor reported that S. had disclosed to her mother last week that her father made her watch pornographic movies. S. was present for the called that was conducted on speaker phone.
On October 13, 2017, the worker states that he spoke to S.’s counsellor by telephone and the counsellor said that S. spoke to her about more memories of sexual abuse that surfaced over the summer. The counsellor told the worker that S. did not provide details of the memories. She had chosen to write them down and then tear up the paper which was a strategy they had discussed in counselling.
On March 6, 2017, S. was interviewed for over two hours by a member of the Ottawa Police Services Child Sexual Abuse Unit. The Society relies on a number of the child’s statements from that interview including: her statement that she watched pornography with her father; that she knew it was pornography because her father told her; her description of pornography as a person doing things to another person, getting naked, using a condom; her description of pornographic movies as all sex and nothing else; her answer when asked if anyone had ever touched her private parts that she feels like someone did when she was younger and pointed to her groin; her answer, “my Dad, I think” when asked who touched her ; her statement that her dad would get really mad and push her into walls and stuff and sometimes it would leave bruises; her statement that she never told anyone; her statement that her dad would hit her on her arm with his fist; that she once hit him in the face and he hit her back in the face and it hurt; her statement that when she had marks or bruises she said she fell in gym; her answer that her dad would have hit her a lot, maybe daily, when asked how many times.
[34] I agree with the father that the Society could have put a better and more reliable evidentiary record before the court in the form of affidavits from the teacher and the various workers involved in the file. If some of the workers were not available to swear affidavits, the Society could have provided case notes to lend a degree of reliability to the various hearsay statements reported by the affiant. More compelling yet would have been an expert report from the counsellor and the video of the police interview with the child.
[35] The Society chose not to obtain the better evidence that was available to them. When asked about the availability of the interview video and transcript, counsel explained that proffering the video or transcript was not seen as necessary. Although the Society initially submitted that the only hearsay that the court needed to consider admitting for the truth of its contents were the statements made by the child, the agency also argued that there was sufficient evidence to support their motion for summary judgment even if the hearsay statements were not admitted. In this regard, the Society points to the father’s refusal to cooperate with the Society, to the fact that he has not seen S. since she was apprehended, to the child’s repeated statements that she does not want to see him and to certain admissions made by the father. These admissions include: his acknowledgment that the child was struggling and acting out at school in 2016; that the argument with the mother in the pediatrician’s office and subsequent yelling in the parking lot were wrong and upsetting to S.; and, that he was angry and upset to have the police twice appear at his door alleging wrongdoing.
[36] As permitted under Rule 16(5) of the FLR’s, I draw caution from the extent to which the Society relies on evidence that is not based on firsthand knowledge. Based on the record provided, I have no way of assessing the circumstances surrounding the child’s statements including her appearance, her demeanor, her disclosures and whether they were spontaneous or prompted by the nature and manner of the questions put to her. As a result, I am not satisfied that the hearsay statements proffered meet the threshold test of reliability and, therefore, they are not admissible on this motion.
(ii) Genuine Issue Requiring Trial
[37] The first thing the court must do on a motion for summary judgment is determine if there is a genuine issue requiring trial based only on the evidence presented. If the evidence enables the judge to make the necessary findings of fact and apply the law to those facts in way that is fair and just to decide the dispute in a manner that is timely, affordable and provides a proportionate procedure, there will be no genuine issue requiring a trial. Put another way, “a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute.” (See Hryniak v. Mauldin, 2014 SCC 7).
[38] I do not accept the Society’s submission that even with the hearsay statements excluded, the remaining evidence is sufficient to grant their motion. On the contrary, I am not able to rule out the father’s theory that the mother has coached or inappropriately influence the child based on the evidence presented. Therefore, I cannot conclude, with confidence, that there is no genuine issue requiring trial.
Conclusion
[39] The motion for summary judgment is dismissed.
Madam Justice D. Summers
Released: February 6, 2018
COURT FILE NO.: FC-16-1642
DATE: 2018/02/06
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of M.M. and C.L.
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: The Children’s Aid Society of Ottawa, Applicant
AND
M.M., Respondent, Father
AND
C.L., Respondent, Mother
BEFORE: Madam Justice D. Summers
COUNSEL: Tara MacDougall, for The Children’s Aid Society of Ottawa, Applicant
Cedric Nahum, for the Respondent, Father
Anne Marie Roodal, Kevin Doyle for the Respondent, Mother
ENDORSEMENT
D. Summers J.
Released: February 6, 2018