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 and Parties

COURT FILE NO.: FC-09-590-5 DATE: 2024/02/28

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF S.L., born […], 2014, J.L., born […], 2016, N.C, born […], 2017, and A.-L.C., born […], 2019

BETWEEN:

The Children’s Aid Society of Ottawa Applicant A.C. Respondent and J.L. Respondent

Counsel: Brian Fisher, Counsel for the Applicant Society Mellington Godoy, Counsel for the Respondent Father Jennifer Ho, Counsel for the Respondent Mother Karine Jackson, Counsel for the OCL

HEARD: December 11, 2023

REASONS FOR JUDGMENT

JUSTICE ENGELKING

[1] This Summary Judgement Motion, brought by the Children’s Aid Society of Ottawa (hereinafter “the Society” or “the CAS”), pertains to the children S. L. (9), N. C. (7), J. L. (6) and A.-L. C. (4). The children’s father is A.C. and their mother is J.L.

[2] The Society’s Notice of Motion sought a finding in need of protection and an order of custody of the child A.-L. to her aunt and uncle; however, the parties have since resolved the issue of A.-L. On January 24, 2024, Justice Jensen granted an order on consent of Ms. L. and Mr. C. finding A.-L. in need of protection pursuant to ss. 74(2)(h) of the Child, Youth and Family Services Act (“CYFSA”) and placing her in the custody of Mr. C.’s sister T.P. and her husband, M.C., with parenting time to Ms. L. And Mr. C.

[3] The Society continues to seek a finding in need of protection for the children S., N. and J., as well as an order of extended society care of the children with access to the parents and between the children and their siblings, A.-L. and their older brother, B.L. In the alternative, the Society seeks a finding in need of protection, an order of extended society care and an order for the issue of access to be tried. In the further alternative, the Society seeks a finding that the children are in need of protection on particular grounds and for the issues of disposition and access to be determined at trial. Trial dates are currently scheduled for April 15 through 26, 2024.

[4] In support of its motion, the Society relied upon the following materials:

1. Notice of Motion dated November 27, 2023;
2. Affidavit of Julie Dallaire sworn on November 27, 2023;
3. Affidavit of Melanie Rochon sworn on November 27, 2023;
4. Affidavit of Manon Jacque sworn on November 27, 2023;
5. Affidavit of Karine Hebert sworn on November 27, 2023; and,
6. Affidavit of P. B. sworn on November 29, 2023.

[5] In defence of the motion, Ms. L. relied upon her affidavit sworn on December 4, 2023.

[6] Mr. C. relied upon his affidavit sworn on December 3, 2023, and reply affidavit sworn on December 4, 2023.

[7] For the reasons which follow, I find that there is no genuine issue requiring a trial on the finding of in need of protection, and the children S. L., J.L. and N.C. are in need of protection pursuant to subsections 74(2)(a)(i) and (ii), 74(2)(b)(i) and (ii) and 74(2)(h) of the Child Youth and Family Services Act. I find, additionally there is no genuine issue requiring a trial on the issue of disposition, and the children S.L, J.L. and N.C. are ordered into extended society care. Finally, I find that there is a genuine issue requiring a trial on the parents’ access with the children.

The Procedural History

[8] The Society has been involved with this family since 2008 regarding concerns around the issues of the physical discipline of Ms. L.’s son, B.L., poor parenting skills of the parents, substance misuse by Mr. C. and Ms. L.’s mental health issues.

[9] In June of 2015, Mr. C. was charged with assault of B.L., who is not a subject of this proceeding. On August 16, 2016, Mr. C. was convicted of assaulting the child. Between 2008 and 2018, B.L. spent some time in the care of the Society, as well as short periods of time in the care of other family members. On July 19, 2018, B.L. was placed in Society care by Ms. L. and Mr. C. He never returned to the care of Ms. L. And Mr. C. after that date.

[10] On April 6, 2019, S., N. and J. were brought to a place of safety due to concerns regarding the state of their home (hotel room), care of the children and Mr. C.’s substance misuse. On April 11, 2019, a temporary without prejudice order placing the children in the care and custody of the CAS was granted by Justice Aitken.

[11] A.-L. was born in June of 2019 and brought to a place of safety on June 10, 2019. On June 14, 2019, I granted a temporary without prejudice order placing her in the care and custody of the Society.

[12] In August of 2019, the children’s paternal aunt, T.P., and her spouse, M.C. were assessed and approved to present a plan for the children. On October 17, 2019, Justice R. Smith granted a temporary order placing A.-L. and J. in the care and custody of T.P. and M.C., subject to the supervision of the CAS. However, the placement of J. broke down due to T.P. and M.C.’s difficulty in dealing with his behaviours. He was removed from their care in late December of 2019, and on January 3, 2020, a temporary without prejudice order placing J. in the care and custody of the Society was granted by Justice Roger.

[13] The child S. was gradually integrated back into the care of her parents and on July 13, 2020, Justice Audet made a temporary order placing her with Ms. L. and Mr. C. subject to the supervision of the CAS.

[14] On September 17, 2020, Justice Audet made a temporary order placing A.-L. in the care and custody of her parents subject to the supervision of the Society, and also placing N. in their care and custody subject to Society supervision effective October 1, 2020.

[15] On April 29, 2021, Justice Gomery granted an order permitting the Society to withdraw its Protection Application as it pertained to S., N., and A.-L. in favour of a voluntary services agreement.

[16] Similarly, on June 30, 2021, Justice Shelston granted the Society permission to withdraw its application with respect to J.L., who was also returned to his parents under a voluntary services agreement.

[17] On September 1, 2021, Justice Gomery permitted the Society to withdraw its Protection Application regarding B.L. and granted a final order under the Children’s Law Reform Act placing B.L. in the custody of kin, P.B. and her spouse, R.L.

[18] During the remainder of 2021 and 2022, the Society continued to receive concerns about the parents, however none were verified, and the Society’s file was closed in January of 2023.

[19] However, on March 28, 2023, S.L. disclosed that she had been struck in the head by her mother with a broom handle. The children were removed to a place of safety on that date. Significant concerns were additionally noted with the state of Mr. C. and Ms. L.’s home at that time, as well as with the state of the children upon coming into care.

[20] On April 3, 2023, a temporary without prejudice order placing the children, S., J. and N. in the care and custody of the CAS was granted by me. By the same order, A.-L. was also placed back with her paternal aunt and uncle, T.P. and M.C. subject to a temporary supervision order.

[21] On May 3, 2023, Ms. L. was charged with one count of assault with a weapon on S., and one count of assault of N. Ms. L.’s criminal trial is expected to occur in March of 2024, approximately one month before the CYFSA trial of this matter is scheduled to be heard.

[22] S., N. and J. have remained in the care of the Society since March 28, 2023. As a result of their time in care between April of 2019 and July through October of 2020, or in J.’s case through to June of 2021, as well as since March of 2023, the children have well surpassed the statutory timelines contained in section 122 of the CYFSA. At the time of the SJM being heard, S. had been in the care of the Society from April 6, 2019, to July 13, 2020, and again from March 28, 2023, to December 11, 2023, or for a total of 24 months. N. has been in care for a total of 27 months, or from April 6, 2019, to October 1, 2020, and again from March 23, 2023, to December 11, 2023. J. will have been in care over that same period for a total of 35 months, or from April 6, 2019, to June 30, 2021, and from March 23, 2023, to December 11, 2023.

Background Facts

[23] As indicated above, the Society’s involvement with this family commenced in 2008, and has continued, but for some very brief periods, ever since. The initial concerns related largely to B.L. being subject to physical discipline, mainly perpetrated by Mr. C. However, the Society attempted to work with the parents in relation to concerns pertaining to the other children as well, including S.’s poor school attendance and poor hygiene, Ms. L.’s mental health struggles and J.’s aggressiveness with his siblings. For a significant period, particularly between the children coming into the care of the Society in the spring of 2019 until January of 2020, the parents did not engage with the Society. Additionally, over that time, the parents were homeless. In January of 2020, they obtained appropriate housing, and thereafter, they started to work with the Society on some of the issues which brought them to the Society’s attention.

[24] As is additionally indicated above, but for the child B.L., the children were gradually returned to the care of their parents, such that the Society was able to withdraw their protection application and continue to work with the family on a voluntary basis. Nevertheless, allegations of corporal punishment being used on J. by Ms. L were made in November and December of 2020 during his visits with the family.

[25] On November 8, 2020, Ms. L. washed J.’s mouth out with soap and left a bruise on his chin from grabbing it to get his attention. She was cautioned by both the Child and Sexual Assault (“SACA”) team of the Ottawa Police Services (“OPS”) against the use of physical discipline on this occasion.

[26] On December 8, 2020, Ms. L. used what Justice Audet later determined was excessive force [1] when grabbing J. by the arm to redirect him to his room. On this occasion, the OPS referred Ms. L. to a pre-charge diversion program offered by the Salvation Army, which she completed in the spring of 2021.

[27] Despite these concerns, the reintegration of J. into Ms. L and Mr. C.’s care was continued and completed in 2021. The Society continued to receive concerns regarding the family between June of 2021, when J. was finally returned, and the end of 2022, which included Mr. C. abusing substances, specifically cocaine, Ms. L. having mental health struggles and the parents engaging in a great deal of verbal conflict in the presence of the children. The Society did not verify any of these concerns and closed its file in January of 2023. However, it was reopened in March of 2023 because of some disclosures made first by S. and later by N.

[28] As I have already indicated, the children were removed from their parents’ care on March 28, 2023. They were first placed for a few nights with P.B. and her husband, before A.-L. was placed with T.P. and M.C. and S., J. and N. were placed in care. In addition to the concerns regarding the disclosures being made by the children, the Society also noted concerns with the state of Ms. L. and Mr. C.’s home, which included that it was dirty, cluttered, smelled strongly of marijuana, had a feces-like substance on the wall, and was infested with cockroaches.

The Positions of the Parties

[29] The Children’s Aid Society of Ottawa’s position is there is no genuine issue requiring a trial in this matter regarding a finding that the children are in need of protection, the disposition of extended society care, or the parents’ access to the children. The Society submits that S., J. and N. are children in need of protection pursuant to subsections 74(2)(a)(i) and (ii), 74(2)(b)(i) and (ii) and 74(2)(h) of the Child, Youth and Family Services Act. The Society submits further that findings under all these subsections are important, especially in so far as they point to a demonstrated pattern of behaviour resulting in harm. The Society’s view is that these parents have demonstrated a pattern of behaviour which has been consistently harmful to the children. Finally, it is the Society’s position that an order of extended society care with access to their parents and siblings is in the best interests of the children.

[30] The mother, Ms. L. concedes that the children may be found in need of protection pursuant to subsections 74(2)(a)(i) and 74(2)(h); however, she contests a finding based on subsections 74(2)(a)(ii) and 74(2)(b)(i) and (ii). Ms. L. submits that both these latter grounds for a finding and the issue of what disposition is in the best interests of the children are genuine issues which require a trial. Ms. L.’s position is that the children should be returned to her and Mr. C.’s care. Her further position is that even if there are no genuine issues for trial on the findings of in need of protection or disposition, there will still be a genuine issue requiring a trial regarding her access to the children.

[31] The father, Mr. C.’s position is that there are genuine issues requiring a trial regarding both the grounds for the finding of in need of protection, and what disposition is in the children’s best interests. Mr. C. submits that an examination of the reliability of the children’s statements as cited by the Society is of particular importance, and in and of itself is a genuine issue requiring a trial. Mr. C. submits that those statements will be tested in Ms. L.’s criminal trial in March of 2024, and they cannot be taken at face value in a motion for Summary Judgment. He submits that determinations at to their reliability are required before the court can summarily decide on such things as a need of protection finding or a disposition in the best interests of the children.

[32] The children’s positions have until recently consistently been that they wish to return to their mother and father’s care, and they wish to be with or see their siblings. Ms. Jackson has represented S., J. and N. since April of 2023, and A.-L. and B.L as it relates to sibling access since late October of 2023.

[33] Since Ms. Jackson began representing her, S.’s expressed views and preferences have been to go back home to live with Ms. L, Mr. C., J., N. and A.-L. S. was advised by her parents in November of 2023 of the plan, with which she struggled, for A.-L. to remain with Ms. P. and Mr. C. S. has been unable to discuss options other than returning home with Ms. Jackson.

[34] Up until November 27, 2023, J.’s expressed views and preferences were also consistently to return home to live with Ms. L., Mr. C., S., N. and A.-L. After N. was informed of the plan for A.-L., however, his views and preferences drastically changed. Since November 27, 2023, J. has been consistent in expressing that he does not wish to live with his parents. J. is now expressing an interest to live with his former foster parents, Tanya and Doug. He would also entertain family options. If none of those options are available, J. would want a family found for him which is near his parents in case he wants to see them. J. wants to continue seeing his siblings regardless of with whom he lives.

[35] N.’s views and preferences were difficult for Ms. Jackson to ascertain due to his age and speech challenges, but he is understood to miss his “real” mom and dad. N. is also sad about A.-L. not coming back to live with the family.

[36] A.-L. identified her aunt and uncle’s place as her home and wanted to see “Nana” (meaning S.) at the visits.

[37] B. wants to have regular monthly contact/visits with his siblings.

Analysis

The Law of Summary Judgment

[38] Justice Corthorn canvassed the post- Kawartha-Haliburton Children’s Aid Society v. M.W., (2019) ONCA 316, 432 D.L.R. (4th) 49 approach to Summary Judgment in child protection matters at paragraphs 29 through 35 of The Children’s Aid Society v. S.P. and K.L., 2019 ONSC 5624 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).

[39] The main questions which I must answer in this case are two: 1) is there a genuine issue requiring a trial regarding a finding in need of protection under subsections 74(2)(a)(ii) and 74(2)(b)(i) and (ii) of the CYFSA; and 2) is there a genuine issue requiring a trial regarding what disposition is in the best interests of the children. If the answer to both of those questions is no, then I must determine a third question of whether there is a genuine issue requiring a trial regarding the parents’ access to the children under an extended society care order.

Question #1

[40] Is there a genuine triable issue regarding the grounds under which the children may be found in need of protection?

[41] Subsection 74(2)(a)(ii) provides:

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

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

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

[42] Subsection 74(2)(b)(i) and (ii) provides:

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

(b) there is a risk that the child is likely to suffer physical harm, inflicted by the person with 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

(ii) pattern of neglect in caring for, providing for, supervision or protecting the child.

[43] On March 28, 2023, S. disclosed to CPW Karine Hebert, who interviewed her privately at school (after receiving a referral from the school), that her mother “wacked” her with a broom the previous day. Ms. Hebert transported S. to the police station, where she was interviewed, in the presence of Ms. Hebert, by Detective Anderson. Ms. Hebert’s contact log of this interview reveals that S.L. disclosed that her mom wacked her with a broom and broke the broom handle after getting mad at her brothers. Ms. Hebert’s affidavit also contained a photograph of S. with an injury on her forehead at Exhibit “D”, which she states she believes was taken by P.B. on March 28, 2023.

[44] On March 31, 2023, N. was also interviewed by the Detective Anderson of the Ottawa Police Services, again in the presence of the Child Protection Worker, Ms. Hebert. N. disclosed during this interview that Ms. L. kicked him in the right butt cheek. Ms. Hebert indicated in her contact log of this interview that N. had a six-inch bruise under his right butt cheek, of which the police took a photo. Her affidavit also contained photographs of a bruise on N.’s arm at Exhibit “C”, which she took at P. and R.’s home.

[45] These disclosures come on the heels of the following history:

• In 2014, allegations were made regarding inappropriate physical discipline on B.L. by A.C.
• In 2015, Mr. C. was charged with assault of the child B.L., a charge for which he was convicted on August 16, 2016.
• Further allegations regarding inappropriate physical discipline by A.C. on B.L. were made in January of 2017.
• In 2020, before J. was returned to her care in June of 2021, inappropriate physical discipline on J. by Ms. L was verified by the Society for the above noted incidents which occurred on November 8, 2020, and December 8, 2020.
• J. was also noted by Ms. P.B. to have bruises on him when he was removed from the parents’ care in March of 2023.
• A.-L. was also noted by Ms. P.B. to have bruises on her and what appeared to be a burn mark on her finger.

[46] Additionally, the state of the parents’ hotel accommodations in April of 2019 mirrored, to a certain extent, the state of their home observed by Ms. Hebert and Ms. Allaire in March of 2023.

[47] According to Ms. P.B., moreover, the children’s personal hygiene skills were sorely lacking upon coming to her home March 28, 2023. They did not know how to wipe themselves and flush after using the toilet, did not seem to know how to wash themselves or brush their teeth, had lice upon arrival, N. and S. had to wear pull-ups at night, and A.-L. was ill with “a very nasty cough.”

[48] Finally, both N. and S. had stopped taking their ADHD medications for some time while in the care of Ms. L. and Mr. C.

[49] The Society submits that these reoccurring issues demonstrate a “pattern of neglect in caring for, providing for, supervising or protecting” the children, and that, in reality, they have been outstanding since at least 2008. The Society submits, moreover, that they are apparent on their face, and there is no genuine issue requiring a trial to determine that ss. 74(2)(a)(ii) and (2)(b)(i) and (ii) apply to this case.

[50] The parents argue that there is a genuine issue for trial regarding the finding in need of protection on these additional grounds, and that the children’s evidence must be tested in the context of Ms. L’s criminal trial to determine if the alleged facts indeed support that a pattern of behaviour which is harmful or presents risk to the children exists.

[51] In her affidavit, Ms. L. denies ever physically abusing S. and/or N. She does not provide any explanation as to the incident in which S. was injured due to her outstanding criminal charges, except to state that the injury to S.’s forehead was accidental and she “did not intentionally cause physical harm to [S.].”

[52] In paragraph 16 of his December 4, 2023, affidavit, Mr. C. described the incident during which S. was injured thus:

16. On March 26 or 27 of 2023, Ms. [L.] was playing with [S.] upstairs in the bedroom. I was present but off to the side. [J.] and [N.] were playing on the tablet in their bedrooms across the hall. [A.]-L.] was sleeping in her room. [S.] was playing with Ms. [L.]. [S.] used an object to tap Ms. [L.] and Ms. [L.] did the same. Ms. [L.] grabbed a broom to tap [S.] Savannah back but accidentally injured [S.] on her forehead. Ms. [L.] apologized but [S.] was upset. I noticed [S.] had a cut on her forehead, so I gave her a bandaid and a kiss to comfort her.

[53] Both parents deny any physical abuse of N. by Ms. L. They also disagree with the Society’s description of the state of their home on March 28, 2023, deny issues with the children’s hygiene/toileting (but for N. using pull-ups to go to school), deny that the children attended school in dirty clothes or without adequate lunches, and state that both S. and J. were without their ADHD medications “for about a month” prior to their removal due to them no longer having access to a family doctor.

[54] Ms. L. and Mr. C. submit that the reliability of the children’s hearsay statements must be established before the court can determine whether additional grounds of the finding of in need of protection are warranted. They submit, further, that such threshold reliability can only be determined at trial. They rely on Justice Summers’ statement at paragraph 28 of CAS (Ottawa) v. M. M., 2018 ONSC 786, wherein she stated:

[28] I do not, however, accept the Society’s argument that the hearsay statements meet the threshold test of reliability because many of them were made to the third party professionals such as child protection workers, teachers, counsellors and police officers. Counsel argued that child protection workers take interview notes knowing that the information in those notes may be relied on in court, therefore, they invite greater deference. While the accuracy of the notes is an important factor to consider, it does not address the reliability of the declarant’s statement, and is, therefore, insufficient on its own to establish threshold reliability.

[55] However, in this case, the Society is not suggesting that the children’s statements meet the threshold reliability test because they were made to a child protection worker and a police officer. Rather, they argue that they are reliable because they fulfill the criteria set out by Justice Mackinnon in paragraphs 4 through 7 of Children’s Aid Society of Ottawa v. C.L. and M.M., 2018 ONSC 1425, as quoted in by Justice Shelston in paragraph 67 of the Children’s Aid Society (Ottawa) v. A.F., 2019 ONSC 2771:

[4] This ruling addresses threshold reliability. The inquiry focuses upon whether the evidence is sufficiently reliable to overcome the hearsay dangers associated with it. The Supreme Court of Canada recently summarized the hearsay dangers and the principled exception to the hearsay rule in R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35 at paras 20 and 26:

20 Hearsay is an out-of-court statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant's demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 764). Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial's truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant's perception, memory, narration, or sincerity (Khelawon, at para. 2). As Fish J. explains in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520:

• First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination.

26 To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it" (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

[5] The determination of threshold admissibility of the out of court statements of S. turns on substantive reliability. In Bradshaw, the Court addressed substantive reliability as follows:

30 A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55).

[6] In R. v. Khan, 1990 CarswellOnt 108 the Supreme Court articulated a non-exhaustive list of factors to consider in relation to out of court statements made by a child. At para 32, the Court said:

32 The next question should be whether the evidence is reliable. Many considerations, such as timing, demeanour, the personality of the child, and the absence of any reason to expect fabrication in the statement, may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability or to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge.

[7] In child protection cases some of the factors courts have considered in assessing threshold reliability include:

• whether the statement was spontaneous;
• the timing of the statement in relation to the event
• the method and timing of record taking, if any,
• absence of suggestion or manipulation;
• whether the statement is in response to a leading question;
• the demeanour of the witness who received the statement;
• whether that witness has a vested interest in the outcome of the case;
• whether the recipient was under a business duty to record the statement accurately, objectively and in a timely way;
• whether the recipient is in court, available for cross examination, i.e. first hand hearsay only; and
• the child’s age, cognitive abilities, motive to fabricate, the contents and context of the statement.

[56] The Society submits that S.’s statements were made immediately after the events in question and N.’s were made shortly thereafter; that they were spontaneous; that the CPW was under a duty to record them; that but for one question to N. about his arm being twisted, there is no evidence of suggestion, manipulation, or response to a leading question; that Ms. Hebert has no vested interest in the outcome of the case; and that neither S. nor N. have any motive to fabricate the content of their statements.

[57] In other words, the evidence of the statements of S. and N., contain the indicia of threshold reliability. I find that the evidence of such statements made by S. on March 28, 2023, and by N. on March 31, 2023, during their respective interviews in the presence of Detective Anderson and Ms. Hebert, as proffered by Ms. Hebert, is, in the words of Justice MacKinnon, “sufficiently reliable to overcome the hearsay dangers associated with it” for the purposes of this motion. Whether that evidence is sufficiently reliable to convict Ms. L. with assault with a weapon on S. or assault on N. beyond a reasonable doubt is a different question, and not one with which I must concern myself in the context of this Summary Judgment Motion.

[58] Along with the rest of the evidence regarding the Society’s history with this family, and the reoccurring issues which have consistently presented themselves at various junctures over the past 14 years, I find that a trial is not required to determine the issue of whether the children can be found in need of protection pursuant ss. 74(2)(a)(ii) and 74(2)(b)(i) and (ii). They are so found.

[59] Even, however, if I am wrong on the issue of the reliability of the children’s statements, I would still find, based on those reoccurring issues over several years, that there is no genuine issue requiring a trial on the grounds requested by the Society.

Question #2

[60] Is there a genuine issue requiring a trial regarding the disposition of the order for extended society care for S., J. and N. being requested by the Society?

[61] Ms. L and Mr. C. seek an order returning the children to their care. They deny that N. was harmed by Ms. L., they state that S. was injured by Ms. L. by accident, they deny that the state of their home was problematic, they blame a health card issue and/or lack of their ability to secure a family doctor for S. and J. not having their ADHD medications, and they deny that there were any significant issues with the children’s hygiene or, with the exception of N., toileting.

[62] The difficulty with the parents’ position is that it is not supported by the evidence.

[63] The court is very cognizant that a cautionary approach is required in deciding whether an issue requires a trial. However, that cautionary approach must be applied in the best interests of the children.

[64] In Children’s Aid Society of Ottawa v. S. K. 2015 ONSC 4623, Justice Parfett set out in paragraphs 66 through 69 the legislative framework for a Summary Judgment Motion pursuant to Rule 16 of the Family Law Rules:

[66] Under Rule 16(1) of the Family Law Rules (“FLR”), a party may bring a motion for summary judgment for a final order without a trial on all or part of a claim. This includes cases under the CFSA (Rule 16(2)). If there is no genuine issue requiring trial, the court must grant summary judgment (Rule 16(6)). If the only genuine issue is a question of law, the court must decide the issue and make a final order (Rules 16(7) and (8)).

[67] In terms of evidence, the moving party must serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring trial (Rule 16(4)). The responding party may not rest on mere allegations or denials, but must set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial (Rule 16(4.1)).

[68] Rule 16(6.1) permits a judge to weigh evidence, evaluate credibility and draw factual inferences, unless it is in the interests of justice for these powers to only be exercised at trial.

[69] If the court does not grant summary judgment, or only grants it in part, the court may: (a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise to prevent injustice); (b) give directions; and (c) impose conditions (Rule 16(9)).

[65] This framework remains intact post Kawartha-Haliburton. However, as is noted above, Kawartha-Haliburton stands for the additional proposition that the ultimate burden of proof in a motion of summary judgment is not shifted to the Respondents once a prima facie case has been made out by the moving party. Rather, the court must be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. In this case, I am so satisfied.

[66] First, the Society’s evidence demonstrates that the children have been subject to physical discipline causing them harm. As I have indicated above, S. and N.’s interviews by Detective Anderson in the presence of the CPW have the indicia of reliability. S. told the same story to Ms. Hebert, with the same details, about Ms. L. picking up and “whacking” her with a broom handle, as she did to Detective Anderson. Her disclosures were spontaneous and contemporaneous.

[67] Second, there are photographs, taken either by Ms. Hebert or Ms. B. on the evening of March 28, 2023, of the injury on S.’s forehead, which is of an open wound, and of the not insignificant bruise on N.’s leg below his buttocks, in exactly the location in which he indicated his mother kicked him. There are also photographs attached to Ms. Hebert’s and Ms. B.’s affidavits of other unexplained bruises and injuries on the children S., N., J. and A-L., including an injury to the latter’s finger, which is also in the nature of an open wound.

[68] Third, the agency workers, Ms. Rochon and Ms. Hebert, who both attended Ms. L. and Mr. C.’s home on March 28, 2023, to transfer the children to Ms. P.B. and Mr. R.L., provided their independent observations of the state of the home. It is described by Ms. Rochon to have a strong smell of marijuana, to be cluttered and unclean, to have piles of clothing and dirt as well as various objects on the floors and the staircase leading upstairs, and to have cockroaches on the countertops, the walls, the kitchen floor and hallway. The children were also described to have headlice and A.-L. was described to be coughing during the car ride, appearing to have a cold. Ms. Hebert noted the strong smell of marijuana in the home, the piles of clothing and dirt and various objects on the floors and in the staircase leading upstairs. Ms. Hebert additionally noted what appeared to her to be feces smeared on the wall. She also noted the cockroaches on the countertop, the walls and the kitchen floor and hallway. Both workers observed a large dog urinate in front of the door, and Mr. C. use a pair of the children’s pants to clean it up. Ms. Hebert included in her affidavit at Exhibit “B” some photographs of what she observed.

[69] Fourth, Ms. P. B. noted the children to be in a deplorable state upon their arrival at her home. In addition to the above noted injuries having been observed (and photographed) by her, Ms. P. B. indicated that all four children had to be taught how to wipe themselves and flush after using the toilet, that none of them seemed to know how to wash themselves or brush their teeth, and that all four had headlice. Ms. P. B. noted that S. and N. had to wear pull-ups at night and were wet in the mornings. A.-L. was noted by Ms. P.B. to have a “nasty cough”. Ms. P.B. and her husband are, of course, the custodial parents of the children’s older brother, B.L. She has seen and has had to attempt to compensate for weaknesses in Ms. L. and Mr. C.’s parenting capacity. B.L. has been diagnosed with post traumatic stress disorder, separation anxiety, detachment disorder, opposition defiance disorder and ADHD. It was very upsetting to Ms. P.B. to see the children having to be removed from the parents’ care again, and to see the effect of that necessity on B.L.

[70] Fifth, prior to the children being removed from their parents’ care on March 28, 2023, both S. and J. had not been receiving their prescribed medications to manage their ADHD.

[71] The parents either deny or minimize the Society’s assertions. As I have indicated, Ms. L. and Mr. C. deny that N. was harmed by Ms. L. They admit that S. was hit by a broom handle by Ms. L., but state it was an accident. Frankly, in viewing the photograph of the S.’s injury, it is hard to contemplate how it was caused by a “tap”, as described by Mr. C. They deny that the house was in as bad a state as Ms. Hebert and Ms. Rochon describe it, stating that there was only one bag of clothes on the stairs, which was to be discarded. They state that the pair of pants that Mr. C. used to clean up the dog urine on the floor was from that bag and was intended to be discarded. Ms. L. denies that there was feces on the wall, though concedes there may have been a stain of some kind. She also denies that her house was “dirty”; in fact, she was hurt by this suggestion. The parents admit to the home being infested with cockroaches, but state that it has since been fumigated and the problem rectified. They also both indicate that the home has been cleaned up and put in good order, and they include photographs of the home taken five months after the removal of the children in their materials. It is positive that Ms. L. and Mr. C. have managed to restore the home to an acceptable state, but doing so at a time when there are no children in their care, does not portend to their ability to keep it in an acceptable state. Indeed, history has demonstrated otherwise.

[72] Ms. L. denies that she has an anger problem or difficulty regulating her emotions, but in any event, states that she has participated in some programing to address the Society’s concerns. Ms. L. stated that since the children were removed in March of 2023, she has completed the “Parenting Inside Out” program (July 2023), the “Life After Trauma” program (July 2023), and the Emotional Regulation program (September 2023), all through the Elizabeth Fry Society. Commencing in August of 2023, Ms. L. also received two sets of six sessions of one-on-one counselling with a counsellor through Elizabeth Fry. Ms. L. has also been referred by her nurse practitioner to the Ontario Structured Psychotherapy Program through the Royal Ottawa Hospital, which has a lengthy waitlist.

[73] In her same affidavit of December 4, 2023, however, Ms. L. indicates at paragraph 24 that after the children were removed from her care in April of 2019, she engaged in much the same programing. She completed the Emotional Regulation program at the Elizabeth Fry Society, as well as a parenting course called Positive Discipline through the Vanier Community Centre at that time. While re-engaging in such programming in 2023 is undoubtedly of some value to Ms. L., completing it previously has, unfortunately, not led to a prevention of the children once again being removed to a place of safety.

[74] With respect to the lack of ADHD medication being procured for S., Ms. L. and Mr. C. explain that they were experiencing difficulties as first there was a technical issue with S.’s health card, and second, they were advised that S.’s family doctor, Doctor Picard, was closing her practice. Although Ms. L. did acknowledge that S. was without her medication prior to the removal to a place of safety, she denied that it was for a “couple of months”, as alleged by the Society. Ms. L. provided an explanation as to why this occurred, but her explanation did not include for what period S. was without her medication. Nor did it include information as to when the parents were advised by Dr. Picard that she would be closing her office, or what steps they took to ensure S. would have her prescription refilled prior to that happening. Regarding the issue with S.’s health card, Ms. L. also provided no information as to when the problem came to her attention, or over what period she was attempting to solve it. Mostly, Ms. L. blamed the Society for her inability to renew S.’s health card on-line, as she alleges, they failed to provide her with a postal code from when her health card had originally been registered when S. was previously in care. Ms. L. did not provide information of any further steps she took to rectify the situation, such as attending Service Ontario in person. Additionally, neither parent provides information about taking S. to see a physician at a clinic to renew her ADHD medication prescription pending obtaining a new doctor.

[75] Regarding J.’s lack of medication, the parents indicate that they were having difficulty securing a family doctor for him as J. ceased at six years of age to be eligible for the clinic he had to that time been attending at CHEO. However, Ms. L. was advised of J.’s ineligibility to continue attending the CHEO clinic in August of 2022. As with S., the parents do not indicate in their affidavits how long J. was without his medication prior to the removal to a place of safety. While it may be acknowledged that it is difficult to find a new family doctor, also as with S., the parents do not provide any information regarding efforts made to have J. seen at a clinic to renew his prescription pending securing a family doctor.

[76] Additionally, I received no information from the Society as to any difficulties they have experienced either having the children seen by a doctor or procuring medications for S. and J.

[77] The parents generally deny any toileting issues with the children, but for N., whom they acknowledge is not toilet trained when it comes to bowel movements, and but for the fact that S. will wear sometimes wear pull-ups at night. Indeed, N., at five and a half years old, was not attending school due to his toileting issues. Ms. L.’s defense to this in her affidavit was to indicate that she and Mr. C. were advised by the school principal, Ms. Chiarelli, to keep N. home from school due to this issue until they could have a meeting to discuss how to move forward. However, this communication from Ms. Chiarelli, which is attached as Exhibit “C” to Mr. C.’s affidavit sworn on December 3, 2023, is dated January 16, 2023. Neither parent provided any information of any efforts they made to meet with Ms. Chiarelli between that date and March 28, 2023, so that a solution could be found, and N. could return to school. An additional concern raised by Ms. Chiarelli in her email to the parents on January 16, 2023, moreover, was her inability to reach either parent to attend to the children’s needs, when necessary.

[78] As indicated above, while the onus remains on the Society to establish that there is no genuine issue requiring a trial, which I find they have done, pursuant to Rule 16(4.1), the responding party may not rest on mere allegations or denials, but must set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue requiring a trial. Ms. L. and Mr. C.’s evidence, for the most part, rests on mere allegations and denials. It does not, in my view, demonstrate that there is a genuine issue requiring a trial as it relates to disposition. Indeed, their joint plan to resume care of the children contains only projections of what they will do if the children are returned to their care. It does not demonstrate what they can or have done to meet the children’s needs.

[79] It is clear from the parents’ evidence that they have had challenging and even traumatic pasts. To their credit, they have managed to overcome some of their difficulties. There is no doubt, moreover, that Ms. L. and Mr. C. deeply love S., J. and N., as the children do them. However, the evidence supports that these parents struggle to meet the needs of their children. Again, while a highly cautious approach to summary judgment is required, it must be applied within the context of “the objectives of the CYFSA including the best interests of the child.” [2]

[80] Section 74(3) of the CYFSA sets out the factors which the court must consider when coming to a determination as to what is in the best interests of a child. While the views and preferences of the child must be considered, they are to be given due weight in accordance with the child’s age and maturity. I recognize that S. and N.’s expressed views and preferences continue to be to return to the care of their parents; however, both are young, immature, and incapable of recognizing their needs, let alone whether they will be met in the care of Ms. L. and Mr. C.

[81] A psychoeducational assessment for which S. had been referred by her previous foster mother, was completed by Dr. A. Ross on April 1, 2021 [3]. To her credit, Ms. L. ensured S. attended all necessary appointments for this assessment to be completed. At pages 4 and 5 of the assessment, Dr. Ross’s clinical impression of S. was: On the basis of her developmental history, parent and teacher report, and direct clinical observations, [S.] is exhibiting clear difference in inattention and hyperactivity/impulsivity, apparent across the home and school setting. She meets DSM-5 criteria for a diagnosis of Attention Deficit/Hyperactivity Disorder (Combined Type), current severity: Severe. Based on her history and behavioural functioning, [S.] also meets DSM-5 criteria for Disinhibited Social Engagement Disorder, a trauma and stressor-related disorder characterized by a pattern of socially disinhibited behaviour. Due to her diagnoses and reported symptoms of depression and anxiety, she also is considered “at-risk” for ongoing mental health difficulties. [S.]’s cognitive skills are within the “Very Low” or “Borderline” range overall, at the 5th percentile, with a relative strength in verbal reasoning skills. Her adaptive skills in the school environment are at the 2nd percentile overall, with a relative strength is Socialization skills. [S.] does not meet criteria for Autism Spectrum Disorder. (Emphasis is original)

[82] Pharmacological and behavioural intervention was recommended for the management of S.’s ADHD. Counselling services were also recommended to monitor her overall well-being and ability to cope.

[83] S.’s needs are high and must be consistently attended to. Ms. L. has made efforts from time to time, such as reaching out to Crossroads in February of 2021 and March of 2023 (prior to the removal). Ms. L. indicated that most recently she intended to schedule a second meeting with Crossroads, but this was disrupted by the removal of the children. She also indicated that public counselling services had waitlists and she and Mr. C. could not afford to engage private counselling services. Consequently, S. does not appear to have received any services dedicated to her needs from the receipt the psychoeducational assessment in 2021 to her removal from her parents’ care in 2023. Additionally, as we know, her pharmacological care was disrupted while in her parents’ care some time in 2023. This has been rectified since S. came into the Society’s care, and she has, additionally, been attending counselling since July of 2023.

[84] N. is only six years old. He has speech and intellectual delays. N.’s OCL indicated that it was difficult to have any in depth conversations with him due to his age and speech difficulties. She nevertheless understands N. to miss his “real” mom and dad, and to be sad about A.-L. not coming back home.

[85] Since coming into care, N. was referred for a speech assessment, which commenced in October of 2023, and for which a report was completed on November 15, 2023 [4]. In the report, it is noted that N. “was previously seen for a speech and language assessment through CHEO, in 2020, however, this was not completed, and he was discharged due to lack of engagement.” One can only surmise that Ms. L. and Mr. C. ceased to engage with this assessment after N. returned to their care in October of 2020. Ms. L. did participate in a speech and language reassessment meeting for N., initiated by First Words of CHEO, on May 10, 2021 (after missing one appointment in April). N. appears to have received no other services to the time of his removal. The results of the November 2023 assessment are that N. “presents with mild expressive language difficulties, mild-moderate receptive language difficulties, severe speech difficulties, and severe phonological awareness and reading difficulties”, suggestive of a speech and language disorder. N. is recommended to participate in “professionally guided speech-language sessions to support his speech, language, and literacy needs.” He has since commenced bi-weekly speech therapy sessions.

[86] Interestingly, after J. learned that A.-L.’s placement with her aunt and uncle would be permanent, his views and preferences “drastically” changed to consistently expressing that he does not want to return to the home of his parents. J.’s wish is to live with his former foster parents, Tanya, and Doug, but even if that is not possible, J. does not want to return to his parents. He would prefer that the Society find a permanent family for him. While J.’s views and preferences must also be considered in the context of his age and his level of maturity in forming them, it is telling that once J. understood (through learning of A.-L.’s placement) that not returning was an option, it became his preferred one.

[87] Having said that, I am not swayed by the views and preferences of any of the children, as they are too young to be given much weight. Additionally, the children’s needs are so high and the parents’ inabilities to meet them so pronounced, that a return to their parents’ care would not be in their best interests, regardless of their views and preferences. This is particularly true of S., who has been most emphatic about wanting to return to the care of her mother and father.

[88] As Justice Parfett pointed out in S.K., one of the principles enunciated regarding the appropriateness of Summary Judgement in a child protection case is that “the nature of the evidence to be before the court, the reasonableness of any potential plans and the statutory time frames all have a role to play in the determination of whether there is a genuine issue for trial.” [5] (Emphasis is added).

[89] In this case, as I have indicated, S., J. and N. have all been in care well over the statutory timelines contained in s. 122 of the CYFSA. This is to me an important factor in considering whether there is an issue requiring a trial in this case. The parents’ plan is for a return to their care with great intentions expressed as to how they are going to execute that care. Unfortunately, their future intentions don’t match the children’s past experiences, and the risk is too high that these children, if returned, will be removed from their parents’ care again in the future. Given the amount of time they have already spent in care, that risk cannot, in my view, be taken. The children require stability and care that is attentive to their significant needs. The Society’s plan is the better one, and the one that is in the best interests of these children.

[90] I find that there is no genuine issue requiring a trial regarding disposition, and I make an order placing S., J. and N. in the extended care of the Society.

Question #3

[91] In paragraph 1. c. of their Notice of Motion, the Society seeks an order that the parents have access to these children “at the Children’s Aid Society of Ottawa’s discretion regarding duration, location, frequency and level of supervision, but subject to a minimum of one (1) visit per month provided the Children’s Aid Society of Ottawa in its sole discretion is satisfied that the parents are not under the influence of drugs or alcohol when they attend for visits. The minimum frequency of access set out herein may be gradually reduced as the child is transitioned towards adoption.” The Society’s Notice of Motion goes on to request relief in paragraph 1. d. in relation to missed visits, which frankly does not make sense in the face of the relief requested in paragraph 1. c. Based on the language of paragraph 1.d., which provides for a gradual reduction of visits “by one visit per week”, it appears, in fact, that the Society may have made a typographical error in requesting a minimum of one time per month in paragraph 1. c. Paragraph 1. d. also contemplates the possibility of visits increasing by one visit per week.

[92] Given that I am unclear about the Society’s request in their Notice of Motion and given that the evidence of the parents’ access with the children is generally positive, I find that the issue of the parents’ access to the children is a genuine issue which requires a trial.

Order

[93] For the above noted reasons, there shall be a final order as follows:

1. There is no genuine issue requiring a trial regarding the grounds for a finding in need of protection of the children S.L, J.L. and N.C. They are found in need of protection pursuant to subsections74(2)(a)(i) and (ii), 74(2)(b)(i) and (ii) and 74(2)(h).
2. There is no genuine issue requiring a trial on disposition. The children S.L., J.L. and N.C. shall be placed in the extended care of the Children’s Aid Society of Ottawa.
3. There is a genuine issue requiring a trial on the parents’ access to the children.
4. The matter is adjourned to the TMC scheduled for February 29, 2024, at 2:00 p.m.

Engelking J. Released: February 28, 2024

Footnotes:

[1] March 17, 2021 oral reasons on motion by Justice Audet [2] Kawartha-Haliburton, paragraph 80 [3] Psychoeducational Assessment Report of Dr. A. Goss dated April 1, 2021 attached as Exhibit “C” of the affidavit of Melanie Rochon sworn on November 27, 2023 [4] Speech-Language Pathology Assessment Report dated November 15, 2023, Exhibit “H” to the Affidavit of Melanie Rochon sworn on November 27, 2023 [5] Children’s Aid Society of Ottawa v. S.K., 2015 ONSC 4623, paragraph 82