



WARNING

Prohibitions under the
Child, Youth and Family
    Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to this decision:

Prohibition re identifying child

87(8)
No person shall publish or make public information that
    has the effect of identifying a child who is a witness at or a participant in a
    hearing or the subject of a proceeding, or the childs parent or foster parent
    or a member of the childs family.

Prohibition re identifying person charged

87(9)
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.

Transcript

87(10)
No person except a party or a partys lawyer shall be
    given a copy of a transcript of the hearing, unless the court orders otherwise.



Offences
    re publication

142 (3)
A person who contravenes subsection 87 (8) or
    134 (11) (publication of identifying information) or an order prohibiting
    publication made under clause 87 (7) (c) or subsection 87 (9), and a director,
    officer or employee of a corporation who authorizes, permits or concurs in such
    a contravention by the corporation, is guilty of an offence and on conviction
    is liable to a fine of not more than $10,000 or to imprisonment for a term of
    not more than three years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION: Childrens Aid Society of Algoma v. G.C., 2021 ONCA
    400

DATE: 20210610

DOCKET: C69175

Doherty, Trotter and Thorburn
    JJ.A.

BETWEEN

Childrens Aid Society of Algoma

Applicant/Respondent

(Respondent)

and

G.C.

Respondent/Appellant

(Appellant)

and

C.P., S.B., and Conseil des Abenakis DOdanak

Respondents

(Respondents)

Eric McCooeye, for the appellant

Jennifer Mealey, for the respondent Childrens Aid
    Society of Algoma

No one appearing for the respondent C.P.

No one appearing for the respondent S.B.

No one appearing for the respondent Conseil des Abenakis
    DOdanak

Catherine Bellinger and Liisa Parisé, for the respondent
    Office of the Childrens Lawyer

Heard: June 2, 2021 by video conference

On appeal from the order of Justice
    Annalisa S. Rasaiah of the Superior Court of Justice, dated February 3, 2021, dismissing
    an appeal from the order of Justice John Kukurin of the Ontario Court of
    Justice, dated November 3, 2019.

REASONS FOR DECISION

[1]

The Childrens Aid Society of Algoma (the Society) applied to have three
    of the appellants children found to be in need of protection on the grounds
    that they are at risk of sexual harm on account of their father under s.
    74(2)(d) of the
Child, Youth and Family Services Act, 2017
, S.O. 2017,
    c. 14, Sched. 1. (the 
CYFSA
). The motion judge made this finding on a summary
    judgment motion. Orders as to supervision and access have yet to be made.

[2]

The appellants first appeal of this order, brought pursuant to s. 121
    of the
CYFSA
, was dismissed. He appeals that decision to this court:
Courts
    of Justice Act
, R.S.O. 1990, c. C-43, s. 6(1).

[3]

For the reasons that follow, the appeal is dismissed.

Background

[4]

The appellant is the biological father of three children: K.P, born in
    2008; O.C., born in 2013; and J.H.C., born in 2015. K.P.s mother is C.P.,
    while O.C. and J.H.C.s mother is S.B.

[5]

The Society brought child protection applications in respect of each
    child: K.P.s was brought on the grounds of actual sexual harm and risk of
    sexual harm in 2013; the other two applications were based on risk of sexual
    harm shortly after each child was born. All three applications were ordered to
    be tried together.

[6]

The appellant has not been convicted of any sexual offences, though
    charges have been laid against him twice. He was charged with historical sexual
    offences against two pre-teen girls, but the charges were stayed for delay.
    Later, the appellant was charged with sexual offences against K.P., but the
    Crown withdrew the charges. Since 2013, two other women have made sexual
    misconduct allegations against the appellant. Both alleged the misconduct
    occurred when they were under 18.

[7]

Well before the summary judgment motion, the appellant was ordered to
    undergo a psychosexual assessment. This assessment involved phallometric
    testing. The assessor, Dr. Robert Dickey, was of the opinion was that the
    appellant suffers from pedohebephilia.

The Summary Judgment Motion

[8]

In support of its motion for summary judgment, the Society relied on voluminous
    materials, including the appellants psychosexual assessment and affidavit
    evidence from three complainants who alleged historical sexual assault.
[1]
The motion was only concerned with the risk of sexual harm (s. 74(2)(d) of the
CYFSA
).
    The motion judge concluded there was no genuine issue requiring a trial to
    determine this question. He made the finding under s. 74(2)(d).

[9]

The motion judge delivered extensive and detailed reasons in which he considered
    his jurisdiction to grant summary judgment, as well as the proper approach to
    summary judgment motions in child protection cases mandated in
Kawartha-Haliburton
    Childrens Aid Society v. M.W.
, 2019 ONCA 316, 432 D.L.R. (4th) 497. He
    sifted through a considerable body of documentary evidence and made many
    admissibility determinations. As a result of this process, the motion judge
    based his finding on the first-hand affidavits of three adult women who
    reported events from many years ago when they were between the ages of 9 and
    12, a willsay statement (and an accompanying police occurrence report) from
    another woman describing historical sexual abuse, the psychosexual assessment,
    and the appellants response.

[10]

The
    motion judge analyzed this evidence through the lens of
Kawartha-Haliburton
and concluded, at para. 146:

In summary, I conclude that the society has provided sufficient
    evidence for me to conclude that there is no genuine issue that requires a
    trial with respect to whether the [appellant] is a risk of sexual harm to his
    three children. I arrive at this conclusion cautiously realizing that to do
    otherwise is contrary to the directive guidance of the appellate court in the
Kawartha
case. I am satisfied that, if a trial were held on this issue of a finding in
    need of protection on account of a risk of sexual harm, the same result would
    be inevitable and there would be no realistic possibility of an outcome other
    than that sought by the applicant society. I am confidant that I have used
    extreme caution to assess the admissibility of various pieces of evidence
    presented on this summary judgment motion and have rejected what is
    inadmissible in law, and have given appropriate judicial weight to what is
    admissible, again in law. I have gauged the admissible evidence on both sides,
    and have given reduced weight where deserved. I have applied the
    jurisprudential principles that have been established over several decades and
    that still apply to summary judgment motions in child protection cases. I have
    applied these to the [appellants] responses to this motion and have found that
    he has not established with specific facts, that there is a genuine issue that
    requires a trial. Finally, I have been able to reach what I consider a fair and
    just determination on the merits on a motion for summary judgment.

[11]

The
    appellant raised numerous issues on his first appeal, all of which were
    dismissed. In a nutshell, the appeal judge determined that the motion judge
    adopted the proper approach to the summary judgment power in child protection
    proceedings, appropriately framed the issue before him, made no errors in his
    evidentiary rulings, and properly weighed and assessed the evidence he
    admitted.

Analysis

[12]

The
    appellant raised many of the same issues from his first appeal on this appeal.
    However, at the hearing of this appeal, he focused on one ground  whether the
    motion judge and the appeal judge properly considered the principle of
    proportionality in the summary judgment proceeding.

[13]

The
    appellant submits that, given the significant consequences of a finding under
    s. 74(2)(d) of the
CYFSA
, the summary judgment procedure is an
    unsuitable vehicle for adjudication. He submits that the judges below failed to
    appreciate the unfairness in proceeding in this manner. Principally, the
    appellant relies on his inability to cross-examine the affiants who made
    allegations of sexual impropriety against him. He also criticizes the appeal
    judges approach to certain findings made by the motion judge, specifically, those
    that related to the credibility of witnesses.

[14]

The
    appellant originally indicated his intention to cross-examine two of the female
    affiants. This request was subsequently abandoned without explanation. Before this
    court, appellants counsel submits that the request was abandoned because the
    appellant could not afford the costs associated with cross-examining witnesses
    in different parts of the province and then obtaining transcripts of their
    evidence. However, this was not put on the record before the motion judge; it
    was not raised with the appeal judge. Accordingly, there is no foundation for
    this court to evaluate this claim.

[15]

Nonetheless,
    assuming impecuniosity, relief might have been obtained in the summary judgment
    provision in the
Family Law Rules
, O. Reg. 114/99. These rules apply to
    proceedings under Parts V, VII, and VIII of the
CYFSA
: r. 1(2)(a)(ii). Rules
    16(6.1) and (6.2) gives a judge hearing a summary judgment motion the following
    powers:

POWERS

(6.1) In determining whether there is a genuine issue requiring
    a trial, the court shall consider the evidence submitted by the parties, and
    the court may exercise any of the following powers for the purpose, unless it
    is in the interest of justice for such powers to be exercised only at a trial:

1.

Weighing the
    evidence.

2.

Evaluating the
    credibility of a deponent.

3.

Drawing any
    reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

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

For an example of the use of a mini-trial in this
    context, see
The Childrens Aid Society of the Districts of Sudbury and
    Manitoulin v. V.T.
, 2018 ONCJ 220, at paras. 10-12.

See also r. 20: Questioning
    a Witness and Disclosure.

[16]

It
    was open to all counsel on the motion to request that the motion judge direct a
    mini-trial and order that certain witnesses be required to give oral evidence.
    This was not done.

[17]

The
    appellant submits that the appeal judge erred by approving the motion judges
    approach to assessing the evidence in relation to the evidence of one of the
    affiants. In the face of the affiants evidence, the motion judge said, at
    para. 94: The [appellants] response to these allegations  is that he does
    not have any knowledge of the events described  and has no memory of them, but
    nevertheless denies the incident and any wrongdoing. Later in his reasons, the
    motion judge returned to the affiants evidence, saying it was very
    persuasive, basically uncontradicted, and not seriously attacked by [the
    appellant]: at para. 130. He explained that the appellant had the opportunity
    to cross-examine the affiant, but chose not to follow through, despite the fact
    the evidence was very damaging to him. Instead, the appellant merely denied
    the allegation happened. But in this case, a denial was not enough.

[18]

The
    appellant submits the motion judge improperly found the affiants evidence was
    uncontradicted and that the appellants denial of wrongdoing was not enough.
    He says there are circumstances where a denial may be the only option, as it
    may be impossible to provide specific facts to rebut the allegation. As a
    result of this error, the motion judge wrongfully gave enhanced weight to the
    affiants evidence.

[19]

The
    appellant had made similar submissions to the appeal judge  that the motion
    judge erred in finding the appellants denial was insufficient to contradict
    the affiants evidence and in giving the evidence enhanced weight. In
    addressing this submission, the appeal judge referred to r. 16(4.1), which
    provides:

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

[20]

Turning
    to the motion judges decision on this issue, the appeal judge said, at paras.
    54-55:

Contrary to the appellants position, [the motion judge]
    expressed and acknowledged that he appreciated that sometimes a denial in some
    circumstances may be the only reasonable response and perhaps the only possible
    response.
However, in this case, he concluded that [the affiants] evidence
    was not seriously attacked by [the appellant], when he had the opportunity to
    do so, putting your best foot forward is required on a summary judgment motion
.



It was not incorrect to address that [the appellant] was fully
    aware of his right to cross-examine the affidavits and had previously taken
    steps in the proceeding for same, only to have abandoned them.
I do not
    agree that [the motion judge] expressed that the evidences weight was enhanced
    or that he enhanced same for a failure to seek a cross-examination of the
    evidence filed on the motion before the hearing of it.
[Emphasis added.]

We agree with this reasoning. It was open to the
    motion judge to deal with evidence in the manner that he did.

[21]

The
    appellant made numerous other submissions in his factum. Some of them deal with
    the general approach of the motion judge and the appeal judge to summary
    judgment in child protection proceedings; others attack admissibility decisions
    and the weighing of the evidence that was admitted.

[22]

We
    agree with the appeal judge that the motion judge applied the correct test for
    summary judgment and that the motion judges reasons demonstrate a proper
    application of the principles discussed in
Kawartha-Haliburton
.

[23]

As
    for the appellants complaints about the admissibility of various pieces of
    evidence, we agree with the appeal judge when she said, at para. 50:

Further, the reasons demonstrate that
[the motion judge]
    applied a cautious approach to the evidence
, carefully screening the
    voluminous record,
making admissibility rulings against a significant
    portion of [the Societys] filings
, including affidavits that [the
    appellant] would describe as overpowering and written by professional
    affidavit writers, that would create imbalance. [Emphasis added.]

[24]

After
    ruling that the bulk of the evidence presented by the Society was inadmissible,
    the motion judge engaged in a careful balancing of what remained. Rule 16
    permitted the motion judge to make findings of credibility and to weigh the
    evidence of the affiants, and his conclusions are entitled to deference. The evidence
    that he accepted formed a proper foundation for his finding under s. 74(2)(d)
    of the
CYFSA
.

Disposition

[25]

The
    appeal is dismissed. None of the parties seek costs. Accordingly, no costs order
    is made.

Doherty J.A.

Gary Trotter J.A.

J.A. Thorburn J.A.





[1]

Two of these women were the complainants who made the
    historical allegations that resulted in a stay, referred to in para. 6.


