WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(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.
AVIS
Il s'agit d'un cas en vertu de la Loi de 2017 sur les services à l'enfance, à la jeunesse et à la famille et sous réserve des paragraphes 87(8) et 87(9) de la Loi. Ces paragraphes et le paragraphe 142(3) de la Loi de 2017 sur l'enfance, la jeunesse et les services, qui traitent des conséquences de la non-conformité, se lisent comme suit:
87(8) Interdiction : identification d’un enfant — Nul ne doit publier, ni rendre publics des renseignements ayant pour effet d’identifier un enfant qui témoigne, qui participe à une audience ou qui fait l’objet d’une instance, ou un parent ou un parent de famille d’accueil de cet enfant ou un membre de la famille de cet enfant.
(9) Interdiction : identification d’une personne accusée — Le tribunal peut rendre une ordonnance interdisant la publication de renseignements ayant pour effet d’identifier une personne accusée d’une infraction à la présente partie.
142(3) Infraction : publication — Quiconque contrevient au paragraphe 87(8) ou 134(11) (publication de renseignements identificatoires) ou à une ordonnance de non-publication rendue en vertu de l’alinéa 87(7) c) ou du paragraphe 87(9) et l’administrateur, le dirigeant ou l’employé d’une personne morale qui autorise ou permet cette contravention ou y participe sont coupables d’une infraction et passibles, sur déclaration de culpabilité, d’une amende d’au plus 10 000 $ et d’un emprisonnement d’au plus trois ans, ou d’une seule de ces peines.
COURT FILE NO.: 4497/19
DATE: 2021-02-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF ALGOMA
Applicant/Respondent in Appeal
– and –
G.C.
Respondent/Appellant in Appeal
J. Mealey, for the Applicant/Respondent in Appeal
Eric D. McCooeye, for the Respondent/Appellant in Appeal
- and -
C.P.
Respondent
- and –
S.B.
Respondent
- and -
CONSEIL DES ABENAKIS D’ODANAK
Respondent
- and -
LIISA PARISE (OCL)
Respondent
HEARD: February 27, 2020
rasaiah j.
reasons on appeal
OVERVIEW
[1] The case involves an appeal, a statutory appeal pursuant to s. 121 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”).
[2] The Appellant, Mr. G.C., appeals from the summary judgment decision of Justice John Kukurin of the Ontario Court of Justice, dated November 3, 2019 (“Kukurin J.”/“the motion judge”). Mr. G.C. appeals the determination “that there is no genuine issue that requires a trial with respect to whether [Mr. G.C.] is a risk of sexual harm to his three children” and the final order that Mr. G.C.’s three children are in need of protection because of this risk of sexual harm, pursuant to s. 74(2)(d) of the CYFSA. Mr. G.C. requests that the decision be set aside, the summary judgment motion be dismissed, and that the matter proceed to trial.
[3] The Respondent, Algoma CAS, requests that the appeal be dismissed.
[4] The Respondent, OCL, represents only one of the three children: K.P.. OCL requests that this court confirm the finding that K.P. is in need of protection and dismiss the appeal.
BACKGROUND
[5] Mr. G.C. is the father of three children: K.P, born in 2008; O.C., born in 2013; and J.H.C., born in 2015. K.P.’s mother is Ms. C.P., while O.C. and J.H.C.’s mother, is Ms. S.B.. Both mothers were respondents at first instance, but neither made any submissions on appeal. Conseil des Abenakis D’Odanak is a named party but has not participated in the litigation.
[6] Mr. G.C. and Ms. C.P. were never married but separated some time after K.P.’s birth. A final consent order was made on April 12, 2020 for equal shared custody of K.P., week about, with one month with each parent in the summer. This order is superseded by any order made in the child protection proceeding.
[7] Mr. G.C. and Ms. S.B. also separated some time after J.H.C.’s birth. Counsel agree that Ms. S.B. currently has primary custody of O.C. and J.H.C..
[8] Algoma CAS first brought an application alleging that K.P. was a child in need of protection in 2013. Algoma CAS subsequently brought applications alleging that O.C. and J.H.C. were children in need of protection as soon as they were born, in 2013 and 2015, respectively. The three applications were eventually ordered to be heard together.
[9] Algoma CAS brought three motions for summary judgment. The first motion, filed August 15, 2017, sought findings under the now-repealed Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”). This was replaced by a second motion filed on February 19, 2019, which sought findings under several CYFSA provisions. The second motion was withdrawn and replaced by a narrower third motion, filed on May 27, 2019. This final motion requested a finding that K.P., O.C., and J.H.C. are children in need of protection pursuant to s. 74(2)(d) of the CYFSA. The summary judgment motion was heard on June 12-14, 2019.
[10] On November 3, 2019, Kukurin J. released his decision. In the decision, Kukurin J. concluded, “that there is no genuine issue that requires a trial with respect to whether [Mr. G.C.] is a risk of sexual harm to his three children”, because “the same result would be inevitable” at trial.
[11] On November 25, 2019, Mr. G.C. filed his Notice of Appeal of the decision to the Superior Court of Justice.
ISSUES
[12] The following issues have been raised on this appeal:
- Did the motion judge err in his approach to the summary judgment motion?
a. Did the motion judge err by applying the wrong test for summary judgment?
b. Did the motion judge err by misstating the issue before him?
- Did the motion judge err by failing to apply the principles set out in Kawartha?
a. Did the motion judge err by failing to determine whether the children were First Nations, Métis, or Inuit before determining whether they were in need of protection?
b. Did the motion judge err by failing to consider the best interests of the children?
c. Did the motion judge correctly apply the principle of proportionality?
- Did the motion judge correctly admit and weigh the evidence before him?
a. Did the motion judge err by failing to properly address the imbalance between a parent respondent and the state?
b. Did the motion judge err in finding that Ms. S.H.’s claims of sexual touching were uncontradicted?
c. Did the motion judge err in his approach to evaluating credibility?
d. Did the motion judge err in his approach to evaluating the evidence?
- Should this Court consider K.P.’s evidence in evaluating this appeal?
COURT’S JURISDICTION
[13] Under s. 121 of the CYFSA, an appeal lies to the Superior Court of Justice from a court’s order under Part V of the CYFSA. The motion for summary judgment in this case sought a finding on whether the three children were in need of protection, as defined in s. 74(2)(d) of the CYFSA, found in Part V.
STANDARD OF REVIEW
[14] On questions of law, the standard of review is correctness. On questions of fact, the standard of review is palpable and overriding error. For issues involving questions of mixed fact and law, the standard of review is correctness where there is an extricable legal principle; otherwise, it is palpable and overriding error. In exercising summary judgment discretionary powers, unless the motion judge misdirected himself or came to a decision that is so clearly wrong as to result in an injustice, his decision should not be disturbed and attracts deference: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at paras. 80 to 84 [Hryniak].
ANALYSIS
Issue 1: Did the motion judge err in his approach to the summary judgment motion?
1(a): Did the motion judge err by applying the wrong test for summary judgment?
1(b): Did the motion judge err by misstating the issue before him?
[15] In paragraph 80 of Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497 [Kawartha], the court writes:
To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:
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.
[16] The appellant submits:
a. The motion judge erred by applying the wrong test for summary judgment. Instead of evaluating whether the outcome was a foregone conclusion, inevitable, plain and obvious, or one with no chance of success, the motion judge concluded that there was no other reasonable outcome. Algoma CAS was required “to prove that the evidence was overwhelming, with no other conclusion possible.”
b. The motion judge’s approach was incorrect for two reasons. First, it watered down the summary judgment test. Second, it ignored the warning in Kawartha that a cautious approach is required for summary judgment motions in child protection proceedings, meaning that summary judgment should only be used in the clearest of cases.
c. The motion judge incorrectly stated that “in this summary judgment motion the only two alternative findings are that there is such a risk of harm or that there is not a risk of harm”. Instead, the issue should have been whether the finding in need of protection was inevitable “or such a foregone conclusion, that a trial is not needed.” In other words, whether there is a risk of harm, or whether the risk is not proven to the high degree of certainty required. Mr. G.C. had no obligation to prove no risk of harm, but the motion judge reversed the burden by misstating the issue.
d. The motion judge also “erred in determining whether it was more probable than not that a sexual assault had taken place.” In fact, the issue was “whether it was inevitable that a trial judge would reject [Mr. G.C.’s] evidence”.
[17] It is well-established that “[t]rial judges are presumed to know the law with which they work day in and day out.”: R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 664; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 54 [McDougall].
[18] Therefore, where it is alleged that a trial judge applied an incorrect onus or standard of proof, “the presumption of correct application will apply unless it can be demonstrated by the analysis conducted that the incorrect standard was applied.”: McDougall, at para. 54.
[19] Similarly, the Ontario Court of Appeal has noted that where conflicting onuses are stated, “it is necessary to examine the balance of the reasons to determine if the onus was correctly applied.”: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 78.
[20] Here, reviewing the complete decision, I find the motion judge’s analysis suggests that the onus for summary judgment was correctly applied and the issue before him was correctly identified.
[21] Kukurin J. correctly described the test and approach for summary judgment. He identified the onus being on the Algoma CAS, and what they were required to demonstrate, on more than one occasion in the reasons.
[22] I noted that in the reasons, Kukurin J. uses the words “foregone conclusion”, “there is no genuine issue that requires a trial”, “a finding in need of protection on account of a risk of sexual harm would be inevitable”, “and there would be no realistic possibility of an outcome other than sought by the applicant society”. While the motion judge at one point used the words “no other reasonable outcome”, his analysis and decision taken as a whole, demonstrates that he was satisfied that the finding was a foregone conclusion with no realistic possibility of any outcome other than that sought by the Algoma CAS and that this was the test.
[23] The motion judge specifically identifies that he made his decision applying caution and specifically identified that the burden of proof does not shift from the Algoma CAS.
[24] Throughout the reasons, Kukurin J. conducted a careful screening of the evidence to eliminate inadmissible evidence. His reasons demonstrate attention to the approach that the court should not give weight to evidence on a summary judgment motion that would not be admissible at trial.
[25] Considering risk of sexual harm was a task that Kukurin J. had to undertake as part and parcel of determining if a genuine issue existed that required a trial of the issue with respect to the finding. This is what he ultimately found.
[26] Accordingly, I give no effect to the appellant’s submissions on these issues.
Issue 2: Did the motion judge err by failing to apply the principles set out in Kawartha?
2(a): Did the motion judge err by failing to determine whether the children were First Nations, Métis, or Inuit before he determined whether they were in need of protection?
[27] In paragraph 60 of Kawartha, the appellate court indicates that a finding is to be made before the court determines whether a child is in need of protection. It is important because the finding ushers in a series of special considerations including the provision of services and decisions that recognize the importance of the child’s culture, heritage and connection to community. The court indicates that the special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
[28] While I appreciate the appellant’s submission as to Kukurin J.’s error, in the end I do not give effect to it in this specific appeal for reasons that follow.
[29] I considered that the children’s status, and the considerations that flow from same, were issues that the motion judge recognized.
[30] Kukurin J., while he did not make a formal finding, did identify the children as Indigenous, as First Nation children, more than once.
[31] On the appeal record, at the hearing, it does not appear that anyone was arguing that the children were not First Nations children.
[32] In respect of the considerations that flow from the children’s status, what Kukurin J. stated was that he did not apply any considerations stemming from same because they did not play a role with respect to the specific finding that was the subject of the summary judgment motion. I find no error with this conclusion based on the submissions and record. The appellant did not identify in the record any considerations stemming from the children’s culture, heritage and/or community that would have impacted the finding that would affected the result; that namely would have raised a genuine issue requiring a trial on the finding. The subject of the summary judgment motion was a protection finding based on risk of sexual harm to the children.
2(b): Did the motion judge err by failing to consider the best interests of the children?
[33] The appellant suggests that the motion judge failed to consider best interests, and specifically identified, the “permanent” implications/impact of the finding on the appellant, and accordingly on the children’s lives (their future relationship with him, if any).
[34] Children’s best interests are unquestionably a paramount purpose with respect to the CYFSA. They are enunciated as such in addition to, protection and wellbeing of children. I agree that Kawartha indicates that CYFSA objectives including the best interests of the child must be applied in determining whether there is a genuine issue for trial.
[35] Kukurin J. concluded that the motion context was not one where best interests of the children influenced or were a factor, on the basis that the motion was seeking summary judgment on a finding of risk of sexual harm only. He stated more than once that he did not see best interests as influencing the narrow issue that was before him.
[36] Leaving aside Kukurin J.’s commentary regarding his feelings that best interests and CYFSA objectives are more relevant to disposition and access issues and should have little to do with the issue of a finding, which he acknowledged may be wrong, I do not find error with his ultimate conclusion on their influence on the specific finding that was before him.
[37] Protection purposes were engaged on the record.
[38] General principles are well-established, that where the protection finding relief is based on risk of harm, the analysis involves determining if the risk is likely and real: J. (K.A.) v. Children’s Aid Society of Hamilton, 2014 ONSC 3003, at para. 26. Accordingly, with a likely real risk of sexual harm, it would be very difficult to conclude that the identified impacts on relationship or on how the person posing the likely real risk is characterized would override or influence the need for protection of children.
[39] Further, the suggestion that Kukurin J. would not have appreciated the potential impacts of a finding of children being in need of protection from a risk of sexual harm, is difficult to accept. What is called for is a cautious approach on summary judgment motions in light of same. He appears to have applied same.
2(c): Did the motion judge correctly apply the principle of proportionality?
[40] The appellant submits that proportionality is “a key concept in decisions on summary judgment”, according to Kawartha and that the motion judge failed to properly address proportionality in three ways:
a. First, the motion judge failed to recognize that a finding in need of protection “relegates Mr. G.C. to supervised access or no access – and attaches a stigma to him without his opportunity to have his credibility assessed by a judge in open Court.” A child protection judgment is in rem; the stigma and results are permanent. The finding of sexual risk, coupled with no possibility for treatment, is “an enormous decision”. It is in fact a finding of sexual misconduct. This means that Mr. G.C. “has been found to be a sexual predator without having an opportunity to face his accusers or to give his evidence directly to a judge.”
b. Second, the motion judge failed to “recognize that the case rests entirely on credibility, which is best measured by a trial judge who can observe the witness.”
c. Finally, the motion judge failed to “recognize that Charter rights are at stake and need to be guarded.”
[41] Proportionality requires the motion judge to compare the evidence that will be available at trial to that available on the motion. He did this.
[42] Proportionality requires that there be an opportunity to fairly evaluate the evidence, including credibility. The procedure need not be as exhaustive as a trial. The focus is whether it gives the judge confidence that [they] can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[43] The summary judgment motion was limited to the narrow issue of whether the children are in need of protection. It did not address the broader issues of custody and access, which will be determined later. The motion judge considered the fairness of the summary judgment process and its ability to achieve a just result on the narrow issue of the finding in need of protection with the evidence he admitted. He also highlighted the need for caution in child protection summary judgment proceedings. He carefully screened the evidence. He determined that he would exercise discretionary powers on the summary judgment motion, including assessing credibility. He considered what further evidence Mr. G.C. could possibly provide at a trial on the allegations that he had not already deposed to.
[44] Finally, the motion judge acknowledged Charter implications as I outline in this decision below.
[45] Credibility is also addressed further, below.
[46] Accordingly, I find no error.
Issue 3: Did the motion judge correctly admit and weigh the evidence before him?
3(a): Did the motion judge err by failing to properly address the imbalance between a parent respondent and the state?
[47] In terms of Charter implications, I conclude that Kukurin J. did not err. He did not fail to consider same or fail to recognize imbalance between parents and Children’s Aid Societies, and this issue in this case.
[48] I observed Kukurin J. to be aware of imbalance that arises in child protection cases.
[49] Kukurin J. categorized Mr. G.C. as being well-represented. When Kukurin J. pointed out that Mr. G.C. was well-represented, I interpreted this as articulating that Mr. G.C. had the benefit of good counsel who afforded Mr. G.C. the ability to participate effectively at the hearing, addressing this threat of violation of Charter rights that child protection litigation engages. I did not interpret Kukurin J. expressing that the court is only required to assist parent respondents when they are unrepresented.
[50] Further, the reasons demonstrate that Kukurin J. applied a cautious approach to the evidence, carefully screening the voluminous record, making admissibility rulings against a significant portion of Algoma CAS’s filings, including affidavits that Mr. G.C. would describe as “overpowering” and written by “professional affidavit writers”, that would “create imbalance”.
[51] While it would have been preferable for the motion judge to directly state the following, his reasons are sufficient to communicate that he was mindful of the issue, and satisfied that the issue of imbalance in this case was not one that precluded determination of the issue by way of summary judgment motion.
3(b): Did the motion judge err in finding that Ms. S.H.’s claims of sexual touching were “uncontradicted”?
[52] The appellant’s argument essentially was that Kukurin J. found that Mr. G.C. did not deny Ms. S.H.’s evidence and/or allegations, that he “failed to recognize that if the defence is that no such conduct took place, the only evidence that can be raised in contradiction is to deny the conduct.”, and held that “a denial is not enough”.
[53] I appreciate Mr. G.C.’s position with the use of the word “uncontradicted” when he described Ms. S.H.’s evidence at one point as “uncontradicted” or “basically uncontradicted”. However, Mr. G.C.’s position does not reflect the whole of the analysis, and the fact that the motion judge acknowledged and considered the events as described by Ms. S.H. against Mr. G.C.’s denial of the incident, and denial of any wrongdoing in respect of Ms. S.H.. In the end, I observed that after reviewing the evidence, Kukurin J. preferred Ms. S.H.’s account of what occurred over that of Mr. G.C..
[54] The context of the argument at the motion included the obligations of a responding party. The motion judge correctly determined that r. 16(4.1) of the Family Law Rules, O. Reg. 114/99, “placed an obligation on a responding party to set out… specific facts showing that there is a genuine issue for trial”. Contrary to the appellant’s position, Kukurin J. expressed and acknowledged that he appreciated that sometimes a denial in some circumstances may be the only reasonable response and perhaps the only possible response. However, in this case, he concluded that Ms. S.H.’s evidence was not seriously attacked by Mr. G.C., when he had the opportunity to do so, putting your best foot forward is required on a summary judgment motion.
[55] In the decision at various times, the motion judge correctly referred to steps Mr. G.C. could have taken and/or abandoned in the proceeding in respect of the evidence filed, including but not limited to cross-examinations on affidavits and/or the assessment report. Mr. G.C.’s argument on the motion included the “lack of cross-examination” on the evidence. It was not incorrect to address that Mr. G.C. was fully aware of his right to cross-examine on affidavits and had previously taken steps in the proceeding for same, only to have abandoned them. I do not agree that Kukurin J. expressed that the evidence’s weight was enhanced or that he enhanced same for a failure to seek to cross-examination of the evidence filed on the motion before the hearing of it.
[56] Contrary to the appellant’s submission, I observed throughout the decision that the motion judge accurately reviewed and maintained the burden of proof on Algoma CAS.
[57] Finally, the reasons demonstrate that the finding did not rest completely on the evidence of Ms. S.H.. It was one piece of the whole of the admitted evidence, which included other affidavits, records and Dr. Dickey’s report.
3(c): Did the motion judge err in his approach to evaluating credibility?
[58] The motion judge correctly determined that r. 16(6.1) of the Family Law Rules and Hryniak give the court the discretion to weigh evidence, evaluate the credibility of a deponent, and to draw reasonable inferences on a summary judgment motion.
[59] I find that the motion judge did not err in his approach to exercising the discretionary powers, and that his exercise of those powers attracts deference. He did not come to a decision that was so clearly wrong that it resulted in an injustice. The credibility findings he made were open to him to make.
[60] I observed that Kukurin J. addressed “interests of justice” considerations, namely the nature, size, complexity of the dispute and other contextual factors, including the history of the case and of the history of the proceeding itself; and where the unsettled issues were leading, post his decision. In doing so, he considered the relative evidence available at the summary judgment motion. He specifically considered what more Mr. G.C. could offer at a trial on the issue.
[61] The motion judge’s reasons demonstrate that the evidence was considered and weighed in context.
[62] The motion judge screened the evidence as required by Kawartha.
[63] There were several individuals who made allegations against Mr. G.C. over various time periods related to the issue of risk of sexual harm, and Kukurin J.’s conclusion did not rest solely on Ms. S.H.’s evidence.
[64] With respect to Ms. Shewfelt and Ms. Liberty’s evidence, the motion judge found that their accounts corroborated each other and that there was nothing to suggest they made it up or were mistaken. He therefore finds them credible. He determines Mr. G.C.’s account of the time is not credible in comparison. In my view, after reviewing the material, Mr. G.C. appeals this comparison essentially on the basis that the motion judge gave too much weight to Algoma CAS’ evidence and not enough to Mr. G.C.’s evidence. The motion judge gave more weight to Ms. Shewfelt and Ms. Liberty’s accounts and it was within his discretionary power to do so. The inconsistencies were minor. I see no error in discounting minor inconsistencies that related to collateral facts in a weighing exercise.
[65] In respect of Mr. G.C.’s evidence, the motion judge had concerns with Mr. G.C.’s credibility. The appellant submits that it was not explained and/or that Kurkurin J. improperly considered certain facts. I disagree. I interpret the reference to Mr. G.C.’s age and weight as assessing Mr. G.C.’s statement that he only “tried” to toss one of the girls twice; in that context. Therefore, the information is not irrelevant to the credibility exercise in assessing his account of the events. I further noted that Kukurin J. expressed that his concerns included Mr. G.C.’s statement minimizing his time with Ms. Shewfelt and Ms. Liberty to being only “ten seconds” against the activities that the three of them described had taken place in the pool. This is a clearly identified credibility issue in relations to Mr. G.C..
[66] It was not improper to consider the evidence of Ms. Halin, given the context of the finding is whether the risk is likely or real and he may and should consider all admissible evidence. A similar event involving another is material and relevant in this context.
[67] Kukurin J. did not fail to recognize when the various witnesses’ complaints were made, how they were made, to whom they were made, how old they were etc.
[68] In addition, the motion judge placed weight on Dr. Dickey’s evidence in the analysis. Specifically, he found that Dr. Dickey’s diagnosis corroborates the evidence of Ms. S.H., Ms. Liberty, Ms. Shewfelt, and Ms. M.P. regarding Mr. G.C.’s “sexual preference”. The motion judge was entitled to admit and consider Dr. Dickey’s report in weighing the evidence.
[69] I find no error in the analysis related to lack of cross-examination on the Algoma CAS evidence, as Mr. G.C. had the opportunity to pursue same. It was before Kukurin J. that Mr. G.C. contemplated it and chose not to pursue same. Mr. G.C. did not identify evidence in the record that would have indicated that seeking cross-examination on the motion record evidence prior to the hearing would have been prohibitive and/or unavailable to him, to demonstrate any palpable and overriding error related to this issue.
[70] I do not find a lack of comment on cross-examination of Mr. G.C.’s own evidence as odd and/or a non-observation. In the decision it was evident that the motion judge considered the obligations of a respondent to a summary judgment motion. In addition, with respect to particular affidavits Mr. G.C. filed, he considered that there would be nothing further Mr. G.C. could contribute at trial, having set out his evidence, which included but was not limited to denials of the alleged occurrences, denials of any wrongdoing and/or statements of inability to remember specific events attested to beyond what he deposed to. Accordingly, I do not find this to be unreasonable.
3(d): Did the motion judge err in his approach to evaluating the evidence?
[71] Again, I do not find that the motion judge erred in his approach to the evidence given the specific narrow issue that was before him. He conducted a careful screening, not giving weight to evidence that he found would be inadmissible at trial, including volumes of evidence tendered by Algoma CAS. The motion judge’s approach is consistent with summary judgment decisions both before and after Kawartha: C.A.S. (Ottawa) v. M.M., 2018 ONSC 786, 8 R.F.L. (8th) 184, at para. 36; Children’s Aid Society of the Region of Peel v. P.D., 2019 ONCJ 373, at para. 74; and Children’s Aid Society of Brant v. A.H. and C.T., 2019 ONCJ 540, at paras. 23-24, 29.
[72] The motion judge correctly admitted and relied on the affidavits of Ms. S.H., Ms. Shewfelt, and Ms. Liberty, as sworn affidavits based on firsthand knowledge.
[73] The motion judge also properly admitted and relied on Dr. Dickey’s report, ordered as an assessment report under s. 54 of the CFSA, now s. 98 of the CYFSA. Kukurin J. addressed Mr. G.C.’s arguments with respect to the report and why he did not accept them. To summarize, the issues the appellant raised were the alleged coughing that took place and relying on these types of reports in general. The same arguments were made before Kukurin J. He was not persuaded that it was unreliable or invalid in its findings. There was no mention of “coughing”. He noted the length of time Mr. G.C. had this report and that in essence, Mr. G.C. was seeking to rely on hearsay of a tester with respect to false positives, which observation was not incorrect. He considered that Mr. G.C. did not take any steps to address this evidence in the 5 years that he had it. He considered the cases addressing these types of reports, which cases I note do not preclude the reliance on them. In response I noted that he carefully screened the report. Accordingly, I do not find any error in his analysis of a nature that would disturb the admission and reliance on the report, and his findings are entitled to deference. Finally, on the points raised with respect to Dr. Dickey’s report, Kukurin J. was quite clear that Dr. Dickey’s opinions as to access were not relevant, and of no consequence to the motion, given the issue, and given the manner in which they ended up in the report. The explanation was quite detailed. I find no error given the foregoing that would disturb the admission and reliance on the report.
[74] The motion judge correctly determined that the evidence meeting the criteria in s. 93(1) of the CYFSA (past conduct towards children) is admissible: CAS v. M., W., 2019 ONSC 6592, 34 R.F.L. (8th) 160, at para. 32; CYFSA, s. 93(1). I find he did so having applied a careful screening to ensure that the evidence met the approach of Kawartha.
[75] On admitting the police records which contained the unsworn will-say statement from Ms. M.P., he recognized Ms. M.P.’s statement within as hearsay and assigned it minimal weight. Even if the motion judge had erred in admitting the police occurrence report, I find this would not have been a palpable and overriding error because it is very clear that the motion judge placed little weight on the evidence and its exclusion would not have changed the outcome.
[76] I give no effect to the submission concerning K.P.’s evidence in the materials filed and choosing not to admit same for purposes of the motion. In his reasons, he fully identified the reliability concerns he had with the evidence as presented in the record. Further, whether he could have used s. 93 of the CFSA to admit the evidence does not affect the result. In the end, he did not rely on the evidence, and explained that he was of the view that he did not need K.P.’s evidence to conclude in this case that Mr. G.C. being found a risk of sexual harm to the children would be inevitable at a trial.
Issue 4: Should this Court consider K.P.’s evidence in evaluating this appeal?
[77] Algoma CAS did not have a cross-appeal before this court, and further given the above, I decline to address this issue.
CONCLUSION
[78] The finding in paragraph 147 of the decision of Kukurin J. is hereby affirmed.
Rasaiah J.
Released: February 3, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF ALGOMA
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G.C.
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C.P.
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S.B.
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CONSEIL DES ABENAKIS D’ODANAK
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LIISA PARISE (OCL)
REASONS on appeal
Rasaiah J.
Released: February 3, 2021