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

45. -(8) 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.

46. -(3) A person who contravenes subsection 45(8) (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 File and Parties

COURT FILE NO.: C-327/11 DATE: 2018-06-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton Kory Mikalski, for the Applicant Applicant

- and -

B.K. Respondent Mother S.A. Respondent Father

Respondent Mother not attending Robert Charko, for the Respondent Father

HEARD: June 15, 2018

Endorsement

THE HONOURABLE MADAM JUSTICE L. MADSEN

[1] This is a Motion for Summary Judgment brought by the Applicant Children’s Aid Society of Hamilton (“CAS” or “the Society”), within its Status Review Application issued December 23, 2016.

[2] This matter involves the child, S.M.A.A., born […], 2015.

[3] The child has been in the care of the Father since August 4, 2016, almost two years ago. The Mother has had limited and inconsistent access.

[4] The Society seeks an Order finding that the child continues to be in need of protection; that the child is not First Nations, Inuk, or Metis; that the child be placed in the custody of his father, S.A.; and that the Mother have supervised access in the Father’s discretion.

Notice to the Mother

[5] The Society’s materials for the Summary Judgment Motion were personally served on the Mother on June 9, 2018.

[6] The Mother filed no materials in response to the Summary Judgment Motion and did not attend in Court on the day the Motion was argued.

[7] The Court was advised that the child protection worker left voicemails for the Mother on her cell phone advising her that the Summary Judgment Motion was called by the Court. The Court also left a message for the Mother at the same cell phone number.

[8] The matter was initially called at 10:00 a.m., as scheduled. The matter was stood down to allow time in the event that the Mother was delayed arriving at Court. When the matter was recalled, the Mother was paged and was still not present.

Material Reviewed

[9] In determining this Motion for Summary Judgment this Court has very carefully reviewed and considered the following materials filed in the continuing Record:

a. Status Review Application issued December 23, 2016;

b. Answer and Plan of Care of the Mother, signed January 5, 2017;

c. Plan of Care of the Children’s Aid Society, signed May 3, 2017;

d. Affidavit of Trish Van Leeuwen, sworn April 26, 2018.

[10] The Mother did not file any responding materials to the Motion for Summary Judgment.

[11] The Father did not file any responding materials and is consenting to the relief sought by the CAS.

Litigation History

[12] The Society brought a Protection Application on March 6, 2015, seeking an Order for Crown Wardship, no access. The protection concerns at that time included the Mother’s parenting history, overall instability and cognitive limitations, as well as a lack of information about the Father and his ability to parent. On March 6, 2016, Justice Pazaratz made a temporary Order placing the child in the care of the Society with access in the discretion of the Society.

[13] On September 9, 2015 Justice Chappel granted an Order on consent for the Mother to participate in a section 54 Parenting Capacity Assessment (PCA), including a cognitive assessment.

[14] On July 21, 2016, Justice Lafrenière granted a Final Order pursuant to Minutes of Settlement finding the child to be non-Catholic, non-native and non-Indian, and in need of protection pursuant to section 37(2)(g) of the Child and Family Services Act (CFSA). Under that Order, the child was placed with the Father as of August 4, 2016 under a six-month supervision Order with access in the discretion of the Society.

[15] On December 23, 2016, the Society commenced this Status Review Application seeking an Order placing the child in the custody of his Father, with supervised access to the Mother at a supervised access facility. On the hearing of the Summary Judgment Motion, counsel for the Society and for the Father stated that they would be open to an Order that access be supervised by a mutually agreeable third party rather than through a supervised access facility.

[16] The Mother filed an Answer and Plan of Care dated January 5, 2017. In that Answer she stated that she was not opposed to the Father having custody but sought specified access. On the hearing of the Motion, the Society’s counsel indicated that although this was the position taken by the Mother in her Answer and Plan of Care, the Mother had told the protection worker Ms. Van Leeuwen that in fact she wanted the child returned to her.

Findings of Fact

[17] I make the following findings of fact based on the undisputed evidence before the Court:

a) The child is S.M.A.A., born […], 2015. He is three years old. S.M.A.A. is referred to in this Endorsement as “the child.”

b) The Mother is B.K., born […], 1993. She is 25 years old. B.K. is referred to in this Endorsement as “the Mother.”

c) The Father is S.A., born […], 1973. He is 45 years old. S.A. is referred to in this Endorsement as “the Father.”

d) There is no evidence that the child is First Nations, Inuk, or Metis.

e) The Mother has had four children. None are in her care.

f) The Mother’s first child, N.K., was born in […], 2011, and was placed with kin caregivers immediately following birth. On consent, N.K. was made a Crown Ward with no access on April 24, 2013.

g) The Mother’s second child, D.S., was born […], 2014. On consent, D.S. was made a Crown Ward with no access on August 31, 2015.

h) The Mother’s third child is the subject of this Summary Judgment Motion.

i) The Mother’s fourth child, K., was born in […], 2016. He was made a Crown Ward with no access in January 2017.

j) When the child S.M.A.A., the subject of this Summary Judgment Motion, was born on […], 2015, he was apprehended at birth due to the Society’s protection concerns arising from the Mother’s parenting history, her cognitive limitations and instability, and the lack of knowledge about the father’s ability to parent.

k) The Mother had not told the Father in advance that the child would be apprehended, although the Society had advised her of this. The Father was shocked and devastated. He stated that he had been completely invested in the pregnancy and had assisted the Mother as much as possible.

l) On April 25, 2015, the parents had an altercation, which resulted in the Father being charged with physical and sexual assault of the Mother. The Mother alleged that the Father had been drinking and put her in a choke hold. The Mother said that the Father blamed her for the child being apprehended. In early April 2016 the Father pled guilty to the lesser charge of assault and was sentenced to three years’ probation. In April 2017, the probation officer indicated that there had been no problems with the Father’s probation and that she had no concerns with him in a parenting role.

m) The Mother participated in a parenting capacity assessment in 2016. In her report dated April 8, 2016, Dr. Kimberly Harris concluded that the Mother is not capable of caring for the child in a way that would meet his needs and not place him at risk of harm. While she found that the Mother loves the child and was warm and affectionate with him, the risks of her caring for the child could not be mitigated by a Supervision Order or by the Mother’s support network. Dr. Harris found that the Mother has a Mild Intellectual Disability and lacks self-awareness about same. She found that the Mother displays cognitive limitations, mental health issues, and impulse control difficulties that could affect parenting. Dr. Harris also indicated that the Mother has a significant trauma history that has had a “dramatic impact on her ability to self-regulate and handle stress.” Dr. Harris found the Mother’s inability to regulate her emotions to be a “primary concern” and that the child’s exposure to her volatility would be frightening for the child and create a sense of insecurity.

n) From the date of the child’s birth, the Father has demonstrated a consistent commitment to parenting the child. He exercised access consistently and the visits went well. The Father was affectionate and loving on access visits and demonstrated appropriate instrumental care of the child.

o) The Father initially proposed other individuals as potential kin caregivers. By March 2016 he indicated that he wished to raise the child on his own or with the support of the child’s paternal grandmother.

p) The Father set up his home in Hamilton, Ontario to accommodate the child. He prepared a bedroom for the child. The Father identified support persons in Hamilton to assist him in any way that was needed for the child to be placed in his care. By June, 2016, the Father’s access with the child was expanded with a view to reintegration if no concerns arose. On access visits, the child was noted to be very attached to the Father.

q) The child was placed with the Father on August 4, 2016 and has remained in his care since that time.

r) In April 2017, the Father moved to Montréal, Québec, where the paternal grandmother resides. He found a suitable apartment near the grandmother. The Hamilton CAS connected with the child protection authorities in Montréal, which assigned a worker to the matter. The child appears to be doing well in the Father’s care and the Father is meeting the child’s needs. The Centres Integrès de Santé et de Services Sociaux (CISSS) and the paternal grandmother have monitored the child’s placement with the Father. The Father is open to facilitating access for the Mother although does not wish to personally supervise access.

s) The Mother’s access since the birth of the child has been limited and sporadic, and includes a period of over a year when she had no contact with the child. On a number of occasions, the Mother requested reductions in access time.

t) Initially, the Mother’s parenting time was twice per week at the agency. After a number of no-shows, she was asked to confirm her attendance 24 hours in advance. In July 2015, the Mother asked to reduce the access to once per week. The Mother continued to miss access, which was then put on hold on August 24, 2015. Access was reinstated, and then again put on hold on May 17, 2016. In June 2016, the Mother asked to reduce access to once per month. The Mother had a visit on September 30, 2016 but missed her visits in November and December 2016. In December 2016, access was again put on hold.

u) In June of 2017, the parents agreed that the Mother would have one visit every other month in Hamilton, in addition to Skype visits. On October 4, 2017, the Mother had a Skype call, which was her first access with the child since September of 2016, over a year earlier. There were two visits in Hamilton in late 2017, one on October 23, 2017 and one on December 22, 2017.

v) The Father is open to the Mother having access with the child. He proposes that access be arranged through the paternal grandmother as there is currently a No Contact Order in place between the parents.

The Law

[18] This is a Motion for Summary Judgment in relation to a Status Review Application.

[19] The Court’s decision must take into consideration the paramount purpose of the CYFSA, which is to promote the best interests, protection and well-being of children. This purpose takes precedence over all other considerations.

[20] The Court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of children.

Status Review Application

[21] The following summary of the law to be applied on a status review application was set out by Justice Pazaratz in Catholic Children’s Aid Society v. S. (B.L.), 2014 CarswellOnt 12921 (Ont. S.C.J.) at paragraph 83:

a. In a Status Review Hearing the original Order is presumed to be correct. This is not a re-hearing of a previous Order made.

b. The Court must first determine whether the child continues to be in need of protection and as a consequence requires a Court Order for his or her protection.

c. The Court must consider the degree to which the risk concerns that formed the basis for the original Order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original Order for protection; or from circumstances which have arisen since then. Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), , [1994] 2 S.C.R. 165 (S.C.C.)

d. Secondly, the Court must consider the best interests of the child.

e. The analysis must be conducted from the child's perspective.

[22] The Court is now governed by the provisions contained within the newly enacted Child Youth and Family Services Act 2017, S.O 2017 C. 14 [CYFSA].

[23] Section 114 of the CYFSA provides that where, as here, a status review application is made under section 113, a 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.

[24] Sections 101 and 102 of the CYFSA provide that 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:

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;

2. that the child be placed in interim society care and custody for a specified period not exceeding 12 months;

3. that the child be placed in extended society care until the Order is terminated under section 116 or expires under section 123;

4. 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; or,

5. that one or more persons be granted custody of the child, with the consent of the person or persons.

[25] Sections 101(2), 101(3) and 101(4) of the CYFSA require the Court to consider additional factors when determining the issue of placement. These factors include:

a) what efforts the Society has made to assist the child before intervention;

b) whether there are any less disruptive alternatives such as community or extended family placement that would be adequate to protect the child; and

c) whether a community placement is possible.

[26] The governing principle where considering the placement of a child is the “best interests of the child”. The factors to be considered in determining best interests of a child are contained in section 74(3) of the Act, which provides as follows:

74(3) Where a person is directed in this Part to make an Order or determination in the best interests of a child, the person shall,

a. consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

b. in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); 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.

[27] In determining the child’s best interests, the Court must assess, from the child’s perspective, the degree to which the risks and concerns that existed at the time the Society commenced its application, still exist today. See Children’s Aid Society of Toronto v. M.(C.), , [1994] 2 S.C.R. 165 at para. 36.

[28] Section 104 of the CYFSA sets out the test respecting access Orders, and provides as follows:

The Court may, in the child’s best interests,

(a) When making an Order under this part; or

(b) Upon an application under subsection (2),

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

[29] Section 105(2) of the CYFSA provides that if a custody Order is made under section 102 removing a child from a person who had charge of the child immediately before the intervention under this Part, the Court shall make an Order for access by the person unless the Court is satisfied that continued contact with the person would not be in the child’s best interests.

Summary Judgment

[30] Rule 16 of the Family Law Rules, O. Reg. 114/99 as amended, permits a matter to be resolved by way of a Motion for Summary Judgment. The Rule is available in child protection matters.

RULE 16: SUMMARY JUDGMENT

When Available

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

Available in Any Case Except Divorce

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

Evidence Required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

Evidence of Responding party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

Evidence not from Personal Knowledge

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

No Genuine Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

Powers

(6.1) 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 interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

Oral Evidence (Mini-Trial)

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

[31] In its decision in Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada established a new approach to Summary Judgment Motions.

[32] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2018 ONSC 2783, the Divisional Court recently summarized the implications of Hryniak v. Mauldin as follows:

In Hryniak v Mauldin, 2014 SCC 7, the Supreme Court of Canada heralded a new approach to summary judgment to foster and enhance access to civil justice in Canada. The Supreme Court recognized that the cost and delays associated with lawsuits that proceed to trials were preventing people from being able to obtain a true measure of civil justice. Even if successful at trial, the Court explained, that the cost and delay may be disproportionate and prevent the outcome of being a truly just one. The Court called for a "culture shift" away from civil trials toward a more efficient, affordable, and proportionate civil dispute resolution process.

At para. 36 of Hryniak, Karakatsanis J. set out the key change in approach to summary judgment as follows:

These reforms embody the evolution of summary judgment rules from highly restricted tools used to weed out clearly unmeritorious claims or defences to their current status as a legitimate alternative means for adjudicating and resolving legal disputes.

The Court explained that using summary judgment simply as a tool to weed out the weakest claims leaving all other cases for trial was no longer an appropriate approach. Rather, summary judgment is recognized as its own, separate, alternative process to resolve cases. "The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial." Hryniak at para. 34. To find the faster, cheaper outcome, the test for determining whether there is a "serious issue requiring a trial" must now focus on whether a summary process will provide a fair outcome in the interests of justice. The goal is to avoid slow and expensive trials where it is fair and just to resolve the case without a trial.

The test for determining whether a matter can proceed by way of summary judgment, that is, whether there is a genuine issue requiring a trial, was set out by the Court at para. 49 of Hryniak as follows:

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.

The process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial.

The Supreme Court of Canada laid out a specific roadmap detailing the questions to be asked by a judge in deciding whether the case is one that should be dealt with summarily. At para. 66 of Hryniak, Karakatsanis J. wrote:

...the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment 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 requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers.... She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[33] The Court in Kawartha-Haliburton Children’s Aid Society, supra, confirmed certain procedural guidelines that the Court should follow in assessing a Motion for Summary Judgment, stating:

There are procedural guidelines that have been developed to assist the Court in making the determination of whether there is a genuine issue requiring a trial.

First, the burden of proof is on the party who moves for summary judgment. Sanzone v. Schechter, 2016 ONCA 566 at para. 30 …under Rule 16 (4) the moving party must "set out specific facts showing that there is no genuine issue requiring a trial." The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hryniak.

Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:

In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, 242 A.C.W.S. (3d) 794, affirmed 2014 ONCA 878, Corbett J. confirmed the continued applicability of the rules requiring the responding party to "put its best foot forward" or "lead trumps or risk losing". Combined Air Mechanical Services v. Flesch, 2011 ONCA 764 at para 56; Bhakhri, v. Valentin, 2012 CarswellOnt 6667(S.C.J.), para. 7; Pizza v. Gillespie (1990), . 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. T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 at para. 30.

[34] Rule 16(6.1) provides that in determining whether there is a genuine issue requiring a Trial, the Court shall consider the evidence submitted by the parties and may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at Trial.

[35] Summary Judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. Hryniak v. Mauldin, 2014 SCC 7 at paragraph 5.

[36] The test for summary judgment is made out where the moving party satisfies the Court that there is no genuine issue of material fact that requires a Trial for its resolution. If the determination of the issue will have no bearing on the outcome of Trial, it is not a genuine issue for Trial. CCAS of Hamilton v. S.(B.L.), supra at 73.

[37] On a Motion for Summary Judgment, the Court may dismiss the Motion, rule that only certain issues require a full hearing or determine the entire application: B.(F.) v. G.(S.), , [2001] O.J. No. 1586 (S.C.J.) at 28.

[38] In all cases, the Court must consider the primary objective of the Family Law Rules, which is to deal with cases justly. This includes: ensuring that the procedure is fair to all parties; saving expense and time; and dealing with the case in ways that are appropriate to its importance and complexity.

Analysis and Discussion

[39] Having considered the evidence, this Court finds that it is in the interests of justice that this matter be determined summarily. This Court is able, on the evidence, to make findings of fact and to apply the law to the facts. This Court finds that this approach is a proportionate, more expeditious, and less expensive means to achieve a just result.

[40] In this matter, the Court is able, with the evidence before it, to make a fair and just determination in the interests of justice, without using the new authority to weigh evidence or assess credibility.

[41] The Father has tendered no evidence but consents to the outcome sought by the Society.

[42] The Mother has not provided any evidence or put her best foot forward to respond to the Society’s Summary Judgment Motion. She has provided no sworn materials at all. The implication is that the concerns and risks as set out by the Society are uncontested.

[43] The Final Order of Justice Lafrenière dated July 21, 2016 found the child to be in need of protection due to a risk of suffering emotional harm under section 37(2)(g) of the Child and Family Services Act, resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

Continued Need of Protection

[44] It is clear on the undisputed evidence that the child remains in need of protection.

[45] The factors that this Court has considered in determining that there is no genuine issue for trial regarding the child’s continuing need of protection include the following:

a. There is no evidence that the concerns with respect to the Mother which lead to the Society’s involvement in 2015 and the child’s apprehension at birth have diminished;

b. There is no evidence that the Mother has taken steps to strengthen her parenting capacity;

c. There is no evidence that the Mother has reduced her transience and instability; as recently as April 26, 2018 she advised the Society worker that she was living on the street with a friend, staying on the couches of friends, and had no address;

d. The Mother’s cognitive limitations as set out in the Parenting Capacity Assessment remain a concern;

e. The Mother has exercised access inconsistently and with significant gaps. While the Court does not doubt that she loves the child, she has not taken steps to demonstrate a commitment to parenting the child, even in the context of access. This leads to risk of significant emotional harm;

f. The Mother has had several years to demonstrate a commitment to parenting the child. For whatever reason, and the Court is not privy to what those reasons might be as she has not filed responding material, she has not done so.

[46] In the circumstances, on the undisputed evidence of the Society, the Court finds that there is no genuine issue for trial on the issue of the continuing need for protection and concludes that that the child continues to be in need of protection.

Disposition

[47] As set out above, sections 101 and 102 of the CYFSA provide for the placement options for the child in view of the finding that the child is in need of continued protection.

[48] On the evidence before the Court, the appropriate disposition in this matter is for the child to be placed in the custody of his Father, where he has resided under supervision since August 4, 2016. The Father consents to this outcome. In the only written document before the Court on the Mother’s behalf, she agreed with this outcome (although as noted she verbally told her worker at a later point that she wanted the child returned to her care).

[49] In determining that this is the appropriate placement of the child under section 101 and 102 of the CYFSA, this Court has carefully considered the best interests criteria set out in section 74 of the CYFSA. This Court finds on a balance of probabilities that there is no triable issue in relation to the appropriate placement of the child at this time. It is in the child’s best interests that he be placed in the custody of his Father. The undisputed Affidavit materials establish, on a balance of probabilities, that:

a. The Father is able to meet and has been meeting the child’s physical, mental, and emotional needs;

b. Placement with the Father recongnizes the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;

c. Placement with the Father ensures connection with extended family, in particular the paternal grandmother, who has been part of the child’s life since birth;

d. Placement with the Father recognizes the importance of continuity of care for the child;

e. The child is doing well in the Father’s care;

f. The Father is open to access for the Mother and ensuring that the child has a relationship with the Mother, so long as he is not required to personally supervise access.

[50] Further, placement of the child with the Father under a custody Order is the least intrusive alternative available for this family.

[51] Having determined that there is no genuine issue for trial regarding the placement of this child with the Father, the Court must consider what access arrangements, if any, would be in the child’s best interests, with respect to the Mother.

[52] Although the position in the Society’s materials was in favour of supervised access at a community access facility, with the location, frequency, and duration of the visits to be in the discretion of the Father, on the hearing of the Motion counsel for the Society and counsel for the Father agreed that it would be more appropriate for access to be supervised by a mutually agreeable third party such as the paternal grandmother. This makes good sense, as the ability to utilize a supervised access facility in Montréal or Hamilton on an occasional basis is speculative at best.

[53] On the issue of supervision, there is no genuine issue requiring a trial on the issue of supervision itself. The protection concerns of the agency led to access by the Mother being supervised from the child’s birth. There is no evidence to suggest that the protection concerns have attenuated such that the Mother’s access could now not be unsupervised.

[54] In her Plan of Care, the Mother sought a specified access schedule to the child but did not set out a proposal for what that schedule might be. The evidence is that over time the Mother had gradually requested less and less access with the child, and even when that access has been organized, her attendance has been inconsistent, including a gap in access of over a year as set out above. Additionally, the current reality is that the child resides in Montréal, making a specified access schedule difficult to implement. The Father has demonstrated that he is open to the Mother having access, having brought the child to Hamilton from Montréal in October and December 2017.

[55] In the circumstances, this Court finds, on a balance of probabilities, that there is no genuine issue requiring a trial in relation to the issue of access. The Court determines that the appropriate access arrangement for the Mother is for access to continue to be supervised. Supervision shall be by a mutually agreeable third party. The location, frequency, and duration of access shall be in the discretion of the Father. While the No Contact Order remains in place, logistics for such visits will need to be arranged with the assistance of a third party, as they have been previously.

Final Order:

[56] Based on the foregoing, this Court makes the following Final Order:

1. The Society’s Motion for Summary Judgment is granted as there is no genuine issue requiring a trial.

2. The child, S.M.A.A. born […], 2015,

a. Continues to be in need of protection; and

b. Is not First Nations, Inuk, or Métis;

3. The child, S.M.A.A, born […], 2015, shall be placed in the custody of his Father, S.A., pursuant to section 102 of the Child, Youth, and Family Service Act, 2017;

4. Access by the Mother, B.K., to the child, S.M.A.A., shall be supervised by a mutually agreeable third party, with the location, frequency, and duration of the visits to be in the discretion of the Father;

5. The Society shall be provided with notice of any Application or Motion to vary custody and/or access to the child S.M.A.A.;

6. The ten-day approval period for the draft Order is hereby waived and no approval shall be necessary.

Madsen J.

Date: June 27, 2018

COURT FILE NO.: C-327/11

DATE: 2018-06-27 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Children’s Aid Society of Hamilton Applicant

• and - B.K. Respondent Mother S.A. Respondent Father REASONS FOR JUDGMENT The Honourable Madam Justice L. Madsen

Released: June 27, 2018