Court File and Parties

COURT FILE NO.: FC-18-477

DATE: 20210414

CORRECTED DATE: 20210420

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simcoe Muskoka Child, Youth and Family Services, Applicant

AND:

A.H. and J.B., Respondents

BEFORE: The Honourable Madam Justice P.M. Krause

COUNSEL: Jeffrey Hustins, for the Applicant Matthew Giesinger, for the Respondent A.H. J.B., Respondent, self-represented

HEARD: February 8, 2021

Corrected decision: the text of the original endorsement was corrected on April 20, 2021, and the description of the correction is appended

REASONS FOR DECISION

[1] The Society has brought a motion pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99 seeking a final order placing the child, J.Z.B, born […], 2014 (“Z”), in the deemed custody of the Respondent father, J.B. (“the father”), pursuant to s. 102 of the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”). The Society also requests a final order that the Respondent mother, A.H. (“the mother”), have access with Z at the discretion of the father.

[2] The father agrees with the Society’s position with respect to deemed custody. He agrees there should be an order for access to the mother but suggests a different order which will be discussed later in this Decision.

[3] The mother opposes the motion. Her position is that Z should immediately be returned to her care. She has not brought any Motion for Summary Judgment seeking that relief. As a result, I infer from her position that she believes there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure.

[4] The finding in need of protection and statutory findings were made on March 1, 2019 following a previous Motion for Summary Judgment brought by the Society. Z is not a First Nations, Inuk or Métis child.

[5] I have read and relied on the following documents:

a. Society’s Notice of Motion, dated October 7, 2019 (V1, T33)

b. Affidavit of Steve Burk, sworn January 6, 2020 (V1, T34)

c. Affidavit of Alexis Stimpert, sworn February 11, 2020 (V1, T35)

d. Affidavit of J.B., sworn February 24, 2020 (V1, T36)

e. Affidavit of Steve Burk, sworn February 18, 2020 (V1, T37)

f. Affidavit of Steve Burk, sworn July 28, 2020 (V1, T38)

g. Affidavit of J.B., sworn October 14, 2020 (V1, T39)

h. Affidavit of A.H., sworn January 7, 2021 (V1, T41)

i. Affidavit of Steve Burk, sworn January 15, 2021 (V1, T42)

[6] I also reviewed the Society’s Plans of Care, dated May 9, 2019 (V1, T27) and September 16, 2019 (V1, T31) as well as the Endorsements of Justice Eberhard, dated January 21, 2019 and March 1, 2019.

Background

[7] The Society commenced the Protection Application on April 18, 2018 requesting a finding in need of protection and an order placing Z in the care of the mother subject to the supervision of the Society for a period of six months. The Society had the following concerns:

a. The Society had received multiple reports regarding domestic violence between the mother and Mr. H and, in March 2018, OPP advised the Society that Mr. H had been charged with two counts of assaulting the mother and one count of assault with a weapon.

b. The Society was concerned about Z’s exposure to domestic violence.

c. Mr. H and the mother were not willing to work on a voluntary basis with the Society.

[8] On April 25, 2018, a temporary and without prejudice order was made placing Z in the care of the mother subject to the supervision of the Society with terms of supervision.

[9] On January 14, 2019, the Society brought a Motion requesting an order to place Z in the temporary care of the father subject to Society supervision. The father resides in Johnstown, Ohio.

[10] The Society brought this Motion as a result of further concerns relating to domestic violence between the mother and Mr. H, which were denied; reports from community collaterals indicating the mother was intoxicated while in a caregiving role, also denied; and the mother’s lack of compliance with the terms of supervision having taken Z to the family home where Mr. H was permitted to be present.

[11] A Temporary Care Hearing was heard on January 21, 2019 as the mother opposed the proposed placement. Following the hearing, the court made a temporary order placing Z in the care of the father subject to the supervision of the Society.

[12] Z has been placed with the father since that time.

[13] The Society brought a Motion for Summary Judgment on March 1, 2019 in reference to the finding in need of protection. It was opposed by the mother. Following argument, Eberhard, J. found Z to be a child in need of protection pursuant to ss. 74(2)(b)(ii) and (h) of the CYFSA. The statutory findings were made at that time. Justice Eberhard also made an order amending the mother’s frequency of access to once every three weekends.

[14] On September 4, 2019, the Society amended its Application to seek a deemed custody order in favour of the father with access to the mother at the discretion of the father.

[15] The mother has had ongoing opportunities for access with Z. Until March 2020, her access consisted of weekend visits in Windsor once every three weeks. The mother’s last in person visit with Z occurred in January 2020. The February 2020 visit was rescheduled to March 2020 at the mother’s request. As a result of the onset of COVID-19, the mother’s March 2020 visit did not occur, and subsequent in-person access was interrupted.

[16] The mother has been having contact with Z virtually.

Decision of Justice Eberhard, dated March 1, 2019

[17] In her Decision relating to the previous Motion for Summary Judgment, Justice Eberhard made the following findings:

a. The mother was ungovernable. Her decision to permit Mr. H and Z to be in the same home together was an incident of such stark bad judgment and demonstrated that the mother cannot be taken at her word.

b. The mother had not followed through on treatment for significant known facial injuries. Such treatment may have shed light on cause.

c. The mother had at times withdrawn consent to the Society acquiring information and declined to reveal her current circumstances.

d. In the context of compelling evidence of domestic violence, the mother’s stated wish to return to Mr. H if the Society were not standing in the way, and the stated concern of the Society reflected in the successive court orders, the mother’s choices not only demonstrated her bad judgment in failing to prioritize protection of Z but also a failure to put her best foot forward as required in response to a Summary Judgment motion.

e. It was impossible to accept the mother’s evidence as credible because she was evasive, secretive and demonstrably untruthful. Due to her use of alcohol and return to her home to expose Z to Mr. H when bound by Family Court conditions not to, the court found no issue requiring trial that Z was a child in need of protection from the repercussions of the mother’s lack of insight and bad judgment.

[18] Justice Eberhard found there were no genuine issues requiring a trial in reference to the finding in need of protection and found Z to be a child in need of protection.

Positions of the Parties

[19] The Society’s position is there is no genuine issue requiring a trial regarding Z’s ongoing placement and the court should summarily make an order placing Z in the deemed custody of the father. The Society submits the mother has taken no steps to address the protection concerns and continues to deny the concerns leading to the Society’s involvement exist; Z cannot be returned to her care as a result.

[20] The mother’s position is the same as it was in March 2019; that is, none of her injuries were as a result of domestic violence. The mother’s evidence in her Affidavit sworn January 7, 2021 is similar to the evidence provided by her to Justice Eberhard.

[21] The mother’s position is, in any event, any concerns have been addressed by her or can be mitigated through terms of a supervision order.

[22] The father agrees with the relief claimed by the Society in regard to custody. When asked about the mother’s ongoing parenting time with Z, the father indicated his position that the existing schedule of a weekend visit once every three weeks with the parents meeting in Windsor for the visit could continue. The father indicated he was willing to continue to facilitate these visits subject to COVID-19 restrictions on travel between the United States and Canada.

Evidence of the Parties

The Society

[23] The Society’s evidence is that the mother has not engaged with the worker or addressed the protection concerns and has not provided details of her plan for Z. Examples of this lack of engagement contained in the Society’s evidence are:

a. On October 21, 2019, the mother indicated to the Society worker she had obtained requisitions from her nurse practitioner for screens and would provide them to the Society in the future. The mother stated she was attending counselling but declined to sign consents for the Society to obtain information but said she would provide a letter; she declined to provide her address and stated she would provide her address when Z was returned to her care.

b. On November 29, 2019 during a meeting with the Society worker and his manager, the Society worker asked the mother about providing alcohol screens, attendance at counselling and providing her address. The mother stated she had provided screens to her lawyer and was going to counselling. She declined to provide her address. When the Society worker suggested the mother provide the screens directly to him, the mother stated her lawyer had sent them to the CAS legal department. The mother stated the CAS could call her service providers.

c. On December 9, 2019, the mother provided the letters from Ms. Pelletier to the Society, the most recent of which was dated September 6, 2019.

d. On December 2, 2019 the Society confirmed the mother had completed eight alcohol screens on Tuesdays and Thursdays between October 15 and November 15, 2019 all returning with negative results. The Society worker requested the nurse practitioner schedule further screens. The mother has provided no screens since then.

e. On January 15, 2020, the mother withdrew her consent for the Society to speak with her nurse practitioner.

f. The mother continued to state to Society workers that she was not a victim of domestic violence and Z had never been exposed to domestic violence.

g. Between March and July 2020, the Society worker had little communication with the mother other than about the scheduling of access or court.

h. Between March and July 2020, the Society worker did not attempt to speak with any service providers. The only consent provided by the mother was for her nurse practitioner which consent had been previously withdrawn by the mother. No other consents were provided.

i. The mother continued to refuse to accept the findings of Dr. Phalen relating to Z’s exposure to violence while in the care of the mother.

[24] The Society’s expectations of the mother to address the protection concerns were in its Plan of Care dated May 9, 2019. Those expectations were:

a. Maintain regular monthly contact with the Society worker.

b. Consent to the release and exchange of information between the Society and any service providers, including medical professionals with whom she may be involved.

c. Not have any police involvement of any kind that would create a safety concern or risk for a child in her care.

d. Ensure Mr. H does not have any access to the child.

e. Attend counselling to address issues of substance abuse, mental health, and domestic violence.

f. Comply with random drug/alcohol screens as requested by the Society.

g. Not consume alcohol 12 hours prior to or during access visits.

h. Ensure the child is not exposed to loud yelling, name-calling, put downs, or physical violence of any kind including, but not limited to, conflict between adults.

i. Maintain suitable and stable housing suitable for the child and no one else shall reside in that home without prior approval of the Society.

j. Immediately notify the Society of any change in address or telephone number, including exact address and telephone number.

[25] The Society is concerned that the mother continues to engage in a relationship with Mr. H. This concern stems from the worker’s evidence that he observed the mother and Mr. H together in the community in August 2020. The mother says, in her submissions to the court and in her evidence that she and Mr. H are no longer in a relationship. She submits even if the worker’s observations are accurate it is not proof of a relationship. The mother does not deny she was with Mr. H in August 2020.

[26] The Society worker also indicates he was advised by an anonymous source in December 2020 that the mother and Mr. H have criminal charges relating to the same incident(s). I ignored this evidence as its source is not identified and would be inadmissible hearsay in any event.

[27] During the period from January 2019 to May 2020, Z’s placement with the father was monitored by Licking County Job and Family Services – Children Services Division on behalf of the Society. The Affidavit evidence provided by Alexis Stimpert, social worker with Licking County, indicates there were no concerns with Z’s placement with his father. A worker from Licking County visited with the father and Z monthly. Ms. Stimpert’s Affidavit outlines her observations and assessment from March 2019 through January 2020. In summary, Ms. Stimpert’s evidence indicates:

a. During all visits, the father’s home was noted to be clean with adequate food and Z was well groomed and dressed appropriately.

b. In March 2019 she noted Z’s speech was unclear, and she had difficulty understanding him.

c. By May 2019, she noted Z’s speech was much improved, and she no longer required the assistance of the father in understanding Z.

d. By August 2019, she was able to clearly understand everything Z was saying.

e. By November 2019, she noted Z had grown socially and was more comfortable around her.

f. Based on the inquiries made as a result of her obligations, Ms. Stimpert had no issues with Z’s progress in school, socially, or that his ongoing needs were met.

g. Ms. Stimpert observed Z going to his father for comfort and initiating affection toward the father.

h. She noted no marks on Z and observed him to be happy and healthy.

i. She had private meetings with Z. He spoke to her about his activities, friends, school and the father. Ms. Stimpert had no concerns.

j. Ms. Stimpert’s assessment was that Z had overall progress regarding his speech, academics, therapy and well-being in the father’s care. She had no concerns with the father’s ability to meet all of Z’s basic and special needs.

[28] The Society was advised by letter from Ms. Stimpert on May 7, 2020 that Licking County would no longer be completing courtesy supervision as it needed to focus its resources on cases to ensure the safety and well-being of children. Licking County had no concerns with respect to Z’s placement with the father.

[29] Since May 2020, the Society worker, Mr. Burk, has been monitoring the placement with virtual visits with the father and Z. In private conversations with Z, he has told the worker he is doing well, having fun and has no fears at the father’s home. The worker observes that Z presents as a busy boy and is only interested in speaking for a few minutes on the call as he is excited to get to whatever is coming next. Mr. Burk also notes a marked improvement in Z’s speech as Mr. Burk had the opportunity to see and speak with Z in 2018 and can comment on Z’s progress.

[30] The father’s home was assessed by Licking County and is appropriate for Z.

The Father

[31] The father’s evidence is that Z is doing well in his care. The father outlines Z’s needs have been addressed as follows:

a. Upon Z being placed in his care, the father enrolled him in preschool to prepare him for Kindergarten. An IEP was developed for Z at the preschool which followed him to Kindergarten.

b. Z received speech therapy at school twice per week while in Kindergarten. Speech therapy has continued in Grade 1.

c. By January 2020 Z was at grade level based on the State of Ohio standardized testing results for reading.

d. Z has regular dental and medical appointments. The father was able to bring Z’s immunizations up to date in 2019. Z is in good health.

e. As of October 2020, Z had only missed one day of school due to illness.

f. Z participates on youth athletic teams, most recently for soccer and flag football. He has friends in the neighbourhood, at school and at church. In 2019 Z participated also in swimming, T-ball, gymnastics and basketball through the changing seasons.

g. Z has started piano lessons.

h. Z started seeing Dr. Phalen for counselling support in June 2019. Originally appointments were weekly; as of October 2020 appointments were occurring every two weeks.

i. Z attends United Methodist Church regularly with the father. Z goes to Sunday School and has made friends.

[32] The father has facilitated Z’s visits with the mother. These visits occur in Windsor which is approximately halfway between the parents’ homes. Based on the evidence filed by the Society and the father, the father has accommodated changes or cancellations in the visit schedule when requested by the mother. The father has assisted the mother during visits with her hotel accommodation so that Z and the mother may have an optimal visit. For example, on one weekend visit, the father paid for the mother’s accommodation. On another weekend, there was no room available for the mother at the same hotel; the father gave the mother his room and he stayed at another hotel so that the mother and Z would have access to the hotel amenities including the pool.

The Mother

[33] The majority of the mother’s Affidavit discusses events and issues that predate the ruling made by Eberhard, J. on March 1, 2019. I am not going to revisit that evidence as Justice Eberhard has already made findings on that evidence.

[34] The mother’s evidence is she provided eight consecutive alcohol screens from October 15 to November 15, 2019 all of which were negative. This is not in dispute.

[35] The mother also indicates she has undergone “significant counselling” to address personal relationship issues.

[36] The mother was seeing a counsellor through Catholic Family Services, Ms. Pelletier. Two letters, both dated September 19, 2020 were provided by the mother from the counsellor (both at Exhibit “D” to the mother’s Affidavit sworn January 7, 2021). The Society also provided these letters attached as exhibits to one of its Affidavits. The tone of the letters is that of advocacy as opposed to information from a service provider with respect to the nature of services being provided and progress. Ms. Pelletier notes in her first letter, dated September 6, 2019 that the mother articulated to her there are no issues with domestic violence. There is no information about ongoing service being provided to the mother. There is no information whether the findings made by Justice Eberhard were shared with Ms. Pelletier.

[37] Other than those two letters and the eight screens, there is no other information provided by the mother regarding services to address the protection concerns. The mother’s position continues to be the concerns are not valid and, therefore, no services are required, and Z should be immediately returned to her care.

[38] The mother’s plan, according to her Affidavit, is that she has accommodation available to her if Z is returned to her care. She plans for Z to attend Little House Montessori School in Collingwood. Once Z is to be returned to her care, she will advise the Society of the address of her accommodation. This is the extent of the details provided with respect to the mother’s plan. She has not delivered an Answer and Plan of Care.

[39] The mother takes issue with the fact she has not had in person visits with Z since January 2020. She had a visit scheduled in March 2020 which could not occur. The mother indicates the father has been unreasonable in not bringing Z to Windsor since the onset of COVID suggesting visits are considered “essential”.

[40] The mother states in her affidavit, but for COVID, Z would have been returned to her care.

[41] The mother also argues the Society has not discharged its obligation to provide individual services and support to her to address the concerns of domestic violence. The mother submits the Society has not assessed her current situation nor conducted home visits. On this point, the mother relies on Children’s Aid Society of Brant v. S.G., 2018 ONCJ 958 where Baker, J. indicated it was difficult to draw an adverse inference from the parents’ lack of attendance at programming when they had not received any clear or personal help or direction in that regard from the Society.

Dr. Phalen’s reports

[42] The Society also relies on the reports completed by Dr. Phalen, a psychologist who has been assisting Z. Dr. Phalen’s Report, dated August 22, 2019 is attached as Exhibit “A” to the Affidavit of Steve Burk, sworn March 3, 2020. Dr. Phalen’s second report dated December 16, 2019 and her curriculum vitae are attached as Exhibits “B” and “C” respectively to Mr. Burk’s March 3^rd Affidavit.

[43] Dr. Phalen indicates in her August 22^nd report that the father sought psychological treatment for Z because the father was concerned about the impact of the many changes in Z’s life. Dr. Phalen conducted a psychological evaluation of Z and provided the following opinion:

a. Z is an extremely traumatized boy. He perceives the world as a dangerous, violent and uncertain place.

b. In diagnostic play, Z played out scenes of violence between a baby, a mother and a dad. There was considerable aggression between Z and these adults with Z identifying as the bad baby. He sees himself both a victim and an aggressor.

c. Z has ambivalent feelings of love, anger and loss regarding his mother.

d. Z sees his mother as happy to have a son who she takes swimming and to the park, he also perceives her viewing him as a bad boy and them interacting with anger and aggression towards each other.

e. Z also views the other dad as angry and aggressive and responds with feeling of aggression and rage.

f. Z perceives the father as a source of comfort and security.

g. Z is preoccupied with concerns of violence and his safety.

[44] Dr. Phalen provides a diagnosis of Post Traumatic Stress Disorder – Severe and recommended intensive psychotherapy.

[45] Appointments for Z with Dr. Phalen continued as a result.

[46] The mother disputes the validity of Dr. Phalen’s opinion based on concerns raised by Ms. Pelletier. Ms. Pelletier, in her second letter dated September 19, 2019, raised as an issue that the mother’s voice and perhaps that of Z were not represented and that “all positions need to be heard”. The list of questions raised by Ms. Pelletier all mention the mother being a part of the assessment and providing history to Dr. Phalen.

[47] The mother’s position is that I should give no weight to Dr. Phalen’s reports as a result.

[48] The mother has stated to the Society worker more than once that she feels Z’s PTSD is as a result of his removal from her care. The mother’s evidence is therefore confusing; on one hand, she disputes the process by which Dr. Phalen made her diagnosis; on the other she seems to accept that Z has PTSD but says its cause is something other than indicated by Dr. Phalen.

[49] The Society’s evidence is that the mother’s concerns were relayed to Dr. Phalen. Dr. Phalen’s response is contained in Mr. Burk’s Affidavit sworn January 7, 2020 as a result of a conversation between the two of them. Dr. Phalen’s response is that her opinion would not change as her findings are based on the interactions and interviews with the child and not the historical information gathered from the parent(s). This, of course, is hearsay evidence.

Admissibility of Dr. Phalen’s reports

[50] I must consider the weight to be provided to Dr. Phalen’s reports. The reports are attached as exhibits to the Society worker’s Affidavit. Counsel for the mother did not object to their use at the Motion, but rather raised an objection with respect to what I will term “methodology” in completion of the report. As a result, counsel suggested it should be given no weight. Those concerns were addressed by Dr. Phalen in conversation with the Society worker. Her responses are included in Mr. Burk’s Affidavit sworn January 6, 2020.

[51] Dr. Phalen’s report, dated August 22, 2019 indicates Z suffers from PTSD as a result of his exposure to domestic violence in the mother’s home between the mother and Mr. H. Dr. Phalen’s report dated December 16, 2019 supplements her first report and expands on the diagnostic techniques used.

[52] I am cognizant of the court’s gate keeping function at motions for summary judgment in reference to evidence.

[53] 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 (Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 80 (#3)). In coming to this conclusion, the Court of Appeal adopted the reasoning of Sherr, J. in Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 646, at para. 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 determination.

[54] I must consider whether Dr. Phalen’s reports are properly before the court and admissible for the purposes of this motion. I must undertake this process and exercise the court’s gatekeeping function even if the issue is not raised by counsel during the motion.

[55] Rule 20.2 of the Family Law Rules addresses the use of expert reports. Rule 20.2(1) distinguishes between three types of experts and defines them as follows:

a. Litigation expert means a person engaged for the purposes of litigation to provide expert opinion evidence.

b. Joint litigation expert means a litigation expert engaged to provide expert opinion evidence for two or more parties.

c. Participant expert means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

[56] Rule 20.2 treats the reports provided by litigation experts and participant experts for use at trial differently. In reference to participant experts, r. 20.2(14) provides as follows:

PARTICIPANT EXPERT

A party who wishes to call a participant expert as a witness at trial shall,

(a) at least six days before the settlement conference,

(i) serve notice of the fact on all other parties, and

(ii) if the party wishes to submit any written opinion prepared by the expert as evidence in the trial, serve the written opinion on all other parties and file it; and

(b) serve on any other party, at that party’s request, a copy of any documents supporting the opinion evidence the participant expert plans to provide.

[57] There is no requirement pursuant to r. 20.2(14) that the participant expert provide an affidavit setting out their opinion or an affidavit attaching the report as an exhibit.

[58] Rule 20.2(15) contemplates use of expert opinion evidence on motions, including a motion for summary judgment. It states:

APPLICATION TO MOTIONS FOR TEMPORARY ORDERS OR FOR SUMMARY JUDGMENT

Unless the court orders otherwise, this rule applies, with the following modifications, to the use of expert opinion evidence on a motion for a temporary order under rule 14 or a motion for summary judgment under rule 16:

1. Expert witness reports and any supplementary reports shall be served and filed as evidence on the motion in accordance with the requirements of subrules 14(11), (11.3), (13) and (20), as applicable.

2. Any other necessary modifications

[59] There is nothing in r. 20.2(15) that indicates the evidence must be sworn.

[60] In reference to evidence on a motion for summary judgment, r. 16(4) states, “[t]he 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”. Rule 16(4.1) sets out the responding party must similarly provide “affidavit or other evidence”. Rule 16(4) contemplates the use of “other evidence” which would include the evidence contemplated by r. 20.2(15) in my view.

[61] Dr. Phalen is a psychologist practicing in the area of clinical private practice, diagnosis and assessment, individual psychotherapy with children and adults, learning, emotional and behavioral disorders, developmental disabilities, play therapy, and parent counseling (Exhibit “C”, Affidavit of S. Burk, sworn March 3, 2020).

[62] Dr. Phalen’s reports deal with evaluation, diagnosis and treatment recommendations for Z.

[63] In Sanzone v. Schechter, 2016 ONCA 566, the Court of Appeal dealt with the use of an expert report on a motion for summary judgment in civil proceedings. The court found that the evidence of the expert in that case must comply with r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, unless the opinion evidence is based on the witness’ observation of or participation in the events in issue. In Sanzone, the expert evidence for use on the motion needed to comply with r. 53.03 and be in the form of an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached because the expert was a litigation expert as opposed to a participant expert.

[64] Use of expert reports on motions in family proceedings was considered in LaRoche v. Lynn, 2019 ONSC 6602 and J.K.L.D. v W.J.A., 2020 ONCJ 335.

[65] In reviewing Sanzone and the differing requirements of litigation and participant experts, Ellies, R.S.J. noted in LaRoche at para. 35,

The Court of Appeal in Sanzone also referred to its decision in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721 (Ont. C.A.), in which the court differentiated between “litigation” experts and “participation” experts. The former are retained for the purpose of providing an opinion in the litigation. The latter are witnesses who play a role in the unfolding of the relevant facts in the litigation. Participant experts are permitted to give opinion evidence based on their observation of or participation in the events at issue. The Court of Appeal in Westerhof held that the evidence of participation experts need not comply with r. 53.03. In Sanzone, the Court of Appeal held that the dentist was a litigation expert, not a participation expert, and that his report failed to comply with r. 53.03(2.1) in several respects (at para. 17). I believe that this is the reason the Court of Appeal agreed with the motion judge. At para. 17, the court held:

In the present case, Dr. Shafer was not a participant expert, and his letter of July 27, 2014 did not meet the requirements of rule 53.03: it lacked a proper statement of his qualifications; it did not set forth the reasons for his opinion in the depth required by rule 53.03(2.1)(6); nor was it accompanied by an acknowledgement of expert’s duty.

[66] Justice Ellies also noted, at para. 33,

It seems illogical that a party would be required to obtain an affidavit in a paper-based proceeding such as a summary judgment motion, when a simple letter will suffice in a trial.

[67] In J.K.L.D., Finlayson, J. provides a most helpful review on the admissibility of expert opinion evidence on an interim motion. In J.K.L.D. a party attached as an exhibit to an Affidavit a report of their family doctor who was providing follow up and evaluation regarding mental health. In allowing this evidence, Finlayson, J. found the doctor’s reports to be practitioner’s reports and stated, at paras. 74-76:

Pursuant to section 52 of the Evidence Act, a report obtained by or prepared for a party to an action and signed by a practitioner are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action. In the family law context, rule 20.2(15) of the Family Law Rules now governs their use on a motion, too, but with necessary modifications.

As an exception to the hearsay rule, a practitioner’s report would be able to be admitted at a trial without the need to call the practitioner to testify, let alone at an interim motion. See Girao v. Cunningham ¶ 45. I agree with Ellies R.S.J. where he said, at ¶ 33 of LaRoche v. Lynn, Ellies R.S.J., that “[i]t seems illogical that a party would be required to obtain an affidavit in a paper-based proceeding such as a summary judgment motion, when a simple letter will suffice in a trial.”

I find that Ellies R.S.J.’s comments apply equally regarding an interim motion.

[68] Justice Finlayson held that on an interim family motion the evidence of a litigation expert would need to be sworn however the evidence of a participant expert would not. He specifically noted that there may be different considerations when considering such evidence on a Motion for Summary Judgment.

[69] In this case Dr. Phalen, a psychologist, is a practitioner as defined by the Ontario Evidence Act, R.S.O. 1990, c. E.23. I have no information about whether notice has been provided by the Society pursuant to s. 52 of the Evidence Act. However, the reports were served with the Society’s materials in support of this Motion in January, 2020; the motion was heard in February 2021 (it was originally to be heard in the spring of 2020 but was delayed due to COVID-19). It was clear the Society intended to rely on Dr. Phalen’s reports as evidence on this motion.

[70] I must also consider whether Dr. Phalen is a litigation expert or participant expert. Dr. Phalen was engaged for Z by the father to provide support for Z as a result of the many changes he had experienced. Her reports deal with evaluation, diagnosis and recommendations for Z.

[71] In Westerhof, the Court of Appeal, at para. 70, characterized a participant expert as follows:

Put another way, Dr. Tithecott, a treating physician, was permitted to testify about opinions that arose directly from his treatment of his patient, the plaintiff in the case. He was not required to comply with rule 53.03, and his opinion evidence was admitted for the truth of its contents. This was because he formed his opinions relevant to the matters at issue while participating in the events and as part of the ordinary exercise of his expertise. Accordingly, rather than being a stranger to the underlying events who gave an opinion based on a review of documents or statements from others concerning what had taken place, Dr. Tithecott formed his opinion based on direct knowledge of the underlying facts. He was therefore a "fact witness", or, as I have referred to such witnesses in these reasons, a "participant expert".

[72] Dr. Phalen’s opinion arises directly from the treatment of her patient, Z. She formed her opinions relevant to the matters at issue while participating in the events and as part of the ordinary exercise of her expertise. As a result, I find Dr. Phalen to be a participant expert.

[73] Rule 20.2(15) contemplates use of expert opinion evidence on a motion for summary judgment. There is no requirement that the evidence of a participant expert be sworn.

[74] Dr. Phalen’s reports, in unsworn form, would be admissible at trial. Accordingly, I find they are admissible on this motion for summary judgment.

The Law – Summary Judgment

[75] The burden of proof is on the party moving for summary judgment. Pursuant to r. 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[76] Pursuant to r. 16(4.1) the responding party 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. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence that they would be able to adduce at trial. See: Children’s Aid Society of Toronto v. K.T., 2000 CanLII 20578 (ON CJ), 2000 O.J. No. 4736; Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

[77] 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. See: Kawartha, at para. 80(#2).

[78] 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. 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 only exercised at trial:

1. Weighing the evidence

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[79] There 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. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v. Mauldin, 2014 SCC 7, at para. 49). As the Supreme Court stated, at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Kawartha, at para. 63).

[80] As applied to child protection proceedings, a fair and just determination on the merits 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 (Kawartha, at para. 76).

[81] 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 (Kawartha, at para. 80(#1) and para. 64).

[82] 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 is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant” (Kawartha, at para. 72).

The Law - Disposition

[83] The CYFSA is a complete code in reference to child protection proceedings. Section 101(1) provides, where a child has been found to be in need of protection, the court shall make one of the orders provided in s. 101(1) or an order under s. 102, in the child’s best interests.

[84] Section 102 provides if a court finds that an order under s. 102 instead of an order under s. 101(1) would be in the child’s best interests, the court may make an order granting custody of the child to one or more persons, with the consent of the person(s).

[85] Whether or not an order is sought under s. 101(1) or s. 102, the court must also consider the requirements of ss. 101(2)-(9).

[86] Pursuant to s. 100, prior to making an order under s. 101 or s. 102, the court must obtain and consider a plan for the child’s care prepared in writing by the Society.

[87] Section 74(3) sets out the factors the court shall consider with respect to the best interests of the child.

[88] Section 93 permits the court, despite anything in the Evidence Act, to 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 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.

Analysis

[89] I have considered that I should exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.

[90] Often, motions for summary judgment brought by a children’s aid society request an order for extended society care, thus permanently severing the parent child relationship. In this case the Society seeks a deemed custody order in favour of the father with access to the mother. Kawartha does not distinguish in the approach to be taken based on the relief sought on the motion for summary judgment. I must be cautious in granting summary judgment no matter what relief is requested.

[91] I find it is in the interest of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate the dispute.

[92] I find I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility.

[93] I find the evidentiary record is sufficiently comprehensive for me to make a fair and just determination on the issue of disposition without the need for a trial. Cross-examination of witnesses would add little, if any, value to the court’s analysis.

[94] I find the Society has established, on a balance of probabilities, a prima facie case for summary judgment with respect to the ongoing placement for Z, and that the mother has not met her onus of establishing there is a genuine issue requiring a trial on this issue.

[95] I find if this matter proceeded to trial there is “no realistic possibility of an outcome other than that sought by the applicant”.

[96] I reach these conclusions for the reasons that follow.

[97] The mother’s position with respect to the Society’s concerns has not changed throughout the course of these proceedings. She denies there is any risk to Z as a result of domestic violence in her relationship with Mr. H or as a result of her alcohol consumption. She has maintained her position despite Eberhard, J.’s findings in March 2019. This is demonstrated through her repetition of the evidence she presented in the March 2019 motion on this motion. The mother has not accepted the previous findings of the court and maintains there are no concerns. In my view this demonstrates a serious lack of insight by the mother into the concerns not only of the Society but of the court. This lack of insight results in the court having no confidence that the mother will make the choices necessary to ensure Z’s ongoing well-being and safety.

[98] The mother and Mr. H have been observed together in the community by the Society worker. In her Affidavit the mother states she is no longer in a relationship nor is she cohabiting with Mr. H. She does not indicate the last time she saw Mr. H.

[99] While the mother says she is no longer in a relationship with Mr. H she had, at least, social contact with him and sees no concerns with that contact. This contact has occurred in the past despite a court order, as noted by Eberhard, J. in her March 2019 Decision. As the mother does not accept there are any concerns relating to her relationship with Mr. H, the court does not have confidence that she would not engage with Mr. H if Z was in her care.

[100] There is also no reason to believe that Z would not be exposed to other relationships potentially characterized by domestic violence given the mother neither accepts nor recognizes what occurred during her relationship with Mr. H and has not accessed services to ameliorate those concerns.

[101] The mother has declined to provide the Society with her address. As a result, the society worker has been unable to conduct any home visits, either announced or unannounced, to satisfy the Society that the mother is not having contact with Mr. H. The Society has also been unable to assess the mother’s accommodation and proposed living arrangements for Z as a result.

[102] I agree with the Society’s position that the mother has not accessed services to address the concerns. The only service the mother has accessed in reference to the concerns relating to domestic violence is with Ms. Pelletier. The information from Ms. Pelletier does not satisfy the court there has been any work completed in reference to domestic violence. I find it is the opposite. The letter received from Ms. Pelletier is clear when she states, referring to the mother,

She has never reported to me that she has been a victim of violence nor does she exhibit behaviours that indicate she has been in a relationship that was violent towards her. We have addressed her relationship in the past and she was directly asked about an injury and she stated it was due to a ball hitting her in the face. She is open and honest with me with respect to what is going on in her life and I have asked her directly is she was in a violent relationship and she said no.

I am always glad to see her and she knows she can come here and be believed and supported.

[103] It is clear the work and assessment Ms. Pelletier has done with the mother is based on information being reported to her by the mother. Ms. Pelletier’s report is less reliable as a result. There is no information to suggest the mother has shared with Ms. Pelletier Justice Eberhard’s Decision nor has Ms. Pelletier reviewed any information other than what has been stated to her by the mother.

[104] Ms. Pelletier states in her letter that the mother “is clearly a caring parent who is aware of her son Z and what he needs.” There is no information that Ms. Pelletier has observed parent/child interaction or received information about Z other than from the mother. As a result, her report in this regard also is not reliable.

[105] I do not find the letters from Ms. Pelletier support the mother’s position that she has undergone significant counselling to address personal relationship issues. Ms. Pelletier does not indicate the frequency of appointments. Based on the evidence available to the court, the last appointment appears to have been on September 6, 2019; there is no information when the appointment prior to September 6^th occurred. Ms. Pelletier’s information is that the mother’s issues for which she sought support related to her stress/hostility/relationship with the Society. Nowhere does Ms. Pelletier indicate that the mother has received significant counselling to address personal relationship issues.

[106] I do not accept the mother’s argument that the Society has not discharged its obligation to provide services to her to address the protection concerns. The Society’s evidence demonstrates the Society had various meetings with the mother to discuss the Society’s expectations in order to address the protection concerns. The mother maintained her position throughout that the protection concerns were not valid. The Society was clear in its expectation that the mother engage in counselling to address the issue of domestic violence. The mother cannot now rely on a position that the Society has not provided individualized and specialized services to her to address the protection concerns when she will not agree those concerns exist.

[107] The mother has been aware of the Society’s expectations of her to address the protection concerns since May 24, 2019 when she was served with the Society’s Plan of Care. I find she has taken minimal steps to address these expectations. While she provided eight clear drug screens, when the Society worker requested the nurse practitioner schedule further screens on different days, the mother withdrew her consent for the sharing of information. No screens have been provided since November 2019. She has not accessed counselling to address the concerns. No counselling appointments have occurred since September 2019.

[108] The Society’s concerns include not only domestic violence but the mother’s inability to understand or appreciate the impact of domestic violence on Z. I find those concerns to be valid; nowhere in the mother’s Affidavit does she provide information that demonstrates knowledge or insight into the potential effects of domestic violence on Z. She continues to deny the concerns.

[109] Dr. Phalen’s reports indicate that Z has been exposed to violence while in his mother’s care. This aggression included his mother and Mr. H (it is not disputed that Z referred to Mr. H as his dad). This evidence confirms the Society’s protection concerns relating to domestic violence and previous findings of domestic violence made by the court.

[110] The impact on Z has been substantial according to Dr. Phalen. Z suffers from PTSD as a result of his experiences while in the care of the mother.

[111] If Z does suffer from PTSD as a result of experiencing domestic violence in the mother’s home, his experience directly contradicts the mother’s position that the Society’s concerns are unfounded. If I accept Z’s diagnosis, which I do, the mother’s continued denial and lack of services to address these concerns continue to place Z at risk in the mother’s care.

[112] Dr. Phalen’s responses to the issues raised by the mother about her report are not contained in a further or supplemental report from Dr. Phalen. Nor are they included in an Affidavit sworn by Dr. Phalen. Dr. Phalen’s responses are provided to the court through Mr. Burk, the Society worker and are hearsay evidence. This evidence would not be admissible at trial; it is not admissible on this motion. Dr. Phalen does, however, address those concerns indirectly in her report dated December 16, 2019 where she states, “given the combination of the findings of my diagnostic assessments over a period of multiple sessions with Z, it was concluded that he met the diagnostic criteria for Posttraumatic Stress Disorder-Severe.”

[113] Dr. Phalen was not engaged to provide an assessment of parenting capacity or an opinion as to with which parent Z should reside. As a result, I do not find the concerns raised by Ms. Pelletier regarding Dr. Phalen’s reports to be compelling.

[114] If I am wrong in finding Dr. Phalen’s reports admissible and relying upon them as a result, I am satisfied based on the remaining evidence that there is no genuine issue requiring a trial in reference to Z’s ongoing placement.

[115] The only evidence the court has regarding the mother’s plan for Z is in her Affidavit filed for this motion; she has not filed an Answer and Plan of Care. The mother has provided minimal information to the Society and the court regarding her plan for Z. The mother has declined to advise where she is living or where she will live if Z is returned to her care. The court cannot support a plan with such minimal information that makes it impossible to assess.

[116] The mother says any concerns may be mitigated through terms of a supervision order with Z being placed in her care. I disagree. Justice Eberhard found the mother to be ungovernable. The mother did not comply with the terms of the initial temporary supervision order which lead to the court removing Z from her care and placing him in the care of the father pursuant to a temporary order. The mother revoked consent for the Society to obtain information from a service provider. The mother has declined to provide her address to the Society. I have no confidence that the mother would comply with terms of a supervision order in the future.

[117] Z is doing well in the father’s care. There are no concerns with this placement. The father has addressed Z’s ongoing needs academically, socially, emotionally, developmentally and physically. The evidence available indicates Z is doing well in school, has friends, has made gains in his speech and has benefitted from ongoing therapeutic intervention. The evidence available to the court demonstrates the father is meeting Z’s needs. Z’s communication/language skills have improved markedly since his placement with the father based on the evidence of both the Ohio worker and the Society worker. The father also promotes Z’s contact and his relationship with the mother. None of this evidence is in dispute and I accept it.

[118] Licking County has monitored Z’s placement with the father. Its social worker has identified no parenting concerns in reference to the father. The social worker has provided evidence that Z has progressed and thrived in the father’s care. That evidence is not disputed and I accept it.

[119] Similarly, the Society has monitored Z’s placement and the Society worker has identified no concerns. Again, this evidence is not disputed and I accept it.

[120] I do not accept the mother’s argument that the father has been unreasonable in not organizing in person access between Z and the mother since March 2020. There are quarantine requirements in place for cross-border travel between the United States and Canada. Those requirements involve a two-week quarantine when crossing the border in each direction. Submitting Z to such requirements for a weekend visit with the mother in Windsor is not reasonable and would substantially interfere with his routine.

[121] I have considered Z’s best interests as set out in s. 74(3) of the CYFSA. The Society and the father have provided evidence with respect to the factors relevant to Z relating to the Society’s request to place Z with the father. The mother’s evidence provides no information about how Z’s best interests would be addressed in her care. I find it to be in Z’s best interests to be placed in the care of the father.

[122] I am also satisfied, based on the evidence, that it is in Z’s best interests to have visits with the mother. I accept the father’s suggestion that the location and frequency of visits continue subject to COVID-19 restrictions.

[123] I am satisfied, based on the evidence, that the Society has discharged its obligations with respect to the relevant requirements of s. 101.

[124] There is no need for the Society to monitor Z’s placement with the father through a supervision order. There are no protection concerns to be addressed in the father’s care. I find it appropriate to make an order pursuant to s. 102 as requested by the Society, which request is supported and consented to by the father.

[125] The Society has provided a Plan of Care which meets the requirements of s. 100.

[126] At the time this motion was argued, the Moving Ontario Family Law Forward Act, 2020, S.O. 2020, c. 25 had not yet been proclaimed but is now in force at the time of this decision. It has amended the Children’s Law Reform Act, R.S.O 1990, c. C.12 (the “CLRA”) and changed the language used in orders relating to custody and access. The CYFSA has also been amended to align with the new language used in the CLRA.

[127] There has been no change to the underlying provisions of the CYFSA required to make an order pursuant to s. 102.

[128] Section 102 now reads in part:

Custody order

102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

Deemed to be order under s. 28 Children’s Law Reform Act

(2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be a parenting order or contact order, as the case may be, made under section 28 of the Children’s Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any direction that it may give under section 34 of that Act.

[129] The Moving Ontario Family Law Forward Act, 2020 does not address whether the amendments should be applied to cases which were started prior to March 1, 2021 but determined subsequent. In L.B. v. P.E., 2021 ONCJ 114, Sherr, J. canvassed these issues. Justice Sherr made note of the transition provision at s. 76 of the Moving Ontario Family Law Forward Act, 2020 but stated that s. 76 does not address whether the amendments should be applied to cases started but not determined before March 1, 2021. Nor has Ontario passed a regulation providing clarification about whether the amendments should apply to a case started but not finally disposed of on or after March 1, 2021. Justice Sherr decided to apply the approach set out in the amendments. He states, at para. 43:

Section 76 of the amendments provides that starting on March 1, 2021, existing custody orders are deemed to be decision-making responsibility orders and that existing access is deemed to be either parenting time or contact. If this decision were to be written using the language of the Act before the amendments came into force, they would be deemed by section 76 to be the kind of orders authorized under the amendments. It makes sense then to use the new language in this judgment, as the orders will be deemed to be renamed this way anyways.

[130] I agree with and adopt Justice Sherr’s approach to this issue.

[131] I did not hear submissions from counsel on this technical legal issue. In the circumstances I do not need to.

[132] In my view, it is reasonable to incorporate the amended language into this order so there is consistency going forward. In the event there is a request to change this order in the future, it will occur pursuant to the Children’s Law Reform Act. It is appropriate to use the language now required under the Children’s Law Reform Act.

[133] For these reasons there shall be a final order as follows:

a. JZB, born […], 2014, shall be placed in the care and custody of his father, J.B. pursuant to s. 102 of the Child, Youth and Family Services Act.

b. J.B. shall have decision making responsibility with respect to the child, JZB.

c. A.H. shall have parenting time with the child once per month, on a weekend, in Windsor, Ontario at a hotel as agreed between the parents. In the event the parents cannot agree, J.B. shall make the final decision.

d. No other person shall attend during A.H.’s parenting time unless agreed upon, in advance, by the parents.

e. A.H.’s in-person parenting time is subject to the United States/Canada border being open to travel without the requirement of quarantine.

f. In the event A.H. is unable to have in person parenting time due to COVID-19 restrictions, she shall have virtual parenting time with the child as arranged with J.B. to occur at least once per week at a time and for a duration as agreed between the parents. If the parents are unable to agree, J.B. shall make the final decision.

g. A.H. shall not discuss adult issues with the child including his placement and the outcome of these proceedings.

[134] None of the parties requested costs of this Motion. There shall be no order as to costs.

Krause J.

Date: April 20, 2021

April 20, 2021 Correction

1. Paragraph 133 (b) shall include the initials J.B. at the beginning of the paragraph.