WARNING

The court hearing this matter directs that the following notice be attached to the file:

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.: 4407/19

DATE: 2019-11-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA

Respondent

– and –

H.M.

Respondent

-and –

P.W.

Appellant

Jennifer Mealey, Counsel for the Respondent

Lindsay Marshall, Counsel for H.M.

Shadrach R. McCooeye, Counsel for P.W.

Jasmine Gassi Harnden, Counsel for The Office of The Children’s Lawyer

HEARD: October 1, 2019

GAREAU J.

REASONS ON APPEAL

[1] This is an appeal brought by the father, P.W.. Although the mother, H.M., and the Office of the Children’s Lawyer are named parties in this appeal, those parties did not participate in the appeal. The appeal was defended by the Children’s Aid Society of Algoma, who requested that the decision of the motions judge be upheld.

[2] This is an appeal to the Superior Court of Justice from an order granted in the Ontario Court of Justice on June 26, 2019 by the Honourable Justice J. Kukurin.

FACTS

[3] The respondent father, P.W., and the respondent mother, H.M., are the biological parents of the children, E.W., born […], 2011, and F.W., born […], 2012.

[4] In April 2017, the Children’s Aid Society of Algoma commenced a child protection proceeding seeking findings that the said children are children in need of protection, and that the children be placed in the care of the respondent parents, subject to Society supervision, including terms and conditions.

[5] In November 2017, the Children’s Aid Society of Algoma amended its application to seek a finding that the children are children in need of protection and further seeking a deemed custody order placing the children with the respondent mother, with access to the father, supervised in the discretion of the respondent mother, subject to terms and conditions.

[6] The Children’s Aid Society of Algoma has brought summary judgment motions seeking an order in accordance with its amended application.

[7] The respondent father brought a motion requesting that “affidavit information being proffered as evidence that would not be admissible at trial shall be excised from the continuing record for the purpose of the summary judgment motion.

[8] On June 21, 2019, a number of motions were before the court, as set out in the Honourable Justice J. Kukurin’s decision, released June 26, 2019, at paragraph 8, including the motion which is the subject of this appeal.

[9] On June 26, 2019, the Honourable Justice J. Kukurin released his decision with respect to the respondent father’s motion.

The Grounds of Appeal

[10] This appeal centres around the motion judge’s interpretation and application of the recent Ontario Court of Appeal case Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316. The appellant alleges that Kukurin J. erred in law in his interpretation and application of that case and, specifically, in not conducting a two-tier process where the judge would initially review the affidavit material filed by the Children’s Aid Society on a summary judgment motion to determine whether the evidence was trial worthy and excise the non trial worthy evidence from that material filed prior to the responding parties filing its material in reply to the motion for summary judgment filed by the Society.

[11] It is the position of the appellant that Justice Kukurin erred in applying Kawartha which requires that the material filed by the Children’s Aid Society be vetted by the court in advance of the respondents filing reply material in order to ensure that only “trial worthy” evidence is before the court on a summary judgment motion.

The Standard of Review

[12] Counsel for the appellant and the Children’s Aid Society of Algoma agree that this appeal involves an alleged error in the application of the law, and therefore the standard of review is correctness.

[13] As to the questions of law, paragraph 8 of Housen v. Nikolaisen, [2007] 2 S.C.R. 235 (SCC) indicates that:

On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellant court is free to replace the opinion of the trial judge with its own. Thus, the standard of review on a question of law is that of correctness.

The Decision of Kukurin J.

[14] As previously indicated, this appeal centres around how the decision in Kawartha-Haliburton Children’s Aid Society v. M.W. is to be interpreted and applied. The Kawartha decision was released by the Ontario Court of Appeal on April 18, 2019. The Kawartha decision dealt with, inter alia, the proper approach to be taken in motions for summary judgment in child protection matters.

[15] The appeal to the Court of Appeal in the Kawartha case came from the Divisional Court who applied the Child and Family Services Act. The Court of Appeal held that the Divisional Court should have applied the new Child, Youth and Family Services Act and as a result, the wrong framework for the consideration of the issue was applied and a result achieved that was not available on the evidence. As a result, the matter was remitted back to the Superior Court of Justice on an expedited basis for a determination of the mother’s request for access under the provisions of the Child, Youth and Family Services Act.

[16] At paragraph 29 in Kawartha, the Ontario Court of appeal set out the conclusions it had reached as follows:

(a) the transitional provisions of the CYFSA applied so that the test for access was pursuant to the new Act;

(b) the record is insufficient to apply the new test;

(c) the failure to apply special consideration to these children’s Indigenous heritage conflicts within the requirements of the new Act;

(d) the Divisional Court misstated the principles of summary judgment in child protection matters.

[17] It is the last part, the principles of summary judgment in child protection matters that is pertinent to the appeal before me. Under the heading “Reality of the Child Protection Litigant”, the Court of Appeal in Kawartha states at paragraph 68 that,

[68] The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. As Justice L’Heureux-Dube noted in her concurring reasons in G.(J.), at para. 113, “women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings”. She continued at para. 114:

As well as affecting women in particular, issues of fairness in child protection hearings also have particular importance for the interests of women and men who are members of other disadvantaged and vulnerable groups, particularly visible minorities, aboriginal people, and the disabled. As noted by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745 (1982), at p. 763:

Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups. ... such proceedings are often vulnerable to judgments based on cultural or class bias.

Similarly, Professors Cossman and Rogerson note that “The parents in child protection cases are typically the most disadvantaged and vulnerable within the family law system....”. “Case Study in the Provision of Legal Aid: Family Law”, in Report of the Ontario Legal Aid Review: A Blueprint of Publicly Funded Legal Services (1977), 773 at p. 787.

[18] The Court of Appeal in Kawartha at paragraph 70 notes that, “The cautious approach to summary judgment in child protection has long been recognized by lower courts and by this court: see Children’s Aid Society of Halton (Region) v. A. (K.L.) (2006), 2006 CanLII 33538 (ON CA), 216 O.A.C. 148 (C.A.)”.

[19] The Ontario Court of Appeal makes it clear in Kawartha that the principle of fairness underpins summary judgment procedures in child protection matters and that, “the courts have taken its fairness principles and adapted them to the cautionary approach needed in child protection”. (Kawartha, para. 71).

[20] As noted in paragraph 78 of the Kawartha decision, the Ontario Court of Appeal adopts the approach taken by Sherr J. in Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 646, at paragraph 25 which reads as follows:

My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make determination.

[21] A summary of the proper approach to be taken in summary judgment motions in child protection matters as directed by the Ontario Court of appeal in Kawartha is set out in paragraph 80 of that decision as follows:

[80] 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. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[22] It is with the aforementioned principles in Kawartha to be applied that Justice Kukurin considered the matter before him in the case at bar. The Children’s Aid Society of Algoma had brought a motion for summary judgment. Within that motion for summary judgment there were many motions brought but as stated in paragraph 1 of Justice Kukurin’s reasons, the motion brought by the father, P.W., was “the only motion of importance in these reasons, however, is how the court treats claims by litigants to excise (strike) affidavit material filed in support of a summary judgment motion when that material is claimed, in the aftermath of the Kawartha decision, to be material that would not be admissible at trial”.

[23] Justice Kukurin goes on to state at paragraph 6 of his reasons that, “The father’s most recent motion seeks to have the court excise from the continuing record whatever evidence other parties seek to rely on that would not be admissible at trial. This is clearly based on language taken from Kawartha.” This motion Justice Kukurin refers to as a motion to strike. The motion to strike brought by the father had to be argued before the summary judgment motion was heard and the motion to strike was dealt with in paragraphs 15 to 38 inclusive of Justice Kukurin’s reasons, released on June 26, 2019.

[24] The motions judge notes in paragraph 25 of his reasons that, “The father wanted the court, in its gatekeeping role, to read the voluminous Society (and lesser material) material, select those paragraph that it found not to be admissible at trial (a la Kawartha) and declare them to be excised from the evidence on the summary judgement motion”. Justice Kukurin goes on to indicate in paragraph 26 of his reasons that, “In addition, the father through his counsel in argument (although not claimed in his motion), asked the court to perform a similar vetting process for all business medical and hospital records that the Society had inserted in its evidence on the summary judgment motion, without his needing to specify what particular record he was referring to, or the reason why it should be struck”.

[25] As indicated by Justice Kukurin in paragraph 27 of his reasons, it was the father’s position on the motion to strike that Kawartha placed the onus on the summary judgment judge to review the file for non trial worthy material and eliminate it. In taking that position, counsel for the father relied on the third point in paragraph 80 of the Kawartha decision, which states that:

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.

The position of the father on the motion to strike was that the litigant seeking to strike did not have an obligation to specify the material sought to be struck. The father submitted that in light of the Kawartha decision it was the court that would perform this vetting process to eliminate any non trial worthy material from the documents filed in support of the motion for summary judgment.

[26] In dismissing the father’s motion to strike and dealing with the obligation placed on the court to vet or screen material in affidavits in light of the Kawartha decision, Justice Kukurin makes the following comments in paragraphs 36 and 37 of his reasons:

[36] While the father potentially may have some valid criticisms of the society’s evidence, except for the brief references in his two examples, he has failed to specify what parts of the society’s evidence he wishes the court to strike. His specific reference I equate to the top of an iceberg. These were relatively innocuous in the context of the summary judgment motion, and even excising them would leave an enormous amount of material that the father would still have to address. For the father to expect the court to review all of the evidence and select and weed out what is or is not trial worthy evidence is a fruitless expectation. For one thing, the court needs to know from the objector what the objection is, and why it warrants excision. From the other side, the court needs to know its response to the objection and why excision is not warranted. The court works with parties and their lawyers to arrive at a resolution. It provides decisions on both procedural and substantive issues. But it is not going to do this on its own.

[37] When the Ontario Court of Appeal stated that

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.

My interpretation of this was that if the evidence was not going to be admissible at a trial, it had no business being before a court on a summary judgment motion. That said, it should be obvious that evidence such as hearsay is clearly admissible on a summary judgment motion, but would be stopped dead in its tracks at the entrance to a trial courtroom. How the court reconciles this is by the weight it gives to hearsay evidence on a summary judgment motion. Some evidence, even hearsay, may be accepted at face value. Some may be discounted. Some may be outright rejected. Each piece of evidence has to be judicially weighed and this happens at the actual hearing of the case, whether the hearing is by summary judgment motion or at a formal trial (or even a mini trial or a focused hearing).

[27] In the concluding paragraph of his reasons, Justice Kukurin urges Children’s Aid Societies to be “more caution with their evidence” in light of the Kawartha decision.

DISCUSSION/ANALYSIS

[28] The Kawartha decision sends a strong message to Children’s Aid Societies about the approach to be taken with respect to motions for summary judgment and the evidence to be used in support of such motions. That the Ontario Court of Appeal intends on the evidence to be relied upon to be tightened given what is at stake in child protection proceedings is clear from its comments in paragraph 80 of the Kawartha decision and, in particular, the statement that:

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.

[29] I am of the view that the “careful screening” of the evidence by the court can be accomplished without the two-tier approach suggested by the appellant. It is not the responsibility of the court to in every case vet the material filed in support of a motion for summary judgment but rather the responsibility of the Children’s Aid Society to file material that is consistent with the direction in Kawartha and that is trial worthy.

[30] It is difficult to imagine that the Court of Appeal intended the screening of the evidence to eliminate inadmissible evidence to be done by the court in the manner suggested by the appellant. If the Court of Appeal intended this to be the procedure, it would have clearly indicated that in the Kawartha decision. The Court of Appeal did not do so. What is suggested by the appellant would involve an additional layer where the court would automatically and in every motion for summary judgment in a child protection matter vet material filed by the Society before any objections are raised concerning the material by other parties. Neither the Ontario Court of Justice nor the Superior Court of Justice have the judicial resources available to it to perform this added task. The resources of both courts are currently challenged as it is and to add an additional layer requiring the court to in every case as a matter of procedure review the Society’s materials to ensure that they are trial worthy is unrealistic and unworkable. I agree with the comments made by Kukurin J. in paragraph 36 of his reasons where he states that “for the father to expect the court to review all the evidence and select and weed out what is or is not trial worthy is a fruitless expectation”. The motion judge’s reasons set out in paragraph 36 as to why this is are sound and sensible.

[31] I am of the view that the present procedure whereby the Children’s Aid Society files its materials in support of a summary judgment motion and then opposing parties particularize their concerns, if any, with respect to the trial worthiness of the evidence advanced, by way of a motion to strike affording all parties to put their submissions before the court meets the objectives in the Kawartha decision. This places the responsibility on the parties to provide trial worthy evidence to the court on summary judgment motions which is where the responsibility should lie. On a motion to strike, the court can conduct the “careful screening of the evidence to eliminate inadmissible evidence” contemplated in the Kawartha decision. In my view, there is nothing in this procedure which is insensitive to the special considerations in child protection proceedings, including what is at stake for families and the requirement that there be fairness to families bearing in mind the reality and material circumstances of those subject to child protection proceedings.

[32] At paragraph 37 of his reasons, Justice Kukurin provided his interpretation of the Court of Appeal’s statement in Kawartha that, “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.” Justice Kukurin indicates that, “My interpretation of this was that if the evidence was not going to be admissible at trial, it had no business being before a court on a summary judgment motion.” I agree with that interpretation and find no error in that statement. Justice Kukurin goes on to reconcile this with hearsay evidence which by Rules 14(19) and 16(6.1) can be considered on motions before the court by the judicial exercise of weighing of evidence. at paragraph 37 of his reasons, Justice Kukurin states, “How the court reconciles this is by the weight it gives to hearsay evidence on a summary judgment motion. Some evidence, even hearsay may be accepted at face value. Some may be discounted. Some may be outright rejected. Each piece of evidence has to be judicially weighed and this happens at the actual hearing of the case, whether the hearing is by summary judgment or at the formal trial (or even a mini trial or a focused hearing).” This weighing of evidence, in my view, is consistent with direction in Kawartha that “the court should not give weight to evidence or a summary judgment motion that would be inadmissible at trial”. This weighing of evidence is what Sherr J., as adopted by the Ontario Court of Appeal in Kawartha, indicated should be done in Children’s Aid Society of Toronto v. B.B., when he indicated that it is a weighing of the evidence and the matter of weight to be given to that evidence that is important. This “weighing” of the evidence, as directed in Kawartha is what Justice Kukurin is suggesting at paragraph 37 of his reasons, and I am of the view that he is correct in this.

[33] The examination of evidence to determine its admissibility and to eliminate inadmissible evidence can be done on a motion to strike brought by any party or as part of the hearing itself on a motion for summary judgment. In doing so, Kawartha is followed and applied. It is not necessary nor should it be expected of the court to conduct another level of vetting, on its own initiative, after the Society’s material in support of the summary judgment motion is filed. To do so displaces the responsibility for filing trial worthy evidence and places it where it does not lie. It is the responsibility of the parties to file trial worthy evidence on summary judgment motions. The clear expectation communicated in Kawartha is that Children’s Aid Societies will be more vigilant in the material it files on summary judgment motions to eliminate evidence that would be inadmissible at trial. The courts will expect Children’s Aid Societies to follow this direction and improve upon the quality of the affidavit evidence submitted to the court. To accomplish this, it is not necessary to impose on the court an initial vetting process to examine the evidence and eliminate non trial worthy evidence. The elimination of inadmissible evidence can be accomplished without this additional step in an already overburdened system where judicial resources are stretched.

[34] For the reasons set out herein, the appeal brought by the appellant P.W. in relation to the order granted by Justice John Kukurin of the Ontario Court of Justice as set out in his reasons released on June 26, 2019 is dismissed.

Gareau J.

Released: November 14, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA

• and -

H.M.

-and –

P.W.

REASONS ON APPEAL

Gareau J.

Released: November 14, 2019