“The only time that the worker commented on the mother’s parenting ability was in his reply affidavit and the way he did this was unacceptable to this court. In response to the mother’s evidence that she parented positively, he attached three access observation notes to his affidavit where there were problems on visits. Aside from the fact that the society should be providing direct affidavits from its workers about access observations at summary judgment motions (and as a result I attached little weight to this evidence), this was extremely unfair of the worker. The society conceded in argument that access visits were going well, yet the worker “cherry-picked” three negative reports to buttress the society’s case. Why did he not attach reports that showed the mother in a positive light? I repeat the comments that I made in paragraphs [55]-[56] of Children’s Aid Society of Toronto v. B.H. and M.P., [2007] O.J. No. 2446 (Ont. C.J., 4 May 2007), where I said:
| [55] This court has to make a major decision for these children and their families that will have a huge and permanent impact on their lives. The society is a powerful institution and with such power comes great responsibility. The goal of a state litigant is justice. It is not about winning. The society’s role in presenting a case to the court is not merely to present evidence that justifies its position, but to present allrelevant and probative evidence, including that not favourable to its position, to ensure that the best possible decision for children can be made. It is important that society workers understand this. Society counsel can only put forward the evidence that the workers provide to them. It is important to educate the workers about their responsibility to provide a balanced perspective of the case to the court and not only provide information that justifies their position. It is not good enough to say that it is the job of the parents’ lawyers to produce this evidence. Parents’ counsel (if the parties even have counsel) rarely have the resources of the society and should not have to chase after this information. Child protection trials are not, and should not, be a game. | ||
| [56] From a practical perspective, this made the evidence of the society workers less reliable. How could I fully trust that they were providing me with the full context when they were giving me their evidence, when they chose to present their negative observations in such a disproportionate manner? This did not mean that I rejected their evidence, but it did mean that I treated it with more caution. |
These comments are applicable to every stage of a proceeding and I would think are even more pertinent when we are hearing a summary judgment motion and the worker is not subject to cross-examination.”
Catholic Children’s Aid Society of Toronto v. M.(A.), 2007 ONCJ 743 (CanLII) at 58