Children’s Aid Society of Toronto v. M.R., 2016 ONCJ 215

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of Toronto v. M.R. , 2016 ONCJ 215 DATE: 2016·April·12 COURT FILE No.: Toronto CFO BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — M. R. and A. A. Respondents.

Before Justice Ellen B. Murray Heard on March 21, 2016 Reasons for Judgment released on April 14, 2016 Christine Doucet ................................................................. counsel for the applicant society Anthony Macri ................................................................... counsel for the respondent M. R. Marek Balinski …………………………………………………... counsel for the respondent A. A. MURRAY, E. B. J.: [ 1 ] C. R., born […], 2008, is the child of M. R. and A. A. The Society brings a

summary judgement motion asking for an order pursuant to s. 57.1 of the Act placing C. in the care of her maternal grandfather and step-grandmother, G. and MN. R., who live in British Columbia.

If that order is made, the Society asks for further orders: • that the grandparents be permitted to obtain a passport and other government documentation for the child and to travel inside or outside Canada with the child without the consent of the parents; • that there be no access between C. and her mother at this time, “unless supported by C.’s treatment and/or service providers and in accordance with C.’s wishes as determined the G. and MN. R.”. [ 2 ] M., who lives in Toronto, opposes the Society’s motion, and says that there are triable issues in the case.

In her Answer, M. requests an order placing C. in her care pursuant to Society supervision. If I dismiss the Society’s motion, M. asks that I make a temporary order for her to have access to C. in British Columbia, and that the Society pay her $4500 to fund the cost of travel and accommodation. [ 3 ] A. was noted in default on November 17, 2015, and did not participate in this motion. 1. Background/ History of proceeding [ 4 ] The facts set out below are either agreed-upon or uncontested or met only with a bald denial by M. [ 5 ] M. is now 44 years of age.

Prior to 2007, she had a career in horse racing, as a trainer and owner. In 2007, M. was injured in an accident, and since then she has been primarily reliant on public assistance. [ 6 ] A. was violent to M. during their relationship. They separated in March 2009. C. remained in M.’s care after separation. Mother obtained an order giving her custody of the child, with A. having limited supervised access. He had little involvement with C. after the separation. [ 7 ] The Society had a number of openings for protection investigations prior to C.’s apprehension on August 6, 2013.

Only one of those investigations resulted in a verified protection concern (inadequate supervision), and in that case the Society found it unnecessary to take further action after discussing the matter with M.. [ 8 ] C. was apprehended by the Society on August 6, 2013, when M. was arrested because of a report from a citizen bystander that she physically assaulted the child. M. was charged with two counts of assault, assault with intent to resist arrest, and cruelty to animals (the family dog).

The terms of M.’s bail restricted her contact with C. to terms approved by the Society or directed by the court. [ 9 ] A temporary without prejudice order was made on August 12, 2013, placing the child in the Society’s temporary care.

M. had access to the child twice weekly for 1 ½ hours, supervised by a Society worker. [ 10 ] In M.’s Answer, filed September 16, 2013, she identified G. and MN. as important supports for her, saying that, “my family is very supportive to the health and welfare of C. and in helping to make a peaceful and strong environment for her to live in.” M. proposed that if C. could not be returned to her immediately, that she be temporarily placed with G. and MN. rather than be in a foster home. [ 11 ] G. and MN. were approved in a kinship assessment, and on November 20, 2013, a temporary order was made on consent placing C. in their care, subject to the Society supervision, with access to M. at the Society’s discretion as to level of supervision, frequency, location, and duration, and subject to the terms of her bail.

The B.C. Ministry of Children and Family Development (MCFD) was to assist the Society in exercising supervision. [ 12 ] C. went with G. and MN. to their home in Lumby, B.C. on November 20, 2013, and has continued to be in their care. [ 13 ] After C. went to B.C., telephone access with M. began, scheduled to be twice weekly for up to an hour. Soon the access began to be conducted by Skype, again twice weekly and later increasing to three times a week.

[ 14 ] M. and the grandparents agreed that counselling would be beneficial for the child. In January 2014 C. began therapeutic counselling with Leisa Dauncey, a mental health clinician with MCFD. Ms. Dauncey has continued to meet with C. every two weeks since that time. She works with the child around issues such as anger management, techniques to control anxiety, and problems with social interaction. Management by C. of her relationship and contact with her mother has been a major issue in their therapy. Ms. Dauncey works in consultation with a child psychiatrist employed by MCFD, Dr.

Jake Locke. [ 15 ] M.’s criminal trial was held in June 2014. C. testified at that trial, via Skype. M. was convicted September 16, 2014 of two counts of assault against C. and one count of assault with intent to resist arrest. She is appealing those convictions. [ 16 ] At the Society’s request M. attended for a psychiatric assessment by a Dr. Alpna Munshi at the Centre of Addiction and Mental health. Dr. Munshi’s report made a provisional diagnosis of dysthymia (chronic depression) and borderline personality disorder traits [1] . That diagnosis was the same as that given in 2013 by Dr.

Shawn Vasdev, a psychiatrist she had consulted privately. [ 17 ] On November 4, 2012, a finding that C. was in need of protection was made on consent pursuant to s. 37(2)

a) of the Act ( physical harm). An order placing C. in G. and MN.’s care for four months was also made on consent, with supervised access to M. at the Society’s discretion, in consultation with the supervisors in B.C. from MCFD. [ 18 ] During 2014 G. and MN. reported increasing difficulties in the phone and Skype calls between M. and C..

They said that C. was experiencing frequent nightmares and behavioural problems which G. and MN. observed were linked to the child’s adverse reactions to her contact with M.. [ 19 ] The Society decreased Skype visits from three times weekly to twice weekly in March 2014. [ 20 ] C.’s paediatrician, psychiatrist, and therapist recommended in the fall of 2014 that access be temporarily suspended to see if the child’s emotional state and behaviour improved. [ 21 ] On December 4, 2014, M. was sentenced to three years’ probation.

One provision of her probation order is that access to C. shall be only as permitted by a family court order. [ 22 ] On December 15, 2014 the Society commenced an early status review seeking a further 4-month order placing C. with G. and MN. under Society supervision, with access at the Society’s discretion, including the discretion to suspend access if necessary “to maintain the child’s emotional health”. The Society brought a motion requesting a temporary order giving it the authority to suspend access, if so advised.

The case management judge made the order requested, adding that requests from C. for access should be facilitated by the Society. [ 23 ] After that order was made the Society temporarily suspended access, initially for a three month period. [ 24 ] G. and MN. and workers and treatment providers for C. reported no requests from her for contact with M.. They stated that C. said that she wanted no contact with her. [ 25 ] On April 16, 2015, after argument, the case management judge dismissed M.’s motion for in-person access between her and C. in BC, supervised by the local protection authority.

He made an order suspending M.’s access. [ 26 ] There has been no contact between M. and C. since December 2014. [ 27 ] G. and MN. and workers and treatment providers for C. continue to report that C. does not request contact with M., and, in fact, says she does not want such contact. [ 28 ] On May 6, 2015, the case management judge ordered a s. 54 assessment of C. by Dr. Allan Posthuma, a B.C. psychologist selected by M. His report was delivered on June 12, 2015. [ 29 ] Dr.

Posthuma recommended an indefinite suspension of C.’s contact with her mother, until the child “makes sufficient progress in her treatment and recovery to request a resumption of contact with her mother.” [ 30 ] On the

summary judgment motion, the Society submitted the following evidence: • affidavits from Society workers John Telfer, Cheryl Hoosen, and Des Masterson; • affidavits from B.C. Guardianship social worker, Carolyn Hladik and Child and Youth Mental Health Clinician, Leaisa Dauncey, both employed by the BC Ministry of Child land Family Development (MCFD); • affidavits from G. and MN. R.; • S. 54 report from Dr. Allan Posthuma; • Health practitioner reports from Dr. Eiko Waida, Dr. Jake Locke and Dr.

Alpna Munshi, • Transcript of C.’s evidence from M.’s criminal trial; • Reasons for decision in M.’s criminal trial. • Agreed Statement of Facts, filed November 4, 2014 [ 31 ] M. submitted two affidavits from herself and a copy of her notice of appeal from the criminal convictions.

Summary judgement—the law [ 32 ] Rule 16 of the Family Law Rules (FLR) sets out provisions for

summary judgment motions. The Rule was amended in 2015 to broaden the court’s powers on such motions, to include powers which had been exercised under Rule 20 of the Rules of Civil Procedure (RCP) since January 1, 2010. The relevant sections of Rule 16 are set out below, with the additional powers underlined. WHEN AVAILABLE 16.

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for

summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for

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

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. EVIDENCE OF RESPONDING PARTY

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

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. NO ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. POWERS ( 6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: • 1. Weighing the evidence. • 2. Evaluating the credibility of a deponent. • 3. Drawing any reasonable inference from the evidence. ORAL EVIDENCE (MINI-TRIAL)

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

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2), • (

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); • (

b) give directions; and • (

c) impose conditions (for example, require a party to pay money into court as security, or limit [ 33 ] The enhanced powers of the court in hearing

summary judgment motions are evident in the new Rules 6.1 and 6.2. • Courts hearing

summary judgment motions are now able to do what the Court of Appeal had previously directed them not to do— weigh evidence, draw reasonable inferences from that evidence, and evaluate the credibility of a witness— “ unless it is in the interest of justice for such powers to be exercised only at a trial”.

• Courts hearing

summary judgment motions may hold an oral “mini-hearing” in the exercise of these enhanced powers. [34] In Hryniak v. Mauldin (2014) 1. S.C.R. 87, the Supreme Court of Canada considered Rule 20 of the RCP. JusticeAndromache Karakatsanis provided a road map for a judge conducting a

summary judgment motion that is equally relevant for motionsmade under Rule 16 of the FLR. The roadmap is summarized below: First, “determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-findingpowers”. If the court finds using this approach that there is no genuine issue of material fact requiring a trial, then the court must makean order for

summary judgment. Second, if there appears to be a genuine issue requiring a trial, the judge should determine if the need for a trial can be avoided by usingthe new powers—powers to weigh evidence, evaluate credibility, draw inferences, and possibly receive oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against theinterests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in lightof the litigation as a whole.

The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial. [35] Caselaw predating the amendments to Rule 16 continues to be relevant as to basic principles that apply to

summary judgmentmotions. • On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determine if there is agenuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. (Children’s Aid Society of Hamilton v.M.N. (ON SC), [2007] O.J. No. 1526 (SC) • Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. (Children's AidSociety of Toronto v. T. (K.) (ON CJ), [2000] O.J. No. 4736 (O. C.J.). • The responding party, faced with a prima facie case for

summary judgment, must provide evidence of specific facts showing thatthere is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showingthat there is a genuine issue for trial will be insufficient to defeat a claim for

summary judgment. (Children's Aid Society of MetropolitanToronto v. A. (M.), (ON CJ), [2002] O.J. No. 2371 (O. C.J.). • In determining whether there is a triable issue, the court should not be asked to speculate as to what evidence might be introducedat a trial. The court must rely on – and evaluate – the sufficiency of the evidence as disclosed by the affidavits. The court is entitled toassume that each party’s affidavits contain the evidence which would be before the court if the case went to a viva voce trial. (Children’sAid Society of Toronto v. C.H. 2004 ONCJ 224 , [2004] O.J.

No. 4084 (O.C.J.); Children’s Aid Society of Hamilton v. C.R. (ON SC), [2006] O.J. No. 3442 (S.C.) • A submission that the evidence must be tested by way of cross-examination does not in itself give rise to a genuine issue for trial.(Children’s Aid Society of Hamilton v. A.M. and T.L., 2012 ONSC 6828.) • “No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.” (Children’s Aid Society of the Niagara Region v. S.C., (ON SC), [2008] O.J. No. 3969 (Sup. Ct.) at para. 43) 3.

Status review - the law S. 65.2 of the Act provides that on a status review the court may: • place the child with a parent or other person, subject to Society supervision; • make a custody order to one or more persons pursuant to s. 57.1 of the Act; • make an order of Crown wardship; or • terminate or vary any order previously made. [36] The court’s decision is to be guided by a determination of the child’s best interests, with reference to the factors set out in s.

37(3) of the Act. [ 37 ] The court in making a status review order is still guided by the principles set out in s. 57 of the Act preferring community or family placements and less disruptive alternatives, as well as the paramount purpose of the Act, to promote the “best interests, protection and well-being of children”. Part of that purpose encompasses providing parents with the necessary help to care for children. [ 38 ] When a court makes a status review order, it may also vary or terminate an order for access [2] .

Again, the test is best interests. [ 39 ] The best interests factors as set out in s. 37(3) are: 1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child's physical, mental and emotional level of development. 3. The child's cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family. 6.

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. 7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. 8. 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. 9. The child's views and wishes, if they can be reasonably ascertained. 10.

The effects on the child of delay in the disposition of the case. 11. 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. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13. Any other relevant circumstance. 4.

Evidentiary objections by M. [ 40 ] M.’s lawyer raised numerous objections to evidence the Society sought to introduce, which I deal with below. 4.1 Voluminous material [ 41 ] M.’s lawyer submits that the length of the Society’s motion record –567 pages—in itself disqualifies this case as appropriate for a

summary judgment. Counsel argues that the evidence is unfocussed and replete with inadmissible hearsay, and that such a process is unfair to a parent, particularly when the parent’s counsel must work within the confines of a Legal Aid tariff. [ 42 ] A similar objection was made to Justice Roselyn Zisman in Jewish Child and Family Service v. S.K ., 2015 ONCJ 2353 , and dismissed by her. I agree with Justice Zisman, who observed as follows: 111 There is no requirement that a

summary judgement motion must only deal with simple or uncomplicated issues. I take the view that if a case such as this, that would involve many weeks of trial time, is more properly dealt with in whole or in part by means of a

summary judgement motion then it is the duty of the court to proceed in that manner. 112 This approach is consistent with the guiding principle of the FLR set out in subrule 2(2) and (3) to deal with cases justly that includes the duty to ensure that the procedure is fair but also to deal with cases to save expense and time and in ways that are appropriate to its importance and complexity. 113

Summary judgement is clearly a procedure that affords a more timely, affordable and proportional procedure. As stated by Justice Karakatsanis, in Hyrniak and Maudlin, supra, at paras. 4 and 5: ... in my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. To that end, I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the

affordable, timely and just adjudication of claims. [43] I agree with counsel that in this case the affidavits from Society workers were not as concise and focussed as they might havebeen. I note that the Society initially neglected to prepare a factum; failure to do so, particularly on a motion with such extensivematerial, means that the court is deprived of assistance required to reach a just result. I adjourned the motion directing the Society toprepare a factum, with reference to specific portions of the evidence in support of its argument.

The shortcomings in the Society’spreparation, however, do not provide grounds for an argument that the motion should be dismissed. [44] If there is concern that Society materials (or the materials of any party) on a motion for

summary judgment may be ofexcessive length, then the case management judge scheduling the motion may be asked to limit both the number of affidavits and thelength of those affidavits pursuant to Rule 1(7.2), always, of course, taking into account the issues in a case,. [45] Counsel’s objection to hearsay in the Society materials is dealt with separately below. 4.2 Evidence of events prior to order under review [46] M.’s counsel objects to the introduction of evidence of events and behaviour prior to November 4, 2014, the date of the orderunder review, the order which found that C. was in need of protection and which placed her with G. and MN. under Society supervision. [47] The evidence to which counsel objects includes: • evidence from C. at the criminal trial[3] ; • evidence of C.’s interaction with M. on visits in Toronto prior to her going to B.C.; • evidence of C.’s interaction with M. on visits by Skype and phone and C.’s behaviour before, after and during those interactionsfor initial 12 months after she went to B.C; • evidence from C.’s therapist and psychiatrist in B.C. about the child’s emotional health for the period January – November 2014;and • evidence about C.’s wishes expressed during the same period as to her future residence and contact with M.. [48] Counsel takes the view that the Society should be limited to the facts set out in the agreed statement of facts filed onNovember 4, 2014 with respect to evidence of events or behaviour prior to that date.

In support of his argument, he cites the statement ofJustice Jennifer Mackinnon in C.A.S. Ottawa v C.W. and P.W., (Ont. S.C.): It is established law that a status review is not a rehearing or retrial of the original order, rather its function is to determine whether thecircumstances of the parties since the last order, as they relate to the child, have changed so as to warrant a different disposition in thebest interests of the child. [49] I agree with Justice Mackinnon.

This does not mean, however, that evidence prior to the order under review is not admissibleto establish what the “circumstances of the parties” were prior to the order. As the Society says, the facts set out in an agreed statementof fact are the subject of negotiation and often do not provide a fulsome account of all the relevant facts. [50] The Society does not seek to introduce evidence in order to “retry” the order of November 4, 2014, which found that C. wasin need of protection because of M.’s physical assaults on her.

The evidence that the Society wishes to introduce for the period prior toNovember 4, 2014 is relevant to the issues before the court as to care and custody of and access to C. [51] I see no basis to exclude evidence of events or behaviour prior to November 4, 2014. 4.3 Did the Rules Committee exceed its authority in allowing hearsay? [52] M.’s lawyer argues that it was beyond the authority granted to the Family Law Rules Committee by sections 66 and 68 of theCourts of Justice Act (CJA), to make Rule 16(5). Counsel argues that this rule allows hearsay evidence on a

summary judgment motion,and constitutes an impermissible attempt to change substantive law. [53] This argument was also made before Justice Zisman in Jewish Child and Family Service v. S.K., 2015 ONCJ 2353. Like her,I do not find the argument persuasive. [54] It is Rule 14(19) that permits hearsay evidence to be introduced on motions, including

summary judgment motions, providedthat the source of the information is identified by name and the affiant states she believes that the information is true. Rule 16((5) allowsthe court hearing a

summary judgment motion to draw an adverse inference against the party who submits hearsay evidence. [55] The rule authorizing admission of hearsay evidence on

summary judgment motions is not a recent enactment. It was in theFamily Law Rules when first drafted in 1999, and existed in the Rules of Civil Procedure for years preceding the enactment of theFamily Law Rules. [56] Section 66(2) of the CJA authorizes the Committee (both Civil and Family Law) to make rules regarding practice andprocedure in the courts, even if those rules alter substantive law, as long as the rules are made in relation to the enumerated heads ofbusiness. Those heads include “motions and applications”.

[ 57 ] I consider the Rule permitting hearsay evidence to be one which regulates practice and procedure in the court and not a change to substantive law as to when hearsay evidence may be admitted. 4.4 Hearsay evidence [ 58 ] M.’s lawyer objects to 185 instances of what he says are hearsay evidence.

Those objections fall into five categories: • Statements by C. to others alleging abuse by M.; • Statements by C. to others expressing feelings about her mother or contact with her mother; • Statements from Society workers summarizing what they were told by other witnesses in this case, witnesses who have filed affidavits or reports; • Statements by Society workers set out in records routinely kept by them as they worked on this case; • Statements from Society workers about what they were told by various support /treatment persons for M., who were identified by M. [ 59 ] Not every out-of-court statement is hearsay.

Hearsay evidence is: • an out of court statement, • offered to prove the truth of the matters asserted in the statement [4] . [ 60 ] As Professor Rollie Thompson states, “It is the second requirement, the purpose for which the out-of-court statement is offered, that distinguishes ‘hearsay’ from ‘non-hearsay’. [5] One common non-hearsay use of an out-of-court statement is to explain subsequent behaviour. [ 61 ] When such a statement is offered at a trial to prove the truth of the matters asserted, the absence of the opportunity for contemporaneous cross-examination is usually a bar to its admission. [ 62 ] Although hearsay evidence is presumptively inadmissible at a trial, both the Family Law Rules and the Rules of Civil Procedure provide that a court has the discretion to admit hearsay on a

summary judgment motion. If admitted, the court has the discretion to draw a negative inference against the party introducing that evidence. [6] [ 63 ] There has been debate in the caselaw concerning

summary judgment motions in child protection cases as to whether a court should exercise its discretion to allow the admission of hearsay because of the serious consequences of these proceedings, and, if hearsay is admitted, whether it should be allowed on the central issues in the case. [ 64 ] In Children’s Aid Society of Toronto v. O.G. and T.A.L., 2015 ONCJ 125 at para. 52 , Justice Penny Jones observed: On a

summary judgment motion, a judge must evaluate the quality of the evidence. The established jurisprudence continues to be relevant in this regard. In order to have confidence that she can fairly resolve the dispute, it will still be important for the judge to analyze the issues in the case and identify what are the disputed facts and whether those facts are material to resolution of the matter. 52 Clearly, not all facts need be proved to the same standard. Uncontested facts or non-material facts might be established through hearsay evidence.

However, given the unique character of child protection proceedings, the quality of the evidence proffered to prove a material fact (whether contested or not) must be carefully scrutinized, and a court should generally demand evidence that is solid, credible and, in most cases, from first-hand knowledge. The party seeking the

summary disposition must meet the onus of establishing that there are no genuine issues requiring a trial. [ 65 ] Justice Jones’ view on the issue has been cited with approval in other courts. [7] [ 66 ] In cases involving allegations of abuse against young children, hearsay evidence is often the best evidence available, and is admitted to prove the allegations provided that it is found to be necessary and reliable. [8] [ 67 ] The Ontario Court of Appeal in a recent case, D.D. v.

Children’s Aid Society of Toronto , 2015 ONCA 903 [9] , held that there is a wide discretion for the admission of evidence contained in therapists’ reports with respect to children’s views and children’s allegations of abuse. It should be noted that in that case the appellant mother was not contesting an order of Crown wardship; the only issue was access. The mother was asking that the order be silent as to access, to keep open her opportunity to apply for it at a later time.

The 10-year old child who was the subject of proceeding had advised therapists for almost 2 years that he did not want to see his mother. [ 68 ] I turn now to the categories of evidence which M.’s lawyer submits should not be admitted because they are hearsay. 4.4.1 Statements from C. alleging abuse by M. [ 69 ] C. has made many statements alleging abuse by M.

These statements are offered by the Society for the truth of their contents. [ 70 ] The evidence is relevant not only to the question as to whether there is a genuine issue requiring a trial with respect to the child’s placement, but as to the basis which C. may have for not wishing contact with her mother. M.’s position is that C. has been

coached by G. and MN. to make these statements, and that the statements are untrue. [ 71 ] The statements consist of the following: • C. testified at M.’s criminal trial that she had been hit by her on multiple occasions.

That evidence was consistent with, although more fulsome than, statements the child made in a joint interview with police and the Society on the day of M.’s arrest. • After C. went to B.C. to live with her grandparents, the child on more than one occasion told them that her mother had hurt her or hit her. • On some occasions when C. misbehaved, she asked MN., “aren’t you going to hit me?’ or, “why don’t you hit me ?” • When C.’s treatment providers in B.C. and Society workers recommended to M. that she write a letter of apology to C.; the letter which M. wrote contained no apology; the child was vociferous in stating to her therapist and her grandparents as well as to M. herself that she wasn’t lying – that her mother had hit her. • During the course of C.’s therapy with Leisa Dauncey, which began in January 2014, the child has often spontaneously referred to her mother hitting her . [ 72 ] I note two factors which are significant for this analysis. • M. already agreed (in an agreed statement of facts in November 2014) that she physically harmed C., referring to the facts as found in the criminal trial. • M. does not say that C. should give evidence again on this issue.

She says that C.’s evidence is “contaminated” by the fact that the child has repeated her allegations to a number of people. In effect, M. is saying that the court should have no evidence on this issue, other than her bald admission that she physically harmed the child. [ 73 ] Hearsay evidence may be admitted to prove the truth of the assertion it contains if that evidence is necessary and reliable. I have no difficulty finding that hearsay evidence on this issue is necessary, given the parties’ agreement that the child should not be required to give evidence.

I also find that it is necessary to have evidence beyond M.’s bald admission that she physically harmed C. It is relevant for me to have the child’s views of how often she was abused, the context of this abuse, and her feelings about the abuse. [ 74 ] Taken as a whole, I also find the evidence to be reliable, for the following reasons. • C.’s statements at the criminal trial and to her grandparents and to Ms. Dauncey are generally internally consistent. • C. was cross-examined at the criminal trial by M.’s lawyer.

The presiding judge found the child to be a reliable witness. • C. has made multiple disclosures over time to Miss Dauncey. Ms. Dauncey is a professional who has a duty to record. She has no reason to fabricate or misreport what the child says to her. • Although M. now says that her father is prejudiced against her and suggests that he and MN. have coached the child to make statements about past abuse by her [10] because they wish to “steal” the child from her, there is no independent evidence supporting these allegations.

I note that M. herself was vigorously in support of C.’s placement with them, and that the Society workers supervising the Skype and telephone visits have repeatedly noted that G. or MN. urged C. to speak to her mother longer than the child wishes. [ 75 ] I am satisfied that there are sufficient indices of threshold reliability that these statements should be admitted. 4.4.2 Statements from C. expressing feelings about M. or contact with M. [ 76 ] C. has made many statements to third parties about her feelings about M., her contact with M., and the prospect that she might live with her again.

The Society offers these statements as evidence of the child’s state of mind. The statements are relevant to an issue I have to decide. [ 77 ] M. opposes admission, on the basis that the statements are hearsay. [ 78 ] The statements consist of the following: • While Skype and phone contact between C. and M. was ongoing, the child said with increasing frequency that she wished to end conversations with M. early, or that she did not feel like talking with M. As time went on, C. said that the idea or prospect of talking to M. made her nervous or upset, and later that she did not want contact with M.

These statements were made to the grandparents, to Ms. Dauncey, and to or in the hearing of supervising Society workers. Some statements were made to M. or within her hearing. • When the electronic visits were temporarily suspended in December 2014, C. told the Ministry worker, Ms. Hladik that it was “fine” with her. • C. has made many statements to her grandparents, Ms. Dauncey, and Dr. Locke that she does not want to return to live with her mother, but wants to stay with her grandparents in B.C. The recipients say that these statements were unsolicited by them.

[ 79 ] Statements made about a person’s physical, mental or emotional state are exceptions to the hearsay rule. This exception includes statements about a child’s wishes or preferences. [ 80 ] The requirements for such a statement to be admissible are as follows [11] : 1. The statement must assert a condition or state; 2. The statement must describe a contemporaneous physical, mental or emotional state of the declarant; 3. The statement may not describe the cause of the state; 4.

The statement must not be made under circumstances of suspicion . [ 81 ] The statements offered meet the first two requirements. [ 82 ] None of C.’s statements except one explicitly address the cause of her feelings about her mother. In the one exception, the child told Ms. Dauncey that she does not want contact with M. because of M.’s abuse. That statement will not be admitted. [ 83 ] M.’s lawyer might suggest that C.’s statements were made under “circumstances of suspicion”. I do not agree. This is not a case where the grandparents report these statements, but no one else hears them.

C. has made and continues to make statements of this type to treatment providers, spontaneously and in circumstances in which neither G. nor MN. is present. [ 84 ] With the exception noted above, these statements are admitted. 4.4.3 Statements from workers summarizing what they were told by other witnesses in this case who have filed affidavits [ 85 ] There are many statements of this type.

An example is a paragraph from the affidavit of Family Service Worker, John Telfer, in which he relates a telephone conversation with MN. in which she describes C.’s nightmares. (MN. in her affidavit provides the same information.) In the next paragraph Mr. Telfer states that he telephoned a MCFD worker in B.C., suggesting that this issue be explored further with the grandparents. [ 86 ] M. objects to these statements on the basis that they are hearsay.

The Society says that the statements are offered to explain further action taken by its workers as a result of the statement. [ 87 ] It is clear from context that Mr. Telfer’s statement about his telephone conversation with MN. is offered not as evidence that C. has nightmares, but to explain his subsequent actions. [ 88 ] Statements of this type are not hearsay.

They shall be admitted. 4.4.4 Statements from Society workers set out in contact logs [ 89 ] There are a number of statements from Society workers who were occasionally involved in the case contained in contact logs which are attached as exhibits to affidavits filed by a family service worker or a family support worker. Society workers have a duty to maintain these electronic logs, to record significant events in a case in a timely fashion.

The logs in this case deal with abusive and harassing comments that M. has made to them, or with remarks M. was heard to address to C. during the brief period of time when visits were in Toronto. [ 90 ] M. does not deny making these statements. She says, however, that the authors of these logs—8 in all—should be required to file affidavits and be subject to cross-examination. [ 91 ] The Society submits that these records are admissible as business records under s. 35 of the Ontario Evidence Act . I agree.

These are records made in the ordinary course of business within a reasonable time after the event recorded. [ 92 ] This is not a case in which the Society seeks to introduce statements from a third party (not a party to the litigation) for the truth of its contents using a business record; that is impermissible [12] . The records offered here involve statements made by M. to or overheard by the author of the electronic log. [ 93 ] I note that if M. wished to question the authors of any log entry, she was at liberty to bring a motion for questioning under Rule 20 [13] .

She has had these materials since October, 2015. She has not done so. [ 94 ] These statements are admitted. 4.4.5 Statements from Society workers about what they were told by M.’s support/treatment providers [ 95 ] There are many statements in the affidavits of Society workers in which the worker states that he or she: • has talked to a person put forth by M. as a support or treatment provider for her, and

• has received information that is inconsistent with that provided by M. to the Society, or • has received from that the support person or treatment provider negative observations about M.’s insight, judgment, or behaviour . [ 96 ] The Society argues that these statements are admissible because they are “information obtained by a worker”.

I do not understand this submission. [ 97 ] The evidence is offered in support of the Society’s argument that M. is untrustworthy and not credible, and that she has a pattern of unstable, abusive behaviour in dealing with others, even those who ostensibly are supports. [ 98 ] M. objects to the admission of this hearsay evidence where it contains a comment unfavorable to her. [ 99 ] The issue of M.’s ability to work with others, her insight, and her judgment are important.

These statements do not deal with “uncontested or non-material facts” which may fairly be established through hearsay evidence. [ 100 ] Accordingly, I strike the paragraphs in the evidence set out in

Schedule “A” to this decision. I also strike the paragraphs identified in

Schedule “A” from M.’s affidavits, in which she attaches as exhibits letters from the same treatment providers in reply to the Society evidence which I have struck. 4.5 Opinion evidence [ 101 ] M.’s lawyer objects to the admissions of various types of opinion evidence. • Counsel objects to evidence from social workers from the Society and from MCDF in B.C. expressing “conclusions” or “impressions” based on their observations as “unqualified opinion evidence”. • Counsel has the same objection to conclusions expressed by G. and MN. as to M.’s behaviour during Skype contact with C., or C.’s behaviour after this contact. • Counsel objects to the admission of the affidavit from Ms.

Dauncey and the reports from C.’s pediatrician, Dr. Waida; Dr. Locke, the Ministry psychiatrist working with Ms. Dauncey in treating C.; and Dr. Munshi, a psychiatrist who assessed M., on the basis that this is ”unqualified “ or “not properly qualified” opinion evidence. • Counsel objects to the admission of the S. 54 report of Dr. Posthuma on the basis that Dr. Posthuma has not been cross-examined. [ 102 ] I deal with each of these objections in sequence. 4.5.1. Social workers’ opinions [ 103 ] Some examples of the statements objected to are set out below: • Mr.

Telfer’s statement that the information he was given by the grandparents about C.’s behaviour when she first came to live with them (e.g., C. “flinching” when corrected by them on a minor issue) “raised concerns “for him about “possible trauma”. • Ms. Hoosen’s

summary of her evidence in which she states that M. “has not taken any responsibility for her actions since C.’s apprehension, nor has she shown any remorse.” • Mr. Telfer’s

summary of his evidence, in which he states that during his work with the family, M. “demonstrated little understanding of C.’s developmental needs”. [ 104 ] In R. v. Graat [14] Justice Brian Dickson considered the admissibility of lay opinion on the issue of whether a driver was intoxicated. Justice Dickson observed: Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion.

The line between "fact" and "opinion" is not clear. [ 105 ] Justice Dickson went on to allow evidence from a civilian and police officer on the issue, saying that the “witnesses are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly”.

He explained that the evidence should be admitted because the witnesses had the opportunity for personal observation, and therefore could give the court “real help”. [ 106 ] Under the modern view as set out in Graat , non-experts are permitted to give their opinion on an issue if a witness: • has personal knowledge of the observed facts ; • is in a better position than the trier of fact to draw the inference; • has the necessary experiential capacity to draw the inference; and

• expresses an opinion that is a “compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly”. [ 107 ] Courts following Graat have allowed opinion evidence from social workers not qualified as experts to be admitted in protection cases and criminal cases involving childhood sexual abuse [15] . Courts have, however, followed the caution in R. v.

Mohan [16] that “the closer a witness comes to expressing an opinion on the ultimate issues, the closer scrutiny should be of the admissibility the evidence”. [ 108 ] I do not exclude any of the evidence objected to in which workers express an opinion. This evidence contains inferences which the worker has drawn from the series of facts set out earlier in the affidavit, inferences which he/she is able to make given his/her experience and education.

The opinions offered do not address the ultimate issues in the case—whether it is in C.’ s best interests to be in M.’s care or to have contact with M. at present. [ 109 ] As for the statements by MN. and G. to which counsel takes objection, they represent modest inferences from C.’s observed behaviour. For example, MN. states that C. often seemed relieved when the calls with M. were over, and rushed to go out and play. I do not exclude these statements. 4.5.2 Opinions of clinicians treating C. [ 110 ] Since C. arrived in B.C., she has been under the care of Dr. Waida, a pediatrician.

Shortly after arriving, she began therapy with Ms. Dauncey and Dr. Locke. Dr. Locke is a child psychiatrist; his resume indicates that he is also a clinical professor at the University of British Columbia Faculty of Medicine, and was the Director of the Child Psychiatry Inpatient Unit at British Columbia Children’s Hospital from 1995-2006. Ms. Dauncey is a Child and Youth Mental Health Clinician; she has a Master’s Degree in Counselling Psychology from the University of Victoria. Ms. Dauncey meets with C. obi-weekly for hour-long sessions.

She employs cognitive-behavioural therapy to help the child develop and practice techniques to control anxiety, and to assist her in emotional regulation. She consults regularly with Dr. Locke. Dr. Locke has met with C. three times. [ 111 ] Dr. Locke, Ms. Dauncey, and Dr. Waida have been involved in treating C. for anxiety and emotional distress, manifested in nightmares and night fears.

In the fall of 2014, both doctors recommended a temporary suspension of C.’s contact with M., to monitor whether the child’s emotional health improved. [ 112 ] Both doctors later recommended a continued suspension of contact, until she makes sufficient progress in her treatment to request a resumption of contact with M. Ms. Dauncey’s evidence consists primarily of reports of C.’s progress during their therapy, including the child’s statements about M. Ms.

Dauncey concludes her affidavit stating that in her opinion it would be detrimental to C.’s emotional health to ignore her consistent wish not to have contact with M. [ 113 ] The Society served a Notice of Intention to Rely on Practitioner’s Reports pursuant to s. 52 of the Evidence Act , seeking to have the reports of Dr. Waida and Dr. Locke admitted. M.’s objection to the admission of the doctors’ reports and Ms.

Dauncey’s affidavit is that they have not been properly qualified to express opinion evidence, which would entail compliance with R. 20.1 of the Family Law Rules and perhaps participation in a voir dire. She also asserts that as a paediatrician, Dr. Waida has no expertise that would allow her to offer an opinion on C.’s emotional health. [ 114 ] I find that the opinion evidence from these clinicians is admissible. [ 115 ] In Jewish Child and Family Services v. S.K. and J.K ., supra, Justice Zisman discussed the case of Westerhof v.

Gee Estate [17] , in which the Ontario Court of Appeal found that professional witnesses who form opinions based on personal observations or examinations related to the subject matter of the litigation—who are not retained solely to provide an opinion in the litigation—are not required to comply with the requirements of R. 53.03 of the Rules of Civil Procedure. The provisions of R. 53.03 are virtually identical to the provisions of R. 20.1 of the FLR.

I adopt Justice Zisman’s views on this issue. [ 116 ] The fact that a witness does not have to comply with R. 20.1 does not mean that the court should not exercise its gatekeeper function with respect to opinion evidence. I do not find that treatment of a child’s emotional health is outside the purview of a pediatrician. I find that all three clinicians have sufficient expertise and experience in treating C. to offer opinions that are of assistance to the court.

They have formed their opinions not only from information provided by the grandparents, but from observations and information received from C. herself and from other professionals dealing with the child. I admit their evidence. 4.5.3 Dr. Posthuma’s report [ 117 ] M.’s lawyer objects to the admission of this report because the author has not been cross-examined and because his reliance on hearsay in the report. These are not the basis for an objection to admission. S. 54(6) of the Act provides that a report ordered under that

section “is evidence and is part of the record of the proceeding”. [ 118 ] I note also that it was open to M. to request an order allowing questioning of Dr. Posthuma and any other clinician who has provided evidence, and she did not do so. 4.5.4 Reports from psychiatrist who assessed M.

[ 119 ] The Society served a Notice of Intention to Rely on Practitioner’s Reports pursuant to s. 52 of the Evidence Act , seeking to admit the report of Dr. Alpha Munshi, a psychiatrist at CAMH, dated September 2, 2014, with respect to M.’s mental health. M. objects to its admission, on the basis that his evidence was “not properly qualified”—the same basis for her objection to admission of the reports of Dr. Locke and Dr. Waida. [ 120 ] This report was obtained by M. at the Society’s request not for use in this litigation, but with a view to assist her in finding appropriate treatment. M. selected Dr.

Munshi to do the assessment. Dr. Munshi made a provisional diagnosis of dysthymia (chronic depression) and borderline personality disorder traits. He notes that his diagnosis mirrors one done by a psychiatrist consulted by M. three years prior. [ 121 ] Dr. Munshi is not an expert retained for the purpose of this litigation. I admit Dr. Munshi’s report on the same basis that I found allowed admission of the reports of Drs.

Lock and Waida. 4.6 Other evidentiary objections [ 122 ] I agree with M.’s lawyer that paragraph 7 of the affidavit of Cheryl Hoosen sworn March 3, 2016 should be struck, in that it purports to convey information received by her from an anonymous caller. R. 14(19) is clear that hearsay evidence may be received on a motion only if the source of the information is identified by name and the deponent states that she believes the information is true. 5. The facts [ 123 ] Set out below are the facts which, in addition to those set out above in

section 1 of this decision, reviewing background facts, are either agreed upon, undisputed, or disputed only by a bald denial. 1. Prior to C.’s apprehension on August 6, 2013, the Society conducted a number of investigations into reports alleging abuse or neglect of C. Those investigations included: • An incident in 2009 in which M. called police because of violence inflicted on her by Mr.

A.; • An incident in 2010 in which Toronto Social Services contacted the Society because M. had screamed, used profanity, and threatened to burn down a Toronto Social Services building in a dispute about her cheque; the TSS worker expressed concern because M. had a 1 year-old daughter. M. admitted the threat, explaining that she was under stress. • An incident in 2010 in which C. suffered second degree burns to her arm and chest. The Society found that the child had been accidentally injured while in M.’s care, and verified protection concerns due to inadequate supervision.

No further action was taken. • An incident in 2012 in which a parent at a daycare centre reported that she observed M. slapping C. in the face twice. M. denied slapping the child, but maintained that it was her right to spank her. She refused to meet with the worker. Daycare staff advised that they had no concerns about M.’s care of the child. The file was closed. 2. Other than as set out above, there is a paucity of evidence as to how C. fared in her mother’s care before the apprehension.

C.’s kindergarten report card indicated that she was “progressing with support” in areas of personal and social development. 3. M. admitted in the agreed statement of facts that she physically harmed C. while the child was in her care. She agreed to no specific facts, except to reference her criminal convictions for assaulting the child. Those convictions were based on an assault in a public place in which it was found that M. slapped the child in the face, and an assault at home in which it was found that M. hit the child. [18] 4.

When C. first came into care, workers found that her language was undeveloped for a 5 year old, and that she sometimes “appeared to live in a fantasy world”. 5. M. was regular in attending her visits with C. in Toronto. M. was sometimes appropriate with the child, and the child was happy to see her. C. told M. more than once that she missed her. On one occasion, after M. had whispered in C.’s ear, the child approached the supervising worker saying that she wanted to go “home with mum”. 6.

At other times, M. was inappropriate. • M. told the child that she had, “put mummy into trouble”, referring to the assault charges. • M. told the child that her placement in a foster home meant that she was “in jail”. • At times M. attempted to engage in prolonged arguments with staff in front of the child, during which she made abusive and profane remarks. 7. M. proposed and supported C.’s placement with G. and MN. in November 2013.

8. C. has lived with her grandparents since November 20, 2013. 9. There has been no face-to-face contact between C. and M. since that time. 10. MN. noted soon after C.’s arrival that she was nervous and suffered from nightmares. She thought it could be a reaction to the recent changes in the child’s life, her apprehension and residence in a foster home. 11. MN. also noted that C. was socially awkward, slow to relate to other children, and quick to anger. C. related to imaginary characters such as Dora the Explorer as if they were real. 12. M. and the grandparents agreed that C. needed therapy.

MCDF arranged for the child’s therapy to start, and it has continued on a bi- weekly basis with Ms. Dauncey, who, in consultation with Dr.Locke, works with the child on anxiety control and emotional regulation. 13. C.’s emotional condition improved soon after arriving in B.C. The nightmares subsided. She began to make friends. 14. After coming to live with her grandparents, C. had contact with M. twice, then three times weekly by phone and then Skype until December 2014. Those contacts were monitored by a Society worker. 15.

Not long after C. came to live with her grandparents, communication between the grandparents and M. deteriorated. M. was unhappy that they followed the directions of the Society with respect to the frequency and duration of the electronic visits. 16. M. told C. that her grandparents were trying to “steal” her, and that she should not listen to them. 17. M. told C. that she wanted her to come home; C. responded: “I want to stay with Grandma”, and asked MN. if she could stay. MN. reassured the child “we love you and mummy loves you, too”. 18.

Issues arose with respect to the visits and their effect on C.: • C. often did not want to talk for the entire time allotted for the visit. She would assure M. that she loved her, but say that she wanted to stop. G. or MN. would be heard encouraging the child to continue the conversation. • Later, C. would simply push the control to end the Skype transmission. • The monitoring workers observed that M. usually made little effort to engage C. about what she was doing or interested in during the contacts.

She would often just say to the child “Do you have anything to say to me?” Sometimes she would read to C. during the call. • C. began to tell MN. and to tell her therapist Ms. Dauncey about times when M. had hit her or hit their dog. • MN. also noticed that C. would flinch when she was corrected for a minor slip, or ask, “Are you going to hit me?” when she misbehaved. • In therapeutic games played with Ms. Dauncey and Dr. Lock, C. identified that contact with M. made her “afraid” or ”nervous” or “mad”. • C. told Ms. Dauncey that M. told her that police were bad, and that she should not talk to them.

That made C. angry. • Ms. Dauncey worked with C. on developing relaxation techniques she could use after the calls with M. • C. told Ms. Dauncey that she did not want to talk with M. • MN. noted that C. was having nightmares following contact with M., once or twice weekly. The nightmares grew more frequent. After a nightmare, the child would be up for up to two hours. Sometimes she was up all night. That took a toll on C. and on G. and MN. • C. told Ms. Dauncey about the nightmares. • M. began leaving abusive phone messages with G. and MN. On one occasion, when talking to C., M. verbally attacked MN.

C. was very upset. • C. became increasingly assertive. She told M. that she was acting like a “bully” towards her grandparents, and asked that she apologize. • C. then told M. that she should apologize to her for hitting her. M. did not [19] . • In June 2014 C. gave evidence at M.’s criminal trial. In a Skype visit following the trial, M. reproached C. for her evidence.

The child became quite agitated. • The Society suspended M.’s access for a brief period, reinstating it after they had reviewed what were supposed to be the ground rules for access. • Following this, however, access became more difficult. • Family Service Worker, Ms. Hoover suggested that access might be improved if M. moved to B.C. M. declined, saying that Toronto was her home. • M. talked about “when you come home” in talking with C. The child said “it depends on the judge”, and changed the topic.

• M. asked C. (against the worker’s advice) where she wanted to live, and reacted badly when C. said she wanted to stay with her grandparents. • M. insisted that C. read to her a card which she had sent the child. C. started to cry, and left the room. • C. told Ms. Dauncey often that she felt mad when speaking to M., and that she did not want to talk to her. She repeated this to Dr. Locke. • In a therapeutic game in which C. drew the “nervous” card, C. said that even thinking about talking to her mother made her nervous. • C. told Ms. Dauncey said that she wanted to stay in B.C. with her grandparents.

She has repeated this wish many times. • After contacts with her mother, C. asked MN. to give her play dough to work with, “to get the mad out”. • M.’s threats to G. and MN. accelerated. She threatened to have someone (“an Indian”) come and kill them in their home. • By the fall of 2014, M. reported that C.’s nightmares were even more frequent and left the child exhausted. • Dr. Waida was consulted about the nightmares. She reported that C. told her that she did not want to continue the contacts, and that M. “yelled” during these visits. • Dr.

Waida was concerned that the visits appeared to cause C. stress, and that the nightmares were leading to sleep deprivation which could lead to hyperactivity and diminished judgment. • Dr. Waida suggested that the visits be suspended for a period, to see if C.’s emotional state improved. • Dr. Locke and Ms. Dauncey concurred with this suggestion. Dr. Locke stated that it was clear to him that C. did not want contact with M. unless it was initiated by her. • On December 15, 2014, the court gave the Society permission to suspend the visits, unless initiated by C. • When this order was explained to C. by Ms.

Hladik, the BC social worker, the child said “good”. • MN. told C. that she could have a visit if she wanted; the child said that she did not. She did not ask Ms. Hladik or Ms. Dauncey to arrange a visit. • C. on her own initiative wrote a letter to M. saying that she wanted to stay with her grandparents. • MN. and G. observed a marked improvement in C.’s emotional state after visits were suspended.

There have been very few nightmares, and when they occur they are often tied chronologically to C.’s receipt of a gift or letter from M. • A temporary order suspended all contact between M. and C. on April 16, 2015. • MN. continues to ask C. if she wants to speak to M.; the child continues to decline. • Ms. Dauncey reports that C. says that she “mostly doesn’t have nightmares” since the suspension of visits. The child reports that the nightmares she has are tied to thoughts of her mother -- when she had to draw her mother a picture, or hears the word “mom”. • Ms.

Dauncey says that C. has been consistent for over a year in saying that she wants no contact with M. She cautions that it would be emotionally damaging to C. to ignore these feelings. • Dr. Waida and Dr. Locke agree that it would be emotionally harmful for C. to resume visits with M. • Dr.

Locke, in responding to a suggestion from M. that C.’s refusal to have contact with her showed that the child was being, “manipulative”, said that he attributed her actions to, “a strong sense of self-preservation and a reluctance to be exposed to traumatic memories”. • After the suspension of visits, M. continued to send abusive and threatening messages to G. and MN., complaining that they were keeping C. from her. G. and MN. began receiving a series of late night “hang-ups”, which they believed were from M. These hang-ups ceased after they changed their phone number. 19. Dr.

Posthuma in his assessment made the following findings: • C. meets diagnostic criteria for Post-Traumatic Stress Disorder and Nightmare Disorder. • The evening after C.’s interview with Dr. Posthuma, the child had a nightmare.

The child reported that she started thinking about “bad things” about her mother. • C.’s diagnosis and prognosis are, “mainly, if not entirely, related to a pathologically dysfunctional relationship with her mother”. • The “litmus test” of the effectiveness of access suspension in dealing with C.’s emotional disregulation is the fact that the “cessation of all contact between C. and her mother has resulted in direct improvement in controlling her PTSD and nightmares”.

• Research on recovery from PTSD symptoms and nightmare disorders indicates that even with effective treatment, these problems can be longstanding. • Despite the remarkable improvement in C.’s emotional and cognitive functioning, she is still vulnerable to setbacks and regression. “Her progress and prognosis would be likely enhanced by knowing, legally and realistically, that she is in the sole care and protection of her maternal grandparents.” • There should be no contact between C. and her mother until she has made “sufficient progress in her treatment and recovery to request a resumption of contact”. 20.

C. has had no contact with M. since December 2014. 21. Ms. Dauncey observes that C. feels “safe and protected” with her grandparents. Dr. Locke has found that they are “exceptionally caring and supportive” to the child. 22. Ms. Dauncey has found that C. has made good progress socially and emotionally. C. has also done very well in school; her report card from last year is excellent. 23. The supervising social worker from MCDF reports that C. is doing well in her grandparents’ home. 24.

M.’s probation order, which is in effect until December 4, 2017, provides that she may have access to C. only as permitted by a family court order. No provision is made to allow her to have custody of the child during the term of the order. 25. Although M. states in her affidavit that she would set out examples of positive visits at the end of the affidavit, none are set out. 26.

M. has communicated in an abusive, aggressive, and threatening manner on many occasions with individuals who disagree with her, which she acknowledges but describes only as “inappropriate”. • she has on multiple occasions spoken to or left such messages for the Society staff; • She has on multiple occasions left such messages for G. and MN.; • She has left rude and abusive messages for Dr. Waida. 27. The Society asked M. in November 2013 to obtain a psychiatric assessment. M. refused. The Society continued to request this assessment, and M. finally obtained an assessment from Dr.

Munshi in September 2014, giving a provisional diagnosis of dysthymia (chronic depression) and borderline personality disorder traits. 28. M. has participated in a variety of programs, such as parent education, counselling for victims of domestic violence and for parents who have lost children to a children’s aid society, and personal counselling. She has declined to participate in any treatment informed by her psychiatric diagnoses, as recommended by Dr. Munshi. 29. Recently C. made statements to MN. which prompted an investigation as to whether the child was sexually abused by M..

C. has been interviewed jointly by MCDF worker Ms. Hladik and an RCMP officer. It is not clear whether charges will be laid. The investigation continues. M. denies any improper touching of the child by her. 6. Analysis [ 124 ] M.’s lawyer submits that there are “genuine issues” with respect to C.’s placement and with respect to the issue of access that require a trial.

Counsel asserts that a trial is required for two reasons. • there is a real question about the credibility of the grandparents, and, in fact, about all Society witnesses; and • there are disputes about the inferences properly drawn from the facts. [ 125 ] Given that, without recourse to expanded powers under Rule 16 the court is unable to assess credibility or draw inferences, at stage one of the Hryniak analysis I find that a trial is required. [ 126 ] This leads me to stage two of the analysis.

Using the expanded powers under Rule 16 (weighing evidence, assessing credibility, and drawing reasonable inferences from the evidence), I am able to determine that there are no genuine issue requiring a trial as to custody of or access to C.

Considering all the evidence which is available, I am able to make a decision on these issues without resorting to the use of a mini-hearing, and make a final order which is in C.’s best interests, in a manner which is timely and proportional. [ 127 ] My reasons for reaching this conclusion are set out below. 6.1 Are there issues of credibility requiring a trial? [ 128 ] M.’s lawyer submits that this case “all boils down to” whether the court believes the grandparents.

Counsel asserts that the grandparents are motivated by a desire to alienate C. from M. • He argues that it is information from the grandparents that has informed and coloured the opinions of all the professionals involved

—social workers in Ontario and BC, C.’s therapist, and Drs.

Waida, Locke, and Posthuma. • He submits that the grandparents have coached C. to make statements alleging abuse by M., expressing anger at or fear of M., and saying that she does not want to live with M. or have contact with her. [ 129 ] Counsel argues that a trial is required to test the credibility of the grandparents and, in fact, all the Society witnesses, who have been influenced by the grandparents. [ 130 ] Simply saying that credibility is in issue is not sufficient to establish that a trial is required to reach a just result, if the moving party has established that there are no material facts that are disputed, except by a bald denial. • As Justice Craig Perkins observed in Catholic Children’s Aid Society of Toronto v.

A.M.Y. and P.Y., 2014 ONSC 6526 , a party opposing a motion for

summary judgment will not succeed by simply raising arguments based on “unsupported deductions and conclusions….there must be a sufficient factual underpinning in the evidence to show a realistic basis for the contentions advanced”. • It is not sufficient for a party opposing a motion for

summary judgment to say that the evidence before a court might be weakened on cross-examination. As Justice Stanley Sherr said in Children’s Aid Society of Toronto v. T.B., 2009 ONCJ 782 , “If cross- examination is desired to weaken the other party’s evidence, it should be completed in advance of the motion. • A court should not deny a

summary judgment motion based on speculation as to what evidence might emerge if a trial is ordered. [20] [ 131 ] I agree that G. and MN. are important witnesses in this case.

I do not agree that the professionals and Society workers relied only upon reports from the grandparents to reach their conclusions that it is in the child’s best interests not to have contact with M., and to stay in the care of her grandparents; they have drawn on many other sources of information. • C. has expressed her feelings about M. and contact with M. to these professionals many times when not in her grandparents’ company, and sometimes in M.’s hearing. • Society workers regularly monitored visits between M. and C. in which M. did not engage with the child, raised inappropriate and upsetting topics, and failed to pick up on the child’s cues.

These observations were reported to the other professionals working with C. • Society workers have consistent experienced that M. is unable to properly regulate her emotions and acts out in aggressive, abusive fashion when her wishes are not complied with.

These observations were reported to the other professionals working with C. [ 132 ] Having said that, I agree that G. and MN.’s evidence is of sufficient importance to find that if there were facts which significantly called their credibility into question, that a trial would be required unless the issue of credibility could be fairly resolved by use of the court’s expanded Rule 16 powers. [ 133 ] What facts does M. advance in support of her assertion that the grandparents are not credible, and have from the beginning wished to take C. from her? • She says that on the day after C. went to B.C. with G. and MN., G. told her in a telephone conversation that she did not love C., that she just wanted the child for the social assistance money she received as a single parent, and that he would do everything possible to make sure that the child was not in her care. • She says that in June 2014, G. complained to her in a phone call that the responsibly of caring for C. had “put our lives upside down”. • She says that in the fall of 2014, G. complained about the frequency of her phone calls with C. • She says that in a telephone call she made to the grandparents on January 7, 2015 (after access was suspended by the court) that G. and MN. were sarcastic and rude to her. • She says that during a telephone call she made to the grandparents on March 16, 2015, G. told her that she was “not a fit mother”, and MN. threatened to get a “protection order” against her. [ 134 ] G. and MN. do not admit any of M.’s allegations. • They point out that it was M. who came forward and asked them to care temporarily for C. • They say that they knew initially that their role was to provide temporary care.

They had “no intention” of trying to keep the child away from M., and did not accuse her of being a bad mother. • They say that conflict arose when M. blamed them for following the Society’s direction as to the phone/Skype visits, and later when she was unhappy with the court order to suspend visits. • They say they became afraid of M. after she physically threatened them, and cut off contact by changing their phone number. [ 135 ] These disputed facts are relevant to credibility.

If M. is correct in her allegations, then the court might have good reason to doubt the evidence of G. and MN., and a trial would be required. A review of the evidence as a whole, however, establishes to my satisfaction that there are serious doubts as to the credibility and reliability of M.’s evidence, and that the evidence of G. and MN. is to be preferred in this case. I do not need to hear oral evidence from G. and MN. and M. to reach this conclusion. [ 136 ] I take the following factors into consideration in coming to this conclusion.

• M. chose to request and support a placement of the children with G. and MN. She had an opportunity to discuss the plan with them in advance over the weeks it was in the making.

If G. had the animus towards M. that she claims existed, I would not expect that M. would have supported the plan so enthusiastically. • M.’s evidence that just one day after C.’s transfer G. expressed in a phone conversation a resolve not to let C. returned to her is inconsistent with reliable evidence from the supervising workers as to the efforts made by G. and MN. to support C.’s calls with M. and to facilitate C. continuing conversations even when she was reluctant to do so. • M.’s claim that G. and MN. are motivated to falsify because they want to keep C. in their care is at odds with her claim that G. resented the restriction on their lifestyle created by their responsibility for C. • When C. suffered nightmares in the initial period after she arrived in BC, MN. and G. did not attempt to attribute this to actions by M..

Instead, they said that they believed it was due to all the change the child had suffered recently—the apprehension and stay in the foster home.

This does not support M.’s allegation that G. and MN. from the outset manipulated C. in an effort to keep the child. • None of the professionals or workers who have interacted with G. and MN. since September 2014, have raised doubts about their veracity. • M. has a history of making unsubstantiated claims of dishonesty and abuse against others. o She claimed that the Society’s doctor “drugged children”. o She claimed that C.’s foster mother in Ontario was “sleeping with her daughter” and “slept naked with children”. This was not verified after investigation. o She claimed that Dr.

Locke encouraged C. to make false claims of abuse against her. o She claimed that the Society workers were lying in their evidence, and colluding with police in her criminal case, and that it was because the Society was running and profiting from ”your billion dollar industry”. [ 137 ] I turn to a related submission of M.’s lawyer, that the objectivity and reliability of the evidence of the Society’s workers is in doubt, and therefore cross-examination of them is required. In support of this allegation, counsel points to one entry in the service log of family service worker Cheryl Hoosen. • In that log, Ms.

Hoosen recorded a conversation with G. on September 25, 2015 ( 9 months after access was suspended) in which he advised that he had asked C. to send a thank-you note to M. for a gift she had sent, and that the child refused and had nightmares that night. • Ms. Hoosen’s log entry states that she told G. that if in the future there was a request from M. about C., “to please tell me that it is not in C.’s best interests”. • M. alleges that this shows bias by the Society against her—that Ms.

Hoosen was directing G. to automatically take the position that contact between C. and M. was not in the child’s best interests. • Ms. Hoosen in a further affidavit clarified the log note, saying that she had, at M.’s request, asked G. to have C. write the thank you note, but that after G.’s report of the upset caused by this request, she told him that if in the future he was requested to do things that he felt were not in C.’s best interests, that he should discuss them with Ms. Hoosen before doing them . [ 138 ] Taken in context, I do not find that the log note indicates bias by the Society staff against M.

I do not need to hear oral evidence from Ms. Hoosen. The evidence as a whole, indicates that Society staff made extraordinary efforts to arrange and facilitate appropriate long distance communication between M. and C., and to preserve the relationship, despite a barrage of profane, abusive, and sometimes racially inappropriate comments to almost every staff member with whom M. came into contact. 6.2 What reasonable inferences may be drawn from the established facts? [ 139 ] M.’s lawyer in his factum addressed what he described as disputed material facts.

The disputes he raises are in fact disputes as to what inferences are reasonably drawn from the undisputed (or only baldly disputed) facts on the record. Counsel submits as follows. 1. There is no “objective proof” that it is contact with M. that caused C.’s nightmares and night terrors in the past. It may be that C.’s grief at the separation from M. causes these nightmares. The fact that the child now occasionally has nightmares, although she has no access to M., demonstrates that the child’s relationship with her did not cause these problems. 2.

The Society has failed to assist M. in addressing its protection concerns. That in itself is a basis to deny the motion. 3. The Society has failed to put appropriate face-to-face access in place to achieve family reunification. That in itself i

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