



WARNING

This is a case under the
Child,
    Youth and Family Services Act, 2017
and subject to subsections 87(8) and
    87(9) of this legislation.
These
    subsections and subsection 142(3) of
the
Child, Youth and Services
    Act, 2017
, which
deals with
    the consequences of failure to comply, read as follows:

87
(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 childs parent
    or foster parent or a member of the childs 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.




COURT OF APPEAL FOR ONTARIO

CITATION: Kawartha-Haliburton Childrens Aid Society v. M.W.,
    2019 ONCA 316

DATE: 20190418

DOCKET: C65838

Lauwers, Benotto and Brown JJ.A.

BETWEEN

Kawartha-Haliburton Childrens Aid Society

Applicant
(Respondent)

and

M.W.
,
Curve Lake First Nation
and
Office
  of the Children’s Lawyer

Respondents
(
Appellant
/
Respondents
)

Christopher Spear, for the appellant

M. Pilch, for the respondent Kawartha-Haliburton
    Childrens Aid Society

Stephanie Giannandrea and Scott Byers, for the
    respondent Curve Lake First Nation

Ian Ross, for the respondent Office of the Childrens
    Lawyer

Caitlyn Kasper and Emily Hill, for the intervener
    Aboriginal Legal Services

Tammy Law and David Miller, for the intervener Ontario
    Association of Child Protection Lawyers

Kate Kehoe, for the intervener National Self-Represented
    Litigants Project

Maggie Wente and Leanna Farr, for the intervener Anishinabek
    Nation

Heard: March 26, 2019

On appeal from the judgment of the Divisional Court (Justices
    Katherine E. Swinton, David A. Broad and Frederick L. Myers), dated May 7, 2018,
    with reasons reported at 2018 ONSC 2783, affirming the order of Justice Allan
    R. Rowsell of the Superior Court of Justice, dated October 13, 2017.

Benotto J.A.:

[1]

This appeal arises from a mothers request for
    access to three of her children in extended care. The appropriateness of the
    extended care order was not and is not disputed. The appeal raises important
    issues about major changes to the child protection legislation made in 2018: the
    transition provisions of the new legislation, the new test for access to
    children in extended care, the special considerations for Indigenous children, and
    the proper approach to summary judgment in child protection matters.

[2]

The children are three of six siblings
    apprehended in 2015 by the respondent, Kawartha-Haliburton Childrens Aid
    Society (the Society), pursuant to the
Child and Family Services
    Act
, R.S.O. 1990, c. C.11
(CFSA).
[1]
At the time, they ranged in age from one to nine years.

[3]

Their mother, M.W. (the mother or appellant)
    consented to a summary judgment motion seeking Crown wardship, but sought
    access. The motion judge made the children Crown wards and denied the mother
    access to them.

[4]

The mother appealed to the Divisional Court. By
    this time, the CFSA was about to be replaced with the
Child,

Youth
    and Family Services Act, 2017
, S.O. 2017, c. 14, Sched. 1
    (CYFSA). The new Act was significant in at least two respects: it expanded
    the test for access to children in extended care; and it emphasized the special
    considerations applicable to children of Indigenous heritage.

[5]

The transitional provisions of the CYFSA
    required that, at the date it came into force, all cases not concluded would
    be considered under the new Act, not the old. The mothers appeal was heard by
    the Divisional Court one week before the CYFSA was proclaimed. The Divisional
    Court reserved its decision, and then released it one week after the CYFSA came
    into effect. The Divisional Court determined that the motion judge had erred
    but went on to make its own finding about access by applying the old Act. The
    mother appeals.

[6]

As I will explain, the Divisional Court erred by
    applying the CFSA. Consequently, the wrong framework for access was considered
    and the court arrived at a determination that was not available on the
    evidence. It did not apply the expanded provisions with respect to access
    generally; erred in failing to apply the special considerations for Indigenous
    children; and misstated the approach to summary judgment in child protection
    matters.

[7]

For the reasons provided below, I would allow
    the appeal, set aside the motion judges order and remit the matter to the
    Superior Court on an expedited basis for a determination of the mothers
    request for access under the provisions of the CYFSA.

FACTS AND DECISIONS BELOW

[8]

The Society became involved with the mothers family
    in 2007, shortly after her oldest child X was born
.
[2]
The
    Society has been involved ever since.

[9]

The appellant had six more children: C born
    2007, G born 2009, A born 2010, L born 2011, and twins I and E born
    2014.

[10]

There were ongoing protection concerns involving
    violence in the home, health issues and neglect. The children, except for L,
    were apprehended in 2015.
[3]
L is in the custody of her paternal grandparents.

[11]

I need not articulate the myriad of difficulties
    experienced by the children. The appellant does not contest that they were all
    in need of protection.

[12]

The children are First Nations as defined in
    Regulation 155/18 of the CYFSA. They and their family members identify as First
    Nation and with the Curve Lake First Nation.

[13]

In 2017 the Society brought a motion for summary
    judgment. The appellant agreed that there should be a declaration of Crown wardship.
    She did not agree to a no-access provision. The motion judge referred to r. 16
    of the
Family Law Rules
,  O. Reg. 114/99 (set out below) and
Hryniak
    v. Mauldin,
2014 SCC 7, [2014] 1 S.C.R. 87 and stated as
    follows at para. 43:

To succeed on a summary judgment motion, an
    applicant must prove there is no genuine issue requiring a trial on a balance
    of probabilities. No genuine issue for trial has been equated with no chance
    of success and plain and obvious that the action cannot succeed.

[14]

The motion judge then concluded that he could
    resolve the issues by way of summary judgment. He made all six children Crown wards
    without ordering that the mother have access to them.  On the issue of access,
    he applied legislation then-in-force, which, at s. 59(2.1) provided:

(2.1) A court shall not make or vary an access order
    made under section 58 with respect to a Crown ward unless the court is
    satisfied that,

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

(b) the ordered access
    will not impair the childs future opportunities for adoption.

[15]

The motion judge concluded, at para. 62:

I do not find that the childrens access to
    mother (
sic
)

is meaningful and beneficial. I do find that access
    to each other is meaningful and beneficial.

[16]

The Act then-in-force required that the motion judge determine
    whether the children had Indigenous heritage.
Section 47(2) of the CFSA
    provided:

(2) As soon as practicable, and in any event before
    determining whether a child is in need of protection, the court shall
    determine,

(a) the childs name and age;

(b) the religious faith, if any, in which the
    child is being raised;

(c)
whether the child is an Indian or a native
    person and, if so, the childs band or native community
; and

(d) where the child
    was brought to a place of safety before the hearing, the location of the place
    from which the child was removed. [Emphasis added.]

[17]

The motion judge did not make the required
    finding under s. 47(2)(c).

[18]

At the time the summary judgment motion was
    argued, the definitions of Indian, Native person and Native child in the
    CFSA had been declared invalid on the basis that they infringed section 15(1)
    of the
Canadian
Charter of Rights and Freedoms
. That declaration of invalidity was suspended to allow the
    Legislature to take corrective steps
: Catholic Childrens Aid
    Society of Hamilton v. G.H., T.V. and Eastern Woodlands Metis of Nova Scotia
, 2016 ONSC 6287, 83 R.F.L. (7th) 299.

[19]

After the motion judges decision was released
    on October 13, 2017, the Legislature announced sweeping changes to child
    protection legislation. The new CYFSA, aimed in part at responding to the
    decision in
G.H
, was to take effect on April 30, 2018. Transitional
    provisions stated that all cases not concluded would be covered by the new
    legislation.

[20]

The mother appealed the motion judges decision,
    seeking access to the three oldest children.
[4]
As
    noted, the Divisional Courts decision was released on May 7, 2018  seven days
    after the CYFSA was proclaimed in force. The Divisional Court concluded that
    the motion judge erred first by applying the wrong legal test for summary
    judgment, and then by failing to provide reasons for his conclusion on access.

[21]

With respect to the test for summary judgment
    the Divisional Court said, at paras. 45-47:

At para. 43 of the decision below,
    the judge considered whether it was plain and obvious that the action cannot
    succeed and whether there was no realistic possibility of an outcome other
    than that as sought by the applicant. This led the parties before this court
    into a debate over which party has the burden to prove the likely trial outcome
     the society, on which Rule 16 (4) places a burden to show that there is no
    genuine issue requiring a trial; or M.W. who bears the burden under
s. 59 (2.1)
(a) of the

CFSA
to prove
    that she and the children have beneficial and meaningful relationships.

As a result, the judge never asked
    the key question of whether it was in the interest of justice for him to
    resolve the case summarily does the process allow him to fairly and justly
    adjudicate the dispute and is it a timely, affordable, and proportionate
    procedure?

In asking the wrong question, the judge set out the wrong legal
    test for determining whether there is a serious issue requiring a trial. That
    is an error of law that is not subject to deference in this court as discussed
    above.

[22]

The
    Divisional Court further determined that the motion judge did not set out the
    basis for his conclusion on access but decided that it could nonetheless fairly
    determine the question. It then applied s. 59(2.1) of the CFSA to conclude that
    the mother had not met her burden to establish that access was meaningful and
    beneficial to the children. The Divisional Court concluded at para. 69:

On the record before the court,
    without utilizing any of the enhanced fact-finding powers available on summary
    judgment, it is apparent that [the mother] has not and cannot meet her burden
    to establish that she has a beneficial and meaningful relationship with any of
    the three eldest children that is significantly advantageous to him
(sic)
.
    Accordingly, she is not entitled to access to the children as Crown wards.

[23]

Finally,
    with respect to compliance with s. 47(2) of the old Act and the childrens Indigenous
    heritage, the Divisional Court, by way of a footnote to their biographical
    details, said:

I do not accept that the changes
    to the
Indian Act
(Canada)
or the proclamation of the [CYFSA] has (
sic
)
    any bearing on this issue.

ISSUES

[24]

Having been granted leave to appeal to this
    court, the mother submits that the Divisional Court, in failing to apply the
    transitional provisions of the CYFSA, applied the wrong test to decide access. She
    also submits that the Divisional Court erred by changing the long-standing test
    for summary judgment in child protection matters.

[25]

The mothers appeal is supported by the Office
    of the Childrens Lawyer and the Curve Lake First Nation. Four additional
    parties were granted intervener status: Ontario Association of Child Protection
    Lawyers; Aboriginal Legal Services; National Self-Represented Litigants
    Project; and Anishinabek Nation c.o.b. as Union of Ontario Indians Inc. The interveners
    represent their respective constituents and submit that the Divisional Court
    erred in failing to apply the CYFSA.

[26]

The Aboriginal Legal Services and Anishinabek
    Nation stressed the comprehensive definition of First Nations children in the
    new Act and the resulting direction to the court to provide special
    considerations with respect to Indigenous children. The considerations involve
    a recognition of the historical context and the ongoing harm suffered as a
    result and the over-representation of Indigenous children in care.  There must
    be  it is submitted  a need for an individualized plan that reflects Indigenous
    culture and values.  These considerations must form part of the best interests
    analysis.

[27]

The Ontario Association of Child Protection
    Lawyers and National Self-Represented Litigants Project submitted that the
    approach to summary judgment in child protection must be informed by the
    parties
Charter
rights, must include effective parental participation
    and must be based only on evidence that would be admissible at trial.

[28]

The respondent Society submits that the
    Divisional Court was correct in applying the CFSA provisions. In the
    alternative, it says that, even if the CYFSA should have been applied, the
    Divisional Courts analysis satisfies the CYFSAs requirements in assessing
    access.

ANALYSIS

[29]

For the reasons set out below, I conclude as
    follows:

1.

The transitional provisions of the CYFSA applied
    so that the test for access was pursuant to the new Act.

2.

The record is insufficient to permit the court
    to apply the new test.

3.

The failure to apply special consideration to
    these childrens Indigenous heritage conflicts with the requirements of the new
    Act.

4.

The Divisional Court misstated the principles of
    summary judgment in child protection matters.

[30]

I will address each of these issues in turn and
    then articulate guidelines for summary judgment in child protection proceedings.

(1)

Under the transitional regulation, the CYFSA applied

[31]

The CYFSA was enacted to replace the CFSA. The
    new Act raised the age for protection and changed what was considered archaic
    and stigmatizing language. For example, Crown ward was replaced with
    extended society care. Most importantly for this case, the new Act changed
    the criteria for access to children in extended care by removing the
    presumption against access, making the childs best interests predominant in
    determining access, and emphasizing the importance of preserving Indigenous
    childrens cultural identity and connection to community.

[32]

A transitional regulation, O. Reg. 157/18, was
    enacted to provide guidance on transitional matters. That regulation 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.

[33]

The
    Society submits that the transitional regulation does not apply here. Thus, it
    submits, the Divisional Court did not err by applying the old Act. It takes the
    position that but not concluded means that
the evidence
is not
    concluded. Under this interpretation, if the evidence was concluded before
    April 30, 2018, the old Act applies.

[34]

The
    Society relies on
Children's Aid Society of the Regional Municipality of
    Waterloo v. N.K.
, 2018 ONCJ 696
.
    There, submissions were completed on April 13, 2018, prior to the new Act
    coming into effect on April 30, 2018, and the court rendered its decision on
    October 3, 2018 after the new Act came into effect. Oldham J. analyzed the
    transitional provisions as follows at paras. 14-16:

[Section11(1)] does not provide a definition of
    'concluded'. Therefore, it is not clear whether a matter is considered to be
    concluded if evidence and submissions are complete, but the decision is on
    reserve at the time that the
CYFSA
comes into force.

Subsections 11(2) and (3) of the Regulations provide some
    context for interpretation. These subsections address the issue of parties in
    proceedings relating to a First Nations, Inuk or Métis child. The subsections
    specifically distinguish the treatment of a case where a proceeding is not
    concluded (subsection 11(2)) as contrasted with cases where the hearing is
    completed, but the court reserved its decision (subsection 11(3)). The
    clarification under subsection 11(3) supports the interpretation that a
    decision under reserve does not fall within the definition of 'not concluded'
    under subsection 11(1) of the
Regulations
.

Given the language of the
Regulations
and the fact that
    all parties concluded their evidence and submissions under the
CFSA
, I
    conclude that the determination of the issues before me are to be decided under
    the
CFSA
.

[35]

I
    do not accept this interpretation of the transitional regulation. The
    subsections in the transitional regulation referred to by Oldham J., ss. 11(2)
    and 11(3), read as follows:

(2) Despite subsection (1), in the case of a
    proceeding relating to a First Nations, Inuk or Métis child, paragraph 4 of
    subsection 79 (1) of the Act does not apply if the court is satisfied that it
    would not be in the childs best interests for that provision to apply and
    makes an order stating that the parties to the proceeding are those who were
    parties immediately before this section comes into force.

(3) Despite subsection
    (2), if a court has completed its hearing of a proceeding in respect of a First
    Nations, Inuk or Métis child before the day this section comes into force but
    reserved its decision, the parties to the proceeding are those who were parties
    immediately before this section comes into force unless the court is satisfied
    that it would be in the best interests of the child for paragraph 4 of
    subsection 79 (1) of the Act to apply and makes an order to that effect.

[36]

The
    ordinary sense of the word concluded is finished, completed, decided or
    over. A decision under reserve means the case is not concluded.

[37]

Had
    the Legislature intended to capture only proceedings in which the hearing of a
    proceeding had not concluded, it would have said so. The use of the phrase
    hearing of a proceeding in s. 11(3) but not in s. 11(1) makes this abundantly
    clear.

[38]

The
    scheme of the Act as a whole also supports this interpretation. First, the Act
    is remedial legislation and so should be interpreted liberally. It would be
    inconsistent with the paramount purpose of the Act to promote the best
    interests, protection and well-being of children not to permit all children to
    benefit from what the Legislature had clearly decided was a preferable approach.

[39]

Second, the Act is particularly remedial for Indigenous
    children. As will be set out in more detail below, it seeks to remedy past
    injustices and address the special significance of Indigenous childrens
    connection to their community.

[40]

Third, the April 30, 2018 proclamation date for the new Act was the
    same date that the previous definition of Indian and native person/child
    under the CFSA were deemed to be invalid due to a suspended declaration of
    invalidity issued by the court:
G. H.
By applying
the transitional provisions to cases under reserve, these children would
    not be caught in a legislative void.

[41]

Finally,
    the regulation clarifies that a proceeding is not concluded until a decision is
    rendered.  It does so in two ways:  (i) it states that a proceeding is not
    concluded when a decision is on reserve,
except
in relation to the name
    of a party; and (ii) it distinguishes between the conclusion of a hearing and
    the conclusion of the proceeding which only occurs when the decision is
    rendered.  These provisions support the plain wording and purpose of the
    regulation.

[42]

Therefore
    the transitional provisions applied to this case and the incorrect statute was
    applied by the Divisional Court.

[43]

The
    Society submits that the Divisional Courts analysis nonetheless satisfies the
    new test. I turn to that issue now.

(2)

Insufficient record

[44]

The
    CYFSA changed the considerations for access.  A comparison to the CFSA
    demonstrates this.

[45]

The
    test for access to a Crown ward under the old Act was strict:

59(2.1) A court
shall not make
or vary an access order
    made under section 58 with respect to a Crown ward
unless
the court is
    satisfied that,

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

(b) the ordered access will not impair the childs future
    opportunities for adoption. [Emphasis added.]

[46]

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.

[47]

This changed significantly when the new Act was introduced.
The new Act states that the court shall not make the access order
    unless it is satisfied that it is in the best interests of the child. Section
    104(5) provides:

When court may order access to child in
    extended society care

(5) A court shall not make or vary an access order
    under section 104 with respect to a child who is in extended society care under
    an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c)
unless
    the court is satisfied that the

order or variation would be in the
    childs best interests
.

Additional considerations for best interests
    test

(6) The court shall consider, as part of its
    determination of whether an order or variation would be in the childs best
    interests under subsection (5),

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

(b) if the court
    considers it relevant, whether the ordered access will impair the childs
    future opportunities for adoption. [Emphasis added].

[48]

This
    change is not just semantics. It represents a significant shift in the approach
    to access for children in extended care.

[49]

The
    burden is no longer on the person requesting access to demonstrate that the
    relationship is beneficial and meaningful to the child and will in no way
    impair the childs future adoption opportunities. Instead, the court is to
    undertake a best interests analysis, assess whether the relationship is
    beneficial and meaningful to the child, and consider impairment to future
    adoption opportunities only as part of this assessment and only where relevant.
    This means that it is no longer the case that a parent who puts forward no
    evidence will not gain access. Similarly, while any evidence of possible
    impairment to adoption opportunities would have thwarted previous requests for
    access, under the new Act, access is to be ordered for a child with otherwise
    excellent adoptive prospects if it is in her overall best interests. And, as
    shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive:

Best interests of child

74(3) Where a person is directed in this Part to make
    an order or determination in the best interests of a child, the person shall,

(a) consider the childs views and wishes, given due
    weight in accordance with the childs age and maturity, unless they cannot be
    ascertained;

(b) in the case of a First Nations, Inuk or Métis
    child, consider the importance, in recognition of the uniqueness of First
    Nations, Inuit and Métis cultures, heritages and traditions, of preserving the
    childs cultural identity and connection to community, in addition to the
    considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that
    the person considers relevant, including,

(i) the childs physical, mental and emotional
    needs, and the appropriate care or treatment to meet those needs,

(ii) the childs physical, mental and emotional
    level of development,

(iii) the childs race, ancestry, place of origin,
    colour, ethnic origin, citizenship, family diversity, disability, creed, sex,
    sexual orientation, gender identity and gender expression,

(iv) the childs cultural and linguistic heritage,

(v) the importance for the childs development of
    a positive relationship with a parent and a secure place as a member of a
    family,

(vi) the childs relationships and emotional ties
    to a parent, sibling, relative, other member of the childs extended family or
    member of the childs community,

(vii) the importance of continuity in the childs
    care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the childs care
    proposed by a society, including a proposal that the child be placed for
    adoption or adopted, compared with the merits of the child remaining with or
    returning to a parent,

(ix) the effects on the child of delay in the
    disposition of the case,

(x) the risk that the child may suffer harm
    through being removed from, kept away from, returned to or allowed to remain in
    the care of a parent, and

(xi) the degree of
    risk, if any, that justified the finding that the child is in need of
    protection.

[50]

As
    a result of these changes, the test for access to children in extended care was
    expanded in such a way that the record before this court is insufficient to
    satisfy its requirements.

[51]

The
    Divisional Court did not properly address the issue of the sufficiency of the
    record because it applied the old Act. In doing so, the Divisional Court
    determined, at paras. 66-67, that the record was complete:

The issues in this case turn on a
    single finding of fact for each child as to the nature and strength of the
    relationship between the child and [their biological mother]. It is not a legally
    or factually complex case. Moreover, in this case, there is simply no evidence
    that any of the three eldest children has a beneficial and meaningful
    relationship with [her]  one that is significantly advantageous to him  to
    come close to overcoming the statutory presumption that there is to be no
    access to Crown wards.



In this case,
s. 59 (2.1)
(a) casts
    the burden on[the mother] to prove on a balance of probabilities that she and
    the children have existing relationships that are meaningful and beneficial to
    each child.

[52]

Assuming
    without deciding that the record was complete for the purpose of applying the
    old Act, it is clear that the record could not satisfy the requirements of the
    new Act.

[53]

First,
    there is no mention of the childrens best interests and no reference to the
    detail listed in s. 74(3). Instead, the Divisional Court focused solely on the
    meaningful and beneficial consideration without reference to the best
    interests. Second, the court applied a presumption against access to Crown
    wards which no longer exists. Finally, by not applying the new legislation the
    court failed to outline and take into account the views of the children. In
    para. 61, the court said that the childrens views and preferences are before
    the court. The evidence before the court regarding the childrens views dated
    back years and was not capable of providing the information required to comply
    with the access provisions of the CYFSA.

[54]

In
    considering the question of access, the Divisional Court relied on the reams
    of contemporaneous social worker notes of visits and a single very complete
    assessment report. The focus of both were exclusively on protection issues. Neither
    were directed at the distinct question of access. A mother who cannot
    adequately provide primary care may still have a meaningful and beneficial
    relationship with her children such that access is warranted. An assessment
    that does not explicitly address access cannot form the sole evidentiary basis
    for deciding that issue. I return to this point when I discuss the proper
    approach to summary judgment in a child protection proceeding.

(3)

Indigenous children

[55]

The
    most glaring way in which the record is insufficient to satisfy the new test
    pertains to the childrens Indigenous heritage. The second factor in the best
    interests considerations states: in the case of a First Nations, Inuk or Metis
    child, [the person making an order shall] consider the importance, in
    recognition of the uniqueness of First Nations, Inuit and Metis cultures,
    heritages and traditions, of preserving the childs cultural identity and
    connection to community, in addition to the considerations under clauses (a)
    and (c).

[56]

After
    the judicial determination of unconstitutionality in
G.H
., the CYFSA
    broadened the definition of who is recognized as an Indigenous child. Any child
    who identifies as First Nations, Metis or Inuit, has a family member who so
    identifies or if there is a connection between the child and a band is now
    recognized as First Nations, Metis or Inuit. The new legislation reflects a
    commitment to ensuring that these children are connected to their culture.

[57]

The
    children here are Indigenous citizens of Curve Lake First Nation which is part
    of the Anishinabek Nation. The factors listed under s. 74(3) require the court
    to consider how to preserve the childrens connection to their specific Indigenous
    community and culture.

[58]

Likewise,
    the preamble section of the CYFSA demonstrates the intent of the Act.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy,
    healthy, resilient, grounded in their cultures and languages and thriving as
    individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and
    Métis children and their distinct political and cultural communities is
    essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in
    the spirit of reconciliation, to working with First Nations, Inuit and Métis
    peoples to help ensure that wherever possible, they care for their children in accordance
    with their distinct cultures, heritages and traditions.

[59]

In
    making its determination on access, the Divisional Court failed to make a
    finding as to the childrens First Nations status. It consequently failed to
    consider whether an access order would assist the children in preserving their
    cultural identity.

[60]

When
    the Legislature expanded the special considerations given to First Nations,
    Metis or Inuit children, the definitions of Indian, native person and
    native child in the CFSA were removed. Instead, pursuant to s. 90 of the new CYFSA,
    the court in a child protection proceeding is required to determine if the
    child is First Nations, Metis or Inuit. This finding, which must be made
before
the court determines whether the child is in need of protection, is
    important because it ushers in a series of special considerations including the
    provision of services and decisions that recognize the importance of the
    childs culture, heritage, and connection to community.

[61]

The
    Divisional Court failed to make the necessary finding that the children in this
    case are First Nations, Metis or Inuit. Instead, in a footnote to para. 7 of
    its reasons, the court included in the biographical details an erroneous statement
    that the changes to the
Indian Act
(Canada) or the proclamation of the
    new
Child, Youth and Family Services Act
 had no bearing on the case. It
    was submitted that this was essentially a finding that the children were
    non-status Indians. By stating that their status did not have any bearing
    on the case, it failed to address one of the main purposes of the Act. That is,
    in perhaps the most obvious possible way, the court failed to address the
    significance of these childrens connection to their Indigenous culture,
    community and heritage.

(4)

Summary Judgment in Child Protection
    Proceedings

[62]

The
Family Law Rules
provide for summary judgment in family law proceedings,
    including in child protection proceedings. The relevant provisions are as
    follows:

RULE 16:  SUMMARY JUDGMENT

WHEN AVAILABLE

16.

(1) After the respondent has served
    an answer or after the time for serving an answer has expired, a party may make
    a motion for summary judgment for a final order without a trial on all or part
    of any claim made or any defence presented in the case.

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1)
    may be made in any case (including a child protection case) that does not
    include a divorce claim.

EVIDENCE REQUIRED

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

EVIDENCE OF RESPONDING PARTY

(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.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a partys evidence is not from a person who
    has personal knowledge of the facts in dispute, the court may draw conclusions
    unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of
    a claim or defence, the court shall make a final order accordingly.

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.

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or
    makes an order for a trial of an issue, the court may, in addition to
    exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the
    issues and give directions about how and when the case will go to trial (in
    which case the order governs how the trial proceeds, unless the trial judge
    orders otherwise);

(b) give directions; and

(c) impose conditions
    (for example, require a party to pay money into court as security, or limit a
    partys pretrial disclosure).

[63]

The
    Divisional Court erred by misapplying the key principles regarding the use of
    summary judgment, as articulated in
Hryniak
, to the specific
    circumstances of child protection proceedings. The 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: at para. 49. As the Supreme Court stated, at para. 50 of
Hryniak
, the standard for fairness is not whether the procedure is as
    exhaustive as a trial, but whether it gives the judge 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.
    The Divisional Court turned its back on that jurisprudence and, in so doing,
    erred.

[64]

I
    will explain why
Hryniaks
fairness principle requires that exceptional
    caution is needed for summary judgment in the child protection context by reviewing
    the
Charter
implications of child protection proceedings; the reality
    of the litigation for the participants; and the wisdom of the jurisprudence
    that the Divisional Court overturned. I will then set out the approach that
    should be taken to summary judgment motions in child protection proceedings.

Charter implications

[65]

Child
    protection litigation engages the
Charter
rights of both parents and
    children. Twenty years ago the Supreme Court recognized this. In
New
    Brunswick (Minister of Health and Community Services) v. G. (J.)
,

[1999] 3 S.C.R. 46, at para.
    76, it held as follows:

The 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. Not only is the parents right to
    security of the person at stake, the childs is as well. Since the best
    interests of the child are presumed to lie with the parent, the childs
    psychological integrity and well-being may be seriously affected by the
    interference with the parent-child relationship.

[66]

In
    that case, the Supreme Court required state-funded counsel for the parent
    because the s. 7
Charter
rights of the
    parents and the children were found to be engaged. It held as follows at para.
    81:

Without the benefit of counsel, the appellant would not have
    been able to participate effectively at the hearing, creating an unacceptable
    risk of error in determining the childrens best interests and thereby
    threatening to violate both the appellants and her childrens s. 7 right to security
    of the person.

[67]

Not
    only are
Charter
rights engaged, but the participants themselves are unlikely
    to be able to advance them. Quite regularly, their personal circumstances pose
    an obstacle.

Reality of the child protection litigant


[68]

The
    courts should be especially mindful of the reality and material circumstances
    of those subject to child protection proceedings. As Justice LHeureux-Dubé noted
    in her concurring reasons in
G. (J.)
, at para. 113, women, and
    especially single mothers, are disproportionately and particularly affected by
    child protection proceedings. She continued at para. 114:

As well as affecting women in particular, issues of fairness in
    child protection hearings also have particular importance for the interests of
    women and men who are members of other disadvantaged and vulnerable groups,
    particularly visible minorities, Aboriginal people, and the disabled.  As noted
    by the United States Supreme Court in
Santosky v. Kramer
, 455 U.S. 745
    (1982), at p. 763:

Because parents subject to termination
    proceedings are often poor, uneducated, or members of minority groupssuch
    proceedings are often vulnerable to judgments based on cultural or class bias.

Similarly, Professors Cossman and Rogerson note that The
    parents in child protection cases are typically the most disadvantaged and
    vulnerable within the family law system  . . . .:  Case Study in the
    Provision of Legal Aid: Family Law, in Report of the Ontario Legal Aid Review:
    A Blueprint of Publicly Funded Legal Services (1997), 773, at p. 787.

[69]

Poverty
    and other forms of marginalization form part of the experience of many parents
    involved in child protection proceedings. If we do not face up to this reality
    we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing
    inequities and harms. The miscarriages of justice outlined in the
Report of
    the Motherisk Commission
(2018: Ontario Ministry of the Attorney General) speak,
    by way of example, to the significant imbalance between parents and Childrens
    Aid Societies, noting that parents, even when represented by counsel, were
    simply overpowered (at p. 121). Fairness in the child protection context demands
    recognition of these dynamics.

Longstanding approach to summary judgment

[70]

The
    cautious approach to summary judgment in child protection has long been
    recognized by lower courts and by this court: see
Childrens Aid Society of
    Halton (Region) v. A. (K.L.)
(2006), 216
    O.A.C. 148
(C.A.).

[71]

The
    child protection jurisprudence has crafted an approach to the fair and just
    determination of issues using summary judgment motions by recognizing that in child
    protection proceedings there are
Charter
implications at stake for
    vulnerable litigants. The jurisprudence reflects an approach to the genuine
    issue for trial or requiring trial analysis that incorporates these
    considerations.  Following the release of
Hryniak
, the courts have taken
its fairness
principles and
    adapted them to the cautionary approach needed in child protection. As Zisman
    J. said in
Childrens Aid Society of Toronto v C.J.W.
, 2017 ONCJ 212,
    at paras. 66-67:

In assessing whether or not a
    society has met its obligation of showing there is no genuine issue requiring a
    trial, courts have equated that phrase with 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 applicant.

Summary judgment should proceed
    with caution.

[72]

McDermot
    J. made similar comments in
F. v. Simcoe Muskoka Child, Youth & Family
    Services
, 2017 ONSC 5402, at paras. 21-23:

In family law matters summary
    judgment shall be granted under
Rule 16(6)
of the
Family Law Rules
where
    there is no genuine issue requiring a trial of a claim or defence.



The test of no genuine issue for trial has been referred to
    in a number of ways. It has been equated with no chance of success or that is
    plain and obvious that the action cannot succeed. The test has also been
    enunciated as being when the outcome is foregone conclusion or where there is
    no realistic possibility of an outcome other than that sought by the
    applicant.

[73]

The
    Divisional Court decision notes at para. 36 that [t]he parties placed before
    the motion judge a number of decisions concerning summary judgment in the child
    protection context that appear to be premised on a pre-2014 understanding of
    summary judgment. The reasons go on to discuss the direct application of the
    principles of
Hryniak
in the child
    protection context
.

[74]

The
    Divisional Court erred in its understanding of the pre-2014 rule and
    jurisprudence.  First, since
1999
the Family Law Rules provided that the
    test was no genuine issue requiring a trial.  Second, the jurisprudence did
    not change.  In this, the parties made no mistake in referring to pre-2014
    jurisprudence. The current correct approach to summary judgment in child
    protection was and remains highly cautionary.

[75]

The Supreme Court in
Hryniak
emphasized, at para. 23, the fair and just approach to summary judgment:

Our civil justice system is premised upon the value that the
    process of adjudication must be fair and just. This cannot be compromised.

[76]

Hryniak
emphasizes that 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: at para. 49. 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. Consequently,
    courts have stressed the need to take a cautious approach to granting summary
    judgment in child protection proceedings. This cautious approach promotes
Hryniaks
principle of reaching a fair and just determination on the merits. Interestingly,
    even the case the Divisional Court referred to as the correct approach,
The
    Childrens Aid Society of Ottawa v. I.C. et al
., 2016 ONSC 4792, affd 2017
    ONSC 6935, speaks to this point. At para. 64 of
I.C.
, MacKinnon J. said:

In determining whether there is
    a genuine issue requiring a trial in this case, I am mindful of the need for
    the Court to be cautious in granting a summary judgment motion for Crown
    wardship in line with the principles of justice, fairness and the best
    interests of the children are at the heart of these proceedings.

[77]

Significantly,
    MacKinnon J. did not alter the considerations for genuine issue requiring a trial.
     The cautionary approach applies as do the objectives of the CYFSA.  Further,
    the court has an obligation to carefully assess the evidence.

[78]

I
    adopt the approach taken by Sherr J. in
Childrens 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.

[79]

See
    also:
C.A.S. v. K.V.
, 2013 ONSC 7480;
Childrens Aid Society of
    Toronto v. C.P.
, 2017 ONCJ 330;
The Childrens Aid Society of Ottawa
    v. J.B. and H.H.
, 2016 ONSC 2757, 80 R.F.L. (7th) 414 ;
CAS v. N.A.-M.
,
    2018 ONSC 978;
CAS (Ottawa) v. M.M.
, 2018 ONSC 786, 8 R.F.L. (8th) 184;
A.B. v. J.B.
, 2017 ONCJ 866.

Conclusion: The proper approach to
    summary judgment in child protection proceedings

[80]

To
    summarize and clarify the approach that the courts should take to summary
    judgment in child protection proceedings, I set out the following:

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.

CONCLUSION

[81]

I
    would allow the appeal, set aside the motion judges order and refer the matter
    back to the Superior Court on an expedited basis to determine the question of
    access pursuant to the CYFSA. Subject to the direction of the Regional Senior Justice,
    and the discretion of the assigned judge, I would hope that a case-management
    conference is quickly convened to establish a timeline to prepare the case for
    a hearing either by way of summary judgment or mini-trial.

[82]

I
    would not order costs.

M.L. Benotto J.A.

I agree P. Lauwers
    J.A.

I agree David Brown
    J.A.

Released: April 18, 2019





[1]

A seventh sibling had been living with her paternal
    grandparents at this time and thus had not been apprehended.



[2]

The factual outline in both courts below is wrong. When the
    Society became involved in 2007, the other children had not yet been born.



[3]

The s.54 assessment relied on by the Society has several
    identifiable factual errors including the date of apprehension. It says that G
    and A were apprehended in 2008. Neither had been born at that time. It also
    says that X and C were apprehended in 2008, which is incorrect.



[4]
Originally she sought access to the four oldest children, but the OCL advised
    the Court of separate arrangements for A such that this appeal no longer
    pertains to A.


