“The Family Law Rules, O. Reg. 114/99, allow for a matter to be resolved without trial by way of a motion for summary judgment. The moving party (FACS) has the burden of proof and shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: see r. 16(4).
In response to the affidavit or other evidence served by FACS, the responding party may not rest on “mere allegations or denials” but shall set out specific facts showing that there is a “genuine issue for trial”. If the evidence supports that there is no genuine issue for trial, the court is mandated by r. 16(6) to make a final order: see rr. 16(4)-(4.1) and (6). In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada established a new approach to summary judgment motions, the details of which are described further below. In response to Hryniak, new powers were added under rr. 16(6.1) and (6.2) that permit the court to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial.
In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80, the Court of Appeal for Ontario provided the following concise summary of the approach that the court should take to summary judgment within the context of child protection litigation, considering the decision in Hryniak:
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- Hryniak’sfairness 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.
- The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
- 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.
- 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.
- The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
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Hyrniak confirmed that 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 a determination. Hyrniak states that the judge must first determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to those facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: see Hryniak, at para. 4.
In child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage the rights of a vulnerable segment of our society under the Canadian Charter of Rights and Freedoms. Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings, which apply the objectives of the CYFSA, including the best interests of the child, and which promotes Hryniak’s principle of reaching a fair and just determination on the merits: see Kawartha-Haliburton Children’s Aid Society v. M.W, at para. 76.
A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that the child faces some better prospects than existed at the time of the Society’s removal of the child from their care and that they have developed some new ability as a parent: see Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (Ont. C.J.); Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, at para. 98.
Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care but are unable to take the steps to translate their proposals into a plausible reality: see Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737, at para. 7.”