WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

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 child's parent or foster parent or a member of the child's family.

87.— (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 Information

Ontario Court of Justice

Date: August 22, 2018

Court File No.: C91777/16

Parties

Between:

Children's Aid Society of Toronto, Applicant

-AND-

K.B., Respondent Mother

-AND-

O.N., Respondent Father of M.B.

-AND-

R.M., Respondent Father of K.B.

-AND-

J.C., Respondent Maternal Aunt of M.B. and K.B.

-AND-

Je.C., Respondent Maternal Uncle of M.B. and K.B.

Before the Court

Justice Melanie Sager

Heard: July 24, 2018

Reasons for Judgment Released: August 22, 2018

Counsel

• Lily Ng — counsel for the applicant society
• David Miller — counsel for the respondent Mother
• R.M. — on his own behalf
• No appearance by or on behalf of O.N.
• J.C. — on hers and Je.C.'s behalf
• Fatma Abdallah Khalid — counsel for the Office of the Children's Lawyer, legal representative for the child M.B.

Sager, J.:

Introduction

[1] The Children's Aid Society of Toronto (society) has brought a motion within its Status Review Application, pursuant to Rule 16 of the Family Law Rules seeking an order granting the maternal aunt (J.C.) and uncle (Je.C.) custody of the children M.B. born […], 2006 and K.B. born […], 2016, pursuant to section 102 of the Child and Youth Family Services Act (CYFSA). The society also requests orders permitting J.C. and Je.C. to obtain government issued documents and travel with the children without the parents' consent. The society further requests an order that the mother of the children shall have access to M.B. at the discretion of J.C. and Je.C. and in accordance with M.B.'s wishes and to K.B. twice per month supervised by family or a community access centre. The society also seeks an order granting the father of K.B. access to him at a minimum of once per week.

[2] The mother of the children opposes the motion and asks that it be dismissed on the basis that there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure. In the alternative, if the court grants the custody order being requested by the society, the mother argues that the issue of her access to the children requires a focused hearing.

[3] The father of K.B., does not oppose the custody order being sought by the society but requests a different access order than that proposed by the society, specifically that he have access to K.B. every other weekend from Friday to Sunday and one mid-week visit for dinner. He did not file any materials on the motion or make submissions.

[4] O.N., the father of M.B. did not participate in the motion.

[5] The child M.B. is represented by the Office of the Children's Lawyer who supports the relief being requested by the society and advises that the child's position is that he wishes to remain living with his aunt and uncle and does not want to have access to his mother.

[6] The court has read and relied upon the following documents:

• The Summary Judgment Motion Brief of the Children's Aid Society of Toronto
• The affidavit of Ian Hughes sworn July 23, 2018
• The Summary Judgment Motion Brief of the mother
• The Police Records Brief of the Children's Aid Society of Toronto
• The society's Factum

[7] The issues for the court to determine on the society's summary judgment motion are as follows:

a) Is there a genuine issue requiring a trial for a disposition for the children other than a custody order in favour of the maternal aunt and uncle?

b) If the custody order is made, is there a genuine issue requiring a trial to address the mother's claim for access to M.B.?

c) If the custody order is made, is there a genuine issue requiring a trial to address the mother's claim for access to K.B.?

d) Is there a genuine issue requiring a trial to address the father's claim for access to K.B.?

The Law – Summary Judgment

[8] The society brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.

[9] The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[10] Pursuant to subrule 16(4.1) the responding party 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 requiring trial. The responding party must put their best foot forward on the motion. 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: Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court).

[11] Subrule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[12] Subrule 16(6.1) provides that in determining if there is no 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 that purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence
2. Evaluating the credibility of a deponent
3. Drawing any reasonable inference from the evidence

[13] Pursuant to subrule 16(6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[14] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. 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 subrule 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.

[15] 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 the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak - paragraph 49).

[16] Neither party has the onus of establishing who will succeed at trial. That is the wrong question. Pre-Hryniak case law where courts examined whether a party has any reasonable chance of success no longer applies. See: Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court), paragraph 45.

[17] The key question the court must answer is whether it is in the interest of justice for the court to resolve the case summarily. To do so, the court is required to consider whether the process allows it to make the necessary findings of fact, to apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure? See: Kawartha, paragraph 45.

[18] The summary judgment process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial. See: Kawartha, paragraph 43.

[19] The principles set out in Hryniak apply to child protection cases. See: Kawartha, paragraph 38.

Background of the Litigation

[20] The society became involved with this family in September 2016. The society had concerns around the mother's ability to safely care for M.B. due to conflict that had occurred between the mother and the maternal grandmother and the mother and K.B.'s father in front of M.B. The society was also concerned that the mother might have mental health issues that were negatively impacting her parenting skills.[1]

[21] On September 26, 2016, the mother was arrested and charged with assaulting the maternal grandmother. As the alleged events that led to the charges occurred in front of M.B., the mother's bail conditions limited her contact with him.[2] As a result, M.B. went to live with J.C. and Je.C. The society supported this plan and commenced a Protection Application.

[22] On December 3, 2016, K.B. was brought to a place of safety by the society due to its concerns around the mother's mental health, parenting skills, lack of judgment in following medical recommendations and conflict with the maternal grandmother and K.B.'s father.[3] On March 28, 2017, both M.B. and K.B were found to be children in need of protection pursuant to subsection 37(2)(l) of the Child and Family Services Act (CFSA), as it then was and he was placed in the care and custody of J.C. and Je.C. for a period of 4 months subject to the society's supervision. The mother's access to both children was ordered to be at the society's discretion.

[23] During the four month supervision order, the mother was to comply with the following conditions:

a) Sign consents, as requested by the society, for the release of information

b) Permit announced and unannounced home visits by society workers

c) Attend for medical appointments and follow through with medical recommendations

d) Secure stable housing

e) Participate in counselling as directed by her bail program and/or the society and follow through with recommendations

f) Participate in a mental health assessment as directed by her bail program and/or the society and follow through with recommendations

g) Participate in parenting programs as recommended by the society

h) Refrain from conflict with family members in the presence of M.B.

Facts Not in Dispute

[24] The following are material facts not in dispute:

a) M.B. has been in the care of his J.C. and Je.C. since September 26, 2016, after the mother was charged with assaulting her mother.

b) K.B. has been in the care of J.C. and Je.C. since he was released from hospital on December 3, 2016 following his birth. K.B. was brought to a place of safety by the society due to its concerns regarding the mother's mental health, the adequacy of her parenting skills, conflict between her and her mother, and domestic violence issues between her and K.B.'s father.

c) Both children were found to be in need of protection pursuant to clause 37(2)(l) of the CFSA, as the parents were unable to care for the children and the children were brought before the court with the parent's consent.

d) The children are doing very well in J.C. and Je.C.'s care.

e) After moving to his aunt and uncle's home, M.B. reported to the family services worker that he would not feel safe seeing or speaking to his mother until she received help.

f) In July 2017, M.B. felt ready for contact with his mother once per month for 15-30 minutes in the presence of his adult cousin or maternal aunt. A first visit was tentatively scheduled for August 18, 2017. The mother declined to attend the visits as proposed by M.B. and the society as she felt the visits should be supervised by the society or in the presence of a therapist to ensure neutrality. As the mother did not feel comfortable having a visit with M.B. in the community in the presence of a family member, the August 18, 2017 visit did not take place.

g) M.B. has seen his mother on two occasions since moving to the home of his aunt and uncle. These visits took place on October 28, 2017 and December 16, 2017.

h) At the visit between the mother and M.B. on December 16, 2017, the mother surreptitiously tape recorded the visit as she claims she needed to protect herself.

i) M.B. is currently in counselling to explore his relationship and experiences with his mother.

j) Since December 8, 2016, the mother has had two hour weekly visits with K.B. supervised by society. The mother has not consistently attended these visits.

k) Between November 2017 and May 2018, the mother attended a total of 17 out of a possible 31 visits with K.B.

l) In August 2017, the mother declined to have an additional one hour visit on Thursdays with K.B. as she felt that it would be hard on both her and K.B. to have a visit for only one hour after she travelled the "entire day" to attend the visit.

m) The mother deposed that she has been unable to consistently attend her visits with K.B. due to appointments or programs she had to attend as well as a lack of funds to pay for the travel to the visits which were a significant distance from her home and cost $31.00 round trip.

n) In September 2017, the society conveyed to the mother that if she suggested activities that she could do with K.B. in the community, the society was willing to support the mother's access to K.B. in the community supervised by J.C., as opposed to it taking place at the society's offices. The society asked the mother to contact J.C. and make suggestions as to what activities she could do with K.B. in the community. As the mother did not respond to the multiple requests by the society to report back to them on her suggested activities, the visits were not moved into the community.[4]

o) The mother and father of K.B. have had a conflictual relationship. The police have been called by the mother or the father of K.B. on at least six occasions between 2012 and 2018. The police were called on two occasions in 2014, one of which was for the mother to have a police escort to the father's home in order to retrieve her belongings. In 2015, the mother called the police when the father arrived at her home with a hammer demanding entrance into her home to retrieve his belongings. In 2016, the police were called over a dispute the mother and father had over various items in their home resulting in the police returning clothing to the mother that the father had taken from the laundry room.

p) May 3, 2018, the father of K.B. was charged with assaulting the mother which allegedly occurred on March 23, 2018 in a motel. It is alleged that the father pushed the mother to the ground and ripped her necklace off her neck. It is also alleged that he threw items at the mother while she was on the ground.

q) While the mother deposed that she was no longer involved in a romantic relationship with K.B.'s father, she does not deny that they have had regular contact and in fact were staying together in a hotel in March of 2018. According to a police report, they had moved into an apartment together on May 1, 2018,[5] just after the father allegedly assaulted the mother on March 23, 2018, that led to criminal charges.

r) The mother has been inconsistent in arranging and attending meetings with the society. The mother explains that her inconsistency is due to her access schedule, illness, the distance she travelled for access which made her tired the next day, the suspension of her social assistance, and other appointments she had to attend which were important to the work she was doing to have her children returned to her care which limited the time she had available to meet the worker.

s) Despite making several attempts to do so, the society was unable to successfully schedule a meeting with the mother between September 26, 2016 and March 20, 2017. The mother also did not meet with the Family Services Worker at all in November or December 2017.

t) The society attempted to meet with the mother following the most recent allegation of domestic violence in May 2018 and the leasing of an apartment in the father's name but the mother explains that she could not keep her meeting with the worker because her social assistance was suspended and she could not afford the cost of transportation.

u) The mother completed an anger management program in July 2017.

v) The mother attended the Mothers Who Care Parenting Program between October and December 2017 and Beyond the Basics Parenting Program in 2018.

w) The mother was referred for a psychiatric assessment in April 2017, by her doctor for "diagnostic clarification and treatment recommendations with respect to a history of anxiety, behavioural difficulties, drug use and a past diagnosis of a possible personality disorder."

x) The mother attended for the psychiatric assessment on April 25, 2017, and the psychiatrist reported that the mother's insight and judgment appeared poor and that he could not confirm or rule out a diagnosis of personality disorder based on the information he was able to obtain from the mother.

y) The mother attended three appointments with a psychiatrist between late 2017 and early 2018.

z) The mother is on the wait list for individual counselling to address issues of domestic violence through the Scarborough Women's Centre.

aa) The mother's supervised access to K.B. is reported by the society to be going well.

The Society's Plan for the Children

[25] The society seeks an order granting J.C. and Je.C. custody of M.B. and K.B. pursuant to section 102 of the CYFSA. The society requests an order that the mother's access to M.B. at the discretion of J.C. and Je.C. and in accordance with M.B.'s wishes. Access by the mother to K.B. would be supervised at a minimum of twice per month and shall be at the discretion of J.C. and Je.C. as to location, duration and frequency. K.B.'s father's access would be unsupervised and at a minimum of once per week but subject to the discretion of the aunt and uncle with respect to location, duration and frequency.

[26] K.B.'s father's position is that he should have access every other weekend from Friday to Sunday and one evening per week.

[27] J.C., who is a party to the litigation along with Je.C., asked the court to order access to K.B.'s father be twice per month rather than once per week as requested by the society.

The Mother's Plan for the Children

[28] The mother's plan is for the children to be returned to her care subject to the society's supervision. In the alternative the mother seeks generous unsupervised access including overnight access to M.B. and K.B.

[29] The mother's evidence is that the children will reside with her in her current apartment but that she may be moving soon. The mother's source of income will be Ontario Works but she hopes to obtain part time work after the children settle into her care. M.B. would be in grade 7 at a local school and K.B. will be enrolled in full time daycare. The mother would have the support of friends who live nearby and she hopes the children's maternal aunt and uncle J.C. and Je.C.

[30] Other than the mother's plan and the society's plan, there is no other plan before the court for either child.

Legal Considerations on a Status Review Application

[31] The court must determine whether a trial is required in this matter within the legal considerations that apply on a status review application. The status review application is brought pursuant to section 113 of the Act. Subsection 114 of the Act sets out the court's options on a status review application as follows:

114. Court may vary, etc.

Where an application for review of a child's status is made under section 113, the court may, in the child's best interests:

(a) vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order

(b) order that the original order terminate on a specified future date

(c) make a further order or orders under section 101

(d) make an order under section 102

[32] The statutory pathway on a disposition hearing is as follows:

1. Determine if the child continues to be in need of protection and as a consequence, requires a court order for his or her protection.

2. Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order.

3. If the child cannot safely be returned to a party with or without terms of supervision, determine whether the disposition that is in the child's best interests is to place the child in the care of a third party subject to the society's supervision (subsection 101(1); to grant custody of the child to a third party (Section 102); or, for the child to be placed in the interim or extended care of the society (Section 101).

4. If custody is ordered in favour of a third party or if an order is made for interim society care, the court shall make an order for access by the parent or person from whom the child was removed unless the court is satisfied that access is not in the child's best interests (subsections 105(1) and (2).

5. If the final disposition is an order placing the child in extended society care, existing access orders are terminated unless the party seeking access demonstrates that continued contact is in the child's best interests. The consideration of whether access is in the child's best interest must include a review of whether the relationship between the person seeking access and the child is beneficial and meaningful and, if relevant, whether the ordered access will impair the child's future opportunities for adoption (subsection 105(6).

6. If the court determines that access is in the child's best interests, make an access order containing the terms and conditions that are in the child's best interests (section 104 of the Act – formerly section 58 of the Child and Family Services Act).

[33] In determining the appropriate disposition, the court must decide what is in the children's best interests. The court considered the criteria set out in subsection 74(3) of the Act (formerly subsection 37(3) of the Child and Family Services Act) in making this determination. This subsection reads as follows:

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 child's views and wishes, given due weight in accordance with the child's 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 child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c)

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

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

(ii) the child's physical, mental and emotional level of development

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

(iv) the child's cultural and linguistic heritage

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family

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

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

(viii) the merits of a plan for the child's 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

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

[34] 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 discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H..

Analysis

Custody/Placement of M.B. and K.B.

[35] The record on this summary judgment motion provides sufficient evidence for the court to determine the issue of the custody/placement of M.B. and K.B. on a summary basis such that a trial on this issue is not required. In other words, the evidence that has not been disputed by the mother is entirely sufficient for the court to adjudicate the issue of placement/custody of M.B. and K.B. on a summary judgment motion. There are no material facts in dispute that create a genuine issue requiring a trial on this issue. The summary judgment process in this case is a fair and proportionate process that permits the court to conclude on a final basis without the need for trial, that it is in the children's best interests to be placed in the custody of J.C. and Je.C.

[36] The court is able to make this finding on the uncontested evidence and without resorting to the expanded powers afforded to it by Rule 16(6.1).

[37] It is clear on the uncontested evidence that the mother's plan for the children to be returned to her care is not viable and that the only order that would be in the children's best interest, taking into consideration the factors set out subsection 74(3) of the CYFSA, is an order granting J.C. and Je.C. custody of the children.

[38] The mother has not seen M.B., other than for two short visits since he was placed in J.C. and Je.C.'s care almost two years ago. While the mother may disagree with the reasons why M.B. has chosen not to see her, she does not dispute that he has only allowed for two visits between them since September 26, 2016.

[39] M.B.'s position on the motion as set out by the Office of the Children's Lawyer is that he wishes to remain in the care of his aunt and uncle and that at the present time he does not wish to see his mother.

[40] The mother has only attended 50% of her visits with K.B. since he was placed in J.C. and Je.C.'s care following his birth 20 months ago. The mother has been unable to demonstrate that she can exercise any unsupervised access to K.B. without risking his safety.

[41] The mother provides explanations for missing so many visits with K.B. including not having the funds to pay for the round trip transportation and having other important appointments to attend. The mother's explanations heighten the courts concerns about the mother's ability to care for the children and are facts that support the decision to grant custody to J.C. and Je.C. If the mother is unable to attend for weekly visits with K.B. how could she possible meet all of his needs on a full time basis?

[42] The mother has also been unable to address the serious issues that arise out of her conflictual relationship with K.B.'s father. While the parties cannot agree on whether the mother has in fact ended her relationship with K.B., there is no disagreement that the mother and K.B.'s father continue to have contact and that the contact has resulted in conflict and criminal charges as recently as May 2018.

[43] The basis for the contact between the mother and K.B.'s father is inconsequential to the court. What is important to the court is that the mother continues to have contact with K.B.'s father despite knowing that doing so leads to conflict and violence which continues to cause the society and the court to question whether she understands how maintaining contact with K.B.'s father puts the children at risk of harm and therefore is having a negative impact on her plan to have the children returned to her care.

[44] The mother acknowledges that her relationship with K.B.'s father has been conflictual and that at times M.B. was subjected to the conflict. Despite these acknowledgements, the mother has been unable to demonstrate over the last 22 months that she understands the risk that an ongoing relationship of any kind with K.B.'s father poses to the children.

[45] While the mother had 22 months to address the protection concerns, she did very little to do so. While she believes that the society did not provide her with sufficient assistance to address the concerns, the uncontested evidence demonstrates that the contrary is true. Despite several attempts to meet with the mother following M.B.'s removal from her care in September 2016, the mother did not meet with a society worker until March 20, 2017, six months after M.B. began living with his aunt and uncle and 3 months after K.B. was brought to a place of safety.

[46] The society attempted to engage the mother and assist her in obtaining services and housing. She was unable or unwilling to take advantage of the assistance being afforded to her by missing many scheduled appointments or not cooperating to schedule appointments with the society.

[47] Despite the conflictual relationship with K.B.'s father being a serious protection concern, the mother has not engaged in counselling to address this issue despite having almost two years to have at least begun counselling.[6]

[48] Despite the society offering to assist the mother in obtaining secure housing, the mother missed a scheduled appointment with the worker to complete the necessary forms to obtain housing and instead moved into an apartment that was leased by K.B.'s father.

[49] The society and the mother are at odds with respect to whether the mother has mental health issues and if so, if they have been adequately addressed by the mother. What the court must focus on in its decision is the mother's actions and inaction; not a diagnosis or the lack thereof. What is clear and undisputed are the mother's struggles with managing her relationship with K.B.'s father, her inability to address the impact this relationship has had on her, M.B. and her relationship with M.B., and, securing housing and a regular income source.

[50] Rather than focusing on what if any mental health struggles the mother has, the court relies upon the undisputed fact that the mother has not taken sufficient steps to address the reasons for her only having seen M.B. twice in almost two years and her only being able to exercise supervised access to K.B. of which she was only able to make approximately 50% of the scheduled visits.

[51] There is insufficient evidence before the court to demonstrate that the mother is able to meet either child's physical, emotional or psychological needs on a full time basis. She has not taken meaningful steps to address the impact of her relationship with K.B.'s father on her and her children and she has taken no steps at all to address her troubled relationship with M.B. In fact, the mother denies all of the allegations that have been made by M.B. and the society that would explain M.B.'s refusal to have regular contact with his mother.

[52] The mother does not adequately explain how she would implement her plan in relation to M.B. given that he has only visited with her twice in 22 months. The mother ought to have taken steps over the last 22 months to engage with service providers who could assist her in exploring what the root causes might be for M.B. to resist contact with her. As a result of her failing to do so, the mother's evidence does not elucidate for the court how her plan will be implemented when M.B. has refused contact with her over the last 22 months. She has not provided any details of her plan for reunification of M.B. into her home.

[53] Unfortunately, the mother has not done enough to demonstrate insight into the reasons the society became involved with her family and why her children have not been returned to her care.

[54] In order for the return of K.B. to the mother's care to be a possibility, she would have had to demonstrate that she could adequately parent the children without supervision for extended periods. This would be a lengthy process in which the court would want to assess the mother's ability to care for him first, on a fully unsupervised basis, second for full days, and third, for overnight visits. The process of evaluating extended access never took place as the mother did not demonstrate an understanding of the protection concerns or a willingness to address them. The mother has only had limited supervised access to K.B. yet she never moved before the court to increase her access, despite being represented. As a result, the mother has not demonstrated that she can care for K.B. without supervision making his return to her care contraindicated by the uncontested evidence before the court.

[55] As a result of the mother's inability to address the protection concerns, both M.B. and K.B. continue to be in need of protection and require a court order for their protection.

[56] The evidence before the court is that J.C. and Je.C. have been and are able to continue to meet the physical, emotional and psychological needs of the children.

[57] The record before the court on this summary judgment motion discloses no genuine issue with respect to the custody order being sought by the society in favour of J.C. and Je.C. that requires a trial. It would not be in the interest of justice to order a trial in this case as the summary judgment process is proportionate, more expeditious and less expensive than a trial and most importantly, it allowed the court to make the necessary findings of fact and apply the law to the facts such that the court can fairly and justly adjudicate the issues and resolve the matter summarily.

Access by the Mother to M.B. and K.B. and by the Father to K.B.

Legal Considerations in an Application for Access by the Mother to M.B. and K.B. and by the Father to K.B.

[58] Section 104 of the CYFSA sets out the court's powers in relation to access. It reads as follows:

104(1) – Access order

The court may, in the child's best interests:

When making an order under this Part; or

Upon an application under subsection(2),

make, vary or terminate an order respecting a person's access to a the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[59] The best interests considerations are set out in subsection 74(3) of the CYFSA. The court is mandated to consider the child's views and wishes and give due weight to those views in accordance with the child's age and maturity, unless they cannot be reasonably ascertained. The only other mandatory consideration in determining best interests is the consideration of preserving the cultural identity and connection to community for a First Nations, Inuk or Metis child.

[60] The parties all agree that the mother should have access to M.B. and K.B. and that K.B.'s father should have access to him. The parties do not agree on what the terms of access should be. In fact, J.C. asked the court to order less access by K.B.'s father than requested by the society.

[61] Despite seeking a final order granting the mother access to M.B. at the discretion of J.C. and Je.C. and "in accordance with the child's wishes", neither the society nor the Office of the Children's Lawyer, provided the court with evidence of M.B.'s current, up to date views and preferences with regard to contact with his mother. This information was lacking despite the fact that the legislation requires the court to consider the child's views and wishes and give those views and wishes appropriate weight given their age and maturity.

[62] While the evidence before the court is that M.B. is happy in his aunt and uncle's care and doing well in school and socially, the evidence the court is asked to rely upon in relation to his views and preferences with respect to contact with his mother is from July 2017, over a year ago.

[63] The court is in no position to make a final order in relation to the mother's request for access to M.B. on the evidence before the court. This issue will require a focused hearing.

[64] The court is faced with a similar dilemma in relation to both the mother's and father's request for access to K.B. The evidence before the court falls far short of what is required to decide the issue on a summary judgment motion. The very fact that the society and J.C. and Je.C. do not agree on the appropriate level of access creates a genuine issue requiring a trial. In addition, the mother opposes the society's request that the mother's access be at the discretion of J.C. and Je.C. as she alleges that they will not exercise this discretion appropriately. As the society did not include affidavit evidence from J.C. and Je.C. on the motion, the mother's allegation in this regard also creates a genuine issue requiring a trial. It may be that a more detailed access order is required than is being requested by the society. That will be an issue to be decided by the trial judge.

[65] The court finds that the summary judgment motion is not a fair and just process to determine the issue of the mother's access to M.B. and K.B. and the father's access to K.B. The record on this motion with respect to the issue of access by the mother and the father raises genuine issues that require a trial to resolve.

Other Orders Requested as Incidents of the Custody Order

[66] The society seeks final orders permitting J.C. and Je.C. to obtain government issued documents for the children without the parents' consent or signatures on the applications and to travel with the children with notice to the parents but without their consent.

[67] These orders can also be made on the record before the court on this summary judgment motion. It is in the children's best interests that their custodians have the ability to apply for and obtain government issued documentation as required. The mother's evidence before the court is that she does not have a good relationship with her sister and she does not trust her, for example, to act in good faith to facilitate her access with the children. It is clear that the mother sees her relationship with J.C. to be strained. The court is concerned that if the mother's consent is required before J.C. and Je.C. can obtain documents for the children or travel on vacation with them, it may cause unnecessary conflict and stress which no doubt could have an impact on the children. Furthermore, the court would not risk the possibility of the children not having the documents to, for example, obtain medical treatment as needed or be able to travel with the J.C. and Je.C. on vacation.

[68] The court is also mindful of the evidence of the mother not communicating with or meeting with the society on a regular basis and missing almost half of her visits with K.B. This suggests to the court that there is the possibility that the mother either may not be available or will not make herself available if needed to sign applications for government issued identification or documents consenting to the children travelling with J.C. and Je.C. This evidence is further confirmation for the court that the orders being sought as incidents of the custody order in favour of J.C. and Je.C. are appropriate and in the children's best interest.

[69] As it would not be in the children's best interests for their caregivers to endure conflict in the future over the issue of obtaining documents or travelling with the children, it is in their best interests to make the orders requested by the society at paragraphs 2, 3, 4, and 5 of their Notice of Motion at Tab 1 of the Society's Summary Judgment Motion Record. The court finds that the record on the summary judgment motion provides sufficient evidence to make findings of fact, apply the law and do so in a manner that is fair and proportionate such that a trial on these issues is not required.

Should Notice of a Future Motion to Change be Given to the Society?

[70] The society asks for an order requiring the parties to provide it with notice of any motion to change the final order for custody and access. The society has not explained in their affidavit evidence or in submissions why this order is being requested and what evidence the court should rely upon to make the order on a summary judgment motion.

[71] As there is no evidence before the court to suggest that J.C. and Je.C. have ever acted contrary to the children's best interests or exposed them to an unsafe situation, especially in relation to their access to their parents, the court sees no reason to grant the order being requested by the society. The court is puzzled by the request as it seems somewhat contradictory to ask that J.C. and Je.C. be given the responsibility of caring for the children and meeting their needs on a daily basis but at the same time suggest that the society's involvement would be required if, for example, one of the parents brought a Motion to Change.

[72] J.C. and Je.C. are being entrusted with the care of M.B. and K.B. This responsibility includes acting appropriately and in the children's best interests should either parent bring a Motion to Change. There is no evidence before the court on this motion that suggests while J.C. and Je.C. are fit to have custody of the children and discharge all the responsibilities that go with such an order that they would require the society's supervision in the event they find themselves before the court on a Motion to Change this order.

Evidentiary Issues Raised by the Mother

[73] At the commencement of the motion, the mother objected to various statements contained in the society's affidavit evidence on the basis that they were inadmissible hearsay. A detailed chart was prepared by the society and after some discussion between the parties, the court was asked to rule on various statements in the society's affidavit evidence attributed to the child M.B. and one statement attributed to a society worker.

[74] The statements the mother objected to as inadmissible hearsay that the court should exclude included statements made by M.B. when asked to explain a drawing he was asked to make by a society worker; M.B.'s description to a worker of living with his mother and R.M. of the conflict and violence in the home; and, the nature of M.B.'s relationship with his mother.

[75] The mother objected to the admissibility of this evidence on the basis that it is not necessary for the evidence to be introduced through someone other than M.B. and that the method or manner in which the statements were obtained was not sufficiently reliable to overcome the dangers associated with reliance on hearsay evidence.

[76] As the court did not rely on any of the statements objected to by the mother in formulating its decision, it is not necessary to rule on the mother's objections. There is nothing prohibiting the mother from raising her objections at the hearing on the issue of access if the society seeks to introduce the same hearsay evidence.

Order

[77] Based on the reasons set out above, orders to go as follows:

a) The maternal aunt and uncle, J.C. and Je.C. shall have custody of the children M.B. and K.B. pursuant to section 102 of the CYFSA.

b) J.C. and/or Je.C. shall be permitted to travel with either child outside of Ontario without the consent of either the mother or father. The parents, except for M.B.'s father, shall be notified of such travel at least one month in advance of the travel dates.

c) J.C. and/or Je.C. shall be permitted to obtain government issued identification for either child without the consent of either the mother or father or their signatures on the application forms.

d) There shall be a focused hearing concerning the terms of the mother's access to M.B. and K.B. and the terms of the father's access to K.B. The parties shall attend the trial assignment court on October 10, 2018 at 2:00 p.m. If possible, this hearing shall be scheduled before me.

e) A Trial Management Conference shall be scheduled before me at least three weeks prior to the next assignment court. The parties shall complete a Trial Scheduling Endorsement Form prior to the Trial Management Conference before me identifying who their witnesses will be and whether evidence will be admitted by affidavit or orally. In addition, the parties will be prepared to advise the court if they will be calling expert evidence and whether they anticipate any evidentiary issues.

Released: August 22, 2018

Signed: Justice Melanie Sager

Footnotes

[1] The contents of this paragraph come directly from the Statement of Agreed Facts signed by the mother in relation to M.B. on March 28, 2017.

[2] At this point the mother was pregnant with K.B.

[3] This statement is taken directly from the Statement of Agreed Facts signed by the parties on March 28, 2017.

[4] The mother deposes that the visits in the community did not take place because her sister "was not agreeable to anything I proposed" but she does not deny the worker's statement that the mother never followed up with her or returned her calls to discuss this issue.

[5] The mother denies that they were living together and explains that the father simply utilized his good credit to secure an apartment for her.

[6] The mother's evidence is that she is currently on the waitlist for counselling at the Scarborough Women's Centre.