WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Children’s Aid Society of the Niagara Region, Applicant
AND:
H.G., Respondent
AND:
G.M. (default), Respondent
AND:
D.S. (deceased), Respondent
BEFORE: Justice F. Wood
COUNSEL: M. Scull, for the Applicant H.G., on behalf of herself J. Pietrangelo, Office of the Children’s Lawyer
HEARD: In Welland, March 11, 2026
ENDORSEMENT ON SUMMARY JUDGMENT MOTION
1.
Introduction
A summary judgment motion in this matter has been outstanding for some time. Ultimately, it came on for a hearing today. For the reasons set out below, the motion is adjourned.
2. In preparing for a motion of this nature, the court typically begins with the Confirmation forms filed by the parties. An earlier confirmation form for this motion had directed the court to read every application, plan of care and affidavit filed in the action. Perhaps recognizing how inappropriate such a direction is, the Society filed an updated confirmation form on this motion. It directs the court to read no fewer than 16 affidavits.
3. Some, but not all of the said affidavits are contained in the relevant folder on Sharepoint. Several are attached as exhibits to one affidavit. The five affidavits which are contained in the Sharepoint file total 83 pages. The “primary” affidavit, not in the folder, runs to 41 pages and one other, also not in the folder, runs to 58 pages. The court has not counted the pages in the remaining nine affidavits.
4. The Society has filed a Factum. It is single spaced and runs to 35 pages. Properly spaced, it would run to 70 pages.
5. While the court appreciates that there may be circumstances, particularly in child protection cases, in which materials which exceed the length set out in the practice directions can properly be admitted, the volume of materials filed in support of this summary judgment motion so far exceed those limits as to make proper adjudication of this motion impossible. Moreover, contrary to the local practice direction, no attempt was made to seek leave to file materials which exceed the allowable limits.
6. There is very little attempt in any of the materials to focus on the actual issue at hand – rather, the affidavits simply recite worker’s notes with little to no regard for what evidence is relevant, probative or even admissible.
7. At the commencement of the motion, the court was also advised that H.G. had received none of the Society’s updated affidavits until this morning. Counsel advised that all materials had been emailed to H.G., but that she did not appear to have opened them. H.G. explained that she tried but was unable to do so. The Society then made paper copies available to her, but she was not able to get to the Society offices in time to pick them up.
8. On a motion for summary judgment, the parties are required to put their best foot forward. That requirement applies to H.G. as well. A party attempting to respond to such a volume of material, including affidavits which date back some eight years cannot realistically be expected to respond meaningfully. The sheer volume and time span of the materials would make that task daunting for experienced counsel – a self represented litigant has no chance.
9. The lack of focus also makes the task of preparing responding materials challenging. Must a responding party respond to each and every allegation filed over a span of eight years and 16 separate affidavits? Should they attempt to focus only on the most salient and relevant facts? How will they know which facts are being relied upon by the Society as core to their argument and which are simply narrative or filler?
10.
Procedural Fairness in Summary Judgment
In considering the appropriateness of a determination by way of summary judgement, courts have consistently referred to the need to ensure procedural fairness for all litigants.
11. Child protection hearings engage such fundamental rights that our courts have recognized that they trigger Charter rights. In New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 653 (SCC), Chief Justice Lamer held at p. 75 that “[s]ection 7 guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children” [para. 55]. Chief Justice Lamer went to write that the state can only remove a child from parental1 custody in accordance with the principles of fundamental justice which are to be found in the basic tenets of our legal system. He wrote:
[70]…
Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination.
73For the hearing to be fair, the parent must have an opportunity to present his or her case effectively… If [they are] denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests. There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child’s best interests to remain in his or her care.
12. More recently, the Court of Appeal discussed the particular challenges of summary judgment motions in child protection proceedings in Kawartha-Haliburton v. M.W., 2019 ONCA 316. Justice Benotto, discussing the importance of fairness in these motions wrote:
69Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms. The miscarriages of justice outlined in the Report of the Motherisk Commission (2018: Ontario Ministry of the Attorney General) speak, by way of example, to the significant imbalance between parents and Children’s Aid Societies, noting that parents, even when represented by counsel, were “simply overpowered” (at p. 121). Fairness in the child protection context demands recognition of these dynamics.
13. In short, before a court will make an order of this magnitude, a caregiver must be given a fair opportunity to respond meaningfully. The process must be fair to all litigants. The court finds that the practice of relying on “all previously filed affidavits” does not meet this test. The court does not seek to fault counsel involved in this particular case – the practice of filing affidavits that are little more than a reformatting of worker’s notes is not uncommon. Not only is that practice not helpful to the court, it places respondent parents in an impossible situation. It is not clear which facts the Society deems relevant or probative to the particular findings it is asking the court to make.
14. As it prepares amended materials, the Society is also reminded of:
a) the caution set out in Children’s Aid Society of Toronto v. B.H. and M.P., [2007] O.J. No. 2446, wherein Justice Sherr wrote:
55This court has to make a major decision for these children and their families that will have a huge and permanent impact on their lives. The society is a powerful institution and with such power comes great responsibility. The goal of a state litigant is justice. It is not about winning. The society's role in presenting a case to the court is not merely to present evidence that justifies their position, but to present all relevant and probative evidence, including that not favourable to their position, to ensure that the best possible decision for children can be made. It is important that society workers understand this. Society counsel can only put forward the evidence that the workers provide to them. It is important to educate the workers about their responsibility to provide a balanced perspective of the case to the court and not only provide information that justifies their position. It is not good enough to say that it is the job of the parents' lawyers to produce this evidence. Parents' counsel (if the parties even have counsel) rarely have the resources of the society and should not have to chase after this information. Child protection trials are not, and should not, be a game.
b) the approach adopted by Justice Sherr in Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 646 where he wrote:
25My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make determination.
15. The Society is also reminded, in preparing its materials of the purposes of the CYFSA as enunciated in section 1(2), including providing support and services in a manner which builds on the strengths of families. Helpful guidance about the role of societies can be found in Catholic Children’s Aid Society of Toronto v. K.R., 2018 ONCJ 288.
16.
Order
In an effort to ensure a fair and orderly argument of the summary judgment motion, the court heard submissions from counsel and H.G. Procedural steps were explained to H.G. in plain language and her views and preferences as to how to proceed were canvassed. The court orders as follows:
The motion is adjourned to the week of March 30, 2026. Parties shall advise the Trial Coordinator if they are not available any day that week.
On or before March 20, 2026, the Society shall serve and file the documents set out below:
a. One (1) primary affidavit consisting of no more than 40 pages, double spaced of narrative, not including exhibits;
b. Up to five (5) additional affidavits, each no more than 10 pages, double spaced of narrative, not including exhibits;
c. The affidavits set out above shall not contain new information (except in relation to the period of March 2 – March 20 if necessary).
The Society shall prepare paper copies of the materials and leave them at the front desk at the Niagara area office no later than 3:00 pm on March 20, 2026, so that H.G. can collect them there. Service shall be deemed effective at 3:00 pm on March 20, 2026, provided this paragraph is complied with.
On or before March 27, 2026, H.G. shall serve and file one (1) responding affidavit consisting of no more than 20 pages, double spaced of narrative, not including exhibits. (The difference between narrative and exhibits was explained to H.G. today. She may provide her affidavit in handwriting.)
H.G. may serve her materials by leaving a paper copy at the Niagara area office, front desk.
At the hearing of the summary judgment motion, no evidence other than that set out above shall be relied upon, except that H.G. may elect to provide some supplementary oral evidence2. If she wishes to do so, she shall advise counsel by March 27, 2026.
F. Wood, J.
Released: March 11, 2026
Footnotes
- The Respondent in this case is the child’s grandmother, but the court sees no reason that the same considerations should not apply to her. The child refers to her as “Mom” and she is the only “parent” he has known.
- See Catholic Children's Aid Society of Toronto v. A-V. M. and J.M., 2016 ONCJ 625, at para 27