COURT FILE NO.: FC-20-CP41

DATE: 2020/12/30

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, S.O. 2017

AND IN THE MATTER OF T.V., born […], 2020

BETWEEN:

The Children’s Aid Society of Ottawa

Applicant

– and –

S.V., and M.C.

Respondents

Hayley Marrison-Shaw, for the Applicant

Cedric Nahum, for the Respondent Mother, S.V.

Kimberley A. Pegg, for the Respondent Father, M.C.

HEARD: December 14, 2020

REASONS FOR JUDGMENT

Justice Engelking

[1] The Respondent Mother, Ms. S.V. has brought a Summary Judgment Motion pursuant to Rule 16 of the Family Law Rules[^1] seeking an order dismissing the Society’s Protection Application dated July 30, 2020. The Respondent Father, Mr. M.C. supports Ms. V.’s motion. The Society disputes it on the basis that there are issues which are triable, and seeks to have the motion dismissed and the matter set to a Settlement Conference.

[2] The Society’s Protection Application is seeking a finding that the child, T.V., born on […], 2020, is in need of protection pursuant to subsections 74(2)(b)(i) and (ii), 74(2)(d) and 74(2)(h) of the Child, Youth and Family Services Act (“CYFSA”), and an order placing T. in the care of her mother, S.V. subject to the supervision of the Children’s Aid Society of Ottawa (“CAS”) for a period of six months. The first return date of the application was August 11, 2020. On that date, the Society also brought a motion requesting a temporary supervision order to the mother, which included conditions that Ms. V. reside in the home of the maternal grandmother, Ms. C.V. and that she not permit access between T. and Mr. C. without the pre-approval of the Society. Justice Shelston heard the matter and “for oral reasons given” dismissed the Society’s motion. On August 24, 2020, Justice Labrosse set the matter down for a Summary Judgment Motion, which was originally scheduled to be heard on November 12, 2020. On November 12, 2020, Justice Williams, who had previously heard a criminal trial involving the father, Mr. C., declined to hear the motion and adjourned it to December 14, 2020.

[3] Ms. V. relies on her Answer and Plan of Care dated July 30, 2020, her affidavits sworn on August 10, 2020 and November 6, 2020, as well as her Factum, Mr. C.’s Answer and Plan dated August 27, 2020, and the affidavit of Hector Cabrera sworn on August 6, 2020. Mr. C. supports Ms. V. and also relies on Mr. Cabrera’s affidavit.

[4] The Society relies upon affidavits of Leigh Adamson sworn on July 30 and August 10, 2020 and of Barb White sworn on November 5, 2020, as well as its’ Factum.

Mr. C.’s Parenting History

[5] The reasons for the Society’s involvement with this family seem to pertain primarily to the father, Mr. C. and his parenting history. Mr. C. has two previous children, L. born in 2008 and E. born in 2013. L. is in the custody of his mother and Mr. C. no longer has contact with him. E. was placed into Extended Society Care by order of Justice Roger dated April 25, 2019.

[6] In its’ Protection Application, the Society has identified the concerns relating to Mr. C. with respect to these children as being “limited parenting skills, anger management, being aggressive with the children and mother of the children, drug use and dealing, domestic violence (verbal and sexual), improper sleeping arrangements for the children, controlling behaviours, and physical discipline.”[^2] With respect to E. specifically, the Society’s concerns included “lack of compliance with court orders (criminal and child protection), the father’s drug addiction and lack of evidence to suggest he was addressing this or had a relapse prevention plan, and His Honour finding that it was more likely than not that the child did perform some kind of fellatio on the father when the child was three (3) years old.”[^3]

[7] In January of 2017, E. made a disclosure to a third party of alleged instances of sexual abuse by the father. At paragraph 9 of his Reasons for Decision, Justice Roger noted the disclosure to be as follows:

[9] The family friend, with whom the child was placed for a very short period of time in January 2017, testified that on the first day that the child was placed in her care, on January 12, 2017, as she was putting the child to bed, she called the child, “my little peanut”. She testified that the child then said that her father has a peanut, that he pees out of it, and that she had tasted it.[^4]

[8] Between January of 2017 and the release of his decision on April 25, 2019, Mr. C. had not seen E. due to outstanding criminal charges and release conditions to which he was then subject. Justice Roger notes at paragraph 15 of his Reasons for Decision that: “The allegations of sexual abuse were investigated, and the father was charged with sexual offences. The father was tried in March 2019, and found not guilty on March 15, 2019.”[^5]

[9] At paragraph 48 of his Reasons for Decision, Justice Roger stated: “Therefore, on balance when I consider all of the evidence, I believe the child and therefore find it more likely than not that the child did perform some form of fellatio on the father.”

[10] Even absent that finding, Justice Roger found that E. continued to require protection due to Mr. C.’s inability to maintain sobriety and stability, his breach of provisions of criminal and child protection orders and his history of “aggressive behaviour and tendency to violence.”[^6]

[11] As I have indicated previously, E. was placed into Extended Society Care by Justice Roger. When assessing the risks to which she might be subjected in the care of Mr. C., Justice Roger stated: “If the child is returned to the care of her father, there is a high probability that she will: witness her father under the influence of substances; witness her father acting inappropriately and/or aggressively; be left without an appropriate caregiver due to her father’s unpredictable behaviours; not have a clean house or adequate meals prepared for her; not have a consistent structure, routine, or rules required to help her develop into a healthy adult; be placed at risk of being exposed or subjected to sexual acts; and, continue to be exposed to instability and lack of permanency.”[^7]

The Child, T.V.

[12] The Society became involved in relation to the subject child of this proceeding, T.V., in January of 2020 when it received a referral that Mr. C.’s current girlfriend was pregnant with his third child.

[13] Between the referral and approximately the end of February 2020, the Society workers, first Ms. Kelly White and later Ms. Adamson, attempted to meet with Ms. V. and Mr. C. prenatally. Ms. Adamson’s evidence, which is not disputed by Mr. C., is that Mr. C. got upset on February 20, 2020 when she indicated to him that she would need to meet with the parents separately.

[14] On March 4, 2020, based on information provided to her by Ms. V.’s mother, Ms. C.V., which I do not consider either “trial worthy” or admissible for the truth of its contents, met with Ms. V. at the home of Ms. C.V. Ms. Adamson’s evidence is that in this conversation, Ms. V. advised her that she was staying in a motel with Mr. C., which was dirty and at which she had seen bugs; that Ms. V. was “adamant that the father had never been physical with her”, though she later stated “he may have put his hands on her” during conflict; that Ms. Adamson indicated to Ms. V. that a safety plan would need to be developed which ensured that Mr. C. was fully supervised around the baby due to previous sexual abuse of his then three-year-old daughter; that Ms. V. informed Ms. Adamson that Mr. C. “has a sexual dysfunction and that he forced himself on her”; that Ms. V. advised Ms. Adamson that she was prepared to move in with her mother by mid-March to ensure the safety of her child; that Ms. V. advised that her mother and sister were good supports for her; that Ms. V. did not think that Mr. C. was using cocaine; and that she was going to advise Mr. C. that they should work with the Society.

[15] On March 5, 2020, Ms. Adamson met with Mr. C. at the Society and received the following information: the father was upset with the Society regarding the information provided to Ms. V. about the sexual abuse charges; that Mr. C. had told Ms. V. everything about his mistreatment of his previous partner; that Mr. C. was clear of drugs for almost one year; that he wanted to be with Ms. V. and be a good parent to the child; that Ms. Adamson stated Mr. C. could speak to his family doctor about a referral for a penile plethysmograph test and that he should be enrolled in trauma counselling and parenting programs; and that Mr. C. seemed genuine in wanting to have a healthy relationship with Ms. V.

[16] Ms. Adamson again met with both parents at their hotel room on March 10, 2020, where many of the same things were discussed. Ms. Adamson was concerned about Mr. C. seeming to control her access to Ms. V.

[17] On May 11, 2020, Ms. V. left Ms. Adamson a message informing her that she had given birth to T. by c-section. No concerns about Ms. V.’s care of the child were reported to the Society by the hospital and upon release, Ms. V. went to stay with her mother, Ms. C.V., who assisted with T.’s care due to the pain Ms. V. was experiencing from her c-section. On May 14, 2020, Ms. V. and Ms. Adamson agreed that Mr. C. could have access to T. on Saturday’s supervised by Ms. C.V.

[18] Mr. C. did briefly attend the maternal grandmother’s home for visits with T., but this did not last beyond about the end of May due to conflict between Mr. C. and Ms. C.V., as well as the father feeling like the Society was setting him up to fail, and, ultimately, him not agreeing that wearing a mask during his access was required. Ms. V. was assuming more of the care of T. as her health improved. She also continued to visit with Mr. C. outside of the grandmother’s home without T. Although some discussion took place in this period about the parents entering into a Voluntary Service Agreement, this was not done, and the Society was then contemplating bringing a Protection Application.

[19] On July 19, 2020, Ms. V. left the home without telling Ms. C.V. She returned home at approximately 10:00 a.m. on July 20, 2020 while Ms. Adamson was at the home speaking to Ms. C.V. Ms. V. advised Ms. Adamson that she wished to leave Ms. C.V.’s home with T. and live with the child on her own. Ms. Adamson was not in agreement with this plan and the Society decided to file its’ Protection Application at this time. At paragraph 56 of Ms. Adamson’s affidavit in support of the Society’s application and motion, she indicates: “The Society is primarily concerned about the father’s lack of cooperation, in the current opening and in previous involvements, with addressing this addiction issues, assessing his sexual risk to the child and engaging in programming or counselling to address these concerns.”[^8]

Ms. V.

[20] On August 10, 2020, Mr. Nahum swore an affidavit of service in which he indicated that on August 7, 2020, he served the Society and the father with the Answer and Plan and Affidavit of S.V., neither of which are identified with a date. The affidavit of Ms. V. filed with the court contains a date of August 11, 2020 on it, but it is neither signed nor sworn. Although it is not noted in Justice Shelston’s endorsement of the same date, I am advised by counsel that Ms. V. swore an oath as to the truth of the contents of her affidavit viva voce in court. In it, Ms. V. attests to the fact that T. has been in her custody since birth.[^9] She states that T. attends Southbank Healthcare Centre and is up to date on her immunizations and well-baby check ups, and that she is healthy and progressing normally.[^10] She states that she is capable of caring for T. without the intervention of the CAS.[^11] Ms. V. states that Mr. C. has never been aggressive with her and denies that she told Ms. Adamson that he put his hands on her.[^12] She states that she is aware of Mr. C.’s past but that he has never been abusive or violent with her, nor has she ever been concerned for her safety or well-being with Mr. C.[^13] Ms. V. denies telling Ms. Adamson that Mr. C. has a sexual dysfunction or that he has forced himself on her; rather, she states, it was Ms. Adamson who suggested these things to her.[^14] She indicates, moreover, that she is fully aware of the charges he faced in relation to E. as she supported him through the criminal process.[^15] Ms. V. indicates that she moved to her mother’s home and remained there to the date of the care and custody hearing because she was afraid of the CAS apprehending her baby.[^16] Ms. V. states that she would have the support of her mother even if she lived elsewhere.[^17] In short, Ms. V.’s evidence is that she has been protective of T. since she was born, and has met and will continue to meet her all of her needs. Ms. V. indicates in paragraph 49 of her affidavit that she would like Mr. C. to have a relationship with T. and that she “does not want to restrict Mr. C. from being with his child or from seeing her.” After describing certain programming Mr. C. has participated in and that he has been a good partner to her, in paragraphs 52 and 53 of her affidavit, Ms. V. indicates:

[52] Nevertheless, I am not naïve and I understand that the Society would likely apprehend my child whether it is merited or not were I to leave Mr. C. alone with T.

[53] I believe that I am capable of supervising Mr. C.[’s] access and I will ensure that T. is safe.

[21] Although there are disputes in the parties’ respective affidavits as to the nature and/or contents of certain conversations, behaviours, information or admissions, Ms. V.’s and Ms. Adamson’s evidence is consistent in these respects: a) the Society was making it very clear to Ms. V. that it would intervene to protect the child from Mr. C. if she would not; and b) Ms. V. did what the Society asked, which was move into a protective environment when the child was born. Although no temporary order was made and the Society has characterized T. as not being visible in the community, I have no evidence before me to suggest that Ms. V. has not continued to meet T.’s needs.

[22] Ms. V. and Mr. C. met with the new CPW, Ms. White at the Society’s office on October 8, 2020.[^18] Ms. V. advised Ms. White that she and Mr. C. were taking couples’ counselling twice monthly via Zoom.[^19]

[23] According to her affidavit sworn on November 2, 2020, Ms. V. is currently living in the Econo Lodge on Rideau Street with T. It is her intention (hope) to someday obtain a two-bedroom apartment for herself and T. She also indicates that she would like to live with Mr. C. as a family. She has not been subject to any conditions since the commencement of the Application, and it is her position that it should stay that way.

Mr. C.

[24] Mr. C. did not swear an affidavit in this proceeding, though he did file an Answer and Plan in which he supports T. being in the care of her mother without the necessity of the intervention of the Society. In support of his position, Mr. C.’s counsel has filed an affidavit of her legal assistant, Hector Cabrera sworn on August 6, 2020, to which the following five exhibits are attached:

• Exhibit A – Reasons for Judgement of Justice H. Williams in the matter of R. v. M.C. dated March 15, 2019;
• Exhibit B – letter from Rideauwood Addiction and Family Services date June 3, 2020;
• Exhibit C – certificate granted to M.C. for participation in “Parenting with Confidence” program dated June 28, 2018;
• Exhibit D – Letter from Primacy Family First Health Centre indicating that M.C.’s referral for the Sexual Behaviours Clinic was declined as he did not meet the requirements; and,
• Exhibit E – Completion Report from the New Directions program for M.C. dated June 26, 2019.

[25] Mr. C. urges this court to rely on the Reasons for Decision of Justice Williams to come to the conclusion that Mr. C. does not present a risk of sexual harm to T. The difficulty with this argument is that Justice Williams’ decision was available to Justice Roger, as was the child’s evidence tendered in the criminal proceeding, at the time that he came to the conclusion that there was a “high probability” that E. would be “placed at risk of being exposed or subjected to sexual acts”.

[26] Similarly, the certificate for his participation in the parenting program at Exhibit “C” predates the child protection trial regarding E. Justice Roger nevertheless found that E. would be subject to an equally “high probability” of a number of other risks related to inadequate parenting. Mr. C. did, however, also advise Ms. White on October 8, 2020 that he is now taking a “Daddy and Me” program at Catholic Family Services.[^20]

[27] The letter from Samantha Gray, Adult Addictions Counsellor with Rideauwood Addiction and Family Services dated June 3, 2020 at Exhibit “B” confirms that Mr. C. is an active and current client of the service. Mr. C. has accessed Rideauwood services/programming since March of 2017, and has continued to attend regular individual counselling with Ms. Gray, though she does not indicate from what date. Ms. Gray states that she “has seen significant changes in M.’s ability to regulate emotions, resolve conflicts, set boundaries, and cope effectively. M. C. has shown considerable improvement in anger management and relapse prevention, and has utilized continued counselling to maintain this progress as well.” Ms. Gray confirms that she continues to be available to support Mr. C.

[28] The letter attached as Exhibit “C” from Dr. Raziya Zakeriya of the Primacy Family First Health Centre dated July 7, 2020 provides: “M. was referred to the Sexual Behaviours Clinic at the Royal Ottawa Hospital but the referral was declined as he did not meet requirements for tertiary care. Please see attached.” The attachments include Dr. Zakeriya’s original referral and follow-up request for a response. The referral, which was very specific regarding an “assessment for sexual proclivity” based on having been accused of sexually inappropriate behaviour towards his daughter, tried and cleared, was declined because Mr. C. did not “meet tertiary care requirements for acceptance into the Mood and Anxiety Program at the Royal, which include recurrent or chronic course of symptoms resistant to treatment, and/or significant functional impairment.” The Society submits that this Exhibit is not helpful because it only demonstrates that Mr. C. does not meet the criteria for treatment at the Mood and Anxiety Program. I disagree. Based on the specificity of the referral information, in my view it demonstrates that Mr. C. does not meet the criteria for the services being requested, namely an assessment of his sexual proclivity.

[29] Exhibit “E” evinces that Mr. C. completed the New Directions program between January 8 and May 16, 2019. His participation was noted to be satisfactory in all categories except “Homework Completion”. These included “Acceptance”, “Self-Disclosure”, “Attendance” and “Group Participation”. From that report, Mr. C. appears to have benefitted from the program (which was completed post the protection trial regarding E.).

The Law of Summary Judgment

[30] Justice Corthorn recently canvassed the post-Kawartha[^21] approach to Summary Judgment in child protection matters at paragraphs 29 through 35 of The Children’s Aid Society v. S.P. and K.L., 2019 ONSC 5624 as follows:

Summary Judgment

a) General Principles

[29] It is well-established that a summary judgment motion may be brought in a proceeding under the Act. The governing two-part test was articulated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. First, the judge must determine, based only on the evidence in the record, if there is a genuine issue requiring a trial. Resort to additional fact-finding powers is not permitted at this first stage. If there is no genuine issue requiring a trial, then the matter may be summarily determined.

[30] If there appears to be a genuine issue requiring a trial, then the second step requires the judge to look beyond the evidence in the record. At this stage, the judge determines whether the need for a trial can be avoided by utilizing the additional fact-finding powers available to the judge under the relevant procedural rules. If it can, then the matter may, at the discretion of the judge, be summarily determined. If not, then summary judgment is not granted (Hryniak, at para. 67).

[31] Rule 16 of the FLR governs motions for summary judgment. The additional fact-finding powers are set out in r. 16(6.1). Those powers permit the judge hearing a motion for summary judgment to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interests of justice that such powers be exercised only at trial.

[32] Pursuant to r. 16(4), the burden of proof rests with the moving party to set out “specific facts showing there is no genuine issue requiring a trial.” A party responding to a motion for summary judgment is not entitled to “rest on mere allegations or denials” (r. 16(4.1)). A responding party is required, through affidavit or other evidence, to set out specific facts that demonstrate there is a genuine issue requiring a trial. In summary, each party on a motion for summary judgment is required to put their best foot forward.

b) Child Protection Matters

[33] In its recent decision in Kawartha-Haliburton Children’s Aid Society v. M.W., the Ontario Court of Appeal set out “the proper approach to summary judgment in child protection matters” (2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 1). Coincidentally, that case involved a motion for summary judgment in which the mother consented to an extended society care order but sought access.

[34] The Ontario Court of Appeal identified a number of principles to be applied on motions for summary judgment in child protection cases. Those principles are summarized at para. 80 of the decision:

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.

[35] In Kawartha-Haliburton, the Court of Appeal directs that judges on motions for summary judgment in child protection proceedings undertake a best interests analysis (paras. 31 and 49). Above all, a cautious approach should be taken on motions for summary judgment in child protection proceedings (paras. 63 and 70-79). The Court of Appeal described the requisite approach as “highly cautionary” (para. 74).

Analysis

[31] This motion turns on whether there is a triable issue as to whether T.V. is a child in need of protection. If there is, then the Protection Application will proceed to the next step in the litigation, which the Society proposes to be a Settlement Conference. If there is not, then the Protection Application may summarily be dismissed, as the mother and father propose.

[32] The burden of proving that there is no genuine issue of material fact or credibility requiring a trial rests on Ms. V., supported, of course, by Mr. C. Pursuant to Kawartha-Haliburton, whether the Society is able to set out specific facts showing there is a genuine issue for trial or not, I must be satisfied on the evidence before me that Ms. V. has established there is no genuine issue for trial. In determining whether she has done so, I must exercise caution and apply the objectives of the Act, including the best interests of T.

[33] Pursuant to section 81(1) of the CYFSA: “A society may apply to the court to determine whether a child is in need of protection.” The Society has brought such an application. In this case, it has made a claim that the child, T. is in need of protection based on the following grounds, contained in section 74 of the CYFSA:

74(2)(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

74(2)(d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c);

74(2)(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having chare of the child;

[34] To be successful on the application asking for a finding under section 74(2)(b)(i) and (ii), the Society will ultimately be required to establish on a balance of probabilities that Ms. V. is incapable of adequately caring for, supervising or protecting T. through a specific act or acts or by a pattern of neglect. There is no evidence before me to support that there is a triable issue in this regard. Indeed, but for when Ms. V. was somewhat physically incapacitated by her c-section, which she acknowledges and for which she was receiving the assistance of her mother, the only other evidence I have of Ms. V. neglecting in the care of T. was when she left the grandmother’s home on one occasion without telling her, and failed to return when requested on one other occasion. Both times, the child was nevertheless left in the care of a family member. The remaining evidence before me supports that Ms. V. has been providing care for and meeting the needs of T. since her birth in May of 2020. Although the outcome appears to have been unsatisfactory for both parties, Ms. V. (and Mr. C.) also met prenatally with the CAS, when there was no requirement to do so, and attempted to cooperate with them. Indeed, as suggested by Ms. Adamson, Ms. V. moved into the home of her mother and remained there until well beyond the care and custody hearing, thereby severely restricting the child’s contact with Mr. C.

[35] Although drug use/abuse, particularly cocaine, has historically been an issue for Mr. C. (from the effects of which Ms. V. might need to protect T.), I received no evidence that it continues to be so. On the contrary, Mr. C. advised Ms. Adamson on March 5, 2020 that he had been clean of drugs for about a year,[^22] Ms. V. told Ms. Adamson on March 4, 2020, that she would not put up with Mr. C. using cocaine and she did not feel that he was,[^23] and Ms. Gray stated that Mr. C. had shown “considerable improvement in anger management and relapse prevention”.[^24]

[36] With respect to this ground, the Society submits that given Mr. C.’s past history of domestic violence, and what they allege to be evidence of current controlling and/or abusive behaviour by him towards Ms. V., there is a significant risk that T. will be harmed by Ms. V. failing to protect T. from the effects of same. The only admissible evidence before me in this regard is the following:

• Ms. Adamson’s observations of Mr. C. controlling access to Ms. V. prenatally;
• Ms. V.’s alleged admission to Ms. Adamson on March 4, 2020 that Mr. C. “may have put his hands on her” when they have had conflict;
• Ms. Adamson’s concern that Ms. V. leaves her money in the hands of Mr. C.; and,
• Ms. V.’s alleged statement to Ms. Adamson on March 4, 2020 that Mr. C. has a sexual dysfunction and that he has “forced himself on her”.

[37] With respect to the first, notwithstanding the Society’s concerns, Ms. V. nevertheless met with Ms. Adamson in the absence of Mr. C. in the home of the maternal grandmother on March 4, 2020 and again in the presence of Mr. C. at their hotel on March 10, 2020.

[38] With respect to the second, this admission appears to have occurred in the context of a much larger discussion, one in which Ms. V. was also adamant that Mr. C. had never been physically abusive to her. Ms. V. confirms this latter statement numerous times in her affidavit of August 11, 2020.

[39] Regarding the third bullet above, there is no evidence before me which supports that Mr. C. abuses any responsibility Ms. V. gives him over her money. Ms. V., moreover, disputes that he does in her affidavit evidence (with there being no evidence to the contrary).

[40] Finally, with respect to the fourth bullet, Ms. V. challenged this characterization of Ms. Adamson in her affidavit of August 11, 2020 (a copy of which Ms. Adamson had received unsworn on August 7, 2020). In response, Ms. Adamson sworn in her affidavit of August 10, 2020, the following at paragraph 17:

17. In response to paragraphs 16 and 32, my conversation with the mother was as outlined in my previous Affidavit. In that, the mother disclosed that the father has a sexual dysfunction. In the conversation, I was discussing that there has been some concerns with the father being a sex addict and the mother’s verbal answer was “yes he definitely has this”. She then stated that sometimes he has had sex with her when she was not in the mood.

[41] It appears from this clarification that Ms. V. answering “yes he definitely has this” was interpreted by Ms. Adamson as Ms. V. stating that Mr. C. had a sexual dysfunction, even though it is clear that Ms. Adamson raised the issue of Mr. C. possibly being a sex addict. This clarification is, in fact, consistent with Ms. V.’s evidence wherein she states it was Ms. Adamson stating that Mr. C. had a problem, not her. Additionally, and although neither is acceptable, stating that Mr. C. has had sex with Ms. V. when she was not in the mood is potentially much different than stating that Mr. C. has forced himself on Ms. V.

[42] The Society appears to rely heavily on statements made to Ms. Adamson by the maternal grandmother, Ms. C.V. to support that Mr. C. is controlling and/or abusive to Ms. V. For unknown reasons, the Society did not provide an affidavit from Ms. C.V. As I have indicated above, these are hearsay statements and I do not admit them for the truth of their contents. I adopt the reasoning of Justice Mackinnon in the Children’s Aid Society of Ottawa v. J.B. and H.H., 2016 ONSC 2757, at paragraph 18 wherein she stated:

[18] I agree with Justice Sherr where he stated in Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 646:

[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.

[43] Similarly, the Ontario Court of Appeal indicated in Kawartha-Haliburton, supra, at paragraph 80 that the court must carefully screen the evidence to eliminate inadmissible evidence and not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

[44] Thus, I have no evidence properly before me (except as set out in paragraph 36 above, which I do not find particularly persuasive for the reasons given), that would permit me to conclude that Ms. V. has been subjected to domestic violence by Mr. C. I cannot, therefore, find that there is a triable issue over whether Ms. V. would fail, or be at risk of failing, to protect T. from same.

[45] This is equally true of the claim under section 74(2)(f). If the risk is that T. will suffer emotional harm as result of exposure to domestic violence, as is alleged by the Society, there is no evidentiary foundation in the materials before me to support that claim. I do not know on what other basis T. would be at risk for emotional harm of the kind outlined in subsection 74(2)(f). I find that there is no issue which requires a trial in relation to this ground.

[46] The Motion then comes down to if there is a triable issue on whether there is a risk that T. is likely to be sexually abused or sexually exploited by the person having charge of her or by another person where the person having charge of her knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect her. As set out by Justice Murray in Catholic Children’s Aid Society of Toronto v. E.S. and F.S., 1016 ONCJ 279 at paragraph 89:

[89] At a summary judgment motion brought by a respondent, the applicant Society is not required to establish that the children are in need of protection. If the moving party establishes a prima facie case, the Society will be required to demonstrate that there is a genuine issue requiring a trial for its resolution…(Emphasis is original)

[47] The Society submits that the genuine issue requiring a trial in this regard is whether Ms. V. can protect T. from the “high probability” of the risk of sexual abuse or sexual exploitation by Mr. C. Ms. V. does not accept that such a risk exists, but submits that, even if it does, she is capable of protecting T. from it.

[48] Section 93(1) of the CYFSA provides:

93(1) Despite anything in the Evidence Act, in any proceeding under this part,

(a) The court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) Any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[49] Justice Roger’s reasons for decision in the child protection case relating to the child, E. are clearly admissible in this case (as are Justice Williams’ in the criminal case). Were it not for Justice Roger’s finding that it was “more likely than not that the child [E.] did perform some form of fellatio on the father”, summary judgment would be warranted. However, as set out in Kawartha-Haliburton, I must exercise caution and concern myself with the objectives of the Act, most particularly the best interests of T. Justice Roger’s finding was made only a year and a half ago, albeit in relation to an incident or incidents three or more years ago. It cannot be ignored; the risk exists, and the court must be satisfied that Ms. V. can truly protect T. from it. Whether she can or cannot is a genuine issue which requires a trial.

Order

[50] For all of the reasons given above, Ms. V.’s motion is dismissed. The parties shall forthwith schedule a Settlement Conference through the office of the Trial Coordinator.

Justice Engelking

Released: December 30, 2020

COURT FILE NO.: FC-20-CP41

DATE: 2020/12/30

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, S.O. 2017

AND IN THE MATTER OF T.V., born […], 2020

BETWEEN:

The Children’s Aid Society of Ottawa

Applicant

– and –

S.V., and M.C.

Respondents

REASONS FOR JUDGMENT

Engelking J.

Released: December 30, 2020

[^1]: O. Reg. 114/99, as am. [^2]: Protection Application dated July 30, 2020, paragraph 6. #3 [^3]: Protection Application dated July 30, 2020, paragraph 6. #4 [^4]: CAS v. C.M., 2019 ONSC 2597, paragraph 9 [^5]: Ibid., paragraph 15 [^6]: Ibid., paragraphs 30 to 34 [^7]: Ibid., paragraph 51, first bullet [^8]: Affidavit of Leigh Adamson sworn on July 30, 2020, paragraph 56 [^9]: Affidavit of S.V. dated August 11, 2020, paragraph 6 [^10]: Ibid., paragraph 7 and 8 [^11]: Ibid., paragraph 9 [^12]: Ibid., paragraph 13 [^13]: Ibid., paragraph 17 [^14]: Ibid., paragraph 16 and 32 [^15]: Ibid., paragraph 16 [^16]: Ibid., paragraphs 18 and 19 [^17]: Ibid., paragraph 20 [^18]: Affidavit of Barb White sworn on November 5, 2020, paragraph 9 [^19]: Ibid., paragraph 12 [^20]: Affidavit of Barb White sworn on November 5, 2020, paragraph 9 [^21]: Kawartha-Haliburton Children’s Aid Society v. M.W., (2019 ONCA 316, 432 D.L.R. (4th) 497 [^22]: Affidavit of Leigh Adamson sworn on July 30, 2020, paragraph 36 c. [^23]: Ibid., paragraph 35 h. [^24]: Afffidavit of Hector Cabrera sworn on August 6, 2020, Exhibit B - Letter of Samantha Gray, Adult Addiction Counsellor, Rideauwood Addiction & Family Services dated June 3, 2020