Court File and Parties

COURT FILE NO.: FS-18-47-00 DATE: 2019 03 15 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: L.M., Appellant AND: The Children's Aid Society of the Region of Peel, Respondent, Applicant to the Application AND: Office of the Children's Lawyer, Respondent, Independent Party to the Application

BEFORE: TRIMBLE J.

COUNSEL: Jessica Gagne for the Appellant, L.M. jessica@jessicagagne.ca Laura Shaw for the Respondent, CAS of Peel Lshaw@peelcas.org R. Misheal for the OCL sam@familyseparation.ca

HEARD: 10 December 2018

Endorsement

[1] The Respondent mother, L.M., appeals from the 30 January 2018 decision of Dunn J. in the Ontario Court of Justice, granting the Children’s Aid Society of the Region of Peel’s (the Society) motion for summary judgment. By that order, L.M’s three children (R.G., E.M., and S.M.) were made Crown Wards without access to L.M. Dunn, J. was not tasked to make an access order between the siblings after Crown wardship, and did not do so.

[2] The only parties to this proceeding (both before Dunn J. and on this Appeal) are L.M., the Society, and the Office of the Children’s Lawyer. Mr. G., R.G.’s father, did not participate. Mr. M., L.M.’s current partner, was noted in default on June 13, 2017. Mr. S., S.M. and E.M.s’ biological father, died on November 11, 2015.

[3] The original Summary Judgment motion was argued based on the Child and Family Services Act, as it then was. So was this appeal. No party argued that the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, or its transition regulation had any application to this appeal, although the CYFSA came into effect on April 30, 2018.

Issues on Appeal

[4] L.M. advances seven grounds for the appeal:

1. Dunn J. erred in law in failing to apply the proper legal test for Crown wardship summary judgment motion;
2. Dunn J. erred in law in reversing the onus on a summary judgment motion from the Society to the appellant with respect to the issue of the access order;
3. Dunn J. erred in taking judicial notice;
4. Dunn J. made a palpable and overriding error with respect to R.G.'s time in care;
5. Dunn J. erred in law in failing to consider whether R.G. remained in need of protection at the time of disposition, and if so, pursuant to which subsection of section 37 of the Child and Family Services Act (as it then was);
6. Dunn J. erred by failing to avert to and consider sections 70(4), section 57(2) and (3), and section 37(3) of the Child and Family Services Act (as it then was); and
7. Dunn J. provided insufficient reasons with respect to his admitting hearsay evidence and improper reply evidence.

[5] It is not clear from L.M.’s factum and argument whether she was taking the position that the alleged errors by Dunn, J., if found, raised an issue requiring a trial, and therefore the Summary Judgment order should be set aside, or whether the alleged errors, if found, were in and of themselves, sufficient to set aside the order, regardless of whether the error, once corrected, would have made a difference in the outcome.

[6] Perhaps this is a distinction without a difference. The outcome of this appeal, however, has rendered the question moot.

Disposition

[7] The appeal is dismissed.

[8] For reasons stated below, I find that Dunn J. committed no error in law, and his evidentiary findings supporting his legal conclusions were supported by ample evidence. With respect to the one alleged factual error, if it is an error, it is not a palpable and overriding error in that it would not have affected the outcome of the summary judgment motion.

Discussion

[9] I will deal, first, with the standard of review, the facts, and then with my analysis of the issues as L.M. framed them.

1. Standard of Review:

[10] The parties agree that the standard of review on appeal under the Child and Family Services Act, from an order granting summary judgment on motion, is as follows:

a) On questions of law, the standard of review is correctness. b) On questions of fact, the standard is palpable and overriding error. In other words, the court must not interfere lightly in a finding of fact. c) On questions of mixed fact and law, if the question of fact and law can be separated from each other, then the appropriate standard of review, above, applies to the separated questions of fact and of law. If the question of mixed law and fact cannot be separated, the standard is overriding error. Deference is due.

(See: CAS Regional Municipality of Waterloo v. M.(A.), 2015 ONSC 2496, paras. 18 & 19, citing Housen v. Nikolaisen, 2002 SCC 33, Archer v. Archer, 2005 CarswellOnt 1515 (Ont. C.A.), CCAS of Hamilton v. R.(C.), 2009 CarswellOnt 3850 (Ont. Div. Ct.).

[11] In Hryniak v Mauldin, 2014 SCC 7, at paras. 80 to 84, the Supreme Court of Canada added another aspect to law concerning the standard of review of summary judgment decisions. The court held that the decision to exercise the new powers under the new summary judgment rule, and the determination that there is a genuine issue requiring a trial, are both questions of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error. Further, whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

2. Facts:

[12] L.M. only takes issue with one finding of fact that Dunn J. made. The remaining factual findings are unchallenged. My recitation of facts derives from Dunn J.’s factual statement.

[13] L.M. is the biological mother of three children who are the subject of this proceeding: nine-year-old R.G., born […], 2010; four-year-old S.M., born […], 2015; and three-year-old E.M., born […], 2016.

[14] The summary judgment motion before Dunn, J. was brought within an amended protection application for S.M. and E.M. and a status review application for R.G. A previous judge had made the necessary protection findings with respect to R.G. pursuant to section 37(2)(b)(i), 37(2)(b)(ii), and 37(2)(d).

[15] By the time of the hearing before Dunn J., all three children were in care and had exceeded the statutory timelines. R.G., S.M., and E.M. had been in care for over four years and six months, one year and five months, and one year and five months, respectively. Dunn J. commented that they could not remain in care any longer in accordance with section 70 of the Child and Family Services Act. The only options before Dunn J. were Crown wardship, or return of the children to a L.M., with or without supervision.

[16] Since Dunn, J.’s decision, the children have spent another 14 months in care.

[17] On consent, the court found S.M. and E.M. were children in need of protection. L.M. submitted that she opposed the Society’s motion and requested that the three children be placed with Mr. M. and her, under supervision.

[18] L.M. said that she did not consent to a finding that R.G. was in need of protection. The Society says that L.M. consented to the order that R.G. was still in need of protection. Because of L.M.’s position, Dunn J. scrutinized L.M. and Mr. M.s’ lifestyle and parenting abilities.

[19] The Office of the Children’s Lawyer agreed to the order for wardship and no access to L.M., but argued that the children should have access to each other.

[20] L.M. and her family had a long history with various Children’s Aid Societies. The first was with the Toronto CAS, when that CAS apprehended R.G. at birth. R.G. was returned to L.M. after she married Mr. S. The family was subject to supervision by the Toronto CAS. In the orders placing R.G. with L.M. and Mr. S., L.M. was not to be alone with R.G. In February 2012 the CAS deemed that Mr. S. was an appropriate principal caregiver for R.G. and an effective support for L.M.

[21] In February 2014, the family moved to Halton Region, and the Halton CAS assumed jurisdiction.

[22] By October 4, 2015, the Halton CAS had concerns about R.G.’s safety because of a lack of supervision by L.M. and Mr. S. This concern appears to have been allayed as, by October 2015, the Halton CAS planned to end its court mandated supervision with the family, and enter into a voluntary supervision arrangement. On November 11, 2015, after E.M.’s birth, but before the CAS could end its court mandated involvement, Mr. S. died, and L.M. moved with the children into the home of an aunt who lived in Peel Region.

[23] Notwithstanding L.M.’s move, on December 17, 2015 the Halton CAS obtained a temporary order placing R.G., E.M. and S.M. under the Halton CAS’ supervision. L.M. was to live with her aunt and not be alone with the children for more than five hours a week.

[24] After the December 2015 order, the Peel CAS became involved to assist Halton CAS in monitoring the placement with the aunt.

[25] Between November 2015 and May 2016, L.M.’s aunt became increasingly uncomfortable with L.M. and R.G. in her residence. R.G. was disruptive and hard to control. The aunt asked that another placement be arranged.

[26] On April 26, 2016, while L.M. was carrying S.M. in her arms, the child was burned by a hot tray that L.M. was handling. L.M. viewed the episode as a one-off event of no consequence. The Society saw it as an example of the of L.M.’s lack of perception of safety concerns. Therefore, on May 16, 2016, Peel CAS apprehended R.G. and SM. On that same day, L.M. moved into Mr. M.’s residence.

[27] Mr. M. lived in the basement of a two bedroom bungalow. On the upper floor lived several of his adult children. In total, there were 8 people living the 2 bedroom bungalow, excluding R.G., S.M., and E.M.

[28] On May 20, 2016, Parent J. varied the December 17, 2015 order by O’Connell J. and placed R.G. and S.M. in the Society’s care with supervised access to L.M. twice a week.

[29] E.M. was born on […] 7, 2016. The Society apprehended him the next day and placed him in a different foster home from that of his siblings.

[30] Access visits with the children and L.M. (and sometimes Mr. M.) began in June 2016 [1].

[31] The Society’s case was built largely on the observations of five caseworkers who supervised the visits with the children and attended at the M.s’ home. A few of these visits were noted to be positive in that L.M. adequately met her children’s needs at that time; most, however, were not positive.

[32] L.M.’s position was that the notes emphasized the negative and under-emphasized the positive. She argued that she and Mr. M. had reasonable parenting skills. L.M. argued that with so many visits, observations, and observers, the records of the caseworkers were not reliable. No worker was present for the entire observation period of a year and a half and hence there was no overall coherence in their observations.

[33] Dunn J.’s found that the notes and the evidence given by the caseworkers showed that the M.s showed good parenting abilities on a few occasions. These displays of good parenting abilities, however, were not uniform, nor were they consistently demonstrated. Further, L.M. and Mr. M.’s parenting abilities did not improve as the visits progressed. Dunn J. rejected L.M.’s argument that it was hard for her to adjust to differing expectations of different supervisors. He held that they all had the same expectations, namely that L.M. show that she can manage three children at the same time.

[34] What were L.M.’s parenting strengths?

[35] Dunn J. found that L.M.:

• arrived on time for visits and was prepared for them;
• was well groomed and appropriately dressed;
• could redirect the children’s behavior;
• met the children’s physical needs;
• engaged with each child;
• set boundaries for children’s behavior;
• problem solved;
• could settle the children;
• offered praise to the children;
• managed safety concerns;
• received support from Mr. M. to meet the children’s needs;
• shared responsibility with Mr. M. for the children’s care; and
• got along reasonably well with the children’s foster parents and with Society personnel.

[36] Dunn J. Found that L.M. had several significant parenting difficulties, which he grouped under specific headings, as follows:

a. L.M. appeared overwhelmed by caring for three children, at one time, during access

[37] L.M. required constant support with the children. She preferred to see E.M. on one day and the other two children on another. When this arrangement was followed, she could care for E.M. reasonably well. Most of the visits, however, were with all three children.

[38] L.M. could not supervise all three children. She often was unaware that one or more of the children had wandered off. Society workers had to assist. If one or more of the children wandered off, either L.M. stayed with the other child(ren), or left the other child(ren) to look for those that had wandered off.

[39] She often placed R.G. in charge of watching his siblings when she left the room to do something. This was inappropriate. R.G. was under 8 years old. He suffered from ADHD, oppositional defiant disorder, autism spectrum disorder, and a learning disability. Further, he and S.M. rarely obeyed L.M.’s direction.

[40] During Society visits to supervise access, Society workers had to be vigilant about the children’s safety and intervene frequently in L.M.’s care. When Mr. M. was present, he provided some relief to L.M., particularly in feeding E.M. because L.M. had difficulty getting E.M. to eat. Mr. M., however, was not consistent in his support of L.M., especially with respect to R.G. because R.G. and he did not get along.

[41] L.M. frequently asked the supervisors for help in managing one or more of the children. L.M. saw her ability to recognize a problem and request help as a strength. Dunn J. did not. There was no one to assist when the supervisors were not present.

[42] Dunn J. determined that L.M. could not parent her three children at once because she did not know the children well and could not anticipate their moves and be on alert for safety issues. The house in which they lived, while small, had two floors. The M.’s had a sitting area, cooking area (hot plate) and washroom in the basement, and a bedroom on the main floor. Mr. M.’s other children lived in the house, but provided no assistance with the subject children. It was impossible for the parents to be everywhere. The children had a tendency to wander, and could be out of eyesight.

b. L.M. never parented on her own because of her own limitations

[43] L.M. never parented on her own. She always had the assistance of her various spouses or partners, for a short period, her aunt, or one or more CASs. When she was married to Mr. S., he was the principal caregiver. When L.M. lived with her aunt, she was only granted five hours a week with the children and only when she was under the supervision of the aunt. The evidence of the Society’s workers was that both Mr. M. and L.M. had and have parenting issues, which raised serious doubts about how the children might fare under their care.

c. L.M. could not read and react to the children’s cues

[44] On several visits, L.M. did not appreciate that E.M. wanted to be fed. On other occasions she did not see the signs that R.G. wanted to be engaged with her. Indeed, L.M. often became frustrated with R.G. when he requested attention.

d. Poor hygiene

[45] The family had chronic personal hygiene problems that did not improve despite the Society’s workers’ advice. Mr. M. and L.M. were not clean. They had very poor washing habits, constantly emitting body odour and stale cigarette smoke. Sanitation in the house was very poor. On several visits, the shower and sink in the bathroom did not work. The diaper changing area was dirty. Workers counseled the couple frequently on these issues. L.M. said that she implemented the suggestions of the workers. This was not evident. There was never any improvement.

e. Poor state of the residence

[46] The M.’s living area was filthy and had safety problems. All of the workers’ notes indicate that on all scheduled visits, there was garbage and clutter around the living area. The carpets were filthy. There were foul odours. Further, there were exposed electrical wires in uncovered sockets, to which both R.G. and S.M. had access.

[47] On unscheduled visits the workers found piles of strong smelling, dirty clothes on furniture and floors. Food was found on the floor, the walls were filthy. Dunn J. concluded that the M’s never fully cleaned their apartment, put it in a safe state, and kept it that way, despite the repeated advice of the Society’s workers. The state of their premises posed a health risk to the children if they lived there.

f. L.M. had difficulty putting the children’s needs ahead of her own

[48] L.M. could be attentive to her children’s needs. This, however, was not the norm. For example, when she had the children in her care, she admitted developing the bad habit of staying up too late at night and then sleeping late in the morning. She took smoke breaks outside, leaving the supervisors inside to care for the children. When the children were brought to her, she often used her time with the children by talking to and seeking advice from the Society workers about issues unrelated to the children. In other words, L.M. was focused on herself, and not the children’s needs.

g. L.M.’s limited cognitive ability

[49] In 2013, L.M. was found to have a permanent, low range of intellectual functioning and capacity. In an of itself, this is of no moment. Parents with intellectual limitations can be effective parents. However, those parents are instinctively aware of safety concerns, can read their children’s cues, and respond to their needs. They provide clean homes and are not overwhelmed by their children. They are assisted by active support people in the family. Dunn J. concluded that L.M. does not have those abilities and supports.

h. L.M. did not consistently recognize safety concerns

[50] This was the most serious protection concern that Dunn J. itemized.

[51] L.M. did not consistently recognize safety concerns and required constant basic instructions and reminders regarding safety. Society workers all described instances in which the children were at risk while in L.M.’s care, even while under supervision of the Society’s workers. She did not accept and apply instructions offered by the Society’s workers. She left the children unattended. She did not notice when children left the room. She did not perceive cues from the children or the children’s needs. The constant requirement of safety reminders by the workers mean that in the workers absence, the children were at risk both with and without Mr. M.’s involvement.

i. Mr. M.’s role was insufficient and inadequate

[52] L.M. relied on Mr. M.’s involvement with the children. Dunn J. did not believe that Mr. M. was an effective co-parent.

[53] Mr. M. attended visits by the Society with L.M., only infrequently, and when present, was often disengaged.

[54] Mr. M. did not have a history of good parenting with his other children. The Society had an open file with respect to Mr. M.’s 13-year-old son, A.M. One worker noted that Mr. M. was “less than protective” of A.M. The house was dirty. Mr. M. was not attentive to the fact nor responsive to instructions to clean the place up. The dirty condition of the premises aggravated A.M.’s asthma. A.M.’s personal hygiene habits were as bad as Mr. M.’s. A.M. did not regularly wash or brush his teeth, and was not provided with a lunch to take to school. At 13, the boy read at a grade five level. He missed large portions of school. It appeared that Mr. M. was doing nothing to help the boy’s reading ability or to ensure that A.M. attended school regularly. Dunn J. held that if Mr. M. could not be attentive to A.M., there was no reason to believe he could assist with R.G., S.M., and E.M.

[55] While Mr. M. did assist in the general management of the children, when they were present, he was not consistently able to co-parent. Mr. M. often completed L.M.’s parenting when she could not do so. At other times he directed her as to what to do. However, Mr. M. did not accept worker feedback readily and was often disengaged with the children when he was present.

j. L.M.’s lack of honesty

[56] L.M. initially blamed the incident on April 26, 2016 (in which S.M. was burned), on R.G. Later, L.M. admitted that she had lied because she knew her aunt would be upset with her. L.M. did not take the aunt’s advice to take the child to the doctor immediately. She waited three days.

[57] L.M. “prevaricated” to workers about not smoking, when, in fact, she was. There were other incidents.

[58] Dunn J. held that truthfulness of the parent is an important factor, more so when he or she is under supervision order. If the parent cannot be trusted to tell the truth, any child in the parent’s care is at risk.

[59] Ultimately, Dunn J. allowed the Society’s summary judgment motion. He said that none of the individual concerns that he raised was, alone, sufficient to justify removal of the children. He also conceded that in many circumstances, the “shortcomings” that he identified could be remedied or ameliorated. In this case, however, the deficiencies in the M.’s parenting abilities had to be taken together, along with the fact that there was no sign of any improvement in any of them. There was a constant pattern of neglect and harm by omission, which did not improve.

[60] Dunn J. accepted the parent’s positive attributes including that they were not destitute, did not have substance abuse or violence problems, and they could cooperate with authorities from time-to-time. They were asked to and completed parenting programs recommended by the Society. They sought guidance in budgeting and finances from the Métis Nation of Ontario. They would see an increase in their ODSP if the children were with them. They had applied for and were on the waiting list (since 2008) for larger accommodations. Dunn J. held, however, that the M.’s virtues did not adequately address the Society’s concerns about L.M.’s inability to parent, to alleviate safety risks, and to problem solve on her own.

[61] Dunn J. applying Family Law Rule 16, held that the Society had met is onus to show that there was no issue that required a trial. The Society had established that the children were in need of protection and that the requirements for post adoption access by the birth parents had not been met.

3. Issues:

a. Dunn J. Erred in law in failing to apply the proper legal test for Crown wardship on summary judgment motion

i. L.M.’s Position:

[62] L.M. argued that Dunn J. applied the wrong legal test. In child protection matters, on a summary judgment motion, in order to find “no genuine issue for trial”, the court should find that the parents had “no chance of success”, that it is “plain and obvious” that the parents’ cause cannot succeed, or that the “outcome is a foregone conclusion” in that there is no realistic possibility of any outcome other than that sought by the Society.

[63] L.M. argued that this higher standard than in summary judgment motions in Crown wardship cases is necessary because wardship orders with no access to the birth parents are orders of absolute last resort, the most intrusive of orders that can be made, often described as the capital punishment of family law. To make such an order without conducting a trial requires greater level of care and scrutiny than in a non-family summary judgment case. Dunn J. erred by not applying the same legal test that would apply at trial.

ii. Discussion:

[64] I accept L.M.’s position that Dunn J. did not clearly articulate the test he applied and the case law supporting it. I find, however, that in his reasons, taken as a whole and in light of the record, Dunn J. applied the appropriate legal test.

[65] Under FLR 16(6) and (6.1), summary judgment shall be granted where there is “no genuine issue requiring a trial.” This is a significant change from the pre-amended Rule which said that summary judgment should only be granted where there is no genuine issue for trial. In other words, under the old Rule, trials were the default procedure and summary judgment, the exception. The amendments to FLR 16 accept that not every case requires a trial. Access to justice requires that where justice can be done fairly between the parties in a cheaper, faster alternative to a full trial, it should be done in that way.

[66] Prior to Hryniak v. Mauldin, 2014 SCC 7, in child protection cases, the court’s jurisdiction to grant summary judgment was to be exercised with extreme caution, rarely, and only in the clearest of cases. In child protection cases, however, the best interests of the child have to be resolved expeditiously. In a Crown wardship case, the court must review all the evidence and determine if there is a basis for the final order sought. A proper consideration of a full evidentiary record was necessary for a good hard look at the evidence on the motion. Effective parental participation in the child protection process was essential to determine the best interests of the child when the parent sought to maintain custody of or access to the child (see, for example: CAS Halton v. A.(K.L.), 2006 ONCA 709, [2006] O.J. No. 3958 (C.A.).

[67] Hryniak and the amendments to FLR 16 changed this approach.

[68] FLR 16(6) provides that “If there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.” FLR 16(6.1) allows the court to consider the evidence of the parties and, if necessary, the court may weigh evidence, evaluate credibility of a deponent, and draw any reasonable inference from the evidence unless it is in the interests of justice for such powers to be exercised only at a trial. The Court is empowered to fashion a tailor made, pared down procedure, short of a trial, to resolve issues that cannot be resolved on the written record, if justice can be done between the parties, fairly, with such a procedure.

[69] In child protection cases, the court must consider, in addition to FLR 16, the strict timelines that govern child protection proceedings, section 1(1) of the Child and Family Services Act indicating that the paramount purpose of the statute is protecting the best interests and the well-being of children, and the admonishment in FLR 2 to ensure the cases are dealt with justly and fairly, in a fair, cost and time efficient process appropriate to the litigation’s importance and complexity, while at the same time considering the demand of the subject proceeding, and other litigation on scarce court resources (see: CAS Toronto v. B.(B.), 2015 ONCJ 396).

[70] There will be no issue requiring a trial when the judge is able to reach a fair and just determination of the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious, and less expensive means to achieve such a result (see: Hryniak v. Mauldin, 2014 SCC 7, at paras. 34 to 49).

[71] Much of the jurisprudence on summary judgment motions in child protection proceedings predates Hryniak and amended FLR 16, and is therefore of limited application.

[72] The most recent case addressing summary judgment motions in protection proceedings is Kawartha Haliburton CAS v. M.W., 2018 ONSC 2783 (Div. Ct.) [2].

[73] Myers J., writing for the panel, commented that the pre-amended FLR 16 and pre-Hryniak jurisprudence leads to confusion about current legal tests and burdens of proof. Indeed, the Divisional Court found that the motions judge had misdirected himself because of the pre-Hryniak jurisprudence.

[74] The Divisional Court held that the burden of proof rests on the party who moves for judgment. The moving party’s burden is not to prove on the merits that there is no beneficial and meaning relationship between and among the parents of children. Rather, according to rule 16 (4), the moving party must provide specific facts showing that there is no genuine issue requiring a trial. Further, the moving party must show that it is in the interests of justice that the case be decided summarily, asking appropriate questions as set out in Hryniak. FLR 16 (4.1) then says that the parent who wishes to resist summary judgment must, by evidence, provide specific facts showing that there is a genuine issue for trial. Under FLR 16 (4.1), the parent may not simply rely on allegations or pure denials of facts (see: Kawartha, at paras. 45 to 45).

[75] Kawartha left in place the principle that courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high, and the granting of summary judgment deprives the parent of his or her full day in court and the procedural safeguard of cross-examination of witnesses before a judge (see CR v. Children’s Aid Society, 2013 ONSC 1357). [3]

[76] Kawartha also left in place the existing law concerning summary judgment under Rule 20 of the Rules of Civil Procedure, that Corbett J. summarized in Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, 242 A.C.W.S. (3d) 794, affirmed 2014 ONCA 878; namely, that the responding party was required to “put its best foot forward” or “lead trumps or risk losing” (see: Combined Air Mechanical Services v. Flesch, 2011 ONCA 764, at para. 56; Bhakhri v. Valentin, 2012 CarswellOnt 6667 (S.C.J.), para. 7; Pizza v. Gillespie (1990), and that the judge is entitled to assume that the parties have put before her or him all of the evidence that they would have adduced at trial (see: T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665, at para. 30).

[77] L.M. argued that I should not rely on Kawartha since it is under appeal and it may well be overturned.

[78] I disagree. While the Kawartha decision is under appeal, if and until the Court of Appeal reverses it, Kawartha is still binding appellate authority. I take comfort in relying on it based on the fact that Kawartha has been considered 20 times by the Superior Court and Ontario Court [4]. Those decisions have largely embraced it.

[79] The cases cited by L.M. in support of her argument that the applicable test for summary judgment in the child protection context must be higher than that in it non-child protection cases, are inapplicable. They predate the Supreme Court of Canada’s decision in Hryniak [5] or were decided after Hryniak but relied on jurisprudence decided before Hryniak [6].

[80] L.M. also argued that Dunn J. failed to avert to a long line of jurisprudence in Crown wardship cases that held that no-access orders are orders of last resort, are the most intrusive of orders the can be made, are described as the capital punishment of family law, and should be made sparingly (see: CAS of Ottawa v. R.S., 2014 ONSC 7224, at paras. 18 & 19; Frontenac CAS v. C.T. and M.T., 2010 ONSC 3054).

[81] This submission is a challenge to the sufficiency of Dunn J.’s reasons. I do not accept this proposition. Judges are presumed to know the law. A judge does not err merely because he or she does not give reasons for deciding every issue one way or the other. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. The judge is obliged to provide the logical path from what he decided, to why he decided it. To require trial judges with heavy caseloads as those judges in the Ontario court, especially in Brampton, to do what L.M. is suggesting, would overburden them and slow the family justice system down. A verdict should not be overturned merely because the judge fails to discuss every collateral aspect of the case (see: R. v. Burns, 1994 SCC 127, [1994] 1 S.C.R. 656, at paras. 17 to 19).

[82] L.M. argued that to make a no-access order on a summary judgment motion requires a greater level of care (“extreme caution”) and scrutiny and an even more overwhelming society case (see CAS of Algoma v. A.S., 2000 ONCJ 366, at para. 24; CAS of Algoma v. A.(C.A.), at para. 36; M.S.V. v. CAS of Algoma, 2009 ONSC 85329, at para. 10; and CAS of Sudbury and Manitoulin v. T.(L.A.), 2004 ONCJ 379, at para. 22).

[83] I disagree with this position for two reasons. First, these cases predate Hryniak and the amendments to FLR 16. Second, it is a fundamental proposition, even following the release of Hryniak, that summary judgment in cases involving child protection wardship should still be granted sparingly because of the intrusive nature of the order and the severity of the consequences. I cannot believe that Dunn J. was not aware of this law. He clearly averted to FLR 16 in paragraph 67 of his decision. On the totality of the evidence before him, Dunn J. concluded that the children were at risk of harm, and that Mr. M and L.M., despite their virtues, could not adequately parent the children.

[84] Beginning at paragraph 79 of his reasons, Dunn J. specifically addressed the question of whether there was an issue to be tried concerning the possibility of post adoption access for L.M. Under section 59(2.1) of the Child and Family Services Act, the presumption is that the birth parents will have no access with the children after wardship, unless the parent can establish that the parent has a beneficial and meaningful relationship with the child, and access would not pose an impairment to the child’s future opportunities for adoption. Dunn J.’s reference to the section in the case law under it, indicates he was aware of the severity of the order that he was making and, implicitly, the test that had to be met.

[85] Notwithstanding that, L.M. submitted that there was only one error of fact that she alleged, L.M. argued that there was a great deal of favourable evidence of L.M.’s ability to parent and of a beneficial and meaningful relationship between L.M. and the children. Therefore L.M. argued Dunn J.’s finding that there was no genuine issue requiring a trial, could not stand.

[86] As indicated, Dunn J.’s finding that there was no genuine issue for trial is a question of mixed law and fact, and is due deference. On the record before me, there is ample evidence to support Dunn J.’s finding that there was no issue that required a trial. Indeed, the evidence in this respect is overwhelming, notwithstanding the evidence favourable to the M.’s.

b. Dunn J. erred in law by reversing the onus on a summary judgment motion from the Society to the appellant with respect to the issue of post wardship access for L.M.

i. L.M.’s Position:

[87] L.M. argued that at all times, the onus remained on the Society to show there was “no genuine issue for trial” with respect to post-wardship access. L.M. says that at paragraphs 88 and 89 of his decision, Dunn J. reversed the onus and placed it on the Plaintiff. L.M. agrees that at trial, the onus is on her to prove that she had a beneficial and meaningful relationship with the children and that the access order would not impair the children’s opportunities for adoption. On a motion on summary judgment, however, the onus always remains on the Society, as the moving party, to prove that there is no genuine issue requiring a trial in this respect.

ii. Discussion:

[88] Before the Divisional Court’s decision in Kawartha, there was some dispute as to the onus under s. 59(2.1). On one hand, in Simcoe Muskoka Child, Youth and Family Services v. F., 2017 ONSC 5402, McDermott J. heard a motion for summary judgment in a protection matter. He held at paragraph 26 that notwithstanding that a parent has the onus at trial to prove at trial that access is beneficial, this did not shift the onus on a summary judgment motion. The onus remained on the moving party to show that there is no genuine issue requiring a trial. Therefore, it was up to the Society to satisfy the court that the mother would be unable to prove at trial that the mother had a meaningful and beneficial relationship with the children and that access would not be an impairment to adoption. In so holding, McDermott J. applied CAS of Toronto v. R.C., 2016 ONCJ 335 at paras. 122 to 124. In the latter decision, the learned OCJ judge assumed that the onus rested at all times on the moving party, without any specific analysis of the question.

[89] C. Horkin J. reached the opposite conclusion in CAS of Toronto v. G.(A.), 2015 ONSC 6633, an appeal from an OCJ’s decision on a summary judgment motion. At paras. 43 to 46, Horkin J. held that once the decision is made in a summary judgment motion in favor of wardship, the burden under section 59(2.1) falls on the person seeking access to satisfy that the conditions for access are met. This onus has been referred to as “extremely difficult” for parents to discharge, because there is a presumption against access when a child has been made a ward. In reaching her decision on onus, she cited CAS v. Toronto v. L.(T.), 2010 ONSC 1376, at para. 27; Huron-Perth CAS v. F.(J.), 2012 ONSC 5142, at paras. 57 & 58; CAS of Haldimand-Norfolk v. T.(S.L.), 2011 ONSC 6526, at para. 47, aff’d 2015 ONCA 493.

[90] At paragraph 58, Horkin J. said that the statutory pathway set out in section 59(2.1) is clear and mandatory. The parent seeking access, even on a summary judgment motion, must prove that there is a relationship between the parent and child which is beneficial and meaningful to the child, and then that access will not interfere with prospects of adoption. Since the issue before Horkin J. was raised on a summary judgment motion, it was the Respondent who had to prove this was a genuine issue requiring a trial. She said “… the burden of proof [on this issue] is on the Respondent and not on the Society.”

[91] The Divisional Court in Kawartha resolved this divergence on onus under s. 59(2.1). In paragraph 67, the court held that on a summary judgment motion in a child protection case, once the court determines that the moving party has met its burden to show that there is no genuine issue requiring a trial, the summary judgment issues are spent, or fall away, so that the usual burdens of proof apply thereafter. Therefore, section 59(2.1) puts the burden on the parent to prove on a balance of probabilities that she and the children have a beneficial relationship and that a continued relationship with the birth parents will not interfere with adoption. In reaching this conclusion, the Divisional Court had Horkin J.’s decision before it, although it did not specifically reference her on this point.

c. Dunn J. erred in taking judicial notice

i. L.M.'s Position:

[92] L.M. submitted that Dunn J. erred in taking judicial notice. At paragraph 89 of his reasons, Dunn J., when he decided that the second leg of the test under section 59 (2.1) was not met, said “… that many if not most adoptive parents would not want relations with the birth parent, and would not proceed with an adoption if there is an access order.” L.M. submits that this is an adjudicative fact, and that it was improper for the court to take judicial notice of it. It is only appropriate to take judicial notice where the fact is so notorious or generally accepted as not to be the subject of debate among reasonable persons, or capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy (see; R v. Find, 2005 SCC 71, at paras. 48-69). The fact of which Dunn J. to judicial notice does not fit these criteria.

ii. Discussion:

[93] L.M. set out the law concerning judicial notice, accurately. However, this matter can be addressed in short order for two reasons.

[94] First, although Dunn J. mentioned that he was taking judicial notice of the fact that adoptive parents would not want the birth parents involved with the children, there was evidence before him of that fact (see: Affidavit of Petra Gordon, August 29, 2017, paragraph 15, Appellant’s Appeal Record, tab 24).

[95] Second, in child protection cases, courts have set out number of reasons why adoptive parents would not want access to birth parents. These reasons might not meet the strict test for judicial notice in Find. They are, however, common sense, and reflect the informed experience of courts dealing with adoption matters. These reasons include the deterrent effect access might have on adoptive parents who might face further litigation, who would not know the result of such litigation, who would not know the form that openness might take, and would face delays in the adoption by the openness application. Further, if an openness order is granted the adoptive parents may have to deal with potentially difficult birth parents without the assistance of a Children’s Aid Society unless the Children’s Aid Society agreed to become or continue to be involved. Further, birth parents of an adopted child are frequently difficult to deal with and might undermine a potential placement for adoption, or the adopted parents’ relationship with the child (see: CCAS of Toronto v. E. (L.D.), 2012 ONCJ 530, at para. 71).

d. Dunn J. committed a palpable and overriding error of fact with respect to R.G.'s time in care

i. L.M.’s Position:

[96] At paragraph 11 of his reasons, Dunn J. stated that R.G. lived with his mother from birth until he was apprehended on June 20, 2013. At paragraph 67 of his reasons Dunn J. stated that R.G. had been in care since June 3, 2013. It is uncontroverted, L.M. said, that over the course of his life, R.G. had been in care from June 2011 to February 2013 (19.5 months) and then from May 20, 2016 to the time of the summary judgment motion (18 months). Dunn J. does not refer to the fact that for the more than three years between February 2013 and May 20, 2016, R.G. lived with his mother and Mr. S. and then with his mother and his great aunt.

ii. Discussion:

[97] L.M. is not correct when she says that the time that R.G. was with his parents is uncontroverted. The affidavit of Peter Vambe (dated August 29, 2017, at paragraphs 7, 10, and 28, Appellant’s Appeal Record tab 25) indicates that R.G. was apprehended on June 3, 2010 and remained in care until February 28 2013 (a period of almost 33 months) and was taken back to the care on May 16, 2016, where he remains (almost a further18 months by the time of Dunn, J.’s judgment and a further 28 months until today).

[98] It appears that Dunn J. made a typographical error with respect to when R.G. was taken into care.

[99] This is an error of no significance.

[100] In order for a finding of fact to be a palpable and overriding error, the error must be shown to have affected the result (see: Housen v. Nikolaisen, 2002 SCC 3, at para. 94). In this case, Dunn J.’s error with respect to the time that R.G. was in care does not affect Dunn J.’s reasoning and would not have affected the outcome in this case.

e. Dunn J. erred in law in failing to consider whether R.G. remained in need of protection at the time of disposition, and if so, pursuant to which subsection of section 37(2) of the Child and Family Services Act (as it then was)

i. L.M.’s position:

[101] L.M. submitted that Dunn J. erred in law in failing to consider whether R.G. remained in need of protection at the time of the summary judgment motion, and if so, pursuant to which subsection of section 37(2) of the Child and Family Services Act. Further, Dunn J. failed to articulate the test to be applied in a status review application and did not make a finding that R.G. continued to be in need of protection.

[102] The test on a status review hearing is not to retry the original need for a protection order but to evaluate whether, at the time of the review, based in the child’s changed needs and circumstances since the child was taken into protection, there is a continuing need for protection (see: CCAS of Metropolitan Toronto v. C.M., 1994 SCC 83, [1994] 2 S.C.R. 165, at p. 200).

[103] L.M. pointed out that the Society’s motion for summary judgment did not make reference to any protection findings with respect to R.G. nor ask for a finding that R.G. continues in need of protection. It was raised for the first time at the motion. Further, Dunn J. never made an assessment of R.G.’s need for protection nor did he make a finding at the hearing that he was still in need of protection. L.M.’s consent to protection findings only with respect to the two younger children.

[104] Finally, L.M. argued that while Dunn J.’s reasons focus on L.M.’s inability to supervise and parent all three children, together, he does not consider whether Mr. M. and L.M. are unable to parent R.G., alone. L.M. pointed to the June 11, 2018 reasons of Price J., para. 53 and 54, as supporting her submissions.

[105] Price J. determined L.M.’s motion for state-funded counsel for her appeal. In determining the question, one of the factors that Price J. considered was the merits of the appeal. He held that L.M. did not have to show that her appeal would be successful in order to obtain funding. Rather, she only had to demonstrate that her appeal had at least some chance of success or some basic merit. Price J.’s comments must to be viewed in light of the issue before him and the applicable legal test.

[106] In paragraph 46 of his reasons, Price J. found only “… that L.M.’s appeal has sufficient merit to entitle her to state-funded counsel to assist her.” In coming to this conclusion, Price J. looked at only four grounds of appeal that L.M. advanced, one of which was Dunn J.’s alleged failure to conduct a status review or make a finding that R.G. was in need of protection. In other words, he finds that this ground of appeal is arguable, not that it should succeed.

ii. Discussion:

[107] L.M.’s position is incorrect for several reasons.

[108] First, contrary to her assertion before me, L.M. did consent before Dunn J. to R.G. being in need of protection when she said that protection findings are not in dispute, that she accepted that intervention was necessary, and that the only issue was disposition (see: Transcript, November 15, 2017, part two, page 1, lines 5 to 14, Appellant’s Appeal Record, tab 6).

[109] Second, Dunn J. did consider L.M.’s ability to parent R.G., alone. He made findings of the general nature that applied to all three children, which applied, equally, to R.G., individually, including:

1. L.M.’s inability to be aware of safety issues;
2. her inability to attend to the children’s and household hygiene;
3. her failure to read the children’s cues with respect to their needs and wants;
4. her difficulty in putting the children’s needs ahead of her own; and
5. her personal cognitive limitations.

[110] Contrary to L.M.’s submission, Dunn J. made specific findings with respect to R.G. and her inability to parent him safely:

1. R.G. had a series of mental issues with which L.M. had difficulty coping;
2. R.G. did not listen to her direction (paragraph 29);
3. she placed unfounded confidence in R.G., a seven-year-old, to watch the younger two children while she left the room to do something else (paragraph 28);
4. Mr. M. was not a reliable and consistent support for L.M. with respect to R.G.'s care (paragraph 30);
5. Mr. M. was not compatible with R.G. (paragraph 30);
6. Halton CAS, in 2015, would not allow L.M. to be alone when collecting R.G. from daycare because she showed impatience with R.G.’s behavior that could have had serious consequences (paragraph 74);
7. L.M. did not comply with the pediatrician’s advice regarding feeding R.G. and she also ignored, sometimes, Halton CAS’s directions with respect to R.G. (paragraph 74);
8. Dunn J. concluded that even with the supervision by the Halton CAS and Mr. S., L.M. still posed a risk to R.G. Dunn J. also concluded that neither of the M.’s appreciated the level of supervision that R.G. required (paragraph 76);
9. L.M. admitted that she did not connect with R.G. because he was autistic, but promised to learn about autism (paragraph 82);
10. Dunn J. questioned whether or why L.M. did not learn about autism, already, in order to be more receptive to R.G.'s needs. L.M. was noted to have ignored R.G. too frequently (paragraph 82);
11. Observations were made that indicated the lack of a close relationship and emotional ties between L.M., and R.G. and S.M. (paragraph 84 and 86).

[111] It is true that Dunn J. never clearly expounded the test required on a review application nor state specifically that he engaged in a status review. Dunn J. did not avert to the statutory objectives of preserving the autonomy and integrity of the family unit or of providing child protection services in the least restrictive and disruptive manner. However, on the record as a whole, it is clear that he understood the requirements of him on a status review, and applied the law to the evidence, striking a balance between R.G.’s best interests and the need to prevent unwarranted state intervention in this family’s life.

[112] My comments above, with respect to sufficiency reasons, apply here as well.

[113] Finally, there is the pleadings question.

[114] I agree with this Society’s position that the Application for Protection (see Application for Child Protection, tab 15(a), Appellant’s Application Record) with respect to R.G. and S.M., on page 3 (beneath the box which identifies the children) contains a statement which reads “Note: if this case is an application for status review, strike out paragraph 1 and go immediately to paragraph 2.”

[115] In this case, the Society did not strikeout paragraph 1. However, none of the boxes indicating relief under paragraph 1 are checked off. It is clear that the Society, by ticking off two specific boxes under paragraph 2, is seeking an order that R.G. and S.M. be made wards and that L.M.’s contact with the children while they are foster children would be limited to twice a week. Therefore, any consideration of R.G.’s case was by status review.

f. Dunn J erred in law by failing to avert to and consider sections 70(4), 57(2) and (3), and section 37(3) of the Child And Family Services Act (as it then was)

i. L.M.’s position:

[116] L.M. argued that Dunn J. a) failed to refer to sections 70(4), 57(2) and (3), and section 37(3) of the Child And Family Services Act, b) failed to analyze and/or misapplied the law with respect to extending the time the children may be in care, c) failed to ask the parties what efforts the Society made to assist the children, before intervention, as required by section 57(2), and d) failed to inquire or consider the “best interests of the child” factors as set out in section 37(3) of the CFSA.

ii. Discussion:

[117] The analysis of Dunn J.’s reasons begins with the proposition that a motions judge is not obliged to set out specifically, and discuss every section of the legislation that he considered, nor to discuss every piece of evidence before him that was considered in order to reach his decision (see: CAS of Toronto v. A.(N.), 2012 ONCA 128, at para. 16). The real question is whether, based on the review of the reasons and the record, taken as a whole, the motion judge in fact considered the relevant statutory sections.

[118] The Application Record indicates that all of the sections that L.M. argued that Dunn J. did not consider were, in fact, placed before him (see: Appeal Record of the Respondent, CAS of the Region Of Peel, tab 4, sub tabs 2 to 7), as was the case law addressing those sections (see: Appeal Record of the Respondent, CAS of the Region Of Peel, tab 8, and 10 to 15).

[119] In addition, these sections were all argued before the motions judge (see, for example: Transcript, November 15, 2017, vol. 1, Appellant’s Appeal Record, tab 5, pages 2, 3, 4, 6, 7, 8, 10, 11, 30; and Transcript, vol. 2, pages 1 to 3, 5, 60).

g. Dunn J. provided no or insufficient reasons with respect to the admission of hearsay evidence and improper reply evidence

i. L.M.’s position:

[120] In paragraphs 46 to 48, and 70 of his reasons, Dunn J. referred to case notes attached to a Reply Affidavit of Ryan McLeod dated November 8, 2017. Those case notes referred to the Catholic Children’s Aid Society of Toronto’s investigation during February 2, 1997 to July 7, 1997, of Mr. M. and his then partner, and their then three-year-old son. L.M. says that those records ought not to have been admitted, and that Dunn J. was in error in admitting and relying on them.

[121] What do those case notes say?

[122] The impugned notes, created in the context of a 1997 investigation into Mr. M.s parenting of his then 3 year old son, referred to the fact that Mr. M.’s home was messy, filthy, with food all over the floor, filthy walls and floors, and furniture were covered with clothes. The Toronto CCAS did not deem the residence to be safe for Mr. M.’s three-year-old son.

[123] Dunn J. used those notes in support of his finding that the M.’s home relevant to the three children in this appeal, was never properly cleaned or put into a permanent safe condition notwithstanding that the M.s knew it should have been given the frequent advice from the Society to do so in 1997 and in 2015-17, and being told by the Society that the failure to do so would pose a health risk to the children.

[124] In paragraph 70, Dunn J. said “As was seen in Mr. M.’s household [referring to the 1997 notes and current observations], there was and is a pattern of neglect and harm by omissions, the conditions of which did not advance to meaningful rectification.”

[125] At the summary judgment motion, L.M. argued that the November, 2017 McLeod affidavit was not proper reply. The Society was splitting its case on the question of the cleanliness and safety of the home. Further, it was pure hearsay since Mr. MacLeod was not a first-hand observer of the conditions of the apartment in 1997.

[126] The Society responded with two arguments. First, it conceded that while hearsay may be admitted on a summary judgment motion, the court may ignore it or give it little weight.

[127] Second, the Society argued that under section 50 of the Child and Family Services Act, the Society is allowed to rely on past parenting evidence. Section 50 says:

Despite anything in the Evidence Act in a proceeding under this part, the court may consider the past conduct of a person towards any child the person is caring for or has access to or may care for or have access to a child who is a subject of the proceeding, and any oral or written statement or report the court considers relevant to the proceeding including a transcript, exhibit, or finding or the reason for decision in an earlier civil or criminal proceeding is admissible into evidence.

[128] Since Mr. M. was part of the parenting plan presented by L.M., it is relevant and it is permissible to consider evidence of his past parenting.

ii. Discussion:

[129] There is no error in receiving the 1997 CAS' notes into evidence.

[130] Hearsay is admissible, in some circumstances. FLR 14(18) and 16(5) permit evidence not from a person’s own knowledge but empower the court to draw conclusions from that evidence unfavorable to the party leading it. Evidence not within the affiant’s own knowledge may be used provided that the affiant identifies the source of the information and states that he or she believes the evidence to be true. Further, the affiant should address the basis for the admission of hearsay evidence.

[131] Most cases accept that the court has a wide discretion to accept or reject hearsay evidence (see, generally: Windsor-Essex CAS v. D.(S.M.), 2011 ONCJ 311).

[132] Section 50, permits the Court to receive the 1997 notes.

[133] I find that Dunn J. committed no error in receiving the notes, and he restricted their use only to show that Mr. M’s parenting abilities had not changed over 20 years.

[134] I turn now to the sufficiency of Dunn J.’s reasons on this subject.

[135] Reasons have three fundamental purposes, according to the Supreme Court of Canada:

1. Reasons should tell the parties affected by the decision (especially the losing party) why the decision was made. Reasons also show that the Judge has heard and considered the evidence and arguments before him or her, and has not taken extraneous considerations into account: The Road to Justice (1955), at p. 29.
2. Reasons should provide public accountability by showing that justice is not only done, but is seen to be done.
3. Reasons must permit effective appellate review. This requires the judge to give a clear articulation of the factual findings and legal principles that underlay the decision.

(See: R. v. R.E.M., 2008 SCC 51, at para. 41)

[136] In R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), the Ontario Court of Appeal set out the purpose and function of reasons. A judge’s reasons must show what the judge decided and why he or she made that decision. The judge must show the logical connection between the “what” and the “why.” He or she does not have to set out the conflicting evidence related to any factual finding made, the arguments with respect to the fact and/or legal principle, and every legal principle applied. Reasons are not intended to be a verbalization of the entire process engaged in by the trial judge in reaching a verdict. The trial judge does not need to expound on well-settled, uncontroversial evidence or legal principles, or evidence or legal principles understood and accepted by the parties. Rather, the reasons must show the path that the trial judge took through confusing or conflicting evidence and/or legal principles.

[137] Further, while it is preferable that reasons stand alone, they need not do so. Reasons must be read in light of the full record including the evidence and the arguments.

[138] In this case, while Dunn J. did not expressly weigh the arguments placed before him with respect to the use of the November 8, 2017 affidavit of Mr. McLeod, in the context of the record as a whole it is clear that the question of the admissibility of the 1997 CAS' documents was before the court. L.M. clearly articulated her objection to these records and the reasons for her objection. The Society responded and provided statutory and Rules based authority by which the court could, within its discretion, rely on the 1997 CAS' notes.

[139] It is clear that Dunn J. having heard these arguments, exercised his discretion to allow the evidence in. His use of the evidence, however, was limited. He used the evidence from 1997 with respect to the state of hygiene and repair of Mr. M.’s home then, in comparison to the state of hygiene and repair of the M.’s home recently, to show that this problem is long-standing, and has not changed despite CAS' interventions in 1997, and recently.

[140] I find no insufficiency of reasons.

Conclusion:

[141] As outlined, above, I find that Dunn, J. made no error of law or palpable and overriding error of fact. Therefore, regardless of whether L.M. advances her appeal on the basis that the errors merely gave rise to an issue(s) that required a trial, or that the errors of law in and of themselves required the decision to be set aside, the appeal is dismissed.

Costs:

[142] If the parties cannot agree to costs, I will entertain written submission of not more than 4 double spaced pages, excluding bill of costs and cases. The Society's are to be served and filed not later than 4:00 p.m., 5 April 2019, and L.M.'s not later than 5:00 p.m., 26 April 2019.

TRIMBLE J. Date: March 15, 2019

COURT FILE NO.: FS-18-47-00 DATE: 2019 03 15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RE: L.M., Appellant AND: The Children's Aid Society of the Region of Peel, Respondent, Applicant to the Application AND: Office of the Children's Lawyer, Respondent, Independent Party to the Application ENDORSEMENT Trimble J. Released: March 15, 2019

[1] In para. 21 of Dunn J.’s decision, Dunn J. says that the visits began in June 2012, which must be an error.

[2] The Divisional Court's decision in Kawartha is under appeal and, as of the date of writing these reasons, is scheduled to be heard March 26, 2019.

[3] See also: Children’s Aid Society of Toronto v. S.M.T., 2018 ONCJ 540; Children’s Aid Society of the Regional Municipality of Waterloo v. C.G., 2018 ONCJ 964; Children’s Aid Society of the Regional Municipality of Waterloo v. S.H., 2018 ONCJ 955; Children’s Aid Society of the Regional Municipality of Waterloo v. N.K., 2018 ONCJ 696; CAS v. S.C. and W.C., 2019 ONSC 769; CAS v. K.W. and H.G., 2018 ONSC 3704

[4] According to a search performed on 7 March, 2019. These cases are those contained in footnote 3, and Family and Children’s Services of Guelph & Wellington County v. T.S., 2018 ONCJ 411; Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371; Children’s Aid Society of Peel v. J.F., 2018 ONCJ 628; Hyman v. Wright, 2018 ONCJ 655; Jewish Family and Child Service of Greater Toronto v. K.B., 2018 ONCJ 650; Children’s Aid Society of Toronto v. K.B., 2018 ONCJ 651; Simcoe Muskoka Child, Youth and Family Services v. L.V., 2019 ONSC 1208 (Div. Ct.); Children’s Aid Society of Hamilton v. B.K. & S.A., 2018 ONSC 3906; Children’s Aid Society (Ottawa) v. A.-D., 2018 ONSC 7466; Children’s Aid Society (Ottawa) v. A.M., 2019 ONSC 694; Children’s Aid Society of London and Middlesex v. A.S., 2018 ONSC 7200; C.A.S. of Nipissing and Parry Sound v. S.B., 2019 ONSC 1352; Catholic Children’s Aid Society of Toronto v. T.T.L., 2018 ONCJ 403; and Catholic Children’s Aid Society of Toronto v. M.C., 2018 ONCJ 619.

[5] CAS of London and Middlesex v. K.P.B., 2013 ONSC 5; CAS of Oxford County v. J.(J.), [2003] O.J. No. 2208 (S.C.J.); and CCAS of Metropolitan Toronto, 139 D.L.R. (4th) 534 (S.C.J.); CAS of Niagara Region v. S.C., 2008 ONSC 52309 (SC.J.).

[6] CAS of Haldimand and Norfolk v. B.H. and K.T., 2016 ONCJ 642.