Court File and Parties

Court File No.: FA-10-369-02, 04, 05 Date: 2024/06/21 Superior Court of Justice - Ontario

Re: J.S.R. H.S.R. Applicants

-and-

The Children’s Aid Society of Ottawa Respondents

Before: Justice P. MacEachern

Counsel: Kimberley A. Pegg and Erica Tanny, for the Applicant J.S.R Cedric Nahum, for the Applicant H.S.R Judith Hupe, for The Children’s Aid Society of Ottawa Julie Guidon, Children’s Lawyer for E. Deborah Bennett, Children’s Lawyer for R.

Heard: June 21, 2024

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.

87(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.

Endorsement

[1] This is my endorsement on the summary judgment motion brought in these Openness Applications.

[2] This motion was argued on March 5, 25 and April 2, 2024.

[3] The -2 file is the mother’s Application for Openness. The -4 file is the adult sister, H’s, Application for Openness to E. The -5 file is the adult sister, H’s, Application for Openness to R.

[4] E is 8 years of age. R is 12. Neither child is First Nations, Metis or Inuk under the definitions in the CYFSA or federal legislation.

[5] The children were placed in the extended care of the Society by final order dated Feb 18, 2020.

[6] The motion for summary judgment on all 3 files is brought by the Society. The Society seeks to dismiss all of the Applications.

[7] The OCL has appointed separate counsel for each child. Counsel for each child advise that they support the Society’s position.

[8] The Society’s main argument is that there is no genuine issue for trial because the children oppose the Applications and do not want to have any contact with the Applicants. With respect to R, she is now over 12. The legislation requires her consent to openness. The Society also argues that R does not consent for the purpose of s.196(7).

[9] On the first day of hearing on the motion, counsel for each child and the Society submitted that neither child wished to have any openness with the mother or the sister. However, on the return of this motion, after the first day of the hearing, the Society and the OCL presented Minutes executed between the Society and the OCL on behalf of each child. These Minutes provide for each child to have openness to the mother and H. The terms of the openness, in effect, provide for openness that is in accordance with each child’s wishes and allows for the mother and H to send pictures, cards, and letters to the child once per year, subject to review by the child’s caregiver and received by the child if the child wishes.

Applicable Test for Openness

[10] Under s. 179 of the CYFSA, an “openness order” means an order made by a court for the purposes of facilitating communication or maintaining a relationship between the child and a birth parent, birth sibling or birth relative of the child, or a person with whom the child has a significant relationship or emotional tie, including a foster parent of the child or member of the child’s extended family or community. The definition includes additional provisions for a child who is First Nations, Inuk or Metis – which do not apply here.

[11] The test for when a Court shall make an Openness Order is set out in s. 196 of the CYFSA:

S. 196 (7): Openness order

(7) The court may make an openness order under this section in respect of a child if it is satisfied that,

a) the openness order is in the best interests of the child;

b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and

c) the child has consented to the order, if they are 12 or older.

(8) In deciding whether to make an openness order under this section, the court shall consider the ability of the person with whom the society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent, to comply with the arrangement under the openness order.

[12] The focus is whether an openness order is in the child's best interests and if the continuation of the relationship is meaningful and beneficial to the child.

[13] In the Children’s Aid Society of Toronto v R.S., 2019 ONCJ 866, affirmed on appeal, Justice Sherr observed the following about openness:

a. It is very important for children to know their story, their history and where they come from.

b. Many children will want to search out their birth parents at adolescence if they have no contact. It can help them remove any fantasy about their birth parents and have a more realistic understanding of who they are.

c. It can help build a child’s identity – to know who they are.

d. It can help a child be more secure in where they’ve come from and where they are going. It might provide the child with a greater sense of security moving forward.

e. It helps the child understand their roots, heritage, culture and religion – about foods and events that are important in their culture.

f. It helps the child understand why decisions were made about them and why they live where they live. It can inform them that they were and are loved by the birth parent.

g. It definitely promotes self-esteem and can help meet the emotional needs of the child.

h. It can provide the child with readier access to medical information. This can be very important if genetic concerns develop. This is also important information for the adoptive family to have.

i. It allows the adoptive family to reinforce the child’s ability to understand their story and their history.

[14] In Children's Aid Society of Toronto v. J.G. 2020 ONCA 415, the Ontario Court of Appeal confirmed that "the child's best interests are clearly not static". (para. 51)

[15] The Court of Appeal refers to para. 74(3) (i) (ii) (iii) and (iv) and finds that these provisions "demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future." (para. 52).

[16] The Court of Appeal endorsed the principle that in considering the best interests of a child, the court should consider all relevant factors including past, present or future considerations. "There is no need for a court to confine itself to past or present circumstances in conducting its analysis". (para. 65)

Applicable Law on Summary Judgment Motions

[17] Summary judgment motions are governed by Rule 16 of the Family Law Rules.

[18] The burden of proof is on the party moving for summary judgment.

[19] Pursuant to subrule 16(4.1), the responding party 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. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial.

[20] Although subrule 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. See: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80.

[21] Subrule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[22] Subrule 16(6.1) provides that in determining if there is no 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 that purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

a. Weighing the evidence

b. Evaluating the credibility of a deponent.

c. Drawing any reasonable inference from the evidence.

[23] Pursuant to subrule 16(6.2), the court may, for the purpose of exercising any of the powers set out in subrule 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[24] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

[25] Hyrniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16(6.1) If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

[26] 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 (Hryniak - paragraph 49). As the Supreme Court stated, at para. 50 of Hryniak, “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.” (Kawartha, paragraph 63).

[27] As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits (Kawartha, paragraph 76).

[28] The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in several ways. It has been equated with “no chance of success,” or that it is “plain and obvious that the action cannot succeed.” The test has also been enunciated as being when the “outcome is a foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant. (Kawartha, paragraph 72).

Evidence

[29] Evidence on a summary judgment motion must be trial-worthy. I raised concerns about some of the content of the affidavits filed on this motion and the basis upon which I could conclude that it would be admissible at trial.

[30] For example, Ms. Cunningham’s affidavit contained several paragraphs in which the information's source was unclear, as well as several statements made by a child. I do not find that I have sufficient evidence or the source of the information or the circumstances surrounding the children’s statements to find these statements admissible. Ms. Cunningham’s affidavit also included evidence on behalf of Ms. K, the children’s adoptive mother. But Ms. K has provided her own affidavit, and I do not find what Ms. Cunningham says about Ms. K’s position or statements to be admissible for the truth of their content. Similar comments are made regarding Ms. Newell’s affidavit.

[31] As another example, Ms. K’s affidavit also contains evidence of statements made to her by the children without providing sufficient information regarding surrounding circumstances to determine the admissibility of these statements.

[32] I have not admitted parts of Ms. Cunningham’s, Ms. Newell’s and Ms. K’s affidavit that contain hearsay or parts for which the source of the information is not provided.

[33] The OCL has provided an affidavit of R Butt (re R) and S Parker (re E). The mother’s counsel and H’s counsel object to the admissibility of much of the content of these affidavits, which provided the views and preferences of the children. The objections included that the affidavit contained evidence of what the children said during a meeting with the social worker affiant and the OCL counsel. OCL counsel has refused to produce the notes of the meeting, claiming solicitor client privilege.

[34] I find the affidavits of Mr. Butt and Ms. Parker admissible, including the statements attributed to the children. The affidavits contain sufficient detail of the surrounding circumstances upon which I conclude that the evidence of the children’s statements are admissible as they are reliable and necessary. The affiants are clinician social workers with the Office of the Children’s Lawyer. They have experience interviewing children and experience interviewing these children. I find necessity because of the children’s age and the evidence before me that supports that they have some fear towards their mother, do not want to have contact with her, at least at this time, are concerned about information being provided to her, that R has already had to testify in the criminal proceedings, and generally their history of lack of stability – all of which point to the need to insulate them from testifying in court. In making this finding, I have taken into consideration the stakes involved and that this matter impacts the interests of the mother, who is in a vulnerable situation. But I find that the safeguards surrounding the reliability of this evidence, that the finding of extended care has already been made, the children have now been adopted, and the interests of the children, support admitting this evidence.

[35] The mother provided her own affidavit and three other brief supporting affidavits (two from her counsel’s law clerk). H also provided an affidavit.

Analysis

[36] On the evidence before me, I make the following findings:

a. Neither R nor E have had any contact with their mother or H since March of 2022. R briefly joined a Zoom call in December of 2021, but other than this, she stopped having contact in approximately March of 2020.

b. R does not currently want any contact with her mother or H. She does not trust H, views H as aligned with her mother and would pass information about R to her mother. R is fearful of her mother.

c. R has been consistent about not wanting contact with her mother or H since at least approximately January of 2022.

d. E does not currently want any contact with her mother but may be open to contact in the future and to receive gifts. E does not currently want contact with H- she does not trust H, views H as aligned with her mother and would pass information about E to her mother. E is fearful of her mother.

e. E and R have a close sibling relationship and are aligned in their views about their mother and H. I accept that each child’s views impact the others.

f. The children are motivated to secure their relationship with their adoptive mother. It is apparent they have been impacted by instability in the past, need stability in their new home, and perceive their mother as a threat to this stability.

g. E's visits with her mother were positive up to March of 2022. Prior to that time, the siblings had been separated, which was traumatic for them. When they returned to be in the same home, E no longer wanted contact with the mother. I accept that E’s need for stability and primary attachment to her sibling significantly influenced this change.

h. E maintains openness with her biological father and maternal grandmother. R maintains openness with her maternal grandmother.

i. The children’s adoptive mother, Ms. K, does not support the children having openness to the mother or H that the children do not want. She worries about the impact of forcing them to have contact against their wishes and wants them to feel safe in her home and trust that she will protect them. She wants to provide them with stability.

j. Ms. K is not willing to have any relationship with the mother at this time. She does not trust the mother and is scared of her.

k. Ms. K is prepared to facilitate contact between the children and the mother in the future if the children voice an interest in such contact.

l. R does not consent to contact with the mother or H at this time, beyond what she has consented to through her lawyer in the signed Minutes.

[37] Ms. K gives evidence that she and the children have seen the mother in their neighbourhood on several occasions. The mother denies this. I do not find that a trial is needed to hear oral evidence, and determine credibility, on the issue of whether or not the mother was in the vicinity of the Ms. K and the children. This is because the test for openness focuses on the child's best interests, and whether the relationship is meaningful and beneficial to the child. The best interest factors are paramount, including the children’s views and preferences. The evidence before me supports that the children have a reasonable basis to resist contact with the mother and H at this time, in their need for stability, fear of their mother due to a belief that she has hurt R in the past and the facts underlying Justice Parfett’s finding that the children were in need of protection. They have been consistent. There is no genuine issue for trial to delve into why the children resist contact, and to argue with their perception of what makes them feel safe and stable.

[38] The same applies to the mother’s other arguments that seek to challenge the various reasons why she believes the children have been wrongfully influenced to resist contact with her.

[39] For similar reasons, I do not find that a trial is needed so that the transcripts from R’s testimony at the mother’s criminal trial would be available to the court, as well as the disposition from the criminal trial.

[40] The mother also argues that a trial is needed to determine if R’s consent is a valid consent within the meaning of s. 196(7). Submissions were made as to how “consent” under s.196(7) should be interpreted. Even if I accept that there needs to be some evidence that the child has provided meaningful consent, I would find that the evidentiary onus is met here. There is strong evidence before me, including R’s refusals to have contact over the last few years, that she does not consent to contact, other than contact in accordance with her wishes, which is reflected in the Minutes.

[41] One suggestion from the Applicant’s counsel was that both children, including R, should be directed to attend openness on a regular schedule, but that this would not amount to “being forced” to have contact because they would not be made to get out of the car if they did not want to. I find that the evidence is clear that R does not, in a meaningful and valid way, consent to this. I also disagree that this would not amount to “forcing” R to have a level of openness to which she clearly does not consent.

[42] The children have Jewish ancestry. I have considered this factor in the best interest factors under the legislation. This is an important factor, regardless of whether the children choose to follow the Jewish religion. I have also considered, however, that the children maintain openness with their maternal grandmother, as well as E’s father, and will also have openness to H and their mother, as they wish in the future, under the orders made below.

[43] I have considered the test that applies to openness and the best interests factors, including past, present and future considerations. Given the findings made above, I do not find that there is a genuine issue for trial to determine the Openness Applications.

[44] On the evidence before me and considering the test under s.196(7), and all of the best interests factors, I find that it is in the children’s best interests for there to be an Openness Order that reflect the terms of the Minutes signed by the OCL and the Society, and make final orders accordingly.

[45] The parties may provide a final order to me for signature.

Justice P. MacEachern Date: June 21, 2024

COURT FILE NO.: FA-10-369-02, 04, 05 DATE: 2024/06/21 ONTARIO SUPERIOR COURT OF JUSTICE RE: J.S.R. H.S.R. Applicants -and The Children’s Aid Society of Ottawa Respondents BEFORE: Justice P. MacEachern COUNSEL: Kimberley A. Pegg and Erica Tanny, for the Applicant J.S.R Cedric Nahum, for the Applicant H.S.R Judith Hupe, for The Children’s Aid Society of Ottawa Julie Guidon, Children’s Lawyer for E. Deborah Bennett, Children’s Lawyer for R. ENDORSEMENT Justice P. MacEachern Released: June 21, 2024