COURT FILE NO.: FC-08-FO-0112
DATE: 2019-10-16
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.
ONTARIO
SUPERIOR COURT OF JUSTICE – UNIFIED FAMILY COURT
BETWEEN:
Children’s Aid Society of the Regional Municipality of Waterloo
Applicant
– and –
C.N. and H.C.
Respondents
Jeffrey Boich, Counsel for the Applicant
Walter Wintar, Counsel for the Respondent Mother
Brent Balmer, Counsel for the Respondent Father
Mark Mauer, Agent for OCL representing the child M.J.B.
HEARD: September 11, 2019
J. BREITHAUPT SMITH
DECISION – MOTION FOR SUMMARY JUDGMENT
Introduction
[1] The Applicant Society (the “Society”) brings a Motion for Summary Judgment placing the three children with the Respondent Father, H.C., under the terms of a six-month Supervision Order pursuant to section 113 of the Child, Youth and Family Services Act, 2017, (S.O. 2017, c. 14, Sched. 1) (“CYFSA”). The Respondent Father, H.C., is step-father to the eldest child, S.N. born […], 2008, and biological father to the two younger children, A.C. born […], 2010 and N.C. born […], 2013. In separate litigation on May 6, 2008, S.N.’s biological father was found not to be a “parent” within the meaning of the legislation, and he appears to have had no involvement in S.N.’s life. The Respondent Mother, C.N., is biological parent to all three children.
[2] The Amended Notice of Motion for Summary Judgment is found at Volume 5, Tab 1 of the Continuing Record, and in submissions in response to a question from me, counsel for the Society further amended the requested paragraph 2 of the Amended Notice of Motion to read:
- Access to the children, [names redacted], by their Mother [C.N.] is to be at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children’s Aid Society of the Regional Municipality of Waterloo.
[3] The Respondent Father (“Father”) does not oppose the Society’s request for relief, and indeed had signed a “consent package” inclusive of a Statement of Agreed Facts in advance of the hearing of this matter. The Respondent Mother’s (“Mother”) most recent substantive participation in this litigation took the form of the filing of her Affidavit dated March 21, 2019. Mother did not appear at Court when her Affidavit was filed on March 28, 2019, nor did she appear on any subsequent date inclusive of the hearing before me on September 11, 2019. Before scheduling this hearing, Mme. Justice J. Walters granted a further adjournment on June 25, 2019 specifically “to give the parties an opportunity to discuss resolving this matter with the Mother.” Mother’s counsel has been repeatedly placed in the difficult position of having to advise the Court that he has been unable to communicate with his client or to obtain instructions from her; this unenviable situation persisted for Mr. Wintar at this hearing. Therefore, although the Society’s request for relief is effectively unopposed, I must nonetheless undertake the appropriate analysis in rendering my decision.
Background
[4] The Society and other agencies have been involved with Mother since 2000 in providing services connected with her first-born child, R.W., who was apprehended and placed permanently with kin, and with her second child, C.N., who was eventually made a Crown Ward without access [using the then-applicable terminology].
[5] The Respondent parents were married for more than seven years and separated on December 24th, 2014. All three children lived with Mother for approximately fourteen months until January of 2016 when she found herself unable to cope and delivered them into Father’s care. On April 20, 2016, Father obtained a Final Order for sole custody of all three children with Mother’s consent (the “Custody Order”). Apparently, the Custody Order provides that Mother will have access with the children at Father’s discretion. No copy of the Custody Order could be located and produced in these proceedings. The question of Mother’s involvement with the children pursuant to the Custody Order is not yet critical to the determination of the children’s best interests at this stage of this matter, but I would remind all parties that, if and when the Society seeks to discontinue its involvement with this family, a copy of the Custody Order will be an essential document to have before the Court at that time.
[6] In October of 2017, following an incident of serious domestic conflict being reported to the Waterloo Regional Police Services (“WRPS”), investigations by the Society and WRPS revealed the possibility that Father had been physically abusive toward the children. Reports made by Father’s ex-partner included allegations that Father had struck the children with his hands and with a belt. Following a period of stability wherein the children and their school officials reported no concerns, a second former partner of Father (whom the children considered to be their step-mother) contacted the Society on April 10, 2018 to advise that Father was physically disciplining A.C. by striking him on the back with a belt. A.C. was seven years old at the time. A WRPS investigation led to a charge of assault with a weapon being laid against Father pursuant to Section 267 of the Criminal Code of Canada for the attack on A.C. All three children were brought to a place of safety on April 10, 2018 and placed together in a foster home.
[7] Within the first thirty days in care, the eldest child, S.N., was able to connect positively with her foster parent. S.N. has benefitted from: personal counselling; the “Mini Me-to-We” program offered through the Society to build developmental assets; the SMILES program offered through the Society for children who have a family member suffering from mental illness (identified as Mother); and overnight summer camp offered through the Society’s connections to the community. While A.C. started working with a counsellor on emotional regulation skills immediately upon coming into care, his behaviours continued to escalate such that by June 9, 2018 the foster parent sought the assistance of Grand River Hospital in medicating him and A.C.’s placement was changed to a care home effective June 19, 2018. The additional supports available to A.C. at the care home seemed to settle down his behaviours very quickly, and although he has had at least one emotional outburst at school, no incidences of physical aggression have occurred since the Summer of 2018. A.C. continues to be followed by a paediatrician, Dr. Rajguru. The youngest child, N.C., is described as “displaying the least amount of struggles.” All three children have been seen by the Society’s Sexual Assault Treatment Program as a result of a referral arising from an incident of touching alleged to have taken place between A.C. and N.C. on or about June 14, 2018.
[8] Although information regarding Mother’s regular involvement with the children between January of 2016 and April 10, 2018 is scant, Mother appears to have been homeless in the Spring of 2018 and thus was unable to house the children when they were removed from Father’s care. Mother’s Answer and Plan of Care, filed in response to the original Protection Application and dated July 25, 2018, reads at paragraph 5: “I am not in a position to put forward a plan of care at this time to care for my children myself…” and continues on to set out terms of a kin placement for her two daughters and to suggest that A.C. “reside at a proper residence where he can receive the help he requires to deal with his behavioural issues.”[^1]
[9] During the time that the children were in care, Father completed anger management and positive parenting/discipline courses. He admitted his wrongdoing and pled guilty to the charge of assault with a weapon on July 24, 2018. He was sentenced on December 7, 2018, receiving a conditional discharge following six months’ probation. The six-month probationary period ended June 7, 2019 without incident or any suggestion by Father’s probation officer that further counselling would be beneficial to him. After a gradual increase of access between Father and the children, they were returned to his care on a full-time basis over March Break 2019.
Continued Placement of the Children with Father
[10] As noted, the Society seeks an Order placing the children with Father subject to terms of supervision for a period of six months. Father supports this request. Father’s construction work provides him with the flexibility to ensure that he can get the children to and from school and he has three trusted adults whom he can call upon to assist him should the need arise, including one who has been previously approved by the Society to stand in a care-giving role to the children. When disciplining the children, he withholds privileges such as the use of electronics or watching YouTube. He has maintained S.N.’s participation in the “Mini Me-to-We” program and A.C.’s treatment by Dr. Rajguru, and he is supportive of any counselling for the children as may be recommended by the Society. His Permanent Resident application has been on-going for three years, supported by bi-annual temporary visas, and the conditional discharge which resulted from the charge against him poses no threat to his permanent admission to Canada.
[11] All three children have expressed a wish to live with Father. S.N. consistently expressed this wish since shortly after transitioning into foster care. Mother concedes that S.N. has expressed this preference to her as well and confirms that she “will respect her wishes.” A.C. wishes that his parents could reside together. Mother contests this interpretation of A.C.’s comments and claims that he wants to reside primarily with her. N.C. has said that she wants to continue living with her sister, S.N., and based on that sibling bond Mother does not contest her placement with Father. For the children, Mr. Maurer confirms that all three children are content in Father’s care and do not wish to change their placement.
[12] Having set out her position with respect to the placement of each child in her Affidavit sworn March 21, 2019, Mother confirmed in argument via her counsel that she still does not have stable housing and was no longer opposing the placement of all three children with Father.
Access between the Children and Mother
Evidence and Position of the Society, Moving Party
[13] Mother’s multiple lifestyle struggles have negatively impacted her ability to maintain consistency in her relationship with the children. I would note that there is no evidence in the Continuing Record regarding access between Mother and the children in the period from the date when they came into care (April 10, 2018) through to December 31, 2018.
[14] On January 1, 2019, the Society received a report that Mother had been violently assaulted by her partner, “Jarod” (also known as “Jay” or “Jesse”). As a result of her injuries, her access was suspended briefly “due to the risk of trauma to the children seeing their mother so battered from the assault.” Mother’s supervised access resumed one week later, on January 8, 2019, and thereafter has taken place weekly on Wednesdays.
[15] At Mother’s request, the access location was changed from Kitchener to Cambridge and a one-hour supervised visit was scheduled for January 16, 2019 commencing at 3:30 p.m. Initially, parents whose access is supervised are allowed a fifteen-minute late-arrival grace period before the visit is cancelled and the children are returned home. Cambridge Society staff person Karen Innanen reported that Mother arrived at 4:00 p.m. on January 16, 2019, after the children had been sent home at 3:50 p.m., and became verbally abusive to staff in the presence of other families. Mother thereafter refused to attend at the Cambridge location and demanded that her visits resume at the Kitchener location. This change could not be accommodated for the scheduled visit on January 23, 2019, and so the next visit took place on January 30, 2019. Despite significant vitriol aimed by Mother at the family’s worker, Ms. Juanita Parent, and a new early check-in procedure for Mother that was instituted, the visits from January 30, 2019 through to February 27, 2019 went fairly smoothly at the Kitchener location (“The Family Centre”).
[16] On February 27, 2019, Mother asked newly-assigned Society worker Crina Fantanaru to observe her interaction with A.C. at the outset of the visit in order to prove to Ms. Fantanaru that A.C. wanted to live with her rather than with Father. Against Ms. Fantanaru’s advice not to pressurize A.C., Mother asked him with whom he wanted to live. A.C. replied “with Mom and Dad” and, when Mother told him that this was not possible and that he should share his preference with Ms. Fantanaru, he removed himself from Mother’s arms and left to play elsewhere.
[17] On March 13, 2019, Society worker Kirat Kaur completed a Significant Event Report which was attached as Exhibit “A” to the Affidavit of Crina Fantanaru sworn March 25, 2019. Although Mother attended this visit early and it started with her appearing “alert and organized,” less than one hour into the visit Mother was “observed to be falling asleep at the table repeatedly” such that S.N. was becoming concerned. Mother regained some vitality when playing with the children, but by 4:25 p.m. S.N. was nudging her to keep her awake. At one point, Mother almost fell forward into S.N.’s face, causing S.N. to jolt back away from her. About two hours after the visit had ended, Mother was found asleep on a couch in the lobby of The Family Centre and, when awakened by staff, “she was initially unable to open her eyes, grunting responses” and “was unable to hold a conversation.” Staff called paramedics who took Mother to St. Mary’s Hospital.
[18] The following week, on March 20, 2019, Mother called in to say that she was late and to advise that she would attend by 3:15 p.m. The Supervised Access Worker on duty advised her that, so long as she would be present by 3:15 p.m. for the start of her 3:45 p.m. visit, the visit could take place. Mother did not arrive by 3:15 p.m.
[19] Mother cancelled both the April 17, 2019 visit and the May 1, 2019 visit because she was suffering from medical issues (a “black eye” and a “lazy lip” respectively) and did not want the children to be upset by her appearance. On July 3, 2019, Mother cancelled the visit for similar reasons.
[20] On each of June 5th, July 10th and July 17th, Mother breached The Family Centre’s protocol by insisting upon accompanying the children to Father’s vehicle at the end of each visit.
[21] Despite all these challenges, Mother’s supervised access continues at The Family Centre on Wednesdays from 3:45 – 4:45 p.m.
Evidence and Position of Respondent Mother
[22] It seems that Mother has been precariously housed for many months. In her Affidavit sworn March 21, 2019, Mother identified her mental health issues as including anxiety and ADHD. She confirmed participation in Alcoholics Anonymous meetings and her intention to attend a day program with Withdrawal Management located in Cambridge, Ontario.
[23] Mother does not raise any issues with her supervised access visits in her Affidavit of March 21, 2019. She does not complain about the timing, nature, structure or duration of her visits with the children. She lists numerous activities that she would plan should A.C. have been placed in her primary care, including Go-Karting, rock climbing and camping, but provides no details setting out feasible plans for transportation or the funding of such activities. She adds a blanket request to have the girls in her care on alternate weekends and Wednesday evenings in each week despite her then-residency at A[…] House.
[24] Notwithstanding the content of her Affidavit, Mother did not pursue any specific terms to be included in a Supervision Order in argument but rather instructed her lawyer not to oppose the Society’s request that her access be “at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children’s Aid Society of the Regional Municipality of Waterloo.”
Evidence and Position of Respondent Father
[25] Not surprisingly, Father supports the Society’s position that the children should remain in his care. Father’s Affidavit sworn September 11, 2019 confirms simply that he is “prepared to support access for the children with [Mother]” as evidenced by his transporting the children to and from access visits at The Family Centre.
Evidence and Position of Children’s Lawyer
[26] For the children, Mr. Maurer advised that they all wish to remain in their Father’s home and to continue their visits with Mother at The Family Centre. They enjoy the visits and are disappointed when visits do not proceed as planned. From their perspective, nothing should be changed at this time.
Law and Analysis
[27] This case presents the kind of child protection matter that is an ideal candidate for summary judgment. One parent’s position has aligned with the Society’s position since the amendment of the Status Review Application; the other parent’s position has changed sometime prior to the hearing of the Summary Judgment Motion such that the Order sought is no longer opposed. A consent package cannot be filed with the Court due to the conceding parent’s inability to bring herself to sign same, here (as in many cases) for reasons connected with poverty; mental illness; precarious housing; and substance abuse. It is nonetheless important to conduct the appropriate analysis to ensure fairness.
[28] 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.
[29] 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:
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.
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.
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.
[Considerations regarding self-represented litigants omitted as not applicable to the case at bar.]
[Considerations regarding First Nations/Inuk/Métis children omitted as not applicable to the case at bar.]
I will apply each of the three applicable directives in turn below.
Directive #1: Is there a genuine issue requiring a trial, viewed through the specific lens applicable to child protection proceedings?
[30] 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.
[31] The two-stage test to be applied on a Status Review Application is 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:
Does the child continue to be in need of protection?
If so, which of the available range of orders is in the child’s best interests?
[32] At para. 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.
[33] The Society seeks a finding that A.C. continues to be in need of protection pursuant to section 74(2)(a-i) and (b-i) of the CYFSA in that there is a continuing likely risk that he may suffer physical harm inflicted by his parents or as a result of their failure to adequately care for him. With respect to the two girls, the Society seeks a finding that they continue to be in need of protection pursuant to section 74(2)(b-i) of the CYFSA. While Father must be commended for having made great strides in un-learning toxic parenting habits and taking an alternative approach that involves the management of his own emotional response in using appropriate and child-focused disciplinary techniques, the children have been back in his care for only approximately eight months, and thus it is reasonable for a longer track record to be developed. Having regard to Mother’s lack of housing, a finding under section 74(2)(b-i) of the CYFSA regarding all three children is similarly appropriate.
[34] The least intrusive Order is always one that returns the children to the parent from whose care they were brought to a place of safety. The children’s living routine prior to this litigation, namely that they resided with their Father and visited with the Mother, has been re-established in an improved format: their Father now uses child-focused and supportive parenting techniques and access with their Mother is regularized on Wednesdays after school in a family-friendly setting.
[35] As alluded to at the outset of this section of my Reasons, this case exemplifies the type of matter that 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?
[36] The basic facts are not disputed: (1) all three children have been living with Father since March break; (2) Father has supported regular, weekly access between the children and Mother; (3) all three children are reported to have improved experiences at school; (4) S.N. has greatly benefitted from programming offered through the Society and Father supports her continued involvement in such programming; (5) A.C.’s self-regulation has improved significantly with the intervention of his paediatrician and Father supports this treatment; (6) Father is able to provide the children with stability at home through employment that is flexible enough to allow him to meet their needs; (7) Mother continues to reside in and out of shelters; and (8) Mother does not have a viable alternative plan for the exercise of her access with the children outside of the Society’s facility.
[37] The material change since the granting of the Protection Order is that the children have been returned to the care of their Father subject to the Society’s supervision. Part of the Society’s involvement has had the result of normalizing Mother’s access with the children, which takes place in a safe and child-focused setting. Mother herself is unable to provide an alternate setting for her access as she continues to be precariously housed. 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: Screening for Evidentiary Considerations
[38] Three considerations of admissibility (all of which relate to otherwise inadmissible hearsay) are engaged by aspects of the evidence presented in this Motion: (1) the presentation of business records as proof of the truth of their contents; (2) the admissions made by a party against his or her own interest; and (3) the presentation of children’s evidence.
(1) Business Records
[39] Section 35 of the Evidence Act, R.S.O. 1990, c. E.23 reads:
35 (1) In this section,
“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise;
“record” includes any information that is recorded or stored by means of any device.
(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.
(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days’ notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.
(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.
(5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged.
[40] Section 93 of the CYFSA reads:
93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
(2) In a hearing under subsection 90 (1), evidence relating only to the disposition of the matter shall not be considered in determining if the child is in need of protection.
[41] It is unclear on the record whether notice was served by the Society as contemplated by Section 35(3) of the Evidence Act with respect to the documents filed as Exhibits. The Affidavit dated February 8, 2019 was served on February 11, 2019. The Affidavits dated March 25, 2019 and July 31, 2019 were served the day upon which each was sworn. As of June 25, 2019 all parties were aware that the matter was going to be scheduled for a summary proceeding. Thus, although no formal notice was given, all documents were served well in advance of the seven days required by the Evidence Act.
[42] In reviewing the case law to 2010, Justice Stanley Sherr of the Ontario Court of Justice reflected upon the interplay between the Evidence Act and the CYFSA and set out guiding principles applicable to the admission of business records into evidence in the child protection context.[^2] Essentially, he pointed out that the existence of a business record does not render the hearsay contained therein automatically admissible. Opinion evidence and “double hearsay” (where the maker of the record includes observations that are not his or her own) are two examples of material sometimes contained within business records presented in child protection litigation which the Court must diligently screen out of the evidence to be relied upon. Justice Sherr incorporated the concept in section 93 of the CYFSA into his overall analysis (at paragraph 15):
With these principles in mind, I asked myself the following questions when determining the admissibility of each document:
Is it a proper business record under section 35 of the Evidence Act, following the criteria set out in that section?
Is the evidence within the business record otherwise admissible? Does it contain inadmissible opinion or second-hand hearsay?
Is the evidence relevant? In asking this, I addressed:
a. Does it achieve threshold reliability?
b. Does the probative value of the evidence exceed the prejudicial effect of its admission?
- If it is not admissible as a business record, is it admissible as evidence of past parenting?
[43] In applying Justice Sherr’s test for the admissibility of documents, I would respectfully suggest that his Questions #2 and #3 should be applied to all documents, whether tendered as business records under the Evidence Act or as statements relevant to the proceeding regarding past conduct of a person toward a child under the CYFSA. I would thus re-order Justice Sherr’s questions to move #4 up to #2 in the analytical flow.
[44] The documents which meet Justice Sherr’s test are the Significant Event Reports prepared by members of the Society’s Supported Family Time Group Access team and the Family & Children’s Services Notification faxed by WRPS to the Society on April 3, 2019. There are five Significant Event Reports in total, two of which are attached as Exhibits “A” and “B” to the Affidavit of Crina Fantanaru sworn March 25, 2019 and three of which are attached as Exhibits “C”, “D” and “E” to the Affidavit of Crina Fantanaru sworn July 31, 2019. The Family & Children’s Services Notification faxed by WRPS to the Society on April 3, 2019 is Exhibit “A” to the Affidavit of Crina Fantanaru sworn July 31, 2019.
[45] Each of the five Significant Event Reports (“SER”) contain standardized language setting out the protocol for their use and obligating the Supervised Access Worker to complete a report. Effectively, a SER must be completed if: an injury occurs which requires medical intervention; first responders must be called; and/or there is “significant information” that the on-site supervisor feels must be communicated to the primary family worker. The procedures specific to various potential Serious Events are also set out clearly on the SER itself. The SERs are therefore made “in the usual and ordinary course of such business to make such writing or record at the time of such … event or within a reasonable time thereafter” as contemplated by the Evidence Act. If I am wrong in this assessment, then I find that four of the five SERs are admissible as records regarding evidence of past parenting under Section 93 of the CYFSA.[^3] The maker of each record was a Supervised Access Worker on-site at the time of the event who generated the record in the ordinary course of his or her employment in that role and four of the five records relate to Mother’s behavior in the presence of the children.
[46] In reviewing the SERs for inadmissible opinion or double hearsay, I would note that the following content should be excised and was not considered by me:
a. SER dated March 13, 2019: The following sentence contains both double hearsay and opinion evidence: “A[…] house [sic] was contacted and they disclosed that she had not started a new medication as they were aware and due to her behavior it was best to contact an ambulance.”
b. SER dated July 24, 2019: The following sentence contains triple hearsay: “When Staff take the 3 children over to [Father’s] vehicle [Father] informs Staff that [bruise underneath A.C.’s eye] happened when [A.C.] was playing with his friends and a friend fell on him.”
[47] The Family & Children’s Services Notification document is prepared by the investigating officer where he or she has “grounds to suspect abuse/neglect” of children. In completing this document, Det. J. Baechler of the Domestic Violence Unit writes: “Police don’t believe either party has contact with their children. Police do not have an updated address or location for kids. Kids were not present. Only sending Report as per policy.” [Emphasis in original.] It is in the usual course of police business to properly document events. This document was therefore made “in the usual and ordinary course of such business to make such writing or record at the time of such … event or within a reasonable time thereafter” as contemplated by the Evidence Act. If I am wrong, and this document is not admissible as a business record, then this document is not admissible under the CYFSA as it does not relate to Mother’s conduct toward any child.
[48] In reviewing the Family & Children’s Services Notification document for inadmissible hearsay, I would redact the following:[^4] “[Mother] advised [responding bystander] that she had been in a fight with her boyfriend, and that he had hit her in the back of her head with his fists. [Mother] declined to tell [responding bystander] who her boyfriend was, stating “he knew too many bad people.””
[49] The documents which do not meet the test for the reasons described below, and which therefore are not part of the evidence considered, are a letter dated January 17, 2019 sent by Society worker Juanita Parent to Mother (Exhibit “A” to the Affidavit of Juanita Parent sworn February 8, 2019) and a letter dated April 8, 2019 sent by Society worker Crina Fantanaru to Mother (Exhibit “B” to the Affidavit of Crina Fantanaru sworn July 31, 2019).
[50] The two letters from the Society workers to Mother are not “record[s] made of any act, transaction, occurrence or event… in the usual and ordinary course of business” as contemplated by the Evidence Act. Understandably from a file management perspective, the sending of letters by Society workers is entirely discretionary and situation-driven. The letter dated January 17, 2019 is not saved as “evidence of past parenting” under section 93 of the CYFSA as its content relates exclusively to Mother’s behaviours when the children were not present. The letter dated April 8, 2019 contains one paragraph describing Mother’s behavior during a visit (and thus could be considered “evidence of past parenting”), but the same information is contained in the Significant Event Report dated March 13, 2019 and filed as Exhibit “A” to the Affidavit of Crina Fantanaru sworn March 25, 2019 which I have found to be admissible. The April 8, 2019 letter is therefore unnecessary and the prejudicial effect of repetition of the same evidence through multiple hearsay sources outweighs its probative value.
[51] The admissible evidence contained in the documents presented pursuant to the Evidence Act or section 93 of the CYFSA is relevant to Mother’s ability to parent the children and supports the Society’s position that her access must be supervised at the discretion of the Society.
(2) Admissions Against Interest
[52] There are many examples throughout the Affidavit materials of admissions made by Mother regarding her ability to care for the children which are against her own interests. Such types of comments, attributable to a litigant, are considered admissible hearsay on the basis that they are presumptively reliable: the litigant who made the admission would call his or her own credibility into question by later complaining that the admission was untrue.[^5] The following references to Mother’s admissions against her own interest provide examples of this evidence:
(a) Mother admits to missing appointments with her counsellor [paragraph 13 of the Affidavit of Crina Fantanaru sworn March 25, 2019];
(b) Mother admits that she cannot maintain sobriety [paragraph 15 of the Affidavit of Crina Fantanaru sworn March 25, 2019];
(c) Mother admits to maintaining an ongoing relationship with her violent abuser [paragraphs 17 (a) – (d); (g); (h) of the Affidavit of Crina Fantanaru sworn March 25, 2019 and paragraphs 20; 34 and 51 of the Affidavit of Crina Fantanaru sworn July 31, 2019];
(d) Mother admits to behaving in an escalated manner with hospital staff [paragraph 30 of the Affidavit of Crina Fantanaru sworn March 25, 2019]; and
(e) Mother admits that she is unable to house the children other than in a shelter [paragraph 15 of Mother’s Affidavit sworn March 21, 2019].
[53] Mother’s admissions against her own interest go to the issue of her access with the children and support the Society’s position that Mother’s access must be supervised and at the Society’s discretion.
(3) Presenting Children’s Evidence
[54] Evidence regarding the stated views and preferences of each of the three children was presented and thus should be screened in accordance with Justice Benotto’s directive. I will deal with the evidence regarding each child separately.
[55] 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.
[56] 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.
[57] It is my view that the consideration of a child’s ascertainable views and wishes in determining best interests, as mandated by Section 74(3)(a) of the CYFSA, has the practical result of creating a statutory necessity for the presentation of children’s evidence in child protection matters in Ontario. If the legislature had intended a child’s views and wishes to be considered only at the discretion of the litigating parties in deciding what evidence to place before the Court, the language of Section 74(3)(a) would have been softer. It is not discretionary, it is mandatory [emphasis added]:
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;
[58] Taken together with the generally-accepted view that active participation in litigation involving their parents (by means of viva voce testimony and being subjected to cross-examination by a parent or his or her lawyer) is contrary to the best interests of most children, it may be that the first branch of the Khan principled approach test – that the hearsay evidence is necessary – is always met in Ontario child protection matters. Perhaps modern child protection litigation in Ontario is now one of McLachlin, J’s “other examples of circumstances which could establish the requirement of necessity.”
[59] S.N.’s views are presented in the Affidavit of Fran Widmer, Society worker, sworn February 27, 2019 at paragraph 23 and in Mother’s Affidavit sworn March 21, 2019 at paragraph 8. In each Affidavit, the witness was personally present and heard from S.N. that she wished to reside primarily with her step-father, the Respondent Father in this litigation. This evidence is both necessary, as it is contrary to S.N.’s own best interests to be compelled to testify, and reliable, as the stated preference is consistent across both witnesses. If Mother intended to fabricate evidence attributable to S.N., presumably it would be to state that S.N.’s preference was in fact to reside with her.
[60] N.C.’s preference is presented through Mother’s Affidavit sworn March 21, 2019 at paragraph 9. Mother writes: “When [N.C.], who is now 6 years old, hears [S.N.] talking to me about what she wants, [N.C.] tells me that she wants to be with her sister and live with her sister.” Mother confirms that she respects the sibling bond between the girls. As with the statements attributable to S.N., if Mother were to lie about statements made by N.C., presumably any fabrication would not suggest that N.C. wants to continue living with Father.
[61] The evidence conflicts around A.C.’s stated views and preferences. Paragraph 37 of the Affidavit of Fran Widmer, Society worker, sworn February 27, 2019, made prior to the return of the children to Father’s primary care, reads (names redacted):
- [A.C.] reports enjoying both his visits with his mother, […], and his father […] to me. [A.C.] has shared with his foster parent […] on February 13, 2018 that he shared with his mother that he would like to live with her; with some questions [A.C] shares that he would like to live with both of his parents together. Knowing that this is not an option he would like to live with his father […].
Of this material, only the underlined content meets both Khan requirements of necessity and reliability, as these are the expressions by the child to Ms. Widmer. The remaining phrase is triple hearsay.
[62] Although she no longer argues against placement of A.C. with Father, Mother contends in her Affidavit material that A.C. has said that he wants to live with her. Paragraph 10 of her Affidavit sworn March 21, 2019 reads:
- In these same visits, [A.C.] has told me that he wants to live with me. He has advised me at these access visits on more than one occasion that he wants to live with me even after he has heard [S.N.] tell me that she wants to live with her step-father. [A.C.] has been clear and consistent in expressing this view.
[63] In response to Mother’s Affidavit, Ms. Fantanaru swore the Affidavit dated March 25, 2019. At paragraph 19, she specifically addresses Mother’s claim that A.C. has expressed a wish to reside with her during supervised access visits:
- On February 27, 2019, prior to start [sic] her supervised access visit with all 3 children, at the Family Visiting Centre, [Mother] asked me to stay with her while she was demonstrating how [A.C.] would express that he wanted to live with her and not with his father. Despite my advice to not pressure [A.C.] to provide an answer by asking him the question in that specific context, [Mother] asked [A.C.] with whom he wanted to live. [A.C.] said “with mom and dad.” [Mother] told him that was not possible and encouraged him to be honest and share his preference with me, as the new family worker. [A.C.] refused to answer and removed himself from his mother’s arms and left, continuing to play in the Family Centre’s reception area.
At paragraph 20, Ms. Fantanaru advises that: “On March 1, 2019, during a home visit with the 3 children while visiting their father for the weekend, [A.C.] talked to me shortly and said that he was happy at dad’s house.”
At paragraph 21, Ms. Fantanaru relays comments made by A.C. to Ms. Widmer which, being double hearsay, do not meet the requirement of reliability under Khan.
[64] Ms. Fantanaru swore a further Affidavit dated July 31, 2019 in support of the Society’s Summary Judgment Motion. At paragraph 43, she attests that “[Mother] explained that [A.C.] expressed that he wished to live with his sisters.” This is double hearsay, and thus inadmissible. On July 4, 2019, Ms. Fantanaru conducted a home visit at Father’s home and spoke with all three children. At paragraphs 88 and 89 of her Affidavit sworn July 31, 2019, she attests that “[the children] said that they are doing well and are happy in the care of their father” and “The children continue to enjoy their access with [Mother].”
[65] Where the evidence regarding A.C.’s expressed wishes differs between Mother and Ms. Fantanaru, I prefer Ms. Fantanaru’s testimony.
[66] I find that A.C.’s wish is to reside with his Mother and Father jointly in the same home. Many children feel this way, and it is not surprising that A.C. would find it difficult, if not impossible, to be compelled to make a choice between his parents. It is our role as the adults in his life to make that choice for him. At this stage, the overall circumstances of this family are such that access with Mother at The Family Centre under the supervision of the Society is best for all involved.
Conclusion
[67] In determining whether there is a “genuine issue requiring a trial,” the Court cannot rely exclusively upon argument by counsel even where, as here, the Society’s request for relief is effectively uncontested. The underlying evidence supporting the Order sought must be assessed. In this case, 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 the children continue to be in need of protection having regard to the relative brevity of the passage of time since Father has changed his parenting approach; and (2) a Supervision Order which maintains the placement of the children with Father and ensures on-going access between the children and Mother is the least intrusive option and prioritizes the children’s best interests over all other considerations.
Order
[68] Based on all of the foregoing, a Final Order shall issue as follows (with the appropriate identifying information and the exact content of the applicable sub-paragraphs to be included in the Final Order but which are omitted from these Reasons for publication purposes):
The Court makes the findings set out at paragraphs (a) through (e) of page 1 of the Notice of Motion at Volume 5, Tab 1 of the Continuing Record.
The children shall remain in the care and custody of their father, H.C., subject to the supervision of the Children’s Aid Society of the Regional Municipality of Waterloo for a period of six (6) months on the terms and conditions set out at paragraphs 1 (a) through 1 (t) of the Notice of Motion at Volume 5, Tab 1 of the Continuing Record.
Access to the children by their mother, C.N., shall be in the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children’s Aid Society of the Regional Municipality of Waterloo.
J. Breithaupt Smith J
Released: October 16, 2019
APPENDIX “A” – RELEVANT STATUTORY PROVISIONS
Family Law Rules, O. Reg. 114/99 as amended:
RULE 16: SUMMARY JUDGMENT
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.
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:
Weighing the evidence.
Evaluating the credibility of a deponent.
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
- 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.
[^1]: Mother filed an Answer and Plan of Care in response to the original Protection Application. Eight months later, she brought a Motion returnable March 28, 2019 seeking to have A.C. placed in her care subject to supervision while she resided at A[…] House, a shelter for abused women and their children. It is the Affidavit filed in support of her Motion, which was withdrawn on its return date, that represents Mother’s last meaningful act of participation in this litigation.
[^2]: Children’s Aid Society of Toronto v. L.L., J.Z. and A.B., 2010 ONCJ 48 (O.C.J.)
[^3]: The SER dated March 20, 2019 completed by Alison Wilson and attached as Exhibit “B” to the Affidavit of Crina Fantanaru sworn March 25, 2019 describes Mother’s telephone contact with Ms. Wilson and her non-attendance at the visit scheduled to take place on that date. It is not, therefore, a record regarding Mother’s “past conduct … toward any child” as contemplated by section 93(1)(a) of the CYFSA.
[^4]: My comments in this regard are applicable only in the child protection context of this specific matter and I make no comment with respect to the admissibility of any evidence from the responding bystander, which may well be both necessary and reliable with respect to statements made by Mother to that individual. The issue here is exclusively “triple hearsay” in the form of the repetition by Det. Baechler of the reporting by the responding bystander of comments attributed to Mother. It may well be that this type of admittedly microscopic analysis of the evidence presented on Summary Judgment Motions well exceeds the level of detail required by Justice Benotto’s directive.
[^5]: Bryant, Lederman & Fuerst, The Law of Evidence in Canada, 3rd Ed., at pp 362 – 363, paragraph 6.398.