Windsor-Essex Children’s Aid Society v. S.M.D., 2011 ONCJ 311

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 48(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 . . . the 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) (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. Windsor Registry No. FO-09-00000196 DATE: 2011·VI·20 CITATION: Windsor-Essex Children’s Aid Society v. S.M.D. , 2011 ONCJ 311 ONTARIO COURT OF JUSTICE BETWEEN: WINDSOR-ESSEX CHILDREN’S AID SOCIETY, Applicant, — AND — S.M.D., S.G. and L.G., Respondents. Before Justice Sharman S. Bondy Heard on 1 June 2011 Supplemental Reasons for Judgment released on 20 June 2011

CIVIL PROCEDURE —

Summary judgment — Evidence — Deficient information posing as evidence — General — Nature ofevidence at motion for

summary judgment — Children’s aid society made motion for

summary judgment of Crown wardship of child(now 4½ years old) who had already been found to be in need of protection — Although served, neither mother nor maternalgrandparents appeared, effectively making motion unopposed — Nevertheless, in very brief endorsement, motion judge found thatsociety’s affidavit in support of motion was sadly wanting in terms of its admissibility and in it its failure to address certain statutoryrequirements — Rather than dismiss matter outright, motion judge offered society adjournment to produce “better” affidavit —Society’s lawyer, however, argued that material was perfectly adequate to support relief sought — Motion judge disagreed and releasedsupplemental reasons for judgment explaining defects in society’s evidence on

summary judgment motion — Subrule 14(18) of FamilyLaw Rules (which applies to all motions, even motions for

summary judgment) requires information in affidavit to be within personalknowledge of deponent — But subrule 14(19) does created narrow exception for hearsay by allowing information that deponent getsfrom another source, provided that deponent identifies that source by name and states that deponent believes this information to be true— Subrule 16(5), however, exposes such hearsay to risk that court might draw adverse inference against party seeking to rely on suchhearsay at motion for

summary judgment — Motion judge reviewed case law where, even on motions for relief other than

summaryjudgment, courts have exhibited firm attitude against violations of subrule 14(19) by striking out or disregarding inadmissible material(such conclusions and opinions from anonymous sources) and inappropriate material (such as irrelevant facts, scandalous, frivolous orvexatious material) — Motion judge then examined handful of cases where courts had explored quality and sufficiency of evidencerequired in motion for

summary judgment and concluded that, subject to discretion in subrule 16(5), judge must assume role ofgatekeeper to insure that evidence at motion for

summary judgment be of level and quality that can withstand rigour of trial — Atparagraph [52], motion judge gathered up catalogue of directions in this complex mix of law and discretion — In this case, society’saffidavit was jungle of inadmissible and multiple hearsay observations, reports, findings and statements, inadmissible opinion evidencefrom various unnamed or anonymous sources — Deponent had made no effort to establish basis for admission of these materials (suchas purporting to have them admitted as business records) — Information in this affidavit was not focused or thematically organized, thusmaking it almost impossible for judge to find straight line from this information to finding of disposition that society was expecting courtto make — Motion judge was unable to ascertain how or why this “unfortunate constellation of errors” provided any factual basis tosupport finding of Crown wardship —Motion judge could not accept society’s request to proceed on basis of this material.

CIVIL PROCEDURE —

Summary judgment — General — Application — Power to be exercised sparingly — Although case law isdivided on whether introduction of rule 16 of Family Law Rules has relegated

summary judgment from extraordinary measure toprocedural remedy, there is general consensus that, with respect to Crown wardship without access,

summary judgment must be invokedwith some caution. STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 1(1), clause 37(2)(c), clause 37(2)(d), subsection 50(1),section 51, subsection 51(7), subsection 54(6),

section 56, paragraph 57(1)¶3, subsection 57(2), subsection 57(3), subsection 57(4),section 59, subsection 59(2), subsection 59(2.1) and subsection 59(4). Criminal Code, R.S.C. 1985, c. C-46 [as amended],

section 161,

section 486.4 and subsection 486.4(4). Family Law Rules, O. Reg. 114/99 [as amended], subrule 2(2), subrule 14(17), subrule 14(18), subrule 14(19), rule 16, subrule 16(4),subrule 16(4.1), subrule 16(5) and clause 23(21)(c). Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [as amended], rule 20.02. Sex Offender Information Registration Act, S.C. 2004, c. 10. CASES CITED B.(F.) v. G.(S.) and Catholic Children’s Aid Society of Toronto, , 199 D.L.R. (4th) 554, 16 R.F.L. (5th) 237, [2001]O.J. No. 1586, [2001] O.T.C. 293, 2001 Cars​well​Ont 1413 (Ont. S.C.). Catholic Children’s Aid Society of Metropolitan Toronto v.

O. (Lisa Marie) and P. (Michael), , 59 A.C.W.S. (3d) 916,7 W.D.C.P. (2d) 49, [1996] W.D.F.L. 650, 9 O.F.L.R. 165, [1995] O.J. No. 3971, 1995 Cars​well​Ont 4393 (Ont. Prov. Div.); affirmed atCatholic Children’s Aid Society of Metropolitan Toronto v. O. (Lisa Marie) and P. (Michael), , 139 D.L.R. (4th) 534,[1996] O.J. No. 3018, 12 O.T.C. 161, 1996 Cars​well​Ont 3160 (Ont. Gen. Div.); further affirmed at Catholic Children’s Aid Society ofMetropolitan Toronto v. O. (Lisa Marie) and P. (Michael), , 102 O.A.C. 232, 149 D.L.R. (4th) 464, 30 R.F.L. (4th) 16,[1997] O.J. No. 3041, 1997 Cars​well​Ont 2742 (Ont. C.A.).

Catholic Children’s Aid Society of Toronto v. S. (Susan) et al., 2008 ONCJ 274, [2008] W.D.F.L. 3578, [2008] O.J. No. 2348, 2008Cars​well​Ont 3527 (Ont. C.J.). Children’s Aid Society of Algoma v. W. (Edward) et al., , [2001] O.J. No. 2746, 2001 Cars​well​Ont 2346 (Ont. C.J.). Children’s Aid Society of Halton Region v. A. (Kerri Lyne) and M. (John Johannes), , 216 O.A.C. 148, 32 R.F.L.(6th) 7, [2006] O.J. No. 3958, 2006 Cars​well​Ont 5997 (Ont. C.A.). Children’s Aid Society of Hamilton v. N.(M.), , 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 Cars​well​Ont2453 (Ont. S.C.).

Children’s Aid Society of Hamilton v. W. (Marilyn) and S. (Peter), , 63 O.R. (3d) 512, [2003] O.J. No. 220, [2003]O.T.C. 51, 2003 Cars​well​Ont 200 (Ont. Fam. Ct.).

Children’s Aid Society of Hamilton-Wentworth v. S.S. and S.S., , 85 A.C.W.S. (3d) 844, [1999] O.J. No. 264, 1999Cars​well​Ont 235 (Ont. Fam. Ct.). Children’s Aid Society of London and Middlesex v. B.B. and J.B., , 4 R.F.L. (5th) 183, [2000] O.J. No. 235, [2000]O.T.C. 105, 2000 Cars​well​Ont 205 (Ont. Fam. Ct.). Children’s Aid Society of London and Middlesex v. H.(R.) et al., , 93 A.C.W.S. (3d) 852, [1999] O.J. No. 5037, 1999Cars​well​Ont 4380 (Ont. Fam. Ct.). Children’s Aid Society of Nipissing v. M. (Marielle), , 98 A.C.W.S. (3d) 134, [2000] O.J. No. 2541, 2000 Cars​well​-Ont 2372 (Ont. S.C.).

Children’s Aid Society of Toronto v. L. (Lisa) et al., 2010 ONCJ 48, 83 R.F.L. (6th) 431, [2010] O.J. No. 686, 2010 Cars​well​Ont 920(Ont. C.J.). Children’s Aid Society of Toronto v. M. (Amanda) and T. (Steven), , 26 R.F.L. (5th) 265, [2002] O.J. No. 1432, 2002Cars​well​Ont 1051 (Ont. C.J.). Children’s Aid Society of Waterloo Region v. S. (Rhonda) and M. (Lewis), , 101 A.C.W.S. (3d) 1133, [2000] O.J. No.4880, 2000 Cars​well​Ont 4866 (Ont. C.J.). Evans v. Evans (2000), 99 A.C.W.S. (3d) 623, [2000] O.J. No. 3382, 2000 Cars​well​Ont 3161 (Ont. C.A.). Evans v. Evans and Finkenzeller, , [1998] O. J.

No. 5098, 83 O.T.C. 154, 1998 Cars​well​Ont 4739 (Ont. Fam. Ct.). Hameed v. Hameed, 2006 ONCJ 274, [2006] O.J. No. 3109, 2006 Cars​well​Ont 4653 (Ont. C.J.). Huron-Perth Children’s Aid Society v. H.(C.) et al., 2007 ONCJ 744, 2007 CarswellOnt 9293 (Ont. C.J.). Jewish Family and Child Services of Toronto v. R.A. and J.G., (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No. 47,2001 Cars​well​Ont 73 (Ont. S.C.). Lisanti v. LiSanti, , 24 R.F.L. (3d) 174, [1990] O.J. No. 3092, 1990 Cars​well​Ont 219 (Ont. Prov. Ct., Fam. Div.). Losee v. Geordiadis, , 36 R.F.L. (4th) 238, [1998] O.J.

No. 301, 1998 Cars​well​Ont 623 (Ont. Prov. Div.). Luckov v. Taylor, 2008 ONCJ 795, 189 A.C.W.S. (3d) 1065, [2008] O.J. No. 5911, 2008 Cars​well​Ont 9483 (Ont. C.J.). Re McGrath (Infants), [1893] 1 Ch.143, 62 L.J. Ch 208, 67 L.T. 636, 9 T.L.R. 65, 41 W.R. 97, 2 R. 137 (Eng. C.A.). Official Solicitor v. K., [1965] A.C. 201, [1963] 3 All E.R. 191, [1963] W.L.R. 408 (H.L.). Smith v. Morrison, 2009 ONCJ 462, 179 A.C.W.S. (3d) 1132, [2009] O.J. No. 4015, 2009 Cars​well​Ont 4996 (Ont. C.J.). Transamerica Occidental Life Insurance Co. v.

Toronto-Dominion Bank, (1999) 44 O.R. (3d) 97, 118 O.A.C. 149, 173 D.L.R. (4th) 468,28 E.T.R. (2d) 113, , [1999] O.J. No. 1195, 1999 Cars​well​Ont 911 (Ont. C.A.). Winnipeg Child and Family Services v. L.L. and C.L. (1994), (MB CA), 95 Man. R. (2d) 16, [1994] 6 W.W.R. 457,70 W.A.C. 16, 4 R.F.L. (4th) 10, [1994] M.J. No. 251, 1994 Cars​well​Man 132 (Man. C.A.). AUTHORS AND WORKS CITED Goudge, Stephen T.: Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen’s Printer for Ontario, 2008). Thompson, D.A. Rollie: “Are There Any Rules of Evidence in Family Law?” (2003), 21 Can. Fam. L.Q. 245.

Thompson, D.A. Rollie: “The Cheshire Cat, or Just His Smile? Evidence Law in Child Protection” (2003), 21 Can. Fam. L.Q. 319. Frank W. Philcox ........................................................................... counsel for the applicant society No appearance by or on behalf of the respondent mother, S.M.D., even though served with notice No appearance by or on behalf of the respondent maternal grandfather, S.G., even though served with notice No appearance by or on behalf of the respondent maternal grandmother, L.G., even though served with notice Malcolm S.

Kirsch counsel for the Office of the Children’s Lawyer, legal representative for the child JUSTICE S.S. BONDY:— 1: INTRODUCTION

[ 1 ] On the return of a

summary judgment motion before me, I expressed that there were a number of issues that prohibited my making a final order in this matter. [ 2 ] My endorsement at that time reads as follows: The

summary judgment motion before me does not contain a record that I can reasonably act upon. 1. [Mr. S.G. and Mrs. L.G.] have not been served with the motion, as I have previously directed; 2. The affidavit before me does not address the evidence I require to address s. 57(2) (3) and (4) , s. 56 and s. 37(3) of the Child and Family Services Act ; 3. The affidavit contains reference to third-party observations, reports, findings and opinions where the basis for admission of these materials in this fashion ( i.e. , largely hearsay) is not established or proposed; 4.

Evidence in support of an application for Crown wardship without access should be of the highest standard and quality so as to allow the court to address the determination of the child’s best interests and allow for a clear and thorough record to support the relief sought. Moreover, procedural fairness demands that the record reveal a sound basis for the relief sought; 5. Adjourn motion for better evidence and for confirmed service on the [G.s] to July 25, 2011, courtroom #3 at 10 a.m. (1 hour) [ 3 ] As the endorsement indicates, I adjourned the motion requesting that counsel prepare a “better” affidavit.

Counsel for the society raised objections over my ruling asserting that the evidence before me was sufficient without any real basis for his submissions. He suggested that, as the relief sought was unopposed, I should just make the order sought. I declined that request. [ 4 ] The issue that arises in this context is that the test of genuine issue in the current rules of court have converted

summary judgment from what was described as an extraordinary measure to a procedural remedy. But having made that statement, many cases still prescribe that the

summary judgment is to be invoked with some considerable caution. The problem that arises is that the affidavits filed by the parties sometimes typify how easy it is to confuse the issue of what a litigant believes is in the best interests of the child with a lack of attention to detail on the rules of evidence. [ 5 ] For these reasons and others, I hereby deliver these additional reasons relating to the sufficiency and quality of evidence on the

summary judgment motion. I do so not from the perspective of lecturing the parties (or their counsel) but in the hope that it will assist them in the preparation of

summary judgment motions generally and the evidence in support of these requests. 2: BACKGROUND [ 6 ] The Children’s Aid Society of Essex County has brought a motion in this child protection proceeding seeking by way of

summary judgment an order that the subject child be made a ward of the Crown with no access pursuant to paragraph 57(1)¶3, of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (hereinafter described as “the Act”). [ 7 ] The child who is the subject of these proceedings is C.F.R.D., born on […] November 2006, hereinafter described as “C.”. His mother is Ms. S.M.D. She does not appear before this court and was subject to an order removing her counsel of record on 14 July 2010 and, on consent, withdrew her answer on 20 October 2010.

On that same date, I made a finding that there was no other parent in these proceedings. The society originally sought an order of six (6)-month wardship for C. On 29 April 2009, the society amended its application to seek an order of Crown wardship without access. Its plan involves placing C. for adoption. [ 8 ] The society originally joined C.’s maternal grandparents as party respondents in this application. The record before me is not clear why this was done but, at the time that these proceedings were commenced, C. and his mother lived in a downstairs apartment at their residence.

Perhaps the evidence suggested to the society that they shared custody of C. with his mother. Mr. S.G. and Mrs. L.G. served and filed an answer to the original application. Curiously, they filed no answer to the society’s amended application. They have appeared before this court on multiple occasions. At one point, they sought an order of access and temporary placement of the child in their care. The record reveals that they have not appeared since 20 July 2010.

Their original answer proposes that C. reside with them on a full-time basis. [ 9 ] The circumstances giving rise to a finding of protection in this matter are nothing short of horrific. On 23 March 2011, I delivered an oral ruling for the following: a. I made statutory findings in connection in C.’s name, date of birth, religious affiliation, Indian or native status and the location from which he came into care; b. I found that C. was in need of protection pursuant to s. 37(2)(

c) and (

d) of the Act. [ 10 ] As for the evidence before me supporting the finding of protection, C. was subjected to sexual abuse by his mother. She taped these incidents and others involving her, C. and the family dog by means of phone and over the internet. Part of the evidence before me consisted of a transcript of the criminal proceedings before Justice Guy F.

DeMarco where, after guilty pleas, she was convicted of making child pornography by means of a computer web cam and cell phone, possession of pornography for the purposes of publication and touching a young person ( i.e. , C.) for a sexual purpose all pursuant to provisions in the Criminal Code , R.S.C. 1985, c. C-46, as amended. She was sentenced to custody for a period of two years less one day, terms of probation, a lifetime prohibition under

section 161 of the Criminal Code , registration under the Sex Offender Information Registration Act , S.C. 2004, c. 10 and a firearms prohibition order. [ 11 ] I had previously provided direction that this

summary judgment motion be served on Mr. and Mrs. G. as the mother and grandparents were all represented by the same lawyer at one time in these proceedings. Counsel advised at one point they would be withdrawing their answer but they did not do so and did not file an answer to the amended application. It was around this same time,

namely 14 July 2010 that Mr. Paul M. Mingay was removed as counsel for all the parties by order of Justice A. Ross Webster. [12] I am reasonably confident that Ms.

S.M.D. was aware of the order for protection and Crown wardship being sought, as Iasked that she be produced before the court to clarify the parentage issue, she advised that she was withdrawing her answer and sheindicated that, although she was not consenting to the findings, she was not opposed to the finding of protection sought or the Crownwardship order either. [13] As for the grandparents, I was never really satisfied that they were entirely aware of the change in placement that wassought by the society or what was expected of them.

One thing was apparent; they had consistently failed to attend at court and may nothave been aware of the return dates. For these reasons then and in answer to the statutory obligations found in subsection 57(3) and (4)of the Act and pursuant to subrule 2(2) of the Family Law Rules, O. Reg. 114/99, as amended, I directed that they be served. On thereturn of this motion, I was not satisfied that in fact they had been personally served, and I made the order set out above for the reasons Ihave indicated. 3: ISSUE [14] What is the quality and sufficiency of evidence required for the

summary judgment motion? 4: THE LAW [15] In describing the quality and sufficiency of evidence on a

summary judgment motion, one must always be mindful of theunderlying standards and principles of such a motion. The following unusual opening line in the brief endorsement of Appeal JusticeGeorge D. Finlayson in Evans v. Evans (2000), 99 A.C.W.S. (3d) 623, [2000] O.J. No. 3382, 2000 Cars​well​Ont 3161 (Ont. C.A.) is agood start where he began by saying: “It is unusual to see a

summary judgment in a family law case, and should remain so.” [16] The

summary judgment motion is now an entrenched procedural remedy recognized as such under rule 16 of the FamilyLaw Rules. Some portions of the rule and pertinent subrules read as follows: 16. When available.—

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

summary judgment for a final order without a trialon all or part of any claim made or any defence presented in the case.

(2) Available in any case except divorce.— A motion for

summary judgment under subrule (1) maybe made in any case (including a child protection case) that does not include a divorce claim. [17] The rule clearly applies to child protection proceedings and is properly the subject of the Family Rules Committee. (SeeChildren’s Aid Society of Hamilton v. Marilyn W. and Peter S., , 63 O.R. (3d) 512, [2003] O.J. No. 220, [2003] O.T.C.51, 2003 Cars​well​Ont 200 (Ont. Fam. Ct.), per Justice Eugene B. Fedak). Before the advent of this new rule,

summary judgmentmotions were not unheard of in the then Ontario Provincial Court (now Ontario Court of Justice), even in child protection proceedings. Provincial Judge Joseph C.M. James (as he then was) in Catholic Children’s Aid Society of Metropolitan Toronto v. Lisa Marie O. andMichael P., , 59 A.C.W.S. (3d) 916, 7 W.D.C.P. (2d) 49, [1996] W.D.F.L. 650, 9 O.F.L.R. 165, [1995] O.J. No. 3971,1995 Cars​well​Ont 4393 (Ont. Prov. Div.), found that “only in the clearest and most exceptional of circumstances will the remedy ofsummary judgment be appropriate”.

His decision was ultimately upheld on appeal by Justice Sandra Chapnik at , 139D.L.R. (4th) 534, [1996] O.J. No. 3018, 12 O.T.C. 161, 1996 Cars​well​Ont3160 (Ont. Gen. Div.) and thereafter affirmed in 1997 by theOntario Court of Appeal at , 102 O.A.C. 232, 149 D.L.R. (4th) 464, 30 R.F.L. (4th) 16, [1997] O.J. No. 3041, 1997Cars​well​Ont 2742 (Ont. C.A.). See also Losee v. Geordiadis, , 36 R.F.L. (4th) 238, [1998] O.J. No. 301, 1998 Cars​-well​Ont 623 (Ont. Prov. Div.), per Provincial Judge James P. Nevins; and Children’s Aid Society of Hamilton-Wentworth v. S.S. and S.S.,, 85 A.C.W.S. (3d) 844, [1999] O.J.

No. 264, 1999 Cars​well​Ont 235 (Ont. Fam. Ct.), per Justice Henry Vogelsang, atparagraph [20]. [18] One judge has opined that

summary judgment is no longer limited to or granted only in the clearest of cases and itsexplicit availability in rule 16 of the Family Law Rules broadens the use of this remedy so that it is no longer considered an extraordinaryremedy. See Smith v. Morrison, 2009 ONCJ 462, 179 A.C.W.S. (3d) 1132, [2009] O.J. No. 4015, 2009 Cars​well​Ont 4996 (Ont. C.J.). See also paragraph [20] of Jewish Family and Child Services of Toronto v. R.A. and J.G., (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D.251, [2001] O.J. No. 47, 2001 Cars​well​Ont 73 (Ont. S.C.), per Justice G. Dennis Lane.

However the introduction of rule 16 of theFamily Law Rules did not affect the traditional level of caution to be exercised for invocation of

summary judgment. It is a jurisdictionto be used sparingly because that is consistent with the principles of justice and the best interests of children. See Children’s Aid Societyof Halton Region v. Kerri Lyne A. and John Johannes M., , 216 O.A.C. 148, 32 R.F.L. (6th) 7, [2006] O.J. No. 3958,2006 Cars​well​Ont 5997 (Ont. C.A.). In cases of Crown wardship without access,

summary judgment is to be invoked with some cautioneven though the test of genuine issue for trial has converted the

summary judgment from an extraordinary measure to a proceduralremedy. See Children’s Aid of Hamilton v. Marilyn W. and Peter S., supra. See also paragraph [23] of F.B. v. S.G. and CatholicChildren’s Aid Society of Toronto, , 199 D.L.R. (4th) 554, 16 R.F.L. (5th) 237, [2001] O.J. No. 1586, [2001] O.T.C.293, 2001 Cars​well​Ont 1413 (Ont. S.C.), per Justice Susan G. Himel. [19] Justice Paddy A. Hardman is often referred to as a result of her suggestion in Children’s Aid Society of Waterloo Regionv. Rhonda S. and Lewis M., , 101 A.C.W.S. (3d) 1133, [2000] O.J. No. 4880, 2000 Cars​well​Ont 4866 (Ont.

C.J.), atparagraph [25], as follows: [25] . . . However, while the test in the rule is the same regardless of the nature of the applicationsought, it seems likely that a court will proceed cautiously in a

summary determination involving thevery final orders of Crown wardship.

[20] Accordingly, there are legal principles that have evolved that are applicable to motions for

summary judgment. There arealso legal principles that apply to the evidence to be weighed so as to answer the ultimate question whether or not there is a genuine issuerequiring a trial. In Children’s Aid Society of Algoma v. Edward W. et al., , [2001] O.J. No. 2746, 2001 Cars​well​Ont2346 (Ont.

C.J.), Justice John Kukurin opined at paragraph [16] that, “potential factors in deciding whether there is a genuine issue fortrial could include the nature of the evidence on the motion, any mandatory time frames involved, the intrusiveness of the order sought,the statutory criteria involved, if any, and particularly how material are the facts in issue to the case”. Perhaps this is why he put it bestwhen he said that “it may simply be conservatism that seeks to restrict the

summary judgment to the clearest of cases. But adoption of anew rule hardly seems a good reason to start lowering the floodgates and adopting less onerous standards”. [21] Of importance on a motion for

summary judgment are the principles and standards of evidence required from the movingor responding party. To address the question of those standards, I would first refer to the relevant provisions of the Family Law Rulespertaining to affidavit evidence in motions generally and specifically, the

summary judgment motion. Subrules 14(17), 14(18), 14(19)and 16(4), 16(4.1) and 16(5) of the Family Law Rules apply. They read as follows: 14.—

(17) Evidence on a motion.— Evidence on a motion may be given by any one or more of thefollowing methods: 1. An affidavit or other admissible evidence in writing. 2. A transcript of the questions and answers on a questioning under rule 20. 3. With the court’s permission, oral evidence.

(18) Affidavit based on personal knowledge.— An affidavit for use on a motion shall, as much aspossible, contain only information within the personal knowledge of the person signing the affidavit.

(19) Affidavit based on other information.— The affidavit may also contain information that theperson learned from someone else, but only if, (

a) the source of the information is identified by name and the affidavit states that the personsigning it believes the information is true; and (

b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to bedisputed. . . . 16.—

(4) Evidence required.— The party making the motion shall serve an affidavit or other evidencethat sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) Evidence of responding party.— In response to the affidavit or other evidence served by theparty making the motion, the party responding to the motion may not rest on mere allegations or denialsbut shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue fortrial.

(5) Evidence not from personal knowledge.— If a party’s evidence is not from a person who haspersonal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) No issue for trial.— If there is no genuine issue requiring a trial of a claim or defence, the courtshall make a final order accordingly. [22] These rules then provide that affidavit or other evidence must be served. Information within the personal knowledge ofthe person signing the affidavit should be used. On its face, this would suggest that hearsay evidence is inadmissible unless, accordingto subrule 14(19), the source of the information is identified by name and the affidavit states that the person signing it believes theinformation is true. [23] The

summary judgment at rule 16 expressly provides that an affidavit or other “admissible” evidence must served, settingout specific facts showing that there is no genuine issue for trial. Regarding the content of the affidavit material, the party responding tothe motion may not rest on mere allegations or denials, but shall instead set out specific facts showing there is no genuine issue for trial. Further, and perhaps most notably, subrule 16(5) provides that, if a party’s evidence is not derived from personal knowledge of the factsin dispute, the court may draw conclusions unfavourable to the party. [24] The issue clearly then becomes how exactly have the courts interpreted this

section and subrules and what type ofevidence have they admitted on these motions? [25] Case law provides some direction in analyzing the court’s expectations around the principles and standards of evidenceused in affidavits filed on motions generally. In Lisanti v. LiSanti, , 24 R.F.L. (3d) 174, [1990] O.J. No. 3092, 1990Cars​well​Ont 219 (Ont. Prov. Ct., Fam.

Div.), Provincial Judge Henry Vogelsang lamented the routine drafting of affidavits that merelyattached third-party reports, observations and opinions (i.e., classic hearsay) by exhibit, leaving the author of the report safe from cross-examination and scrutiny. Justice David R. Aston in Evans v. Evans and Finkenzeller, , [1998] O. J. No. 5098, 83O.T.C. 154, 1998 Cars​well​Ont 4739 (Ont. Fam.

Ct.), commented on the growing war of words found in the family law context in supportof motions and struck out various paragraphs of an affidavit filed that was, as he put it, “ chock full of opinions, conclusions, andassertions about the feelings, motives or state of minds of other, including a nine month old child, failed to distinguish between evidenceand argument, contained inadmissible hearsay and contained scandalous, frivolous or vexatious material.” [26] For Justice Aston, the procedural and substantive errors in the affidavit before him led him to conclude that “what wepermit, we promote” and, in an effort to stay the flow of what he considered inadmissible and inappropriate material, he struck out theoffending paragraphs pursuant to the rules. [27] Likewise, in Hameed v.

Hameed, 2006 ONCJ 274, [2006] O.J. No. 3109, 2006 Cars​well​Ont 4653 (Ont. C.J.), JusticeStanley B. Sherr struggled with the problem of troublesome affidavits when he struck a paragraph that referred to a letter attached to afather’s affidavit written by his employer and, in Luckov v. Taylor, 2008 ONCJ 795, 189 A.C.W.S. (3d) 1065, [2008] O.J. No. 5911,2008 Cars​well​Ont 9483 (Ont. C.J.), Justice Bruce E. Pugsley was not assisted by:

[11] . . . unsworn letters incapable of cross-examination attached to affidavits, by statements ofwhat an unnamed third party believes is suitable behaviour for a married woman, that the applicant“gave up” a child in the past, the understanding of witnesses as to what a party thought but did notexpress, the comments of unknown persons of no known qualifications at the WSIB (Workplace Safetyand Insurance Board) as to the respondent’s health, events in the remote past referred to by both sides,and similar unhelpful material. [28] Similar problems relating to defective affidavits have arisen in the temporary care and custody motion pursuant to section51 of the Act, where a reduced standard of credible and trustworthy evidence is allowed.

See subsection 51(7) of the Act. In Children’sAid Society of Toronto v. Amanda M. and Steven T., , 26 R.F.L. (5th) 265, [2002] O.J. No. 1432, 2002 Cars​well​Ont1051 (Ont. C.J.), Justice Heather Katarynych laboured with the society’s evidentiary case where the affidavit of the society’s intake andcase aide workers had appended to them what she described as a sheaf of case note recordings from a local treatment facility andhandwritten notes in connection with supervising parent-and-child access.

At paragraph [16] of her ruling, she said that “what appears tobe credible and trustworthy information at an early stage in the investigation may be found, on closer scrutiny, to be speculation,innuendo, conjecture or simply mean-spirited gossip”. For Justice Katarynych, assertions were not validated by simply swallowing themwhole. She opined that, for assertions to support a credible and trustworthy test of admittance, they had to have a sound factual basisoutlined in the affidavit to allow for their inclusion. [29] In yet another example of affidavit “overkill”, in Catholic Children’s Aid Society of Toronto v.

Susan S. et al., 2008 ONCJ274, [2008] W.D.F.L. 3578, [2008] O.J. No. 2348, 2008 Cars​well​Ont 3527 (Ont. C.J.), Justice Robert Spence did not allow theadmission of an affidavit 145 pages in length, consisting of 337 paragraphs and 22 exhibits. In this proceeding, a common practice in theToronto child protection courts was to accept affidavit evidence from society employees to replace the tendering of such evidence inchief at the hearing.

He found that the affidavit proposed to be filed by the society reflected problems with redundancy, poororganization and was replete with irrelevant facts that could never be adduced at trial were the evidence to be given orally. JusticeSpence found that the affidavit appeared to be nothing more than the worker’s transcription of her notes, from her start of the case to theconclusion. He opined further that the affidavit lacked focus and tight thematic organization and did not comply with clause 23(21)(

c) ofthe Family Law Rules. [30] Summing up the foregoing decisions, it appears that materiality, relevance, compliance with the terms of the Family LawRules relating to the admission and drafting of affidavit evidence and focus on the issues and the legal test before the court on a motionall play an important

part in the cases reviewed above. [31] Moving from these identified problems, I suggest the next thorny issue that often presents itself specifically in thesummary judgment context is the question of whether to admit hearsay and if so, how much and when. Such is often the case in thechild protection sphere where multiple caregivers and experts may be involved in the determination of protection issues or alternativelyin assessing a long-term plan to secure a child’s best interests.

In these circumstances, the temptation is to simply attach a report orrecord to the affidavit of the lead social worker or without attachment simply refer to the third-party communication or record.

Theanswer to this issue seems to depend on the result of different judicial approaches to the admission of this evidence. [32] One judicial approach seems to allow for some limited admission of hearsay given the “permission” that may be allowedunder subrule 16(5) (and might I add, subrule 14(19)). [33] It is well established that traditional rules of evidence prescribe that hearsay evidence is inherently inadmissible and as aresult is generally inadmissible. Justice Robert S.G. MacKenzie in Huron-Perth Children’s Aid Society v. C.H. et al., 2007 ONCJ 744,2007 CarswellOnt 9293 (Ont.

C.J.), described (at paragraph [19]) the four hearsay dangers in a child protection proceeding where thesociety sought a motion for

summary judgment supported by what he described as a mass of affidavit material as: • First, you have no idea about the perception or the ability to perceive of the witness generally orin a specific situation. • Second, the ability of the witness to remember and the strengths and frailties of that memorycannot be assessed in any proper way. • Third, the ability of the witness to communicate. Well this is the biggest error that there couldpossibly be in affidavit material.

We all know that affidavits are, even in the most cautiouscircumstances, sufficient to sway a trier of fact simply by the ability of the drafter and thedrafter’s use of the English language. It is as simple as that. You have no idea about thewitness’s ability to communicate. You have the lawyer’s ability to communicate. • And last, sincerity, that is the demeanour, the trustworthiness, the reasoning for the court to relyon any of that evidence in making a decision that affects people’s lives. [34] For Justice MacKenzie, however, the bottom line relating to the admission of hearsay on a motion for

summary judgmentwas the principle of necessity and reliability, as outlined in R. v. Khan, [1990] 2 S.C.R. 531, 113 N.R. 53, 41 O.A.C. 353, 59 C.C.C. (3d)92, 79 C.R. (3d) 1, , [1990] S.C.J. No. 81, 1990 Cars​well​Ont 108.

He then devised the following test to allow for theadmission of hearsay in the affidavit material before him (at paragraph [27]): • First, the deponent should identify the source of the information and identify that the sourcemust be the original source of the information, or that that person is the person with thepersonal knowledge or observation of the fact alleged; • Second, the deponent must explain the reason why the original source of the information hasnot sworn his or her own affidavit and therefore why it would be necessary for the court toaccept hearsay evidence on those facts as opposed to the direct evidence of those facts;

• Third, the deponent must explain the circumstances of how the hearsay evidence was obtained,whey the source would have knowledge of the information and the full details of theinformation and the source so that the court can ascertain the soundness of the information andthe source and assess some kind of level of reliability to that evidence; • Last, the deponent must explain not only that they believe the evidence from the hearsaysource, but they have got to give for every piece of hearsay reasons why they and the courtshould believe and only on that untested evidence. [35] In assessing Justice Mackenzie’s ruling, one should not overlook that he held the view that subrules 14(19) and 16(5)expressly allowed the court the discretion to accept or reject hearsay evidence in affidavit material, which he then proceeded to apply. [36] Justice Barry Tobin approved of what I will describe as the “MacKenzie” approach in a recent unreported decision inWindsor-Essex Children’s Aid Society v.

Benuik (Windsor File No. FO-10-00000004). In that case, Justice Tobin allowed the society toadmit the report of a specialist on a motion for

summary judgment for dismissal brought by the mother where the society had merelyattached the specialist’s letter as an exhibit to the affidavit of the society family services worker. He admitted the report and appliedweight to its findings and opinions due to what he described as its circumstantial guarantees of reliability and necessity and the lack ofprejudice to the moving party.

In the instant case, Justice Tobin found that the specialist’s report had been received by a doctor who hadno interest in the outcome of the case, as a result it had an air of reliability about it, the report been previously admitted in the context ofa temporary care motion, the admission of the document would give effect to subsection 1(1) of the Act and the moving party hadpreviously acknowledged the document’s existence and had had the opportunity of moving to conduct oral questioning on its contents. [37] Justice Tobin had this to say on the question of prejudice, however: I wish to observe that the society could have easily avoided this evidentiary objection made by Ms.

B.by filing the report appended to an affidavit sworn by Dr. Villella. If the consequences of admitting thereports would have been more dire for Ms. B., such as the removal of the child from her care, I mighthave exercised my discretion otherwise. [38] For Justice Tobin, then the issue of prejudice to a party was an additional factor for consideration in addition to reliabilityand necessity when regarding the admission of hearsay material in the

summary judgment motion. [39] But Justice Kukurin, in Children’s Aid Society of Algoma v. Edward W. et al., supra, examined the impact of subrule16(5) within the context of a

summary judgment motion where the affidavit by the lead social worker alleged as a fact what a third partyhad told her, where the purpose of the allegations was not to demonstrate the comments were made and where the evidence was soughtto be admitted as to the truth of the comments alleged (i.e., classic hearsay). The learned judge had this to say about the application ofthe subrule: [32] What does the court do in circumstances like these? Subrule 16(5) is permissive. No adverseinference need be drawn; no unfavourable conclusions need be reached.

In this case, it would bedifficult for the court to decline to do so. The circumstances are classic. There is no explanation whythere are no affidavits from the authors of the comments involved. The fact that the paternalgrandmother swears an affidavit that Mr. P.W. did not reside at her home after 1 November 2000 is veryimportant to this problem. It puts the matter squarely before the court so that court cannot avoid dealingwith the problem. If the court declines to draw unfavourable conclusions, it should at least give somereasons and explain it this way. Frankly, I have no reason that is reasonable.

To say that case law hasset a precedent that enjoins the court from making findings of credibility is not sufficient when aspecific rule says otherwise. Nor is disguising what the court does by using other words. “Drawingunfavourable conclusions” in the context of subrule 16(5) of the Family Law Rules, which dealsspecifically with a party’s evidence, and which follows subrule 16(4) which also deals with evidence,means, so far as I am concerned, making inferences or determinations of credibility and inextricably tiedto this is the mental exercise of assigning weight to such evidence.

Accordingly, I consider suchevidence by the society of relatively poor quality in the circumstances. [40] Ultimately Justice Kukurin “weighed” the evidence before him (he described some of it as admissible and inadmissiblehearsay) and found that subrule 16(5) of the Family Law Rules and rule 20.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, asamended, made it abundantly clear that the quality of the evidence before the court [was] very definitely a basis for the weight to beassigned to such evidence.

He said the following at paragraph [28], “In fact, if the words in subrule 16(5) ‘the court may drawconclusions unfavourable to the party’ do not expressly permit the court to make adverse findings of credibility, I am at a loss tounderstand what they do mean”. However, he was troubled that the cases dealing with

summary judgment unwaveringly repeat the sameinjunction that was summarized in Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank, (1999) 44 O.R. (3d) 97, 118O.A.C. 149, 173 D.L.R. (4th) 468, 28 E.T.R. (2d) 113, , [1999] O.J. No. 1195, 1999 Cars​well​Ont 911 (Ont. C.A.), andset out by Justice George T. Valin in Children’s Aid Society of Nipissing v. Marielle M., , 98 A.C.W.S. (3d) 134,[2000] O.J. No. 2541, 2000 Cars​well​Ont 2372 (Ont. S.C.), at paragraph [12]: [12] A motions judge, on a rule 20

summary judgment motion, should not resolve issues ofcredibility, draw inferences from conflicting evidence, or from evidence that is not in conflict whenmore than one inference is reasonably available. Those functions are reserved for the trier of fact. [41] For Justice Kukurin then, it appears that he admitted the offending material despite the fact that it was inadmissiblehearsay, proceeded to engage in a limited weighing of it, then on the whole, found it less worthy of weight.

To repeat, his case enquiriesseem to suggest that the question for him relating to the evidence was one of weight, not admissibility. [42] Continuing with this analysis, the case law reflects that there are different strokes for different folks. For example, in

Children’s Aid Society of Hamilton v. M.N., , 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 Cars​well​Ont 2453(Ont. S.C.), Justice Donald J. Gordon was presented with an affidavit record from the applicant society seeking a continued finding ofprotection as a result of the mother’s mental health issues and an order of Crown wardship without access for the purpose of adoption. Expert findings on the motion consisted of a parenting capacity report and annexed psychiatric “consultation notes”.

He describes thesedocuments as not being in the form of admissible evidence and incomplete (i.e., they contained no final findings or opinions relating tothe mother’s mental health). The society’s motion relied heavily on the affidavit of the family service worker and incorporated byreference the prior affidavits of society workers filed in the proceeding.

Those affidavits were summarized by Justice Gordon as lackingsufficient detail relating to the child’s best interests such as culture and language barriers, considerable reference was made to third-partysources without an explanation why direct evidence was not obtained, the society’s concerns and opinions were largely throughout andoverall he complained about a record that revealed incomplete and out-of-date medical findings. According to Justice Gordon, heexpected on the

summary motion a full and complete evidentiary record, admissible evidence and a presentation of all of the evidence asif there was a trial. Justice Gordon was not alone in this view. At paragraph [10] of his reasons in Huron-Perth Children’s Aid Society v.C.H., supra, Justice MacKenzie was likewise of the view that the evidence at a motion for

summary judgment should be of a level andquality that could withstand the rigour of a trial. [43] On the issue of the information from other sources and the lack of explanation why affidavits could not be presented fromthose persons, he felt this type of affidavit contravened subrule 16(5) and, as such, was inadmissible as opposing parties and the courtwere entitled to the best evidence from the original source. He had the following to say about hearsay evidence: [29] Hearsay evidence is to be avoided.

The rules of evidence are relaxed in applications fortemporary care and custody as s. 51 of the Act permits evidence the court considers “credible andtrustworthy in circumstances”. While Rule 16 (5) appears to be permissive as to hearsay evidence, thereis the penalty attached of an adverse inference. [44] But it is what he had to say about the nature of the evidence on a

summary judgment motion that is noteworthy. Atparagraph [30] of his judgment he said that: [30] Evidence on a motion for

summary judgment must be restricted to “admissible” evidencegiven the nature of the proceeding, namely, it is comparable to trail, and the relief claimed. Theadmissibility of hearsay evidence must be supported by evidence of necessity and reliability, failingwhich it must be excluded. Simply put, if evidence is not admissible at trial, it is not admissible on amotion for

summary judgment. [45] This notion of what I would describe as insisting on “trial worthy” evidence is referred to by Justice Aston in Evans v.Evans and Finkenzeller, supra, at paragraph [25], even within the context of an affidavit in support of a motion which was governed bywhat was then subrule 19(2) of the former Family Court Rules, R.R.O. 1990, Reg. 202, (now subrule 14(15)): [3] Evidence by affidavit must, generally speaking, meet the same test as oral testimony. It mustbe factual. It must be relevant to an issue before the Court.

If it is hearsay, it must fall within one of theexceptions to the “hearsay rule”. It must be within the personal knowledge of the deponent unless itcomplies with subrule 19(2) . . . [4] It is not appropriate for a witness to state as a fact some conclusion that must be drawn by thecourt itself.

It is only appropriate for the witness to swear to the facts from which the court may draw itconclusions. [5] The opinions and conjecture of the deponent are not properly evidence before the court,particularly those that make assertions about the motivations or thoughts or feelings of someone else. [46] One finds this same conundrum relating to the admission of hearsay evidence at trial or hearing throughout childprotection cases. In Children’s Aid Society of London and Middlesex v. R.H. et al., , 93 A.C.W.S. (3d) 852, [1999]O.J. No. 5037, 1999 Cars​well​Ont 4380 (Ont. Fam. Ct.), Justice Grant A.

Campbell found that subsections 50(1) [past parentingevidence], 51(7) [credible and trustworthy evidence on the temporary care and custody motion] and 54(6) [the admission as evidence ofassessment findings] of the Act did not act to limit the admission of hearsay evidence in child protection cases. In his case, he was askedto admit the out-of-court statements made by the children who were the subject of protection proceedings to third parties.

He opinedthat, in addition to the above-named statutory exceptions, the court had a long established parens patriae jurisdiction that allowed for theadmission at trial of such evidence for the truth of children’s statements without meeting the dual tests of reliability and necessity inarriving at its ultimate determination. Justice Campbell found comfort in the Manitoba Court of Appeal decision in Winnipeg Child andFamily Services v. L.L. and C.L. (1994), (MB CA), 95 Man. R. (2d) 16, [1994] 6 W.W.R. 457, 70 W.A.C. 16, 4R.F.L. (4th) 10, [1994] M.J.

No. 251, 1994 Cars​well​Man 132, and the English line of authorities in Re McGrath (Infants), [1893] 1Ch.143, 62 L.J. Ch 208, 67 L.T. 636, 9 T.L.R. 65, 41 W.R. 97, 2 R. 137 (Eng. C.A.) and Official Solicitor v. K., [1965] A.C. 201, [1963]3 All E.R. 191, [1963] W.L.R. 408 (H.L.), for this proposition. He described the jurisdiction to admit such evidence as a special“paternal jurisdiction” whereby the court could examine all child care proceedings in a non-adversarial manner. [47] In Children’s Aid Society of London and Middlesex v.

R.H. et al., supra, Justice Campbell then admitted certain out-of-court statements by children for the truth of their contents, without a determination of necessity or reliability and without regard tosubsections 50(1), 51(7) and 54(6) of the Act. Instead, he advocated an approach that would allow for its admission with a discretion todecide what weight to give to the hearsay. [48] But Justice Aston in Children’s Aid Society of London and Middlesex v. B.B. and J.B., , 4 R.F.L. (5th)183, [2000] O.J. No. 235, [2000] O.T.C. 105, 2000 Cars​well​Ont 205 (Ont. Fam. Ct.), disagreed with Justice Campbell’s approach.

Hefound that, although some hearsay evidence in a child protection proceeding may be admissible for the truth of its contents without thenecessity of meeting the test in R. v. Khan, supra, the discretion to admit such evidence was very limited and certainly should not beadmitted on the threshold issue of whether or not a child is in need of protection, at which stage the discretion to admit it may not evenexist. He felt that the discretion may be broader at the dispositional stage of a protection hearing or at a status review. In fact, he said at

paragraph [17] the following: [17] If the hearsay evidence sought to be admitted for its truth goes to the issue of whether or not the child is in need of protection, I would always decline to admit that evidence if it did not meet the test of reliability and necessity.

Indeed, the discretion to admit it may not even exist. [ 49 ] Justice Aston further expressed concern that a general discretion to admit hearsay statements based on the parens patriae jurisdiction that applied to a superior court of jurisdiction in Ontario could not apply throughout the province of Ontario where child protection applications must be brought in statutory courts of record, namely, the Ontario Court of Justice, which had no corresponding inherent jurisdiction as a statutory court. [ 50 ] Justice Stanley Sherr dealt with this very dilemma relating to the width of the exception to hearsay evidence under subsection 50(1) of the Act in Children’s Aid Society of Toronto v.

Lisa L. et al. , 2010 ONCJ 48 , 83 R.F.L. (6th) 431, [2010] O.J. No. 686, 2010 Cars​well​Ont 920 (Ont. C.J.), when he was asked to consider at trial the admission of hearsay contained in third-party records and reports. On the one hand, Justice Sherr identified that there were those cases that decide that almost any item of hearsay is admissible, but subject to the court’s attaching appropriate weight to them. He also identified other cases that urged a stricter standard of necessity and reliability for threshold (my emphasis ) admission of this type of evidence.

He preferred this later approach to admitting business records and past parenting evidence containing inadmissible hearsay and opinion evidence. He also found comfort in this approach that the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen’s Printer for Ontario, 2008) prescribed for judges in maintaining a vital gate-keeping role to protect the legal system from the dangers of unreliable evidence. [ 51 ] How can one then reconcile these various approaches to the admission of evidence in child protection proceedings and concurrently, the

summary judgment motion? What rules can be ascertained from this assembly of decisions relating to the Family Law Rules , admissible and inadmissible evidence, threshold admissibility but nonetheless “weighing” the evidence and other common law rulings and statutory exceptions relating to the admission of hearsay? This diversity of judicial approaches, I dare say, likely prompted Professor D.A. Rollie Thompson in “Are There Any Rules of Evidence in Family Law?” (2003), 21 Can. Fam. L.Q. 245, and his companion piece in “The Cheshire Cat, or Just His Smile? Evidence Law in Child Protection” (2003), 21 Can. Fam.

L.Q. 319, to ask these questions. [ 52 ] In order to provide some direction in this complex mix of law and discretion against the backdrop of the competing priorities concerning the best interests of children, I respectfully suggest that the following considerations might be considered on the

summary judgment motion: 1. Evidence should be by affidavit or other admissible form (for example, transcript of oral questioning or oral evidence with leave); 2. Evidence by affidavit should ideally be within the person’s own knowledge (that is, first-hand or direct); 3. Evidence should ideally be in the form of concise, succinct, focused statements of facts. 4. Counsel should avoid affidavits the contain rambling narratives, long recitations, irrelevant facts and provide a virtual “documentary dump truck” or shot-gun approach to the filing of evidence; 5.

The affidavit should contain a full evidentiary record and contain all the evidence the party would present if there had been a trial; 6. The responding party must put their “best foot forward” and cannot rely on bald assertions or mere denials. The affidavit should establish a factual basis to support the conclusion that there is a genuine issue for trial (that is, a viva voce hearing), such as issues of credibility or drawing of inferences from conflicting evidence or where more than one inference is available from the evidence; 7.

Where evidence is not within the person’s own knowledge, it may be obtained from a third party, providing the person identifies the source of the information and states that he or she believes the evidence to be true. Merely attaching third- party reports, letters, observations and statements to an affidavit does not necessarily make the contents of the document or the observations or statements admissible as evidence; 8.

An affidavit should address the basis for the court’s admission of otherwise inadmissible evidence applying what I would describe as the “MacKenzie” rule (see paragraph [34] , above) if it is hearsay evidence; 9. Most cases accept that subrules 14(19) and 16(5) provide a discretion to accept or reject hearsay evidence; 10. Even if the inadmissible evidence is admitted, the court is expressly allowed to draw unfavourable conclusions about it and may attach little weight to it; 11.

Less certain is the wholesale admission of any evidence, admissible or not, simply because the motion involves child protection proceedings; 12. In fact, there appears to be no universal acceptance of the proposition that a court should admit inadmissible evidence in a child protection case under the guise of a child’s best interests or as part of an inherent jurisdiction to do so. 13. The

summary judgment motion should be approached with caution, especially if the request is for Crown wardship. The relief sought will likely have a direct bearing on the nature and sufficiency of the evidence requested on the motion. 5: ANALYSIS [ 53 ] I now turn my attention to the affidavits before me to address its deficiencies and deficits: 1. The society’s motion relies upon the affidavit of Grace Dorion, the family services worker, sworn on 6 May 2011 to support the order of Crown wardship. This affidavit incorporates by reference Ms.

Dorion’s affidavit of 25 February 2010, which was previously filed before me to support the finding of protection and “all of the attached exhibits to that affidavit”.

2. Overall, let it be said, that the affidavit of 25 February 2010 and its exhibits was particularly unhelpful to the court on the finding of protection. My finding in this matter was made pursuant to clauses 37(2)(

c) and (

d) of the Act. I have particularized my brief reasons and the evidence that I considered in paragraph [10] of these reasons. My facts are derived largely and exclusively from the transcript of agreed-upon facts as part of the mother’s guilty plea before Justice G. DeMarco on 26 January 2010. That transcript was annexed as exhibit “C” to Ms. Dorion’s affidavit of 25 February 2010. I have allowed its admission, as it is a first-hand account prepared by a certified court reporter of what facts were agreed upon to support the convictions entered.

That transcript did not reveal, however, the sections of the Code to which the mother had pleaded. I asked for and sought a copy of the mother’s criminal information so that I could ascertain those sections. When the information was produced to me, it revealed that a publication ban pursuant to

section 486.4 of the Code had been imposed relating to the criminal proceedings. I expressed concern about the “publication” of these materials before me. I am now satisfied, however, that subsection 486.4(4) applies in respect of the society’s filings as a result of the Crown Attorney’s submissions in this matter. Unfortunately, the society did not anticipate or address these issues at all prior to its filings in support of the finding of protection. 3.

Some of the evidence presented before me at the time of the protection finding was agreed upon to be disputed and not to be relied upon for any purpose and certainly not for the truth of its contents. I refer to exhibit “F” referred to in the affidavit of Ms. Dorion, which are the findings of Dr. William J. Komer, M.D., dated 19 January 2010, relating to a mental health assessment that he conducted on the mother for the purpose of trial fitness issues related to the criminal charges. Unfortunately, society counsel has made no attempt to sever or expunge this report at the time of the disposition phase of this

summary judgment motion. I have not referred to these findings as the mother’s counsel expressly indicated that they were not agreed to. In addition to expressing an opinion related to the mother’s trial fitness, the report contains inadmissible hearsay and narrative by the doctor. By simply asking that Ms. Dorion’s affidavit of 26 March 2010 be incorporated by reference into her more recent one, society counsel has inadvertently included these materials despite his agreement not to do so, including an inadmissible exhibit; 4. The rest and remainder of the affidavit of Ms. Dorion’s of 25 February 2010 is largely a historical

summary of the file recordings relating to the mother and a narrative of Ms. Dorion’s attendances with the mother prior to C.’s apprehension. It contains largely inadmissible and multiple hearsay (that is, double and triple) observations and statements, inadmissible opinion evidence from various unnamed sources, some of which are anonymous. No attempt has been made to comply with subrule 16(5) whatsoever. No first-hand reports or records have been filed or relied upon as business records or otherwise. 5.

The information in this affidavit is not focused or thematically organized so that I can make some connection as to how this historical information assists in connection with the finding of disposition before me. 6. Particularly egregious is the fashion in which the findings of a Ms. Susan Sorrell of the Healthy Babies - Healthy Children has been organized. I have no idea who Ms. Sorrell is or her capacity to provide the reports, observations, opinions and commentary that has been attributed to her. I have no evidence before me to assess the circumstances under which her findings were made.

One classic example is Ms. Dorion’s allegation that Susan Sorrell told her that the mother has a “history of dishonesty”. I cannot ascertain when this was said and in relation to what events. 7. Other examples of serious deficiencies in this affidavit include the society’s wide-ranging inferences that the mother suffers from cognitive impairment and mental health issues. The affidavit refers to unnamed sources at the Chatham-Kent Children’s Services as the source of these findings.

No direct psychiatric or medical findings or reports relating to the mother’s mental health functioning are referred to or incorporated into the motion record before me. 8. No attempt has been made to obtain direct or first-hand accounts from various third-party sources. 9. Most importantly, I simply cannot ascertain how or why this largely narrative information provides me with the factual basis to support a finding of Crown wardship. [ 54 ] I will move to Ms. Dorion’s affidavit of 6 May 2011. 1. I am prepared to accept the following as unopposed facts set out in her affidavit: (

a) The mother is not making a plan for her son and does not oppose the finding of Crown wardship; (

b) The grandparents have not filed an answer to the amended application nor attended court since; (

c) The grandparents expressed an interest in proposing a plan for C.’s care early on in these proceedings. No such plan has ever been received; (

d) The grandparents failed to obtain police clearances and other requested reports so that the society could complete a kingship assessment of them; (

e) The grandparents have not been approved as a kinship placement pursuant to Ministry standards; (

f) Ms. Dorion and Mr. S.G. spoke on 23 November 2010 and Ms. Dorion forwarded pictures of C. to him; (

g) The mother is incarcerated and scheduled to be released from custody on 31 May 2011. 2. Paragraph 14 of Ms. Dorion’s affidavit alleges that, upon coming into care, C.’s foster mother and child’s worker made observations of him. There is a reference to “Safe Kids”. It is impossible to ascertain “who” saw “what”, given the fashion in which this paragraph has been drafted and “who” or “what” Safe Kids is. The information appears to be in the nature of inadmissible opinion evidence. C. is described as having “no boundaries”, “no stranger anxiety” and not engaging on a “social level” whatever that means.

The specific source of this information is not disclosed, nor is Ms. Dorion’s belief in the accuracy or truthfulness of this evidence. As such, it does not comply with the rules. 3. Paragraph 15 of Ms. Dorion’s affidavit describes C.’s gains after being placed in foster care as being “potty trained, his socialization has improved and his behaviour is age appropriate.” I cannot ascertain who the source of this information is. The factual findings supporting these conclusions is missing. The deponent does not assert that she believes in the truth of these statements.

The evidence once again, appears to be inadmissible opinion evidence.

4. Paragraph 16 is drafted in what is best described as the “shot gun” approach. Ms. Dorion alleges the following without any reference to the specific source of her information or that she believes it to be true. Once again, this appears to be inadmissible opinion evidence: (

a) C. has been to Children’s First for speech therapy, saw a Dr. Roy (no first name or qualifications is provided), attends day care and junior kindergarten “with positive reports” and has no disabilities or special needs. (

b) C. has met all his developmental milestones and may well be exceeding them. (

c) C. never mentions “his mother or grandparents since coming into care”; (

d) There is nothing to suggest that C. requires long-term services. 5. Paragraph 17 attempts to address the issue of access and the best interests of C. relating to his blood ties and family. According to Ms. Dorion, C. has “blocked his mother and grandparents out of his life”. Any access between him and his family, according to Ms. Dorion, would jeopardize his gains and re-traumatize him. Once again, it is impossible to properly ascertain who the source of this information and these findings is; what his or her capacity and professional background is to make these observations and express these opinions.

Once again, Ms. Dorion does not depose that she has a belief in the truthfulness of this evidence. 6. It is impossible to ascertain from this affidavit why first-hand accounts of these findings were not sought or why professional or expert reports were not tendered. [ 55 ] I am not at all satisfied with the quality or sufficiency of this evidence before me. In addition, there are complete gaps in the evidence before me. There is no statutory plan of care pursuant to

section 56 of the Act that has been filed on the motion’s return and no evidence at all before me addressing the mandatory inquiries that I must make pursuant to subsections 57(2), (3) and (4) of the Act. Moreover, there is no relevant evidence relating to the issue of this child’s access or openness orders pursuant to

section 59 of the Act. I repeat these sections for review (my emphasis added): 57.—

(2) Court to inquire. — In determining which order to make under subsection (1) or

section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

(3) Less disruptive alternatives preferred.— The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non- residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

(4) Community placement to be considered.— Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall , before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. . . . 59.—

(2) Termination of access to Crown ward. — Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

(2.1) Access: Crown ward.— A court shall not make or vary an access order made under

section 58 with respect to a Crown ward unless the court is satisfied that, (

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. . . .

(4) Society may permit contact or communication.— If a society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward and no openness order under

Part VII or access order is in effect with respect to the person and the Crown ward, the society may permit contact or communication between the person and the Crown ward. [ 56 ] The record before me is an unfortunate constellation of errors. It reflects poor and ineffective draftsmanship, lack of focus and thematic organization, a failure to adhere to basic rules relating to affidavits and the fundamentals of admissible evidence. As the gatekeeper of this evidence and the final arbitrator of this child’s best interests, I must decline the society’s request.