



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

(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

(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: L.M. v. Peel Children's Aid Society, 2019 ONCA 841

DATE: 20191025

DOCKET: C66744

Hoy A.C.J.O., Tulloch and Jamal JJ.A.

BETWEEN

L.M.

Appellant/Respondent
(Appellant)

and

Childrens Aid Society of the Region of Peel

Respondent/Moving Party
(Respondent)

and

Office of the Childrens
    Lawyer

Respondent/Independent Party
(Respondent)

Jessica Gagné, for the appellant L.M.

Laura Shaw and Jenna Persaud, for the Childrens Aid
    Society of Peel Region

Ian Ross and Martha Heder, for the Office of the
    Childrens Lawyer

Heard: September 9, 2019

On appeal from the order
    of Justice Jamie K. Trimble of the Superior Court of Justice, dated March 15,
    2019, with reasons reported at 2019 ONSC 1566, dismissing an appeal from the
    order of Justice Patrick W. Dunn of the Ontario Court of Justice, dated January
    30, 2018.

Jamal J.A.:


I.

introduction

[1]

This appeal addresses the use of summary judgment to decide whether children
    should be placed in extended society care (formerly known as Crown wardship)
    and whether a birth parent should be given access to children in extended
    society care under the newly-enacted
Child, Youth and Family Services Act,
    2017
, S.O. 2017, c. 14, Sched. 1 (
CYFSA

). This court
    recently addressed some of these issues in
Kawartha-Haliburton Childrens
    Aid Society v. M.W.
, 2019 ONCA 316, 432 D.L.R. (4th) 497.

[2]

The
CYFSA
made major changes to the statutory scheme for child
    protection in 2018 by, amongst other things, significantly expanding the test
    for access to children in extended society care by focussing on the best
    interests of the child and respect for the childs views and wishes, and by
    emphasizing the special considerations that apply to children of Indigenous
    heritage:
Kawartha
, at para. 4.

[3]

In this case, at first instance, the Ontario Court of Justice granted summary
    judgment to make the three young children of the appellant L.M. (the mother
    or appellant) Crown wards without access to her under the former
Child
    and Family Services Act
, R.S.O. 1990, c. C.11 (
CFSA
), which was
    in force at the time. In deciding against access, the motion judge took judicial
    notice that many if not most adoptive parents would not want relations with a
    birth parent, and would not proceed with an adoption if there was an access
    order.

[4]

The Ontario Superior Court affirmed this decision and again applied the
CFSA
 though by the time of the appeal hearing the
CFSA
had been repealed
    and replaced with the
CYFSA
. The appeal judge also relied on the Divisional
    Courts decision in
Kawartha-Haliburton Childrens Aid Society v. M.W.
,
    2018 ONSC 2783, on the approach to summary judgment in child protection matters
     a decision that was later overturned by this court. The appeal judge
    acknowledged that judicial notice could not be taken of the fact that an access
    order would impair the childrens prospects for adoption, but reached the same
    conclusion by relying on common sense and informed experience.

[5]

For the reasons that follow, I would allow the appeal in part. The
    appeal judge applied the wrong legal framework by relying on the
CFSA
and the principles stated in the Divisional Courts decision in
Kawartha
,
    rather than the
CYFSA
and this courts subsequently released decision in
Kawartha
.

[6]

Applying the correct legal framework to the motion judges undisputed child-protection
    findings, I conclude that it is still appropriate to place the children in
    extended society care.

[7]

With respect to the access issue, having concluded that the test for
    judicial notice was not met, it was an error of law for the appeal judge to rely
    on common sense and informed experience to conclude that access would
    necessarily impair the childrens adoption prospects. Facts that are not
    subject to judicial notice should generally be established by direct evidence
    or admissions.

[8]

Moreover, fresh evidence tendered by the Office of the Childrens Lawyer
    (OCL) suggested that an access order would not, as a general matter, impair
    the childrens adoption prospects. However, it is not necessary to rule on the admissibility
    of this evidence in view of the concession on appeal of the Childrens Aid
    Society of the Region of Peel (Peel CAS) that some form of access between the
    appellant and the children would be in the childrens best interests.

[9]

I would therefore order that the appellant be provided with access to
    the children. As the evidence in the record is insufficient for this court to
    address the nature or extent of that access, I would remand those issues to the
    Ontario Court of Justice to be determined on an expedited basis.


II.

Background Facts

[10]

The
    appellant is the mother of three young children who have been involved with
    various Childrens Aid Societies for most of their lives: R.D., aged 9, who has
    autism; S.S., aged 4; and E.M., aged 3.

[11]

R.D.
    was born in April 2010 and was soon apprehended by the Toronto Childrens Aid
    Society (Toronto CAS). In December 2011, the Ontario Court of Justice found R.D.
    to be in need of protection under the
CFSA
because of a risk of physical
    harm and sexual molestation. The court found that:

·

the appellant has limited intellectual abilities and did not know
    that she was pregnant until her ninth month of pregnancy (thus limiting her prenatal
    care);

·

the appellants doctor had advised that she would need parenting
    classes and may be unintentionally neglectful of her child; and

·

R.D.s father was a convicted sex offender who had abducted,
    confined, and raped a 15-year-old girl with his brother, and posed a high risk
    for recidivism, especially with children. The appellant also admitted that another
    former boyfriend was a paedophile and had assaulted children in front of her,
    but she had not contacted the police.

[12]

The
    court found ample evidence that the appellant posed child protection concerns.
    For example, during an assessment visit with the Toronto CAS, the appellant dropped
    a glass bottle of baby food, which broke, and then tried to remove shards of
    glass in order to salvage R.D.s lunch. The court found that the appellant seems
    blind to protection concerns that are around her, or that she generates by her
    own behaviour.

[13]

In
    February 2012, the appellant married E.S. Her first child, R.D., was returned
    to her care and the care of E.S., with E.S. as the principal caregiver, under
    the supervision of the Toronto CAS.

[14]

In February
    2014, the family moved to Halton Region, and the Halton Childrens Aid Society
    (Halton CAS) assumed jurisdiction.

[15]

In
    February 2015, the appellants second child, S.S., was born.

[16]

In
    November 2015, E.S. died of a sudden heart attack. Following his death, the
    appellant moved with her two children to her aunts home in Peel Region.

[17]

In
    December 2015, the Halton CAS obtained a temporary order placing the children, R.D.
    and S.S., under the Halton CASs supervision and requiring the appellant to
    live with her aunt and to not be alone with the children for more than five
    hours per week. The Peel CAS also became involved in monitoring the childrens
    placement with her aunt.

[18]

In
    April 2016, the appellant accidentally burned S.S. (then about one-year old) on
    her face while removing a hot tray from the oven with her in a front-facing
    baby carrier. The appellant did not take S.S. to the doctor for several days, even
    though her aunt repeatedly urged her to do so. The appellant initially blamed
    R.D. for causing the burns, but later admitted that it was her fault.

[19]

The
    aunt ultimately asked the appellant and her children to move out by mid-May 2016
    because R.D. was disruptive and hard to control. The appellant planned to move
    in with J.M., with whom she had begun a relationship in early 2016.

[20]

Before
    she did so, the Peel CAS apprehended the children and placed them in its care, with
    supervised access to the appellant twice per week. The same day, the appellant moved
    in with J.M. and his three children.

[21]

In
    June 2016, the appellants third child, E.M. (whose father was E.S.), was born.
    The Peel CAS apprehended him and placed him in a foster home.

[22]

In
    August 2016, the appellant married J.M., who sometimes accompanied her on
    access visits with the children.

[23]

In
    May 2017, the Peel CAS served applications to have the three children made
    Crown wards without access. The Peel CASs motion for summary judgment was
    heard in November 2017.

III.

Prior decisions

(1)

Ontario Court of Justice

[24]

The
    appellants position on the summary judgment motion was that her three children
    should be placed with her and J.M. under supervision. The position of the OCL (which
    represented only the two eldest children, who were old enough to express
    preferences) was that the children should be made Crown wards with no access to
    the appellant but with access to each other.

[25]

In
    January 2018, the motion judge granted summary judgment and made the children
    Crown wards without access.

[26]

The
    motion judge noted that all three children had been in care for longer than the
    statutory timelines under s. 70 of the
CFSA
and could not remain in
    care any longer: R.D. for over 4½ years, and S.S. and E.M. for almost 1½ years.
    The only options were to make the children Crown wards or to return them to the
    appellant, with or without supervision. Almost two more years have passed since
    the motion judges decision.

[27]

The motion
    judge found, on consent, that S.S. and E.M. were in need of protection. As the
    parties disputed whether R.D. was still in need of protection, the court
    reviewed the evidence as to the appellants and J.M.s parenting abilities.

[28]

The
    motion judge relied on the affidavits of five caseworkers who supervised a
    total of 74 access visits between April 2016 and July 2017 and attended at the
    appellants home. The evidence showed that while the appellant had some
    strengths, there were reocurring themes of absence of caregiving skills.

[29]

The motion
    judge made numerous child-protection findings. He noted that any one of his
    concerns did not justify removing the children from the appellant and that in other
    cases such concerns might be addressed. But that was not the case here. In over
    17 months of supervised access, there were no signs of improvement in any of
    them, but rather a pattern of neglect and harm by omission:

·

The appellant could not supervise all three children alone.
She required constant support and was often unaware that one child had wandered
    off. She often placed R.D. in charge of his siblings when she left the room, even
    though he suffered from attention deficit hyperactivity disorder, oppositional
    defiant disorder, autism spectrum disorder, and a learning disability. CAS
    workers frequently intervened during access visits to ensure the childrens
    safety. While J.M. helped when he was around, he was not a consistent support
    and did not get along with R.D.

·

The appellant did not consistently recognize safety concerns
    and required constant basic instructions and safety reminders.
This was an
    important  if not the most important  concern. There were numerous instances
    where the children were at risk in the appellants care, even in supervised
    settings.

·

The appellant consistently failed to read, match, and respond
    to her childrens needs.
Examples included missing feeding cues and
    becoming frustrated with R.D. when he requested attention.

·

The appellants constant struggles with hygiene placed the
    children at risk of disease.
Washing facilities in J.M.s house were
    inadequate, as the shower and sink in the bathroom did not work. Despite the
    counselling of CAS workers, the situation never improved. The appellant could
    not address her own personal hygiene or teach her children effective hygiene.

·

The appellants consistently unsanitary residence posed a
    health risk for the children.
On scheduled visits, the residence was
    consistently very dirty and unsanitary, with garbage and clutter around the
    living area; on unscheduled visits, the residence was in a deplorable state, including
    instances of garbage, clutter, filthy carpets, dirt, exposed wires and foul
    odours, reflecting J.M.s poor self-management and self-care skills. Despite
    repeated warnings, the appellant and J.M. did not clean or make their house
    safe and it would be posing a health risk to the children if they lived there.

·

The appellant sometimes had difficulty putting her childrens
    needs ahead of her own.
While she could be attentive to her children, often
    she was not: she missed access visits because she stayed up too late, took smoke
    breaks and left supervisors to care for her children, and used visits to talk
    to the supervisors rather than to her children.

·

The appellant had limited cognitive ability, with intellectual
    functioning permanently in a low range of capacity.
Taken alone this was
    not determinative, as many intellectually-challenged individuals can be very
    effective parents. Unfortunately, however, the appellant was not one of those
    people, nor was she assisted by another able caregiver.

·

Because of her limitations, the appellant had never parented
    alone and had always been assisted by others.
Her current spouse J.M. has
    also had serious parenting issues.

·

J.M. was not an effective co-parent.
He missed many access
    visits with the appellant, and when he did attend, he was often disengaged. He
    also did not have a good history of parenting his other children. The Peel CAS
    had an open file on his 13-year-old son, who had missed large amounts of school
    without good reason, read well below his grade level, wore dirty clothes and
    had poor personal hygiene, and whose asthma was aggravated by the poor sanitary
    condition of J.M.s house. The motion judge found that J.M. cannot be trusted
    to facilitate learning by the appellants three children and that they would
    not be safe in the appellants and J.M.s care.

·

The appellant was sometimes dishonest.
Examples included when
    she burned S.S. (initially blaming her son) and refused to take her for medical
    treatment for several days, and when she prevaricated about her smoking and household
    cleaning. The motion judge found that [t]ruthfulness of a parent is very
    important when s/he is under a supervision Order. If the parent cannot be
    trusted to tell the truth, any child in that parents care is at risk.

[30]

The
    motion judge also concluded that there was no triable issue as to whether the
    appellant should be provided with access to the children. He noted that s.
    59(2)(2.1) of the
CFSA
provided that a court shall not make an access
    order under s. 58 with respect to a Crown ward unless the court is satisfied that
    the relationship between the person and the child is beneficial and meaningful
    to the child (s. 59(2)(2.1)(a)), and that access will not impair the childs
    future opportunities for adoption (s. 59(2)(2.1)(b)).

[31]

The motion
    judge found that the appellants existing relationship with her children did
    not deliver a significant positive advantage to any child, and that it was the
    obligation of [the appellant] to establish that there should be an access
    Order, and she did not do so. He also found that while there were no
    prospective adoptive parents at present, the court could take judicial notice
    that many if not most adoptive parents would not want relations with a birth
    parent, and would not proceed with an adoption if there was an access order.
    He therefore refused the appellant access because she had not proved that the
    childrens prospects for adoption would not be impaired by access.

[32]

The
    motion judge therefore granted summary judgment and made the children Crown
    wards without access. He noted that he was not asked to decide sibling access
    after ordering Crown wardship and did not do so.

(2)

Appeal to the Ontario Superior Court of Justice

[33]

The
    appeal was argued in December 2018 and dismissed in March 2019. The appeal
    judge noted that both the original motion and the appeal were argued under the
CFSA
,
    which was in force when the motion judges decision was released. The appeal
    judge noted that nobody had argued that the
CYFSA
, which was in force
    as of April 30, 2018, applied to the appeal. He then proceeded to apply the
CFSA
.

[34]

The appeal
    judge held that the motion judge applied the correct test to determine Crown
    wardship by way of summary judgment, as set out in the Divisional Courts
    decision in
Kawartha
. The appeal judge found that
Hryniak v.
    Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, had made summary judgment more
    available in all areas of the law, including child protection. Like the
    Divisional Court in
Kawartha
, the appeal judge concluded that the pre-
Hryniak
authorities applying a higher standard for summary judgment in child protection
    cases were no longer good law.

[35]

The
    appeal judge noted that, by virtue of s. 59(2.1) of the
CFSA
, the appellant
    bore the burden of proof to obtain post-Crown wardship access: to show on a
    balance of probabilities that she and the children have a beneficial
    relationship and that a continued relationship with her would not interfere
    with their adoption.

[36]

The
    appeal judge also held that the motion judge did not err in finding that most
    adoptive parents would not proceed with an adoption if the birth parents have
    an access order. The appeal judge noted that there was some evidence to support
    this observation, and that it was common sense and reflected the informed
    experience of courts dealing with adoption matters.

(3)

The appellant has had ongoing access to the children

[37]

Since
    January 2018, when the order for Crown wardship without access was made, the appellant
    has had weekly access visits with the children at the offices of the Peel CAS with
    its consent.

[38]

On
    April 29, 2019, this court issued a consent order allowing the appellant to continue
    these weekly access visits pending the disposition of this appeal.

IV.

Issues on Appeal

[39]

The
    appellant raised seven issues, but they reduce to two core questions:

1.

Did the appeal judge err in upholding the motion judges decision to
    grant summary judgment to make the children Crown wards?

2.

Did the appeal judge err in upholding the decision to deny the appellant
    access to the children?


V.

Analysis

(1)

Did the appeal judge err in upholding the motion judges decision to grant
    summary judgment to make the children Crown wards?

[40]

Like
    the motion judge, the appeal judge determined the issue of Crown wardship by
    applying the
CFSA
rather than the
CYFSA
, and applied the Divisional
    Courts decision in
Kawartha
regarding the principles of summary
    judgment in child protection matters. In my view, the appeal judge erred in law
    in both respects.

(a)

The
CYFSA
 not the
CFSA
 applied to the appeal

[41]

First, the appeal court erred by applying the
CFSA
rather than the
CYFSA
.

[42]

The appeal was heard on December 10, 2018, but the
CYFSA
had come into force and replaced the
CFSA
on April 30, 2018. A
transitional regulation, O. Reg. 157/18, which came into force the
    same day, provides at s. 11(1) that [a] proceeding commenced under Part III of
    the old Act but not concluded before the day this section comes into force is
    continued as a proceeding commenced under Part V of the Act.

[43]

This court in
Kawartha
recently interpreted this
    transitional regulation and applied the
CYFSA
to an appeal where the
    proceeding had been commenced under the
CFSA
. This court concluded
    that the Divisional Court erred in applying the
CFSA
where its decision was
    released a week after the
CYFSA
came into force: paras. 5, 42. This court
    held that a proceeding is not concluded until a decision is rendered,
    including any appeals: at para. 41. This conclusion was supported by the plain wording
    of the transitional regulation, the paramount purpose of the Act to promote
    childrens best interests, and the need to permit all children to benefit from
    what the legislature had clearly decided was a preferable approach: at para.
    38.

[44]

Similarly, here, the
CYFSA
rather than the
CFSA
applied to the appeal. The appeal was heard several months after the
CYFSA
came into force and the
CFSA
had been repealed. While the proceeding
    had been commenced under the
CFSA
, it had not concluded before April
    30, 2018  hence the
CYFSA
applied.

(b)

Summary judgment principles in child protection
    matters: the
Kawartha
decision

[45]

Second,
    the appeal judge erred by applying the Divisional Courts decision in
Kawartha
regarding the principles of summary judgment in child protection matters. In
    fairness to the appeal judge, the Divisional Courts decision in
Kawartha
had not yet been overturned at the time he made his decision. Nonetheless, this
    court has since overturned the Divisional Courts decision.

[46]

This
    court held that [t]he Divisional Court ignored
Hryniaks
direction
    that no genuine issue requiring a trial will exist only when the judge is able
    to reach a fair and just determination on the merits on a motion for summary
    judgment:
Kawartha
, at para. 63.

[47]

This
    court also concluded that the Divisional Court erred in stating that pre-
Hryniak
cases in the child protection context set the bar for summary judgment too high
    and were therefore not good law after
Hryniak
. This court stated that
    both before and after
Hryniak
, the approach to summary judgment in the
    child protection context was and remains highly cautionary: at para. 74.

[48]

A highly
    cautious approach to summary judgment in child protection cases is warranted because
    of the serious interests at stake. As the Supreme Court has recognized, [t]he interests
    at stake in the custody hearing are unquestionably of the highest order. Few
    state actions can have a more profound effect on the lives of both parent and
    child:
New Brunswick (Minister of Health and Community Services) v. G.(J.)
,
    [1999] 3 S.C.R. 46, at para. 76. In child protection cases the
Charter
rights to personal security of both parents and children are often engaged,
    many of whom are vulnerable litigants disproportionately afflicted by poverty
    and other forms of marginalization:
Kawartha
, at paras. 63-69. Caution
    in this context promotes
Hryniaks
principle of reaching a fair and
    just determination on the merits:
Kawartha
, at para. 76.

[49]

This
    court in
Kawartha
,
at para. 80, summarized the approach to
    summary judgment in child protection proceedings as follows:

1.

Hryniaks
fairness principles for summary judgment must be applied recognizing the
    distinctive features of a child protection proceeding. In determining whether
    there is a genuine 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
    respondents 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.

[50]

Kawartha
clearly recognized that summary judgment may be appropriate in the child
    protection context. Respectfully, I therefore do not agree with the Manitoba
    Court of Appeals recent comment that, [i]mplicit in
Kawartha
-
Haliburton
is the view, expressed as a caution, that even with a proper initial
    assessment, the summary judgment process cannot ensure a fair and just
    determination in a prompt and proportionate manner:
Dakota Ojibway Child
    and Family Services v. MBH
, 2019 MBCA 91, at para. 146. Instead, the cautious
    approach enunciated in
Kawartha
neither precludes the use of summary
    judgment in child protection matters, nor suggests a different summary judgment
    test in this context.

[51]

In
    my view, both provinces appellate courts agree that, as the Manitoba court also
    stated in that case, [w]hile summary judgment is available for child
    protection proceedings, it is not appropriate in all cases: para. 155. Thus,
    in some child protection cases, summary judgment can ensure a fair and just
    determination in a prompt and proportionate manner, while in other cases it cannot
    do so. Each case must be decided based on the issues and evidence presented. As
    noted in
Hryniak
, at para. 59: [w]hat is fair and just turns on the nature
    of the issues, the nature and strength of the evidence and what is the
    proportional procedure.

[52]

Moreover,
    the summary judgment test applied in child protection cases remains the same as
    in other cases. As set out in
Hryniak
, at para. 49, [t]here 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. But the
    test must still be applied in context and sensitive to the particularly high
    stakes and
Charter
rights of parents and children implicated in child
    protection cases.

(c)

Should this court apply the correct legal framework to the uncontested
    factual findings?

[53]

The
    appeal judge thus erred in law by applying the
CFSA
rather than the
CYFSA
,
    and by applying the Divisional Courts decision in
Kawartha
. The next question
    is whether this court should remand the matter to the Ontario Court of Justice
    to apply the correct legal framework to the uncontested factual findings, or
    whether this court should itself do so. The OCL urged this court to apply the
    correct legal framework, submitting that the legal errors do not alter the
    clear conclusion that the only order in the childrens best interests is for
    them to remain in the Societys extended care. I agree.

[54]

This
    court has jurisdiction to apply the correct legal framework to the evidence. Section
    134(1)(a) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, authorizes
    an appeal court to make any order or decision that ought to or could have been
    made by the court or tribunal appealed from.

[55]

In
    my view, this court should exercise this jurisdiction here because: (1) the motion
    judges factual findings relevant to this appeal are uncontested and this court
    is therefore able to apply the proper legal framework to them; and (2) these
    proceedings were commenced more than two years ago and the children have been
    in interim society care well beyond the statutory time limits under s. 122 of
    the
CYFSA
,

making it especially important to give the children
    certainty as to their status as soon as reasonably possible: see

Catholic

Childrens

Aid

Society

of

Metropolitan

Toronto

v
.
M.(C.)
,
[1994] 2 S.C.R. 165, at p.
    206.

(d)

Applying
    the test for extended society care under the
CYFSA

[56]

I turn,
    then, to the test for whether the children should be placed in extended society
    care under the
CYFSA
. This involves two broad inquiries: (1) whether
    the child is in need of protection; and (2) whether placement of the child in
    extended society care is in the childs best interests and the court is satisfied
    that intervention through a court order is necessary to protect the child in
    the future:
CYFSA
, s. 101(1), paragraph 3.

[57]

The court
    determines whether a child is in need of protection by applying the criteria
    in s. 74(2), which include, for example, the risk that a child is likely to
    suffer physical harm from a parents failure or pattern of neglect to adequately
    care for, provide for, supervise or protect the child (ss. 74(2)(b)(i) and (ii)).

[58]

The
    court determines whether the order for extended society care is in the childs
    best interests by applying the criteria in s. 74(3) of the
CYFSA
, which
    include, for example, the childs views and wishes (s. 74(3)(a)), the
    importance of preserving the childs cultural identity and connection to the
    community in the case of a First Nations, Inuk, or Métis child (s. 74(3)(b)), and
    other relevant circumstances of the case (s. 74(3)(c)), including the risk of
    harm to the child if the child is returned to or allowed to remain in the care
    of a parent (s. 74(3)(c)(x)) and the degree of risk that justified the finding
    that the child is in need of protection (s. 74(3)(c)(xi)).

[59]

In
    this case, the motion judge noted that the parties accepted that S.S. and E.M. were
    in need of protection under the
CFSA
. The court also found all three
    children to be in need of protection because of a risk that they would likely
    suffer physical harm (
CFSA
, s. 37(2)(b)). Those conclusions are owed
    deference by this court:
D.D. v. Children's Aid Society of Toronto
,
    2015 ONCA 903, 344 O.A.C. 89, at paras. 29-30, leave to appeal refused, [2016]
    S.C.C.A. No. 61. On appeal to this court, those findings would apply equally
    under ss. 74(2)(b)(i) and (ii) of the
CYFSA
.

[60]

In
    any event, in my view, the motion judges factual findings summarized at
    paragraph 29 above confirm that there is no genuine issue requiring a trial that
    all three children are likely to suffer physical harm as a result of the
    appellants inability to adequately care for, provide for, supervise, or
    protect them.

[61]

I therefore
    conclude that all three children are in need of protection within the meaning
    of s. 74(2) of the
CYFSA
.

[62]

This
    leaves the question of whether placing the children in extended society care is
    in the best interests of the children. I agree with the submissions of the Peel
    CAS and the OCL that, in view of the unchallenged factual findings of the
    motion judge, there is a substantial risk of harm to the children if they are
    returned to the appellant, even with J.M.s assistance as a co-parent.

[63]

The
    appellant nevertheless contends that some of the motion judges language
    regarding J.M.s suitability as a co-parent is not definitive, suggesting that the
    matter should have been left for trial. The appellant highlights the motion
    judges statement that he was not as confident as the appellant as to J.M.s
    parenting ability, that the affidavit evidence had only raised serious doubts
    about how the children might fare under his care, and that the motion judge was
    only apprehensive about the possibility of J.M. co-parenting.

[64]

I acknowledge
    that the motion judges language was slightly more tentative in these instances.
    Elsewhere, however, he did not mince words. He found that J.M. cannot be
    trusted to facilitate the childrens learning and that J.M.s ability to
    co-parent was not a triable issue because the children would not be safe if
    left under his supervision.

[65]

In
    my view, when the correct legislation and summary judgment test are applied to
    the factual findings and with the requisite caution in the child protection
    context, there is no genuine issue requiring a trial as to whether J.M. would
    be an effective or safe co-parent for the children.

[66]

For
    these reasons, I agree with the OCL and the Peel CAS that the children should
    be placed in extended society care pursuant to the
CYFSA
.

(2)

Did the appeal judge err in upholding the decision to deny the appellant
    access to the children?

[67]

The
    second issue is whether the appeal judge erred in denying the appellant access
    to the children once they were made Crown wards.

[68]

As
    with the decision to make the children Crown wards, the appeal judge applied
    the
CFSA
rather than the
CYFSA
,
and applied the Divisional Courts decision in
Kawartha
.
The appeal judge concluded that the appellant did not
    meet her onus to establish that there should be an access order.
He also concluded
    that the motion judge was entitled to assume that the childrens prospects for
    adoption would be impaired with an access order in place, even if the test for
    judicial notice of this fact could not be met, as this was common sense and
    reflected the informed experience of courts dealing with adoption matters. In
    my view, the appeal judge erred in four respects.

(a)   The appeal judge applied the wrong legislation

[69]

First,
    the appeal judge applied the wrong legislation. As already noted, he should have
    applied the
CYFSA
rather than the
CFSA
to the access issue.

[70]

As
    this court explained in
Kawartha
, at paras. 44-61, the
CYFSA
significantly changed the considerations for access to children in extended
    society care:

·

Under the old
CFSA
, the test for access to a Crown ward was
    strict (s. 59(2.1)). The onus was on the person seeking access (usually the
    parent) to establish that the relationship was meaningful and beneficial. There
    was a presumption against access and opportunities for adoption were
    prioritized over other considerations.

·

Under the new
CYFSA
, the best interests of the child now
    govern the analysis, which includes consideration of the childs views and
    wishes. Under s. 105(5) of the
CYFSA
, the court shall not make an
    access order unless it is satisfied that it is in the best interests of the
    child, having regard to comprehensive factors identified in s. 74(3). Thus, access
    is to be ordered for a child with otherwise excellent adoptive prospects if it
    is in the childs best interests.

(b)   The appeal judge applied the wrong principles for
    summary judgment in child protection matters

[71]

Second,
    the appeal judge erred in law by determining the access issue on summary
    judgment by applying the Divisional Courts decision in
Kawartha
. This
    error has already been addressed above.

(c)   The appeal judge erred by placing an onus on the appellant
    to justify an access order

[72]

Third,
    the appeal judge erred in law by placing an onus on the appellant to establish
    that there was a genuine issue requiring a trial as to whether there should be
    an access order. This court in
Kawartha
clarified that the burden of
    proof remains on the Society as the moving party for summary judgment. Even if
    the appellants evidence did 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: at para. 80.

(d)   The appeal judge erred by finding that an access
    order would necessarily impair the childrens future prospects for adoption

[73]

Finally,
    the appeal judge erred in finding as a fact that an access order would necessarily
    impair
these
childrens future prospects for adoption.

[74]

The
    appeal judge began by correctly noting that the test in
R. v. Find
, 2001
    SCC 32, [2001] 1 S.C.R. 863, for taking judicial notice of this fact was not
    met. As stated in
Find
, at para. 48: [j]udicial notice dispenses with
    the need for proof of facts that are clearly uncontroversial or beyond
    reasonable dispute. The threshold is strict. A court may properly take
    judicial notice of facts that are either: (1) so notorious or generally accepted
    as not to be the subject of debate among reasonable persons; or (2) capable of
    immediate and accurate demonstration by resort to readily accessible sources of
    indisputable accuracy.

[75]

The supposed
    fact that many if not most potential adoptive parents are less inclined to
    adopt if the birth parents have access to a child in extended society care
    cannot meet the test for judicial notice. This fact is not notorious or generally
    accepted, nor capable of immediate demonstration. As will be seen, it also may
    well be wrong.

[76]

Having
    accepted judicial notice could not be taken of this fact, the appeal judge
    found that this factual finding was still justified because: (1) there was
    evidence before the motion judge that access would undermine the prospects for adoption;
    and (2) courts have set out several reasons based on common sense and informed
    experience as to why adoptive parents would be less likely to adopt if birth
    parents have access. In my view, the appeal judge erred on both points.

[77]

First,
    the evidence on the motion did not suggest that access would undermine the prospects
    for the adoption of these particular children. It merely suggested that one of
    the key factors in determining whether post-adoption face-to-face contact is
    appropriate is whether the birth parent will undermine the adoptive placement. In
    this case, there was no evidence that the appellant would undermine an adoptive
    placement and, to the contrary, she had good relations with the childrens
    foster parents and the Peel CAS personnel. Even if face-to-face access were inappropriate
     and I make no such determination  the court must still consider all forms of
    access, ranging from regular face-to-face access to an exchange of gifts,
    cards, and letters that may be vetted by the childrens caregivers for
    appropriateness.

[78]

Second,
    given that the appeal judge acknowledged that the test for judicial notice
    could not be met, it was an error for him to rely solely on common sense and
    informed experience to effectively hold that granting a parent access to a
    child in extended society care would impair the childs adoption prospects. Facts
    that are not subject to judicial notice should generally be established by
    direct evidence or admissions:
R. v. Spence
, 2005 SCC 71, [2005] 3
    S.C.R. 458, at paras. 61-68;
R. v. Williams
, [1998] 1 S.C.R. 1128, at
    p. 1155-1156; and
R. v. Le
, 2019 SCC 34, at paras. 83-85. In the
    present context, common sense and informed experience alone cannot meet the
    statutory evidential burden in s. 105(5) of the
CYFSA
regarding the best
    interests of the particular children to whom access is sought.

[79]

The
    appeal judge was also not entitled to rely on findings made in other cases,
    such as the potential for having to deal with difficult birth parents and the deterrent
    effect an access order might have on some adoptive parents. Each case must be
    decided on its own facts, not based on findings made in other cases.

[80]

Thus,
    in my view, the appeal judge erred in finding that an access order was
    inappropriate in this case.

[81]

Given
    this conclusion, it is not necessary to address the proposed fresh evidence of
    the OCL in the form of the affidavits of the Executive Director of the Adoption
    Council of Ontario and an associate professor of law and social work at the
    University of Toronto. These affidavits emphasized the potentially significant
    benefits to children of access orders and how such orders do not impair the
    prospects for adoption.

(e)

Should
    this court decide the issue of access?

[82]

Having
    decided that the appeal judge erred in ordering no access, the question becomes
    whether this court should decide the issue afresh. As noted, under s. 105(5) of
    the
CYFSA
, the best interests of the child govern the analysis.

[83]

The OCL
    moved to adduce fresh evidence on appeal addressing the childrens preferences about
    ongoing contact with their mother. This consisted of the affidavit of Ms. Tina Hinsperger,
    a clinical agent for the OCL, who met with the children three times between
    April and July 2019, including at an access visit between the children and
    their mother. She noted that:

·

R.D. expressed his love for his mother and was clear in his views
    and preferences that he wanted to continue to have access with his mother;

·

It was not possible to ascertain S.S.s views given her young age;

·

At the end of one visit, E.M. (who was not represented by the OCL)
    opened his arms wide and gave his mother a big hug and a kiss. He also kissed
    his brother and sister goodbye; and

·

R.D. and S.S. then left the building holding their mothers
    hands while walking towards the foster mothers vehicle.

[84]

Section
    121(6) of the
CYFSA
provides that the court may receive further evidence
    relating to events after the appealed decision. This court has ruled that such fresh
    evidence should be admitted in a child protection proceeding if it: (a) could
    not have been adduced before; (b) is highly relevant in that it provides the
    court with an accurate picture of the situation at hand; (c) is potentially
    decisive to the childs best interests; (d) is credible; (e) is uncontroverted;
    and (f) updates evidence submitted between the time of the prior hearings and
    the appeal. A flexible approach should be taken, given the need for accurate
    and up-to-date information concerning the childs best interests: see
Children's
    Aid Society of Toronto v. P.M.
, 2015 ONCA 695, 71 R.F.L. (7th) 44, at
    paras. 22-23.

[85]

In
    my view, Ms. Hinspergers affidavit meets the test for admitting further
    evidence on appeal pursuant to s. 121(6) of the
CYFSA
. Ms. Hinspergers
    affidavit relates to recent visits between the appellant and the children and evinces
    R.D.s preference for ongoing access. This evidence is admissible under the flexible
    approach to admitting fresh evidence in child protection cases because it could
    not have been adduced before; it is highly relevant in that it provides the
    court with an accurate picture of the situation at hand; it is potentially
    decisive to the childs best interests; it is credible and uncontroverted; and it
    updates evidence submitted between the time of the prior hearings and the
    appeal.

[86]

Ms. Hinspergers
    evidence suggests that some form of access would be in the childrens best
    interests. This is at least R.D.s preference. All the children appear to have strong
    emotional ties to the appellant.

[87]

On
    appeal, the Peel CAS also conceded that an access order would be appropriate as
    being in the childrens best interests.

[88]

I
    would therefore order that the appellant have access to the children. I have,
    however, concluded that the evidence in the record is insufficient for this
    court to address the nature or extent of that access, and would remand those issues
    to the Ontario Court of Justice to be determined on an expedited basis. At the
    same time, I would strongly encourage the parties to agree to the terms of the appellants
    access without further litigation.

[89]

It appears that sibling access was requested on summary judgment. If
    it is still the position of the OCL that sibling access is appropriate, then
    this should be addressed at any future access hearing or by agreement.

VI.

Costs

[90]

The Peel
    CAS did not seek costs, but the appellant did.

[91]

The
    appellant was provided with state-funded counsel for her appeal to the appeal
    judge by order of the Ontario Superior Court:
Childrens Aid Society v. L.M
.
,
    2018 ONSC 3633, 11 R.F.L. (8th) 143. The Peel CAS opposed the state-funding
    request, and costs were awarded against it:
Childrens Aid Society v. L.M
.
,
    2018 ONSC 7170. The Peel CAS has been granted leave to appeal the costs order to
    the Divisional Court.

[92]

The
    appellant has achieved some success on the appeal. She was entirely successful on
    the appeal of the access order and partially successful on several points of
    law as to the Crown wardship determination that the Peel CAS did not concede. Considering
    all the circumstances, including the substantial assistance that Ms. Gagnés submissions
    provided to this court, I would award the appellant costs payable by the Peel
    CAS fixed at $10,000, inclusive of applicable taxes and disbursements.


VII.

Disposition

[93]

For
    these reasons, I would allow the appeal in part. I would confirm the order for
    extended society care, grant the appellant access to the children, but remand the
    issues of the nature and extent of that access to the Ontario Court of Justice
    to be determined on an expedited basis, with costs to the appellant payable by
    the Peel CAS fixed at $10,000 (inclusive of applicable taxes and disbursements).
    Pending further order of the Ontario Court of Justice or on consent of the
    parties, I would also continue this courts order providing the appellant with
    weekly supervised access visits to the children at the offices of the Peel CAS.

Released: AH  OCT 25, 2019

M. Jamal J.A.

I agree. Alexandra Hoy
    A.C.J.O.

I agree. M. Tulloch
    J.A.


