) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) Jennifer Mealey, for the applicant society ) — v. —, 2011 ONCJ 713

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

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

(8) 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. . . . 85.—

(3) A person who contravenes subsection 45(8) (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. Sault Ste. Marie Registry No. 68/2009 DATE: 2011·XI·17 CITATION: Children’s Aid Society of Algoma v.

S.L. , 2011 ONCJ 713 ONTARIO COURT OF JUSTICE BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) Jennifer Mealey, for the applicant society ) — AND — ) ) S.L. and M.R., ) ) ) David Stone, for the respondent mother, S.L. Eric McCooeye, for the respondent father, M.R. ) ) ) HEARD: 25 August 2011 kukurin J. [ 1 ] JUSTICE J. KUKURIN:— This is a decision on a

summary judgment motion (at Tab 2 Volume 3) brought by the applicant society in this child protection case. The main theme of this decision is concerned with what is an “issue” as found in subrule 16(6) of the Family Law Rules in the expression “no genuine issue requiring a trial”. [1] [ 2 ] This case involves two children. Next month V. will be four years old and her brother, J., will be three. These children were apprehended from the care of their mother, Ms. S.L., and their father, Mr. M.R., in early March 2009.

They have been in care of the society since then with the same foster family, a period to date of over two and one-half years. The foster home is located in Bruce Mines, a community close to one hour distance by car from Sault Ste. Marie, the city where both the mother and father resided. The parents separated in January 2010. [ 3 ] This case was started by a child protection application. It is governed by the procedural and substantive provisions of the Child and Family Services Act (CFSA) .

It is also subject to the Family Law Rules (the Rules ) which are concerned with procedure in family law cases. [ 4 ] The CFSA authorizes Children’s Aid Societies to intervene into families. The justification for doing so is to promote the best interests, protection and wellbeing of children within such families. [2] This intervention may be (but is not always) by apprehension or removal of a child from his or her caregivers. [ 5 ] A society’s authority to intervene into the lives of family members is neither absolute nor arbitrary.

In addition to the restrictions and constraints placed on societies by the governing statute, there is also judicial oversight. This oversight requires the society to satisfy the court, with admissible evidence, that the requirements of the law are properly met.

[ 6 ] The typical child protection case is composed of three elements. [ 7 ] The first is a judicial “finding” that a child is in need of protection. There are statutorily specified circumstances or grounds upon which such a finding can be made. These are listed in subsection 37(2) CFSA . This is an exhaustive list.

If the society, upon which the onus invariably falls, is unable to satisfy the court, on at least one of these grounds, that the child is in need of protection, the child protection application must be dismissed, and the child returned to the family whence he or she was removed. [ 8 ] The second element is often referred to as the “disposition”. The case reaches the stage of disposition only if a finding in need of protection is judicially made. Disposition can roughly be equated to “what happens to the child”.

If the reasons for the protection finding have disappeared, it is possible to simply return a child to its caregivers. More often than not, however, a “protection” order is made.

There are various protection orders possible ranging from the least intrusive – the supervision order – to the most intrusive – Crown wardship. [3] These protection orders all continue the involvement of the society with the child. [ 9 ] Since 2006, another “disposition” is now available to a child protection court, namely, making an order granting “custody” of the child to one or more persons, and thus terminating the society’s formal involvement with the family. [4] [ 10 ] The third element in a child protection case relates to access to, or by, the child. This element is not always present in every case.

It becomes a matter that needs to be addressed judicially where a child is not returned to the person who had charge of the child immediately prior to the society’s intervention. [5] It must also be dealt with judicially when the disposition is one of Crown wardship. [6] Since any person, including the child, and the society, may apply for an order for access, [7] the court is bound to rule on any such applications as well if they are made. [ 11 ] In this case, the society relies on clauses 37(2)(b)(

i) and 37(2)(b)(ii) [8] for a finding that both V. and J. are children in need of protection. The mother, Ms. S.L., and the father, Mr. M.R., both oppose such a finding. [ 12 ] The society, if it is successful in obtaining a judicial finding that these are children in need of protection, is seeking an order for Crown wardship for each of them. This is the most profound and intrusive order that the court can make in this case. Its effect is to remove these children from their parents permanently.

Both parents oppose such an order. [ 13 ] The society has a claim for an order of no access to these children. [9] Its plan is for these children to be adopted by another family. This would, of course, be contingent on obtaining an order of Crown wardship. It is unclear what access order the society is seeking in the event no order for Crown wardship is made. The mother does have a claim in her answer for daily unsupervised access if the children are not placed with her. The father’s answer contains no claim for paternal access. However, his submissions on this

summary judgment motion clearly indicate he is seeking an order for access, even if it is in the alternative to his claim to have the children placed in his care. Perhaps he thinks he can simply rely on the provisions of section 59(1) CFSA . In any event, both parties clearly oppose an order of no parental access, regardless of the disposition made. [ 14 ] The normal progression of a child protection application is governed by the procedure set out in both the CFSA statute as well as in the Family Law Rules . This route starts [10] with the filing of the society’s application.

This is followed by a statutorily mandated temporary care and custody hearing within five days if the children are removed from their family. This is to determine where the children will be until the court makes a final decision. The temporary care and custody hearing may, and almost invariably is, adjourned one or more times so that the respondent parents can retain counsel and put their evidence before the court. It eventually is held and a temporary order made.

The case is then typically directed through several less formal judicial conferences: the case conference to identify issues, the settlement conference to attempt to settle the issues, and the trial management conference to plan how the hearing of the case will proceed in practice. [ 15 ] The classic form of this final “hearing” is what is known as the trial. It is governed by long established procedures and includes the oral examination [11] and cross-examination of witnesses sworn to tell the truth. Documents such as written reports, records and notes can also form part of the evidence at the trial.

In short, the trial is the opportunity for all sides to put forward the merits of their respective cases. [ 16 ] The right to have a trial is an accepted tenet of our justice system. However, nowhere in its provisions dealing with children protection (Part III) does the CFSA refer to a “trial”. What it does refer to is a “hearing”. [12] Hearings do not necessarily have to take the form of the classic trial with oral examination and cross-examination. [ 17 ] In this case, the society has brought a motion for

summary judgment. It wishes the court to make final judicial determinations on all three of the elements in this case – finding, disposition and access – and to do so summarily, that is, without a trial. In effect, it wishes the “hearing” that is statutorily required to be held in a child protection case to be the hearing of the

summary judgment motion. [ 18 ] The

summary judgment motion in child protection cases is a relatively recent innovation. There are but a handful of reported cases prior to 2000. Since then, there is a virtual explosion of reported case law relating to child protection

summary judgment motions. [13] [ 19 ] Since November 1, 1999, the

summary judgment has enjoyed the added legitimacy, in family cases, provided by the Family Law Rules . [14] In fact, an entire rule [15] with 13 subrules, is devoted exclusively to the

summary judgment motion. [ 20 ] The essence of the

summary judgment motions is found in subrule 16(6) [16] . This subrule requires the court to bypass the trial process if there is “no genuine issue” requiring the trial of a claim or defence. A great deal of the case law relating to

summary judgments concerns itself with the meaning of the word “genuine”; very little with what is meant by an “issue”. [17] Clearly, if the criterion for so important a decision is bypassing the trial (especially a trial in a case that involves the permanent separation of a child from his or her parents) is whether or not there exists a genuine issue that requires a trial, it is absolutely critical that there be a clear understanding of what constitutes an “issue”.

[ 21 ] Unfortunately, the Family Law Rules do not contain any definition of what is an “issue”. Nor does the Child and Family Services Act . [ 22 ] The word “issues” is very common place in legal parlance. I suspect that that most persons, not only those with legal training, who might speak this word or hear this word spoken believe they know what the word means. And that is generally true. It is a word that is not peculiar to the language of the law, nor is its meaning restricted to the legal context. The media often report on political issue or religious issues, for example.

It is not unusual to encounter everyday usage of the word ‘issue’ as in: - one who has some serious issues ; - one who takes issue with something; - one who raises an issue ; - one who resolves or deals with an issue , or - one who joins issue with another. [ 23 ] “Issue” is one of those nouns that may contain several overtones of meaning with the specific meaning apparent from the way it is used on any particular occasion. However, there are limits to the range of meanings of the word.

In the context of its usage in subrule 16(6), the word “issue” has nuances of controversy, contention, conflict, argument, disagreement and dispute about something.

It is what that something is, that makes it difficult to pin down whether that something forms the subject matter of the “issue” that is referred to in subrule 16(6). [ 24 ] From a dictionary perspective [18] , one definition of the word “issue” is: “… a question , point, etcetera under dispute or discussion …” This is not dissimilar from the several synonyms found in the Thesaurus, [19] among which are: “… case or point in question, debating point, controversial point, bone of contention …” [ 25 ] It seems, at least superficially, fairly clear that the task of the party bringing this

summary judgment motion is to successfully persuade the court that there are no controversial or contentious points in question between the parties that arise in the case, or, if there are, that they are not genuine. “Genuine”, as used in subrule 16(6), has been interpreted by a number of jurists. Essentially, it is an adjective that conveys the description of real and substantial, and of some importance (perhaps even approaching critical importance); not tenuous nor spurious.

Its usage to describe an issue in a case suggests that the issue must be integral rather than peripheral to what the case is all about. [ 26 ] Where does one begin to look for issues, especially genuine ones? One logical place is the case conference if one was held earlier in the case. [20] After all, the primary purpose of the case conference is the identification of issues that are in dispute and those that are not in dispute.

Included in this primary purpose is the exploration of ways to resolve the issue that are in dispute. [21] Regrettably, although scheduled, a case conference was deferred and ultimately, it seems, forgotten in this case. [ 27 ] There is also the settlement conference, one of the purposes of which is “settling or narrowing the issues in dispute”. This was held on February 9, 2010 and happily, a judicial memorandum of this conference (excluding judicial recommendations and opinions) is contained in the court file.

This is helpful, but only minimally, mainly because the conference was held over one and a half years ago. Events have superseded the circumstances existing at the time of that conference. The landscape of this case has changed substantially in terms of not only the circumstances and positions of the parties, but also in terms of the evidence then and now. [22] [ 28 ] The grounds for a finding identified by the society in its application represents an obvious place to look for “issues”.

Because a finding is so foundational to the case, the odds are that a dispute in this area will not only be material, but also critical to how the case should proceed. In this case, the grounds for a finding upon which the society relies are risk of physical harm. The parents have consistently denied that such grounds exist (or ever have existed) and have done so for over two and a half years from the very start of this case. A finding under section 37(2) is not a factual event. It is not an opinion of the parties, or of any of their witnesses, expert or otherwise.

In the context of child protection, it is a judicial inference that must be based on the evidence presented in the case. Can a dispute or disagreement between the parties in such cases as whether or a child is or is not in need of protection constitute a genuine issue? In my view, it absolutely can. In fact, this is the central issue about which the entire case revolves. [ 29 ] A place equally obvious to look for potential genuine issues is the prayer for relief of the parties. In layman’s terms, what is it that the parties want from the court. In everyday talk, what are the “claims”.

Where one party wants the court to order that a child be taken away permanently from its caregivers, and the caregivers want the court to place (or return) the child to them, there is clearly a disagreement between them. Is this an issue? It certainly seems so. Is it a genuine issue? I would certainly characterize it as such in this case.

The parties are clearly polarized as to the claims the other of them is making and the underlying legal basis for deciding between the diametrically opposed claims, namely which alternative is in the best interests of the child. [ 30 ] This brings us to the criteria for making dispositional orders in child protection cases – the best interests of the child. The CFSA establishes this to be yardstick that the court must use in making such decisions.

It then describes over a dozen “circumstances” that must be judicially considered, provided that such circumstances are present in the case that is presented to the court. [23] This is perhaps the most fertile ground for the cultivation of issues. Since “best interests” is the basis on which child protection orders are invariably made, the “issues” or points of dispute arising from a consideration of any particular listed “circumstance” are extremely relevant.

The fact that every one of these circumstances can be argued by the parties, sometimes even on the basis of mutually agreeable evidence to support their very opposite views on disposition, is fertilizer spread over this field of

emergent issues. Are disagreements in this area genuine? That depends on the evidence as to the “circumstance” in question. [ 31 ] In this case, by way of an example, clause 6 of section 37(3) refers to the child’s relationship and emotional ties to a parent, sibling, relative, extended family members and members of the child’s community. With the exception, perhaps, of newborns, a child will necessarily have “relationships” and will likely have “emotional ties” if these have had any time to develop.

It will be rare in a contested child protection case that the society and the parents are not in dispute on this “issue”. They certainly are in the present case. V. was raised by her parents for sixteen months before she was apprehended. Shortly thereafter, an order was made for interim parental access of minimum 18 hours per week which the mother, at least, has exercised fairly faithfully for over two years.

The maternal family consists of two aunts and a maternal grandmother who lived in the same apartment building as did the mother and children, and who had considerable contact with both children, contact in fact that has persisted, perhaps to a lesser degree, through all of the time that the children have been in foster care. There is an abundance of factual allegations on the part of all of the parties that touch on this very important consideration.

It is obvious that the society and the parents have a profound disagreement about the nature of both the relationships and the emotional ties of these two children with all of these individuals. The most important is whether there is an attachment to their parents, and if so, is it a secure or an insecure attachment. [ 32 ] Should some judicial determination be made on this one circumstance on a

summary manner? I don’t think so. And this is only one of the dozen mandatory areas for judicial consideration set out in section 37(3). [ 33 ] Inevitably, a child protection case reduces down to the evidence. And of what does evidence consist? The purpose of evidence in a child protection case is essentially narrative in nature. The judge was not there when the things were taking place that, cumulatively, form the basis for the judicial decision sought by the parties.

What happened in the time before the children were apprehended and what has happened since then represents the major part of what should be the evidence in this case. In short, the facts. [ 34 ] Rule 16 uses the word “facts” in three very important subrules, [24] all three of which are concerned with the evidence used on

summary judgment motions. The

summary judgment motion applicant must set out in affidavit form, “specific facts” [25] showing that there is not even one genuine issue that requires a trial. There is a corresponding obligation on

summary judgment motion respondents to set out in their responding affidavit evidence “specific facts” showing that there is a genuine issue that requires a trial. My reading of these subrules persuades me that it is the recitation in the affidavits filed, of specific factual events or states of being, which forms the substrate for the determination of whether a genuine issue exists for trial. [ 35 ] Subrule 16(4.1) contains some interesting limitations on the

summary judgment respondent’s affidavit evidence. It cannot “rest on mere allegations or denials”. [ 36 ] I have absolutely no idea of what was intended by the use of the words “mere allegations” in this subrule. First of all, an allegation is an assertion, or a statement, or a declaration about something. It seems to me that all evidence that sets out specific facts is an “allegation”. The term “allegations of fact” is fairly common place in legal jargon. Accordingly, what both the society and respondents are required to make in their affidavit evidence are allegations of specific facts.

If this is not so, just what is an allegation by a respondent, and what is a “mere” allegation? [ 37 ] Secondly, it seems that the prohibition on relying on mere allegations, whatever these words may mean, is one sided. It applies only to a

summary judgment motion respondent. If the requirement to set out specific facts, which applies to all of the parties, incorporates, by implication, a prohibition on reliance on “mere allegations” then why are these words used only in the subrule that deals with responding evidence? One would expect such prohibition to apply to the evidence of all parties. [ 38 ] Thirdly, the use of the word “denials” in the context in which it is found in subrule 16(4.1) assumes that a denial does not set out a specific fact. If this is what underlies the prohibition on a

summary judgment motion respondent against resting on denials, it poses a problem. If evidence on such motions is truly intended to be of specific facts, it is completely unfair to prevent a respondent from relying on a denial if that is truly the respondent’s response to an allegation of fact. For example, if the allegation of fact is “the respondent drank alcohol last Saturday”, what other response can that respondent make than a denial if the response is that the respondent did not drink alcohol last Saturday?

In this example, the response “I did not drink alcohol last Saturday” while clearly a denial, is as much a statement of specific fact as is the allegation to which it responds. To deny a respondent the right to respond with a denial to such allegations of fact is ludicrous. [26] [ 39 ] In the present case, there are many specific facts alleged by the society in its affidavit evidence in support of this

summary judgment motion. The mother responds to these individually. Many of her responses begin with the words “ Contrary to paragraph ….” The mother’s responses to the society’s factual allegations in its child protection worker’s affidavit sworn March 4, 2009, are contained in paragraph 30 of her affidavit sworn April 29, 2009. [27] Paragraph 30 has 45 subparagraphs, each of which deals individually with a specific factual allegation in the society’s affidavit. Some of these are clearly denials. Some are statements attesting to the opposite of what was alleged.

Some are in the nature of qualifications or explanations of circumstances surrounding the factual events alleged. It is clear that the society and the mother are very much at odds about a large number of factual matters. These are not inconsequential allegations of fact. These form the basis for the finding, the Crown wardship and the no access orders sought by the society. The mother does not admit the truth of these many allegations of fact. Nor does she fail to respond to them. She contradicts, disputes, denies, qualifies and explains these allegations.

Cleary, this raises the spectre of choosing between contradictory affidavit evidence. Would anyone be prepared to make a final determination in face of the state of such evidence? Not I. There is an abundance of case law that enjoins

summary judgment motion judges from resolving issues of credibility, or drawing inferences from conflicting evidence. [28] [ 40 ] At yet a further level, there exists a dispute between the parties. This is on a level that is created by the contradictions in material facts. It is the issue of credibility. The affidavit has not yet been printed in child protection

summary judgment motions that sticks to the facts, and only the facts. More typically, such affidavits are a mixture of fact, suggestion and opinion of the affiant, often not first hand. How does a respondent respond to a statement of opinion? By another, usually contrary, opinion. When one considers the statements of fact that are disputed and compounds these with the contrary statements of opinion, there is no escaping the need to make credibility determinations. These are clearly within the realm of genuine issues.

Each party is asking the court to believe what he or she says and to disbelieve, discount or reject what the other party says to the contrary. Credibility is material. It is relevant. It is inescapable

in these circumstances. It is, in my view, a genuine issue. [ 41 ] In

summary, the applicant society and the respondent parents are in a substantial dispute on many levels that are critical to the decision that is being asked of the court – the claims, the section 37(2) finding in need of protection, the factual evidence, the opinions, and who should be believed. I cannot pretend that there are no genuine issues in this case. These points of departure are manifold and are on so many levels that it would be impossible to conclude that they are spurious in this case. [ 42 ] However, this is only part of the analysis. Even if there are genuine issues, it is whether they require a trial that is the important judicial determination to be made on a motion for

summary judgment. [ 43 ] If there is a dispute between applicant and respondent as to something that is not material, while this may be an issue between them, it is not a “genuine” issue and clearly does not need a trial. The judicial findings and decisions that must be made in the case are not going to be affected one iota depending on whether the colour of the foster mother’s car was sea green or sky blue. [ 44 ] There are disagreements, inter partes , that are much more material to the judicial determinations to be made in this case.

How does a court decide whether it can deal with these on the basis of affidavit or documentary evidence alone, or whether a trial format is required to choose between them? There is no guidance in the wording of Rule 16 itself to help with the meaning of the words “requiring a trial”. [ 45 ] There is, however, considerable judicial comment on this pivotal determination. The most often made relates to projected outcome of the case.

Among the various versions of this reason to decide summarily rather than after trial are: - no chance of success; - a foregone conclusion; - failure to succeed is plain and obvious. [29] [ 46 ] These are the kinds of judicial conclusions that are often made in cases where the

summary judgment motion respondents do not really respond to the specific factual allegations (usually multitudinous) made by the motion applicant. [30] This lack of response could be for a number of reasons, but the bottom line in these kinds of cases is that the onus on the

summary judgment motion respondent to place before the court the best response to the motion (i.e. put one’s best foot forward) is simply not met. The present case is absolutely not one of these. [ 47 ] Another category of cases where the “likely outcome” is typically applied involves little or no response to factual allegations of the motion applicant other than that there has been a change. [31] Typically, this involves respondents with horrendous lifestyles (e.g. alcohol, drugs, succession of dysfunctional relationships, chronic criminality) who claim to have had a renaissance and a metamorphosis.

Sometimes there is enough factual evidence of these changes to warrant a trial. Sometimes the evidence reflects only a heartfelt expression of a parent’s desire to resume the care of the child. The present case is not in either category. There is no reliance on any major turnaround in parental lifestyle or parenting ability. The issue is and always has been, adequacy. [ 48 ] There are other considerations, some that have been judicially endorsed, even at the appellate level, as appropriate for deciding

summary judgment motion: “Competing policy objectives are involved in considering a motion for

summary judgment. The right to a hearing must be balanced against a concern for the financial and other costs associated with prolonged litigation, the court’s limited resources, and the need to avoid delays and deal with maters expeditiously. Clear cases may be disposed of summarily if no denial of fairness results. Because of these policy considerations, the

summary judgment process must be used cautiously with great concern for the rights of the parties. Decisions granting

summary judgment in family matters emphasize the need for caution and attention to the principles of justice and the best interests of the child.

Summary judgment has been granted in family law matters that amount to “the clearest of cases”. [32] In this case, for example, the estimated duration of the motion for

summary judgment was one-half day. Twelve days were set for trial over a three month spread. Resolving this case summarily is clearly the more attractive option from the point of view of judicial resources, expenses and delay. How do such considerations rank with considerations of rights to a trial, principles of justice and best interests of the children? [ 49 ] The case law prevailing prior to 2000 limited

summary judgment to “the clearest of cases”.

Summary judgment in child protection cases was considered to be rare, and somewhat extraordinary. That view has clearly been eroded since Rule 16 came into being. The tenor of the current judicial approach is simply one of deciding cautiously. That seems rather subjective as a description of how judicial decisions should be made on these motions. [ 50 ] In the end, I must dismiss the society’s motion for

summary judgment. This is far from the clearest of cases. Even if that is no longer the measure, caution compels me to move this case to a formal trial where the evidence can be much better tested through cross-examination. I do not find that the society has discharged its onus to show that there are no genuine issues that require a trial. This applies to all three elements of this child protection case. [ 51 ] This child protection case should therefore proceed to trial as has already been scheduled. Released: 17 October 2011 _____________________________________

Justice John Kukurin, Ontario Court of Justice 1. Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months. 2. Society wardship — That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months. 3. Crown wardship — That the child be made a ward of the Crown, until the wardship is terminated under

section 65.2 or expires under subsection 71 (1), and be placed in the care of the society. 4. Consecutive orders of society wardship and supervision — That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. (

a) the relationship between the person and the child is beneficial and meaningful to the child; and (

b) the ordered access will not impair the child’s future opportunities for adoption. [7] . S. 58(1) The court may, in the child’s best interests, (

a) when making an order under this Part; or (

b) upon an application under subsection (2), (

a) the child; (

b) any other person, including, where the child is an Indian or a native person, a representative chosen by the child’s band or native community; or (

c) the society, (

b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (

i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child; (

a) a party requests it; or (

b) the court considers it appropriate. (

a) exploring the chances of settling the case; (

b) identifying the issues that are in dispute and those that are not in dispute; (

c) exploring ways to resolve the issues that are in dispute .... 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.

(1) At what point is the

summary judgment motion brought within the case?

(2) Are the parties represented by counsel or are they self represented?

(3) Is there any likelihood of getting more or different evidence at trial than is presented on the motion?

(4) How much of the evidence filed at the

summary judgment motion would not be admissible at a trial?

(5) If professional reports form part of the evidence at the

summary judgment motion, does the court need the assistance of the author, or an expert, at trial, to appreciate the report?