[1]                       On 25 February 2002, an order of this court returned A.J.T.-M., then two months old, to the custody and care of his mother, Ms. A.M., under interim society supervision and the conditions set out in the endorsement appended to these reasons.  (See APPENDIX, below.)  The Children’s Aid Society of Toronto (“the society”) had removed him from his mother’s care on 24 January 2002 and he had remained in interim society custody under a “without prejudice” order made in the first appearance of the case in court on 29 January 2002.

[2]                       The interim custody motion had been heard on 22 February 2002.

[3]                       The society had argued strenuously that the return was premature.  Although indicating that this was a family that the society “could work with”, as society counsel phrased it, the society had sought continued foster care for the infant until the parents had completed domestic abuse and other counselling and parenting courses and a parenting capacity assessment.

[4]                       Ms. A.M., supported by the baby’s father, sought the return of the baby to her care and was quite prepared to have the society supervise her parenting under whatever conditions were imposed by the court.  It was her argument that continued foster care was not only unnecessary in light of the steps that she and the father had already taken to respond to the society’s concerns, but harmful to the baby because the parent-and-child access over the course of that foster care had been wholly inadequate to foster any meaningful parent-and-child bond.

[5]                       The decision itself was on reserve until 25 February 2002.  The reasons for the decision have been on reserve until now.

[6]                       The society’s evidentiary case was constituted by the affidavit of the society’s intake worker Wendy Odell, sworn on 28 January 2002, to which was appended a sheaf of case note recordings from the Rosalie Hall residence for young mothers and an affidavit of society family services worker Gordon Pon, sworn on 22 February 2002, to which was appended handwritten notes of the society’s case aide who has been supervising the parent-and-child access.

[7]                       The mother’s case in the motion was constituted by her affidavit, sworn on 8 February 2002, and her plan for A.J.T.-M.’s care, sworn on 21 February 2002.

[8]                       Mr. S.T. had not yet retained counsel, nor had he answered the society’s case.  In the course of the motion hearing, he was permitted, without objection, to file certain documents bearing on the allegations made against him.  Those documents were appended to an affidavit that he had prepared with the assistance of duty counsel.

[9]                       Since the coming into force of the Child and Family Services Amendment Act (Child Welfare Reform), 1999, S.O. 1999, c. 2, on 31 March 2000, continuing separation of parent and child pending adjudication of a protection application is permitted only if the court is satisfied that there are reasonable grounds to believe:

[10]                  It is the task of the society to file an evidentiary case sufficient to meet those criteria.  It rests squarely on the society’s shoulders to justify the intervention that it seeks in the motion.  It is not the task of either parent to prove that this child is not in need of an interim protective intervention.

[11]                  Counsel for mother argued that this motion attracted a  “balance of probabilities” standard of proof.  Absent jurisprudence binding on me, and none was cited, I disagree.

[12]                  I do agree with counsel that the adjudication of a child’s interim need for protective intervention is pivotal decision-making for both the child and the parent.  It shapes the life of the family in ways that sometimes cannot be undone.  I also agree that intrusion into the parent-and-child relationship by the child welfare authorities is very serious business, a threat to the security of the parent-and-child relationship and a state action that can have a profound effect on the lives of both the parent and the child.  See Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48, 260 N.R. 203, 150 Man. R. (2d) 161, [2001] 1 W.W.R. 1, 230 W.A.C. 161, 191 D.L.R. (4th) 1, 78 C.R.R. (2d) 1, 10 R.F.L. (5th) 122, [2000] S.C.J. No. 48, 2000 Cars­well­Man 469;  Richard B. and Beena B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, 176 N.R. 161, 87 O.A.C. 1, 122 D.L.R. (4th) 1, 26 C.R.R. (2d) 202, 9 R.F.L. (4th) 157, 1995 CanLII 115, [1994] S.C.J. No. 24, 1995 Cars­well­Ont 105;  and New Brunswick (Minister of Health and Community Services) v. J.G., [1999] 3 S.C.R. 46, 244 N.R. 276, 216 N.B.R. (2d) 25, 552 A.P.R. 25, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203, 1999 CanLII 653, [1999] S.C.J. No. 47, 1999 Cars­well­NB 305.

[13]                  Nonetheless, the scope of the interim custody motion is too narrow to attract the level of proof argued by counsel.  It is a decision intended by the legislature to have a brief life and, if the statutory timelines are respected, it will have that.

[14]                  Viewed in the context of the legislative scheme for child protection, this motion is decision-making taken only to ascertain whether intervention at issue is justified and, if so, what is needed to protect the child adequately pending hearing of the merits of the society’s protection application.

[15]                  It has all the vulnerabilities of any motion adjudication.  The evidence has not been tested for its reliability by cross-examinations.  It does not represent the whole of the evidence that would be available in a trial.  It also has a vulnerability peculiar to child welfare work.  There is an appearance of unfairness to the family from the moment the case arrives in the courtroom.  Depending on the circumstances of the case, the workload of society staff and the availability of those within the society’s hierarchy who are the “sober second look” at the decisions of the front-line investigators, the society’s evidentiary case may have been prepared with more haste than anyone could afford to have happen.  The parents have usually received the society’s case so late in the day that they are left scrambling to respond within the timelines required by the law for adjudications of the case alleged against them.  The scramble leaves both parties at risk of losing sight of what is and is not in issue in this motion.

[16]                  On a plain read of subsection 51(3) of the Act, this particular adjudication is about the reasonableness of the society’s belief about risk.  That makes sense.  More often than not, all that there is at this early stage in the case is belief.  It is also about beliefs about risk that do not and cannot stand still if the society is faithful to its obligation to reassess its beliefs as further information becomes available in the investigation.  Whether there are reasonable grounds to believe that the child is in need of protective services is an ever-evolving question;  for a fuller discussion, see Children’s Aid Society of Halifax v. T.J.D. (1999), 47 R.F.L. (4th) 293, [1999] N.S.J. No. 145, 1999 Carswell­NS 141 (N.S.S.C.), per Justice R. James Williams at page 295 [R.F.L.].  The investigation is seldom completed at the time of the motion hearing.  The society’s evidentiary case reflects what the investigation has yielded to that point in time.  The society’s initial “call” on the nature and extent of the risk may change once the findings of the completed investigation are brought to bear on the society’s assessment.  What appears to be credible and trustworthy information at an early stage in the investigation may be found, on closer scrutiny, to be speculation, innuendo, conjecture or simply mean-spirited gossip.  The society’s belief about risk may be altered by the shift from the society’s intake to ongoing family service.  Depending on the comparative experience and expertise of the social work staff, the receiving social worker may assess the case differently.

[17]                  What is really evaluated in this interim motion is the degree to which the society has kept pace with its investigation, informed its beliefs by the ever-expanding information available to it and measured its belief against the criteria established by subsection 51(3) of the Act.

[18]                  The motions judge also bears in mind that child welfare reform did not dismantle the proportionality element mandated for this interim decision-making.  The core value of the reformed statute is not a wholesale removal of children from their families.  Continued separation of parent and child retains its position at the height of the hierarchy of increasingly more intrusive choices under subsection 51(3) — a microcosm of the larger hierarchical scheme for protective intervention that is itself a continuum of ever more intrusive options for a child’s protection.  The interim protection imposed must be proportionate to the need shown by the evidence.  Child welfare reform lowered the bar for society intervention.  It did not drop that bar to the floor.  A reasonable ground to believe that there is a risk that the child is likely to suffer harm in a parent’s care differs qualitatively from a reasonable ground to believe that there is a risk that a child might or may possibly suffer harm in that person’s care.

[19]                  It was within these borders to the Act’s paramount purpose that all decision-making promotes a child’s best interests, protection and well being (see section 1) that the motion evidence was adjudicated.

[20]                  Much in the society’s case on the first prong of the test in subsection 51(3) did not rise to the level of credible and trustworthy evidence.  I have dealt with that later in these judgment reasons.

[21]                  On what credible evidence remained, the evidence relevant to this issue yielded the following findings:

[22]                  In the context of those findings, the society’s belief that an interim protection order is needed for this child is reasonably grounded.  As a matter of common sense and simple human experience, this infant is at risk of likely physical and emotional harm if his parents are lashing out at each other.  It is also common sense that this infant needs to be able to count on each parent to keep pace with his ever developing needs and that the prerequisite to that is their ability to identify those needs.

[23]                  Much of the society’s evidence on this second prong of the test in subsection 51(3) did not rise to level of credible and trustworthy evidence.  I have dealt with that later in these judgment reasons.

[24]                  The remaining credible evidence relevant to the issue of an adequate protection for this child yielded the following:

[25]                  The society mounted no credible case that this mother was “transient” prior to her entry to Rosalie Hall.  Ms. A.M. provides in her evidence particulars of her residences, both in and after her discharge from society care.  The absence of any reply to this evidence leads me to conclude that the society does not contest the accuracy of mother’s account on this issue.

[26]                  Not materially disputed by the society is the evidence that, four months into her pregnancy, she took up residence at Rosalie Hall, remained there until the child’s birth, returned to that residence with her infant and was still residing there when the society removed A.J.T.-M. from her custody on 24 January 2002.  She managed this stability for herself and the infant notwithstanding her frustrations with some of the staff who were critical of her, without removing both herself and the child from the supports available within that staff-operated setting.

[27]                  The society’s concern about the mother’s attention to pre-natal and post-natal care remained a mystery.  The society did not reply to Ms. A.M.’s own evidence that she had both medical and midwifery care during her pregnancy.  She had a family doctor in place while she was in residence with the baby at Rosalie Hall.

[28]                  I searched in vain for any factual basis for the belief that this infant had been harmed in his mother’s care.

[29]                  The baby was placed in a situation of potential harm while he and mother were residing at Rosalie Hall, but it was not caused by the mother.  A staff member at Rosalie Hall had tripped and fallen with the baby in her arms.  Both she and the mother are recorded to have had the baby medically assessed immediately after the accident and the medical assessment had not identified any actual harm to the baby.

[30]                  The baby’s healthy birth weight and “clean” drug screen grounded a reasonably based belief that she had not abused her infant in utero.

[31]                   The infant was born with a jaundiced condition that took some time to resolve.  There is no evidence that the jaundice was caused or exacerbated by the mother.  The baby acquired a thrush that took some time to resolve.  Nothing in the evidence tied that particular problem to the conduct of the mother.  It is suggested that the mother was improperly administering medication to deal with the infant’s thrush.  Yet nowhere is it set out what precisely she was doing that did not conform to the directions given to her by the infant’s physician.

[32]                  This child had had a brief rehospitalization on 7 January 2002 to deal with the unresolved jaundice, “concerns” about his weight gains, an infected umbilical cord and thrush.  A day later, two doctors reported that he was doing fine.  By 20 January 2002 he was gaining weight and progressing appropriately in his development.  That was four days before the society removed him from his mother’s care.

[33]                  In relation to the concern about the baby’s nutrition, I could find no credible evidence that this not-yet one-month-old infant was failing to gain weight in his mother’s care.  There were times of both gain and loss as he weathered the first weeks of life.  The uncontradicted evidence of his mother is that she was taking direction from her physician on this, as on other issues related to his health.  The physician himself is recorded to have stated that the baby was doing well.  Unanswered in the evidence was this:

[34]                  A further notation indicated that the mother only had baby supplies for a few hours.  Unanswered was what supplies were about to run out, what harm awaited the infant if the supplies did run out, whether she had sufficient funds for those supplies, what plan she had to deal with the anticipated shortage of supplies.

[35]                  There was no evidence that this young mother created any risk to her baby or to anyone else in the course of the society’s apprehension of the baby.

[36]                  Parenting skill does not descend full-blown upon a parent with the child’s birth.  What the evidentiary record actually revealed on this point was a reasonable belief that  Ms. A.M. was exhibiting the sort of uncertainty and missteps that one might reasonably expect from a young woman attempting to adjust to her new role as a parent.  Some at Rosalie Hall were prepared to allow her both time and opportunity to adjust to the art of parenting.  Others were not.

[37]                  In relation to the concern that the mother was not sufficiently attentive to the baby, it is wholly unclear how that inattentiveness was measured.  A notation indicates that “staff” found A.J.T.-M. unattended.  Who, precisely?  Over what timeframe?  The society intake worker attests that information came to the society from a nurse at Scarborough Grace Hospital that a pædiatrician had concerns about this mother’s parenting ability and attentiveness.  What in the mother’s conduct gave rise to the “concern” is never particularized in the evidence in this motion.  The pædiatrician’s opportunity to observe the mother and child is never particularized.  Whether the concern was ever brought to the mother’s attention, with opportunity for her to respond to the shortcoming is never particularized.  When the intake worker spoke with the pædiatrician directly, the doctor indicated that she did not know how well the mother would do caring for the baby “as she is young and has little parenting skills”.  That stands in stark contradiction to what the society recites in its application.  “Not knowing” about a parent’s capabilities is a reason for better informing oneself, not proof of a shortcoming in the parent.

[38]                  Unanswered in the society’s materials is the extent, if at all, to which the society sought and weighed in its risk assessment the observations of the hospital staff during this mother’s parenting of A.J.T.-M. during his extended hospital stay after birth.  Unanswered is how the society sorted the positive comments of Rosalie Hall staff and its own staff about this mother’s parenting from the negative comments of others.  How does the court rely on the process recording from the Rosalie Hall as an accurate depiction of this mother’s abilities and motivation to parent, without also having access to the records of others — for example, similar process recording of the Scarborough Grace Hospital staff bearing on this mother’s care and attention to her infant?

[39]                  The intake worker’s affidavit cites the concerns of certain Rosalie Hall staff members about this mother’s care but is silent on those reports of other Rosalie Hall staff members who found no difficulty with the mother’s caring of the infant.  In the eyes of certain staff members of Rosalie Hall, this mother did not comply with the program to the degree expected of her.  Other personnel recorded no difficulty with her compliance.  The intake worker makes no mention of how she weighed those positives into her risk assessment.

[40]                  The concern about her disobedience to Rosalie Hall rules and direction is worrying only if viewed in a vacuum. A plain read of the Rosalie Hall case notes appended to the society worker’s affidavit indicates that there were many hands at this mother’s back there, as one might reasonably expect in a staff-operated setting, and many voices providing direction, not always in unison, about what she was expected to do on issues pivotal to the baby’s care.  It is apparent from those notes, read in context, that this mother was having difficulty sorting which direction should be followed and to what extent.  She was also receiving direction from her family physician with regard to the administration of medication to the baby and feeding issues and attempting to co-ordinate that direction with the instructions of certain staff members at Rosalie Hall, including its infant nurse.  It is not surprising that she became frustrated and voiced her frustration to staff at times.  If there was a concerted attempt to co-ordinate the directions given to this mother, it did not emerge from the evidentiary record.

[41]                  The society’s “concern about attachment” had no factual base at all.

[42]                  It is not clear from the evidence who precisely voiced the concern about attachment or what, if any, experience or expertise this person or persons had to do a proper assessment of child development and attachment.  The evidence is silent on what factors were weighed in the assessment of this particular parent-and-child connection.

[43]                  It was also opinion evidence that made no common sense.  This infant was a month old when the society removed him from his mother.  The process of emotional connection that had begun for both him and his mother at his birth was barely underway.  Nothing in the motion record shed any light on how, if at all, this developing emotional bond can be assessed with any reliability so soon after birth.  Absent such evidence, it is unreasonable to opine a “concern about attachment” because this young mother has not yet mastered the art of accurately reading and responding to her baby’s cues and signals.

[44]                  Unanswered was the extent to which any of those voicing or accepting the concern about attachment were themselves hindering this mother’s ability to be emotionally available to this infant through their intolerance of responses that were really quite ordinary in her circumstances.  Did anyone weigh, for example, the ordinary fatigue that follows childbirth and the stress in caring for a newborn under the microscope of a staff-operated setting in which her every move could be interpreted as a misstep sufficient to report to the child welfare authorities?  Did the person or persons concerned about attachment consider the extent to which their perception of this mother-and-child connection had more to do with their own expectations than with the mother herself?

[45]                  At this stage of the court case, the most reliable indicator of emotional connection between parent and child is the interest that the parent has been displaying in the child.  Uncontradicted in the motion was this mother’s own evidence that, when A.J.T.-M. was kept in hospital beyond the time of her own discharge, she returned to help to care for him during the day and  slept overnight at the hospital to be close to him.  As a matter of common sense, a disinterested parent does not make that effort.  Uncontradicted is the mother’s evidence that she and the baby’s father have been present at every access visit that the society has offered them and have arrived early at times.  Unanswered is the extent, if at all, that the investigating social workers weighed the observations of the society’s own access supervisor in relation to this mother’s attention to her infant during access.  Those observations invited a rational inference that this mother continues to show interest in her infant and continues to try to respond to him in an attentive and nurturing manner.  Any concern recorded by the access supervisor is essentially directed to the father’s comfort level with his son.

[46]                  This sort of unsubstantiated opinion — slipped into a case without compliance with the law governing opinion evidence — is not acceptable practice.  The assessment of parent-child interaction looms large in a child protection adjudication.  Lack of attachment may, in fact, be the determining factor in a decision to sever the child permanently from the parent.  See Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, 1994 CanLII 83, [1994] S.C.J. No. 37, 1994 Cars­well­Ont 376.  Given the prominence of attachment issues in these adjudications, it is critically important that the society not float this sort of “concern” without a factual basis for it.

[47]                  The society intake worker noted in her affidavit that the mother was a Crown ward between the ages of 12 and 17.

[48]                  The relevance of the Crown wardship status was never identified.  Absent context, the status offers no credible and trustworthy evidence of anything bearing on the issues to be decided in this motion, unless the invitation is to presume risk from the very status that was once trumpeted as an outcome that was likely to promote the best interests of that young person.  The court cannot do that.

[49]                  The only context provided to the court is a brief notation of the “reasons” for that Crown wardship — information drawn from the society’s record.  It is wholly unclear from that brief notation whether the “reasons” cited by the social worker are the reasons mounted by the society for that Crown wardship or whether these were one and the same reasons found by the court as a basis for the Crown wardship.  How does a motion judge find trustworthiness in the society’s sketch of the parent’s “history” of court-ordered interventions without knowing whether the “facts” selected for that sketch were ones that the court itself found to be reliable?

[50]                  Also unanswered by the society’s evidence on this issue is what bearing those “reasons” have on the now-adult mother’s ability to parent her infant.  Further relevant is: What judicial findings bearing on this young woman’s abilities, as opposed to the shortcomings of her parents, warranted the Crown wardship.  Credible and trustworthy is what the court found as fact.  It is the reasons for the decision that are relevant.  Those reasons were not included in the society’s materials.

[51]                  As a matter of fairness, if a parent’s own prior wardship status is to be injected as a relevant factor to be weighed in the evaluation of the society’s belief about risk, then the society needs to include reliable information bearing on that person’s post-wardship management of life.  In the absence of that essential connection of the past to the present, relevant is what happened in the intervening years under that Crown wardship.  To what extent did any “failure” in the Crown wardship’s goals rest with the young person?  To what extent did any failure in those goals rest with the society itself, the multiplicity of placements, the inadequacy or unavailability of services that were needed to prepare the young person for a successful adult life.  None of that is addressed in the society’s case as a basis for floating the Crown wardship as a factor relevant to what must be decided in the motion.

[52]                  Whatever the reasons for her Crown wardship and whatever her foster care and post-care experience — and there was insufficient evidence in the motion to shed light on any of the three — this mother had not conducted herself so irresponsibly during her pregnancy or in the life of her son to date to use her own former Crown wardship status as justification for the baby’s continued foster care.

[53]                  Society counsel pressed this information upon the court as credible and trustworthy evidence of the risks to this child in the care of his mother and father.  Particular note was made of the “repeated” reports from this resource to the society in the weeks leading up to the society’s apprehension of A.J.T.-M. from his mother’s care.

[54]                  A sheaf of paper reciting snippets of comment from a variety of named individuals who had come into contact with this mother while she resided, first alone and then with the baby, at Rosalie Hall does not become credible and trustworthy “evidence” by simply attaching that sheaf of paper to a child protection worker’s affidavit.  Credibility and trustworthiness does not spring full blown from a simple recitation of the information.  A concern, absent a factual underpinning, remains an allegation.  Allegations are not swallowed whole.  They do not gain in strength from their number.  Absent the underpinnings, the information is worthless.

[55]                  A plain read of the Rosalie Hall material in search of credible and trustworthy evidence bearing on the interim adjudication yielded the following findings:

[56]                  This is not a case in which the material advanced through the Rosalie Hall notes has been the subject of affidavits sworn by the Rosalie Hall staff and previously filed with the court.  This is not a case in which the bare notes are sufficiently fleshed out in the society social workers’ affidavits to permit a conclusion that the society’s staff, as part of the society’s investigation, had sifted the reliable from the unreliable, the trustworthy from information too gossipy or speculative to be brought to the table.

[57]                  There was no credible evidence to justify this sort of assessment as a prerequisite to a responsible determination of the interim custody and care of this child.

[58]                  The quality of this motion material invited an inference that the society had not grasped sufficiently the implications of what it had placed before the court as “reliable” material.

[59]                  Some of the carelessness was excused — for example, the insufficient proofing of the documents that resulted in case notes attached to the affidavit of the society’s family services worker without proper identification in the affidavit itself, and an illegible signature on the final page.  No one appeared to have noticed that a number of the pages in the Rosalie Hall sheaf were obviously out of order, although numbered as if they were in order.

[60]                  Other carelessness was rooted in the quality of the material that was pressed on the court to determine the motion in the society’s favour.  I address this because the problems in this motion are not unique to this case.

[61]                  This carelessness could not be excused.  Adjudication of an interim custody motion is not an exercise in blind faith.  A motions judge must evaluate the basis upon which the affiant believed the information given to the society to be reliable.  The findings that determine the motion depend on the quality of the evidence.

[62]                  It is in the society’s interest that it examine carefully what it places before the court.  It is also in the interest of the child and the parent who have been disrupted by the intervention.

[63]                  A children’s aid society is the agent of the State when it enters a family’s life.  The society’s powers, substantial as they are, are not unbridled.  Those powers are limited to those articulated in the legislation.  The society is before the court so soon after an intervention to provide a sober second look at whether the intervention has been faithful to the criteria of the statute.  It is a check on the exercise of the intervention power.

[64]                  Quality control begins with the duty of the parties and their counsel under the Family Law Rules, O. Reg. 114/99, to deal with cases justly.  It is the same duty that is given to the court.  Dealing with a case justly includes “ensuring that the procedure is fair to all parties”; see subrule 2(2).

[65]                  Just dealing requires attention to the criteria in the Family Law Rules that themselves control quality.  For example, it is admissible evidence in writing that may be filed in the motion, not just any writing — see paragraph 1 of subrule 14(17).  It is indirect information that the affiant learned from someone else that may be included in an affidavit, not just any information.  Rule 14 dictates that an affidavit shall “as much as possible” contain only information within the personal knowledge of the person signing the affidavit — see subrule 14(18).  What information is learned from someone else is proper in an affidavit only if the source of the information is identified by name and the affidavit states that the person signing it believes the information to be true — see subrule 14(19).

[66]                  Just dealing requires attention to those provisions of the Child and Family Services Act that control the quality of the evidence put forth — for example, the requirement that any oral or written statement or report evidencing past conduct of a person towards any child be shown to be relevant to the proceeding: subsection 50(1) of the Act.

[67]                  Just dealing requires issues of relevance, probative value and admissibility, all alive in the motion, to be tied to the legislative criteria that govern the adjudication itself.

[68]                  Just dealing places at the beginning of the affidavit — not buried somewhere within pages of historical information culled from the society’s files — the society’s account of what prompted the intervention, why less disruptive steps to the child were not taken, what has been learned to date in the investigation.  It is not the parent’s entire life that is on parade in an interim custody motion.

[69]                  Just dealing requires a respect for the rules of evidence.  At the risk of stating the obvious, what is evaluated in this motion, as in any other motion, is evidence.  Supposition, conjecture, speculation, leaps of hyperbole, innuendo, gossip, unqualified opinion where qualified opinion is required — all have no place in an affidavit.  If the decision-making in the motion is to be just, counsel must ensure that the affidavits are stripped of this sort of material before they are filed in the motion record.

[70]                  At this early stage, the evidentiary case can be expected to include information obtained from others that is then advanced through the vehicle of a social worker’s affidavit as “credible and trustworthy” evidence.  The information must rise to the level of evidence.  Exhibits to affidavits cannot be used to place before the court information that is not admissible evidence.

[71]                  Just dealing requires an attention to proportionality, a care that the affidavits laid before the court do not, through too casual attention to what the facts show, misstate the strength of the case.  Flights in hyperbole are to be particularly avoided.  They feed mistrust in the society’s evaluative skill.

[72]                  Factual inferences can be drawn from the evidence only if the facts alleged to support the inference are established by the evidence.  If the most pivotal inferences sought by the society are not reasonable on a plain reading of the materials or have no factual support at all or do not make plain common sense when the fact advanced for the inference is set within the evidence as a whole, then the basis for the society’s position remains a mystery.

[73]                  What the society wanted of these parents presumed a strength in the society’s case that did not exist on the evidentiary record filed.  To insist that the parents prove the benefits of their personal and relationship counselling and undergo a parenting capacity assessment before the child is returned to them was to raise the bar in this motion above what the statute itself requires.

[74]                  This infant needed, at the highest, within the statutory scheme for interim protection, a court-ordered supervision of his care with conditions to assist both parents to focus more acutely on his needs.  That is in essence what was ordered for him on 25 February 2002.