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-10-FO000961-0004 AND -0005 DATE: 2023April6

ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF THE CHILDREN, M.R. and L.R-M.

BETWEEN:

Family and Children’s Services of Renfrew County Applicant – and – J.A.R. (mother) D.D.M. (father) Respondents

Counsel: Deborah Souder, for the Applicant Mellington Godoy, for the Respondent (mother) Maryn Marsland, for the Respondent (father)

HEARD: March 15 and 17, 2023

Lacelle J.

REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION

Introduction

[1] Family and Children’s Services of Renfrew County [“FCSRC”] brings a motion for summary judgment. Ultimately, it seeks an order finding that the two children involved in this case are in need of protection and placing the children in the extended care of the society with access to their mother, father and siblings.

[2] The Respondent mother has previously been noted in default and is not participating in this motion.

[3] The Respondent father, D.D.M., opposes the order sought by FCSRC. He has filed Responding materials disputing the basis for the child protection concerns raised by FCSRC. He asks the court to find that there is a genuine issue for trial and to dismiss the motion.

[4] The parties were previously advised that I have determined that the motion for summary judgment will be dismissed. These are my reasons for that decision.

Background

[5] The Respondents J.A.R. and D.D.M. are the parents of the children M.R. and L.R-M.. M.R. and L.R-M. are currently in the care of foster parents (in different homes) who will adopt the children in the event the court grants an order for extended society care.

[6] M.R., who is now 4 years old, was taken to a place of safety along with her older brother M.M. on October 21, 2021. At the time they were taken to a place of safety, the children were residing with their mother.

[7] The children were placed with their maternal great aunt M-A.P.. M.M. now resides with M-A.P. pursuant to a final order. M.M. is now 11 years old. He is autistic and has special needs.

[8] Since M-A.P. was not able to care for both M.M. and M.R. long-term, M.R. was placed with a foster family on February 22, 2022. M.R. has been with the same family throughout her time in foster care.

[9] L.R-M. is now 15 months old. He has never been in the care of the Respondents. On December 18, 2021, he was taken to a place of safety one day after he was born. At that time, he was placed in the care of his current foster parents.

[10] The Respondent mother is Métis. The Respondent father is not. The children M.R. and L.R-M. identify as Métis.

[11] The Respondent mother has a long history of drug abuse. At the time L.R-M. was born, she was using drugs. FCSRC indicates that when L.R-M. was born, he had cocaine and other drugs in his system.

[12] The FCSRC also alleges that the father also has a significant substance abuse history.

[13] According to the FCSRC, the Respondent mother and father have been in a common law relationship for over 10 years. During that time, they each maintained their own residence, though the Respondent father is said to have stayed with the Respondent mother for extended periods. The FCSRC alleges long term domestic abuse by the Respondent father towards the Respondent mother, and also of the children.

[14] FCSRC indicates that the Respondent father was convicted of an assault on M.M. in 2017. He has an outstanding charge of assault on M.M. which was laid following a complaint made by the Respondent mother in August of 2021. D.D.M. also faces outstanding charges alleging violence towards the Respondent mother.

[15] The FCSRC indicates that neither parent has an extended support network.

[16] The Respondent mother has children from other relationships. One of those children, R.R., who is now 18 years old, has provided an affidavit for this proceeding which describes her observations of the Respondent father’s behaviour. She remains committed to a relationship with her siblings and has been having access with them.

[17] The FCSRC seeks an order that M.R. is in need of protection pursuant to sections 74(2)(b)(i)(ii) and 74(2)(f) of the Child Youth and Family Services Act. With respect to L.R-M., the order sought is based on section 74(2)(b)(i)(ii) of the Act.

[18] More plainly, the FCSRC alleges that both children are at risk of physical harm if left in the care of their father because he will inflict it or it will be caused by his failure to care and provide for the children, or he will demonstrate a pattern of neglect in caring for them. In M.R.’s case, the protection finding sought also relates to the risk that she has suffered emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development, and there are reasonable grounds to believe that the harm she suffered results from the father’s actions, failure to act or a pattern of neglect on his part.

Legal Principles

[19] The case of Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 [“Kawartha”] provides direction on the approach to summary judgment motions in the child protection context following the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[20] The post-Kawartha approach to summary judgment in child protection matters was summarized by Corthorn J. at paras. 29-35 of The Children's Aid Society v. S.P. and K.L., 2019 ONSC 5624 (Ont. S.C.J.) as follows:

Summary Judgment

a) General Principles

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

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

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

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

b) Child Protection Matters

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

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

1. Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
2. The burden of proof is on the party moving for summary judgment. Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

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

Evidentiary rules are not relaxed on a summary judgment motion

[21] As was made clear in Kawartha-Haliburton, no weight should be given to evidence on a summary judgment motion that would be inadmissible at trial.

[22] Hearsay is presumptively inadmissible evidence. Various child protection courts have confirmed that it is inadmissible in the context of a summary judgment motion and the rules which permit the admission of hearsay evidence are not to be relaxed. For instance, Sherr J. held as follows 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 not 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.

[23] This approach was adopted in Kawartha at para. 78.

[24] Where evidence is uncontested, however, or the subject of bare denials by the Respondent, the court may make findings of fact: Jewish Family and Child Services of Greater Toronto v. E.K.B. 2019 ONSC 6214 at paras. 149-150.

The Charter implications of child protection litigation

[25] In Kawartha, the court recognized that “[c]hild protection litigation engages the Charter rights of both parents and children” and directed that courts should be “especially mindful of the reality and material circumstances of those subject to child protection proceedings”: see paras. 65 and 68. It cited the Supreme Court in New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, at para. 76, which held as follows:

The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s is as well. Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship.

[26] Consequently, the court held that a “fair and just determination on the merits” (required by Hryniak at para. 49) “must recognize that such proceedings engage Charter rights for a vulnerable segment of our society”. The cautious approach to granting summary judgment in child protection proceedings has not been displaced by Hryniak. Rather, “this cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits”: at para. 76.

Positions of the parties

FCSRC

[27] FCSRC argues that based on the case law, evidence, legislation and Family Law Rules, this is an appropriate case to proceed by way of summary judgment and it is in the best interests of the children to do so.

[28] FCSRC argues that both children either have or are likely to have special needs. The children are in need of protection having regard to the Respondent father’s history as a parent, which includes the following issues:

a. A physical style of parenting that led to a conviction (and outstanding charges) for assaulting M.M., who is also a child with special needs; b. His failure to engage in any programming or any demonstration he has a better understanding of the challenges of a child with special needs or how he will meet those needs; c. His history of criminal involvement and exposing the children to domestic abuse; d. His failure to show he has any understanding of the impact of domestic violence on the children, and the risk that he will reengage with the Respondent mother; e. His history of substance abuse, which remains a live concern given his refusal to permit FCSRC to obtain his urine screens from his methadone clinic.

[29] Counsel relies on s. 93 of the CYFSA which allows the court to consider the past conduct of the Respondent father with his son M.M.. That section also allows the court to consider any finding or transcript of the reasons for decision in an earlier court proceeding.

[30] With respect to the child L.R-M., FCSRC argues that although the harm caused to him in utero as a result of the Respondent mother’s substance abuse was not directly caused by the Respondent father, the Respondent father still failed to protect L.R-M..

[31] While FCSRC acknowledges that the Respondent father has generally been very consistent in attending access visits with the children, and these visits have been “appropriate and pleasant for the children”, his consistency has lapsed recently. The visits are also supervised given concerns about conflict between the Respondent father and his mother (the Respondent father lives with his mother pursuant to the terms of a house arrest bail condition). While ongoing access between the children and the Respondent father is in the children’s best interests, it is not in their interests to be returned into their father’s care.

[32] FCSRC also emphasizes the time that the children have been in care, which is beyond the legislative timelines. It says it is in the interests of justice to grant the orders sought.

The Respondent father

[33] The Respondent father submits he has a plan to parent the children, his access is positive for the children, he has followed all programmes recommended to him, and he will keep the children safe from their mother. He has presented evidence that contradicts that of the FCSRC on important issues. His plan is realistic and is the only plan involving the children being placed with their family. Counsel submits that the body of evidence presented on the motion needs to be properly considered in a trial. Given these circumstances, FCSRC has not demonstrated that this is an appropriate case for a summary judgment order. This is a high bar which the FCSRC has not met.

[34] The Respondent father disputes the factual basis for the protection concerns identified by FCSRC. He notes he has filed affidavits responding in a detailed way to these concerns and is not resting on bare denials. He also notes that the evidentiary record filed by FCSRC contains hearsay, the admissibility of which may not be fully and appropriately assessed on the record for this motion.

[35] The Respondent father also emphasizes that the children are Métis, and the applicable federal law directs that family placements are paramount.

[36] Further, counsel argues that a number of the child protection concerns expressed are speculative. FCSRC is concerned that the Respondent father may use substances, may communicate with the Respondent mother, or may have an unhealthy relationship with another partner. Counsel submits that a lot has changed since these were live concerns and they no longer have an impact on the Respondent father’s ability to parent. Moreover, the extent to which the children have special needs is not clear. It is speculative to presume what they might need in future and further assessment is required.

[37] Counsel cautions the court about the Charter rights at issue in this application and the need for a proper evidentiary record to support an order which would see the children placed in adoptive homes. Counsel argues that even if the court is of the view that the Respondent father will not likely succeed in having the children returned to his care, it is in the interests of justice in this case that a trial be held before any final order is made. Counsel argues that the Respondent father should be permitted to have his plan evaluated after the evidence is tested at trial, where issues regarding credibility and the admissibility of hearsay are best decided.

The evidence

[38] I have reviewed the evidence in its entirety. What follows is a summary of some of the evidence relating to the protection concerns and the Respondent father’s parenting plan.

Conflict between the Respondent parents and physical abuse of M.M.

[39] The information of child protection workers includes reference to a number of charges that have been laid against the Respondent father involving the Respondent mother. A charge of mischief laid on May 5, 2022, was withdrawn on July 20, 2022. Another charge relating to events alleged in June 2022 was withdrawn in August of 2022.

[40] On August 29, 2022, the Respondent mother is said to have called police to report the Respondent father’s criminal conduct. She indicated the pair had been in daily contact. The Respondent father was charged with a number of criminal charges relating to J.A.R. (assault, assault with a weapon, forcible confinement, uttering threats, mischief), an assault on M.M., and animal cruelty. The charge relating to M.M. is based on events alleged to have occurred in October 2016. As a result of these charges, the Respondent father must reside with his mother, Ms. H.

[41] M.M. has been interviewed by police, including on October 5, 2022. At that time, he described the fighting between his parents and that they have been physical towards each other. He also stated that both his parents have been physical with him in the past. This included pushing him. M.M. has also spoken to child protection workers about how the Respondent father disciplined him, including by threatening to wash his mouth out with soap and saying he deserves to be spanked, which made M.M. fearful given his dad’s historic behaviour (see affidavit of Brandi Fraser, dated October 21, 2021, referring to an undated conversation with M.M. which appears to have occurred in 2019). At that time, Ms. Fraser says the Respondent father told her that any “hands on parenting” towards M.M. was to stop him from injuring himself or others, and not done as a form of corporal punishment.

[42] The child protection workers refer to a conviction sustained by the father for conduct towards M.M. from a charge laid in 2016, stating that it resulted in a conditional sentence and a term of probation. The Respondent father disputes that this is the case. No court records have been obtained and filed in the motion to conclusively prove this issue. The workers also report a charge laid on September 9, 2021 relating to M.M., about which no further evidence has been filed by FCSRC.

[43] In addition to this information, there is evidence from R.R. in her affidavit dated February 17, 2023 about her observations of the Respondent father during the time she resided with him and the Respondent mother. R. last resided with them when she was 17 years old, which was 3 years ago. During the time she lived with the Respondents, R. observed that:

a. Many times the Respondent father was physically aggressive and hitting or pushing M.M., M.R. and her mother. There were many times she stepped in to intervene when the Respondent father was being physical with M.M. or M.R.; b. It was a common occurrence for the Respondent father to be physical with her mother. Sometimes police were called; c. The Respondent father was also mean to their dog and hit it when angry; d. On one occasion, the Respondent father was physical with her – he gave her a slight shove as she attempted to leave following an argument; e. The Respondent father punched out a glass window and punched holes in the walls – there would not have been a wall without a hole in it due to Respondent father’s temper.

[44] The Respondent father denies these allegations. He says the charges from August 29, 2022 are based on fabrications by the Respondent mother, and largely about “long-ago alleged incidents”.

[45] The Respondent father states that there is no allegation that he has recently been physical with any of his children. He denies being physical with M.M. or any of his children “in a harmful way”. He says he has had to redirect M.M. with touch in the past to prevent him from causing harm to himself or others, but he has not used physical discipline or harm against him. He states that the charge from September 9, 2021 regarding M.M. was withdrawn prior to March 2022. He also states that “the previous charge related to physical discipline towards M.M. were unfounded and were not pursued by the prosecution”.

[46] As for R.’s allegations, the Respondent father denies being physical with the children and the Respondent mother. He admits he did cause some holes in the walls. He says he has no convictions for assaulting anyone from the time R. lived with them.

[47] The Respondent says he has applied for a criminal records check and will provide it to Ms. Fraser as soon as he receives it.

The Respondent father’s substance abuse

[48] There is no real question that the Respondent mother and the Respondent father have histories of substance abuse.

[49] R.R. says that while she lived with them, the Respondent father and the Respondent mother used drugs in front of her and M.M. on a regular basis. She recalls them using speed and selling it, as well as strangers coming to their home at all hours.

[50] The Respondent father admits that in the past he was under the influence in front of the children, but denies he sold drugs in front of them.

[51] The Respondent father attended a residential treatment facility in Toronto in September and October of 2022. He continues to see a counsellor with Addiction Treatment Services.

[52] According to child protection worker Brandi Fraser, the Respondent father has declined to provide consents to confirm his involvement with the Ontario Addiction Treatment Centre – Methadone Clinic.

[53] According to worker Brittany Hanniman, the Respondent father advised her, while at the hospital after L.R-M.’s birth on December 17, 2021, that he had been sober for two weeks.

[54] As will be described further below, the Respondent father says he is no longer using drugs or involved in a drug subculture and that he is continuing with follow-up treatment and services. He states that he has never used substances or been under the influence around M.R. or L.R-M. and would never do so in the future.

The children’s special needs

[55] Various referrals have been made for M.R., including to the Infant and Child Development Program, Behaviour Services (for anxiety and emotional dysregulation), First Words (for speech and language), physiotherapy (as a result of hip dysplasia surgery and eating habits which lead her to choke and gag on foods). There is concern M.R. may be autistic, but no definitive diagnosis has been made. She is on a waitlist at CHEO for a developmental assessment. She sees a nutritionist for support regarding excessive bowel movements.

[56] M.R.’s foster mother has provided information to child protection workers about M.R.’s behaviours. Among the most concerning are that she has self-harmed “by ripping her skin off her nails when she was anxious”. She would hit her head against the wall during meltdowns. She was having a lot of nightmares. She needed reassurance.

[57] Despite these difficulties, as of February 16, 2023, M.R. was attending day care approximately 2-3 days a week, dance class once a week, and swimming classes. She had also been registered for soccer.

[58] As for L.R-M., child protection worker Brandi Fraser expresses the expectation that L.R-M. may have special needs as a result of his prenatal drug exposure. She also confirms that L.R-M. has been assessed at CHEO regarding concern about his head and some flatness (known as brachycephaly). She reported that medical staff felt the foster parents were doing what was required for L.R-M. at that time and that the condition should begin to get better as his brain grows.

[59] Child protection worker Karyn Hay further describes L.R-M.’s ongoing medical needs in an affidavit dated February 13, 2023. He has been referred to the Child Development Program. She appends to her affidavit as exhibits reports from that program, as well as medical notes from L.R-M.’s family doctor outlining concerns about suspected food allergies. A rounded spot has been observed on the base of L.R-M.’s spine which will continue to be monitored. L.R-M. also has a referral for an eye appointment since it appears one of his eyes is wandering. L.R-M.’s foster mother attends all his appointments and provides updates to Ms. Hay.

[60] Ms. H.’s affidavit states that she has seen the Respondent father being attentive to information he receives from the foster parents or the workers about the children’s dietary restrictions and other particular needs. She says she has seen him “take the time to learn about these and implement them in caring for his children”.

The Respondent father’s parenting time

[61] According to the Respondent father, he had been having visits with the children at his home “with limited supervision”, and these visits were without issue. He states that this went on until the Respondent mother attended at his house during a visit. He states that he had not initiated this visit by her. Thereafter, the visits occurred in his mother’s home. They were moved again following an incident of “conflict” with his mother which he says did not occur in front of the children.

[62] The result is that most recently, the Respondent father has had parenting time with the children once a week for a period of four hours. His visits with the children have been supervised by FCSRC staff. The Respondent father also has phone calls on a weekly basis with M.R..

[63] The Respondent father did not exercise access when he was in a drug treatment program and while incarcerated. Apart from these occasions, it is common ground between the parties that generally speaking, the Respondent father has been consistent in his access and that the visits have gone well.

[64] M.R.’s child in care worker, Karyn Hay, reports that M.R. appears to enjoy her visits, “as she is found smiling, playing and eating with D.D.M. during their time together”. Worker Brandi Fraser states in her affidavit of August 9, 2022, that the Respondent father “presents as attentive and child focused in his visits with his children”.

[65] In her affidavit of May 27, 2022, Ms. Fraser stated that she observed that the Respondent father would “take walks with his children, play with them, provide them with snacks … The conditions of his home were appropriate”. However, she also described an occasion on May 11, 2022, when the Respondent mother attended at the Respondent father’s home during access and the Respondent father did not intervene nor tell her that she was not permitted to be at his home during his access. At that point in time, she described the father’s access as consistent, and states that he communicated “overall well” with FCSRC staff with respect to his parenting time.

[66] In an affidavit dated March 21, 2022, Ms. Fraser described the observations of Ms. Roach, an employee with the Supervised Access Program, who stated that the Respondent father and M.R. “have a great time playing together, they dance, sing and listen to songs, and M.R. laughs a lot”.

[67] The FCSRC says that more recently, the father’s consistency has lapsed. He cancelled a visit in January 2023 because he said he was ill. Another visit was cancelled on February 1st, 2023, again because the Respondent father said he was ill. However, the foster mother received an email on that day from Ms. H. who stated the Respondent father was back on drugs, had been screaming at her since yesterday, and had cancelled his visit because of her (Ms. H.). Ms. H. stated in the email that she was going to call the cops and have the Respondent father put back in jail.

[68] M.R.’s assigned worker, Karyn Hay, also outlines in her affidavit dated February 16, 2023 other unsuccessful efforts made by the foster parents to permit the Respondent father to spend time with M.R. or have contact with her.

[69] The affidavit of Brandi Fraser dated March 8, 2023, states that either the Respondent father or his mother cancelled visits on the following dates in 2023: January 16; January 30; February 6; February 27; and March 6. Ms. Fraser reports a conversation with Ms. H. who said there was no reason for the cancellations, that the Respondent father is using drugs, and that the Respondent father “can absolutely not have these kids – he is not attached to L.R-M., and he talks openly about this”. She also stated that the only reason she had not submitted an affidavit to FCSCS was that she did not want the Respondent father to be returned to custody.

[70] Ms. Fraser also states in this affidavit that M.R.’s foster parents have advised that the Respondent father is not consistent with his weekly calls to M.R..

[71] For reasons that are left unstated in the evidentiary record, no affidavit has been obtained directly from the foster parents, on these issues or about M.R.’s behaviour and her needs.

[72] As for Ms. H., she has signed an affidavit dated March 2, 2023. She states that she has supervised access visits while the Respondent father has been living with her. She says that the visits “have been especially positive for M.R., who has a strong bond and attachment to her father. M.R. is always asking for [D.D.M.], and [D.D.M.] is very loving and affectionate with her”. She says she continues to support having these access visits in her home.

[73] As for the events of November 28, 2022, Ms. H. says that she and the Respondent father had an argument on that day and she did contact the Society worker to cancel the visit for that day. She states that once the argument ended, she and the Respondent father returned to being on good terms.

[74] Ms. H. also acknowledges “expressing frustration with [D.D.M] and indicating to Society workers that I thought about revoking my status as surety for [D.D.M.]. However, these statements were made purely out of frustration.” She goes on to state that the Respondent father is compliant with his bail conditions and can reside with her until his criminal matter is completed. She remains committed to continuing to be an emotional support for her son and supporting his visits with the children.

Ongoing contact with the Respondent mother

[75] Child protection workers report that the Respondent father tells them that he has had no contact with the Respondent mother since November 2022. He has told worker Brandi Fraser that he has been drawn to the Respondent mother historically as he loves her, he wanted to help her, and he has wanted to assist her in raising their three children. Ms. Fraser states that FCSRC does not believe that the Respondent father would be protective of the children when it comes to the Respondent mother.

[76] The Respondent father states in his affidavit dated March 2, 2023 that he is no longer in contact with the Respondent mother, and that their last contact was in August 2022. While he did receive a message from the Respondent mother in November 2022, he did not reply to it.

[77] The Respondent father acknowledges making the comments above to Ms. Fraser. However, he says he now realizes that J.A.R. cannot be the parent their children need and he is dedicated to taking on that role, so he understands he has to cut ties with her. He states that he does not intend to return to any sort of relationship with her, and he is prioritizing his children and their care and safety.

[78] In the event the children were returned to his care, he says he would allow the children to maintain a relationship with their mother in a way that does not expose them to conflict. He proposes this could be done at a supervised access centre and that they would not have any contact during pick-up or drop-off.

[79] Ms. H., for her part, says that the Respondent father has had no contact with the Respondent mother since she has been acting as a surety for him since September 2022.

The Respondent father’s parenting plan

[80] The Respondent father states that he is prepared to provide a safe, loving, and happy home for M.R. and L.R-M.. He has a home large enough for the three of them, and the supplies needed to care for them, including beds, clothes and toys. He states that he is prepared to support them with whatever services, supports and special diets they may need as they grow.

[81] The Respondent father notes that in his care, the children would be able to live together as siblings. He states he would ensure that they also maintained a good relationship with M.M. and other half-siblings, and that he would make arrangements with M-A.P. to permit the children to visit together.

[82] The Respondent father has outlined the programs he has completed that have been recommended to him by the Society. He says he completed Caring Dads five years ago and found it to be valuable. He will do that course again. He has almost completed an anger management program, and he is engaged with Addiction Treatment Services. He is attending an after-care program (virtually) following his residential treatment in Toronto. Last year, he completed the Nurturing Parents Program. He remains connected to the methadone program through Ontario Addictions Treatment Centres.

[83] The Respondent father states that nothing about his current lifestyle is unstable. He does not live in a culture of substance abuse. He has cut ties to J.A.R.. He has not been involved in criminal activity for many years. He has had a stable residence for a number of years. He denies that he has ever neglected his children’s needs or been unable to meet them.

[84] The Respondent father also says that when he was around, he was the primary caregiver to the children when it came to working with the children’s school and doctors and they have always had their needs met while in his care. He says that the children resided in the Respondent mother’s home and there were times when he was prevented by her or by court conditions from being involved. He was not able to be as directly involved since the children did not live in his home.

[85] As for his supports, the Respondent father states in his affidavit of March 11, 2022 that he has support from his mother, his brother J[…], and three of his neighbours, all of whom can assist him with intermittent child care. He states his family members can additionally provide him with emotional and financial support if needed.

Additional evidence

[86] The Respondent father is signed up for the Caring Dad’s Program scheduled to begin in March 2023, at the recommendation of probation services. He previously completed the program in 2018.

[87] Ms. Fraser also expresses the concern that despite his efforts to attend programs, no “sustained positive change” has occurred. She states: “There continues to be a limited network in place that would be present to help D.D.M. in creating safety and stability for M.R. and L.R-M.. Lastly, there remains worry about the pattern of neglectful parenting that has been occurring when the children were being cared for by their parents and an inability to meet the special needs of either child”.

[88] Ms. Fraser also states in her affidavit of February 16, 2023, that on two occasions (November 28, 2022 and February 1, 2023), Ms. H. called her to cancel the access visit with the children. On both occasions, she could hear the Respondent father yelling in the background. On the first occasion, he was angry his mother had cancelled the visit. On the second occasion, he was calling her names and also blamed her for cancelling the visit. He said no one would believe his mother’s suspicions he was using drugs because she was “crazy”.

[89] R.R. states in her affidavit that the younger children (M.M. and M.R.) were not supervised properly by the Respondent parents. She recalls seeing M.M. by himself, outside, with the Respondent father’s car keys. The Respondent denies this occurred.

[90] R.R. states that their home was not a safe or happy place to be and she did not feel safe or well cared for in the home. She does not want her siblings to experience that.

Analysis

[91] As was noted by Baker J. in Children’s Aid Society of Brant v. K.A.W., 2022 ONCJ 33 at paras. 6-9, Rule 16(4) of the Family Law Rules requires that “the 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”. This makes it clear that “the party moving for summary judgment must tender affidavit or other evidence that is specifically purposed to the motion”. She noted that in the case before her, where the affidavits of the child protection workers filed had been prepared before this step in the litigation, the affidavits were not “designed to set out “specific facts showing that there is no genuine issue for trial”. Consequently, the evidentiary record contained largely inadmissible hearsay, and no clear identification of facts that demonstrate no genuine issue for trial.

[92] There are similar problems in the case before me. The evidence filed by FCSRC largely consists of affidavits prepared by child protection workers at other steps in the litigation and for different purposes. The affidavits accordingly summarize a great deal of information obtained from others. These affidavits may meet the evidentiary standards required for other steps in the litigation. However, I agree with Baker J.’s comments at paras. 10-11 that this approach may be problematic in the context of a summary judgment motion:

[t]here are good policy reasons for requiring that the moving party on a motion for summary judgment to [sic] serve and file a complete record of admissible evidence with the motion. Responding parties are put at a disadvantage when they are referred to affidavits that contain improper evidence that does not meet the standard for a motion of this nature. Respondents are expected to put their “best foot forward” in responding to the motion. It is virtually impossible to do so in a situation where the Applicant is proposing on the face of its materials, to advance inadmissible evidence.

Motions for summary judgment, especially ones seeking extended care without access, are important proceedings for Respondents and children. It is not unreasonable to insist that a proper evidentiary record, prepared specifically for the purpose, be before the court.

The Applicant’s rather cavalier approach to its evidence in this matter is not congruent to the significance of the interests at stake.

[93] It is also noteworthy that after reviewing the duty of child protection agencies to assist in promoting the primary objective of dealing with cases justly (pursuant to subrule 2(4) of the Family Law Rules), Baker J. found that the Society had not prepared its case in a manner consistent with that duty. She held at para. 18:

In filing inadequate evidence and indicating an intention in the notice of motion to rely on an affidavit that contains deficient and indeed inadmissible evidence, the Society invites unfairness to seep into the process. It is not enough for counsel to say at the commencement of the hearing that the Society is not relying on the inadmissible hearsay evidence. The notice of motion specifically indicates an intention to rely on that evidence. That evidence should not even be before the court on the motion. It certainly does not further the objective of saving expense and time and giving appropriate court resources to the case to set up a situation where the parties and the court must comb the evidence to determine what is admissible for the specific purpose of the hearing and what is not.

[94] I have similar concerns here. Following the submissions of counsel, the court is left to “comb the evidence” to determine what is admissible for this hearing and what is not.

[95] Quite apart from this, the fairness concerns identified by Baker J. are important. In this case, I can see no indication that FCSRC identified what hearsay in the extensive evidentiary record it has filed will be relied upon for the purposes of this hearing. The admissibility of hearsay, and which statements in this record it seeks to have admitted, were not identified in its factum. While argument was made during submissions about the admissibility of certain statements (for instance, statements made by the child M.M. to police about the Respondent father’s conduct), I agree with counsel for the Respondent father that the evidentiary record does not permit me to appropriately assess the admissibility of the utterances addressed in submissions. This is particularly so where the basis of admission is said to be the principled exception, where the party seeking admission of the statement must demonstrate both necessity and threshold reliability. Evidence is generally required on those factors to permit the analysis to be done. While in this instance the issue of necessity is conceded insofar as the child M.M. is concerned, it remains a live issue for statements from medical providers and others.

[96] On this point, I recognize that it is no doubt cumbersome to obtain affidavits from persons other than child protection workers to ensure that relevant evidence is admissible in a summary judgment motion. But a cumbersome process is not a basis to find that hearsay evidence is “necessary” within the meaning of the law.

[97] The summary judgment motion is akin to a trial in that the evidentiary standards are the same. The parties to such motions should consider this evidentiary standard in determining what to include in their evidentiary records.

The evidence in this case

[98] The affidavits of child protection workers set out the history of the Respondent parents with various children and child protection agencies. I consider that evidence as narrative context.

[99] This motion relates to the child protection concerns associated with the Respondent father specifically. While a great deal of the affidavit evidence focuses on the Respondent mother and her ability to parent, in considering the evidence, I assess only the evidence that is admissible in relation to the Respondent father’s history and ability to parent.

[100] The evidence of various communications the Respondent father has had with child protection workers, and those things the workers have heard him say to others are all admissible. This evidence is admissible to show that despite having been requested to do so repeatedly, the Respondent father has failed to provide a copy of his criminal record or consents to obtain information about his progress in drug treatment.

[101] The child protection worker’s evidence is also admissible to show that on two occasions (November 28, 2022 and February 1, 2023), the Respondent father yelled at his mother while she was on the phone with a child protection worker to cancel his access with the children. On the second occasion, he was calling his mother names (“useless” and “crazy”), blamed her for cancelling the visit, and said no one would believe her (about her suspicions the Respondent was using drugs) because she was “crazy”. The evidence of the child protection workers is also admissible as it relates to the Respondent father’s comments about his feelings about the Respondent mother, and when he last used drugs. However, on many of these issues, the Respondent father has presented competing evidence.

[102] The child protection workers’ affidavits do little to assist in proving some of the more important factual issues giving rise to the protection concerns. While they clearly set out the bases for their concerns, much of what they relate is hearsay.

[103] For instance, M-A.P. gave information to a worker on October 15, 2021 about a pattern of domestic violence between the parents and a pattern of neglectful parenting. No affidavit from M-A.P. was filed on the motion, however.

[104] The workers have also been given information by the foster parents, or by the Respondent father’s mother which is highly relevant. Emails from Ms. H. to the foster parents are attached to an affidavit of a child protection worker. No affidavits are provided from the foster parents properly identifying these emails. The emails are double hearsay. There is also no evidence from the foster parents directly about the children and their needs, their communications with the Respondent father (including around attendance at access visits) or other communications with Ms. H., all of which are described in the workers’ affidavits and are hearsay.

[105] There is no evidence from the Respondent mother about the history of domestic abuse or the Respondent’s assaults on the children. This is not surprising. However, to the extent that there are court records showing prior convictions, transcripts of the proceedings and certified copies of the information(s) showing any conviction might have been obtained and filed on the motion.

[106] There are also no court records confirming the history of any criminal convictions for assaulting M.M..

[107] The outstanding charges faced by the Respondent are based on allegations made by the Respondent mother which are largely historical in nature. This case has not yet gone to trial, and the Respondent mother’s credibility and reliability will no doubt be seriously contested. The state of the record does not permit the court to assess any hearsay evidence in the workers’ affidavits about these charges. While the issue of necessity is conceded in regard to statements from M.M., threshold reliability must still be proved. Typically, an interview of this kind would be videotaped. It is not clear if this was done in this case, or what recording of the interview exists. It is not clear what markers of procedural or substantive reliability are present to support the admissibility of this statement, or that a statement of this kind may be admitted under the state of mind exception. These and other issues need to be addressed in an admissibility voir dire if FCSRC wishes to rely on this hearsay statement.

[108] As for the statement M.M. gave to the child protection worker in or around 2019, it is not clear precisely when this was made. It is not clear if FSCRC is relying upon it, or not. The admissibility of the statement as hearsay is subject to the same concern identified above.

[109] There is no evidence from any service provider for the children. All medical reports, letters or notes are attached as exhibits to the affidavits of child protection workers. I decline to give this hearsay evidence any weight absent a consent from the Respondent that they are admissible for the truth of their contents.

[110] On the other hand, there is specific evidence from the Respondent father and his mother which contradicts a number of material facts grounding the child protection concerns.

Summary judgment principles applied to the facts

[111] In this case, I have considered the admissible evidence and the extent to which it supports the findings sought by FCSRC given the facts that are in dispute. The parties have presented competing accounts of various events and a number of material facts are in dispute. At this stage, pursuant to Hryniak, I do not rely on the additional fact-finding powers set out in Rule 16. I am satisfied that the evidence demonstrates genuine issues for trial, including whether the children are in need of protection and the appropriate disposition if so.

[112] Consequently, I continue on to assess whether the case may be fairly and justly resolved using the additional fact-finding powers contained in Rule 16. Rule 16 also specifies that those powers may be used “unless it is in the interests of justice that such powers be exercised only at trial”.

[113] I find that it is in the interests of justice that such powers be exercised only at trial. This is because the evidentiary record does not permit me to fairly and justly resolve the issues.

[114] One important reason for this conclusion is that there are significant credibility issues to be determined given the facts that are in dispute. For instance, the Respondent father denies the basis for the protection concerns and has provided reasonably specific evidence in denying them. He files an affidavit from his mother in support of his position. FCSRC has provided evidence and information that contradicts much of what the Respondent father and his mother state (for instance in the affidavit from R.R., and emails from the Respondent’s mother about the Respondent father’s drug use and behaviour). Cross-examination of these individuals will be important and necessary to permit fair determinations of credibility and findings of fact.

[115] There are other issues too. As I have said, there are hearsay statements whose admission requires more careful consideration. Their admissibility cannot fairly be assessed on this record. While there is currently no admissible medical evidence (factual or opinion evidence) to address the nature of any special needs of the children and any treatment or supports required for them, it is clear that this type of evidence could be available to the trial court in determining the issues. In my view, that evidence should be presented at trial and tested by cross-examination if the parties cannot agree on what evidence is admissible in the form of a report or medical notes.

[116] As for the arguments that various inferences are available to the court to conclude that the children are in need of protection and that an order for extended society care should be made, I decline to make such important inferences on a record of this kind. The inferences sought by FCSRC (for instance as a result of the Respondent father’s failure to provide a copy of his criminal record or evidence of clean urine screens or to attend at any of the children’s appointments) may be more appropriately assessed in the context of a trial record, and with the benefit of hearing any explanations provided by the Respondent father.

Conclusion

[117] Given my concerns about the absence of admissible evidence presented on the motion and the extent to which factual findings will require assessments of credibility, I find that the issues of whether the children are in need of protection and if so, what disposition is in their best interests, cannot be fairly and justly resolved. I find it is in the interests of justice that these issues be resolved in a trial.

[118] Before concluding, I confirm that I regret that this decision means that the children remain without the benefit of a permanent placement. I am aware that the time they have been in care exceeds the legislative timelines. These circumstances do not relieve me of my obligation to apply the directives in Kawartha, however. I trust the parties will act diligently in having this matter scheduled for trial as soon as possible, and have advised the trial co-ordinator of the urgency involved in this case.

Lacelle J. Released: April 6, 2023