WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,

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

where the court is of the opinion that . . . publication of the report, . . ., 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.

(8) PROHIBITION: 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.

(9) IDEM: ORDER RE ADULT — 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.

85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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: April 18, 2017

Court File No.: C80699/15

Parties

Between:

Children's Aid Society of Toronto Applicant,

— and —

T.R. (mother) R.McQ. (father) E.H.-J. (maternal grandmother) Respondents

Before: Justice Roselyn Zisman

Heard on: April 5, 2017

Reasons for Judgment released on: April 18, 2017

Counsel

• Laura Goldfarb — counsel for the Applicant society
• Robert Shawyer — counsel for the respondent mother T.R.
• Reide Kaiser — counsel for Respondent father R.McQ.
• Shelley Quinn — counsel for Respondent maternal grandmother E.H.-J.

Zisman J.

1. Introduction

[1] This is a summary judgment motion brought by the Children's Aid Society of Toronto ("society") with respect to an Amended Status Review Application seeking an order that the child H.J. born […], 2015 ("the child, H. or son") be placed in the care and custody of E.H.-J. ("the maternal grandmother"), pursuant to section 57.1 of the Child and Family Services Act. The society also seeks an order that access shall be at a minimum of once per week for two hours either supervised at a community access centre or by a third party as agreed between the parties. The society submitted that it was also agreeable to unsupervised access in the community, at a minimum of once per week for two hours, with exchanges at a supervised access centre or at a mutually agreeable location. Any further access to be at the discretion of the maternal grandmother.

[2] T.R. ("the mother") and R.McQ. ("the father") seek an order to place the child in their joint care subject to reasonable terms of supervision. It is their position that there is a triable issue both with respect to the section 57.1 order and access. Neither parent cited the specifics of the access they were requesting.

[3] E.H.-J. ("maternal grandmother") supports the position of the society granting custody to her and some ancillary orders and wishes access to be supervised at her discretion on reasonable notice.

[4] As this is a Status Review Application the issues to be determined on this summary judgment motion are as follows:

Issues

a) Is there a genuine issue requiring a trial that there are continuing grounds for a finding in need of protection?

b) If so, is there a genuine issue requiring a trial for a disposition that the child be placed in the care and custody of the maternal grandmother pursuant to section 57.1 of the Child and Family Services Act?

c) Is there a genuine issue requiring a trial on the issue of access to the parents?

2. Background and Undisputed Facts

[5] The society became involved with the parents due to concerns reported by the hospital staff that the mother used drugs while pregnant with the child. The mother admitted that she was on methadone due to an addiction to Percocet and pain medication. The mother also admitted that she used cocaine once or twice a month but she was unaware at the time that she was pregnant.

[6] The mother began to attend a methadone clinic in the summer of 2014 where weekly urine tests are conducted. She consistently used cocaine throughout her methadone treatment with positive test results from October 2014 to April 2015.

[7] As of May 1, 2015 on a temporary without prejudice basis the child was placed in the care of the maternal grandmother. However, the child was required to remain in the hospital for about 6 weeks in order to withdraw him from his prenatal exposure to drugs. The child has been in the physical care of the maternal grandmother since May 27, 2015 to the present time.

[8] At the time of the temporary order, the society had concerns about the relationship between the parents, that domestic conflict was not being addressed and the number of missed access visits.

[9] On July 20, 2015 the child was found to be in need of protection pursuant to section 37(2)(b) of the Child and Family Services Act.

[10] The mother attended several intake appointments to address her misuse of drugs with treatment facilities. The mother was also referred to a mentor program and attended two sessions. The mother reported that she was attending Narcotics Anonymous. The mother also continued to be tested at the methadone clinic that reported that she had tested positive 3 times for cocaine between June and September 2015. When advised of the positive test results the mother told the society worker that she had not used cocaine in a long time, that the clinic never advised her of the positive tests and she did not want to commit to any treatment services.

[11] On December 1, 2015 the parties executed a Statement of Agreed Facts. The parents agreed that the child be placed in the care and custody of the maternal grandmother subject to society supervision for 6 months.

[12] The terms of supervision as related to the parents included terms that the mother present a treatment plan to address her drug problems, that both parents comply and agree with any referrals by the society, that the parents agree to drug testing by the society or as required by any treatment providers, sign any reasonable consents and attend for a parenting program. The parties agreed that access be at a minimum of twice a week for each parent with a meeting to be arranged in about 3 months to discuss increasing access.

3. Evidentiary Issues

[13] In this case the society relied on the pleadings, the Statement of Agreed Facts executed on December 1, 2015, the affidavits of Carina Koletsas, the family service worker, Teeran Narain-Turner, a family support worker and a brief reply affidavit of Nancy Diamond the current family service worker.

[14] The affidavit of Ms Koletsas is replete with hearsay and although there were no objections to the contents of the affidavit, a judge hearing a summary judgment motion has a duty to evaluate the quality of the evidence. Generally, a court should demand evidence that is solid, credible and in most cases from first-hand knowledge.

[15] I rely on the line of cases that hold that hearsay evidence should only be admitted when it meets the criteria of necessity and reliability and that the evidence on a summary judgement motion should be of a level and quality that could withstand the rigour of a trial.

[16] It is important to consider that the basis for the inadmissibility of hearsay evidence is that it is being introduced for the truth and that there is an absence of a contemporaneous opportunity to cross-examine the deponent. Not all hearsay statements are admitted for their truth. For example, frequently in child protection proceedings such evidence is merely a backdrop to understanding the context of actions taken by a society as a result of the information without any reliance of its truth. Generally it is the society's evidence that is being scrutinized, however there is no rationale that would require the society to meet this standard and that there be a lower standard for parents' counsel.

[17] As the parents signed the Statement of Agreed Facts, any third party information that was included in the Statement of Agreed Facts is therefore admitted by the parents and is admissible.

[18] Ms Koletsas' affidavit is full of third party hearsay such as discussions with various service providers regarding the mother and the father's attendance at various programs, admissions by the mother to a third party, discussions with the mother's doctor at the methadone clinic, the mother's ODSP worker, the police, and the mother's landlord. If this evidence was relevant and material, the society should have obtained police records, medical reports, affidavits or at least reports from the third party service providers.

[19] I have examined the hearsay evidence in considerable detail to ascertain what is admissible that is, what evidence is being tendered for its truth and what evidence is simply being included for background and for context to explain steps taken by family service worker or to explain discussions she had with the mother or the father. For example, when the family service worker discussed with the mother the results of her drug screens, any admission by the mother to the family service worker is admissible. Some of the evidence such as historical issues regarding a lack of housing or historical assessments of the mother, I find is no longer relevant.

[20] There is no dispute with respect to the fact that the parents attended various programs or that the family service worker spoke to their counsellors or facilitators. However, the content of those discussions, which are highly relevant, is in dispute. But the parents either just baldly deny the information or do not refer to it at all. Although it is expected that the evidence is reliable as it is from a neutral third party, the proper manner of presenting that evidence by the society should have been through filing reports from the service providers (which it did for one program), obtaining affidavits from the service providers or filing police reports or other evidence as business records in accordance with the provisions of the Evidence Act.

[21] As an example of the problem that can arise in presenting evidence in the manner done in this case, Ms Koletsas describes a conversation she had with the facilitator of the Caring Dads group that the father attended and she also attached a summary letter from the facilitator to her affidavit. The contents of the letter are not as critical about the father's participation in the group as is the summary of the telephone discussion set out in Ms Koletsas' affidavit. Accordingly, how can the court evaluate the reliability of that particular evidence? The facilitator should have been requested to put all of the information in a sworn affidavit if the society wished to rely on the information outlined in Ms Koletsas's affidavit in addition to the contents of the summary letter. I am not prepared to rely on the hearsay discussion between the family service worker and the group's facilitator and only rely on the information in the summary letter.

[22] However, I have also considered that as this is a summary judgment motion, once the society has met its onus of proving there is no genuine issue requiring a trial, which I find should be based on admissible evidence, the onus shifts to the parents to set out specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence. In this case, if the parents did not agree with the society's information from the third parties I would have expected that they would have filed reports that contradict the society's evidence. I draw an adverse inference from their failure to do so. However, in my view this does not mean that a society should rely on affidavits filled with inadmissible hearsay and then wait to see if the parents contest the evidence.

[23] There is also inadmissible evidence in the mother's affidavit as the mother is attempting to introduce purported expert evidence without any regard to the Family Law Rules or the test for the admissibility of expert evidence. The mother included a paper by Dr. Barry Lester, who she described as a national expert on drug-exposed babies, entitled "False positives can be triggered by everything from cold medicines and diet pills to poppy seeds". The article summarizes a study that found that urine tests are not reliable and that a confirming test is required. The mother also quoted and attached another article by a Dr. Hamdan that states that urine analysis used for testing during pregnancy is unreliable and meconium analysis is considered the best method for detecting drug exposure during pregnancy. The mother then quotes the article to depose that meconium can be detected as far back as the second trimester and therefore she did not use drugs while pregnant with her second child. However, it is inadmissible to simply attach articles to an affidavit and then rely on that evidence.

[24] What is not clear is why the mother would not have attended with her doctor at the methadone clinic to discuss the possibility of "false negative" results and then filed a report from the doctor to explain a possible alternate explanation of the mother's positive drug test results. When the urine results were positive for the parents' second child G., who was born […], 2017 ("G." or "daughter"), the society arranged for the child's meconium to be tested and it was negative. As submitted by society counsel, the society is not relying on G.'s test results but those of the mother's.

[25] In coming to my decision, I have only relied on first hand admissible evidence or any reliable reports that were filed and I rely on any admissions by either parent.

4. Summary of Relevant Evidence with Respect to the Society's Ongoing Concerns and the Parents' Evidence in Response

4.1 Substance Abuse

[26] Ms Koletsas, the family service worker contacted a counsellor at Jean Tweed in April 2016 to discuss the mother's drug treatment. Based on a discussion between herself and the counsellor, it was reported that the mother was not really working with her, missed some appointments, has little insight and was impulsive and did not follow through. Subsequently, the family service worker was advised that the mother stopped working with the counsellor and requested to only speak through lawyers. The mother denied that she was not engaged in this program. The mother deposes that she attended 2 sessions in January and February 2016 and had a brief counselling sessions in May 2016 and spoke to the counsellor on the telephone numerous times.

[27] In June 2016, the mother completed a 21 day drug treatment at the Toronto East General Hospital. Although the mother missed a few sessions as she was ill, she otherwise attended. The mother was advised that she could attend an after-care program one evening a week, but the mother did not attend.

[28] The family service worker contacted the mother's doctor at the methadone clinic she attended. In May 2016, the family service worker was advised that the mother had clean screens since October 6, 2015. However, when the family service worker again contacted the doctor in December she was advised that the mother tested positive for cocaine twice on July 3 and 5, 2016 and positive for oxycodone on November 9, 2016. These positive screens occurred while she was pregnant with her second child.

[29] When the family service worker asked the mother about the positive test results the mother denied the use of oxycodone. The mother also denied the use of cocaine and stated that she must have been exposed to the drug without knowing it.

[30] When the mother's child G. was born, her urine screen was tested and it was positive for methadone, gravol and ephedrine (which could be a sub drug of amphetamines). The society requested that the child's meconium be tested. Those tests results were negative for all drugs except methadone.

[31] The mother deposes that she did not know she was pregnant with H. until she was 5 months pregnant and that she had engaged in the recreational use of drugs and that she was also on a methadone program since August 2013 and therefore she was unintentionally taking methadone during her pregnancy. The mother denies any drug use since September 2015. The mother does not explain why she continued to use methadone during her pregnancy with her daughter but she does depose that her dosage of methadone was decrease significantly since the birth of her son H. However, the mother did not file any reports from her doctor.

[32] The father denies that the mother uses drugs. He deposes that he only uses marijuana to relieve pain. He further deposed that he was in the process of obtaining a prescription for medical marijuana.

4.2 Domestic Conflict

[33] In October 2015, the father was charged with assaulting the mother. The mother suffered a black eye as a result of the altercation. The father was released on bail terms to have no contact or communication with the mother and not to be within 500 metres of her except for court purposes and for access in the presence of a society worker.

[34] The father did not comply with the terms of his release not to have contact with the mother as she became pregnant with his child. The parties' second child G., a daughter, was born on […], 2017. The father does not deny that the parties had contact in contravention of his release terms but only denies that the parties lived together. The mother admitted that they have been living together since July 2016.

[35] In October 2016, the mother disclosed to the family service worker, that the father had been verbally abusive to her and that she was scared of him. She admitted that she had called the police a few times to have him removed from their apartment and that at other times the neighbours had also called the police due to their arguing. While Ms Koletsas was at the mother's home speaking with her, the father's texts were coming in non-stop. The mother showed Ms Koletsas some of the texts and they were disrespectful and verbally abusive.

[36] In February 2016 the father was charged with uttering threats along with two other males. All of the men were wearing ski masks and all but the father were holding bats and a metal pole. The father deposes that he was not involved in the incident and the charges were dropped against him but not against the other individuals.

[37] The father denies that he assaulted the mother and deposes that they were in a bar where they were assaulted by his ex-girlfriend and some of her friends and the mother received a black eye and his face was scratched. The father also deposes that the mother wrote a statement describing the circumstances of the assault that was provided to the Crown and his charges were stayed.

[38] The mother in her affidavit denies that she was ever scared of the father. She states that they had some "bad moments" like other couples and they know they need to be respectful and not expose their children to any conflict. She further deposes that their communication has dramatically improved since the father completed the PARS program. The mother does not otherwise make any reference or denial of the assault in October 2015 or other incidents where the police were called to their home.

[39] The family service worker referred the father to the Caring Dads program to address issues of domestic conflict and anger management. The family service worker spoke to the facilitator, Sarah Kerr, of the Caring Dads program who also provided a summary letter. The father only attended 8 of the 12 sessions due to illness and because he started a new job. The summary indicates that if the father had been more committed to attending the group consistently he could have gained more from the group as he missed a lot of material in the missed sessions. Ms Kerr indicated that initially the father struggled to see how his behaviour impacted on others and instead blames others, such as the society and his partner's family. He also challenged the facilitators as to how they could teach the course if they were not parents. But as the group progressed he was able to be more self-reflective and was able to take some accountability for his behaviours.

[40] The father reported that he completed the PARS program and that all of his criminal charges were withdrawn on February 14, 2017. The father told the family service worker how beneficial he found the PARS program and that he and the mother are communicating more positively and they can now disagree without an argument becoming explosive. The family service worker called the number provided by the father to confirm his attendance but by the hearing of the summary judgment motion she had not yet heard back. The father did not file any report.

4.3 Housing

[41] Although historically the mother had been unable to maintain a stable residence and resided in 3 separate apartments between December 2015 to July 2016, as of July 2016 the mother moved into a basement apartment and has been able to maintain it.

[42] When the family service worker attended the residence unannounced in September 2016, the father would not meet with her or allow her access to the residence. However, subsequently she has been allowed access for announced visits. No concerns were noted with the state of the home although the family service worker observed on several occasions there was very little food in the home and no fresh food in the fridge. The parents deny this allegation.

4.4 Poor Money Management

[43] The family service worker deposed that she was not confident that the parents would be able to provide for a child's basic necessities. The mother frequently advised during access visits that she had no money for provisions for her child and was unable to bring snacks or diapers. She observed little food in their home. The parents were frequently observed to take taxis to and from access visits but insisted on receiving bus tokens. The father agrees that on occasion they took taxis to avoid being late but that it was only $10.00 and he paid for them.

[44] Family service worker asked the parents for a financial plan in November 2016 and again in mid-January as part of their planning for their second. The plan, presented on January 30, 2017, indicated that the mother received $2,150 per month and that since April 2016 the father earned $2,600 per month working with a lumber yard.

[45] The family service worker had been asking the mother for consent to speak to her ODSP worker in June 2016. The mother finally provided that consent in January 2017. The family service worker confirmed that the mother is receiving $1,128 per month plus $32.50 for transportation. The mother had to pay back an overpayment of $54.00 per month due to receiving funds for her son while he was in the care of maternal grandmother. Accordingly, the mother was receiving funds for her son while she was still indicating to the family service worker that she did not have funds to provide snacks or diapers. The mother did not dispute this allegation or provide any explanation.

[46] The maternal grandmother told the family service worker that she had loaned the mother $300 that was not repaid. The maternal grandmother also told the family service worker that the mother told her that she did not have money for transportation or to register her daughter's birth or apply for a health card. Therefore the maternal grandmother registered the birth and applied for the health card. The mother did not deny these allegations.

[47] During a meeting with the family service worker in February 2017, the father advised that he had been laid off from his job at the lumber yard since July 2016. He reported that he had been lying to the society and to the mother since July. He would pretend to go to work each day and just go to his friend's house. The father denied he told the worker this and said that he only went to his friend's house to use the internet to search for a job. He also blamed the society for the layoff as he missed so much work due to access visits and court attendances. He further reported that he had a new job with a moving company and was earning the same income and he also worked on week-ends selling t-shirts to supplement his income.

[48] The family service worker explained to both parents that she was concerned about their dishonesty and that the father had repeatedly told her he could not attend access because of his employment.

[49] The father provided his consent for the family service worker to speak with his new employer but the telephone number provided by the father was out of service. In his affidavit the father maintains that he gave the family service worker the right telephone number.

4.5 The Mother's Behaviour

[50] The family service worker deposes that in her experience the mother becomes easily escalated and confrontational with society staff. She cites the following examples:

a) The maternal grandmother reported that in June 2016 the mother made death threats against her if she were to try and obtain custody of H.;

b) During access visits she has observed the mother appear frustrated and annoyed and refusing to engage with the workers;

c) At a service meeting, the mother yelled at the family service worker's supervisor, "I hate your face";

d) On January 4, 2017 the mother called the society counsel a "bitch" at court; and

e) Recently both parents have been making numerous false allegations against her in an attempt to have her removed from their case.

[51] The family service worker deposes that she is concerned about the mother's behaviours and how her behaviours and reactions may impact on any children in her care. The family service worker deposes that at times the mother can be calm, co-operative, engaging and rational and that they have had some positive meetings. However, at other times the mother can be explosive, irrational, impulsive and unpredictable. She also presents as moody and angry a lot of the time.

[52] The mother does not deny any of the incidents alleged by the family service worker. The father blames the family service worker and alleges that he had valid concerns about her without any specifics and states that she is no longer their worker.

4.6 Parenting Capacity

[53] The mother advised the family service worker that she is in receipt of ODSP due to a learning disability.

[54] The society has concerns based on historical psychological and educational assessments of the mother. The most recent being 2003. The society does not have any updated psychological or psychiatric assessments.

[55] The society alleges that both parents have presented as immature and inexperienced and have not initiated any parenting programs to increase their confidence and parenting skills. The mother does not respond to these allegations and the father states that he requested parenting program information and the family service worker told him that the society does not provide such information.

[56] The parents requested additional access to demonstrate their parenting skills but when offered they asked for access to be reduced.

[57] The family service worker made a referral to the society's therapeutic access program to work on their parenting skills. Due to the large amount of missed access visits and lack of consistency with the mother's access to her son, the mother was not a candidate for the program.

[58] The society also alleges that the mother was also not open to working with the parenting support worker.

[59] The mother does not deny, respond or otherwise explain her lack of participation in any services offered by the society.

4.7 Access

[60] Teeran Narain-Turner, a family support worker deposed that she was assigned to supervise the parents' access as of December 7, 2015. At that time the visits were once a week for 2 hours fully supervised and the parents were expected to call ahead to confirm their attendance. In total, Ms Narain-Turner supervised 30 visits. The family service worker also supervised access as did other workers.

[61] From December 7, 2015 to January 25, 2016 as there were no telephone calls from the parents, there were no access visits. At the first visit thereafter, the mother stormed out after being told that the visit would be fully supervised. The parents also did not visit from February 1 to 22, 2016.

[62] In March 2016, the mother's access was increased to twice a week on Tuesdays and Thursdays for 2 hours at the society offices.

[63] The mother did not attend or did not attend on time for the first year that H. was not in her care. There was some improvement, but she missed the majority of the visits.

[64] From October 2016 to February 2017 the mother missed 24 visits. The mother blames the maternal grandmother for not bringing H. and alleges that the maternal grandmother frequently cancelled visits. However, there was no evidence provided to substantiate this allegation, such as case notes. The mother also states that she never cancelled visits without a good cause but provides no further details.

[65] In the fall of 2016, one of the weekly visits was increased to 3 hours; however, at the mother's request in November, it was reduced again to 2 hours. The mother was frustrated and said that she couldn't be there for 3 hours and did not know why the father, who was not present for the access visits, requested the change. The mother said that, "I am not going to lie, I don't want to be here, and can't be in this room or agency for three hours." The mother further said that she was "sick and tired" of coming to the society to have access to her son. She expressed that it would be different if she was at home or out for a walk.

[66] The father's access was scheduled for Tuesdays but he asked to come with the mother on Thursdays due to his work schedule and court attendances. He indicated that he would always be able to come on the Thursday mornings but then from October 2016 to February 2017 he missed 12 visits.

[67] With respect to his missed visits, the father deposes that he told the worker he could not guarantee full attendance and that was the reason he requested Saturday visits.

[68] Overall the society workers expressed the following positive and negative aspects of the visits as follows:

a) During the first year, the mother and father missed most of the visits or were late; although there were some improvements, both parents continued to miss many visits;

b) When the mother attends visits, the visits are generally positive and the mother is able to meet the instrumental needs of the child;

c) When the father attends visits, he is affectionate with the child and he is able to meet the instrumental needs of the child;

d) The mother has taken the child off site for a walk or to the park, no concerns have been reported;

e) The mother does not bring any snacks or other provisions for the child. The father would often bring a snack or buys juice for the child;

f) The mother has been observed to be aloof with the child rarely smiling or seeming to have fun with him; and

g) The mother was also reported to be aloof with the family support worker. The mother from the outset would not participate in discussions pertaining to parenting issues, milestones and age appropriate behaviours. Accordingly, the family support worker was unable to do any teaching with the mother.

4.8 Prenatal Care and G.'s Birth

[69] The family service worker expresses concerns about the pre-natal care received by the mother and the subsequent birth of her daughter G. on January 20, 2017. All of the evidence relied upon is hearsay from either the mother's obstetrician or the doctor's assistant.

[70] I am not prepared to rely on any of that evidence on this motion due to its hearsay nature.

[71] G. is subject to a separate outstanding protection application. However, the evidence with respect to her birth and placement is relevant to the issues the court needs to consider on this motion.

[72] In the reply affidavit of Nancy Diamond, the current family service worker, states that G. was in the hospital for 6 weeks after her birth so she could withdraw from methadone. G. was initially placed with the paternal grandmother and the parents jointly with specific terms of supervision including that the parents be supervised at all times. That placement broke down within 2 weeks after G. was released from the hospital, due to the parents' failure to comply with the terms of supervision. On March 15, 2017 G. was placed in the care of the maternal grandmother.

5. Evidence with Respect to Plans of Care

5.1 Plan of Care of the Society and Maternal Grandmother

[73] The plan of the society as supported by the maternal grandmother is to continue the child's placement with the maternal grandmother.

[74] The maternal grandmother took a leave of absence from her employment when the child was initially placed in her care in May 2015. The maternal grandmother has ensured that the child's medical and dental needs are met. The child has been followed in the Neonatal Clinic at the Toronto General Hospital since birth and the maternal grandmother reports that he is meeting his expected milestones.

[75] The maternal grandmother describes the child as a happy, well-adjusted child who loves to dance, play and be read to. As of February 2016, the maternal grandmother returned to work part-time and H. is being cared for by his maternal aunt who also has a young daughter. On a weekly basis H. attends a library reading program and other community programs.

[76] Since G. was also placed in the maternal grandmother's care in March 2017, H. has adjusted and slowly warmed up to sharing her attention and is starting to show an interest in his baby sister.

[77] Since G. was placed in her care, maternal grandmother has permitted the parents to attend at her home to see both H. and G. She has asked the mother to come daily and the father is coming once a week but has been invited to come twice a week. The maternal grandmother deposes that so far the visits, under her supervision, have gone well.

[78] The maternal grandmother is prepared to provide long-term care for H. and deposes that she can provide him with a stable, safe and loving home.

5.2 Plan of Care of the Parents

[79] The parents propose that the child will be cared for by both of them and that they are also in the process of attempting to have their daughter returned to their care.

[80] The mother will be a stay at home mother and continue to receive ODSP funds while the father will continue to work full-time and on the week-ends. The mother will enroll the children (as she is hopeful that G. will be returned shortly) in community programs.

[81] The parents will have a public health nurse attend their home at least once a week to assist with caring for the children. The parents also propose that they have the support of the maternal grandmother and the maternal aunt who will provide her with care during the day, if needed, babysitting and transportation.

[82] The father does not address his plan in his affidavit but attached as an exhibit his Answer and Plan of Care signed September 29, 2016. In that plan he states that he has the support of his mother, father, grandparents, sister and essentially all of his family members. It is unclear if this is still accurate as the plan with G. being placed with the paternal grandmother broke down and there is no evidence with respect to the present relationship between the father and his mother or other members of his family. The mother also told the family service worker that the paternal grandmother was addicted to Percocets so it is not clear if she would be supportive of a plan that relies on the support of the paternal grandmother.

6. The Law

6.1 Applicable Legal Consideration with Respect to a Summary Judgment Motion

[83] As the society is proceeding by means of a summary judgement motion, pursuant to rule 16 of the Family Law Rules ("FLR") the issues to be determined must be adjudicated within the context of the rules and the case law that has evolved with respect to summary judgement motions.

[84] Subrule 16 FLR allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

[85] Subrule 16(2) FLR specifically confirms that summary judgment is available in child protection proceedings.

[86] Subrule 16(4) FLR requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[87] Subrule 16(4.1) FLR provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

[88] Subrule 16(6) FLR is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[89] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue requiring a trial. The onus is on the Society to show there is no genuine issue requiring a trial.

[90] In assessing whether or not a society has met its obligation of showing there is no genuine issue requiring a trial, courts have equated that phrase with "no chance of success", "when the outcome is a foregone conclusion", "plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome other than that sought by the applicant".

[91] Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. Justice Hardman, in the case of Children's Aid Society of the Regional Municipality of Waterloo v. T.S. observed at paragraph 5 of that decision that because summary judgment is now explicitly contemplated by subrule 16, this may:

…broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment.

[92] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue requiring a trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is a genuine issue requiring a trial will be insufficient to defeat a claim for summary judgment.

[93] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, has clarified the process of applying the expanded summary judgment rule in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. The court held that the judge should first determine if there is a genuine issue requiring a trial based on the evidence before her, without using the new fact-finding powers. There will be no genuine issue for trial if the summary judgement process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If there appears to be a genuine issue for trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).

[94] Subrule 16(6.1) FLR codifies these broad powers in considering a summary judgment motion. The rule specifically provides as follows:

In determining whether there is a 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 the purpose, unless it is in the interests of justice for such powers only to be exercised at a trial.

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

[95] Subrule 16(6.2) FLR provides that the court may, in exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one of more of the parties, with or without time limits.

[96] Accordingly, the first step is to determine if there is a genuine issue requiring a trial based only on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility.

[97] In determining if there is a genuine issue requiring a trial based on evidence presented by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial.

[98] The test for summary judgement is met when the moving party satisfies the court that there is no genuine issue of a material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material.

[99] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits.

[100] In interpreting subrule 16 FLR, the court must also consider the strict timelines that govern child protection proceedings and subsection 1(1) of the CFSA providing that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.

[101] It is also necessary to consider subrule 2 FLR to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that cases are dealt with in ways that are appropriate to their importance and complexity and giving appropriate court resources to the case before the court while taking into consideration the need to give resources to other cases. This appears to also be in keeping with the process test set out by the Supreme Court of Canada in Hryniak v. Mauldin.

[102] 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 prospect that what existed at the time of the society's removal of the child from the parent and that the parent has developed some new ability as a parent.

6.2 Applicable Legal Considerations with Respect to Disposition

[103] As this is a Status Review Application the relevant statutory provision is section 64 of the CFSA.

[104] Section 65(1)(c) of the CFSA states that where a review of a child's status is made under section 64, the court may, in the child's best interests make an order under section 57 or 57.1 of the CFSA that is, the options available for disposition.

[105] Section 57 of the CFSA sets out the following disposition options:

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57(1); 2006, c. 5, s. 13(1-3).

[106] Section 57.1 provides that:

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2006, c. 5, s. 14.

Deemed to be order under Children's Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

[107] With respect to H., as this is a status review application, there has already been a finding that he is in need of protection.

[108] It is well-settled law that the court must now evaluate whether there is a continued need for state intervention to protect this child and consider what disposition would be in his best interests. In balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent's parenting ability.

[109] After a finding is made, the court must determine what order is required to protect the child. In this case, the options are to return the child to his parents, with or without supervision or to place the child in the care and custody of the maternal grandmother.

[110] Subsection 57(2) of the CFSA requires the court to inquire what efforts the society or another agency or person has made to assist the children before intervention.

[111] Subsection 57(3) of the CFSA requires that before an order is made removing children from their caregivers that the court must be satisfied that less disruptive alternatives would be inadequate to protect the child.

[112] Subsection 57(4) of the CFSA also requires that the court consider, if removal of the child from their caregiver is necessary, whether there are any family or community placements that are possible.

[113] In determining the appropriate disposition, the court must decide what is in the best interests of the children. In making this determination, the court is guided by the criteria set out in subsection 37(3) of the CFSA as follows:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. 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.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. 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.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. 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.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstances.

[114] In determining the best interests of the child the court must assess the degree to which the concerns that existed at the time the child was brought into the society's care still exist at the present time.

[115] The case law establishes that the length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters should be child-focused. I find that the same considerations should be applicable when a child is removed from his parents and placed in the care of a family member.

7. Analysis

7.1 Are There Ongoing Protection Concerns?

[116] H. was removed from the care of the parents due primarily with respect to concerns regarding the mother's substance abuse. However, as the society continued its involvement with the parents, other concerns emerged namely, issues regarding domestic conflict between the parents, missed access visits, the mother's impulsive behaviours, instability, inability or unwillingness to work co-operatively with the society and lack of utilization of services to improve their parenting.

[117] These concerns resulted in a finding that the child was in need of protection due to a risk of physical harm and subsequently an order placing the child in the care of the maternal grandmother.

[118] Other than the parents obtaining and maintaining an apartment, the same concerns continue.

[119] The mother minimizes her issues with drug addiction. If as alleged by the mother she has not used any illegal drugs for two years, does not have any drug dependency issues, and any positive test results are in error, she does not explain why she is still attending a methadone clinic weekly.

[120] Both parents minimize their history of domestic violence and conflict. Although the father completed a PARS and a Caring Dads program, the parents have not attended any couples counselling. The father has not accepted any responsibility for past incidents and the father denies any assaultive behaviour as the criminal charges against him were stayed after the mother wrote a letter to the Crown Attorney.

[121] The parents have both been untruthful. The father breached the terms of his release by having contact with the mother. The father misled the society with respect to his employment. The mother was not truthful with ODSP and continued to receive funds for H., even though he was not in her care and then provided no explanation as to why she could not provide the child with even the most basic provisions during her access visits. Both parents have not been forthcoming with providing consents to the society.

[122] The parents have provided no reasonable explanations for their many missed visits.

[123] I find that the concerns that resulted in the child being removed from the parents' care at birth have continued and further concerns have emerged. Neither parent has shown any insight or accepted responsibility as to the effect of their behaviour on their son.

[124] Neither parent has made sufficient improvement with respect to any of the issues that resulted in their son being removed from their care. As a result H. continue to be a child in need of protection and there is no genuine issue requiring a trial on this issue.

7.2 What Disposition is in the Child's Best Interests?

[125] I find that the society has met its onus to prove, on a balance of probabilities, that there is no genuine issue requiring a trial with respect to disposition namely, that the child should be placed in the care and custody of the maternal grandmother.

[126] There are some positive aspects to the plan of care presented by the parents as the child would be with his biological parents who love him. However, the plan raises the same concerns that have been outstanding since the child was removed from the care of the parents. There continue to be risks of an unstable lifestyle due to uncertainty about the mother's drug use, the parents' relationship, the parents' financial situation and their inability to utilize supports. The proposal for a public health nurse to attend weekly to support the care of the child or children is not supported by any information that such a service is available. The mother's proposal to use her mother and sister as supports when the maternal grandmother is asking the court to place H. in her care appears to be unrealistic.

[127] The father in his Answer and Plan of Care makes many disparaging comments about the maternal grandmother. He alleges that she is not caring for the child but that he is cared for by the maternal aunt, that she and her partner are heavy drinkers, that her partner uses cocaine, that the maternal grandmother does not support him having any access at all and is bad mouthing him. For either parent to expect the maternal grandmother to assist them may be quite naïve at this stage of the proceedings. I also note that neither parent in their affidavits acknowledge the sacrifice and disruption to her life that the maternal grandmother has made in taking care of their children.

[128] I find that a supervision order would not be adequate to protect the child. The parents have been dishonest with the society on numerous occasions. The mother has also been dishonest with her ODSP worker and collected funds for her son while he was not in her care. The father breached the terms of his recognizance terms by having contact with the mother. Both parents have failed to comply with the terms of supervision with respect to their daughter that resulted in her also being removed and placed with the maternal grandmother.

[129] Although the parents have made some progress in finding permanent accommodations and the mother has attended for drug treatment and the father has completed two programs related to domestic violence and anger management, there is limited evidence with respect to details of any of the programs or any benefit either parent have derived from those programs. This is especially concerning in view of the fact that neither parent admits that they have any issues. Once the society presented its evidence that raised its serious concerns about the actual participation or benefit of either parent in treatment and programs, the parents were required to provide specific evidence to show that there was a genuine issue requiring a trial. All the parents have done is deny the society's allegations. It would have been an easy task for the parents to obtain a report from any of the programs they attended to show their level of participation and how they gained some insight into the effect of their behaviour on the development of a child.

[130] There are still concerns about the mother's misuse of drugs in view of the fact that she has given birth to another child and there is evidence that she used drugs while also pregnant with this child. Once the concerns were raised in the affidavit of the family service worker, I would have expected the mother to provide an affidavit or report from any of the treatment providers or her doctor so as to provide the court with evidence to support a trial.

[131] Over the last two years that H. has been out of their care, the parents have been unable to organize their lives to ensure that they maintained a consistent and regular access schedule. They have not been willing to utilize the services of the family support worker or the therapeutic access program to improve their parenting skills. The parents did not acknowledge the impact that their failure to maintain a regular access schedule would have had on their infant son. Instead, the parents blame the maternal grandmother, the society and the father blames his employment circumstances for not being able to attend access.

[132] The parents' financial situation is still not clear. Although they maintain that they can easily support their child, they provide no plausible explanation for the inability to provide a snack or diapers during access visits but can afford on occasion to take taxis. Although the lack of financial resources is not a reason to refuse to place a child in parents' care, in this case as the parents state they have financial resources the issue is either related to their inability to manage their funds or perhaps their dishonesty about their resources. The court should not speculate as to the reason for the parents' financial instability so I simply conclude that the society has raised a practical concern that has gone unanswered by the parents.

[133] In considering the best interests criteria as set out in section 37(3) of the Child and Family Services Act, it is the maternal grandmother that has shown herself to be the person best able to meet the physical, mental and emotional needs of this child. She is the person that has and can continue to ensure that he develops to the best of his abilities. The child has been in her care for almost two years. He has thrived in her care and she can continue to offer him a stable and permanent home. The risk of removing him and placing him in the care of his parents is too big a risk to take based on the hope that the parents will be able to improve their parenting and stabilize their lives.

7.3 What Access is in the Child's Best Interests?

[134] I agree with the submissions of counsel for the society that there is no genuine issue requiring a trial with respect to access as the parents have not made any proposals for access. I find that the maternal grandmother can be entrusted to ensure that the parents have a meaningful relationship with their child. She will also ensure that the parents have regular access and at the same time that the safety and well-being of H. is not compromised.

8. Conclusion

[135] I find that the society has met its onus to prove that there is no genuine issue requiring a trial and that the child should be placed in the care and custody of the maternal grandmother with ancillary orders for travel and obtaining government documents for the child.

[136] I also find that the arrangements for access should be left to the discretion of the maternal grandmother both with respect to level of supervision, duration and frequency of access with a provision that such access be not less than once a week for each parent.

[137] As this order will now become a domestic order, it is without prejudice to the maternal grandmother to pursue any claim for child support against both parents if she chooses to do so. The terms of the order can also be varied by the parents in the future should there be any disputes about access or a change of custody. However, the parents need to appreciate that this child is bonded to the maternal grandmother who is his primary parent and that her home is the only home he has ever known. The parents need to work out their own relationship issues and work towards developing a drug free and stable lifestyle.

Order

[138] There will be an order as follows:

1. The summary judgment motion of the Children's Aid Society of Toronto is granted. The child H.J. born […], 2016 shall be placed in the care and custody of the maternal grandmother E.H.-J. pursuant to section 57.1 of the Child and Family Services Act.

2. The maternal grandmother E.H.-J. shall be permitted to travel outside of Canada without the prior written consent or authorization of the Respondent parents.

3. The maternal grandmother E.H.-J. shall be permitted to obtain passports, passport renewals, health card, social security card, application for name changes, birth certificate or any other government issued document for the child without the prior written consent or authorization of the Respondent parents.

4. Access to the Respondent parents, T.R. and R.McQ. shall be in the sole discretion of the maternal grandmother with respect to the level of supervision, duration and frequency of access but with access being at a minimum of once a week.

5. In the event of a court proceeding or agreement to a change of custody, the Children's Aid Society shall be notified and provided with a copy of any court documents or agreement 30 days prior to any proposed change.

Justice Roselyn Zisman

Date: April 18, 2017