WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: FC-20-CP5
DATE: 20210913
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA)
AND IN THE MATTER OF M.G., D.O.B. […], 2020
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
K.D. and S.G.
Respondents
Brian Fisher, for the Applicant
Dominique Smith, for the Respondents
HEARD: July 28, 2021
REASONS FOR decision
Audet J.
[1] The Ottawa Children’s Aid Society brings this motion for summary judgement in which it seeks a finding that the child is in need of protection, and a final order that she be placed in extended society care for the purpose of adoption, with access to the parents.
[2] The Respondent parents dispute the motion, and take the position that there are genuine issues requiring a trial in this case, on both the finding that the child is in need of protection, and the disposition that is in this child’s best interests.
Background
[3] The Respondents, K.D. (“the mother”) and S.G. (“the father”), are the biological parents of the child, M.G. who was born on […], 2020 (“the child”). The parents also have another child, K.G., who is five years old. K.G. was removed from his parents’ care in November 2016 by the Director of Youth Protection (“DYP”) in Gatineau, Quebec. In March 2018, the Court of Quebec ordered that K.G. be placed in what is the equivalent to Ontario’s extended society care for the purposes of adoption.
[4] The child at the heart of the current child protection proceeding was removed from her parents’ care at birth. She has remained in foster care since that date; and by virtue of various orders made by the court over the course of this proceeding, she has had ongoing access with her parents. The protection concerns raised by the Society are the parents’ lengthy history of alcohol addiction, domestic violence, and limited parenting capacity.
[5] This matter was the subject of a lengthy decision rendered by Somji J. in April 2021, in the context of a temporary care and custody motion brought by the parents and in which they sought the return of their child to their care. I adopt as mine her detailed account of the background which led the Society to become involved with this family, as well as of the procedural history of this case, which is found at paras. 11 to 28 of her decision. see CAS v. S.G., 2021 ONSC 3177.
[6] To support her conclusion that the child would likely be at risk of harm if returned to the care of her parents at that time, Somji J. carefully reviewed the voluminous affidavit evidence before her and provided a detailed account of the facts. For the purpose of this motion before me, the Society and the parents have both added a number of updating affidavits. I will touch more on this later on in this decision.
[7] Based on that evidentiary record, Somji J. concluded that the child was at risk of harm if returned to her parents’ care at that time. She found that the risk of harm resulted from the parents’ long history of alcohol abuse, domestic violence and adult conflict between them, and the limited parenting capacity of both parents. On the issue of whether the child could be adequately protected by a supervision order if returned to the care of her parents, Somji J. concluded:
108 I agree with the Society. I do not find that the child can be protected by way of a supervision order for several reasons. First and foremost, the parents do not acknowledge their alcohol addiction issues and there is evidence as discussed above that they continue to drink. Given their long-standing alcohol addiction, I am not satisfied that they are able to abstain from consumption of alcohol to properly care for the child simply because such a term is imposed by this Court.
109 Second, while the parents have made considerable progress in their parenting capacity during the access visits, I am not satisfied based on the materials filed, and the observations of the Society Workers over the course of the last 14 months, that the parents are presently fit to care for this infant even under a supervision order.
110 Third, the affidavits of the Society Workers indicate the challenges they have had with communicating and dealing with both parents for different reasons. The mother is not communicative, and the father has often been disrespectful and easily angered. I am not confident that the parents would be amenable to direction and supervision by the Society. In fact, the Society reports the parents have recently stopped meeting with their assigned Society Worker altogether.
111 Fourth, the parents have no support network and have not presented a plan of care that ensures the child could be adequately cared for. They have neither confirmed their residence nor arranged for the Society Workers to attend their latest home to ensure it is a safe and appropriate environment for the child.
112 Finally, the parents were on previous court orders issued by several judges in Quebec during child protection proceedings involving their previous child and did not follow through with the recommendations made in those court orders. The mother and father were to follow-up and apply the recommendations of professionals on issues of anger management, domestic violence, alcohol addiction, and parenting skills. They have not filed any evidence to demonstrate that they followed through on any of these recommendations that were court ordered for the specific purpose of addressing child protection concerns.
113 Similarly, the parents were provided with the Society’s Plan of Care in January 2020 after the child was born and apprehended outlining the Society’s expectations of them going forward. The Society reports that they have not followed through significantly on those conditions either.
114 For all these reasons, I am not satisfied that the child could be adequately protected against the current risk of harm by imposing a supervision order with terms and conditions.
Legal Framework
[8] The court has jurisdiction to deal with a child protection matter by way of summary judgment. The test enunciated is found at Rule 16 of the Family Law Rules, O. Reg. 114/99 and requires the moving party to demonstrate by way of affidavits or other evidence that there is no genuine issue requiring a trial.
[9] The general principles applicable to summary judgment motions are well established by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. There is no genuine issue requiring trial when the judge can reach a fair and just determination on the merits on a motion for summary judgment. In Hryniak, the court provided the following roadmap for judges to follow to determine whether summary judgment ought to be granted:
66 On a motion for summary judgment under rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable, and proportionate procedure, under rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.
67 Inquiring first as to whether the use of the powers under rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution. As well, by first determining the consequences of using the new powers, the benefit of their use is clearer. This will assist in determining whether it is in the interest of justice that they be exercised only at trial.
68 While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate. There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense. In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above.
[10] The Court of Appeal has held that the summary judgment test applied in child protection cases is, at its core, the same as in other cases (see L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 52). However, the test must be applied with an eye to the specific context and to the particularly high stakes and Charter rights of parents and children in child protection proceedings (see L.M., at para. 52 and New Brunswick (Minister of Health & Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.), at para. 76). The Court of Appeal has maintained a consistent approach, both before and after the Hryniak decision, that summary judgment in child protection cases remains highly cautionary.
[11] However, such caution does not prevent summary judgment from being appropriate in certain child protection proceedings, provided that summary judgment can “ensure a fair and just determination in a prompt and proportionate manner” (L.M., at para. 51).
[12] The proper approach to summary judgment in child protection proceedings was usefully summarized by the Court of Appeal for Ontario in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32, at para. 80, as follows:
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.
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.
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.
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.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
Analysis
Finding that the child is in need of protection
[13] Based on the evidence before me, I find that M. G. is a child in need of protection pursuant to s. 74(2)(b)(i) and (ii) of the CYFSA and that she is at risk of physical harm if she is returned to her parents’ care. I find that I am able to reach this conclusion based on the evidence before me without the need for a trial, and without the need to use the new fact-finding powers set out in Rule 16. The evidence before me overwhelmingly supports a finding that the child is in need of protection in light of the parents’ long-standing alcohol abuse, history of domestic violence and of adult conflict. The evidence presented by the parents in response to the Society’s motion does not alter my conclusion in this regard at all.
[14] In particular, the evidence before me unquestionably supports a finding that the parents have a serious and long-standing issue with alcohol addiction, and a significant history of police involvement in relation to domestic violence and adult conflict, most often than not resulting from one of them (or both) being intoxicated. Based on my own review of the Society’s evidence, which is summarized at length in Somji J.’s decision at paras. 48 to 81, the parents’ state of intoxication and incidents of domestic violence have led to significant police involvement since the parents relocated to Outaouais Region on or about 2015. The parents’ long-standing and on-going alcohol abuse has also been reported to the Society by medical professionals involved with this family, and the parents themselves have admitted as much to several professionals who have been involved in their care over the years.
[15] Given my conclusions above, it is not necessary to determine if the child is also in need of protection based on the parents’ alleged limited parenting capacity.
Disposition
[16] Pursuant to s. 101(1) of the CYFSA, where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, as I do, it must then decide which disposition is in the best interests of the child which is the least disruptive; a custody order, a supervision order, an interim society care order or an extended society care order.
[17] It is impossible for me to ascertain with any degree of certainty, based on the massive amount of evidence filed by the parties for the purpose of this motion, which order would be in the best interests of this child.
[18] The evidence presented by the Society for the purpose of this summary judgment completely defeats the very purpose of a summary judgment motion, which is to dispose of cases in which the outcome is obvious based on a written record.
[19] In support of its motion, the Society filed a total of 21 affidavits, from 8 different workers. Most of them filed several affidavits, every one of them an update of the one that came before, in the context of a different court hearing. Each affidavit is a detailed account of every event, every encounter, and every contact each Society worker has ever had with the parents or with anyone involved with them or the child.
[20] More specifically, the following evidence was provided by the Society in support of its motion:
five affidavits from Jen Campbell (one in reply), dated December 23, 2020, February 1, July 8, July 19 and August 11, 2021 (I was actually unable to find the February 1, 2021 affidavit in the file), totalling 39 pages plus 45 pages of exhibits.
four affidavits from Manon Jacques (one in reply), dated December 23, 2020, February 1, July 8 and August 10, 2021, totalling 40 pages.
four affidavits from Krista Pulfer dated November 9 and December 22, 2020, and February 1 and May 14, 2021, totalling 53 pages plus 204 pages of exhibits.
two affidavits from Victoria Georgaras dated May 17 and July 8, 2021, totalling 15 pages plus 14 pages of exhibits.
three affidavits from Colleen Rogers dated November 2, 2020, March 9 and July 9, 2021, totalling 25 pages plus 9 pages of exhibits.
one affidavit from Eugenie Rioux dated January 14, 2020, totalling 10 pages.
two brief affidavits by two access supervisors who were involved minimally with this family, totalling 7 pages.
for a total of 460 pages of documentary evidence, not including pleadings and other relevant materials (prior decisions, endorsements, orders, factums, etc.).
[21] In response, the parents filed the following material:
three affidavits from the mother, dated December 30, 2020 and February 5 and July 22, 2021, totalling 51 pages.
three affidavits from the father, also dated December 30, 2020 and February 5 and July 22, 2021, totalling 74 pages plus 13 pages of exhibits.
[22] The content of the Society’s affidavits, for all intents and purposes, is a reproduction of its workers’ detailed notes accumulated over the years of their involvement with this family. There was absolutely no effort made by the Society to marshal the evidence and wean out irrelevant or unimportant facts or events, or to produce one single affidavit for each of the workers involved, setting out in a concise and focussed fashion the important facts supporting the orders sought. The Society’s detailed account of every single interaction that each of these workers had with these parents – a large portion of which are entirely irrelevant to the issues in this case – forced the parents to produce equally lengthy affidavits in an effort to rebut each of those allegations or to give a different account of what took place on any given day to convince the court – rightfully or not – that there is a genuine issue requiring a trial in this case. This is, with all due respect, a classic case of “document-dumping”.
[23] The various Notices to the Profession which were issued by the court since the beginning of the pandemic impressed upon lawyers and litigants the importance of providing materials that are concise, focussed and relevant to allow for a fair, timely and summary disposition of the matters in dispute. Given our limited judicial resources, and in light of current COVID-related backlogs, it is of the utmost importance that matters be dealt with efficiently, giving appropriate court resources to cases while taking account the need to give resources to other cases.
[24] The courts are reluctant to impose limits and restrictions on the length of motion materials in child protection cases given the distinct features of those cases, which involve the protection and well-being of vulnerable children and raise the Charter rights of parents who, more often than not, face significant challenges and have very limited financial resources. On the other hand, how can a court be satisfied that summary judgment, in a case like the one at hand, would lead to a fair and just determination when it is required to go through such a massive amount of evidence to ascertain whether or not a genuine issue requiring a trial exists?
[25] This motion was scheduled for two hours. The work required for this Court to go through the voluminous affidavit material filed in an attempt to decipher whether there might be a genuine issue requiring a trial on the matter of disposition would take at least a week. If a matter requires this much evidence to determine whether the outcome is clear and inevitable, then it is probably not suitable to a “summary” judgment motion.
[26] For those reasons, the Society’s motion for summary judgment on disposition and access is dismissed.
[27] Leave is however granted to the Society to bring this motion back before me in the event that it considers itself able to do so on the basis of an evidentiary record that respects the following restrictions.
Madam Justice Julie Audet
Released: September 13, 2021
COURT FILE NO.: FC-20-CP5
DATE: 202100913
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA)
AND IN THE MATTER OF M.G., D.O.B. […], 2020
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
K.D. and S.G.
Respondents
REASONS FOR decision
Audet J.
Released: September 13, 2021