WARNING

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

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

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

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

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

(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.

Court Information

Ontario Court of Justice

Date: September 21, 2018

Court File No.: C82124/15

Between:

Jewish Family and Child Service of Greater Toronto, Applicant

-AND-

K.B., Respondent Mother

-AND-

S.B., Respondent Uncle of R.B. and M.B.

-AND-

R.G., Respondent Father of R.B. and M.B.

Before: Justice Melanie Sager

Heard on: May 29, 2018 and July 26, 2018

Reasons for Judgment released on: September 21, 2018

Counsel

Sara Westreich — counsel for the applicant society

Renatta Austin — counsel appointed through Public Guardian and Trustee for the respondent Mother

Colin Tobias — counsel for S.B.

No appearance by or on behalf of R.G.

Sara R. Wunch — counsel for the Office of the Children's Lawyer, legal representative for the children R.B. and M.B.

Sager, J.:

Part I: Introduction

[1] Jewish Family and Child Service of Greater Toronto (JFCS) has brought a summary judgment motion within its Amended Protection Application dated September 8, 2017, pursuant to Rule 16 of the Family Law Rules seeking an order of extended society care for the children R.B. born […], 2009 and M.B. born […], 2010, pursuant to subsection 101(1) of the Child and Youth Family Services Act (CYFSA). The society also requests an order that the mother have no access to the children and that she be restrained from having any contact with them without the JFCS's prior written approval pursuant to section 137 of the CYFSA. The society also seeks an order granting the children's maternal uncle, S.B. access to the children.

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

[3] The father of R.B. and M.B. was noted in default on November 16, 2017 and did not participate in the motion.

[4] The children are represented by the Office of the Children's Lawyer who oppose the relief being sought by JFCS as the children wish to be returned to their mother's care.

[5] The maternal uncle S.B., does not oppose JFCS's request for an order for extended society care. He seeks an order for access to R.B. and M.B. and asks for an order making him an access holder as well as the children. He did not take a position on the mother's claim for access to R.B. and M.B.

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

• The Summary Judgment Motion Brief of the JFCS which is made up of 7 volumes;
• The affidavit of Donna Loi sworn May 24, 2018;
• The affidavit of K.B. sworn May 10, 2018;
• The affidavit of S.B. sworn March 5, 2018;
• The affidavit of Dr. Mayer Hoffer sworn March 1, 2018;
• The affidavit of Bethany Davis sworn March 2, 2018;
• The society's Factum and Brief of Authorities; and
• The mother's Factum and Brief of Authorities

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

a) Is there a genuine issue requiring a trial for a disposition for the children other than an order for extended society care?

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

c) Is there a genuine issue requiring a trial to address JFCS's claim for an order restraining the mother from having any contact with R.B. and M.B.?

Part II: The Law – Summary Judgment

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

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

[10] Pursuant to subrule 16(4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue requiring trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See: Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court).

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

[12] Subrule 16(6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

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

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

[14] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. The judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact finding powers to decide if a trial is required.

[15] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak - paragraph 49).

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

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

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

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

Part III: Facts Not in Dispute

[20] This section sets out the facts that were either admitted, unopposed or only baldly denied by the mother.

[21] This family has been known to the JFCS since 2010. Protection concerns first arose in 2012. The current Amended Protection Application was commenced in December 2015 following the mother's first involuntary hospitalization for mental health issues.

[22] The mother was hospitalized from December 2, 2015 to December 10, 2015 at Sunnybrook hospital where she was placed on a Form 1 under the Mental Health Act and kept in hospital for 72 hours on an involuntary basis. The hospital characterized the mother's hospitalization as a result of an amphetamine-induced psychotic episode caused by the mother's use of medication, Adderall and Dexedrine, prescribed to treat Attention Deficit Hyperactivity Disorder (ADHD).

[23] Prior to the hospitalization at Sunnybrook, the mother had been taking Adderall and Dexedrine for approximately 20 years.

[24] The children were brought to a place of safety on December 4, 2015 and placed in S.B.'s care shortly thereafter. As S.B. had difficulty caring for the children, they were placed with the mother's friend who was assisted by S.B. and a few other friends approved by JFCS as a place of safety.

[25] On December 8, 2015, Justice Debra Paulseth made an order placing the children in the care and custody of the JFCS on a without prejudice basis with access to the mother at the discretion of the JFCS. Justice Paulseth also made an order restraining the mother from attending at the children's school or having any contact with school staff members.

[26] On December 23, 2015, Justice Robert Spence ordered the mother to deliver the children's passports to JFCS.

[27] The children remained in the mother's friend's care until February 10, 2016, when they were returned to their mother's care subject to supervision by JFCS, after she demonstrated positive access visits, compliance with medication and a willingness to cooperate with the JFCS. The supervision terms included the following:

(a) The mother shall sign all authorizations for the reciprocal release and sharing of information between the JFCS with third party service providers and professionals involved with R.B. and M.B.

(b) The mother shall take R.B. and M.B. to all medical appointments and follow through with all recommended treatment/support services.

(c) The mother shall attend for/participate in support services as recommended by treatment providers.

[28] After the children were returned to their mother's care, she began to show signs of being overwhelmed. JFCS received reports of concern about the children from their school and the mother's friends. The mother refused counselling services for the children offered through Regesh Family Services and insisted on waiting for services through the Hincks-Dellcrest Centre. She participated with the children in an Intensive In-Home Service program provided by the Hincks-Dellcrest Centre in the summer of 2016.

[29] In July 2016, the mother reported to JFCS that she believed the children were not the same after being returned to her care; they fought about everything; R.B. was exposing herself to other children at school; school work was not being completed; and the children were suffering as a result of their routines being disrupted. The mother reported that she was having difficulties with her parenting responsibilities and felt overwhelmed. She blamed the children's difficult behaviours on the involvement of JFCS and particularly the removal of the children from her care in December 2015.

[30] On July 27, 2016, the children were once again brought to a place of safety and moved to a foster home due to JFCS's concerns around the deterioration of the mother's mental health and the effect it was having on her ability to care for the children and on the children's emotional and psychological wellbeing. The society was also concerned about the risk of the mother removing the children from the jurisdiction as she was expressing a desire to relocate to Israel. This was particularly concerning as the mother had not delivered the children's passports to JFCS pursuant to the order of Justice Spence dated December 23, 2015.

[31] On August 3, 2016, the children were placed in the care of JFCS pursuant to the temporary without prejudice order of Justice Sherr and the mother's access was ordered to be in the society's discretion.

[32] On August 12, 2016, the mother was taken to hospital by the police for a mental health assessment. The mother was placed on a Form 1 under the Mental Health Act. She was released on August 22, 2016 with a Community Treatment Order (CTO) only to be brought back to the hospital on August 28, 2016 by police. A stranger saw the mother crying in the street and called the police for help. The mother's evidence is that this was a very difficult time for her following the apprehension of her children and receiving information from them that caused the mother to be concerned that they had been sexually abused.

[33] The mother was placed on a Form 1 under the Mental Health Act but was then kept in hospital under a Form 3 due to her mental state. She was then deemed to be incapable of consenting to treatment decisions following a hearing before the Consent and Capacity Review Board and her involuntary committal to hospital continued.

[34] The mother remained in hospital until September 16, 2016 at which time she was released from hospital with a CTO. The mother was diagnosed with amphetamine-induced psychotic disorder and possible attention deficit disorder. The hospital discharge statement included a recommendation that she refrain from the use of amphetamines and noted that her insight was "grossly impaired" in that she did not feel she was suffering from psychotic symptoms.

[35] On August 30, 2016, the order of August 3, 2016 placing the children in JFCS's care was made with prejudice and a summary judgment motion was scheduled for November 7, 2016.

[36] The children's foster home placement broke down in September 2016 due to sexualized behaviours by R.B. and M.B.

[37] On September 12, 2016, the summary judgment motion was vacated after the mother's mental health deteriorated and she was found not to be competent to make treatment decisions.

[38] In September 2016, the mother applied to the Ontario Disability Support Program for income replacement benefits on the basis of a supporting note from the psychiatrist who had treated her during her August to September 2016 hospital stay in which she wrote that the mother's continuous impairment is "amphetamine induced psychotic disorder" and that the impairments are, "Impaired concentration, hallucinations, delusions, with poor impulse control". In the self-report form completed by the mother she indicated that her disability causes her physical, emotional and psychological difficulties and that "Due to mental health issues, I am unable to maintain any employment. I am in the constant care of medical professionals."

[39] On October 20, 2016, JFCS brought a motion for an order appointing the Public Guardian and Trustee to act as a litigation representative for the mother. The motion was dismissed.

[40] The mother participated in the CTO until November 2016.

[41] On November 30, 2016, at a meeting with JFCS, the mother denied using amphetamines when unbeknownst to the JFCS the mother obtained a prescription for a refill of her medication that has amphetamines from Dr. Hoffer, her long time treating psychiatrist for ADHD, the day before.

[42] In November 2016, the society asked the mother to discontinue her treatment with Dr. Hoffer and to engage with a new psychiatrist, Dr. Robert Zalan. The mother agreed to discontinue the use of amphetamines to treat her ADHD and to meet with Dr. Zalan. The mother missed her appointment with Dr. Zalan in July 2017 and never met with him.

[43] In January 2017, the parties agreed to a Parenting Capacity Assessment to be completed on the mother by Dr. Jean Wittenberg who concluded that the mother lacked the capacity to safely care for R.B. and M.B.

[44] On March 29, 2017, Justice Sherr found R.B. and M.B. to be children in need of protection pursuant to subsection 37(2)(b)(i) of what was then the Child and Family Service Act, specifically that they were likely to suffer physical harm by their mother or as a result of her failure to adequately care for, provide for, supervise or protect the children due to her mental health issues and hospitalizations due to amphetamine-induced psychosis caused by medications that the mother continued to rely upon.

[45] On May 1, 2017, the mother began working with a Mental Health Case Manager.

[46] On May 3, 2017, R.B. was taken to hospital due to expressions of suicidal ideation at school. She was assessed by a hospital staff psychiatrist and found not to be at risk of self-harming and discharged the following morning.

[47] In September 2017, the mother claims to have been quite concerned about the children's safety in care and did not believe that R.B. and M.B. were receiving proper care from their foster parents and made numerous complaints to JFCS.

[48] On September 24, 2017, the mother somehow obtained the foster parents' address and asked emergency services to check on her children as she believed they were not safe. Emergency services attended at the foster home to check-in on the children.

[49] The mother attended at the children's school on September 25, 2017, to speak to the school about issues affecting the children in order to address her concerns that JFCS was not adequately addressing these issues. The mother's attendance at the school resulted in police involvement. The school reported to JFCS that the school was put into lock-down.

[50] On September 27, 2017, Justice Sherr made an order restraining/prohibiting the mother from having any access, direct or indirect with the children except with the approval of JFCS. The mother was also restrained from attending at any location where the children are known to be except with the approval of JFCS and she was prohibited from attending at the children's school or being within 500 metres of the school. Finally, the mother was prohibited from having any contact with the foster parents or coming within 500 metres of their home.

[51] The children's foster placement and school were changed after the mother sent emergency services to the foster home and attended at the children's school in September 2017.

[52] The mother made numerous Facebook posts in or around October to November 2017 alleging that her daughters are missing, being abused by JFCS and asking people to call Crime Stoppers and City TV with any information about them. Her evidence is that she did this out of concern for their well-being. She says she was worried they were malnourished, poorly dressed and suffering from excessive bruising and scrapes. She felt she was taking appropriate action by making the Facebook posts. The posts violated the publication prohibition of information about a child protection case as the mother references JFCS and their care of her daughters in her posts.

[53] The mother posted flyers in the area she lives, the Wilson subway station and a Shoppers Drug Mart over several months with the phrase, "Have you seen my children?" with photos of R.B. and M.B. The flyers had the mother's phone number and asked for those who have seen her children to call her. The mother posted these flyers after seeing a news story that caused her to be concerned for her daughters' safety.

[54] On November 1, 2017, the mother posted a four hour video on Facebook in which she makes allegations that JFCS and the foster parents are abusing the children. The mother included in the video a recording of a conversation she had with a JFCS employee.

[55] On November 16, 2017, the children's father, R.G. was noted in default.

[56] On November 30, 2017, the mother attended at the children's foster home at approximately 6:00 a.m. and tried to force her way inside as she says she was overwhelmed by concerns about her children and had to know that they were alive and well. She was charged criminally with breaching the terms of the restraining order made by Justice Sherr on September 27, 2017. That charge remained outstanding as of the date of the summary judgment motion.

[57] On December 18, 2017, the mother was declared to be a special party pursuant to Rule 2(1) of the Family Law Rules and the Public Guardian and Trustee was appointed to be the mother's representative in this litigation pursuant to rule 4(3) of the Family Law Rules.

[58] The mother was hospitalized from January 9, 2018 until February 6, 2018, after her psychiatrist, Dr. McLean obtained a Form 2 Warrant under the Mental Health Act, attended personally before the Justice of the Peace and then went to the police station to have the warrant executed. The mother was brought to the hospital on a stretcher in four point restraints.

[59] During her hospitalization in early 2018, the mother was diagnosed with a psychotic disorder (not otherwise specified), amphetamine induced psychosis, bipolar effective disorder and abuse of ADD medications. She was discharged with a CTO.

[60] The mother was charged with two criminal offences in January 2018 after being arrested at a Canadian Tire, which were resolved by way of a diversion through the Mental Health Court at the Ontario Court of Justice at Old City Hall.

[61] As the mother refused to release information about her mental health to the society since September 23, 2016, the society brought a motion for the release of the mother's hospital and psychiatric records which was granted by Justice Sherr on February 20, 2018. Justice Sherr made an order requiring the mother's psychiatrist, Dr. Mary Kathryn McLean to release and produce copies of all records in her control with respect to the mother.

[62] On February 25, 2018, the mother sent an email to approximately 52 different recipients including the camp the girls attended and their former school. The email included a copy of a flyer similar to the ones the mother poster in her neighbourhood as well as a photograph of the mother, the children and a JFCS worker during access. The mother also attached a copy of the court order appointing the Public Guardian and Trustee.

[63] The mother posted an on-line petition on April 17, 2018, entitled "Don't let JF&CS abduct my daughters". The post specifically mentions JFCS and R.B. and M.B. by their first names as well as her full name.

[64] The mother explains that many of her actions were as a result of her feeling hopeless and concerned that she was not doing enough to ensure her children were properly cared for while out of her care.

[65] The mother claims to have stopped making the Facebook posts when instructed to do so by police and stopped posting the flyers after receiving a video of the girls which confirmed for her that they were alive and well but there is evidence that her Facebook posts continued at least until April 29, 2018.

[66] The mother believes that her ongoing involvement with JFCS has caused her mental health episodes.

[67] The mother continues to see a psychiatrist at North York General Hospital at an outpatient clinic and takes an antipsychotic medication he prescribes for her.

[68] The Summary Judgment Motion was heard on May 29th and July 26th 2018.

The Children

[69] R.B. loves books and likes to sing. She also likes to be the leader in school.

[70] In September 2017, R.B. was behind a grade level at school and has an individual education plan. In 2017 R.B. was provided with extra academic and emotional support at school. She receives support for reading and resources support in the afternoon three times per week. The Special Education Teacher worked on language, reading and editing with R.B.

[71] R.B. has been seen regularly by a doctor and dentist with no concerns and she has undergone hearing and eye exams with no concerns reported.

[72] M.B. loves listening to stories and is eager to learn. She is able to follow rules and show self-control.

[73] In September 2017, M.B. was a grade level behind in school. She was provided with extra academic and emotional support in school. M.B. was also receiving resource support three times per week in a small group with three other children. The Resource teachers were working on skills to eventually apply towards writing.

[74] M.B. has been seen regularly by a doctor and dentist with no concerns and she has undergone hearing and eye exams with no concerns reported.

[75] Both children began individual counselling through the Hincks-Dellcrest in February 2017. Shortly thereafter, the children had some counselling sessions together as well as with the foster parents. Currently, the children have their own counsellors.

The Mother's Visits with R.B. and M.B.

[76] The mother's access to R.B. and M.B. has been suspended since September 2017.

[77] JFCS's affidavit evidence describes many concerning features of the mother's visits with R.B. and M.B. when they did take place and which the mother did not deny. They include:

(a) Discussing the foster parents' care of R.B. and M.B. with the children;

(b) Prompting the children to tell JFCS staff that they want to go home and that they wish to see their mother more;

(c) Telling the children that they will be returning home soon;

(d) Speaking negatively of the foster parents and JFCS to or in front of the children;

(e) The mother at times became argumentative and combative with JFCS workers in front of the children;

(f) The mother coached the children to make allegations against their foster parents of mistreatment and neglect;

(g) The mother made inappropriate promises to the children including that there would be additional visits;

(h) The mother claimed that the children were being abused in their foster home, are malnourished and that R. was pregnant; and

(i) The mother accused a JFCS worker of abusing R.B. and M.B. in front of the children.

[78] On June 22, 2017, when the mother arrived for a visit with the children, JFCS staff were concerned about her presentation. The Family Service Worker told the mother that she was concerned about her as she was presenting in the same manner and displaying the same behaviour prior to her hospitalization in 2015 for amphetamine induced psychosis. As a result, JFCS suspended the mother's access until she was seen by a medical professional who could assess her mental health.

[79] After consulting with several of the mother's service providers, JFCS reinstated supervised access once per week for one hour which began on August 22, 2017. Following the August 29, 2017 visit, JFCS became concerned as R.B. was showing signs of anxiety and stress. She appeared anxious and disorganized and the foster parents reported that she claimed to be hearing things. Access was suspended between August 29, 2017 and September 12, 2017. When access resumed, the mother was required to attend at JFCS offices early to check in with staff and have her mental health assessed to confirm she was well enough to have the visit.

[80] As a result of the concerns around R.B.'s emotional and mental wellbeing as well as the mother's presentation deteriorating, the society was contemplating suspending the mother's access. It was around this same time that the mother somehow became aware of the foster parents address and sent emergency services to the foster home alleging the girls were in danger and needed immediate assistance; and, she showed up at the children's school seeking information.

[81] On October 2, 2017, JFCS suspended the mother's access due to her recent concerning behaviours and the risk she posed to the children. After the foster parents reported that the girls were asking to see their mother, access was scheduled to take place on October 25, 2017. The visits would be fully supervised and the mother would have to continue to do a pre-visit check-in with staff. The mother arrived late for the first visit dressed in a wedding gown and was extremely agitated and could not be calmed down by staff. The mother was escorted from the premises by security and the visit did not take place.

[82] Despite the concerns around the mother's access to R.B. and M.B. it is not contested that the mother and children love each other and were affectionate with one another during visits and that the children were happy to see their mother. When the mother was well, the visits had some positive aspects to them.

Part IV: Proposed Plans for the Children

(a) Society's Plan for the Children

[83] The society seeks an order for extended society care with no access by the mother to the children. The society and S.B. have requested an order that the children have access to S.B. and that they shall be the access holders.

(b) The Mother's Plan for the Children

[84] The mother's plan is for the children to be returned to her care, with or without JFCS supervision. She currently lives in a one bedroom apartment but says that her mental health case manager will assist her in finding housing for herself and the children as well as services for the children.

[85] The mother says that she will continue to receive financial assistance from ODSP.

[86] The mother says that she will have the help of three close friends and hopes that her brother S.B. will assist her as well. The mother advises that she would like to move to Israel sometime in the future but given the amount of instability the children have endured, her priority right now is a "stable, safe and happy home with me."

[87] The mother says that she is open to receiving support from third parties, specifically Hincks-Dellcrest, who worked with the children in the past, and she deposes she will follow the advice of third party professionals regarding her parenting in order to ensure her children are safe and well cared for.

[88] As of the date of this motion, the mother had not provided the details of her current residence to JFCS staff nor had she permitted them to attend at her home for a mandatory home visit and to discuss services with her.

Part V: Legal Considerations Regarding Disposition on a Protection Application

[89] The court must determine whether a trial is required in this matter within the legal considerations that apply on a Protection Application. The Protection Application is brought pursuant to section 101 of the CYFSA. Subsection 101 of the Act sets out the court's options on a Protection Application as follows:

Order where child in need of protection

101 (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 102, 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.

Interim society care

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

Extended society care

3. 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

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.

Court to inquire

(2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[90] The statutory pathway on this Protection Application is as follows:

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

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

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

4. If the court determines that access is in the child's best interests, make an access order containing the terms and conditions that are in the child's best interests (section 104 of the Act).

[91] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part V of the Act.

[92] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[93] 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.

[94] Other than the mother's plan and the society's plan, there is no other plan before the court for either child. JFCS has complied with subsection 101(4) of the CYFSA by enquiring with S.B. repeatedly if he could plan for the children and by making the same enquiries with the mother's close friends. JFCS also made enquiries with the father and his family to determine if they could plan for the children. No one other than the mother and the society has been able to put forward a plan for R.B. and M.B.'s permanent placement.

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

Best interests of child

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

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

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

[96] An order placing a child in the extended society care of the society is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton- Wentworth v. G. (J) (1997) 23 R.F.L. 4th 79 (SCJ- Family Branch).

[97] 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. See: Children's Aid Society of Toronto v. D.S. (Ont. S.C.J.).

[98] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H. (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.).

The Efforts Made by Jewish Family and Child Service to Support Mother

[99] The JFCS gave evidence that they have made enormous efforts to help the mother address the issues that create the protection concerns. The mother did not dispute that the follow efforts were made by JFCS to assist her:

(a) JFCS workers met with the mother to discuss ways to improve her parenting;

(b) JFCS workers spoke to the mother about having appropriate therapeutic supports in place and a safety plan she could utilize when she felt overwhelmed;

(c) JFCS offered in home programing through the Hincks-Dellcrest Intensive In-Home Support Program;

(d) JFCS referred the mother to JFCS's P4S parenting program;

(e) The mother was offered counselling through JFCS which she declined;

(f) The mother was referred to a new psychiatrist by JFCS in 2017, for which she missed her first appointment and did not follow up to reschedule;

(g) The mother was offered to work with a JFCS financial worker which offer she mostly rejected;

(h) JFCS maintained before and after school child care for the children after they were returned to the mother's care in 2016;

(i) JFCS arranged play therapy through Regesh Family Services for the children when they were in the mother's care which the mother declined;

(j) JFCS arranged for a Child and Youth Worker to spend 3 hours a day in the mother's home with her and the children, which the mother declined;

(k) JFCS discussed with the mother her need for trauma therapy and counselling which she could obtain through JFCS which she did not follow through with;

(l) JFCS obtained a Parenting Capacity Assessment of the mother;

(m) In November 2016 JFCS arranged a meeting for the mother with their consulting psychiatrist;

(n) In November 2017, JFCS offered to assist the mother in obtaining appropriate housing after she was evicted which, despite being homeless, the mother refused;

(o) JFCS paid for a 3 night stay in a motel for the mother after she was evicted;

(p) JFCS offered financial assistance to the mother and to pay for a storage locker for her to safeguard her belongings when she lost her home. The mother did not take advantage of the offer of a storage locker;

(q) JFCS provided the mother with a case aid whose role it was to advocate for services for the mother such as Ontario Works, ODSP and daycare. The case aid also helped her with budgeting her money and drove her to and from some access visits; and

(r) The mother's case aid also attempted to assist the mother from being evicted from her apartment in November 2017 by arranging a meeting with the mother and her landlord to which the mother did not attend. As a result, the mother was evicted for nonpayment of rent in November 2017.

[100] The uncontested evidence demonstrates that JFCS's efforts to assist the mother in addressing the protection concerns were significant. JFCS provided the mother with supports and the tools to address the issues that led to her children being taken to a place of safety but she was unable or unwilling to utilize those tools.

[101] The society was relentless in their attempts to engage the mother and assist her in obtaining services, manage her finances and secure housing. She was unable or unwilling to take advantage of the assistance being afforded to her by refusing assistance, refusing to meet with the society or by misleading the society.

Part VI: Analysis

Is there a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's fact-finding powers with respect to disposition?

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

[103] The court is not relying on contested evidence at this stage to reach this conclusion. The mother's evidence, at best, amounts to explanations for her conduct and choices; the very conduct and choices that JFCS argues is the basis for the order they are seeking on this motion.

[104] The court is able to make this finding on the uncontested evidence and without resorting to the expanded powers afforded to it by Rule 16(6.1). The court does not have to use its fact-finding powers to determine that there is no genuine issue for trial.

[105] The court has considered the views and wishes of R.B. and M.B. to live with or have contact with their mother in reaching a decision on the appropriate disposition order.

[106] It is clear on the uncontested evidence that the mother's plan for the children to be returned to her care is not viable and that the only order that would be in the children's best interest, taking into consideration the factors set out subsection 74(3) of the CYFSA, is an order placing the children in JFCS's extended care. This is the least disruptive alternative for R.B and M.B.

[107] The children have been in care since August 3, 2016, over two years and beyond the statutory timeline. The mother has been unable or unwilling to address the protection concerns during the time the children have been in care. There is no evidence upon which the court can rely to find that she is capable of safely parenting R.B. and M.B.

[108] The mother argues that this case requires a trial as there is conflicting and inconsistent evidence before the court about material facts relating to the status of her mental health. She argues that the court cannot make a finding about her mental health, creating a genuine issue requiring a trial.

[109] While the society and the mother are at odds with respect to the mother's mental health diagnosis, the court's attention is focused on the mother's actions, inaction, choices and behaviour that put the children are risk; not the cause.

[110] In Catholic Children's Aid Society of Toronto v. M.F., 2016 ONCJ 576, Justice Sherr dealt with a similar issue in that a mother was contesting the findings of multiple psychiatrists who had diagnosed her with mental health issues. Justice Sherr found that the mother suffered from untreated mental health issues that rendered her incapable of parenting a child. Justice Sherr noted that the mother had been hospitalized several times and often against her will and wrote at paragraph 65, "The mother's precise diagnosis is not necessary to determine that she has significant mental health issues. This is evident by the mother's behaviours observed by many professionals."

[111] The court relies on the mother's undisputed and often admitted behaviours as the basis for the finding that she suffers from serious mental health issues. What is clear and undisputed is the mother's long history of struggling with maintaining adequate mental health. She has been in hospital on 4 occasions since 2015 due to mental health crises; she was brought to hospital by the police, on one occasion in restraints; she was found during one hospitalization to be incapable of making treatment decisions; one of her treating psychiatrists took extraordinary steps to have the mother brought to hospital by the police; she has been kept in hospital against her will by utilizing the Mental Health Act; she is in receipt of ODSP due to mental health struggles; she has a mental health worker; she has had criminal charges diverted by the mental health court; she has repeatedly been diagnosed as suffering from psychosis; and the Public Guardian and Trustee was appointed in this proceeding to act as her legal representative.

[112] In addition, the mother has admitted to having engaged in conduct that put her children at risk of harm and which caused them significant instability. She attended at the foster home and the school when she knew she was not permitted to do so. She attended at the foster home in the face of a restraining order; she caused the children's foster home and school to be changed; she made details of this proceeding public on numerous occasions despite repeatedly being cautioned by the court that she was violating a legislated publication ban.

[113] The mother cannot identify the source of any difficulties in her life or explain her apparent episodes of psychosis other than the involvement of JFCS. She cannot see the possible harm in anything she has done or the decisions she has made about her care. She cannot consider the possibility that there is a reason for her periods of mental instability other than the stress in her life due to the involvement of JFCS. She is simply unable to recognize that she is unwell and that she requires intervention that she is currently not receiving in order to get well. Unfortunately there is no evidence of any change or improvement in the mother's mental health since the children were brought back into the care of JFCS in August 2016.

Least Intrusive Order

[114] The mother has shown no insight into the protection concerns and as a result, she has never demonstrated a willingness to cooperate with the society to address the protection concerns. She does not address the serious concerns raised by the society in their affidavit material in her Answer and Plan of Care or the affidavit material she relied upon on this motion. The mother does not deny many of the behaviours the affidavit evidence of JFCS describes in support of the order they are seeking on this motion. Rather, the mother explains and justifies her behaviour as the actions of a parent who was concerned about the well-being of her children. The evidence is clear that her behaviour is that of a person who is not well.

[115] Before there could be a move for these children back to their mother's care, the mother would have to show she has adequately addressed the court's concerns. Despite JFCS being involved with the family for almost three years, the mother has been unable to take the steps necessary to address the court's concerns.

[116] The mother's actions and judgment as demonstrated throughout this proceeding makes it abundantly clear to the court that she is incapable of addressing the protection concerns. She cannot be entrusted with the care of two young children when she has been unable to properly care for herself.

[117] In determining the appropriate disposition, the court must decide what is in the child's best interests. The court has considered the criteria set out in subsection 74(3) of the Act in making this determination.

[118] In order for the return of the children to the mother's care to be a possibility, she would have had to demonstrate that she could adequately parent the children without supervision for extended periods. This would be a lengthy process in which the court would want to assess the mother's ability to care for the children first, on a fully unsupervised basis, second for full days, and third, for overnight visits. The process of evaluating extended access never took place as the mother did not demonstrate an understanding of the protection concerns or a willingness to address them. As the mother has not seen the children since September 2017, her plan does not have any air of reality to it.

[119] In order for a court to even contemplate returning the children to her care, there would have to be several detailed terms of supervision. In order for there to be a possibility of a successful return of the children to the mother's care, the court must be confident that the mother will comply with the terms of a supervision order.

[120] The evidence is a very persuasive indicator that the mother will not cooperate with the terms of a supervision order. The mother breached the terms of the supervision order when she had the children in her care subject to JFCS's supervision. She has violated numerous orders including restraining orders, publication bans and an order to deliver the children's passports to JFCS. In addition, the mother's lack of cooperation with JFCS, her failure to follow through with recommendations and services and her refusal to release important medical information to them supports the conclusion that the mother would not cooperate to permit the very high level of involvement the court would require by JFCS if the children were to be returned to the mother's care.

[121] The court finds, based on the uncontested or baldly denied evidence that:

a) JFCS's plan will better meet R.B.'s and M.B.'s physical, mental and emotional needs. Both children are doing well in a foster care with loving and consistent caregivers.

b) JFCS's plan will better meet R.B.'s and M.B.'s need for treatment to meet their physical, mental and emotional needs.

c) JFCS's plan will better meet R.B.'s and M.B.'s physical, mental and emotional development.

d) JFCS's plan will better meet R.B.'s and M.B.'s need for continuity and stability.

e) The risk of placing R.B. and M.B. with their mother is unacceptably high as they would be moved from a stable to an unstable environment.

f) JFCS's plan will better address R.B.'s and M.B.'s needs than the plan proposed by the mother.

g) The children have been in care almost over two and a half years. The degree of risk to the children when in their mother's care has not been reduced. This case should not be delayed any further.

[122] While the mother had over two and a half years to address the protection concerns, she did very little to do so. The evidence reveals that the mother is not able to meet either child's physical, emotional or psychological needs on a full time basis. She has not taken meaningful steps to address her mental health struggles. The court finds that the mother has been unable to put the needs of her children before her own and that her judgment with respect to her mental health is impaired.

[123] It would not be in the interest of justice to order a trial in this case as the summary judgment process is proportionate, more expeditious and less expensive than a trial and most importantly, it allowed the court to make the necessary findings of fact and apply the law to the facts such that the court can fairly and justly adjudicate the issues and resolve the matter summarily.

Part VII: Access by the Mother to R.B. and M.B.

[124] JFCS ask that there be an order for no access by the mother to R.B. and M.B. The mother requests reciprocal access rights to R.B. and M.B. such that each child and the mother would be an access holder. JFCS and S.B. agree that the children and S.B. should have access to one another at the discretion of the society. R.B. and M.B. have consistently expressed a desire to return to their mother's care. This is an undisputed fact.

[125] The record on this summary judgment motion provides sufficient evidence for the court to decide the issue of access to R.B. and M.B. on a summary basis such that a trial on this issue is not required. The court is able to make final orders regarding access on a summary basis on the uncontested evidence and without resorting to the expanded powers afforded to it by Rule 16(6.1). The court does not have to use its fact-finding powers to determine that there is no genuine issue for trial.

[126] The court finds that the summary judgment motion is a fair and just process to determine the issue of the mother's access to R.B. and M.B. The record on this motion with respect to the issue of access by the mother does not raise a genuine issue that requires a trial to resolve. It would not be in the interest of justice to order a trial in this case as the summary judgment process is proportionate, more expeditious and less expensive than a trial and it allowed the court to make the necessary findings of fact and apply the law to the facts such that the court can fairly and justly adjudicate the issues and resolve the matter summarily.

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

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

104 (1) – Access order

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

(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 a the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[128] Subsections 105(5) and (6) of the CYFSA governs access orders when a child is placed in the extended care of the society. It reads as follows:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child's best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.

[129] As noted above, the best interests considerations are set out in subsection 74(3) of the CYFSA. The court is mandated to consider the child's views and wishes and give due weight to those views in accordance with the child's age and maturity, unless they cannot be reasonably ascertained. The other mandatory considerations in determining best interests is the consideration of whether the relationship between the person seeking access and the child is beneficial and meaningful and if relevant, whether an order for access will impair the child's future opportunities for adoption.

[130] The wording of the CYFSA maintains the onus on the parents or person seeking access to meet the test under the legislation. The test that must be met under the CYFSA is one of best interests and it must be met in this case by the mother. As set out above, when considering whether access is in the child's best interest, the court shall consider whether the relationship between the person seeking access and the child is meaningful and beneficial to the child and whether an order for access will impair the child's future opportunities to be adopted, if relevant.

Pre-CYFSA Case Law on Interpretation of Beneficial and Meaningful

[131] In considering the beneficial and meaningful portion of the test, Justice Ellen Murray in Catholic Children's Aid Society v. M.M., [2012] O.J. No. 3240 (OCJ) found that maintaining a connection and knowing your roots is significant in this consideration. She indicated that if a child can continue the connection while also having the security of an adoption placement, it should be considered.

[132] In Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054, the court indicated that the court should also consider the potential detriment to the child of not making an access order.

[133] More is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being. Even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child. An access order cannot be merely a consolation prize for disappointed adults. See: The Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731.

[134] In Children's Aid Society of Toronto v. M.A. and C.M. (ON SC), the court found that, even though the access visits were generally enjoyable for the child, it was open to the trial judge to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family.

Post-CYFSA Case Law on Interpretation of Beneficial and Meaningful

[135] In Family and Children's Services of Guelph & Wellington County v. T.S., 2018 ONCJ 411, Justice Michael O'Dea found that the definitions of beneficial and meaningful set out in the case law under the Child and Family Services Act no longer apply, writing:

a) Reading subsections 105(5) and (6) together, the beneficialness and meaningfulness criterion should be given no greater weight than the balance of the subsection 74(3) criteria (paragraph 52).

b) The previous interpretation of beneficial as being "significantly advantageous" stands a risk of overpowering the other 13 criteria in subsection 74(3). This interpretation should be amended to mean that the access relationship at the time of trial was both "positive" and "important" to the child since, in my mind, these words appear contextually compatible with the balance of the subsection 74(3) considerations whereas significantly advantageous reads as an overriding consideration (paragraph 54).

[136] Justice John Kukurin had a different interpretation of the new test in Children's Aid Society of the Districts of Sudbury and Manitoulin v. C.H., 2018 ONCJ 453 and made the following observations:

1. When considering the access of a parent to a child who has been placed in extended society care, the court has to look at the child's best interests. Included in that best interests analysis are the 'beneficial/meaningful relationship" considerations. Also, the court has to decide if the impairment of future opportunities for adoption is or is not a relevant consideration in the case. If it is not, future adoption opportunities, and any impairment of them, are of no further consequence. If it is, then the court must consider the evidence that relates to such future opportunities, and to the impairment of them that making an access order will bring about. There is no longer a "formal" requirement that both of these considerations (ie beneficial/meaningful relationship, and no impairment of adoption opportunities) must be demonstrated to the satisfaction of the court by the person seeking post extended care order access. This latter was a formidable task under the CFSA, in some cases, an almost impossible one prior to the dawn of the amendments in 2011 that introduced openness applications into adoption legislation. The enactment of the CYFSA has arguably lessened the onus on the access applicant. It may not have completely done away with the reverse onus that was implicit in s.59 (2.1) CFSA, but arguably may have placed some of that onus with respect to access (or no access) on the society.

2. While it might appear that as additional considerations in the best interests test that these factors had come down a notch in terms of importance, I don't think that was the end result of the legislative changes.

3. The purpose of an access order after a child is ordered into extended society care is different than the purpose of an access order before an extended care order is made. The extended care order presumes that the child and the access seeker will not be re-united in one family. In fact, the permanency plan for such child is necessarily with someone else. So why have an access order? The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful. That is not to say that if the access seeker is, for example, a parent of the child, there is an automatic presumption that access between the child and that parent is beneficial or meaningful. It must still be shown to be. The same applies for any other category of access seeker, and even the child itself if he or she is seeking access.

4. The onus remains on the parent to prove that access is in the child's best interests once an extended care order is made.

5. The onus is on the parent to prove that access is beneficial and meaningful to the child on a balance of probabilities. While this is now a consideration under the Act it is an important one, perhaps more important than any other.

6. The pre-CYFSA case law defining what is beneficial and meaningful still applies.

7. The court should not consider the possibility of any openness application. See: T.L.K. v. Children's Aid Society of Haldimand Norfolk, 2015 ONSC 5665.

8. While the 'beneficial/meaningful relationship' consideration is demoted in importance under the CYFSA, in fact, if the relationship is not shown to be beneficial and meaningful, then it is strike one and two against the mother. If impairment of future adoptability is relevant in the circumstances of this case, and the mother does not show that access will not impair future adoptability, then it is a virtual strike three against her.

[137] In Children's Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371, Justice Alex Pazaratz also applied pre-CYFSA case law in determining whether the parent-child relationship was beneficial and meaningful for the children.

Best Interests Analysis

Do R.B. and M.B enjoy a relationship with their mother that is beneficial and meaningful to them?

[138] The starting point of this analysis must be an acknowledgment that the CYFSA provides that an existing access order is automatically terminated if the final disposition is an order placing the child in extended society care unless the party seeking access can demonstrate that ongoing contact is in the child's best interests.

[139] The presumption against access to a child who is placed in extended care must be considered in light of the paramount purpose of the CYFSA, "to promote the best interests, protection and well-being of children." It therefore must be presumed under the CYFSA that in order to promote the best interests, protection and well-being of children placed in extended society care, outstanding access orders must be terminated – unless the person seeking access can rebut that presumption. A determination of whether access is in a child's best interest includes a consideration of whether the child enjoys a relationship with the access parent that is beneficial and meaningful to the child.

[140] With the enactment of the CYFSA on April 30, 2018, came a new test for the court to apply when a party requests access to a child placed in extended society care. The test under the predecessor legislation was quite rigid and difficult for a parent to meet as they were required to demonstrate that their relationship with the child is beneficial and meaningful to the child, and that an order for access will not impair the child's future opportunities for adoption. Under the CYFSA, the court must consider as part of the best interests analysis whether the relationship between the person seeking access and the child is beneficial and meaningful. The court is no longer required to find that the relationship is beneficial and meaningful before granting an order for access to a child placed in extended society care. The court must also consider, if relevant, whether an order for access may impair the child's future opportunities to be adopted. These are additional mandatory considerations to the best interest test.

[141] The introduction of the best interests test in the CYFSA brings a less rigid and more flexible approach to deciding whether to order access to a child placed in the extended care of the society, as a court is now permitted to give consideration to any factor it considers relevant, one can assume, on the well accepted principle in cases involving children that one size does not fit all.

[142] As the best interest analysis involves a consideration of what could be numerous factors, there cannot be a hard and fast rule as to how much weight a court must give any one factor including whether the relationship between the party seeking access and the child is beneficial and meaningful to the child. That must be determined on a case by case basis, by weighing all the relevant factors against the particular needs of the child before the court. This is a significant departure from the rigid test in the predecessor legislation.

[143] For some children who are the subject of an order of extended society care, a relationship with a parent may be in their best interests for a myriad of reasons. Some of those reasons would not have been sufficient to demonstrate a beneficial and meaningful relationship under the predecessor legislation to the CYFSA. The court ought not be confined to a one-dimensional definition of beneficial and meaningful under the CYFSA, as to do so would be to potentially ignore the variety of needs children have as a result of being removed from their parents' care, both at the date of the order and in the future. For this reason, the test was altered in a significant way to one of best interests.

[144] This case demonstrates why the court must be able to take a flexible approach to determining whether a child shares a beneficial and meaningful relationship with a parent seeking access. R.B. and M.B. love their mother and despite not having seen her in a year, express a desire to return to her care. They enjoyed visits when they occurred and continue to ask to see their mother. This supports a conclusion that R.B. and M.B. had a relationship with their mother that was meaningful to them and is a factor in favour of an order granting the mother access. The children may also have enjoyed some benefits of access to their mother including having their wishes met, having a connection to their Israeli heritage, and, having direct access to important medical information. But the analysis does not end there. While the relationship might be meaningful to the children and may have these benefits, the relationship is not beneficial to the children because of the significant degree of risk of harm to them that comes with that relationship.

[145] Throughout the period of time this family has been involved with JFCS, the mother has been unable to adequately address her mental health issues. That has resulted in sporadic access; access during which the children witnessed conflict between their mother and JFCS staff; access during which the mother tried to undermine the children's placement by coaching the girls to complain about their foster family; and, access that as of the date of this motion, has been suspended for almost a year.

[146] The mother's behaviour has resulted in two restraining orders, police involvement, criminal charges as a result of a violation of the restraining order, the mother learning where the children's foster family live and attending at the home, the children having to be moved from their foster home and their school, the police having to be called when the mother showed up at the children's school unannounced, the mother putting up flyers around her neighbor enquiring about the whereabouts of R.B. and M.B., and making inappropriate posts on social media disclosing the fact that R.B. and M.B. are in the care of JFCS despite that being a violation of section 87(8) of the CYFSA. Most importantly, the children have not been able to be returned to the mother's care because of her choices in relation to the treatment of her mental health issues. This has of course had a direct negative impact on the benefit the children have derived from their relationship with their mother.

[147] The children have not seen their mother since September 2017. Between August 2016 and September 2017, when access did occur, it was for short periods and fully supervised by JFCS staff. It would be very difficult for the mother to demonstrate that her relationship with the children is beneficial to them in these circumstances.

[148] The relationship the children have with their mother cannot be defined as beneficial, even when given the most liberal interpretation, when each and every contact with their mother creates a risk of emotional harm to the children.

Would an order for access impair future opportunities for adoption?

[149] Whether an order for access by the mother to the children would impair future opportunities for adoption is a highly relevant factor to consider in this case.

[150] The phrase "impair the child's future opportunity for adoption" means more than just impairing a child's opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717.

[151] A child can now be placed for adoption when there is an existing access order.

[152] The potential chilling effect to adoptive applicants of having to deal with litigious parties in openness litigation is discussed by Justice Jones in paragraph 71 of Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530 as follows:

[153] Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

a. They would be facing further litigation

b. They would not know the result of such litigation

c. They would not know what form an openness order might take

d. If an openness application is brought, the adoption will be delayed

e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved.

[154] The case law has recognized that persons who hold certain attributes may be more likely to impair a child's opportunities for adoption, as these attributes might dissuade adoptive applicants from coming forward to adopt the child. This might result in an undue delay in the child's adoption. Many people will hold more than one of these attributes.

(a) The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

(b) The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

(c) The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

(d) The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation. See: Children's Aid Society of Toronto v. A.F., 2015 ONCJ 678.

[155] There is overwhelming evidence that the mother possesses many of the attributes recognized as likely to create an impairment for adoption if she is granted access to the children such as:

(a) The mother has demonstrated a lack of impulse control on many occasions which directly impacted the children including sending emergency services to the foster home arguing with JFCS staff in front of the children, and attending at the former foster parent's home in the face of a restraining order.

(b) The mother made every effort to undermine the children's foster home by coaching the children, speaking negatively to the children about the foster parents, posted on flyers and social media sites that the foster parents are abusing her daughters and alleged repeatedly that the foster parents were not providing adequate care of the children.

(c) The evidence is that the mother was not forthcoming with the society about her continued relationship with Dr. Hoffer after she assured JFCS she would no longer see him and would begin treatment with a new psychiatrist arranged by JFCS. The mother has also refused to share information with JFCS since September 2017 or cooperate with them in any meaningful way.

(d) The mother has violated several court orders in this proceeding, some repeatedly.

(e) The mother has made it very clear that she will be unable to accept a reduced role in the children's lives. If she is granted access to R.B. and M.B., there is little doubt she will pursue openness litigation if an adoptive home is found for the girls.

[156] R.B. and M.B. are almost 9 and 8 years old respectively. They are physically healthy children. There is every reason to believe that they can be adopted into a permanent, loving home. Whether access would impair R.B. and M.B.'s future opportunities to be adopted is extremely relevant in this case.

[157] The court finds that an order for access by the mother to the children would impair future opportunities for adoption. The reasons set out above explaining why a supervision order is not a possibility in this case also provides support for the conclusion that an access order would impair adoption.

Other Best Interest Factors Under Subsection 74(3) of the CYFSA

[158] The court must consider and give due weight to the children's views and wishes in accordance with their age and maturity. R.B. and M.B. have consistently expressed a desire to return to their mother's care and have access with her. This is an undisputed fact. R.B. is almost 9 years old and M.B. is almost 8 years old. However the importance of their views and preferences has to be weighed against the other factors the court is obliged to consider as well as the finding that the mother poses an ongoing risk to the children's safety and wellbeing.

[159] The degree of risk of harm to the children of having ongoing contact with their mother is so significant that the court must give this factor far more weight than the finding that R.B. and M.B. wish to return to their mother's care and that the relationship they shared with their mother was meaningful to them.

[160] The children deserve permanence and the stability of a caregiver who can meet their day to day needs while providing love, encouragement and security. While R.B. and M.B. wish to have access to their mother, the court must weigh their views and wishes with the probable adverse impact an order for access will have on their security and stability. There is a wealth of evidence in this case to support a conclusion that the risks associated with fulfilling the children's desire to have contact with their mother are so severe and so likely to seriously jeopardize their future wellbeing that the court is not in a position to give effect to their views and wishes.

Conclusion - Access

[161] The uncontested evidence before the court overwhelmingly supports the unfortunate conclusion that access by the mother to R.B. and M.B. is not in the children's best interests.

[162] The mother is unwell. Her mental health has not improved since the commencement of this case. In fact, it has worsened. There is far too much uncertainty around access if it were to occur. Will mother attend regularly? What will be the state of her mental health? Will she engage the children in conversations that are harmful to them? Will she speak to the children in a manner that would undermine their placement? These questions must be answered in a manner that when considered in totality the court concludes that access is in the children's best interests. Unfortunately, that is not the case here.

[163] The mother has been unable to have healthy and appropriate access to the children while there was still a prospect of the children being returned to her care. In light of the mother's willingness to ignore court orders and engage in behaviour that directly impacted her children's well-being, stability and security, the relationship she shares with the children is not beneficial to them. The mother has behaved in a very destructive manner while under the microscope of JFCS and the court, the court must presume that once the litigation is over and the children are placed in the extended care of JFCS, the mother's behavior will escalate. The court cannot risk the children's stability and emotional wellbeing that access by the mother to the children will likely cause.

[164] The evidence overwhelmingly suggests that access will not be positive for the children as the mother's mental health has deteriorated and she has been unable to demonstrate that she can conduct herself in a manner that does not create a risk of harm to the children. There is no evidence that this is likely to change in the foreseeable future. As the mother has not adequately addressed her mental health issues, the court has no information it can rely upon to conclude that the mother will more likely than not attend access in a sufficiently healthy state. It is not positive or healthy for these children to see their mother in a pre-psychotic or psychotic state.

[165] The mother's past behaviour is a predictor of future behaviour. The court finds that, as she did in the past, she will refuse to comply with court orders and will attempt to undermine the girls' placement if she is granted access which will compromise their sense of stability and security. The mother is therefore likely to impair future opportunities for R.B. and M.B. to be adopted.

Part VIII: Is there a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's fact-finding powers with respect to JFCS's claim for a restraining order?

[166] For all of the reasons set out above, the court is able to grant JFCS's request for a restraining order against the mother based on the uncontested evidence without the need for a trial.

[167] The mother will be subject to a restraining order that restricts her contact with the children and the JFCS as she has displayed extremely concerning behaviour that justifies the order being requested. Some examples of uncontested evidence upon which the court relies are:

(a) The mother obtained the address of the children's previous foster home without the knowledge or consent of JFCS;

(b) The mother posted confidential information about this case, including the identity of the children, on line and specifically, on social media platforms;

(c) The mother has violated several orders of the court and she has done so despite repeated warnings of the consequences of her actions;

(d) The mother attended at the foster parents home despite a restraining order prohibiting such contact;

(e) The mother attended at the children's school when the children were in JFCS's care, access was suspended, and, she was not permitted to see the children at school; and

(f) The mother sent emergency services to the foster home claiming the children were in danger.

Part IX: Order

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

1. R.B. and M.B. are not First Nations, Inuk or Metis children.

2. R.B. and M.B. shall be placed in the extended care of Jewish Family and Child Services of Greater Toronto.

3. There shall be no order for access by the mother to R.B. and M.B.

4. R.B. and M.B. shall have access to S.B. at the discretion of Jewish Family and Child Services of Greater Toronto. R.B. and M.B. shall be access holders.

5. S.B. shall have access to R.B. and M.B. at the discretion of the Jewish Family and Child Services of Greater Toronto. S.B. shall be the access holder.

6. The mother is restrained from having any contact, direct or indirect, with the children R.B. and M.B. except with the prior written approval of Jewish Family and Child Services of Greater Toronto; from attending at any location the children are known to be, except with the prior written approval of Jewish Family and Child Services of Greater Toronto; and, from attending at 4600 Bathurst Street, Toronto, Ontario M2R 3V3, without the prior written approval of Jewish Family and Child Services of Greater Toronto.

Released: September 21, 2018

Signed: Justice Melanie Sager