WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017 , which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT FILE NO.: FC-16-170-4 DATE: 2019/04/02

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF D.M. (D.O.B. XX XX, 2018)

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – K.M. Respondent

Marguerite Lewis, for the Applicant No one appearing

– and – A.T. Respondent

Cedric Nahum, for the Respondent A.T.

HEARD: December 13, 2018

REASONS FOR DECISION

D. SUMMERS J.

Nature of the Proceedings

[1] The Children’s Aid Society (the Society) brought this motion to strike the father’s Answer and Plan of Care under Rule 1.8 of the Family Law Rules, O. Reg. 114/99 (FLR’s) or, in the alternative, for summary judgment under Rule 16 in this Protection Application. The Society seeks orders that the child, D.M., born XX XX, 2018, is in need of protection under one or both of sections 74(2)(b)(i) and 74(2)(b)(ii) of the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA) (risk of physical harm), (previously s. 37(2)(b)(i) and (ii) of the Child and Family Services Act, R.S.O. 1990, Chapter C. 11) and that the child be placed in extended society care without access for purposes of adoption under s.101(1) of the CYFSA. The Society also seeks an order making the required statutory findings under s. 90(2) of the CYFSA.

[2] The mother did not defend the Society’s application. She was noted in default on July 4, 2018.

[3] The father filed an Answer and Plan of Care and an Amended Answer and Plan of Care in July, 2018. He did not oppose this motion.

[4] I have read and relied on the following documents: The Protection Application, the Society’s Plan of Care, the father’s Answer and Plan of Care, his Amended Answer and Plan of Care, the Affidavit of J. Parke, sworn March 28, 2018 and the Affidavit of J. Parke, sworn December 5, 2018.

[5] For the reasons that follow, I dismiss the Society’s request to strike the father’s pleadings and grant their motion for summary judgment.

Background Facts

[6] The child, D.M. was born on XX XX, 2018. D.M. was apprehended at birth.

[7] A without prejudice order was made on March 28, 2018 by Justice P. Roger placing D.M. in the interim care of the Society. The parents were granted access at the discretion of the Society.

[8] D.M. has been in the same foster home since his discharge from the hospital.

[9] The only step taken by the father in this proceeding was to file an Answer and Plan of Care seeking to have the child returned to his care. He did not bring a motion for interim care and custody. He did not attend the settlement conference. He did not attend this motion, file materials, or oppose it in any way.

Issues to Be Determined

[10] The issues to be determined are:

1. Should the court strike the father’s Answer and Plan of Care and Amended Answer and Plan of Care;
2. The statutory findings for the child;
3. Is there is a genuine issue requiring a trial to determine whether the child is in need of protection;
4. Is there a genuine issue requiring a trial to determine whether there is a disposition that is in the child’s best interests and less intrusive than extended society care without access for the purposes of adoption?

Issue No.1 – Should the court strike the father’s Answer and Plan of Care

[11] After a brief discussion at the outset of the motion, the Society did not pursue its motion to strike and argument was limited to the summary judgment motion only. However, as the request for an order striking pleadings was not formally withdrawn, I set out my reasons for dismissing that part of the motion.

[12] The court’s jurisdiction to strike a party’s pleading is governed by rule 1(8) of the FLR’s. The sections of the rule relevant to this motion are:

r. 1(8) FAILURE TO OBEY ORDER - If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

r. 1(8.1) FAILURE TO FOLLOW RULES - If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g);

r. 1(8.2) DOCUMENT THAT MAY DELAY OR IS INFLAMMATORY, ETC - The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

r (8.4) CONSEQUENCES OF STRIKING OUT CERTAIN DOCUMENTS - If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
2. The party is not entitled to participate in the case in any way.
3. The court may deal with the case in the party’s absence.
4. A date may be set for an uncontested trial of the case.

[13] This is not a situation where the father failed to obey an order that could result in an order striking his pleadings under r. 1(8). Moreover, considering r. (8.1), the only rule that the father disobeyed was the requirement that he attend the Settlement Conference. See r. 17(15). In my view, a breach of this nature is not sufficient to consider striking pleadings in a case such as this where the protection and best interests of a child are involved.

[14] The only subrule that could apply here is r. 1(8.2). It permits the court to strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process. Although the Society did not plead this subrule, it was evident from their factum that their concern was indeed one of delay for the child. The father had stopped participating in the case. The objective was to minimize further delay by asking the court to strike the father’s pleadings in order to have the matter listed for an uncontested trial.

[15] Without question, it is important to move a case forward in a manner that is just, timely and efficient, however, the case law is clear that the courts should use utmost caution in striking pleadings where the interests of children are involved. See King v. Mongrain (2009), 2009 ONCA 486, 66 R.F.L. (6th) 267 (Ont. C.A.) at para. 31; and D. (D) v. D. (H.) (2015), 62 R.F.L. (7th) 261 (Ont. C.A.).

[16] The Society’s factum included Justice M. Korpan’s decision in Children’s Aid Society of London and Middlesex v. M. (A.C.), 2016 ONSC 2163 as authority for the court striking pleadings in a child protection case for reasons of delay where the mother had stopped participating in the process. Early in her reasons, Justice Korpan noted that the Society sought an order to strike rather than summary judgment. [emphasis added]. She considered the caution from the Court of Appeal about striking pleadings as noted above as well as 1(8.2) that addresses delay, r. 2 that sets out the primary objectives of the FLR’s, the length of time the children had been in care, their need for permanency, their right to have the decision made in a timely manner, the need to balance the prejudice to the mother if her pleadings were struck with the prejudice to the children of further delay and the fact that the mother had long stopped participating in the children’s lives and the court process. It was within that context, that Justice Korpan struck the mother’s Answer. Her order was made without prejudice to the mother’s right to move to set it aside in the event that she returned and contacted the Society before the uncontested trials were heard.

[17] Here, the Society sought summary judgment as alternative relief. Considering the circumstances of this case and the strong preference to have a party’s position before the court in a case involving the interest of a child, I decline to strike the father’s Answer and Amended Answer and Plan of Care. The disposition sought for D.M. is extended society care without access for purposes of adoption. It is the most serious and far reaching order this court can make. I find it fair and just that the father’s Answer and Plan of Care remain before the court for consideration.

Issue No. 2 – The Statutory Findings

[18] The father did not respond to the Society’s request to complete the statutory findings for the child. The Society’s evidence in this regard is set out in paragraphs 41 to 51 of J. Parke’s December 5, 2018 affidavit. She relies on information obtained from the hospital where D.M. was born, information from the Society records and from the father’s family to determine whether D.M. is a First Nations, Inuit or Metis child. Based on this evidence, I make the following findings:

(i) The child before the court is D.M. He is one year of age. (ii) The child was brought to a place of safety from the Ottawa Hospital, in Ottawa, Ontario. (iii) D.M. is not a First Nations, Inuit or Metis child.

Issue No. 3 - Is there is a genuine issue requiring a trial to determine whether the child is in need of protection?

[19] Rule 16 of the FLR’s governs summary judgment motions including child protection cases. The key sections of the rule as they relate to this motion are:

r. 16 WHEN AVAILABLE - (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) AVAILABLE IN ANY CASE EXCEPT DIVORCE - 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.

(4) EVIDENCE REQUIRED - 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.

(4.1) EVIDENCE OF RESPONDING PARTY - 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.

(5) EVIDENCE NOT FROM PERSONAL KNOWLEDGE - 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.

(6) NO ISSUE FOR TRIAL - If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) POWERS - 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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

(6.2) ORAL EVIDENCE (MINI-TRIAL) - The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

Preliminary Issue

[20] When counsel for the Society concluded her argument, the court asked the father’s counsel if he wished to make submissions on the evidence presented by the Society. He reiterated his instructions not to oppose the motion in any way but did make submissions on what he said was the Society’s reliance on hearsay evidence. He argued that the Society has an obligation at all times to put forth proper evidence whether the proceeding is defended or not. His submissions were general in this regard. No formal objection was made nor did the father’s counsel argue his concern by identifying the alleged hearsay on a statement by statement basis.

[21] In reply, the Society argued that to the extent the child protection worker’s evidence included out of court statements, the declarants were professionals whose job it was to keep timely, accurate and objective notes and who were without motive to mislead. The Society argued that the hearsay evidence was inherently trustworthy and should be considered reliable and admissible for the truth of its contents under the principled approach to the admission of hearsay R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865. No submissions were made on the twin element of necessity.

[22] In the court’s role as evidentiary gatekeeper, I must consider both the necessity and threshold reliability of the hearsay evidence that is sought to be admitted. The standard for necessity is whether it is reasonably necessary. Threshold reliability is met if the evidence is found to be sufficiently reliable. See R. v. Khelawon [2006] 2 S.C.R. 787, 2006 SCC 57.

[23] Here, the deponent, Ms. Parke, has been the child protection worker assigned to this case since November, 2016. A significant portion of her evidence relates to past parenting conduct and comes from her review of the Society records. There is marked consistency in the evidence relating to the circumstances into which each of the parties’ three children were born: domestic violence, drug abuse, positive tests for cocaine at birth, apprehensions at birth, and no subsequent parental contact. The evidence of more recent events that pertains directly to D.M. comes either from her personal involvement or has been obtained from other workers involved in the file and their file notes. Some of the statements recounted have also come from the doctors and nurses involved in the mother’s medical care or the child’s medical care. Where the workers’ evidence is not based on her personal knowledge, she identifies the source of her information and states that she believes it to be true in compliance with r. 14(19).

[24] I accept the Society’s argument that the declarants were professionals without motive to mislead and whose job it was to keep accurate notes. I find that the hearsay evidence presented by the Society is sufficiently reliable to meet the requirement of threshold reliability.

[25] I also find the Society’s reliance on out of court statements in this case to be reasonably necessary considering the number of the witnesses involved and their availability. I further find that for many of the professionals involved and the number of situations they deal with on a daily basis, the information they recorded and provided when the event occurred is, on the balance of probabilities, likely to be more accurate than a memory of the event.

[26] For these reasons, I find that hearsay evidence before the court from the Society satisfies both the necessity and threshold reliability requirements under the principled approach to admitting hearsay and I allow the evidence for the truth of the contents.

[27] In addition, I have considered subrule 16(5) that permits the court, on a summary judgment motion to draw a negative inference against a party for presenting evidence of the facts in dispute that does not come from a person with personal knowledge. Here, I find no reason to draw any unfavourable conclusions.

Summary Judgment

[28] On a summary judgment motion, the judge must first determine if there is a genuine issue requiring a trial based only on the written evidence before her. If the answer to this question is no, the court must grant summary judgment. If it appears that there is a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new fact-finding powers. Those powers may be used at the court’s discretion provided that doing so is not contrary to the interest of justice. Their use will not be contrary to the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. See Hryniak v. Mauldin, 2014 SCC 7.

[29] The Society is the only party with evidence before the court. I find the Society has proven, on the balance of probabilities that no genuine issue exists that requires a trial.

[30] This is the tenth file opening for the mother since 2007 and her third with the father since 2016. They have three children together.

[31] Their first child, R.T., was born in […], 2016 and apprehended at birth. He tested positive for cocaine at birth.

[32] The parties’ second child, L.T., was born in […], 2017 and apprehended at birth. She tested positive for cocaine at birth.

[33] R.T. and L.T. were made crown wards in 2017.

[34] The child before the court, D.M. is the parties’ third child together. He was apprehended at birth and tested positive for cocaine.

[35] Neither the mother nor father have seen D.M. since he was discharged from the hospital two days after his birth.

[36] The mother has a fourth and older child from an earlier relationship, D.T. The Society’s involvement with D.T. began in 2007 not long after his birth. Several of the file openings were closed at intake. The parties in this case became a couple sometime before D.T.’s apprehension in 2016. His removal from the home followed an incident of domestic violence in the home between the mother and father. Both were injured.

[37] D.T. was made a crown ward in 2017.

[38] The child protection concerns for the mother over the years include her mental health, severe and ongoing drug and alcohol abuse, domestic violence with past partner in addition to her abusive relationship with the father, lack of appropriate and stable housing, her use of physical discipline on her eldest child, D.T., and neglect of his emotional, medical, educational and basic hygiene needs.

[39] On May 28, 2018, the Society was advised by the Montfort Hospital that the mother had overdosed. The child protection worker attended at the hospital. It was there that the Society served the mother with the protection application. The mother was clear that she had no wish to talk to the Society but asked if she could see D.M. and her other children. The mother was discharged five days later and did not leave any contact information.

[40] The last piece of information about the mother came to the Society from the Montfort Hospital on September 3, 2018. A nurse reported that the mother had attended the hospital that day, said she was twelve weeks pregnant with her fifth child and admitted to abusing heroin and crack cocaine.

[41] The father has a history of substance abuse, domestic abuse and other violent crimes. Following a 2007 home invasion, he spent time in prison for armed robbery, break and enter, unlawful confinement, and uttering threats.

[42] The father’s history with the Society includes extensive involvement while a child under his mother’s care, and as an adult.

[43] In his Plan of Care, the father’s denies that there is any risk of harm to the child and seeks to have him returned to his care. He has not provided any evidence to prove his claims.

[44] In addition to the significant evidence before the court of past parenting conduct, historic and ongoing substance abuse, violent crime, and domestic abuse, the parents have not participated in D.M.’s life in any manner since his birth nor have they made any meaningful effort to do so. I am satisfied, on the balance of probabilities that D.M. is in need of protection under s. 74 (2)(b)(i) and (ii) of the CYFSA and I make that order. If the child was placed in the care of either parent, I find that there is a risk that he is likely to suffer physical harm, either directly or through neglect or failure to adequately care for him, provide for him, supervise or protect him. Neither the mother nor father have demonstrated any ability to protect or care for this child.

Issue No. 4 - Is there a genuine issue requiring a trial to determine whether there is a disposition in the child’s best interests that is less intrusive than extended society care without access for the purposes of adoption?

[45] To no avail, the Society made several efforts to contact the mother. They called the two numbers she left with the hospital where D.M. was born. One of the numbers was for a woman’s shelter where the Society left a message. There was no return call. No one answered at the second number and voicemail was not an available service. The Society was able to contact a cousin of the mother who said she did not have much contact with her and did not know how to contact her. The worker left her name and number.

[46] In early May 2018, the Society heard from the midwife who had worked with the mother during the early part of her pregnancy with D.M. The midwife had been asked by the mother to find out how the child was doing and whether she could visit him. She also wanted information about D.M.’s foster home and asked if she could visit her older children. The midwife was advised that access with D.M. was contingent on the mother first meeting with the Society and that the other children were in extended society care without access. The midwife was unable to provide contact information for the mother. There was no further contact from the midwife or the mother.

[47] Two of the mother’s sisters contacted the Society after D.M.’s birth. The first sister said she was not in a position to put forward a plan of care for D.M. but wanted her contact information put in the file in case he wished to make contact when he was older. The second sister said she did not have contact information for the mother and was trying to find her. She too asked that her information be placed in the file in case the child wanted to find her in the future.

[48] There has been no further contact between the Society and the mother.

[49] The father’s Answer and Amended Answer and Plan of Care was the only step he took toward establishing any involvement with the child. The address provided in his pleading was outdated.

[50] The father’s plan was for D.M. to be placed in his care or, alternatively, in the care of his sister, Ms. T.T. He said he had a large supportive family who would help him take care of D.M. There is no evidence to corroborate that statement.

[51] The Society was able to contact some, but not all, of the relatives listed on the father’s Plan of Care. As recently as December 4, 2018, his sister, Ms. T.T. confirmed that she did not want anything to do with her brother. She said that the last time she heard from him was when he called to ask her for help to make bail and get out of jail. She said that was earlier in the fall. Ms. T.T. said she refused.

[52] Ms. T.T. also told the Society that she was interested in possibly adopting D.M. The Society indicated it would begin the assessment process for a possible placement.

[53] The Society also spoke with the father’s aunt in early December, 2018. She confirmed that she and her husband had not seen him in almost two years. She said they do not agree with their nephew’s lifestyle and do not wish to have any contact with him.

[54] Also in December, 2018, the Society was in contact with the father’s cousin, J.. He said that he does not stay in contact with him but had seen him around. He further advised that he had no knowledge of the father’s ability to care for a child.

[55] I am satisfied that the Society has established on the balance of probabilities that there is no genuine issue requiring a trial to determine the least intrusive disposition that is consistent with the child’s best interest. D.M. is one year old. His first year has been spent in care. Under s. 122(1)(a) twelve months is the maximum amount of time that a child under age 6 can be in care. The Society’s efforts to contact the parents and re-unite the family have not met with any measure of success. The mother and father have not made any effort to work with the Society or take any meaningful steps to exercise access to D.M. Nor have they demonstrated any capacity to care for him or any commitment to work toward gaining that capacity. D.M. does not know his parents. There is no bond or attachment. The only evidence of a possible kin placement is being assessed as a possible adoption placement. D.M. has the right to have permanent plans made for his future. It is in his best interest that the planning begins now. I find that placing D.M. in extended society care without access for purposes of adoption is in his best interests and I make that order. I further order an extension of time under s. 122(5) effective March 1, 2019.

Madam Justice D. Summers Released: April 2, 2019

COURT FILE NO.: FC-16-170-4 DATE: 2019/04/02 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF D.M. (D.O.B. XX XX, 2018) BETWEEN: THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – K.M. Respondent – and – A.T. Respondent reasons for decision D. SUMMERS J. Released: April 2, 2019