“Counsel for mother argues that the court requires a trial in order to make a fair and just determination of the issues. He relies on Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 (CanLII), a decision which directs courts of first instance to proceed with caution when entertaining a motion for summary judgment in a child protection matter, having regard to the fact that child protection litigation engages the Charter rights of both parents and the children. (See para 65).
In summarizing and clarifying the approach that courts should take to summary judgment in child protection proceedings Benotto J.A. sets out the following at paragraph 80;
1. Hryniak’s 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 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.
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.
In Kawartha, one of the issues was whether and when the court may order access to a child in extended society care, under the newly formulated provisions in the CYFSA. The court concluded that the change in the legislation was not just about semantics but represents a significant shift in the approach to access in extended care. In elaborating on the change in relation to the burden of proof in such an inquiry, the court clarifies that 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 child’s future adoption opportunities. The court concludes that it is no longer the case that a parent who puts forward no evidence will not gain access. I do not take this interpretation to mean that in other contexts, under this legislative scheme, a responding parent need not put forward any evidence in support of their position.
The burden of proof rests with the party who moves for summary judgment. (See Sanzone v. Schechter, 2016 ONCA 566 (CanLII) at para.30.) Under Rule 16(4) of the Family Law Rules the moving party must “set out specific facts showing that there is no genuine issue requiring a trial.” The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions. (See Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para.48.)
Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:
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.
In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200 (CanLII), 242 A.C.W.S. (3d) 794, affirmed 2014 ONCA 878 (CanLII), Corbett J. confirmed the continued applicability of the rules requiring the responding party to “put its best foot forward” or “lead trumps or risk losing”. Combined Air Mechanical Services v. Flesch, 2011 ONCA 764 (CanLII) at para 56: Bhakhri, v. Valentin, 2012 CarswellOnt 6667 (S.C.J.), para. 7; Pizza v. Gillespie (1990), 1990 CanLII 4023 (ON SC). The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 (CanLII) at para. 30.”
Highland Shores Children’s Aid Society v. J.B. et al., 2020 ONSC 448 (CanLII) at 91-96