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.

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.

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.: FS-18-7175 DATE: 20200814 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO Applicant/Respondent on Appeal (Respondent) – and – F. B. Respondent/Appellant Father (Appellant) S. W. Respondent/Mother Office of the Children’s Lawyer Respondent

Counsel: Chithika Withanage, for the Respondent Children’s Aid Society of Toronto Alexander Novak, for the Applicant David P. Miller, for the Respondent S.W. Julia R. Vera, for the Office of the Children’s Lawyer

HEARD: June 22, 2020 with written reply from the Appellant June 29, 2020

Reasons for decision

Czutrin J.

[1] The Appellant F.B. (the “father”) appeals the decision of Jones J. (the “summary judgment judge”) delivered orally on December 6, 2018, granting summary judgment on the only issue she was asked to consider, access between N.B. (d.o.b […], 2011) and her father.

[2] N.B.’s last in person contact with her father was in May 2016. N.B. has been in the care and control of her mother since January 29, 2016.

[3] On the first return of the summary judgment motion on September 11, 2018, the parties agreed that the parties’ daughter N.B. was to remain in the custody of her mother under s. 102 of the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”).

[4] The father sought an order for supervised access to N.B. twice weekly in the community.

[5] In oral reasons delivered December 6, 2018, the summary judgment judge held that the father may have only written contact with N.B. by way of cards, letters and photographs, but that any further contact or access shall be subject to the child’s wishes.

[6] The father seeks to set aside the access order on the basis that the Court improperly accepted hearsay evidence tendered by the Respondents, that rendered the proceeding both unfair and unjust, and as a result did not rise to the level of establishing that there was no genuine issue for trial.

[7] The father submitted in his Amended Factum March 15, 2020, that by having the status review proceed by way of summary judgment, the Children’s Aid Society of Toronto (“CAST”) was essentially seeking a “no access order” based on the father’s “alleged sexual assault of N.B.”

[8] The Amended Factum asserted that the affidavits in support of the motions for summary judgment were contaminated by hearsay that rendered the proceeding unfair and unjust and did not rise to the level of establishing that there was no genuine issue requiring a trial. Father’s counsel submitted that when CAST interviewed N.B. (on March 23, 2018) and CAST workers concluded that the disclosure could not be verified because (a) the child has used words uncharacteristic of children her age such as “inappropriate” and (b) she had knowledge that “daddy was going to get in trouble,” and she said “mommy told her what to say”. CAST closed its investigations and concluded that the allegations were not verified. It appears that father’s counsel was referencing the affidavit of M.Z. a family service worker dated August 2, 2018, whose affidavit outlines N.B.’s disclosure under headings “Unverified” and “Verified.” These are terms used by CAST internally.

[9] CAST submitted that the appeal is without merit and should be dismissed. CAST submitted that the summary motion judge’s order was based on a finding of facts supported by the evidence, and there was no triable issue and the summary judgment was properly granted.

[10] The Office of the Children’s Lawyer (“OCL”) was first appointed on November 9, 2017, to provide independent legal representation for N.B. Julia R. Vera, a lawyer on the panel of OCL, was assigned and has remained as counsel for N.B., and on behalf of N.B., supports the position advanced by CAST.

[11] The mother supports the position of the OCL and CAST.

[12] For reasons that follow the appeal is dismissed.

[13] There is a lengthy history of conflict between the parents from the date of N.B.’s birth.

[14] This early conflict resulted in CAST obtaining a warrant of apprehension on August 18, 2011, when N.B. was 7 days old. The CAST was unable to locate the child and the mother until August 29, 2011, when the Toronto Police Service contacted CAST to report that the mother had been hospitalized after being assaulted by the father.

The 2015 trial with CAST seeking Crown Wardship

[15] The most comprehensive review of the parents’ relationship with each other, the police, CAST and most importantly N.B. was the 17-day trial that commenced June 1, 2015, (June 1-5, June 8-12, June 16, 18, 19, 25 and 30, July 30 and August 5 and 30, 2015) with Otter J. (the “trial judge”) presiding.

[16] The trial judgment, The Children’s Aid Society of Toronto v. S.W. & F.B., Metro East, C54994/11 (Ont. C.J.) (the “trial judgment”), was released on January 29, 2016.

[17] At trial, CAST sought a finding that the child N.B. was in need of protection under s. 37 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”), the then-governing child protection legislation, and a finding of Crown Wardship under CFSA s. 57.

[18] Both parties conceded the finding that the child was in need of protection.

[19] The mother asked for the child to be returned to her care subject to supervision and with extensive access to the child’s father.

[20] The father opposed the mother’s request and asked that the child be returned to his care without supervision or with a brief three-month period of CAST supervision.

[21] The trial judgment reviewed the history of the parents’ relationship and its impact on the child. The trial judge found N.B. in need of protection, but rejected CAST’s Crown Wardship request. The trial judge granted the mother custody, care and control of N.B. subject to the supervision of CAST for a period of twelve months.

[22] The trial judge also granted the father time with N.B. on alternate weekends from Friday after school until Monday morning, to be extended to Tuesday if Monday was a holiday. The trial judge provided that after five months, the father’s time was to be extended to include an overnight from each Wednesday after school until N.B.’s return to school on Thursday morning.

[23] At paragraph 38 of the trial judgment, the trial judge accepted the mother’s version of events and rejected the father’s version of events.

[24] While the father sought to appeal the trial judgment, the appeal never proceeded and was ultimately dismissed.

Events leading to the summary judgment

[25] The Status Review and summary judgment under appeal are the second in this case after the trial judgment referred to above.

[26] In March 2016 and April 2016, CAST received two reports from two third parties involved with N.B. and the mother regarding alleged physical and sexual abuse of N.B.

[27] On June 7, 2016, CAST was contacted by a counselor from Hincks-Dellcrest, who advised that the child had disclosed inappropriate touching while she was at the father’s home for weekend access. The father denied the allegations and suggested that the mother had brainwashed the child.

[28] N.B. was interviewed twice by detectives from the Toronto Police Service and various social workers. The father was subsequently arrested and charged. CAST verified the allegations of sexual abuse made by N.B. and continues to maintain that position. CAST’s verification is not a criminal finding.

[29] By July 26, 2016, the CAST brought a motion seeking a temporary order to vary the access ruling of Otter J. On August 3, 2016, Curtis J. of the Ontario Court of Justice, on a without prejudice basis, granted CAST’s motion for an order that access to N.B. be in the discretion of the CAST.

[30] On September 8, 2016, the criminal charges against the father were withdrawn.

[31] On September 27, 2016, the father was once again charged with sexual assault and sexual interference after the Toronto Police Service received a forensic report conducted on articles of N.B.’s clothing. These charges were withdrawn by the Crown on June 27, 2017, on the basis of no reasonable prospect of conviction.

Status Review summary judgment motions

i. First Status Review and the appointment of the OCL

[32] On October 12, 2017 and November 9, 2017, Paulseth J. of the Ontario Court of Justice heard a motion for summary judgment brought on a Status Review application by CAST. Paulseth J. placed the child in the mother’s care for six months, with the father’s access to be determined by the CAST at its discretion. Paulseth J. also made an order under s. 38 of the CFSA appointing the OCL to represent N.B.

ii. Second Status Review and motion for summary judgment

[33] CAST commenced a second Status Review Application on April 12, 2018, when the order of Paulseth J. was about to expire.

[34] The Form 8b Status Review Application was filed April 11, 2018 and returnable May 7, 2018. By that time the mother and N.B. had moved outside of Toronto and were receiving ongoing child protection services from Peel Children’s Aid Society (the “Peel CAS”). The Status Review Application updates the mother and N.B.’s involvement with Peel CAS. It also referenced the father’s interaction with CAST and his willingness to engage in counselling and reintegration therapy.

[35] The April 2018 Plan of Care filed by CAST was consistent with the request made by CAST and included the following under paragraph 6:

The child cannot be in the care of her father … as (N.B.) has made it clear that she does not wish to have any contact with him at this juncture. It is clear from the report of her therapist, that (N.B.) is suffering from anxiety, fear, loss and lack of emotional stability.

[36] The father’s Plan of Care sought an independent neutral third party assessment of the mother and N.B., and his request for supervised access to reconnect and revive his close relationship with N.B.

[37] CAST Notice of Motion for summary judgment was dated August 7, 2018, with a return date of September 11, 2018, at 2:00 P.M. and the order requested included:

1. Pursuant to Family Law Rule 16 (Summary Judgment) CAST sought the following orders: a. An Order pursuant to s. 102(1) of the CYFSA that the child N.B. be placed in the care and custody of the Respondent Mother, S.W., which is deemed to be an order under s. 28 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). i. S.W. may travel with the child outside of Canada without the consent of any other party. ii. S.W. may obtain or renew government documents, such as passports, passport renewals, health cards, SIN numbers, applications for name changes and birth certificates, for the child without the consent of any other party. b. Access to the child by the father, F.B. to be as follows: i. When F.B. can satisfy the court under the CLRA that he has completed a reunification counselling program in order to work towards re-establishing a positive relationship between him and the child; and ii. When the child completes a sexual abuse treatment program; and iii. If the child is willing to access visits with her father, the child shall be assisted by her counselor to engage in such visits; and iv. If the child is willing to have access visits with her father, F.B. will follow the recommendations of the counselor in re-establishing a positive relationship between him and the child.

2. Such further or other order as may be requested and this Honourable Court deems just and proper.

[38] Affidavits in support of CAST’s summary judgment motion were filed by five deponents including the mother. The dates of the affidavits were August 2, 2018, August 7, 2018 and August 28, 2018.

[39] The affidavits set out (a) the history of the parents and their relationship with the child dating back to N.B.’s birth and as outlined by the trial judgment, and (b) the events that followed including the CAST’s, mother’s and OCL’s willingness to consider a counselling service with the goal of preparing the father for access to N.B. that the father undermined by asking that service to do an independent review of the CAST.

[40] Having been served with CAST’s Notice of Motion for summary judgment dated August 7, 2018, and with the affidavits as noted above well before the first return date of September 11, 2018, at 2:00 P.M.; knowing for months what CAST was seeking, the father did not serve his reply affidavit until October 18, 2018.

[41] The father and his counsel did not seek to strike any portions of affidavits or seek to cross examine any of the deponents. The father was aware, and in fact knew, of the CAST’s position as outlined by the Plans of Care filed in April.

[42] On the first return of the Status Review the father consented to the mother’s request for custody and the access portion of the summary judgment motion was adjourned to October 29, 2018.

[43] The summary judgment judge was left with the issue of the father’s access only.

[44] Submissions on access were received on October 29, 2018.

[45] In oral reasons given on December 6, 2018, the summary judgment judge confirmed the parents’ consent that the mother would have care and custody of N.B. pursuant to s. 102(1) of the CYFSA, which is deemed to be an order under s. 28 of the CLRA.

[46] The summary judgment judge reviewed the history of the parties and CAST’s expectation of the father to seek counselling and to come to understand N.B.’s fears of the father and N.B. not wanting to see or visit him.

[47] The summary judgment judge limited the father’s contact to written contact with N.B. by way of cards, letters and photographs, but any further contact or access shall be subject to the child’s wishes.

[48] The summary judgment judge while reviewing the history of the parents made no findings relating to the sexual allegations nor was she asked to.

Issues

[49] CAST notes that there were no grounds of appeal raised or argued in the father’s first Factum.

[50] The father subsequently filed an Amended Factum on March 15, 2020, with his current counsel.

[51] In the Amended Factum, the father raises two grounds of appeal:

a) Did the Court err in law by considering hearsay evidence on the summary judgment motion? and b) Did the Court err in not considering the principles of justice and fairness when concluding that there was no genuine issue with respect to access requiring a trial?

Standard of Review

[52] The standard of review, per Housen v. Nilkolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, is as follows:

• On pure questions of law, correctness;
• On questions of fact and inferences of fact, “clearly wrong;” and
• On questions of mixed fact and law, “palpable and overriding error.”

[53] Father’s counsel submitted that the summary judgment judge was tainted by the sexual allegations made against the father. The father and his counsel focused on the sexual allegations and CAST’s verification of the allegations made against the father. The sexual allegations are not a criminal finding nor a finding made by the summary judgment judge in the child protection proceeding. While the father was never tried, he took issue with CAST maintaining that the allegations are verified by CAST.

Analysis

[54] I find no error of law and no palpable and overriding error in the summary judgment.

[55] I find that the summary judgment judge proceeded in a just and fair manner given the evidence before her.

[56] While the summary judgment judge reviewed the history of the parents and N.B., and the affidavits of the deponents that included what occurred after the only trial these parties had, she made no findings on the sexual allegations related to the father.

[57] As noted, the father did not seek to cross examine the deponents who filed affidavits in support of the motion for summary judgment.

[58] I find the Office of the Children’s Lawyer Factum and Book of Authorities most helpful.

[59] CAST and mother’s counsel rely and adopt the Factum and Book of Authorities of the OCL.

[60] OCL counsel concedes that the summary judgment judge’s oral reasons of December 6, 2018 were delivered before the recent endorsement of Jain J.’s decision in Simcoe Muskoka Child Youth and Family Services v. K.R., 2019 ONSC 3693 (Simcoe) outlining child protection summary judgment considerations following the Court of Appeal’s decision in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 (Kawartha). However, OCL counsel submits that the summary judgment judge’s decision regarding access between N.B. and her father was consistent with Kawartha and properly applied the principles of summary judgment as set out by the Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87 and Hryniak’s application in Kawartha as summarized in Simcoe.

[61] I outline portions of OCL’s Factum:

a. The first statement in the preamble of the CYFSA “the Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard” and that the aim of the CYFSA is to be consistent with United Nations Convention on the Rights of the Child. b. When making an order or determination in the best interests of a child, the first factor that requires mandatory consideration is the “child’s views and wishes given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.” c. With respect to summary judgment, Family Law Rule 16 governs and Family Law Rule 16(2) specifies that child protection is included. d. Rule 16(4.1) provides that a party responding (the father in this case) “may not rest in mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue requiring a trial.” In Kawartha, the Court of Appeal articulated the principles relevant to summary judgment in the child protection context and Simcoe provides a helpful summary of the law on summary judgment following the Court of Appeal’s decision in Kawartha. e. Briefly, paragraphs 14, 15 and 17-23 of the Simcoe decision, in applying the Kawartha decision, provide the law on child protection summary judgments under Family Law Rule 16: 1. The burden of proof is on the moving party (CAST). 2. The responding party (the appellant father) may not rest on mere allegations or denials but shall set out in an affidavit or other evidence facts showing that there is a genuine issue for trial. 3. Rule 16(4.1) sets out the obligation of the respondent to provide “in an affidavit or other evidence, specific facts that there is a genuine issue for trial” but this does not shift the ultimate burden of proof from the moving party (CAST). The court must still be satisfied on the evidence that the moving party has established that there is no genuine issue requiring a trial. (See Kawartha, at para. 80). 4. As applied to child protection proceedings, a fair and just determination … must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits. (See Kawartha, at para. 76). 5. 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 exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (See Kawartha, at paras. 64 and 80). 6. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence on a summary judgment motion that would be inadmissible at trial. (See Kawartha, at para. 80). 7. The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that it is “plain and obvious that the action cannot succeed.” The test has been enunciated as being when the “outcome is a foregone conclusion” or where there is “no realistic possibility of an outcome other than the sort by the applicant.” (See Kawartha, at para. 72). 8. Rule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. 9. Rule 16(6.1) provides that in determining if there is no 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 interests of justice for such powers to be only exercised at trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence.

[62] I agree with Jain J.’s decision in Simcoe and find it a helpful summary of child protection summary judgment considerations following the Court of Appeal’s decision in Kawartha.

[63] The father was represented by counsel and conceded custody to the mother, but did not seek to strike material or seek to cross examine witnesses including the mother. The evidence presented supported the findings and conclusions made by the summary judgment judge and focused on the child’s fears and wishes however formed over years of parental conflict.

[64] It has been over four years (40% of N.B.’s life) since the father last had personal contact with the child. The affidavit evidence supported CAST’s, mother’s and OCL’s position. The mother and child expressed fears of the father. The child expressed her wish not to see the father.

[65] The father did not seek to file fresh evidence on the appeal although some fresh evidence emerged.

[66] At the beginning of the appeal I asked counsel when was the last time that the father saw or had communication with the child. I was surprised to hear that the maternal and paternal grandmother had a visit with the child at the maternal grandmother’s residence where the mother and child live.

[67] While not attached to an affidavit as exhibits that would be properly be before a court for verification or consideration in reviewing the appellant’s Appeal Book at Tab 8 I saw what appeared to be emails dated August 10, 2019:

(i) Hey boo boo, its daddy love you guess who the big bday girl guess? Yup (N.B.), you getting so much older now day so happy for you I wonder what you gonna be when you grow up maybe a doctor or president no? Well your daddy always gonna support you in what ever you need and mommy too okay love you daddy going to work for the day so I can get…some extra money to buy you a gift so I will write you later or tell mommy to have you call me so we can talk your voices sound so sweet and your sister you guys get better okay tell mommy give you some vapour rub for your fever okay and try not to play to much ( have ) some rest love you and give mommy a kiss from daddy talk soon okay be safe.

(ii) Again not attached to an affidavit I saw what appear On August 10, 2019, it appears that N.B. wrote to her father:

Hi dad I am 8 tomorrow. I am ready to talk to you now. On the phone I will ask mommy first. This is a picture of me I am pretty mommy said . I love mommy so much she my best friend . I am having a birthday soon a am excited about it.

[68] Properly introduced fresh evidence could have addressed efforts the father made to comply with the summary judgment, including the recommended counselling for him to understand N.B.’s views on access (she did not wish to see her father and expressed fear). The mother is also fearful of the father. On the lengthy history of this case and the time that has passed since the child last saw her father, an appeal is not the appropriate venue to explore or consider any changes.

[69] The summary judgment judge’s oral reasons were child-focused considering all the evidence before her. The evidence as presented supported the disposition.

[70] If the father wishes to address changes to the summary judgment order the request will need to proceed under the CLRA pursuant to the summary judgment, on notice to CAST, service on the mother through her counsel if her counsel is prepared to accept service and counsel for the child.

Czutrin J. Released: August 14, 2020

COURT FILE NO.: FS-18-7175 DATE: 20200814 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO Applicant/Respondent on Appeal (Respondent) – and – F. B. Respondent/Appellant Father (Appellant) S. W. Respondent/Mother Office of the Children’s Lawyer Respondent

REASONS FOR DECISION

Czutrin J. Released: August 14, 2020