Children’s Aid Society of Toronto v. G.P., 2019 ONCJ 365

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

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of Toronto v. G.P., 2019 ONCJ 365 DATE: May 29, 2019 COURT FILE No.: C20883/18 BETWEEN: CHILDREN'S AID SOCIETY of TORONTO Applicant, — AND — G.P. (mother) K.D. (father) S.C. (maternal grandmother) Respondents Before Justice Roselyn Zisman

Heard on May 14, 2019 Reasons for Judgment released on May 29, 2019 Justine Sherman............................................................. counsel for the applicant society David Miller......................................................... counsel for the respondent G.P (mother) S.C.................................................................................................................. on her own behalf No appearance by or on behalf of K.D. (father) Zisman, J.: 1. Introduction [ 1 ] This is a

summary judgment motion brought by the Children's Aid Society of Toronto (“the society”) regarding an Amended Protection Application dated November 16, 2018 with respect to the child K.P. born […], 2015 (“K.P.” or “the child” or “the daughter”). [ 2 ] Service on the Respondent K.D. who is the father of the child was dispensed with on February 21, 2019. [ 3 ] The society seeks an order for the statutory findings for the child which was granted at the outset of the motion on consent. [ 4 ] The society further seeks an order that the child be found in need of protection pursuant to section 74 (2) (b) (

i) and (

k) of the Child, Youth and Family Services Act (“ CYFSA ”) and that the child be placed in the care and custody of the maternal grandmother S.C., pursuant to a

section 102 CYFSA order, ancillary orders regarding travel and obtaining documents and with unsupervised access to the mother at a minimum of twice monthly, for three hours and any other access as agreed between the parties. [ 5 ] The mother filed an Answer and Plan of Care in response to the society’s Protection Application but not to the Amended Protection Application. The mother seeks an order that the Protection Application be dismissed as the child is not in need of protection. In the alternative, the mother seeks an order that the child be placed in her care and custody pursuant to a

section 102 CYFSA order or under an order for supervision. [ 6 ] The society relies on the following documents: 1. Protection Application issued June 5, 2018 2. Amended Protection Application issued November 16, 2018 3. Amended Plan of Care meeting dated November 18, 2018 4. Notice of Motion 5. Affidavit of Karri Madi (intake worker) sworn April 8, 2019 6. Affidavit of Jill St. Clair (family service worker) sworn April 3, 2019 and Reply Affidavit sworn May 8, 2019 7. Affidavit of Melanie Nicholl (family support worker) sworn April 3, 2019 8.

Affidavit of Tiffany Allison (kinship service support worker) sworn April 5, 2019 9. Affidavit of Robin Kelly (supervisor) sworn May 8, 2019 10. Affidavit of Shalimar Novak (intake worker) sworn May 8, 2019 11. Notice of Intention to Rely on Business Records: Peel Children's Aid Society referral report, information and Closing/Transfer

Summary 11. Request to Admit dated April 9, 2019 [ 7 ] The mother relies on her own affidavit sworn May 3, 2019 and her Response to Request to Admit dated May 1, 2019 [ 8 ] S.C., the maternal grandmother, did not file any materials but supports the society’s position.

[ 9 ] Both counsel filed facta. 2. Court Proceedings [ 10 ] On June 7, 2018 the case management judge, Justice Carole Curtis made a temporary order placing the child in the temporary care and custody of the maternal grandmother subject to terms and conditions of supervision. Access to the mother was ordered to be as approved by the society. The mother was to work co-operatively with the society and advise the society of her current address and contact information and the names of the people she was residing with. [ 11 ] There were several other attendances dealing with service and other procedural issues. [ 12 ] On February 21, 2019 the matter was set for a

summary judgment motion to be heard on May 14, 2019. 3. Evidentiary issues [ 13 ] Counsel on behalf of the mother raised several objection to the admissibility of statements allegedly made by the maternal grandmother in the affidavits of Ms Madi, the intake worker and Ms St. Clair, the family service worker.

It is submitted that those statements are hearsay and cannot be admitted for the truth. [ 14 ] Counsel for the society submitted that as the maternal grandmother was made a party on June 7, 2018, therefore any statements by her are admissible. [ 15 ] However, admissions by a party are only admissible against that party. So on this motion, statements by the maternal grandmother are not admissible against the mother. [ 16 ] As explained by Professor Rollie Thompson, [1] the hearsay exception commonly known as an admission by a party has two requirements: 1. The statement must be made by a party and 2.

The statement must be offered against the party by an opponent. [ 17 ] In other words, it is only when the statement is offered against the party making the statement by an adverse party that it is admissible.

The party making the statement cannot offer it for the truth under this exception. [ 18 ] Accordingly, the statements made by the maternal grandmother to the various social workers about the mother are not admissible for their truth against the mother. [ 19 ] Counsel for the society then submitted that the society is not relying on the maternal grandmother’s statements for their truth but for context and background to explain subsequent steps or decisions made by the society.

The statements are admissible for that limited purpose only. [ 20 ] Counsel for the mother also objected to the admissibility of the records from the Peel Children's Aid Society. The records consist on one entry made on June 17, 2017 and then a document titled “Investigation and Closing/Transfer

Summary.” [ 21 ] It is submitted that the

summary is not a business record on the basis that it is not made contemporaneously as required by

section 35 of the Evidence Act which provides as follows:

Definitions

(1) In this section, "business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; "record" includes any information that is recorded or stored by means of any device.

(2) Where business records admissible - Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

(3) Notice and production - Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party's intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.

(4) Surrounding circumstances - The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.

(5) Previous rules as to admissibility and privileged documents not affected.- Nothing in this

section affects the admissibility of any evidence that would be admissible apart from this

section or makes admissible any writing or record that is privileged. [ 22 ] In the case of Catholic Children’s Aid Society of Toronto v. J.L. and W.R. [2] Justice Penny Jones summarized the criteria for the admissibility of documents pursuant to this provision as follows:

(1) the record must be made in the usual and ordinary course of business and it must be in the usual and ordinary course of business to make such a writing or record; (2) the record must be made contemporaneously with the transaction recorded, or within a reasonable time thereafter; (3) only records of "facts" can be admitted - note words in subsection 35(2) "an act, transaction, occurrence or event" and not records of expert opinion; and (4) although there is no requirement that the maker of the record have personal knowledge of the facts recorded, he must be acting under a business duty and the informant must be acting under a business duty or the informant's statement must be otherwise admissible under the hearsay rule of exceptions . [ 23 ] Applying this criteria, the entry for June 17, 2017 is admissible as the entry was made contemporaneously by a child protection worker who was required to keep records in the usual and ordinary course of business.

But the third party that reported concerns about the mother was not under any statutory duty and was not obligated to keep notes in the ordinary course of business. Therefore, the information that the society worker obtained from the third party is not admissible for the truth. [ 24 ] The information received from the third party is only admissible for the limited purpose as forming the basis for the next steps to be taken by the worker. The record is admissible to indicate that based on the information received by the society worker she intended to meet and interview the mother. [ 25 ] However, the

summary of the steps taken by the worker and information obtained is not admissible for their truth as the recordings were not made contemporaneously. 4.

Summary of relevant evidence [ 26 ] The society became involved as a result of the maternal grandmother calling Ms Novak, who was working as the intake screening worker, on May 8, 2018 to advise that the mother had gone to India and left the child with her on February 15, 2018. The mother returned to Canada on April 16, 2018. [3] [ 27 ] As a result of the information obtained from the maternal grandmother, Ms Madi was assigned as the intake worker. Ms Madi attempted to contact the mother by telephone on May 8, May 10, May 18 and June 4, by email on May 10, 2018 and by text message on May 16, 2018.

Ms Madi sent two letters to the mother on May 16, 2018 at her two previously known addresses.

Ms Madi also left a message on May 17, 2018 with the paternal grandfather’s partner for the mother to call her. [ 28 ] The mother did not respond to any of these requests. [ 29 ] The mother denies that she received any communications from Ms Madi despite the fact that she confirmed that she lived at the address that the letter was sent to and despite the fact that she told the society worker that she stays at both her home and the home of her father. [ 30 ] The mother deposes that she attempted to have the child returned to her but the maternal grandmother refused to return her. [ 31 ] Ms Madi met and spoke to the mother for the first time at the initial court attendance on June 7, 2018.

The mother made the following statements:

a) She denied receiving any letters, emails or messages from Ms. Madi. She confirmed that she was residing at the two addresses where the letters were sent;

b) She did not find out that the society was involved until May 31 st when her Ontario Works worker told her that the child was in the care of the maternal grandparents;

c) She dropped the child off with her the maternal grandmother in February 2018 but was not sure of the date;

d) She left for India on February 26, 2018 and returned on April 16, 2018;

e) She expressed confusion with the maternal grandmother’s version of events and stated the maternal grandmother knew where she was going and believed that the maternal grandmother knew how to communicate with her;

f) When she returned from India she tried to pick up her daughter but she was not sure when she made that attempt. The mother said that because she did not live in the area she could not keep dropping by and trying to pick up her daughter;

g) She denied that she ever spoke to the maternal grandmother about giving her custody of the child; and

h) She agreed with her father’s comments about concerns about the maternal grandmother being an unsafe caregiver. When asked why she would leave her child with an unsafe caregiver, she replied that she is “fine for babysitting”. [ 32 ] On June 8, 2018 Ms Madi attended at the mother’s home. It was a large basement apartment that was clean and furnished. The child’s room had a bed, some stuffed animals, a chalkboard and some shoes. The mother said that all of the clothes were at the maternal grandmother’s home. [ 33 ] The mother made the following statements to Ms Madi:

a) Her file with Peel Children's Aid Society was closed because there were “no worries” and the person who made the allegation withdrew it;

b) Her pregnancy was a surprise and initially her family was not supportive because of her young age but now they were;

c) Her supports were her father, Ontario Works and a community centre where she attended groups for mother with babies;

d) She did not agree with the maternal grandmother’s statement that she left the child in the care of the maternal grandmother 80% of the time. She would only drop off the child with a family member for an hour or so if she had an errand;

e) She left the child with the maternal grandmother for a week-end if she needed a break or to relax;

f) The longest time she ever left the child with a family member before the trip to India was for 2 days;

g) She thought she left the child with the maternal grandmother 2 days before she left for India. She went to India because a family member died;

h) The maternal grandmother was helping her provide care of the child often and they did not normally clarify how long the visit would be or when the child would be picked up or dropped off;

i) She thought the maternal grandmother would care for the child until she came back and that her the father’s partner was available for support if needed;

j) She felt comfortable leaving the child with her mother as she was family and she knew she would be comfortable in her care;

k) The maternal grandmother was aware she would be in India from February 26 to April 16, 2018. She maintained communication with the maternal grandmother through her sister who would the Facetime with her;

l) She returned to Canada on April 15 th or 16th and about 2 or 3 days later attempted to pick up the child but no one was home. She tried a few days later and there was no answer;

m) She was unaware of the exact days or times she went to the maternal grandmother’s home. She had no record of the calls she made to the maternal grandmother as she was likely using a “store phone”;

n) Her worker from Ontario Works told her to go pick up her child. She did not want to fight with the maternal grandmother when she would not return the child. She called the police for support;

o) She denied the allegations made by the maternal grandmother about her. She had no history of mental illness and she did not drink to excess;

p) She experienced challenges because she is a young mother;

q) She reported that the child was up to date with her immunizations and that all the important information about the child’s care was at her father’s home; and

r) She could not remember the name or address of the child’s doctor but she agreed to provide it once she had it. [ 34 ] In contrast to some of the statements made by the mother to Ms Madi, in the mother’s affidavit she deposes that she went to India with some of her family members as her cousin was extremely ill and to assist the family with her illness. She had told Ms Madi that she went because a family member had already died.

Her cousin died on April 6 th . [ 35 ] The mother also deposed that the maternal grandmother was aware that she had a ticket to return on April 16 th but might come back earlier depending on what happened with her cousin. The mother did not tell this to Ms Madi. [ 36 ] The mother also deposed that she did not immediately go to pick up her child when she returned from India because she was very ill and she spoke to her mother who agreed that the child could stay with her for a few more days.

Something she did not tell Ms Madi. [ 37 ] The mother deposed that she was in regular contact with her mother and spoke to her mother 2-3 times a week mainly through her sister. She deposed that she had much more contact with maternal grandmother than she described to Ms Madi. [ 38 ] On June 27, 2018, at a court attendance, Ms Madi introduced the mother to the family service worker, Jill St. Clair, who had been assigned to the family. She also asked if the mother was able to obtain the medical information about the child she had agreed to provide.

The mother provided the contact number for a walk-in clinic. [ 39 ] Despite the mother wishing to have the child returned to her care, she resisted any attempts by both Ms Madi and Ms St. Clair to arrange for her to attend a Family Centred Conference to discuss access visits and to come up with a plan for the child’s care. The mother stated that she wanted to resolve the matter in court. Later on she agreed to attend but only if maternal grandmother did not attend. [ 40 ] The mother has not worked co-operatively with the society. The mother cancelled many appointments with Ms St.

Clair to attend at her home as she deposes that she is not able to work with Ms St. Clair. [ 41 ] On March 4, 2019 Robin Kelly who is Ms St. Clair’s supervisor called the mother as she had received information that the

mother wished to change her worker. [ 42 ] On March 6, 2019, after Ms Kelly met with Ms St. Clair to address the concerns raised by the mother, Ms Kelly called the mother to discuss a change of workers. The mother said that she was not able to speak and that she would call her back. To date the mother has not called Ms Kelly. 5.

Summary of relevant evidence regarding access visits [ 43 ] The society’s evidence with respect to the mother’s access visits is set out in the affidavits of Ms Madi, Ms St. Clair and Melanie Nicoll. [ 44 ] Overall the workers observed that the mother interacted well with the child. The child was observed to be comfortable and vocal with her mother. They read together, drew together and played blocks. The child enjoyed the visits with her mother and asked for more time.

The mother was able to meet the child’s needs during the two hour visits with minimal assistance from the society workers who were supervising the visits. [ 45 ] The concerns throughout the society’s involvement have been with respect to the mother’s lack of consistency attending visits.

When the mother did not attend or was late, the child was always tearful, upset and confused as she was expecting to see her mother. [ 46 ] The mother initially was scheduled for access visits every Wednesday from 1:00 to 3:00 p.m. but as result of the mother’s inconsistency, the society then required her to call to confirm she was attending by 11:00 a.m. so the child was not brought to the visit unnecessarily. [ 47 ] As the mother’s inconsistent attendance continued, the society was not able to hold a time slot for her and the services of Ms Nicoll, the family support worker who supported the mother during the access visits, ended. [ 48 ] In the mother’s affidavit she does not offer any explanations for most of the missed visits other than stating that she believed she may have called to cancel a few more visits than the society noted. [ 49 ] However, the mother does explain that during the months of December and January, when the society documented that she did not attend any visits, it was her understanding that all of the office visits were cancelled as explained to her by Ms St.

Clair and that access would be in the community arranged between herself and the maternal grandmother. The mother then deposes that her mother would cancel the visits. [ 50 ] However, as deposed by Ms St. Clair this is the first explanation offered by the mother for those missed visits. The mother never called the society to clarify the access arrangements nor did she advise any society worker that her mother was not permitting access. [ 51 ] Further, Ms St.

Clair appended an email she sent to the mother on December 4 th , explaining that she would be away and that the mother was to call the administrative assistant at the society to confirm her visit. The email goes on to say that the mother could also arrange a community visit with the family support worker as long as the maternal grandmother was in agreement. [ 52 ] Ms St.

Clair then sent another email to the mother on January 4, 2019 asking that she call her as she saw that the mother had not seen her daughter since November 26 th and wished the mother to share her plan regarding visitation going forward. [ 53 ] The mother was again advised to confirm her visits on Wednesday by 11:00 a.m. and if visits were consistent for 3 weeks and things went well the society would consider permitting the mother to pick up her daughter directly from the maternal grandmother’s home. [ 54 ] The mother in her affidavit does not deny she received these emails. [ 55 ] A

summary of the visits is set out below. Month Total available visits Number of visits attended Number of visits not attended Comments July 2018 5 3 2 Child brought to visit and waited August 5 2 3 Due to non- attendance mother required to call to confirm visit – mother did not attend and did not call September 6 3 3 Mother no show or cancelled; 1 visit cancelled by society as mother not confirm

October 9 6 3 Mother no show or cancelled November 9 5 4 Mother no show and no call for 3 visits and maternal grandmother cancelled 1 visit December 9 0 0 Mother no show and not call January 2019 5 0 0 Mother no show and not call; letter sent access reduced to 1 week February 5 1 4 Mother no show and not call re missed visits March 5 4 1 Mother no show for 1 visit and late for 2 visits [ 56 ] In total the mother attended only 41% of the available visits. [ 57 ] At the court attendance on February 21, 2019 the parties agreed to an access plan for visits once a week to be gradually increased to full days from 11:00 a.m. to 7:00 p.m. with the pickup and drop off to be at the maternal grandmother’s home.

The visits were not to take place at either the paternal grandfather’s home or the mother’s home and the mother was to confirm the visits by emailing the maternal grandmother on Sunday. [ 58 ] The mother deposes that since February 27 th , she has attended all visits weekly from 11:00 a.m. to 7:00 p.m. [ 59 ] In her reply affidavit Ms St. Clair deposes that based on the information she has received the mother has not been exercising access regularly. However, that information is based on statements made to her by the maternal grandmother that cannot be admitted for their truth. [ 60 ] Ms St.

Clair deposes that she telephoned the mother on May 3 rd and sent her an email the same day advising her that she had been told by maternal grandmother that she had not shown up for her visits on April 28 th and asked her why she had not attended and to learn her version of events. [ 61 ] Ms St. Clair telephoned the mother again on May 6 th as she was told by maternal grandmother that the mother had again not shown up for her visit on May 5 th and asked that she call her to obtain her version of events. The mother did not respond to Ms St. Clair. 6.

Mother’s plan [ 62 ] It is the mother’s plan that the child be placed with her. She deposes that she was the child’s primary parent up to February 23, 2018. She denies that she abandoned her daughter. [ 63 ] She will continue to reside at her current address and her daughter will begin school this September at the local school. [ 64 ] The mother deposes that she has the support of her father and his partner, her sister and her grandparents. None of these people filed an affidavit on this motion. [ 65 ] The mother is studying to obtain her GED and will be her daughter’s full-time caregiver. 7.

Society’s plan [ 66 ] The kinship worker Tiffany Allison has attended at the home of the maternal grandparents and deposes that the child has a strong and healthy attachment to both grandparents. She further deposes that the grandparents are meeting all of the child’s emotional, physical, medical and day to day needs without any issues. [ 67 ] The society has no protection concerns with respect to the maternal grandparents. [ 68 ] The maternal grandparents have worked co-operatively with the society. [ 69 ] The maternal grandmother is prepared to facilitate access to the mother. 8.

Applicable legal considerations with respect to a finding of need of protection [ 70 ] The society seeks a finding of need of protection pursuant to sections 74 (2) (b) (

i) and (

k) of the CYFSA. Those provisions are as follows: 74 (2) (

b) there is a risk that the child(ren) is/are to suffer physical harm inflicted by the person having charge of the child(ren) or caused by that person’s (

i) Failure to care for, supervise or protect the child(ren) adequately.

74 (2) (

k) the child(ren)’s parent has died or is unavailable to exercise custodial rights over the child(ren) and has not made adequate provision for the child(ren)’s care and custody, or the child(ren) is/are in a residential placement and the parent refuses or is unable or unwilling to resume the child(ren)’s care and custody. [ 71 ] The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm. [ 72 ] The risk of harm must be real and likely and not speculative. [4] [ 73 ] Harm caused by neglect or error in judgment can come within a finding of risk of physical harm. [5] [ 74 ] With respect to the timing of the protection finding, I adopt the analysis of Justice Czutrin in the case of Children's Aid Society of Hamilton-Wentworth v.

K.R. and C.W. [6] wherein he states: the court should be free to consider whether the child is in need of protection at the commencement of the proceeding or at the hearing date, or for that matter some other date depending on the circumstances. There cannot be an absolute rule as to the relevant date. [ 75 ] In adopting this “flexible approach” Justice Carolyn Horkins recently explained in the case on Children's Aid Society of Toronto v. R.M . [7] : The type of risk that can lead to a child protection order is set out in s. 74 (2) of the CYFSA . It was also defined in the predecessor Act.

It is obvious from the legislation that “risk” can be caused by a variety of different circumstances and conduct. In many protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order.

It all depends on the facts. [ 76 ] As the court is being asked to make orders regarding both a finding and disposition, in accordance with section 93 (2) CYFSA, it is important that the court only consider evidence with respect to the finding and not the disposition at the first stage of this

summary judgment motion. 9. Applicable legal considerations regarding

summary judgment motion [ 77 ] Subrule 16 of the Family Law Rules ( FLR) applies to

summary judgment motions. [ 78 ] The burden of proof is on the party moving for

summary judgment. Pursuant to subrule 16 (4), the party moving for

summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. [ 79 ] Pursuant to subrule 16 (4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. [ 80 ] The responding party must put their best foot forward on the motion.

The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. [8] [ 81 ] Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [ 82 ] Subrule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial: 1.

Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. [ 83 ] Pursuant to subrule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. [ 84 ] In Hryniak v. Mauldin [9] , the Supreme Court of Canada set out a two-step process for determining whether

summary judgment should be granted. 1. The judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1). 2. If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact finding powers to decide if a trial is required. [ 85 ] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process: 1. allows the judge to make the necessary findings of fact 2. allows the judge to apply the law to the facts, and

3. it is a proportionate, more expeditious and less expensive means to achieve a just result. [10] [ 86 ] In the recent case of Kawartha-Haliburton Children's Aid Society v. M.W. [11] the Ontario Court of Appeal has clarified aspects of the application of the

summary judgment motion rule and the decision in Hryniak . At paragraph 63 the court states as follows : As the Supreme Court stated, at para 50 of Hryniak , “the standard of fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge the confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. Decades of jurisprudence --before and after Hryniak— have emphasized that fairness in a child protection

summary judgment motion necessitates caution and the need for the court to take into account special considerations. [ 87 ] The court further empathized that in child protection cases the court should be cautious in granting

summary judgment.

The court endorsed the view that in assessing if the society has met the onus on it showing there is no genuine issues requiring a trial, the phrase is equated with terms such as “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed”, and “where there is no realistic possibility of an outcome other than that sought by the society”. [12] [ 88 ] The court also noted that as applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. [ 89 ] The court noted that this cautionary approach also required a court to carefully assess the evidence.

The court approved the approach taken by Justice Stanley Sherr in Children's Aid Society of Toronto v. B.B. [13] as follows: I adopt the approach taken by Sherr J. in Children's Aid Society of Toronto v. B.B., 2012 ONCJ 646 at para. 25 : My view is that the court should not give weight to evidence on a

summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at

summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The

summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make determination. [ 90 ] The court summarized and clarified the approach that a court should take on

summary judgment motions in child protection proceedings at paragraph 80 as follows: 1. Hryniak's fairness principles for

summary judgment must be applied recognizing the distinctive issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child. 2. The burden of proof is on the party moving for

summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. 3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a

summary judgment motion that would be inadmissible at trial. 4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council. 5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children. [14] 10.

Application of legal principles to facts in this case [ 91 ] The society submits that it has met the onus on it to prove that the child is in need of protection based on the pattern of the mother being unavailable to care for the child before she left for India, the ongoing pattern of neglect by abandoning the child when she went to India for several months and then abandoning her again when she returned from India.

It is also submitted that the mother’s pattern of neglect continued due to her lack of attendance at access visits. [ 92 ] It is submitted that the mother has refused to communicate or work co-operatively with the society by refusing to meet with the work to discuss her plan. The mother has refused to permit that society worker to attend at her home as required by the regulations namely, that a worker must meet with a parent at a minimum once a month.

The mother only permitted the intake worker in June 2018 to attend at her home and thereafter denied all other attempts by the family service worker to meet at her home. [ 93 ] I agree with the submission of mother’s counsel that the mother’s lack of co-operation or communication with the society is only relevant to the issue of disposition. [ 94 ] I do not agree that the mother’s lack of attendance at access visits is only relevant to disposition.

I find that this evidence is also applicable to a finding of need of protection with respect to a finding of physical harm as it can be seen as a pattern of ongoing neglect. [ 95 ] A pattern of not exercising access consistently to a child may place that child at risk of emotional harm [15] . [ 96 ] Although a finding of need of protection due to risk of emotional harm was not sought by the society, the court has discretion to make a finding if it is justified by the evidence and the parent has had disclosure of the relevant evidence. [16] [ 97 ] In this case, the mother not exercising consistent access has always been a central part of the society’s case and the mother was made aware constantly of the society’s concerns about the effect on the child of her failure to maintain a regular visiting schedule.

[ 98 ] I agree with the position of the society that based on the admissible evidence that is, not the information it received from the maternal grandmother, that from May 8 th , 2018 when the maternal grandmother contacted the society to the June 7 th court attendance, the society had reasonable grounds to believe that the child had been abandoned by the mother.

Thereafter, there was a pattern of neglect due to the mother’s pattern of inconsistent access that could support a finding of both risk of harm due to abandonment and risk of physical harm. [ 99 ] I do not agree that the society has provided sufficient admissible evidence to support a finding that this was part of a pattern of neglect as of February 2018, when the mother left the child with the maternal grandmother or a pattern of neglect as of June 2017 when the Children's Aid Society of Peel attempted to contact the mother due to information it received. [ 100 ] There are credibility issues between the version of events told to the society by the maternal grandmother and the version of events as told by the mother.

Specifically there is conflicting evidence regarding the history that predates the commencement of this Protection Application, the context of the mother leaving the child with the maternal grandmother when the mother went to India and what transpired when the mother returned regarding her attempts to have the child returned to her care. [ 101 ] These issues of credibility cannot be resolved on the record before me largely as a result of the manner in which the society chose to present the information it received from the maternal grandmother.

There was no explanation by the society as to why an affidavit could not be prepared for the maternal grandmother especially when the maternal grandmother was self-represented. [ 102 ] While the society has submitted that it is not relying on the information it received from the maternal grandmother on this

summary judgment motion, that information is the foundation of the admissible evidence. The society workers relied on that information in their approach to the case and ultimately relied on the information in formulating their position that the child be placed in the care of the maternal grandmother.

Although I agree that the mother’s subsequent conduct in not attending access and refusing to communicate with the society worker reinforced the information the society received from the maternal grandmother nevertheless, the society still relied on the maternal grandmother’s statements in case planning. [ 103 ] There are credibility issues regarding the mother’s evidence as to whether or not she was aware that the children’s aid society was attempting to contact her in May and June before the first court attendance. [ 104 ] There are also credibility issues as to the number of access visits missed by the mother.

But those issues can be resolved on the record before the court. [ 105 ] Based on the evidence presented by the society that is corroborated by various letters and emails sent to the mother or based on the mother’s own admissions, I make the following findings of fact: 1. The Children's Aid Society of Peel based on information it received in June 2017 planned to meet and interview the mother; 2. The mother left the child with the maternal grandmother from February 26, 2018 as she was travelling to India; 3. The society became aware on May 8, 2018 that the child was with the maternal grandmother; 4.

The society attempted to contact the mother from May 8 th to June 5 th , 2018; 5. The mother did not respond to the many attempts by the society to contact her; 6. From the society’s perspective, the mother had abandoned the child; and 7.

The mother did not attend access consistently and provided no logical explanation for her many missed visits. [ 106 ] It is submitted by the society that simply based on the facts I have accepted that it has met its onus to prove the child was in need of protection at the commencement of the Protection Application and continued to be in need of protection based on the mother’s ongoing lack of attending access. [ 107 ] A finding of need of protection can have profound implications. [ 108 ] As set out in the Kawartha decision, even if the mother’s evidence does not establish a genuine issue for trial, the court must still be satisfied that on the evidence before the court that the society has established that there is no genuine issue for trial. [ 109 ] The court is obligated to carefully screen the evidence and having done so, I find that the court will need to hear the evidence of the maternal grandmother. [ 110 ] It also strikes me as fundamentally unfair to the mother that the society is relying on information it received from the maternal grandmother but that her evidence cannot be scrutinized by the court or by the mother’s counsel. [ 111 ] I have considered that the mother’s Charter rights are engaged in any case that involves state interference.

No specific evidence was presented on this issue. But I note that the mother is young (she was only 17 years old when the child was born) and she is a single parent. Mother’s counsel submits that the mother is “marginalized” although no evidence was provided about the mother’s background.

Nevertheless, the mother is entitled to have all of the evidence presented carefully scrutinized and the right to confront her accuser which from her perspective is the maternal grandmother. [ 112 ] The next issue for the court to determine is how that evidence should be received by the court. [ 113 ] The court has three options, namely whether to hold a “mini-trial” pursuant to subrule 16 (6.2), set up a traditional trial, or give directions for a focused hearing pursuant to subrule 16 (9).

[ 114 ] These options were discussed by Justice Sherr in Catholic Children's Aid Society of Toronto v. A.M., [17] as follows at paragraphs 94-98: There may be some circumstances where this [a mini-trial] will be the best option to determine a

summary judgment motion. For instance, where there is a narrow factual issue in dispute and the court needs to assess credibility. Another instance might be where the court is leaning towards a finding that there is no genuine issue requiring a trial, but wants to hear from a party or particular witness before making this determination. In such circumstances, a short hearing can usually be arranged quickly and can assist the court in determining whether there is actually a genuine issue requiring a trial. However, there are limitations to this option.

If the court holds a mini-trial pursuant to subrule 16 (6.2), it cannot make a final determination of the disposition issue unless it finds that there is not a genuine issue requiring a trial. If this determination is not made, this means that there is going to have to be a second hearing scheduled to hear further evidence. This would create considerable delay for children and place additional stress on an already burdened system that struggles to provide timely trials for children.

In this case, it is possible that with focused oral evidence and cross-examination of the family service worker and the mother that the court would find that there is no genuine issue requiring a trial on the issue of disposition. However, if this finding is not made (which is also a real possibility) the child's future would be delayed while a second hearing has to be scheduled. This is not an attractive option. A second option is to send the case for a conventional trial.

This is not the best option in this case as many material facts are not in dispute or were only baldly denied on this motion and this court is well-situated to make these findings of facts, define the outstanding issues and give directions to assist in the organization of the trial. The third and preferred option is to apply subrule 16 (9) of the rules and send the case to trial for a structured hearing of the remaining issues in dispute.

The advantage of this process will be that the court can determine the disposition issue on a balance of probabilities, as opposed to the more restrictive "no genuine issue requiring a trial" test. It avoids the possibility of two hearings on the same issue. This option will reduce delay and ensure an earlier resolution for the child. This is the course that the court will follow. [ 115 ] I have also considered a fourth option that is, to simply dismiss the

summary judgment motion. However, this option will waste the valuable resources of both the court and counsel due to the time already devoted to the preparation of materials and the time already spent. The court has already been able to make significant findings of fact that would then have to be adjudicated upon if the

summary judgment motion was dismissed a trial scheduled. [ 116 ] Subrule 2 (2) and

(3) FLR mandates the court to deal with cases justly that includes saving expenses and time and giving appropriate court resources to the case while taking into account the need to give resources to other cases. [ 117 ] Simply dismissing the

summary judgment motion will delay the proceedings as the case will then be adjourned to the next assignment court on August 13, 2019 and then not heard until the two week trial sittings commencing on September 16, 2019.

There is also no guarantee that the trial would be reached as it would not have the priority of an extended care trial. [ 118 ] I find that a focused trial with oral evidence is necessary to supplement the evidence already provided. [ 119 ] The first issue to be determined is whether or not there should be a finding that the child is in need for protection. [ 120 ] On this issue I find that the court will only require the evidence of the maternal grandmother and the mother. This can be easily heard in a focused trial for one day or less.

The society can either prepare an affidavit for the maternal grandmother or she can provide her direct evidence orally. She will be subject to cross-examination. The mother’s evidence is already before the court but can be updated by her counsel and she will be then be subject to cross-examination. [ 121 ] If there is no finding of need for protection, the Protection Application will be dismissed and the child will be returned to the care of the mother. [ 122 ] However, if there is a finding of need for protection, then the next phase of the focused hearing would be with respect to a disposition.

The court will rely on all of the evidence already filed with the court that applies to disposition. However, it may be that counsel will request that the court also hear some brief oral evidence on this issue. [ 123 ] Counsel should immediately contact the trial coordinator to arrange a telephone conference call with myself for further directions and setting a hearing date. I expect that the hearing date will be set within the next month and that counsel will make themselves available. 11. Order 1. On consent, the statutory findings are made. 2. This

summary judgment motion shall proceed as a focused hearing in accordance with subrule 16(9) FLR. 3. Counsel shall immediately contact the trial coordinator to arrange a telephone conference call with myself for further direction and to obtain a hearing date within the next month. Released: May 29, 2019

Signed: Justice Roselyn Zisman