Court and Parties

DATE: 2024-05-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Simcoe Muskoka Child, Youth and Family Services Applicant – and – J.M.W. C.M. J.W. Respondents

Counsel: Jeffrey Hustins, Counsel for the Applicant Jillian Bowman, Counsel for J.M.W. C.M. and J.W., self-represented Cara Valiquette, OCL for the child M.W.W.

HEARD: May 27, 2024

Ruling on Motion for Summary Judgment

MCDERMOT J.

[1] This is a motion for summary judgment brought by the Applicant Society. It concerns three children, a daughter, M.M. (3) and son, W.M. (5) and an older daughter M.W.W. (14). The Respondent Mother, J.M.W., is the mother of all three children and is represented by Ms. Bowman. The Respondent Father of M.M. and W.M. is C.M. who is unrepresented. There is also no issue that C.M. stood in the place of a stepfather and parent as defined by the Child, Youth and Family Services Act [^1] to M.W.W. M.W.W.’s father is J.W., who was also present in court and also unrepresented. Neither father filed any material concerning the summary judgment motion. Ms. Valiquette represents M.W.W. (but not the other two younger children).

[2] This matter was brought to court by the Society due to several disclosures made by M.W.W. to the police and to various C.A.S. workers set out in the affidavits which are as follows:

a. Initially, M.W.W. disclosed to a friend that her stepfather had touched her in her bed at nighttime over her pyjamas in an inappropriate manner. She said that this was a regular occurrence until she turned nine when he stopped.

b. On November 1, 2022, in an interview with the police and C.A.S. after hours worker Johanna Sinclair, M.W.W. disclosed that C.M. had touched her on her breasts and between her legs when she was 7 and 8 years of age. She said that this went on until she turned nine and then it stopped and she and C.M. had a “normal” relationship after that. This information was disclosed to Ms. Sinclair and was set out in the affidavit of Lisa Malito but was confirmed in a direct evidence affidavit of Ms. Sinclair confirming the contents of Lisa Malito’s affidavit.

c. Subsequent to this, M.W.W. disclosed to a third party (unconfirmed by direct evidence in the affidavits) that C.M. had licked her ear and had touched her over a long period of time. In a second interview that took place on November 18 2022, M.W.W. told child protection worker Virginia Edwards and the police that C.M. had licked her ear and described the incident. This was confirmed in the affidavit of Virginia Edwards sworn December 15, 2022.

d. Subsequent to this, the mother corroborated M.W.W.’s evidence about C.M. licking her on the ear as she confirmed to the worker that C.M. “used to enjoy licking her ear in a sexual manner.” [^2] The mother also confirmed this in her own affidavit filed on this motion.

e. On August 4, 2023, M.W.W. disclosed to the police and to Investigation and Assessment Worker Alysha Crozier that C.M. had touched her “way more than I had said.” She also told the police officer and the worker that C.M. had touched her “under clothes and over clothes.” [^3] This information was again, contained in the affidavit Lisa Malito, but confirmed by the direct evidence affidavit of Alysha Crozier sworn September 20, 2023.

[3] This is the fourth time that this summary judgment motion has been before the court. This matter was originally returnable before the court during the November child protection sittings when it was adjourned. On that date, I ordered that the Society provide a list of privileged documentation to C.M. It came before me again on February 14, 2024 during the February child protection sittings. The Respondent Father, C.M. did not file anything for those sittings. At assignment court on February 12, 2024, he complained that the Society had failed to file a proper Affidavit of Documents and that he would be moving for contempt and to address Charter issues. The matter came back before me for argument two days later. At that time, Charter issues were argued (re the Respondent’s right against self-incrimination) and regarding the issue of the Affidavit of Documents. On March 7, 2024, I provided an endorsement confirming that the Respondent Father was protected against self-incrimination under s. 13 of the Charter. I also spoke to the process to be followed concerning the Affidavit of Documents and the allegedly privileged documents noted in schedule B to that Affidavit.

[4] The matter finally was returned before me for argument on May 27, 2024. The Respondent Father C.M. again had filed nothing. He said that he did not have to do anything because the Affidavit of Documents was defective and all of the documents in the Society’s possession were not included, including solicitor client communication. Mr. Hustins confirmed that the affidavit did not detail solicitor and client communications as they were privileged and I pointed out to C.M. that solicitor and client communication were subject to an absolute privilege. However, C.M. pointed out that I had said on a previous occasion that the affidavit should have listed the privileged communications in any event and he further said that, because it did not list those communications, the motion should not proceed.

[5] The issues therefore in this summary judgment motion include the following:

a. Whether the motion cannot be heard because of the Applicant’s failure to provide a further and better affidavit of documents as discussed during submissions;

b. Whether the child’s hearsay evidence can be taken into account under R. v. Khan, [1990] 2 S.C.R. 531;

c. Whether the children can be found to be in protection; and

d. Disposition: should there be an order as requested by the Society for deemed custody to the Respondent Mother and parenting time as set out in the Society’s Notice of Motion?

Affidavit of Documents

[6] When this matter originally came before the court at assignment court for the child protection sittings on February 12, 2024, C.M. had filed nothing in opposition to the summary judgment motion brought by the Applicant Society. He complained about the Society’s inadequate Affidavit of Documents and said that he would be moving for contempt. He relied upon a discussion that he said that he had with me about listing privileged documents (and I have no reason to think the conversation did not take place). He said that he and the Society were both told by me that any privileged documents had to be listed in detail so that the court could determine whether privilege attached to those documents. Certainly, that obligation had been previously set out in my endorsement of November 20, 2023.

[7] The Affidavit of Documents as filed only contains privileged documents concerning the registration of the Respondent Father on the sex abuse registry. It does not mention solicitor client communications. Mr. Hustins acknowledged that he had omitted any particulars of his solicitor client communications from schedule B because those documents are subject to absolute privilege. In submissions, C.M. said that this omission means that the motion should be automatically dismissed.

[8] That may be, but unfortunately C.M. has filed nothing for this summary judgment motion. I told him in my March 7 endorsement that if he wished to determine whether a document was privileged, he had to bring a motion to have those documents produced to the court to make that determination. He did not follow my direction. He could have also brought a motion to strike the Affidavit of Documents or provide a further and better Affidavit of Documents. He did not do this either. He said on February 12, 2024 that he was going to bring a motion for contempt (in fact, there was no order for an Affidavit of Documents; the only order was my order of November 20, 2023 that the Society provide “a detailed list of any documents excluded from disclosure and the reason for exclusion”). Again, he has brought neither a motion for contempt nor a motion to dismiss the summary judgment motion pursuant to r. 1(8) of the Family Law Rules [^4] because of the Society’s failure to comply with that order.

[9] When I asked the Respondent why he had done nothing to address the Affidavit of Documents, he said he did not have to do anything. He said that the Society’s failure to comply with the order is fatal to the summary judgment motion and it should be dismissed out of hand.

[10] If the Respondent is saying that these “privileged” documents are crucial to the determination of the summary judgment motion, he has done nothing to obtain production of these documents or to enforce the order of November 20, 2023. He has only himself to blame for these documents not being before the court.

[11] Moreover, it is fundamental to our system of justice that if one party seeks relief against another, the claimant must give notice of that claim to the responding party. C.M. did not give notice of any claim to dismiss the summary judgment motion and the Applicant had no notice of the relief that C.M. was seeking at the motion. In this case, it is obviously in the best interests of the children to give them finality, especially M.W.W. who is the alleged victim of the Respondent’s abuse. As well, the Respondent’s claim to “stay” or dismiss the summary judgment motion was not served on the Society; nor did the Respondent file a confirmation to clarify what he intended to do on this motion. The Society had no notice of the Respondent’s request to dismiss the motion, which was only made orally from the counsel table by C.M. at the commencement of the motion. Under the circumstances, I decline to entertain an oral motion to enforce my order of November 20, 2023 considering the lack of notice and the fact that it will delay finality for the children. The Respondent’s oral request to stay or dismiss the summary judgment motion is therefore dismissed.

[12] At this point in time, it is appropriate to address C.M.’s self represented status. After, all, Justice Benotto in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 confirmed that “Judicial assistance must be provided for self-represented litigants.”

[13] It is without a doubt that this court has bent over backwards for C.M. The motion for summary judgment was adjourned at his request in November, 2023. The court addressed on its own initiative C.M.’s right against self incrimination in the pre-motion application argued in February, 2024. Moreover, at that motion, the court addressed the steps that the Respondent had to make to attack the Society’s Affidavit of Documents. C.M. is also not an unsophisticated unrepresented litigant. He appears to know exactly what he is doing and he has drafted materials in support of his challenge under the Charter [^5] which was returnable at the temporary care hearing and then subsequently withdrawn. I do not find that C.M. is at a disadvantage in this summary judgment motion and to allow him to strike the motion would also deprive the children of a remedy within a reasonable time as they are entitled to under the CYFSA.

Hearsay Evidence

[14] This is a summary judgment motion brought by the Society, seeking both a finding and disposition as provided for in the Society’s Notice of Motion.

[15] The basis for the protection finding sought by the Society are the statements made by the child, M.W.W. that the Respondent Father had frequently touched her inappropriately and in a sexual manner for a number of years. The statements made by M.W.W. to several Society workers are outlined above and are clearly hearsay evidence and is generally inadmissible in a summary judgment motion: see Kawartha-Haliburton Children’s Aid Society v. M.W., supra.

[16] The prohibition in Kawartha-Haliburton against hearsay evidence is based upon the premise that there can be no evidence used on a summary judgment motion that could not be led at trial: see para. 80 where Benotto J.A. states that, “The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.” That prohibition would, however, not include the exception to the hearsay rule set out in R. v. Khan, supra. In that case, the Supreme Court of Canada determined that hearsay evidence from a child may be admitted by the court on the twin bases of necessity and reliability:

a. Is it “reasonably necessary” that the hearsay evidence be received from the child?

b. Is the evidence sufficiently reliable to be relied upon by the court?

[17] In the present case, the child is being asked to testify about sensitive and presumably traumatizing events concerning alleged sexual abuse by the Respondent Father. I can do no better than to quote from the affidavit of Virginia Edwards which states the following:

[M.W.W.] has disclosed sexual abuse by her step-father toward her on more than one occasion, which is a traumatic experience. Research indicates that it can take multiple interviews and many counselling sessions for victims of sexual abuse to be able to share fully their experiences and work toward healing. [^6]

[18] Moreover, the Respondent Mother has filed an affidavit which speaks to the father’s “lack of insight” into M.W.W.’s best interests. For example, she has noted the fact that C.M., on one occasion in court, read out the entire statement that M.W.W. gave to the police. She deposed that M.W.W.’s father left the courtroom because he was so upset. I note that M.W.W. will have to testify in the criminal matter where there are protections available to her including having counsel appointed to cross examine her to protect her against being questioned by the accused [^7] as well as testifying with the assistance of victim’s services. Those protections would not necessarily be available if she had to testify at a trial in this matter. I am not going to force her to be cross-examined twice and, in this case, by the perpetrator of the alleged assaults who has already shown himself to be insensitive concerning the allegations. The child’s lawyer is of the view that her client should not be forced to testify and C.M. has filed no material in response to the affidavits. He could have at least filed an affidavit denying the allegations, which may very well have required a hearing to determine the credibility issues between these parties but he elected not to do this even though I confirmed that C.M. is protected from self-incrimination by s. 13 of the Charter. I find that there is “reasonable necessity” to allow the hearsay statements.

[19] The statements are also reliable for a number of reasons. They are consistent with one another although M.W.W. took some time to make clear some details of the abuse. As well, the statements were corroborated by the Respondent Mother who provided evidence that one of C.M.’s sexual preferences was to lick her ear, something the child also advised the worker of independently. The reliability of the child’s evidence is enhanced by the fact that the Respondent Father has filed no evidence as to whether the child was motivated in anyway to accuse him without grounds or as to the disclosures themselves.

[20] The hearsay statements of M.W.W. are therefore sufficiently necessary and reliable to be entered into evidence in this summary judgement motion under R. v. Khan.

Finding Children in Need of Protection

[21] The Respondent Father has elected not to file any response to this summary judgment motion.

[22] This is a motion brought under r. 16(4) of the Family Law Rules which requires the moving party to affidavit evidence that “sets out specific facts showing there is no genuine issue requiring a trial”.

[23] The responding party must provide evidence that addresses the issues and may not rely upon mere denials of the facts relied upon by the moving party. This is referred to as putting his “best foot forward” in response to a motion for summary judgment: see Children’s Aid Society of Toronto v. E.L.L. (2000), 134 A.C.W.S. (3d) 263 (Ont. C.J.) and Rogers Cable TV v. 373041 Ontario Ltd., 1994 CarswellOnt 166 (Gen. Div.). In assessing their evidence, it is assumed that all of the evidence that those respondents would present at trial are contained in their affidavits: see Children’s Aid Society of Toronto v. E.L.L. (supra) and Children’s Aid Society of Simcoe (County) v. R.(D.), 2010 ONSC 2092 at para. 6.

[24] However, this does not shift the onus under a motion for summary judgment, especially in child protection matters. That always remains with the Applicant Society: see Kawartha-Haliburton Children’s Aid Society v. M.W, supra at para. 80.

[25] In the present case, the Respondent has filed nothing in response to the Society’s motion. Although C.M. showed up to make submissions, he focused on procedure rather than the substantive allegations contained in the Applicant’s material. This is similar to the Respondent Father’s argument concerning the temporary care motion brought by the Society. The Respondent Father during argument advised that he did have materials before the court that he filed in opposition to the Society’s temporary care motion to place the children with the Respondent Mother subject to supervised access. However, similarly to this motion, the Respondent Father’s emphasis was on the procedural issues and whether the Society had acted improperly in interviewing the child and the mother and in their vetting of his parents as access supervisors. Nowhere in the materials that he filed did he address the alleged offences against M.W.W. Nowhere did he address the issue of the reliability of the disclosures that were made by M.W.W. to the police and the child protection workers. He spent much of his energy on perceived wrongs done to him by the Society rather than the facts in issue.

[26] I therefore am left only with the disclosures by M.W.W. to the workers. I have already permitted M.W.W.’s statements to be entered as evidence based upon necessity and reliability. I therefore find that M.W.W. is in need of protection pursuant to s. 74(2)(c) of the Child Youth and Family Services Act (sexual abuse or exploitation of child).

[27] There is no evidence that C.M. has in any way hurt the younger two children. The Society is concerned that he might if he was permitted to see them on an unsupervised basis.

[28] I spoke to this issue in the temporary care hearing, wherein I noted that “[M.W.W.] was a child when the supposed abuse occurred (and still is) and [W.M.] and [M.M.] are also children.” I have no evidence to the contrary in this motion and unlike the temporary care hearing, there is no material filed by C.M. regarding “profiling” of children. I therefore also find that W.M. and M.M. are in need of protection under s. 74(2)(d) of the CYFSA (risk of sexual abuse or exploitation).

[29] In the absence of material filed by the Respondent Father, I do not need a trial to make a finding that these children are in need of protection on the grounds set out above.

Disposition

[30] The Society addresses disposition in para. 5 to 10 of its Notice of Motion. The Applicant requests an order placing all three children in the deemed custody of the Respondent Mother with no parenting time between C.M. and M.W.W. The Society also requests that the father’s parenting time to W.M. and M.M. be supervised by his parents and that this not be changed until he completes a sexual offender risk assessment and a motion is brought under the Children’s Law Reform Act [^8] which addresses the best interests of W.M. and M.M.

[31] Once there is a finding that children are in need of protection, the court determines disposition based upon the best interests of those children as set out in s. 74(3)(c) of the CYFSA which requires the court to consider a number of criteria in determining best interests:

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[32] The section furthermore requires the court to consider the child’s views and preferences: see s. 74(3)(a) of the CYFSA.

[33] One major criterion applicable to the best interests of the children in this case concerns the views and preferences of M.W.W. who is nearly 15 and well able to express those views and preferences. As well, the other applicable best interests criteria relate to the stability of the family unit (s. 74(3)(c)(i), (v), (vi), (vii)) and the protection issues which related to the finding that the children are in need of protection (s. 74(3)(c)(x) and (xi)).

[34] Again, I note that C.M. has filed no material addressing disposition. He has not filed material on this summary judgment motion which addresses his relationship with the children or what parenting time is in the children’s best interests. He does not address the issue of primary care or decision-making concerning the children and presently has no contact with the Respondent Mother based upon the restraining order and criminal non-conduct order that have been in force in these proceedings. As with the issue of a finding, C.M. preferred to concentrate his submissions on the Society’s failure to file a proper Affidavit of Documents or to itemize the solicitor and client correspondence as ordered on November 20, 2023. In submissions, he did not address the disposition requested by the Society or the best interests of the children.

[35] It is obvious that all three children should remain in the care of the mother. That is the home that the children have lived in since the parties separated when the disclosures were made and the Society became involved on November 1, 2022, about 19 months ago. There is no suggestion that the residency of the children should change in any way and C.M. led no evidence and made no submissions of any other placement. Moreover, there is a restraining order and criminal bail conditions in place which makes communication between the parties impossible. There is no other option than to leave decision-making in the hands of the person with whom the children reside and there is no present ability of the parties to communicate in order to decide issues jointly.

[36] There is also no need for a supervision order. There is no evidence of concerns about the care that the Respondent Mother provides to all of the children. C.M. led no evidence about concerns regarding the care of the children provided by the Respondent Mother. M.W.W.’s father, J.W., was present in court and consented to the Society’s request for deemed custody on the record.

[37] It is therefore in the best interests of the children that they be placed in the deemed custody of the Respondent Mother pursuant to s. 102 of the CYFSA.

[38] Regarding parenting time to M.W.W., the evidence from counsel’s interviews with her indicates that she does not wish to have parenting time with C.M. During argument, C.M. asked that the affidavit of the OCL social worker be struck from the record. He gave no real grounds to doing this other than the fact that it is hearsay evidence. However, the purpose of the appointment of the Office of the Children’s Lawyer is to place views and preferences of the children before the court without traumatizing children. This evidence necessarily has to be hearsay evidence as there would be no purpose to having counsel for the child if a party was able to insist on the child giving direct evidence as to her views and preferences. Moreover, the order authorizes the OCL counsel to provide the child’s views and preferences to the court insofar as it permits OCL counsel to:

appear and participate in this proceeding, including the right to examine and cross-examine witnesses, call evidence and make submissions to the Court, such submissions to include· the position(s) advanced on behalf of the child(ren); [^9]

[39] There is no merit to C.M.’s position that the affidavit of the OCL social worker be struck. There shall be an order, as requested by M.W.W., also requested by the Respondent Mother and again consented to by her father, that there be no parenting time by C.M. to M.W.W. J.W. agreed to the order concerning his parenting time as requested by the Society, which involves him receiving parenting time as arranged between himself and the Respondent Mother.

[40] Regarding parenting time by C.M. to the two younger children, the court is left with the finding that these two younger children are in need of protection because there is a risk of sexual abuse or exploitation at the hands of their father, C.M. That finding has continued throughout the case as C.M. has refused to obtain a sexual offender risk assessment which would indicate whether or not these children are at risk of being sexually abused by C.M. He had argued during the temporary care hearing that these children are both younger than M.W.W. and are therefore not at risk. I was not prepared to make that finding then and I am not prepared to do so now.

[41] What is also telling is that M.W.W. observed that the relationship between C.M. and the two younger children was not particularly close. M.W.W. said in her interview with Ms. Valiquette “that [C.M.] has never really had a great bond with them” and that “’he has always kind of been distant.’” [^10] Later the OCL social worker stated that,

Her prior observation was that he was always pretty distant, he never really acted like a father, he wouldn't really interact with them, and it was mostly her and her mom that were in the house with them. She does not think this has changed, because when her siblings return home they talk mostly about grandma and grandpa, and she does not think [C.M.] is really engaging with [W.M.] and [M.M.] that much. [^11]

[42] The Respondent Father, C.M., shall have parenting time to W.M. and M.M. as requested by the Society. That parenting time may be reviewed by way of a motion to change under the Children’s Law Reform Act if C.M. obtains and serves on the Respondent Mother a sexual offender risk assessment as had been requested by the Society.

[43] I am not going to grant the order restricting C.M.’s right to change the order (or anyone else) by setting the parameters for a motion to change under the CLRA. I do not believe that I have jurisdiction to displace or restrict the right of a parent to bring a motion to change under s. 29 of the CLRA.

[44] The mother’s lawyer, Ms. Bowman, asked for a continuation of the restraining order in this matter. That was not requested by the Respondent Mother in a notice of motion or in her confirmation. As with C.M.’s request to dismiss the summary judgment motion, notice must be given of any request by a party which may affect the rights of another party. That notice was not given and I decline to order a permanent restraining order.

Order

[45] There shall therefore be summary judgment for the following relief:

a. There shall be an order for statutory findings as follows:

i. The children are M.W.W. born […], 2009, W.M. born […], 2019, and M.M. born […], 2021, and they are not First Nations, Inuk or Metis children.

b. M.W.W. is found to be in need of protection under s. 74(2)(c) of the CYFSA;

c. M.M. and W.M. are found to be in need of protection under s. 74(2)(d) of the CYFSA.

d. The children, M.W.W. born […], 2009, W.M. born […], 2019, and M.M. born […], 2021 shall be placed in the deemed custody of the Respondent Mother, J.M.W.

e. C.M. shall have no parenting time to M.W.W.

f. C.M. shall have parenting time to M.M. and W.M. supervised by his parents, D.M. and M.M. to occur weekly with one week occurring in Collingwood for 5 hours each Saturday from 12-5 PM and the alternate weekend parenting time shall occur in Kitchener for three hours, Saturday from 12-3 PM.

g. On consent, the father of M.W.W., J.W., shall have parenting time with M.W.W. as arranged with the mother and in accordance with the child’s wishes.

[46] Parenting time between C.M. and M.M. and W.M. may be reviewed by way of a motion to change under the Children’s Law Reform Act by either the Respondent Mother or C.M. upon C.M. completing a sexual offender risk assessment with a copy of the outcome and recommendations of the assessment to be provided to the mother forthwith upon completion.

Justice J.P.L. McDermot

Released: May 29, 2024

[^1]: S.O. 2017, c. 14 [^2]: Affidavit of Lisa Malito sworn September 20, 2023, para. 21. The mother has confirmed this evidence in her affidavit sworn October 20, 2023. [^3]: Ibid., para. 72 and transcript attached as Exhibit A to that affidavit. [^4]: O. Reg. 114/99 [^5]: Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c.11 (U.K.). [^6]: Affidavit of Virginia Edwards sworn January 23, 2023, para. 12(a). [^7]: See s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46 as amended [^8]: R.S.O. 1990, c. C.12 [^9]: OCL order granted on November 14, 2022, paragraph 3(d). [^10]: Affidavit of OCL social worker Oluyemisi (Yemi) Faderin sworn October 4, 2023, para. 7. [^11]: Ibid., para. 9