WARNING The court hearing this matter directs that the following notice should 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.
(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.
(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.
ONTARIO COURT OF JUSTICE
DATE: 2023 01 31 COURT FILE No.: Toronto C41595/21
BETWEEN:
Catholic Children’s Aid Society of Toronto Applicant
— AND —
A.P. (mother) and S.J. (father) Respondents
Before: Justice D. Szandtner
Heard on: January 18, 2023 Reasons for Judgment released on: January 31, 2023
Counsel: Karen Ksienski.......................................................................... counsel for the applicant society David Tobin..................................................................... counsel for the respondent father S.J. Roger Rowe.................................................................. counsel for the respondent mother A.P. Fatma Khalid ………………………………...counsel for the Office of the Children’s Lawyer, legal representative for the child
SZANDTNER J.:
Part One – Introduction
[1] The Catholic Children’s Aid Society of Toronto (“CCAS”) has brought the within summary judgment motion pursuant to Rule 16 of the Family Law Rules.
[2] The child before the court, F.J., was born […], 2011 (“the child”) She is currently in the temporary care and custody of her father S.J. (“the father”) by operation of the Child, Youth and Family Services Act, (the “Act”) subject to the supervision of the CCAS.
[3] The CCAS commenced an Early Status Review Application on June 13, 2022, seeking a parenting order granting final custody for the child to her father pursuant to s. 102 of the Act.
[4] The CCAS seeks the following final order in its motion for summary judgment:
a) The child’s primary residence shall be in the home of her father.
b) The father shall be permitted to apply for all government documentation for the child without the consent of the mother.
c) The father may travel outside of Canada with the child without the consent of or notice to the mother.
d) The father may directly obtain information regarding the child from service providers involved with the child without the consent of the mother.
e) The mother’s parenting time with the child shall be a minimum of once every two weeks, supervised at the discretion of the father and in accordance with the child’s wishes.
[5] The father is consenting to the terms of the final order sought by the CCAS.
[6] The child’s counsel is consenting to the terms of the final order sought by the CCAS.
[7] The mother A.P. (“the mother”) is opposing the terms of the final order sought. She seeks the return of the child to her care. In the alternative, she seeks more expansive and unsupervised parenting time with her daughter. She maintains that her position raises genuine issues requiring a trial and the summary judgment motion should be dismissed.
Part Two – Facts
[8] The following facts are not in dispute:
a) The mother has three other children in addition to the child. The father of two of her sons is R.S.
b) The mother became involved with the CCAS for the first time in December 2019. The child disclosed to the police and the CCAS that the mother’s partner R.S. had sexually assaulted her on more than one occasion.
c) The child’s disclosure led to the arrest of R.S. He was charged with sexual assault and sexual interference.
d) A non-contact order was put in place restraining R.S. from attending the home of the mother and child.
e) In May 2020, the CCAS file closed its file. R.S. was being held in custody, as he was facing a deportation order.
f) On June 28, 2021, the father and his partner M.J. contacted the CCAS to report that the child had disclosed to them that R.S., contrary to his conditions of release, was frequenting the mother’s home in the child’s presence.
g) On July 2, 2021, the mother was interviewed by the CCAS worker. She denied allowing R.S. in her home and explained that he only comes downstairs to pick his sons up for visits. The mother also reported that R.S. often provides her with transportation to and from work. She explained that she meets him away from the building and he does not come to her home or sleep in her home.
h) CCAS commenced a Protection Application seeking an order that the child be placed in the care of her father under a temporary supervision order. The temporary order was made on July 21, 2021.
i) On February 15, 2022, the following final order was made on consent;
(i) The child was found to be in need of protection under subsection 74(2)(h) of the Act.
(ii) The child was placed in the care and custody of her father for a six-month supervision order.
(iii) Access to the child by her mother was to be a minimum of once per week, additional access at the discretion of the CCAS and in consideration of the child’s wishes. Such discretion shall include location, supervision, frequency and duration. The conditions of access were that:
(a) R.S. shall not be present for the visits. If visits occur in the family home, he shall not be present anywhere in the home.
(b) The mother shall not speak to the child about R.S. nor about the disclosures made by the child whatsoever during her access with the child.
(c) The mother shall make herself available for meetings with the Society worker to discuss access.
j) The mother has consistently denied that R.S. was attending her home and having contact with the child.
k) The child has engaged in individual counselling at Every Mind Mental Health Services (January 2022 to September 2022).
l) The child testified at the trial of R.S. in September and December of 2022. The outcome of the trial remains unknown. R.S. is currently detained.
m) Since August 4, 2021, the child has been having access visits with her mother at the CCAS office on alternating Wednesdays from 3 pm to 5 pm. The mother often brings the child’s siblings to the visits.
n) The CCAS has made efforts to connect the mother to counselling to focus on her relationship with the child. The mother declined counselling as she attested that she is not emotionally prepared to participate at this time.
o) The child is 11 years of age. Since she was placed in her father’s care, she has consistently expressed that her wish is to remain in the care and custody of her father and his partner. She has also consistently expressed that her wish is to not expand her access to her mother.
p) The CCAS commenced an Early Status Review application on June 13, 2022, seeking a parenting order granting custody for the child to her father pursuant to section 102 of the Act.
q) On June 30, 2022, the CCAS brought a motion to permit the father to apply for the child’s passport as her mother was not consenting to his request for same. The court ordered that the father was permitted to apply for the child’s passport.
Part Three – Legal Considerations for Summary Judgment
[9] The CCAS 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.
[10] 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.
[11] 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 for 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: Children’s Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.
[12] Although subrule 16 (4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. See: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80.
[13] 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.
[14] 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 the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:
- Weighing the evidence
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[15] 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. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.
[16] Hyrniak sets out that 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.
[17] 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). As the Supreme Court stated, at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (Kawartha, paragraph 63).
[18] As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits (Kawartha, paragraph 76).
[19] Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (Kawartha, paragraph 1 of paragraph 80 and paragraph 64).
[20] The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (Kawartha, paragraph 3 of paragraph 80).
[21] The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that it is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is a foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant” (Kawartha, paragraph 72).
[22] 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 the 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 she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H., [2000] O.J. No. 5853.
Part Four – Disposition
4.1 Legal Considerations
[23] The Early Status Review Application is brought by the CCAS pursuant to subsection 113 (2) of the Act.
[24] Under section 114 of the Act, where an application for review of a child’s status 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; or
d) make an order under section 102.
[25] The legal test for making a disposition order is found at subsection 101(1) and section 102 of the Act:
101.(1) Order where child in need of protection – 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 102, in the child’s best interests.
Supervision order – 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 no more than 12 months.
Interim society care – That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care – That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
Consecutive orders of interim society care and supervision – that the child be placed in interim society care and custody 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 a total of 12 months.
(1) Custody order – Subject to subsection (6) if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interest, 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 person or persons.
(2) Deemed to be order under s.28 of the Children’s Law Reform Act – An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be a parenting order or contact order, as the case may 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.
[26] Subsection 101(4) of the Act requires the court to look at community placements, including family members before deciding to place a child in care.
[27] In determining the appropriate disposition, the court must decide what is in the child’s best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making its determination. This subsection reads as follows:
74(3) Best interests of child - 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 Metis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Metis 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); and
(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, and
(xi) The degree of risk, if any, that justified the finding that the child is in need of protection.
4.2 CCAS Position
[28] The CCAS is taking the position that the child should be placed in the permanent care and custody of her father under a section 102 order.
[29] In their submission, the CCAS confirmed that it would offer to continue to facilitate the mother’s supervised visits with the child until APCO or another supervised access center was able to accommodate her visits.
[30] The CCAS relies on the facts agreed upon in the Statement of Agreed Facts as set out above and specifically the following facts:
a) The child reported being sexual assaulted by mother’s partner R.S.
b) The child reported having contact with R.S. in the family home following the laying of criminal charges in violation of the no-contact order.
c) The mother denies the contact occurred.
d) The CCAS attempted to arrange for counselling for the mother to focus on her relationship with the child. The mother has declined participation in counselling to address these issues.
e) The mother’s parenting time with the child is for two hours supervised on alternate Wednesdays.
[31] The CCAS relies on the evidence presented by the father with respect to the success of her placement with her father.
[32] The CCAS also relies on the affidavit evidence of its worker and the father with respect to the views and wishes of the child. Those consistent views and preferences are that she wishes to remain in the care of her father with no expansion of her parenting time with her mother or variation of the level of supervision at this time.
4.3 Review of Plan of Care and Affidavit Evidence of the Father
[33] The father provides the following reasons why the child should remain in his care under a final custody order:
a) The child has expressed that she feels safe, protected and happy in his care.
b) The child is developing a relationship over video chats with her paternal extended family.
c) The child is succeeding at school. She is in Grade 6 and has supportive friends and staff at her school.
d) The child is participating in extra-curriculars including the school Glee Club and swimming lessons.
e) The child is responsible for household chores and is developing the ability to care for herself independently.
f) The child has expressed that she wants to maintain and rebuild her relationship with her mother and siblings.
g) The child has expressed that she is content with the current supervised parenting time arrangement with her mother and does not want the frequency to increase at this stage.
h) The father supported and facilitated the child’s participation in individual counselling.
i) The father and his partner supported the child when she testified against R.S. at the criminal proceeding.
4.4 Review of Plan of Care and Affidavit Evidence of the Mother
[34] The mother provides the following reasons why the child should be returned to her permanent care and custody:
a) The child will require the love and care of her mother.
b) There have not been any previous concerns by the CCAS, the father or counsellors with respect to her ability to care for the child.
c) The child is safe with her.
d) The mother is separated from R.S. He is currently in detention. He does not present a continuing risk to the child.
e) She is currently employed and can provide financially for the child.
f) She is the child’s pre-intervention caregiver. The child is emotionally attached to her and to her siblings.
g) She presented a Plan of Care that incorporates the child into her daily care routine with her other children.
[35] The mother seeks a trial in order to have her plan for the child fully and fairly considered. She further seeks to have her claim for an expansive parenting time order that does not involve the discretion of the father considered at a full hearing.
4.5 OCL Position
[36] The child has had the assistance of a children’s lawyer, (“OCL”) Ms. Khalid, from an early stage in this proceeding.
[37] The OCL is supporting the final order sought by the CCAS and the father in the summary judgment motion. Her client has consistently sought to remain in the care of her father and no expansion of parenting time with her mother nor any change in the level of supervision of that parenting time. This evidence is set out in the affidavit evidence of the father and the CCAS worker.
4.6 No Genuine Issue Requiring a Trial Based on the Affidavit Material
[38] I have considered that I should exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.
[39] I find that it is in the interest of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate the dispute.
[40] I find that I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility. Cross-examination of witnesses would add little if any value to the court’s analysis.
[41] I find that the CCAS has established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought and the mother has not met her onus of establishing that there is a genuine issue requiring a trial on any issue.
[42] I reach these conclusions for the reasons that follow.
[43] The child is an 11 year old girl who will turn 12 in March of this year. She has an OCL and her views and wishes can be ascertained. Her views and wishes are consistent and longstanding. She seeks to remain in the primary care of her father. She does not seek a change in the very limited supervised contact with her mother at this time.
[44] The child’s age and the consistency of her views lead the court to give significant weight to her views and wishes. She has also had the benefit of nine months of professional individual counselling to assist her in managing the emotional impact of the sexual assaults by R.S.
[45] The child’s physical, mental and emotional needs are being met in the father’s home. She has developed a very positive relationship with her father and his partner and feels secure in their home. The child is developing an ability to care for herself and to contribute to the household through chores. She is succeeding at school both socially and educationally. She is participating in the Glee club and swimming as an extra-curricular activity.
[46] The child has been in her father’s home for one and a half years. The continuity of this positive care would be disrupted if she were to be removed from his home against her wishes.
[47] The child’s placement with her father permits her to stay meaningfully connected to her paternal cultural and linguistic heritage. She is connecting to other members of the paternal side of her family through video chats. She is also able to stay connected to her maternal side through parenting time with her mother and siblings.
[48] The child’s relationship and emotional ties to her father are maintained by a placement with him. Her relationship and emotional ties with her mother can be calibrated safely through contact that she directs in terms of level of supervision, frequency and duration.
[49] The child is old enough to be aware that this litigation is not yet resolved. Her OCL continues to visit her to ascertain her views and wishes while the litigation is ongoing. It is reasonable to infer she would prefer to feel secure in a permanent placement with her father.
[50] The court must also consider risk in the best interests analysis. First, the court must consider the risk that justified the finding that the child was in need of protection from likely emotional harm. Secondly, the court must consider the risk inherent in the child being removed from her father and placed in the care of her mother or in an expanded or unsupervised parenting time visit with her mother.
[51] These risks are connected in that the child reported that her mother did not protect her from R.S. after the criminal charges were laid. This breach of trust between the child and her mother was the basis of the emotional harm finding.
[52] The child’s strong and consistent opposition to an expansion of time with her mother and a variation of the level of supervision of those visits reflect that this trust has not been rebuilt since she was removed from her mother’s care. The court can infer from the child’s views on parenting time that the risk of emotional harm during unsupervised contact with her mother has not abated to date from her perspective.
[53] The mother’s evidence is that she loves her daughter and wants to be the parent with primary responsibility for her care. In the alternative she does not want the father to have any discretion with respect to her contact with their daughter, particularly as it relates to supervision.
[54] The mother’s wish to have her daughter return to her care and her desire to be able to have increased and unsupervised contact with her do not raise genuine issues requiring a trial. The court acknowledges that these are her heartfelt wishes, but her plan to return the child to her care is in no way in the best interests of her daughter. Her plan of care puts her own wishes at the centre and ignores the child’s consistent and contrary views and wishes. Her plan also fails to address the breakdown of her relationship with the child and the child’s perception that she is not safe in her mother’s unsupervised care. The mother has declined to participate in any counselling that could help to increase her insight into her relationship with her daughter.
[55] The importance of continued contact between the child and her mother which form part of the best interests analysis can be addressed through a parenting time order that can maintain contact for the child with her mother and siblings which the child seeks and perceives as safe.
[56] The mother has identified two specific issues that she submits constitute genuine issues that require a trial:
a) Her steadfast denial that she exposed the child to R.S. following the no-contact order generates an issue as to whether or not this exposure occurred;
b) If father is granted the custody order, the appropriate parenting time order for mother in light of the current relationship between her and the father is an issue.
[57] The mother continues to deny permitting the contact between R.S. and the child. The child has clearly stated that this occurred and caused her emotional harm.
[58] While it may be a material fact in dispute, whether or not the mother permitted contact is not a genuine issue requiring a trial. I do not need to make this determination to decide what order is in the child’s best interests.
[59] I can infer on the undisputed evidence that the child felt unprotected from R.S. by the mother during the period following the criminal charges and before her placement in her father’s care. The child’s perception of a lack of safety in the mother’s care grounded the finding (made on consent) that she was at risk of likely emotional harm in her mother’s care. It is this perception that has not been addressed by the mother since the child left her care. I can infer that it likely impacts the child’s current views and wishes.
[60] The parenting time order for mother that is sought by the CCAS has three elements: it creates a minimum level of contact, it grants discretion to the father beyond that minimum and it takes into consideration the child’s wishes.
[61] The mother’s access order is not a genuine issue that requires a trial. A trial on this issue will not change the fact the 11 year old before the court is not seeking an expansion or change of the parenting time that has been in place for the past 1.5 years. Therefore, there is no genuine issue with respect to the minimum parenting time. It will reflect the child’s wishes and the longstanding status quo.
[62] The father’s discretion in accordance with the child’s wishes over the expansion or variation of the mother’s parenting time is the only realistic order available to the court. The father is the primary caregiver for the child. The child is old enough to have her wishes respected in light of both her age and the history of the litigation. The expansion of contact is possible within this flexible order. There can be no specified expansion schedule given the current access order and the child’s current views and wishes. Therefore, the determination of the parenting time order for the mother does not create a genuine issue requiring a trial.
[63] The CCAS further requests an order granting the father the ability to apply for government documentation for the child and travel with her without the mother’s consent. The facts before me reflect that the mother refused to provide consent for the child’s passport last year. This refusal required the CCAS to bring a motion before the court to resolve. This constitutes evidence that the mother obstructed the process of obtaining the child’s documents as they relate to travel.
[64] There is no genuine issue requiring a trial to determine whether the father, as the primary caregiver of the child, should have the ability to apply for government documentation for his daughter and travel with her without the mother’s consent. There is undisputed evidence before the court that without this order, the child could be deprived of the opportunity to travel with her primary caregiver.
Part Five – Conclusion
[65] A final order will go on the following terms:
a) There are no genuine issues requiring a trial.
b) The father shall have primary residence of the child and sole decision-making authority for her under section 102 of the Act.
c) The father shall be permitted to apply for all government documentation for the child (including but not limited to birth certificate, passport and passport renewals, health card and health card renewals, social insurance card, Ontario card) without the consent of the mother.
d) The father may travel outside of Canada with the child without the consent of or notice to the mother.
e) The father and the mother may directly obtain information regarding the child from service providers involved with the child including medical professionals, therapists and education providers and will provide any required consents to facilitate same.
f) The mother’s parenting time with the child shall be a minimum of once every two weeks, supervised at the discretion of the father and in accordance with the child’s wishes.
Released: January 31, 2023 Signed: Justice D. Szandtner