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 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-06-FO-3267

DATE: 2019 09 10

ONTARIO

SUPERIOR COURT OF JUSTICE – UNIFIED FAMILY COURT

BETWEEN:

Children’s Aid Society of the Regional Municipality of Waterloo Applicant

– and –

K.S. and C.W.B. Respondents

Charu Smith, Counsel for the Applicant

K.S., In Person C.W.B, Not Appearing David Morneau, Agent for OCL representing child M.J.B.

HEARD: July 25, 2019

Breithaupt Smith, J.

DECISION – SUMMARY JUDGMENT MOTION

Introduction

[1] The Applicant Society (the “Society”) brings a Motion for Summary Judgment placing the Respondents’ younger daughter, M.J.B., with her father, C.W.B., pursuant to a four-month Supervision Order under section 113 of the Child, Youth and Family Services Act, 2017, (S.O. 2017, c. 14, Sched. 1) (“CYFSA”). M.J.B. is on the cusp of turning eighteen years of age and, as a result, the Society’s original position on the Status Review Application was to withdraw. Subsequently, having regard to M.J.B.’s own wish to maintain the protection offered by the Society’s continued involvement, the Society amended its Status Review Application to seek a Supervision Order that would expire following M.J.B.’s eighteenth birthday. The Respondents’ eldest daughter, C.L.B., is already over the age of eighteen and an Order terminating the Society’s involvement regarding her was made by Justice L. Rogers on December 6, 2017.

[2] The Respondent parents separated prior to the first involvement of the Brant Children’s Aid Society in 2004, and the Court is advised that an Order granting sole custody of the children to Mother exists but no copy has been provided. Father did not appear at the hearing of the Summary Judgment Motion, and there is no explanation in his materials as to why he has taken no steps to address the existence of that Order despite the children having been placed in his care many years ago.

Background

[3] The Society has been involved with this family since 2006 when the children were removed from the care of their Mother in light of her emotional instability. Having formulated concerns that Mother’s inappropriate anger and physical discipline of the children – then five and seven years of age – were likely to cause them harm, the Society attended at Mother’s residence in the company of Waterloo Regional Police on August 10, 2006. On that date, Mother barred the door and physically attacked a police officer in the presence of the children, telling them that the protection worker was coming to harm them. The children were placed in their Father’s care on August 23, 2006 and have remained with him since that date.

[4] The Final Orders made in this matter are:

a. August 3, 2007 – Following Society’s Summary Judgment Motion, 8 month Supervision Order granted placing children with Father, with the issue of Mother’s access sent to trial;

b. December 14, 2007 – Mother’s appeal to the Superior Court of Justice from the August 3, 2007 Supervision Order dismissed, and Mother’s subsequent further appeal to the Ontario Court of Appeal also dismissed thereafter;

c. July 14, 2010 – Following a 45-day trial on the Status Review Application, children continue to reside with Father pursuant to a 12-month Supervision Order and Court orders no access to Mother;

d. December 23, 2011 - Following Society’s Summary Judgment Motion on the Status Review Application, children continue to reside with Father pursuant to a 12-month Supervision Order and Court orders no access to Mother;

e. August 31, 2012 – Mother’s appeal to the Superior Court of Justice from the December 23, 2011 Supervision Order is dismissed;

f. February 13, 2013 – Mother’s appeal to the Ontario Court of Appeal from the December 23, 2011 Supervision Order is dismissed;

g. May 13, 2013 – Following Society’s Summary Judgment Motion on the Status Review Application, children continue to reside with Father pursuant to a 12-month Supervision Order and Court orders no access to Mother;

h. July 31, 2015 - Following Society’s Summary Judgment Motion on the Status Review Application, children continue to reside with Father pursuant to a 12-month Supervision Order and Court orders access to Mother in the discretion of the Society; and

i. December 6, 2017 - Following Society’s Summary Judgment Motion on the Status Review Application, the Society’s involvement with C.L.B. is terminated and M.J.B. continues to reside with Father pursuant to a 12-month Supervision Order and Court orders access to Mother in the discretion of the Society.

Evidence and Position of the Society, Moving Party

[5] As noted above, the Society’s original position on this Status Review Application was to terminate its involvement having regard to M.J.B.’s age. That position was amended to accord with the request by Father and by M.J.B. herself that, in view of the existing Final Order granting custody of M.J.B. to Mother, M.J.B. would benefit from the protection offered by a continuation of the Supervision Order. The Supervision Order sought by the Society includes a provision that any contact between Mother and M.J.B. be in M.J.B.’s discretion.

[6] The Society’s worker, Ms. K. Kulik, has been involved with this family since April 2013. She confirms that M.J.B. is flourishing in her Father’s care and that there are no concerns raised in his household which would necessitate further Society involvement. Ms. Kulik’s evidence in this regard is discussed in greater detail below. The Society’s continuing involvement arises exclusively around the issue of contact between Mother and M.J.B. in the context of the Final Order granting custody to Mother.

[7] Ms. Kulik’s evidence has remained consistent with respect to Mother’s ongoing challenges throughout her involvement with the family. Between May 13, 2013, shortly after she was first assigned, and March 21, 2014, Mother met with Ms. Kulik approximately monthly, the goal of which meetings was to “establish a working relationship.” Although Mother attended the meetings on time and suitably prepared, “it has been a significant challenge to develop mutual trust and similar understanding of the issues which have to be addressed in order to make progress.” Ms. Kulik identifies factors contributing to the failure of attempts to develop a working relationship with Mother, including Mother’s reluctance “to engage in any type of meaningful work to address mental health.”

[8] The position of the Society is that, regrettably, nothing has changed as Mother has declined any form of ongoing mental health treatment and is therefore unable to demonstrate that renewed contact between her and M.J.B. would be in M.J.B.’s best interests. The Society submits that the outcome of a trial is a foregone conclusion in that the Court will not compel a resumption of the relationship between Mother and M.J.B. either by ordering M.J.B. to return to her Mother’s care or by requiring M.J.B. to attend access with Mother.

Evidence and Position of Respondent Mother

[9] Mother filed an Affidavit sworn January 14, 2019 in which she attested to certain interactions with M.J.B. in the present tense, as if they are on-going currently, even though she has had no contact with M.J.B. since May 5, 2007. Such content may be simply re-iterations of the content of prior Affidavits filed by Mother, but it is nonetheless worth noting, and examples include:

13. I provide a healthy and active lifestyle for [M.J.B.]. I have a very child oriented home and provide age appropriate care, routines, structure, and expectations. I do so with fun and ease. I teach her and help her grow to become a good person. There is lots of laughter and talking between us. We are connected without words.

14. [M.J.B.] lives a full and happy life at home with their [sic] Mommy and all her familiar surroundings. She is safe and protected by her mother.

[10] The balance of Mother’s Affidavit is focused on alleged wrongdoing by the Society and by Father, and includes various references to legislation and the litigation history of this matter, for example:

34. The children have been left to deal with [Father’s] manipulations alone and to needlessly suffer grief and loss throughout their childhood.

35. Contrary to Family Law Rules, Rule 2, [Father] has not assisted the court in its primary objective – to deal with cases justly. [Father] has committed perjury.

36. Justice Epstein did make a Finding order solely due to adult conflict although there was no conflict in [Mother’s] home with the children. [Father] assaulted [Mother] unprovoked while returning the children from his sporadic access. The Society claimed that they were taking the position that withholding access was abuse, although he wasn’t using it; he was creating false appearances.

[11] The above examples taken from Mother’s Affidavit effectively summarize her submissions at the hearing of this Summary Judgment Motion. It is her belief that the children ought never to have been removed from her care in the first place, and that the Society is colluding with Father in support of his manipulative intention to irreparably damage her relationship with them. While the Court was able to redirect Mother and thus avoid the significant emotional outbursts that have been documented in prior Reasons for Judgment issued in this matter, Mother’s tone vacillated from muttering softly to yelling, and her statements became increasingly repetitive.

[12] Mother refused to participate in the Parenting Capacity Assessment ordered by Madam Justice K.S. Neill on October 22, 2014 such that Her Honour rescinded her Order on May 12, 2015. No further assessment of any kind has been undertaken since.

[13] Nowhere in Mother’s Affidavit does she provide any evidence of any steps taken to address her mental and emotional instability since the date of the most recent Supervision Order. Mother was provided with the opportunity during her argument to address that evidence specifically. I asked Mother directly several times whether she wished to testify in person so as to provide information about her current mental and emotional state and any treatments undertaken by her since the date of the hearing of the Summary Judgment Motion which gave rise to the Final Order of Rogers, J. I specifically pointed to Mother’s Affidavit, confirmed that such information was not contained therein, and again invited Mother to take the stand on her own behalf. Rather than indicate whether she wanted to take the stand to provide any such evidence, Mother simply refused to answer.

[14] Mother did not take any position specific to the Society’s request that access between her and M.J.B. be in M.J.B.’s discretion.

Evidence and Position of Respondent Father

[15] Father did not file an Affidavit and, other than having served his Answer and Plan of Care asking that the Society continue its involvement until M.J.B.’s eighteenth birthday, appears to have participated only marginally in this litigation. Father’s Answer and Plan of Care was not filed in the Continuing Record, but it does not appear that he was formally noted in default in these proceedings and he was served with the Society’s Motion for Summary Judgment and Affidavit in support thereof. Although Father’s position is therefore not formally before the Court, counsel for the child and for the Society both confirm that it was Father who initially raised the concern with respect to the potential impact of the existing Custody Order upon M.J.B. and asked the Society to continue its Supervision Order.

Evidence and Position of Children’s Lawyer on Behalf of M.J.B.

[16] Mr. Morneau, for M.J.B., supports the Society’s continued involvement so as to avoid any unwanted contact between Mother and M.J.B. While M.J.B. does not want any contact with Mother at the present time, Mr. Morneau urges the Court to avoid any appearance that this fractured relationship is to be blamed upon M.J.B.’s views and preferences. M.J.B. did not cause this situation; she was only five years of age when contact with Mother was severed by the Society on the recommendations of the Parenting Capacity Assessor. M.J.B. is doing well academically, socially and in her plans for her own future and does not want to be tasked with managing a relationship with her Mother at this time in light of her Mother’s refusal to address the ongoing protection concerns.

[17] Put simply, the severed relationship between Mother and M.J.B. is caused by Mother’s emotional instability, not by M.J.B.’s views and preferences. This is an important distinction.

Law and Analysis

[18] The leading case on Summary Judgment in the context of child protection proceedings is Kawartha-Haliburton C.A.S. v. M.W., Curve Lake First Nation, and OCL, 2019 ONCA 316 (“Kawartha-Haliburton C.A.S.”). In that case, Madam Justice Benotto on behalf of the Court of Appeal set out the specific considerations needed in these matters at paragraphs 62 through 80 of her decision. The legislative framework and Her Honour’s direction with respect to the unique approach to be taken bear repeating. The statutory language is set out at Appendix “A” hereto, omitting the content relating to Indigenous children and to temporary or extended Society Care as such content is not applicable to this case.

[19] At paragraph 80 of the decision in Kawartha-Haliburton C.A.S., Justice Benotto wrote:

To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.

3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.

5. [omitted as not applicable to the case at bar].

I will apply each of these directives in turn below.

Directive #1: Is there a genuine issue requiring a trial, viewed through the specific lens applicable to child protection proceedings?

[20] I respectfully suggest that Madam Justice Benotto’s first directive asks courts of first instance to determine whether a particular child protection case is suitable for Summary Judgment. In order to do so, the applicable legal test must be defined so as to best understand the triable issues, if any, viewed through the lens of the paramount purpose of the CYFSA, being the promotion of the best interests, protection and well-being of children.

[21] It is trite to say that all child protection matters should be, of necessity, focused upon the best interests, protection and well-being of the children involved. While the individual actors (parents, Society workers, extended family customary care-givers) may have different views on the exact terms that are in the best interests of the specific children they care for, the Court’s role is always to objectively assess each proposal so as to generate a comprehensive plan in the children’s best interests. On a Status Review Application specifically, the two-stage test to be applied as set out in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, and referenced most recently by the Ontario Court of Appeal in Children’s Aid Society of Oxford County v. W.T.C., 2013 ONCA 491:

1. Does the child continue to be in need of protection?

2. If so, which of the available range of orders is in the child’s best interests?

[22] At paragraph 32 of its decision, the Court of Appeal confirmed that stage one of this analysis does not require a fresh finding that the subject child is in need of protection as defined by then-section 37(2) of the Child and Family Services Act, R.S.O. 1990, c. C-11, now section 74(2) of the CYFSA: “We do not accept the mother’s interpretation [of the Supreme Court’s decision], namely that the first step of the test requires the status review judge to determine whether the child continues to be in need of protection as that term is defined in s. 37(2) of the [Child and Family Services Act].” The threshold of a “continuing need of protection” is lower on a Status Review Application than it was on the hearing of the original Protection Application.

[23] With the threshold of a “continuing need of protection” being lower on Status Review, a logical approach is to ask whether any of the circumstances which supported the original finding that M.J.B. was in need of protection have changed since the date of the most recent Supervision Order. M.J.B. continues to be in the care of her Father. She continues to attend school full-time and no concerns regarding her academic performance or socialization have been raised. No medical or other concerns regarding M.J.B.’s well-being in Father’s care have been raised by third party professionals working with her. Similarly, there do not appear to have been any changes to Mother’s health or well-being. She has not seen any person to assist her with, or treat her for, apparent mental health issues since the date of the Supervision Order.

[24] There are only two possible Orders being sought from the Court: (1) the termination of the Society’s involvement; and (2) a further Supervision Order. The question therefore becomes: What is the result if the Supervision Order sought by the Society is not granted, and what impact could that result have upon M.J.B.’s best interests? Although no copy of the historic Custody Order has been produced, I am advised that it provides sole custody to Mother. M.J.B. is on the cusp of turning eighteen years of age. While it is unlikely that M.J.B. would be forced by any person to reside with her Mother against her wishes, the effect of a Custody Order could grant Mother access to M.J.B.’s personal and otherwise confidential information, such as medical and academic records.

[25] Having regard to the foregoing, I find that this case is suitable for a Summary Judgment Motion.

Directive #2: Has the Society met the burden of proving that no genuine issue requiring a trial exists?

[26] The basic facts are not disputed: (1) M.J.B. lives with her Father; (2) M.J.B. has had no contact with her Mother since 2007; (3) M.J.B. is not struggling emotionally, medically or academically; (4) Mother refused to participate in the Parenting Capacity Assessment ordered in 2014; and (5) Mother has not taken any steps to address her mental health with a professional since the date of the current Supervision Order, namely December 6, 2017. Nothing has changed materially since the date of the Supervision Order, and none of the evidence regarding these matters would be presented better, or would be significantly challenged in cross-examination, at a trial. Therefore, on the balance of probabilities, the Society has demonstrated that there is no genuine issue requiring a trial.

Directive #3: Evidentiary Considerations

[27] It is a long-held tenet that children’s evidence is to be taken with great care with a view to minimizing any negative impact of the litigation process upon them. This regularly requires the presentation of evidence that would otherwise be excluded as inadmissible hearsay. In R. v. Khan, [1990] 2 S.C.R. 531, 1990 CanLII 77 (SCC), the Supreme Court of Canada provided clear direction in the admission of hearsay evidence to provide a child’s statements to the Court via an adult witness. For the unanimous Court, Madam Justice McLachlin wrote (pp 546 para h – 547 para c):

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (…) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances and are best left to the trial judge.

[28] The Court went on to caution us that the remaining safeguards to a party’s interests must be respected and maintained where hearsay evidence is being admitted, particularly in the case of child witnesses where cross-examination of the child him- or herself is not available.

[29] As M.J.B.’s evidence as to her views and preferences is central to this litigation, and having regard to Madam Justice Benotto’s third directive, I address the admissibility of statements attributed to M.J.B. first. M.J.B.’s statements are provided by means of the Affidavits of Ms. Kulik dated October 17, 2018; December 17, 2018; and June 6, 2019.

[30] In the first Affidavit dated October 17, 2018 at paragraph 10, Ms. Kulik writes:

10. On October 2, 2018, [Father] reported that M.J.B. was doing well. She attends school, is involved in sports and holds a steady part time job. [Father] indicated that M.J.B. does not wish to have contact with her mother. [Father] informed that M.J.B. continues to have positive relationship [sic] with maternal grandmother and her husband.

[31] In the second Affidavit dated December 17, 2018, Ms. Kulik writes at paragraph 8:

8. Since [the Affidavit of October 17, 2018] was sworn, I received an update about M.J.B. from [Father] via email on December 6, 2018. He confirmed to me that M.J.B. continues to have no desire to have contact with her mother at this time. As far as I am aware, she continues to do well in [Father’s] care at this time.

[32] In the third Affidavit dated June 6, 2019, Ms. Kulik writes at paragraph 26:

26. On March 22, 2019, I had a phone conversation with M.J.B. She advised me that nothing has changed, she attends school and has a part time job. M.J.B. stated she did not wish to have contact with her mother and wanted the Society’s Supervision Order to remain in place until her 18th birthday. M.J.B. had no questions and did not have anything further to add. It appeared to me she was cautious about not disclosing too much information, which could compromise her privacy.

[33] Having regard to the general view that children ought not to be compelled to testify and that their evidence in child protection proceedings should be presented through an adult witness, I conclude that the presentation of M.J.B.’s evidence through Ms. Kulik’s Affidavit is “necessary” and satisfies the first branch of the Khan test. For clarity, I would not wish this conclusion to be taken as a blanket rejection of any evidence presented directly to the Court by children involved in family litigation – that is a more nuanced and detailed issue that requires more analysis than is appropriate for this particular discussion.

[34] The Khan test then turns to the reliability of Ms. Kulik’s testimony in the presentation of M.J.B.’s evidence. Ms. Kulik has no vested interest in this litigation and provides her evidence in her capacity as an employee of the Society. It is important to recall that it was Ms. Kulik herself who attempted to engage positively with Mother upon having the family assigned to her, with a view to determining whether Mother was addressing her mental health issues in such a fashion as to favour a resumption of contact between her and her daughters (see paragraphs 7 – 12 of the Affidavit of K. Kulik sworn January 14, 2015 at Tab 2 of the Society’s Document Brief). While Mother claims that the Society has nefarious and ulterior motives in this litigation, I reject that assertion and accept that Ms. Kulik has no reason to fabricate or alter her testimony which is reliable.

[35] However, Ms. Kulik’s first and second Affidavits rely upon so-called “double hearsay” in that she testifies as to M.J.B.’s father’s statements about M.J.B.’s views and preferences. Being mindful that the evidence to be relied upon in a Summary Judgment proceeding must be no less admissible than evidence tendered at trial, I therefore do not rely upon paragraph 10 of the first Affidavit sworn by Ms. Kulik or upon paragraph 9 of the second Affidavit sworn by Ms. Kulik in defining M.J.B.’s views and preferences. In so doing, I note that the omission of this evidence on the basis that it is “double hearsay” also addresses Mother’s stated concern that any evidence received through Father is inherently suspicious and unreliable.

[36] Ms. Kulik’s third Affidavit attests to her direct conversation with M.J.B. regarding her wish to have no contact with her Mother. Ms. Kulik provides the date of her telephone conversation and confirms that the information was received directly from M.J.B. herself. I accept the evidence of M.J.B.’s views and preferences as described at paragraph 26 of the Affidavit of Ms. Kulik sworn June 6, 2019, namely that M.J.B. does not wish to have any contact with her Mother at this time. Having regard to section 74(3)(a) of the CYFSA, I give M.J.B.’s views significant weight in view of her age (17 at the date of this hearing) and level of sophistication, which I find to be considerable based upon her ability to manage school and a part-time job notwithstanding her challenging lived experience to date.

[37] In presenting evidence addressing M.J.B.’s well-being, Ms. Kulik includes the same paragraph quoted above as paragraph 10 of her Affidavit sworn October 17, 2018 at paragraph 22 of her Affidavit sworn June 6, 2019:

22. On October 2, 2018, [Father] reported that M.J.B. was doing well. She attends school, is involved in sports and holds a steady part time job. [Father] indicated that M.J.B. does not wish to have contact with her mother. [Father] informed that M.J.B. continues to have positive relationship [sic] with maternal grandmother and her husband.

[38] Ms. Kulik further attests that she has “no concerns about the care being provided to M.J.B. by her father.”

[39] The statements about M.J.B.’s attendance at school and participation in sports and part-time employment are not “double hearsay” because Father is perfectly capable of testifying as to his observations in that regard. As noted above, Father has chosen not to participate meaningfully in this litigation. Unfortunately, having Ms. Kulik recite these observations, which are not her own, as part of her evidence means that they are hearsay and inadmissible in the normal course. Particularly in the context of this matter wherein Mother alleges that Father fabricates evidence to destroy her relationship with M.J.B. while the Society looks the other way, the best practice would be for copies of M.J.B.’s recent school report cards to be appended as exhibits to Ms. Kulik’s Affidavit to demonstrate her school attendance. Similarly, a short Affidavit from a coach or other school official confirming M.J.B.’s participation in sports and a copy of her paystub from part-time employment would present that evidence properly. While M.J.B.’s privacy concerns are noted, all such documentation could readily be redacted to ensure that Mother would not have information regarding her schedule or whereabouts.

[40] This leaves the statement by Ms. Kulik that she has no concerns about the care of M.J.B. in her Father’s home, which I accept having regard to Ms. Kulik’s six-year involvement with this family.

[41] Overall, and despite Her Honour’s directive that the Court must be vigilant in ensuring that evidence is presented on Summary Judgment Motion in as clean a fashion as it would be at trial, I must also keep in mind the paramount purpose of the CYFSA and the primary objective of the Family Law Rules:

CYFSA: Section 1.(1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

Family Law Rule 2

(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[42] To belabor the question of hearsay evidence in this matter by dismissing the Society’s Summary Judgment Motion and ordering a trial would not be consistent with the above paramount purpose and primary objective. Mother has provided no evidence of any steps taken to address her long-standing mental health issues and the child’s views and preferences have been clearly articulated in an acceptable manner. Further, it is uncertain whether a trial could be conducted and a decision rendered before M.J.B.’s upcoming eighteenth birthday, which of course renders all arguments moot. I therefore apply Rules 2(2) and 2(3) of the Family Law Rules to the conduct of this Summary Judgment Motion and accept the evidence presented by the Society regarding M.J.B.’s welfare as set out in Ms. Kulik’s Affidavits.

Directive #4: Judicial Assistance to SRLs

[43] At the outset of the hearing, I made a point of asking Mother whether she had any intentions of consulting with counsel, whether through Legal Aid or otherwise, having regard to the importance of the matter before the Court. She declined counsel. When she interrupted counsel for the Society in submissions, I advised her to make notes of the concerns that she had so that she could be certain to raise those concerns when it was her turn to speak on her own behalf. Mother confirmed that she was able to take notes, but did not appear to do so despite my suggestion. At least three times I asked her to direct me to any evidence in the Affidavit materials regarding treatment for her mental health issues, and, when she could not do so, I provided her with the opportunity to take the stand on her own behalf to give additional evidence to ensure that all the facts were before the Court. She declined the opportunity to testify on her own behalf. Her submissions proceeded uninterrupted and I confirmed, at their conclusion, that she had nothing further to present.

[44] The interests of justice generally, and the best interests of children specifically in family law matters, must always prevail. Thus, it is incumbent upon the Court to provide meaningful assistance to the ever-increasing volume of self-represented litigants. However, the Court must be vigilant to ensure that there is no perception on the part of represented litigants that a self-represented litigant is being favoured or that representation by competent counsel is unnecessary. Further, it would be completely unacceptable for time-sensitive matters in our family courts to be unduly delayed while the Court manages a self-represented litigant’s file for him or her. As has often been said, children benefit from the timely resolution of litigation regarding their parenting and support, and so the Court must walk a fine line between ensuring that the position and evidence of the self-represented litigant is heard and safe-guarding the litigation process through the rules of evidence and procedure. Overall, I made my best efforts to ensure the integrity of this hearing in the context of Mother’s self-representation.

Conclusion

[45] In determining whether there is a “genuine issue requiring a trial” in this matter, the facts as they stand today must be viewed through the lens of the history of this litigation to determine whether a change in circumstances could create a triable issue. Simply stated, Mother has a long history of presenting as mentally ill, which presentation continued through the hearing of this matter before me. M.J.B. has not had contact with Mother since 2007 and clearly states that she does not want to resume contact now. Termination of the Society’s involvement would have the legal result of reverting to a Custody Order which is contrary to M.J.B.’s stated views and preferences and could well put M.J.B.’s privacy at risk. Mother does not provide any reason why the resumption of the Custody Order would be in M.J.B.’s best interests today, choosing instead to focus on the lengthy history of this matter. No genuine issue requiring a trial is apparent, and the Society has satisfied the test in Children’s Aid Society of Oxford County v. W.T.C., namely: (1) that M.J.B. continues to be in need of protection as a result of the reversion to the Custody Order that would occur in the event that its involvement was terminated; and (2) a short Supervision Order to carry M.J.B. past her eighteenth birthday is the least intrusive option in this matter.

Order

[46] Based on all of the foregoing, a Final Order shall issue as follows:

1. The child, M.J.B., shall remain in the care and custody of her father, C.W.B., subject to the supervision of the Children’s Aid Society of the Regional Municipality of Waterloo for a period of three (3) months on the following terms and conditions:

a. C.W.B. will continue to provide care for M.J.B. and will meet all her needs.

b. K.S. and C.W.B. will co-operate with the Children’s Aid Society of the Regional Municipality of Waterloo and will meet with a worker from the Children’s Aid Society of the Regional Municipality of Waterloo at their home, at the agency and/or in the community as requested by the worker.

c. C.W.B. will allow a worker from the Children’s Aid Society of the Regional Municipality of Waterloo to communicate with service providers for M.J.B. and vice versa.

d. K.S. and C.W.B. will sign consents to release information to allow the Children’s Aid Society of the Regional Municipality of Waterloo to communicate with service providers for M.J.B. and vice versa.

e. K.B. and C.W.B. will advise the Children’s Aid Society of the Regional Municipality of Waterloo in advance of any change in address and/or telephone number.

f. C.W.B. will ensure that K.S. has no unauthorized access to M.J.B. and will contact the Children’s Aid Society of the Regional Municipality of Waterloo and the Waterloo Regional Police Services immediately if K.S. attempts to contact M.J.B.

g. C.W.B. will attend any counselling recommended to assist him in addressing M.J.B.’s emotional needs.

2. Access, if any, to the child, M.J.B., by her mother, K.S., shall be in the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and in accordance with M.J.B.’s wishes as to type, frequency, location, supervision and any other conditions.

3. Approval of this Order by unrepresented parties is waived.

BREITHAUPT SMITH, J.

Released: September 10, 2019

APPENDIX “A” – RELEVANT STATUTORY PROVISIONS

Family Law Rules, O. Reg. 114/99 as amended:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

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

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) 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.

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).

Child, Youth and Family Services Act, 2017 (S.O. 2017, c. 14, Sched. 1)

BEST INTERESTS OF CHILD

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) …; and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

ORDER WHERE CHILD IN NEED OF PROTECTION

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

SUPERVISION ORDER

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

TERMS AND CONDITIONS OF SUPERVISION ORDER

(7) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision;

(b) reasonable terms and conditions on,

(i) the child’s parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

ORDER FOR CHILD TO REMAIN OR RETURN TO PERSON WHO HAD CHARGE BEFORE INTERVENTION

(8) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

NO ORDER WHERE CHILD NOT SUBJECT TO PARENTAL CONTROL

(9) Where the court finds that a child who was not subject to parental control immediately before intervention under this Part by virtue of having withdrawn from parental control or who withdraws from parental control after intervention under this Part is in need of protection, but is not satisfied that a court order is necessary to protect the child in the future, the court shall make no order in respect of the child.

STATUS REVIEW

113 (1) This section applies where a child is the subject of an order made under paragraph 1 or 4 of subsection 101 (1) for society supervision or under paragraph 2 of subsection 101 (1) for interim society care.

SOCIETY TO SEEK STATUS REVIEW

(2) The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child’s status;

(b) shall apply to the court for a review of the child’s status before the order expires, unless the expiry is by reason of section 123; and

(c) shall apply to the court for a review of the child’s status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision.

APPLICATION OF SUBS. (2) (A) AND (C)

(3) If a child is the subject of an order for society supervision, clauses (2) (a) and (c) also apply to the society that has jurisdiction in the county or district in which the parent or other person with whom the child is placed resides.

OTHERS MAY SEEK STATUS REVIEW

(4) An application for review of a child’s status may be made on notice to the society by,

(a) the child, if the child is at least 12;

(b) a parent of the child;

(c) the person with whom the child was placed under an order for society supervision; or

(d) [omitted].

NOTICE

(5) A society making an application under subsection (2) or receiving notice of an application under subsection (4) shall give notice of the application to,

(a) the child, except as otherwise provided under subsection 79 (4) or (5);

(b) the child’s parent;

(c) the person with whom the child was placed under an order for society supervision;

(d) any foster parent who has cared for the child continuously during the six months immediately before the application; and

(e) [omitted].

SIX-MONTH PERIOD

(6) No application shall be made under subsection (4) within six months after the latest of,

(a) the day the original order was made under subsection 101 (1);

(b) the day the last application by a person under subsection (4) was disposed of; or

(c) the day any appeal from an order referred to in clause (a) or the disposition referred to in clause (b) was finally disposed of or abandoned.

EXCEPTION

(7) Subsection (6) does not apply if the court is satisfied that a major element of the plan for the child’s care that the court applied in its decision is not being carried out.

INTERIM CARE AND CUSTODY

(8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

COURT MAY VARY, ETC.

114 Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 101; or

(d) make an order under section 102.

COURT FILE NO.: FC-06-FO-3267

DATE: 2019 09 10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of the Regional Municipality of Waterloo Applicant

– and –

K.S. and C.W.B. Respondents

DECISION – SUMMARY JUDGMENT MOTION

J. Breithaupt Smith, J

Released: September 10, 2019