W A R N I N G

This is a case under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, and subject to subsections 87(8), 87(9) and 87(10) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, reads 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.

87 (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.

87(10) Transcript — No person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise.

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 and Parties

COURT FILE NO.: FC-18-CP000036-1 DATE: 2020/01/27

ONTARIO SUPERIOR COURT OF JUSTICE

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

AND IN THE MATTER OF F.M.-C. (D.O.B. […] 2015) and L.M. (D.O.B. [...] 2019)

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON Applicant – and – V.M. Respondent (Mother) – and – A.C. Respondent (Father) – and – A.A. Respondent (maternal grandmother) – and – S.O. Respondent (maternal grandfather)

Counsel: Tara MacDougall, for the Applicant Manraj Grewal, for the Respondent Mother Cedric Nahum, for the Respondent Father Self-represented (for A.A.) Self-represented (for S.O.)

HEARD: January 3, 2020

summary judgment motion decision

doyle j.

Overview

[1] This motion before the Court is brought by the Children’s Aid Society of Ottawa-Carleton (“Society”) pursuant to the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) seeking summary judgment granting the following:

− Regarding F.M.-C. (D.O.B. [….] 2015):

• A finding that F. M-C. continues to be a child in “need of protection”;
• A finding that the disposition which is in F.M.-C.’s best interests is an order of Extended Society Care for the purposes of adoption;
• Access to his mother, V.M., and his father A.C. and maternal grandparents A.A. and S.O. at the discretion of the Society. The child and his parents and maternal grandparents shall be reciprocal access-right holders;

− Regarding L.M. (D.O.B. [ ….] 2019):

• That L.M. is not a First Nations, Inuk or Métis child;
• A finding that L.N. is in need of protection;
• A finding that the disposition which is in L.M.’s best interests in an order of Extended Society Care for the purposes of adoption; and
• Access to his mother. V.M., and his father A.C. and maternal grandparents A.A. and S.O. at the discretion of the Society. The child and his parents and maternal grandparents shall be reciprocal access-right holders.

[2] The Society submits that, based on the evidence filed, there is no genuine issue requiring a trial.

[3] The mother opposes the motion and asks that the matter proceed to trial at which time the children should be returned to her, or alternatively, that they be returned to her under a Supervision Order. She is requesting that the Court find that L.M.’s status regarding First Nations, Inuk or Métis is undetermined.

[4] The mother, who is supported by the father and the maternal grandparents submits that this motion should be dismissed as there is a genuine issue requiring trial as:

• She has made progress in dealing with the Society concerns including completing parenting courses, finding accommodation and pursuing counselling;
• The Society’s current complaints deal with her missed access which has been largely caused by her dire financial issues. As a recipient of Ontario Works, she had limited funds to buy a bus pass and the Society has refused to assist her; and
• The Society has presented an evidentiary record that consists of hearsay including purporting to proffer certain records as business records and improperly submitting opinion evidence.

[5] The father objects to the hearing of these two separate matters on the same motion as L.M. is the subject of a Protection Application and F.M.-C. is the subject of a status review application and these matters have not been joined.

[6] The father supports the mother’s position and is requesting access to F.M-C. Alternatively, the children would be subject to a custody order in favour of the current caregivers, the Hartwigs.

[7] The maternal grandparents support the mother’s application and are requesting access to F.M.-C.

[8] For the reasons that follow, the Society’s motion is dismissed.

Brief Background

[9] On April 9, 2018, F.M.-C. was brought to a place of safety. He had been in the care of his maternal grandparents since March 2017 pursuant to a Voluntary Service Agreement with his parents. In April 2018, the maternal grandparents were no longer able to care for the child.

[10] On April 13, 2018, Justice Beaudoin ordered that the child, F.M.-C., be placed in the care of the Society on an interim and without prejudice basis.

[11] On June 21, 2018, Justice Parfett made statutory findings pursuant to the CYFSA and found that F.M.-C. was a child in need of protection and ordered interim Society care for six months.

[12] L.M. was brought to a place of safety on February 22, 2019. On February 27, 2019, Justice DeSousa, ordered the child to be placed in the care of the Society on an interim and without prejudice basis.

[13] The parents have been in an on-and-off relationship basis. They are the biological parents to both children who are the subject of these proceedings.

[14] They currently live in separate residences. The mother was at Harmony House and was on a waiting list for two years for Ottawa Community Housing but now has her own residence. The father lives in a rooming house.

[15] Both parents have indicated that they have Indigenous heritage but are not connected to any band or community. The mother states that her great grandmother was Indigenous, and the father states he is Métis.

[16] F.M.-C. has been in the care of the Society since April 2018, i.e. over 600 days and L.M. has been in the care of the Society for over 300 days.

[17] The Society has approved a kinship plan for Joshua and Raeanna Hartwig who have been the caregivers for both children since November 30, 2018.

[18] The Society’s concerns regarding the mother include:

• Transiency;
• Lack of stable housing;
• Substance use including during pregnancies (i.e. alcohol and marijuana);
• Lack of stability regarding her mental health;
• Not following up with medical professionals involved including doctors, counsellors and the Shared Mental Health Care Team; and
• Struggling to meet her own basic needs.

[19] The Society’s concerns regarding the father include:

• Transiency;
• Lack of stable housing;
• Not completing parenting program;
• Continues to struggle with mental health issues; and
• Did not follow through with anger management courses and courses on the impact of violence on children.

[20] The Society’s concerns with both parents include:

• Domestic violence and conflict between the parents; and
• Not regularly attending access and appointments.

[21] In this decision, the Court will first address the preliminary issues: conducting one hearing for both matters and the issue of the admission of the Society’s documents. The Court will then deal with the legal principles in summary judgment motions and then provide an analysis for each child as to whether the Society has demonstrated that there is no genuine issue requiring trial.

Preliminary Issues

Hearing of both matters

[22] The father objects to the two motions being heard at the same time. There has not been a joinder of the two actions but on September 9, 2019, Justice Audet ordered that the motion for summary judgment on both matters be heard together. She outlined several reasons in her decision, including the fact that both matters deal with the same family and the Court can distinguish the different analyses necessary for each of these applications. Justice Audet’s Order was not appealed and is in full force and effect.

[23] Accordingly, the Court is prepared to hear the summary judgment motions on these two separate actions together.

Business Records

Jurisprudence

[24] Summary judgment motions in child protection cases can result in serious consequences to a family. If a motion is granted, it ends the litigation thereby possibly terminating parental rights over their children. Unlike family law and civil disputes, a protection case involves state intervention in a family’s lives and has serious and permanent ramifications for families.

[25] On the other hand, a child is entitled to permanency planning within a timeframe as set out in the CYFSA. The Court must be sensitive to the child’s needs and development and the legal process must not be delayed to “buy” a parent time in order to address the Society’s concerns. See Children’s Aid Society of Toronto v. R. H., [2000] O.J. No. 5853 (C.J.).

[26] The Court cannot condone the simple attachment of reports or notes to Affidavits. That is, there is a distinction between disclosure and the evidentiary value and basis for the admissibility of that disclosure. The fact that records are disclosed does not automatically make that disclosure admissible. Counsel should determine the basis of the admissibility of the evidence such as, if the disclosure qualifies as a business record or if it is being tendered as an expert report and then follow the procedure with respect to proper notice and be prepared to explain to the Court the relevance and necessity for the evidence being admitted. See Children's Aid Society of Toronto v. C.J.W., 2017 ONCJ 212.

[27] In a summary judgment motion, the parties have an obligation to present the facts in an organized way to convince the presiding judge that the facts are so persuasive, and the law applied to the undisputed facts is so clear that the matter should proceed by summary judgment. Jewish Family and Child Service v. S.K., 2015 ONCJ 246.

[28] Therefore, when examining the evidentiary record, the Court is bound to ensure that it considers only admissible evidence when making its determinations.

[29] Hearsay is presumptively inadmissible unless it can be admitted under an exclusionary rule or it meets the requirements of necessity and reliability. One statutory exclusion is provided under s. 35 of the Evidence Act, R.S.O. 1990, c. E. 23 (“Evidence Act”), which provides as follows:

35 (1) In this section,

“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“enterprise”)

“record” includes any information that is recorded or stored by means of any device. (“document”) R.S.O. 1990, c. E.23, s. 35 (1).

(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. R.S.O. 1990, c. E.23, s. 35 (2).

(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. R.S.O. 1990, c. E.23, s. 35 (3).

(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. R.S.O. 1990, c. E.23, s. 35 (4).

(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. R.S.O. 1990, c. E.23, s. 35 (5).

[30] Business records are admissible if the Court finds that the party seeking to proffer that record can establish that the third party who completed the recording was under a routine business obligation when making the statement. See Justice V.J. Mackinnon in Children’s Aid Society of Ottawa v. J.B. v. H.H., 2016 ONSC 2757, at para. 21.

[31] This section of the Evidence Act provides a significant statutory exception to the general rule against the admission of hearsay because if certain criteria are met then such types of records provide sufficient assurances of reliability. The Court can accept the evidence therein as prima facie proof of the facts asserted. The routine nature of the details recorded by a person who is under an obligation to record this information will permit the Court to consider this evidence as it is likely the person recording it may not have any independent recollection of the incident or occurrence.

[32] Setak Computer Services Corp. v. Burroughs Business Machines Ltd. et al., (1977), 15 O.R. (2d) 750, is the leading case for the criteria required for admissibility. At para. 48, the Court sets out the factors to be considered to determine whether a recording would qualify:

48 It is clear from the wording of s. 36 that it is not necessary that the maker of the writings or records be called to personally identify the documents, although in this case Mr. Dinniwell and Mr. Croil were the authors of the minutes sought to be introduced. In our courts, the usual procedure in proving business records is to call a person with personal knowledge of the business of the party producing the records and who also has personal knowledge of the circumstances surrounding the preparation of such records. Thus, the evidence of Mr. McDermott is sufficient to identify for this purpose the minutes of the meetings which I have already described.

[33] In Setak, the Court also stated the following:

• There was no requirement in that the records or writing be kept on any daily basis or on a continuous basis as long as they were kept on some regular basis;
• The Court emphasized the importance that the records be maintained in the ordinary course of business and it was a routine procedure; and
• The person proffering the report must also satisfy the Court that the recordings were made at the time of, or within a reasonable time after, the acts, transactions, occurrences or events for which they were offered as proof.

[34] At para. 55, the Court stated:

[55] […] A substantial factor in the reliability of any system of records is the promptness with which transactions are recorded. Unless it appears from the context of the record, or the testimony of the witness introducing the writings or records into evidence, that the act, transaction, occurrence or event described therein occurred within a reasonable time before the making of the writing or record, then such writing or record should not be admitted for the purpose of proving those matters. Where there is evidence of some delay in the transcribing, then in each case, it would seem to me, the court must decide, as a matter of fact, whether the time span between the transaction and the recording thereof was so great as to suggest the danger of inaccuracy by lapse of memory.

[35] Once the Court finds that the above has been established, then the records are prima facie proof that some event or occurrence or transaction has transpired or occurred.

Decision

[36] For the reasons that follow, the Court is not prepared to admit the records that the Society has proffered as business records as the Society has failed to ensure that it has met the rules of admissibility.

[37] In this case, the business records were merely attached to the affidavit of the Society staff who summarized certain portions of the documents attached to the affidavit.

[38] There was no evidence addressing the record’s compliance with the reliability assurances set out in s. 35 of the Evidence Act. There is no evidence before the Court to satisfy the requirements set out in Setak above, i.e. that the records were maintained in the ordinary course of business and that the notes were taken contemporaneously or shortly after the event.

[39] This is not the appropriate manner of introducing business records. Evidence should have been filed that established the criteria under s. 35 of the Evidence Act.

[40] In light of Kawartha and the other jurisprudence set out above, the Court is not prepared to admit holus bolus the documents found at Volume 2 of the Motion Record which includes the following documents:

• Primrose medical records;
• Housing records including the mother’s housing application record;
• Police occurrence reports;
• Jewish Family Services records; and
• Ottawa Withdrawal Management Centre records.

[41] Even though the Court has dealt with the admissibility of these records, the Court will comment on the Society’s position that the Court should accept the documents but ignore certain portions of the records that are hearsay or are of the nature of opinion evidence.

[42] The Society has stated that it is not relying on all the contents of the records, only portions of them. Even though the complete records have been filed, the Society has asked the Court to ignore hearsay (other than admissions from the parents) and any comments about the parents’ parenting or any opinion evidence. The Society has not redacted those portions of the records that it is not relying on for the purposes of this motion.

[43] That is, the Society has not redacted those segments of the records which include hearsay or opinions, diagnoses or impressions that could amount to expert type of testimony which are not properly introduced before the Court as part of a business record. It has not redacted the inadmissible portions and hence the Respondents cannot know the case they must meet due to the lack of clarity as to what the Society was relying on for the purpose of this motion.

[44] The documents consist of over 100 pages of notes, reports and recordings of some events as well as appointments dealing with the parents. Certainly, some of the information contained in some of these records could be admitted as part of the business records provision of the Evidence Act (if the criteria is met).

[45] The Society relies on the Children’s Aid Society of Toronto v. L.L., J.Z. and E.B., 2010 ONCJ 48, where Justice Sherr referred to Justice Jones’ decision in Catholic Children’s Aid Society of Toronto v. Jean L. and Willard R. (No.3) C-174/00 May 8, 2003. She admitted the records under s. 50(1) of the CYFSA but gave no weight to risk assessment reports or the recorded comments or opinions of third parties, unless the comments or opinions were confirmed by the parents or other admissible evidence.

[46] These cases are trial decisions and it is not clear what evidence was led to determine if the persons recording the documents had a duty to report, that the records were made in the usual and ordinary course of business and that the information was recorded contemporaneously with the event.

[47] The process must to be fair to all parties. The Society should have, in addition to establishing admissibility pursuant to s. 35 of the Evidence Act and Setak as part of the Record before the Court, clearly indicated what portions of the records it was relying on AND redacted those portions that it is not relying on.

[48] This would be the expectation at trial and the Court expects this same process at a motion for summary judgment. This motion is requesting an Extended Care Order with access which is one of the most restrictive orders set out in s. 101. A final Order granting this motion would have serious and permanent implications for this family.

[49] The Court notes that s. 93 of the CYFSA does provide the following:

(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.

[50] This section was previously s. 50 of the Child and Family Services Act, R.S.O. 1990, c. C. 11 which authorizes the Court to consider the past conduct of a person toward a child and allows the court to consider relevant evidence. I agree with Justice Mackinnon who stated in Children’s Aid Society of Ottawa v. J.B., 2016 ONSC 2757, that this provision does not set aside all rules of evidence including the rule against hearsay unless it meets the threshold of necessity and reliability requirements and business records under s. 35 of the Evidence Act provided it meets the criteria set out in Setak.

[51] As Justice Kukurin stated in Children’s Aid Society of Algoma v. S.B. 2019 ONCJ 815 (Algoma case):

[39] These clauses have always created a tension within the judicial and the legal communities. They have spawned a number of divergent decisions on what they mean, including whether clause (b) only refers to the wording in clause (a), namely the “past conduct of a person toward any child”, or does it refer to anything that may be relevant to any issue. What is quite clear is that any oral or written statement or report, that the court considers relevant, including a transcript, exhibit or finding or reasons in an earlier civil or criminal proceeding is admissible into evidence. This subsection applies to the entirety of a child protection proceeding, to any motion brought in that proceeding, and in particular, to a summary judgment motion.

[52] The recent Ontario Court of Appeal in Kawartha directs lower courts to “conduct a careful screening to eliminate inadmissible evidence” in addition that if the evidence would not be admissible at trial, it ought not be admitted on any summary judgment motion brought in the same case.

[53] In the Algoma case, the Society attempted to tender a DVD and transcript as business records under the Evidence Act. At para. 46, Justice Kukurin refused to admit the records and stated:

[46] If it is not admissible as hearsay at trial, Kawartha tells this court that it should not be admissible at the summary judgment hearing either. While it may pass the criteria set out in s.93 (1)(a) and be within the categories of evidence set out in s.93 (1)(b), I do not believe it meets the Kawartha criteria. It is not the best evidence. It is still hearsay. It is not trial worthy, particularly when better evidence is available. Section 93(1) is permissive. It states clearly that the court “may” consider a person’s past conduct to a child, not that it shall. To qualify as admissible hearsay evidence, it must still fall within one of the classical exceptions to the rule against hearsay, or it must pass the principled approach test. It may be admissible at trial and at the summary judgment hearing if the society can meet the principled approach test to admission of hearsay set out in the Khan-Smith decisions. However, the society has not attempted to meet the twin pre-requisites of necessity and reliability in this approach. It is unlikely the society would get past necessity.

[54] Accordingly, in the case at bar, the Court will not consider these documents as business records supporting the Society’s motion. Rather, the Court will rely on the numerous affidavits filed by the Society.

Legal Principles in Summary Judgment motions

[55] The Court will provide an overview of the Family Law Rules, O. Reg. 114/99 (“Family Law Rules”) and the summary judgment jurisprudence in light of the CYFSA (new child protection legislation) and the recent Ontario Court of Appeal cases of Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. 497, and L.M. v. Peel Children’s Aid Society, 2019 ONCA 841.

Family Law Rules

[56] The Society brings this motion pursuant to r. 16 of the Family Law Rules. To succeed, the Society must prove, on a balance of probabilities, that there is no genuine issue requiring a trial. This means that there is “no chance of success” and “plain and obvious that the action cannot succeed” or there is “no realistic possibility of an outcome other than that sought” by the Society. (See Kawartha, para. 72).

[57] In accordance with r. 16, if the Court concludes that there is no genuine issue requiring a trial, then the Court must grant the final order.

[58] According to Rule 16(4) of the Family Law Rules:

(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. O. Reg. 114/99, r. 16 (4).

[59] Once the moving party meets the onus that there is a prima facie case to establish that there is no genuine issue for trial then the responding party must put its best foot forward.

[60] The Respondents’ responsibility is set out in r. 16(4.1):

(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. O. Reg. 91/03, s. 5.

[61] The Divisional Court in Simcoe Muskoka Child Youth and Family Services v. H.(D.), [2019] O.J. No. 929, stated that parents must not simply respond with an indication that further evidence may be available at trial. The established principle is that the Court is entitled to assume that all available evidence has been put before the Court in some form, i.e. a responding party must put his or her best foot forward (“lead trumps”) on a motion for summary judgment and cannot just say that they intend to prove allegations at trial.

[62] Rules 16(6) and (6.1) read:

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

(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. O. Reg. 69/15, s. 5 (1).

Jurisprudence

[63] Justice Sherr in Catholic Children’s Aid Society of Toronto v. C.G. and D.S., 2018 ONCJ 193, [2018] O.J. No. 1612 set out the governing principles at paras. 8 to 13:

[8] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the Society to show that there is no genuine issue requiring a trial. See: Children’s Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ).

[9] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. See: C.R. v Children’s Aid Society, 2013 ONSC 1357.

[10] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out principles for courts to apply in determining motions for summary judgment. The following principles set out in Hryniak are pertinent to this case:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5). b) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50). c) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

[11] Many courts require a trial-worthy standard for the admission of evidence on summary judgment motions. [1] See: C.A.S. v. K.V., 2013 ONSC 7480; Children’s Aid Society of Toronto v. C.P., 2017 ONCJ 330; The Children’s Aid Society of Ottawa v J.B. and H.H., 2016 ONSC 2757; CAS v. N.A.-M., 2018 ONSC 978; CAS (Ottawa) v. M.M., 2018 ONSC 786; A.B. v. J.B., 2017 ONCJ 866.

[12] In Children's Aid Society of Ottawa v. B. J., supra, Justice Jennifer McKinnon held on a summary judgment motion that the starting point in addressing the admissibility of hearsay evidence is that it is excluded unless it satisfies the tests of necessity and reliability.

[13] This court set out its reasons for applying a trial-worthy evidentiary standard on summary judgment motions when it wrote in Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 646: [2]

(25) 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 that determination.

[64] The Ontario Court of Appeal in Kawartha set out other principles in light of the new legislation (CYFSA). These principles were summarized by Jamal J.A. in the Peel case at paras. 48 to 52:

[48] A highly cautious approach to summary judgment in child protection cases is warranted because of the serious interests at stake. As the Supreme Court has recognized, “[t]he interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have a more profound effect on the lives of both parent and child”: New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, at para. 76. In child protection cases the Charter rights to personal security of both parents and children are often engaged, many of whom are vulnerable litigants disproportionately afflicted by poverty and other forms of marginalization: Kawartha, at paras. 63-69. Caution in this context “promotes Hryniak’s principle of reaching a fair and just determination on the merits”: Kawartha, at para. 76.

[49] This court in Kawartha, at para. 80, summarized the approach to summary judgment in child protection proceedings as follows:

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.

[50] Kawartha clearly recognized that summary judgment may be appropriate in the child protection context. Respectfully, I therefore do not agree with the Manitoba Court of Appeal’s recent comment that, “[i]mplicit in Kawartha-Haliburton is the view, expressed as a caution, that even with a proper initial assessment, the summary judgment process cannot ensure a fair and just determination in a prompt and proportionate manner”: Dakota Ojibway Child and Family Services v. MBH, 2019 MBCA 91, at para. 146. Instead, the cautious approach enunciated in Kawartha neither precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context.

[51] In my view, both provinces’ appellate courts agree that, as the Manitoba court also stated in that case, “[w]hile summary judgment is available for child protection proceedings, it is not appropriate in all cases”: para. 155. Thus, in some child protection cases, summary judgment can ensure a fair and just determination in a prompt and proportionate manner, while in other cases it cannot do so. Each case must be decided based on the issues and evidence presented. As noted in Hryniak, at para. 59: “[w]hat is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.”

[52] Moreover, the summary judgment test applied in child protection cases remains the same as in other cases. As set out in Hryniak, at para. 49: “[t]here will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.” But the test must still be applied in context and sensitive to the particularly high stakes and Charter rights of parents and children implicated in child protection cases.

Analysis

Is there a genuine issue requiring trial for the finding in need of protection?

Introduction

[65] The Society alleges that F.M.-C. continues to be a child in need of protection and that L.M. is in need of protection in accordance with s. 74(2)(b)(i) and (ii) of the CYFSA.

[66] The first inquiry for the Court is to determine whether F.M.-C. continues to be a child in need of protection. The original finding was made by Justice Parfett on June 21, 2018.

[67] The Court will also need to determine whether L.M. is a child in need of protection.

[68] For the reasons set out below, I find that there is a genuine issue requiring a trial for both children. I will deal with each child separately.

[69] The parents have not denied some of the allegations set out in the Society’s materials including some of their history with the Society.

[70] On the other hand, the mother has placed evidence before the Court that she has addressed some of the concerns that resulted in F.M.-C. being brought to a place of safety, including finding a home, reducing her intake of marijuana, obtaining counselling and taking medication for her anxiety and depression. A trial is necessary for the Court to determine whether she has done enough so that the child is no longer in need of protection.

[71] In addition, the Court finds that there is a genuine issue requiring a trial with respect to L.M. There has never been a finding that the child is in need of protection. She was taken to a place of safety at the day of her birth.

[72] I will first discuss the Society’s concerns, then review the details of the parents’ affidavits and how they have respectively dealt with some of these concerns in those affidavits.

F.M.-C.

Society’s Concerns

[73] The parents have not cared for F.M.-C. since March 2017, i.e. almost 3 years.

[74] In determining whether there is a genuine issue for trial, there must be some evidence that the child faces some better prospect than what existed at the time of the Society’s removal of the child from the parents and that the parents have developed some ability to parent. See para. 90 of Catholic Children’s Aid Society of Hamilton v. B.W-B and F.M. and S. B., 2015 ONSC 7621, and Children’s Aid Society of London and Middlesex v. L.A., [1999] O.J. No. 5839 (Q.L.).

[75] As set out below, the Court finds that some of the Society’s concerns that brought this matter originally before the Court have been addressed by the parents, more specifically, by the mother, i.e. homelessness, substance abuse and mental health issues.

[76] The Court notes that the evidence contained in the affidavits disclose that certain issues continue to exist:

− Conflict between the parties; − Inability to commit to certain tasks/appointments and make access visits; − The father has failed to follow up with emotional regulation courses to deal with his anger management issues; − Parenting issues during access; and − Lack of corroborating evidence to confirm the mother’s mental health status.

[77] The Court has considered the evidence submitted by the parties. Despite the powers set out in r.16(6.1) that the Court can exercise at trial (i.e. weighing the evidence, evaluating the credibility of the deponents and drawing reasonable inferences from the evidence), the changes made by the mother since the time of the last Order regarding F.M.-C. raises a genuine issue for trial. This issue of whether the mother has done enough to now be in a position to parent F.M.-C. requires an analysis that, in the interests of justice, cannot be done at a motion for summary judgment.

Mother’s evidence

[78] The mother in her affidavit of October 21, 2019 confirms the following:

• She is living in a new place as of December 15, 2019;
• Attached a letter confirming that she completed Beyond the Basic parenting course from January to April 2019;
• Admits that she suffers from PTSD, borderline personality disorder and anxiety disorder for which she takes Fluroxene and other medication prescribed by Dr. Shimizu;
• Is working on her emotions through counselling at Wabano Centre for Aboriginal Health (“Wabano”) but no longer attends as the counsellor was only available on Mondays and the Society changed the access visits to Mondays.
• Attends for sessions with a counsellor, Donna Klink;
• Is unable to work due to a disability with her back; and
• Is a recipient of Ontario Works which barely pays for rent, food, limited phone service and bus fare.

[79] In her November 27, 2019 affidavit, the mother states:

• She attended counselling with Mr. Sylvestre at Wabano in July 29, 2019 to August 26, 2019 until the Society changed the access visits to Mondays;
• She admitted to calling the Society due to father’s anger issues:
• She lived in Harmony House since spring 2019;
• She is taking Fluvoxamine for anxiety;
• She has a service dog to help her with PTSD;
• She admits that in March 2017, she reached out to Ms. Hartwig as the father was violent and aggressive and she was self-harming;
• Her June 10, 2019 drug screening showed negative results and her February 17, 2019 drug results showed a minor trace of marijuana;
• She states that there has been no domestic violence since May 2018 and she admitted that the father punched her once at that time;
• In August 2018, she went to the Royal Ottawa Hospital to deal with addiction issues and she was told that it was not serious enough to be admitted there. She was referred to the Addiction Access Referral Services who completed an assessment and referred her to the Detox Centre where she stayed for 3 days. She then spent a week at Maison Gilles Chagnon-Montfort Renaissance program;
• She missed access visit due to Migraines (for which she takes Nadolol);
• That she now has a better relationship with the father and that they communicate more effectively; and
• In March 2019 she met with Dr. Turley of Shared Mental Health Care team and was referred to Working with Emotions.

[80] In the maternal grandmother’s (A.A.) affidavit of November 21, 2019, she indicated that she worked for 17 years with Great West Life and has been on a disability pension but will be back to work in January 2020. She admits that the mother has had mental health issues, has sought help and is doing better. She is prepared to help the mother if the children are returned to her.

[81] The mother’s cousin, J.A., has also offered to help and knows that the mother has struggled with mental health issues but has not seen any symptoms for some time. She has two children of her own (10 and 11). There have been issues with the bus schedule since the introduction of the light rail system in Ottawa.

Father’s evidence

[82] The father in his affidavit of December 6, 2019 did acknowledge some to the above issues and admits that he is not ready to be a full-time parent. He makes the following admissions:

• He admits to being homeless multiple times and that in the first 5 years while the parents lived in Ottawa, they changed homes 10 times due to the unlivable and/or unaffordable living conditions;
• He does not deny that the mother took marijuana while pregnant;
• He admits to fighting with the mother in the past but not in the last year;
• He admits that they were confused over the feeding for L.M. as they received conflicting instructions;
• He admits to suffering from anxiety and depression and perhaps ADHD and suffers from insomnia. He admits to posting a Facebook message of “being suicidal” and claims the message was taken out of context. He admits that he has not continued with counselling after 2 sessions at the Bethany Hope Centre;
• He admits to a deep depression at Thanksgiving 2019;
• He states that he does not have appropriate parenting skills because he was in Society care when he was a minor;
• He confirmed police involvement on January 18, 2017 as he admits to yelling and being upset;
• He admits that he could benefit from emotional regulation but will not attend New Directions as recommended by the Society as the focus there is domestic violence which is not an issue for him;
• He states that F.M.-C.’s behavior is due to the fact that he is introverted;
• He admits to being late for appointments and for F.M.-C.’s birthday party but he blames the bus schedule;
• He admits that in June 2016 the mother called the Society as he hit a table and caused scissors to fly off near F.M.-C.;
• He admitted to refusing to take drug screening tests as he did not trust the provider suggested by the Society;
• He admits that he and the mother struggled as parents and that they dropped off F.M.-C. at the paternal grandparents. They did so even though there were some concerns that the paternal grandmother was a user of drugs;
• He admits to going downstairs in the apartment building and only using the baby monitor when F.M.-C. was asleep in the apartment;
• He admits to an unclean apartment but states it was already like that;
• He admits to being evicted but says the apartment became unlivable and so they withheld rent;
• He admits to garbage strewn about but states it was caused by their dog;
• He admits to missing meetings but, at times, his depression prevents him from leaving his home and, at times, cannot get out of bed;
• He admits to missing Beyond the Basics parenting classes; and
• He admits to, at times, feeling agitated and frustrated, e.g. L.M.’s feeding and admits he swore when L.M. peed.

[83] As will be summarized below, the parents have addressed some of the Society’s concerns in their materials, but they still require attention in other areas.

Transient lifestyle

[84] One major concern for the Society from the outset is the parents’ transient lifestyle.

[85] As will be discussed below, the parents have admitted to homelessness but blame the unlivable conditions of some residences and lack of finances.

[86] At this time, however, the mother is living in Ottawa Community Housing as of December 15, 2019 having been on the waiting list for two years. The father is living in a rooming house.

[87] Therefore, the evidence has established that the Society’s concern of homelessness has been addressed by the parents, at least, at this point in time.

[88] There is a genuine issue requiring trial as to whether F.M.-C. is a child in need of protection in light of this development regarding accommodation.

Parents’ Mental Health Issues

[89] The father admits to depression and anxiety and perhaps suffers from ADHD. He has not filed a report from a practitioner, doctor or counselor confirming how or if he is dealing with his mental health issues.

[90] The mother admits that she suffers from PTSD, borderline personality disorder and an anxiety disorder for which she takes medication and sees doctors.

[91] She indicates in her affidavit that she has taken counselling and parenting courses, limited her intake of marijuana, found stable housing with Ottawa Community housing and thereby has distanced herself from the father. She indicates that she has been taking her medication for her anxiety and depression and has obtained a service dog to assist with her PTSD.

[92] No report has been filed with the Court regarding her progress. Also, there is no report or assessment evaluating her parenting ability. She is a parent who has attempted to work with the Society, has shown a genuine interest and love for her children. She is not plagued by serious substance abuse issues or serious domestic violence issues that have resulted in criminal charges.

[93] She has filed supporting affidavits from her cousin and mother which indicate that they have seen an improvement in her mental health and that they have not observed and troubling behavior recently.

[94] There is a genuine issue for trial as to whether the mother who is presenting a plan has made sufficient progress so that the child is no longer in need of protection.

Parents’ conflict

[95] There is evidence that there was past domestic violence where the mother admits to being assaulted by the father.

[96] There have been numerous incidents set out in the affidavits where the parties have engaged in conflict, disputes and aggressive behaviour.

[97] The parties attest to the fact that they have learned to resolve their differences and there is less conflict. However, the evidence contradicts this assertion.

[98] The last incident on November 26, 2019 was at an access visit where the parents were arguing during the access visits. The bickering continued after the visit. The mother broke down in tears and told the worker that she no longer wished joint visits with the father.

Unable to organize themselves to make important appointments or attendances

[99] There has been a serious lack of follow up by the parents with medical professionals involved including doctors, counsellors and the Shared Mental Health Care Team.

[100] The parents have missed important events or been late for them including: missed visits, cancelled visits and the mother has failed to call for check in before planned access (children must come from Renfrew where they currently reside).

[101] For example, the mother missed 7 out of 19 visits from the period of October 16 to November 28, 2019.

[102] The father missed 2 months of access visits in the summer of 2019.

[103] The parents’ blood work for genetic testing took 8 months to complete due to their failure to schedule and/or attend appointments.

[104] The parents have provided numerous excuses including financial issues, lack of phone minutes or illness (e.g. migraines)

The Interaction with F.M.-C.

[105] There is evidence that the mother has not totally engaged with F.M.-C. and work must be done to develop the mother’s relationship with her son. See Jenn Campbell’s Affidavit dated October 14, 2019, at volume 1 tab 8.

Child

[106] When F.M.-C. came into care, he was behind in speech and exhibited anti-social behavior. He has improved since being in the care of the Hartwigs.

[107] The Hartwigs state that after visits F.M.-C. is very aggressive, growls, does not listen and screams and exhibits anti-social behavior. See J. Hartwig’s Affidavit of November 19, 2019.

[108] R. Hartwig also speaks of the disruptions after visits with F.M.-C.’s parents including him being aggressive, growling, screaming and not listening to teachers. He said he missed his father as he had not had visits from August 2019 to October 22, 2019. Therefore, irregularity in visits with his father does emotionally impact F.M.-C.

[109] The parents do not contest that F.M.-C. has special needs and has been screened for autism and genetic issues. He requires occupational therapy exercises and requires a lot of stimulation.

[110] Ms. Campbell also opines that the parents demonstrate a poor ability to manage the two children at a time.

[111] There have also been observations of conflictual interactions between the parents.

Use of substances

[112] This is some evidence that the mother had taken marijuana during pregnancy.

[113] The father refused drug screening tests.

[114] Only one of the mother’s tests results showed signs of marijuana. The doctor said that the level of THC was low so she could still breastfeed.

[115] The mother admits to using marijuana twice per week.

Summary

[116] Therefore, given the above findings, the Court finds that there is a genuine issue requiring a trial, i.e. whether F.M.-C. is still a child in need of protection given the changes addressed by the mother since he was brought to a place of safety.

L.M.

[117] L.M. is the subject of a protection application and hence there has never been a finding in need of protection. She was taken to a place of safety and therefore never lived with her parents. The Society’s concerns include their past parenting of F. M.-C. as per the CYFSA and the concerns that existed at the time that the child was placed in the interim care of the Society.

[118] As discussed above, the mother has demonstrated in her affidavits filed that she has taken some steps to ameliorate her condition.

[119] The mother has shown some positive interactions with L.M. during access visits. Unfortunately, due to numerous missed visits for failure to check in at 8:00 A.M. and to arrive at the visit 1 hour in advance, her visits with L.M. are reduced to once per week. In addition, she has shown some inability along with the father regarding feeding and taking cues from the baby and one occasion left a diaper astray.

[120] The Society has articulated some concerns regarding the lack of skill in feeding L.M. The complaints include not feeding her the whole bottle or not following instructions regarding feeding provided by the worker or not understanding cues from L.M.

[121] The parents indicate that they have received conflicting information and directions from various individuals. Regarding L.M.’s cues, the mother’s parenting skills would need to be developed. These skills cannot be improved due to the short period of time that the parents currently have with her. The visits have been reduced due to the parents’ chronic missed or lateness to access visits. Also, visits have been cancelled due to the parents’ failure to comply with the advance notice provisions imposed by the Society due to their repeated failure to attend visits or arriving late.

[122] As discussed, the Court has found some changes to the parents’ conditions and those changes raise a genuine issue requiring a trial with respect to L.M.

Conclusion

[123] Since the Court finds that there is a genuine issue requiring a trial regarding the issue of whether the F.M.-C. continues to be a child in need of protection and L.M. is a child in need of protection, the Court will not need to deal with what order is necessary to protect the child in the future pursuant to s. 101(1) of the CYFSA. This issue will need to be determined at trial.

[124] As Kawartha stated, child protection litigation engages Charter rights of both parents and children. In addition, their personal circumstances pose obstacles, including poverty marginalization and they are vulnerable litigants. The Court must take a cautionary approach.

[125] The issue of the statutory finding of whether L.M. is a First Nations, Inuk or Métis child is a very important issue. The parents’ affidavits suggest that there is some evidence regarding their background. There is conflicting evidence with respect to this issue. The parents claim they have an indigenous heritage which includes the children although admit to disorganized family histories.

[126] At this stage, on a summary judgment motion and on the record before it, the Court is not prepared to find that they are not indigenous.

[127] In addition, the Court is not prepared to exercise its powers to determine this issue on a summary judgment motion under r. 16 (6.1) as it is in the interest of justice for such powers to be exercised only at a trial, after full cross-examination of the evidence.

[128] Accordingly, the Society’s motion is dismissed.

The Honourable Justice A. Doyle Released: January 27, 2020