COURT FILE NO.: FS-18-5789 DATE: 2023-06-23

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Kenora-Rainy River Districts Child and Family Services Mr. D. Elliott and Ms. J. Clouston for the respondent Society Applicant (Respondent in this Appeal)

- and -

P. N. R. and K. R. P.N.R. as appellant appearing personally and as agent for K.R., who was also present Respondents (Co-Appellants in this Appeal)

HEARD: via Zoom at Kenora, Ontario on June 2, 2023

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.

Madam Justice H. M Pierce

Reasons on Appeal

The History of the Proceeding

[1] P. N. R. and K. R. are parents of two children, who will be known for the purposes of this appeal by their initials. J.R. was born on […], 2002, and A.R. was born on […], 2007. I will refer to the appellants as “the father” and “the mother.” The father is a police officer, the mother a nurse.

[2] Early in the school year, J.R. wrote an essay for school in which he described physical abuse inflicted on him by his parents. This prompted the school to contact the police.

[3] The following day, September 8, 2017, the Ontario Provincial Police and Kenora – Rainy River Districts Child and Family Services (“the Society”) began a joint investigation of the allegations. Both children were immediately interviewed and disclosed incidents of physical abuse. They were apprehended that day and placed in temporary care.

[4] On September 9, 2017, the Society was notified by police that the father was charged with assault and assault with a weapon against the son, J.R., while the mother was charged with two counts of assault and one count of assault with a weapon relating to both children.

[5] The parents were released on undertakings that prohibited contact with the children. Because the father was a police officer attached to the detachment that commenced the investigation, the prosecution of these charges was transferred to Thunder Bay.

[6] In parallel proceedings, the Society issued a protection application on September 12, 2017. The application sought findings pursuant to the Child and Family Services Act, R.S.O. 1990, c. C. 11 that:

a. pursuant to s. 37(2)(a)(i) and (ii)), the children had suffered physical harm;

b. pursuant to s. 37(2)(b)(i) and (ii)), there is a risk that the children are likely to suffer physical harm from their care-givers; or

c. pursuant to s. 37(2)(g), there is a risk that the children are likely to suffer emotional harm.

[7] The Society also claimed an order for temporary wardship of the children for six months. Early in the Society’s investigation, the children indicated they didn’t want to go home.

[8] The Ontario Court of Justice issued a temporary order dated September 12, 2017, placing the children in the temporary care of the Society. The court also ordered legal representation for the children.

[9] The parents were each represented by counsel in both the criminal and child welfare proceedings. The children were represented by the Office of the Children’s Lawyer in the child welfare proceedings. Unaccountably, counsel for the Children’s Lawyer, although present, did not participate in the summary judgment motion.

[10] The children were re-interviewed on September 14th, 2017 and their views about alternate placements with friends were explored. The same day, the father advised the Society that the parents had separated and the mother had left the family home.

[11] On September 19, 2017, the father’s undertaking in the criminal prosecution was varied to permit supervised access to the children.

[12] The father moved for the return of the children in the child welfare proceeding on October 11, 2017. On October 12th, A.R. wrote a letter to the judge, indicating her wish not to return home at that time, and suggesting visits once a week.

[13] The father’s motion for the return of the children was adjourned from time to time and the temporary care order extended until October 31, 2017 when a consent order was made for the return of the children to the father’s care. This order was subject to Crown agreeing to vary the father’s undertaking in the criminal case that prohibited unsupervised contact with the children.

[14] On November 3, 2017, the Crown prosecutor agreed to vary the father’s undertaking and the children returned to their father’s care about 49 days after their apprehension.

[15] Next, the mother served an order returnable December 6, 2017 seeking a variation of the temporary care order to permit her supervised access with the children. The Society agreed with this variation.

[16] On December 12, 2017, the Society advised the mother’s counsel that it would not oppose the mother’s return to the family home under the supervision of the father, provided the Crown would consent to vary her undertaking in the criminal proceeding. On December 13th, the Crown prosecutor agreed, and the mother’s conditions were amended accordingly.

[17] On December 13, 2017, the family court granted an interim order on consent permitting the mother to return to the family home. The mother returned to the family home on December 18, 2017.

[18] On February 1, 2018, the father’s counsel served a motion seeking dismissal of the Society’s protection application, pursuant to Rule 16 of the Family Law Rules (summary judgment).

[19] On February 13, 2018, the children met with a Society social worker and confirmed their statements given to police, social workers and caregivers. That evidence, part of a voluminous record, was before the motions judge.

[20] The Society served a cross-motion on February 20, 2018, seeking dismissal of the father’s motion, with protection and statutory findings pursuant to s. 37(2)(b)(i)(ii) and s. 37(2)(g) of the Child and Family Services Act and no further disposition order.

[21] The Society served an amended motion dated February 26, 2018. The second motion reiterated the Society’s claim to dismiss the father’s summary judgment motion and enlarged the grounds on which it claimed protection findings, seeking findings pursuant to s. 37(2)(a)(i) and (ii), as well as pursuant to s. 37(2)(b)(i) and (ii) and s. 37(2)(g) of the Child and Family Services Act, statutory findings and no further dispositional order.

[22] The motions for summary judgment were argued on April 10, 2018. Reasons for judgment were released by Justice Hoshizaki on May 15, 2018. The court found that there was no triable issue requiring a trial for protection findings under s. 37(2)(a)(i) and (ii) and granted the Society’s motion for summary judgment on those grounds.

[23] In doing so, the court concluded that J.R. and A.R. were in need of protection under subsections. 37(2)(a)(i) and (ii) of the Act, made the required statutory findings, and imposed no further disposition order. In view of these findings, the court concluded that it was not necessary to consider the best interests of the children.

[24] The criminal proceedings resolved some seven months later. On December 14, 2018, the father pleaded guilty to a single count of assault on J.R. The Crown and defence negotiated an agreed statement of fact in relation to that charge, and a joint sentencing submission proposing an absolute discharge, which was accepted by Justice Joubert.

[25] Justice Joubert, in his reasons for sentence delivered February 12, 2019, made observations critical of the Society’s handling of the child welfare case, which the father relies upon as findings of fact on this appeal.

[26] The mother’s criminal charges were withdrawn on August 20, 2019.

Issues on Appeal

[27] The supplementary factum filed on the parents’ appeal, as well as the father’s oral submissions, confirm that the appeal is limited to Justice Hoshizaki’s finding that the children were in need of protection pursuant to s. 37(2)(a) of the Child and Family Services Act, [repealed on April 30, 2018].

[28] Section 37(2) of the Child and Family Services Act states:

37(2) A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s,

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

(i) pattern of neglect in caring for, providing for, supervising or protection of the child.

[29] The father identifies the following five issues on this appeal:

1. Fresh evidence filed on the appeal warrants overturning the summary judgment, especially as it relates to non-disclosure;
2. The summary judgment motions judge erred in law by failing to recognize that actual physical harm that is more than trifling is required to trigger a finding of protection pursuant to s. 37(2)(a);
3. The judge erred in law in failing to apply the proper legal test for a protection finding, on summary judgment, and in reversing the onus from the Society to the mother in regard to physical harm;
4. The judge misapprehended and disregarded material evidence relating to whether the children were in need of protection and the issue of actual physical harm, while admitting hearsay evidence, leading to errors of law as well as palpable and overriding errors of fact;
5. The summary judgment process violated the principles of procedural fairness and natural justice because the parents were not advised of the finding pursuant to s. 37(2)(a), lack of disclosure, lack of opportunity to test the evidence, inadequate reasons on the record, and a reasonable apprehension of bias/lack of impartiality by the motions judge.

Standard of Review

[30] The father submits that the motions judge in this case made errors of law. He submits that standard of review that applies to errors of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.). While that is a correct statement of law, it does not apply to the judge’s function or conclusions in this case.

[31] In this case, the motion judge exercised her powers under r. 16(6.1) of the Family Law Rules to weigh evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence. The result is a finding of mixed fact and law, entitled to deference. The leading case on the standard of review in summary judgment motions is Hryniak v. Mauldin, 2014 SCC 7.

[32] In Hryniak, the Supreme Court emphasized the importance of proportional procedures, such as summary judgment motions, in order to ensure access to timely and affordable justice in the civil justice system (paras. 2 and 34).

[33] At para. 49, Justice Karakatsanis explained when there will be no genuine issue requiring a trial:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[34] At para. 50, the court cautioned that,

… the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[35] At para. 81 of Hryniak, the court described the standard of review as follows:

In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) [comparable to r. 16 of the Family Law Rules] and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 36.

[36] The fact-finding powers of the motion judge are discretionary. At para. 83, Justice Karakatsanis concludes:

Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

[37] The father cites Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, para. 80 in support of his submission as to how summary judgment motions and appeals should be handled in child protection proceedings.

[38] The conclusions of the Court of Appeal in Kawartha-Haliburton must be read in the context of the factual background. The self-represented, single and Indigenous mother consented to summary judgment for Crown wardship but sought access to her children in extended care. The motion judge denied the mother access to her children in extended care. By the time her appeal reached the Divisional Court, transitional provisions of the new Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. were applicable. The Divisional Court did not apply the transitional and expanded provisions of the succeeding Act with respect to access.

[39] As well, the Court of Appeal held that the Divisional Court failed to apply the new considerations for Indigenous children and misstated the approach to summary judgment for child protection matters.

[40] In the present case, the children had long been returned home by the time the summary judgment motions were heard and no other disposition was being sought. Each parent and the children were all represented by counsel. The parents, of Jamaican origin, were well-educated and employed and could not be described as marginalized. The threshold issue for determination by the court was whether the children had been physically harmed.

[41] The parents, themselves, moved for summary judgment, arguing that there were no triable issues, the Society having proposed to close their case but declining to do so with criminal charges involving the children still before the court.

Discussion

Issue 1: Fresh Evidence on Appeal

[42] On January 23, 2019, Justice Fregeau granted the father’s motion to file fresh evidence on appeal. The order was limited to an affidavit setting out the parents’ position that they were unaware at the hearing of the summary judgment motion that the Society was relying on s. 37(2)(a) of the Act. See: KRRDCFS v. R., 2019 ONSC 606.

[43] In addition, on February 28, 2019, Mr. Justice Fregeau granted a consent order permitting the reasons for judgment of Justice Joubert in the criminal proceeding and the joint book of documents filed on sentencing to be admitted as fresh evidence on the appeal.

[44] In response to the parents’ disclosure motion, on June 15, 2020, Justice Fregeau ordered limited disclosure of any undisclosed notes made by social workers and foster parents. The Society was also ordered to disclose whether any social work notes pertaining to the investigation had been destroyed, and if so, when and why. Certain other requests for disclosure were refused. See: KRRDCFS v. R. 2020 ONSC 3745.

Disclosure of Notes

[45] Affidavits of Ms. McFayden, Ms. Rosin, Ms. Delorme, Ms. Konrad and Ms. Pihulak, since served, describe their compliance with that disclosure order, disclose notes that were not destroyed, and describe notes destroyed pursuant to the Society’s policy regarding client privacy, also disclosed.

[46] Justice Fregeau ordered that any notes ordered disclosed could be admitted as fresh evidence. I have reviewed these additional materials.

[47] A social worker, Ms. Struthers, was terminated by the Society. The parents believed she was terminated because she advocated closure of the file before the summary judgment motion.

[48] Justice Fregeau specifically determined at para. 37 of his reasons, “Whether or not the termination of Ms. Struthers was related to her conduct in relation to the [children’s] apprehension file is not relevant to the facts in issue and need not be disclosed.”

[49] Despite this finding of irrelevance, the father claims at para. 104 of his factum that the absence of this disclosure relating to Ms. Struthers points to some malfeasance on the part of the Society in this case. The father submits that fresh evidence on appeal warrants overturning the summary judgment, even before other issues are considered. He argues that, had the motions judge been aware of the fresh evidence, she could not have made the ruling she did.

[50] The Society produced the notes ordered. Despite the production of these notes and records ordered to be produced and admitted as fresh evidence on the appeal, the father alleges the Society filed misleading affidavits. He does not identify any notes or records to support his claim.

Justice Joubert’s Reasons for Sentence and the Agreed Statement of Fact

[51] As I have said, on December 14, 2018, the father pleaded guilty to a single count of assault on J.R. The Crown and defence negotiated an agreed statement of fact in relation to that charge, and a joint sentencing submission proposing an absolute discharge, which was accepted by Justice Joubert.

[52] The father submits that the findings of Justice Joubert that are critical of the Society’s investigation and litigation strategy constitute evidence that should be accepted on appeal. I do not agree.

[53] Justice Joubert’s task was to determine guilt or innocence of the father and sentence him. The applicable standard of proof is proof beyond a reasonable doubt. He did so based on an agreed statement of facts negotiated by the parties, sufficient to achieve the aims of prosecutor and defence and sufficient to prove a single count of assault.

[54] The agreed statement of fact admitted that the father struck J.R. with a belt on at least three occasions and rapped him on the head or with open-handed slaps at other times. This admission, post-dating Justice Hoshizaki’s reasons for judgment, supports her conclusions.

[55] In the course of sentencing, Justice Joubert heard joint submission of counsel, buttressed by other sentencing materials. The court’s jurisdiction over criminal offences and the policy reflected therein is very different than the legislative scheme, jurisprudence, and social policy reflected in child welfare.

[56] Justice Joubert was dealing with apples; Justice Hoshizaki with oranges. Justice Joubert was not privy to the evidence filed in the child protection proceedings, did not apply the evidentiary standard on a balance of probabilities, did not consider the jurisprudence or hear submissions made by counsel in the course of the proceedings. His observations about the Society’s investigation therefore have no relevance to the appeal.

[57] The father has not identified any fresh evidence that would have altered the outcome of the appeal in accordance with Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775.

Scope of the Summary Judgment Motion

[58] The father served an affidavit dated May 16, 2019, in response to Justice Fregeau’s order that he could file an affidavit as fresh evidence on appeal, limited to the parents’ position that they were unaware that the Society was relying on s. 37(2)(a) of the Act at the summary judgment motion.

[59] The father concedes in his affidavit that the claim for s. 37(2)(a) findings was part of the Society’s initial application. However, he submits that the parents were unaware at the time the summary judgment motion was argued that the Society intended to rely on s. 37(2)(a)(i) and (ii) of the Act for findings that the children had suffered physical harm.

[60] The affidavit of Ms. Delorme dated February 20, 2018 did not refer to s. 37(2)(a) grounds. The father submits that had he been aware that the issue was not limited to risk of future harm, he would have “insisted on full disclosure, oral evidence” and further filings to refute the allegations of past harm.

[61] As I have said, the Society served a cross-motion for summary judgment on February 20, 2018, seeking dismissal of the father’s motion and protection and statutory findings pursuant to s. 37(2)(b)(i)(ii) and s. 37(2)(g) of the Child and Family Services Act but no further disposition order.

[62] The Society served an amended motion dated February 26, 2018. The amended motion reiterated the Society’s claim to dismiss the father’s summary judgment motion and enlarged the grounds on which it claimed protection findings, seeking protection findings pursuant to s. 37(2)(a)(i) and (ii).

[63] On February 28, 2018, the mother’s counsel, Mr. Jurianz advised the court that he needed an opportunity to respond and sought an adjournment. He was granted an adjournment but ultimately did not make any additional filings. The summary judgment motion was argued on April 10, 2018.

[64] I do not accept that counsel for the parents were taken by surprise with respect to this argument on the motion where it was argued at length by all counsel and referred to by the judge. See, for example, the following transcript references:

a. p. 10 - 11: the judge asks Ms. Bell (counsel for the father), “No ongoing protection concerns, is that not the issue, the issue we are really honing in on was there a protection concern at the time of apprehension. Is that not it?” Ms. Bell replies, “Yes Your Honour.”

b. p. 18: Ms. Bell argues that there were no protection concerns at the time of apprehension.

c. p. 20: Ms. Bell argues that the children were apprehended based on allegations of historical assaults, making the argument that the Society must prove protection concerns at the date of the hearing.

d. p. 27: Mr. Elliott specifies that the Society’s pleadings seek both actual physical harm pursuant to s. 37(2)(a)(i) and (ii) in addition to risk of physical harm pursuant to s. 37(2)(b) and risk of emotional harm. He submits that proof of actual harm is made out and that the court can find there was actual harm.

e. p. 29 Mr. Jurianz argues that a finding of dated historical harm should not ground a finding pursuant to subsection 2(a);

f. p. 38: Ms. Bell denies the allegation that J.R. was struck with a belt.

g. p. 41: Mr. Elliott refers to the father’s comment early in the Society’s investigation that the parents had decided that [physical discipline] needed to stop.

h. p. 45: Mr. Elliott argues for a finding pursuant to s. 37(2)(a) of the Act, on the basis that J.R. reported about 12 incidents of physical and emotional harm at the time of the investigation in 2017 and 4-5 historical occurrences, and A.R.’s report of about 7 recent incidents near the time of the investigation and 5 historical occurrences.

[65] Thus, the issue was canvassed by all counsel at the summary judgment motion and referred to by the court. Whether there had been physical harm was the central issue in argument.

[66] While Ms. Bell argued that credibility issues should be tested at trial, the motions judge did not ultimately accept that submission.

[67] In my view, the fresh evidence filed on appeal would not have altered the outcome had it been available to the motions judge. I would not give effect to these grounds for appeal.

Issue 2: The Test for Physical Harm

[68] The father argues that the motions judge erred in law by failing to recognize that actual physical harm that is more than trifling is required to trigger a finding of protection pursuant to s. 37(2)(a) of the Act.

[69] In support of this argument, he relies on Catholic Children’s Aid Society of Toronto v. N.A., 2011 ONCJ 671, para. 70. He submits that if the children were harmed by either parent, it was trifling and did not meet the test.

[70] Para. 70 of this case reviews principles emerging from case law where a Society alleges a child is in need of protection due to physical harm or the risk of physical harm. The court notes that there must be more than trifling physical harm. It also summarizes common circumstances leading to findings of physical harm or the risk of it. One of these circumstances is inappropriate discipline.

[71] The father relies on Children’s Aid Society of Hamilton-Wentworth v. C.W..

[72] The Hamilton-Wentworth case predates the Supreme Court’s consideration of corporal punishment of children. It dealt with an isolated incident of parental punishment. Three blows were administered with the back side of a plastic spaghetti spoon against the child’s buttocks; however, when the child twisted away from the mother, she inadvertently struck his shoulder, causing the bruising that was noticed at school and reported to the Society.

[73] The court characterized the punishment as being administered when the mother was in a controlled state of mind, rather than impulsively striking or kicking, and the child was fully clothed. The court was satisfied that there was no bruising or abrasions to the buttocks and dismissed the application for a finding of physical harm or substantial risk of harm pursuant to s. 37(2)(a) or (b).

[74] Each case turns on its facts. The Hamilton-Wentworth case is distinguishable from the case at bar, in that it deals with an isolated incident of physical punishment that was administered in a controlled state of mind.

[75] The Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 discussed corporal punishment and considered whether s. 43 of the Criminal Code was constitutional. In doing so, the court set a standard for the use of corporal punishment in Canada.

[76] Section 43 of the Criminal Code permits children’s parents and teachers to use minor corrective force in some circumstances without being subject to criminal sanctions. It states:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances. (para.1).

[77] At para. 24, the court clarified that the force must be for educative or corrective purposes. Significantly, the court added,

…section 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration.

[78] At para. 37 of the decision, the Supreme Court concluded,

…Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

[79] In Children’s Aid Society of Toronto v. E.U., 2014 ONCJ 299, at para. 107(g), the court cited with approval these observations about corporal punishment from Canadian Foundation for Children, Youth and the Law, as they were also applied in Children’s Aid Society of Toronto v. L.E., 2012 ONCJ 3770.

[80] At para. 55 of her reasons, Justice Hoshizaki considered the evidence in light of this standard. This was a correct application of the law as it applied to the evidence she accepted.

[81] The parents minimize the frequency and extent of physical harm they inflicted on the children, characterizing it as culturally appropriate discipline and contending that J.R. was exaggerating in his essay.

[82] Justice Hoshizaki rejected this position. She accepted the content of J.R.’s essay describing the physical abuse at the hands of his parents, the content and consistency of the children’s interviews, as well as the father’s admission that things had to change.

[83] Her findings of multiple incidents of physical harm over a long period of time are summarized at paras. 6-12 of the reasons for judgment. J.R. reported beatings and spankings. He described his mother slapping him on the face so hard that it left a red mark. He indicated that when he was young, she used a belt or a coat hanger on his hands. He witnessed his mother slapping A.R.

[84] J.R. reported that his father, in anger, hit him across his left side, hit his legs, pushed him to the ground and continued hitting him. He also described his father throwing a chair in anger the previous year that hit him on the legs.

[85] A.R. reported that her mother has slapped her repeatedly, hit her with a hanger, a wooden spoon and a shoe. She stated that her father has hit J.R.

[86] Justice Hoshizaki found that the children corroborated each other’s accounts of physical harm.

[87] Implicitly, she found the physical harm was more than trifling, referring to the criminal charges the parents were then facing.

[88] At para. 52 of her reasons for summary judgment, Justice Hoshizaki observed:

There was a clear admission by the father when he stated that they knew things had to change. The “discipline” crossed the line to abuse as soon as the parents lost control of their anger. The events described by both children include the anger of the mother and/or father and the use of hangers, shoes and belts to hit the children. They were clearly not in control. Accordingly, I do not accept the position of the parents that this physical abuse was culturally appropriate since the majority of acts described were acts borne out of anger.

[89] As we now know, the father subsequently pleaded guilty to a single count of assault on J.R. The fresh evidence filed on the appeal at the father’s request includes an agreed statement of fact filed upon his plea of guilty to assault on J.R. It acknowledges that the father had, under the guise of discipline, inflicted on J.R. what would qualify as assaults under criminal law.

[90] The salient portion of the admission states:

… During the course of the interviews with J.R. and A.R., it was determined that a number of incidents of purported discipline, that could under current law qualify as assaults, had occurred against J.R. Specifically, when J.R. was approximately 8 or 9 years old and the family was residing in Kanata near Ottawa, [the father] took J.R. out of bed by the arm at night when the house was dark and his mom and sister were in bed. J.R. recalls [the father] bringing him downstairs to the living room holding him by the arm. Once in the living room he recalls that his father questioned him about what he had done with [the father and the mother’s] wedding rings. When J.R. did not say anything, [the father] then struck J.R. several times on the side of his torso and upper arm with a thick fabric military style duty belt. J.R. did not recall any injury or bruising coming from this incident but rather indicated he already had bruising on his body from being bullied at school and that he just believed he had some additional temporary redness from the belting. He did not seek medical attention. J.R. recalled that [the father] was angry and red faced with him during this incident and stopped hitting him when J.R. admitted throwing the rings down the drain.

J.R. describes being hit with the same belt approximately two more times when his family moved to Kemptville a year later, when he was approximately 9 or 10 years old. During these incidents the strikes with the belt were to J.R.’s hands. J.R. reports that he was never hit with a belt or object after this time, which was approximately 2011.

As J.R. became older, incidents of physical discipline occurred sporadically but did not involve objects, for example, involving “wraps” [sic] to his head or open-handed slaps.

[91] Justice Hoshizaki’s application of the law with respect to corporal punishment was correct and grounded in the findings of fact that she made on the evidence before her. The description of the physical harm mirrors that which the Supreme Court describes as unreasonable. There is no palpable and overriding error in Justice Hoshizaki’s conclusion. Her decision is entitled to deference.

Issue 3: The Judge Applied a Wrong Legal Test for Protection Findings on Summary Judgment and Reversed the Onus to the Mother Instead of the Agency

[92] The father relies on Kawartha-Haliburton Children’s Aid Society v. M.W. in arguing that the judge applied the wrong legal test for a protection finding and reversed the onus on the motion, requiring the mother to prove her innocence on the issue of abuse.

[93] Rule 16 of the Family Law Rules makes specific provision for summary judgment in child protection. The format of this process requires the moving party to file affidavit evidence and the responding party to answer the allegations by way of affidavit. If there is no issue requiring a trial, the court may grant judgment. The onus is on the moving party on a balance of probabilities.

[94] The relevant portions of the rule provide:

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

(4) 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.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on the presentation.

[95] In this case, the court was required to determine whether the children suffered physical harm or were at risk of likely suffering physical or emotional harm. No disposition order was sought and no determination of the best interests of the children was necessary. Thus, it was a very narrow issue, appropriate to the summary judgment process.

[96] The father initiated a motion for summary judgment, arguing that there was no case requiring a trial. Having selected the process, it does not lie in his mouth to complain about the Society’s responding motion for summary judgment findings of physical and emotional harm.

[97] In Kawartha-Haliburton Children’s Aid Society, para. 80, the Court of Appeal comments that although the rule requires the respondent to file an affidavit or other proof detailing the facts establishing that there is a genuine issue for trial, that the burden of proof remains on the moving party.

[98] Significantly, the responding party may not rest on allegations or denials but must set out an evidentiary basis establishing a triable issue. This became an issue in the mother’s case: that she did not deny the allegations of harm. The judge commented on this omission at para. 54 of her reasons: “…The case of the Agency is solid and unrefuted by the mother.” Thus, the motions judge considered the strength of the Agency’s case.

[99] This ground for appeal is without merit and is dismissed.

Issue 4: The Judge Misapprehended and Disregarded Material Evidence and Legal Principles Relating to Whether the Children Were in Need of Protection, and Admitted Hearsay Evidence, Resulting in Errors of Law and Palpable and Overriding Errors of Fact

[100] The father submits that the motions judge misapprehended the following material facts:

1. The judge erroneously believed the Society could not close its file because of the ongoing criminal case.

[101] At paras. 22-23 of her reasons, Justice Hoshizaki recited the father’s position that the Society had engaged in bad faith by proceeding with a summary judgment motion when it had no current protection concerns. She implicitly rejected that position when she granted the Society’s summary judgment motion. She was aware at the time of the motion that the Society was not seeking a disposition order, a result that was provided for in the Child and Family Services Act.

2. The judge erroneously believed that the Society had ongoing protection concerns.

[102] At para. 51 of her reasons, Justice Hoshizaki specifically states that the protection concerns about inappropriate discipline at the time of the apprehension are confirmed. At para. 56 of her reasons, she concludes, “I am not convinced by the evidence before the court that there is a future risk of physical harm under subsection 37(2)(b)(i) and (ii).” She declined to make that order.

3. The judge misapprehended the fact that the Society had indicated their intent to withdraw their application and relied instead on legal advice from their counsel.

[103] This objection is akin to the bad faith argument made at #1 above. In his reasons on the parents’ motion to file fresh evidence on appeal, delivered on January 23, 2019, Justice Fregeau specifically dismissed their request to file evidence of Heather Struthers about her personal opinion of the protection application. See: KRRDCFS v. R., 2019 ONSC 606.

[104] Whether the Agency changed its position is irrelevant to the focus of the case: determining if the children had been subjected to physical harm. The Society, like any other litigant, is entitled to take legal advice when considering what position to take in court proceedings. Ultimately, the decision of the Society was sustained in part by the judge’s findings, and later, by the father’s guilty plea to assault on J.R.

4. The judge erroneously admitted the Society’s hearsay interview with the children with the Society’s social worker, Ms. Delorme, on February 13, 2018.

[105] The father submits that this was a forced, involuntary interview in violation of the children’s Charter rights and further, that Ms. Delorme did not disclose the results of her interview with the parents that day.

[106] The Society submits that Ms. Delorme was tasked, as part of the Society’s duty to conduct ongoing investigations, to meet with the children in advance of the court hearing and ascertain whether they confirmed their previous statements to the police, social workers, foster parents, and A.R.’s letter to the judge.

[107] Ms. Delorme determined that the children’s evidence to authorities had not changed. However, the children told her that they were no longer being subjected to physical discipline since their return home. Her affidavit to this effect was served on the parents and filed in the court proceeding.

[108] The Society has a statutory obligation to investigate allegations of children in need of protection. There is nothing improper about Ms. Delorme’s interview with the children for that purpose.

[109] The parents had their own counsel and the father had filed his own motion to dismiss the Society’s application. There was no obligation on Ms. Delorme to file affidavit material on the parents’ behalf. I will discuss the hearsay objection below.

5. The judge failed to consider the father’s February 26, 2018 affidavit in response to the Society’s motion.

[110] The father’s affidavit focusses on his complaints about the Society’s handling of the case and his position that the Society engaged in bad faith. Since the task before the judge was to determine whether the children had been physically harmed and, if so, continued to be in need of protection, these complaints raised by the father were irrelevant to the issue before the court.

[111] The father submits that the judge did not hear oral evidence, permit cross-examination or testing of the evidence. He contends that the judge relied on inadmissible evidence that would not have been admissible at trial and did not consider whether it would be in the interests of justice to order a trial.

[112] Respectfully, I disagree. At para. 44 of her reasons, Justice Hoshizaki cited the test for summary judgment in Children’s Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (S.C.J.) at para. 43: “No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.”

[113] Rule 16 of the Family Law Rules does not require a motions judge to order a trial if she is satisfied, on the evidence, that she can achieve a “fair and just adjudication”: Hryniak, para. 4. The Rule specifically allows the judge to weigh evidence, evaluate credibility and draw inferences. That is what the motions judge did in this case.

[114] The single issue in this case was physical harm. The father objects to the admission of hearsay evidence as to the children’s allegations.

[115] Rule 14(19)(a) of the Family Law Rules permits the use of hearsay in affidavits from third parties where the source of the information is identified, and the deponent believes the information is true.

[116] Rule 16(5) of the Family Law Rules also permits the filing of third-party evidence in an affidavit, subject to the court drawing unfavourable inferences.

[117] The motions judge considered whether to admit the hearsay evidence of the children and conducted an appropriate analysis, citing R. v. Starr, 2000 SCC 40, 2000 S.C.C. 40. She considered whether the children’s evidence was corroborated and concluded that their statements corroborated each other’s evidence. She also concluded that their statements were initially corroborated by the father when he indicated that he knew things had to change.

[118] The father argued that J.R. was exaggerating in his school essay. Justice Hoshizaki considered and rejected the father’s argument that J.R. was exaggerating, observing that A.R.’s disclosure was remarkably similar, which supported the reliability of the children’s accounts.

[119] Ultimately, she admitted the children’s evidence under the principled exception to the hearsay rule, finding that it met the threshold criteria of necessity and reliability. She also found that the evidence was appropriately tendered under Rule 14(19) of the Family Law Rules.

[120] Further, at para. 42 of her reasons, the motions judge turned her mind to whether the children should be required to give oral testimony against their parents to confirm the allegations. She concluded that it was not necessary because “the disclosure arose through a school essay and their evidence given to many third parties has not changed.”

[121] Thus, she engaged in the process of weighing evidence, evaluating credibility, and drawing inferences. In doing so, she concluded that there was no genuine issue requiring a trial.

[122] The motions judge analyzed the quality of the evidence before her, applied the correct law to the evidence, made the findings permitted to her under Rule 16 of the Family Law Rules. I conclude that she made no error of law. Her decision is entitled to deference.

Issue 5: The Summary Judgment Process was Procedurally Unfair

[123] The father submits that the summary judgment process was unfair for a variety of reasons. This is a surprising position in view of the fact that the father himself selected this process, moving for summary judgment against the Society. It is also surprising because the court granted only partial summary judgment to the Society, determining that there was no risk of future physical harm to the children.

[124] Simply because a litigant disagrees with the outcome of a case doesn’t mean that the process was unfair.

[125] The father contends that the parents were never “properly” made aware that the Society was arguing s. 37(2)(a) grounds on the motion. I do not accept this submission for the reasons discussed above. Each parent was represented by his or her own counsel.

[126] The father submits that counsel were ineffective.

[127] Minutes of settlement dated July 11, 2019 and August 29, 2019 made between the parents and Mr. Jurianz and Ms. Bell respectively recite that the parents are abandoning their claims against their former counsel and Ms. Bell’s law firm. Each agreement states that the parents withdraw their allegations of ineffective assistance of their former counsel and will not make those allegations at the hearing of the appeal or in any interim proceeding.

[128] Despite these agreements, the father, at Issue 5 of his factum, alleges ineffective counsel. There is no evidence to support this contention.

[129] The father complains of lack of opportunity to test the evidence. Prima facie, the summary judgment rule provides that evidence will be tendered by affidavit. Counsel’s submission that credibility should be tested at a trial, a submission that was considered by the motions judge and discussed in argument, was not ultimately accepted.

[130] Questions put to counsel by the presiding judge should not be taken to be a judicial determination. It is common for judges to explore positions with counsel that they may not adopt in final reasons.

[131] The parents’ counsel argued on the motion that the onus was on the Society to show that the children were in need of protection at the time of the hearing and the Society had not met its burden of proof.

[132] This issue was addressed in the motion judge’s reasons, where she noted at para. 26 that there was conflicting case law on the point and adopted the flexible approach described in Children’s Aid Society of Toronto v. S.A., 2017 ONCJ 366.

[133] The father submits that the court erred in holding that the time for finding a child in need of protection was flexible; that she should have applied the time of hearing as enunciated in N.V.C. v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796.

[134] In N.V.C., Justice Wilson determined that the date of hearing was the appropriate date to determine the child’s need for protection. She, too, described the varied approaches taken by the courts around this issue.

[135] N.V.C. involved a mother who was found intoxicated when caring for the child on a single occasion some three years previously. Since that time, there had been no further care issues. The Society sought a finding of risk of harm, pursuant to s. 37(2)(b)(i) and (g) of the Child and Family Services Act.

[136] Justice Wilson held that the time for the court to make a finding of risk of harm was at the time of the hearing. She relied on the decision of Justice Czutrin in Children’s Aid Society of Hamilton-Wentworth v. R. (K.) where the issue was also risk of future harm.

[137] At para. 50 of his decision, Justice Czutrin also reflects,

I have come to the conclusion that the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date. This is consistent with the Act and certainly consistent with the Supreme Court of Canada decision [in Catholic Children’s Aid Society of Metropolitan Toronto v. C. M., [1994] 2 S.C.R. 165]

[138] At para. 65 of her reasons, Justice Wilson adverts to the flexible approach, based on the evidence before the court. She observed:

There are cases in which trial judges consider whether a child was in need of protection both at the time of apprehension and at the time of trial. In the decision under appeal in Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646, 325 O.A.C. 94 at paras 50 and 52, the trial judge made a finding that the initial apprehension was justified and also “that the children continued to be in need of protection at the date of trial. The Court of Appeal found that both findings were appropriate….

[139] Thus, we see that the approach taken for findings may be driven by the circumstances before the court. The case at bar sought a finding that the children had suffered physical harm, which required a consideration of past parental conduct: (s.37(2)(a)(i) and (ii)).

[140] This finding is necessarily historical, leading up to the time of the hearing. Justice Hoshizaki made the first finding, that harm had occurred. However, she was not persuaded that the children were at risk of future harm, based on the evidence at the time of the hearing and declined to make a finding pursuant to s. 37(2)(b).

[141] At para. 31 of her reasons, Justice Hoshizaki also considered the availability of s. 57(9) of the Act, finding that it would be superfluous if the court were restricted to the time of the hearing to make protection findings. In doing so, she considered the scheme of the Act as a whole.

[142] Section 57(9) provides:

Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

[143] In arriving at these conclusions, she applied the flexible approach the court adopted in Children’s Aid Society of Toronto v. S.A., 2017 ONCJ 366, [2017] O.J. No. 2919. In my view, she made no error of law in doing so.

[144] The father argues that the motion judge’s reasons are inadequate. I do not agree. The reasons deal comprehensively with issues of applicable law and relevant evidence, resolving differences in both. The reasons are complete and allow the reviewing court to understand how she reached her conclusions.

[145] The father also complains about a reasonable apprehension of bias and lack of impartiality by the motions judge. There is no evidence whatsoever to support this position. Indeed, as I said above, the judge dismissed the Society’s requests for findings pursuant to subsections 37(2)(b)(i) and (ii) [risk of future harm] and subsection 37(2)(g) [risk of emotional harm].

[146] The father criticizes the Society’s failure “to conduct a full, comprehensive, impartial investigation and assess its position.” This submission has no relevance to the summary judgment appeal.

[147] The father also criticizes the Society’s failure to make ongoing disclosure and to allow the appellants full discovery of documents. Certain disclosure requests were refused by Justice Fregeau, as being irrelevant, yet the father continues to allege that they are indicative of Society wrong-doing that should be addressed on appeal. As the arguments about non-disclosure are discussed above, there is no need to repeat my conclusions.

Conclusion

[148] For all of the reasons set out above, the appeal is dismissed. The judgment of Justice Hoshizaki dated May 15, 2018 is affirmed.

[149] The Society having prevailed on the appeal, it is presumptively entitled to its costs. If the parties are unable to agree on costs, any party may apply to the trial coordinator within 30 days to fix a hearing date for costs, including any costs previously reserved to the appeal judge, failing which costs will be deemed settled.

“original signed by”

The Hon. Madam Justice H.M. Pierce

Released: June 23, 2023

COURT FILE NO.: FS-18-5789 DATE: 2023-06-23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Kenora-Rainy River Districts Child and Family Services Applicant (Respondent in this Appeal) - and - P. N. R. and K. R. Respondents (Co-Appellants in this Appeal) REASONS ON APPEAL Pierce J. Released: June 23, 2023