WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) IDEM: ORDER RE ADULT — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Date: 2018-10-03
Court File No.: Kitchener 193/10
Between:
Children's Aid Society of the Regional Municipality of Waterloo
Applicant,
— AND —
N.K.
Respondent
Before: Justice B.C. Oldham
Heard on: March 28, 2018 and April 13, 2018
Reasons for Judgment released on: October 3, 2018
Counsel
Ms. D. Brown — counsel for the applicant society
Ms. LeDrew Metcalfe — counsel for the respondent N.K.
Ms. J. Breithaupt — counsel for the Office of the Children's Lawyer, legal representative for the child
Judgment
OLDHAM J.:
Introduction
[1] The Children's Aid Society of the Regional Municipality of Waterloo (the "Society") brought a motion for summary judgment (the "SJM") in respect of the child J.H. (the "Child") who was born on […], 2009. The SJM is in respect of a Status Review Application.
[2] This matter has been before the courts since the apprehension which occurred on November 24th, 2014. At the time of the apprehension, J.H.'s sibling D.H. was also part of these proceedings. N.K. (the "Mother") is the biological mother of both J.H. and D.H. (collectively the "Children").
[3] J.H.(Sr) is the biological father of J.H. and D.H. Service of the Amended Status Review Application on him was dispensed with by order of Justice Borghesan dated May 17, 2016. J.H.(Sr) has not been involved in the Children's life since 2012.
[4] W.J. was the step father for J.H. and D.H. He was noted in default on July 5, 2016 in respect of the original Status Review Application and on February 1, 2018 in respect of the Amended Status Review Application.
[5] The Children were found to be in need of protection pursuant to subsections 37(2)(a)(i) and (ii); 37(2)(b)(i) and (ii); and 37(2)(g) of the Child and Family Services Act (the "CFSA") by final order of Justice Rogers dated November 17, 2015. The Order under review is the Order of Justice Rogers dated November 17, 2015 placing the Children in the Society's care for a period of six months pursuant to terms of supervision.
[6] When the Status Review Application was commenced on April 17, 2016, the Society was seeking an order placing the Children with the Mother subject to terms of supervision. In August of 2016, the application was amended to seek an order for crown ward, no access to either parent, or to the step-father, W.J.
[7] The parties entered into a Statement of Agreed Facts on February 15, 2018 which dealt with D.H. only. D.H. was made a crown ward by final order of Justice Neill dated February 15th, 2018. The Order included a right of access by the mother to D.H. and by D.H. in respect of his siblings, A.J. and J.H.
[8] This SJM was heard on March 28 and April 13, 2018. Submissions were made under the CFSA. The Child, Youth and Family Service Act, 2017 (the "CYFSA") did not come into force until April 30, 2018.
Position of the Parties
[9] At the commencement of these proceedings, the Society confirmed that they were no longer seeking an order for crown ward, without access, but rather an order for crown ward, with access between the Mother and J.H. and between J.H. and his siblings, D.H. and A.J. A.J. was born on […], 2018. Her biological father is W.J. She is subject to separate proceedings. A.J. was apprehended at birth and is in foster care. At the time of the hearing, the Society was investigating a plan to place her in the care of W.J.'s mother and step-father.
[10] With respect to the SJM, the Society also conceded that there is an issue requiring a trial in respect of the Mother's ability to parent J.H. Specifically, while it is the Society's position that she has not demonstrated the ability to provide consistency and routine sufficient support the return of J.H. to her care, the Society conceded that there is sufficient evidence that this issue would require a trial. In this regard, the Society notes the fact that the permanent removal of D.H. from the home as a crown ward and the improvements in access visits between J.H. and the Mother is evidence which might require a trial in order to determine her ability to parent J.H.
[11] It is the Society's position, however, that as a result of the Mother's decision to re-engage in the relationship with W.J. that the return of J.H. to Mother's home is not possible, even if she were able to satisfy the court in a trial that she has sufficiently improved her ability to parent. As a result, it is the Society's position that this matter should be dealt with in a summary manner and that there is no issue requiring a trial.
[12] The Respondent Mother's position is that she has a stable home, has been exercising unsupervised access with J.H. for over two years and has ensured that J.H. has had no contact with W.J. such that he can be returned to her home. While counsel acknowledges that the Mother is in a complicated situation having just given birth to A.J., W.J's daughter, she is prepared to prioritize her desire to care for J.H. and will ensure that he is not exposed to W.J. in any way.
[13] The Office of the Children's Lawyer ("OCL") did not provide a specific position in respect of the disposition of the SJM, but rather focused on J.H.'s views and preferences to the extent that they could be assessed by Ms Dyszuk. Ms Dyszuk is the clinician appointed by the OCL to assist counsel, Ms Breithaupt. Ms Breithaupt sought an order for independent access by J.H. to his two siblings A.J. and D.H. and to his mother, N.K. Both the Society and N.K. agreed that if this SJM is granted, the OCL's access order was on behalf of J.H. was appropriate.
Transitional Matters
[14] The CYFSA came into force on April 30, 2018. As indicated above, submissions in respect of this matter were completed on April 13, 2018. In accordance with the regulations, Transitional Matters, O Reg 157/18 (the "Regulations"), subsection 11(1) "A proceeding commenced under Part III of the old Act but not concluded before the day this section comes into force is continued as a proceeding commenced under Part V of the Act." This subsection does not provide a definition of 'concluded'. Therefore, it is not clear whether a matter is considered to be concluded if evidence and submissions are complete, but the decision is on reserve at the time that the CYFSA comes into force.
[15] Subsections 11(2) and (3) of the Regulations provide some context for interpretation. These subsections address the issue of parties in proceedings relating to a First Nations, Inuk or Métis child. The subsections specifically distinguish the treatment of a case where a proceeding is not concluded (subsection 11(2)) as contrasted with cases where the hearing is completed, but the court reserved its decision (subsection 11(3)). The clarification under subsection 11(3) supports the interpretation that a decision under reserve does not fall within the definition of 'not concluded' under subsection 11(1) of the Regulations.
[16] Given the language of the Regulations and the fact that all parties concluded their evidence and submissions under the CFSA, I conclude that the determination of the issues before me are to be decided under the CFSA. If this I am wrong in this conclusion, I note that the test to be applied to the sections of the legislation dealing with status review applications and final orders for crown ward are not materially different under the CFSA and the CYFSA. There are significant changes the access provisions, but given the agreement of the parties that there is to be an order for access, I need not access and apply the new provisions of the CYFSA which deal with access to a child in extended care of the society (subsection 105(5)-(7)).
[17] While the best interest test under subsection 37(3) of the CFSA, now subsection 74(3) of the CYFSA is different, an analysis under the CYFSA would not change my determination of what is in the child's best interests of J.H. in this case.
[18] Section 13 of the Regulations make it clear that where an order is made under Part III of the old Act, it is deemed to be an order made under Part V of the CYFSA upon the coming into force of the CYFSA. Section 14 of the Regulations similarly clarifies that a person who met the description under the old Act for society ward or crown ward, are to be described as a person subject to an interim society care order or an extended society care order adopting the language of the CYFSA. Given this direction, in terms of the orders made, I will reference the language under the CYFSA.
Evidence before the Court
[19] The Society has been involved in the life of this family since 2010. While there have been some periods during which the Society's files have been closed, specifically in November 2007 for about six months and again from October 4, 2013 until November 24, 2014, there is extensive Society involvement. The Society initially became involved in 2007 because of domestic violence, drug use and mental health issues in respect of N.K. and J.H. (Sr).
[20] In 2010, the Society was contacted by Waterloo Regional Police Services ("WRPS") after W.J. was charged with assault after stabbing a man in N.K.'s apartment. N.K. terminated her relationship with W.J. in 2010. W.J. engaged in significant programing and made sufficient progress to allow the Society to close his file in respect of his two children from another relationship.
[21] N.K. and W.J. reconciled in 2011 following which the Society received numerous referrals reporting physical abuse by W.J. towards J.H and D.H.
[22] On May 31, 2013, WRPS reported that they had charged R.C. with sexual assault and assault causing bodily harm towards J.H. R.C. was a friend and baby sitter for N.K. Although the boys had reported that R.C. had harmed them prior to the sexual assault, N.K. assured the Society that R.C. was safe and not abusing the Children. R.C. was ultimately convicted of aggravated sexual assault on J.H.
[23] On October 4, 2013, N.K. was granted sole custody of J.H. and D.H. pursuant to s. 57.1 of the CFSA. J.H. (Sr), was not to have any access to the Children until completing programming and counselling. As indicated above, J.H. has not been involved in the Children's lives since 2012.
[24] In November 2014, the Children made credible disclosures about physical harm by W.J. They were apprehended and placed in care on November 24, 2014 and have been in care since.
[25] In counselling sessions in 2014, N.K. was reported to be 'struggling to understand the why of having her children taken when her relationship with W.J. for five years has been the best for her and he is a good father to them.' Significantly, N.K. maintains that she was not aware of any physical harm by R.C. until the disclosure of the sexual assault and she never witnessed any physical abuse by W.J. with the exception of an incident in September of 2015.
[26] The incident which occurred in September 2015 occurred during a weekend access visit. It is addressed in the Statement of Agreed Facts signed by N.K. on November 17, 2015 (the "SAF"). In the SAF, N.K. acknowledges the following discussion between, the worker April MacDonald and herself:
"April MacDonald met with N.K. on Sept 30, 2015. Her friend [C] attended with her for support. N.K. advised she has moved out of W.J.'s home and had nowhere to go and had been staying at her mom's or [C's]. When asked about what occurred on the weekend, N.K. said W.J. was trying to tell everyone to clean up, that J.H. whines and cries when he is asked to clean up and W.J. doesn't like this. N.K said that W.J. picks on J.H. when she isn't looking, that she has to protect him. April MacDonald asked what kind of a relationship it is if she needs to constantly protect her son from her partner. N.K. said J.H. was to put things away, went upstairs, was crying. N.K. talked about how W.J. can push people out of the way when he is frustrated. N.K. says she accused him of pushing J.H., he denied and said he picked him up and carried him up the stairs. Back in the kitchen, she was upset with him and said "don't push my kid" and he commented "do you want me to push him?" and pushed J.H. to the ground. N.K. said she pushed W.J. after he pushed J.H. N.K said that W.J. pushed her and yelled at her. N.K. said all 4 children were present and witnessed the altercation including W.K.'s two children. She said that W.J. tried to have E. and J. clean up their room, made them cry and that W.J. called J.H. a "stupid little fuck". April MacDonald expressed concern that the children were again exposed to domestic conflict and J.H. was pushed again by W.J. N.K. didn't believe what W.J. had done was domestic violence as she didn't feel it was as serious as what J.H. (Sr.) had done to her. Both [C] and April MacDonald discussed with her that it was domestic violence and what W.J. did was wrong."
[27] The SAF confirms that both J.H. and D.H. reported that W.J. had pushed J.H. to the ground (at least once) and pushed N.K. into the wall (J.H.'s word) / dishwasher (D.H.'s word). J.H. reported that he was choked and that W.J. was scaring his mom. N.K. amended the SAF to indicate that she was not aware that W.J. had choked J.H. and that she was not pushed into the washing machine. J.H. reported that he hides in the closet and sometimes under the bed. He hides because he is scared. N.K. amended the SAF to clarify that J.H. never disclosed hiding in the closet or under the bed to her.
[28] It is notable that the Society received numerous referrals about W.J.'s involvement with the children from 2011 until 2014 at which time the Children were apprehended. He has a criminal history and a background of domestic violence. His criminal record includes a conviction of Theft under $5,000 and Mischief under $5,000 from September 19, 2005 and a conviction for aggravated assault on January 30, 2012. He was subject to an open protection file in respect of his two biological children and there are allegations of abuse against his former partner.
[29] It is also noted that J.H. has exhibited some extreme behaviours in 2015 when the Society was looking to reunite him with his Mother. While his removal from the foster home and placement in a care home was as a result of his brother's conduct, he also was acting out in schools and displaying aggressive behaviour from time to time.
[30] The Mother notes that she consented to the crown ward order with access for D.H. as a result of her realization that he could not safely return to her home. He has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), Complex Developmental Trauma, Post Traumatic Stress Disorder ("PTSD") with symptoms of sensory processing disorder; attention regulation issues; Tourette's Disorder, Generalized Anxiety Disorder, and attachment issues. He was not diagnosed with OCD, but it was noted that 'perfectionism is somewhat problematic'. While he did not meet the full criteria for PTSD at the time of the assessment, Dr. Backway suspected that he did earlier on. Dr. Backway also notes a family history of panic, anxiety, as well as substance use. N.K acknowledges that she experienced panic attacks and anxiety in 2014 – 2015. She claims that she stopped having these attacks and that her anxiety is under control. While she is under the care of and prescribed Fluoxetine by her family doctor, there was no evidence from her family doctor to confirm that her anxiety and panic attacks are under control.
[31] D.H. was removed from his foster home and placed in a care home. When his behaviour in the care home was unmanageable he was moved to CAIP and then to Vanier Residential Treatment Program. He continues to reside at Vanier.
[32] With respect to J.H. there has been no diagnosis although he has been engaged in counselling in respect of the sexual abuse trauma. With respect to J.H.'s relationship with his Mother, it is acknowledged by all that he is affectionate and that she has been consistent throughout with respect to access. She sees J.H. approximately three to four times per week. One week she sees him for three visits and the second week for four visits. There are currently no overnight visits in the home. N.K. exercises one 3 hour unsupervised visit per week and two 2 hour supervised visits per week. On alternative weeks, N.K. has one 3 hour access visit in her home with J.H. with an in home worker to assist and provide her with parenting strategies.
[33] J.H. frequently hugs and displays affection towards his mother. He notes that he trusts her and loves her. He enjoys his time with her and there is no evidence to suggest that that is not a meaningful relationship for him. In fact, when asked what his biggest worries were, he said that they were that he would not have access to his Mother or his brother.
[34] His third worry is that he would be harmed by a stranger.
[35] Ms Dyszuk reported that J.H. is consistent and clear in his position that he does not want anything to do with W.J. He is fearful of him and does not like him. This position has not changed from the time J.H. and D.H. were apprehended in November 2014. J.H. reported to the OCL that 'every time my Mom leaves, W.J. tortures me". This report is supported to a certain extent by the Mother's own acknowledgement in the SAF that "W.J. picks on J.H. when she is not looking" and that she needs to protect him.
[36] J.H. states that he has not seen W.J. in any of his visits with N.K., but is fully aware of the fact that W.J. is A.J.'s father and that his mother 'goes out with W.J.' a lot. He has expressed a desire to be placed in a foster home with children at his own age. The OCL candidly noted that this does not necessarily mean that J.H. is preferring placement in a foster home over a return to his mother only that at this stage, he was focused on what kinds of things would be important to him in a foster home. This can, however, be contrasted with Ms Dyszuk's first interview in 2017 when he was clear that he wanted and expected to return to his mother's home with his brother. In fact, Ms Dyzuck reported that 'he wants his lawyer to tell the Judge that he wants to go back to living with his Mom.' He did not provide this direction in January 2018.
[37] N.K. has not disputed the fact that both J.H. and D.H. were subject to physical abuse by their biological father, J.H. (Sr). The fact that J.H. was sexually abused by R.C. is also acknowledged. N.K. acknowledges one incident of abuse by W.J. in September 2015, but does not seem to understand how her decision to have a baby with W.J. may impact J.H. and his ability to return safely to her care. She maintains that if W.J. is not living with her and J.H. is not exposed to him, there is no protection concern.
[38] As part of the Society's materials, they filed the answers and plan of care which have been prepared by N.K. and by W.J. in respect of their child, A.J. While N.K. indicates her plan is to have the child returned to her, W.J.'s materials note that N.K. and W.J. are engaged in couples counselling 'in order that our relationship and o[u]r communication is strengthened'. He notes that they have been in counselling since the fall of 2017. The Mother also notes in her affidavit that she has been engaged in counselling, but does not identify it as couples counselling. She does not attach any records or letters from her counsellor to confirm the counselling that she is engaged in or her progress. Her affidavit indicates that the counselling is in respect of personal issues, including trauma, healthy relationships, children with disabilities and communication. It is noted that her counsellor Fatima[h] is the same couples counsellor identified by W.J. in his materials. The Society is not aware of any individual counselling that the Mother is engaged in at this time.
[39] The Mother's affidavit also indicates that she continues to have a good relationship with W.J. She noted in 2016 that he would assist her by providing her access to a vehicle and clearly they have maintained a relationship to the extent that they are now parents of a child.
[40] N.K. has provided affidavits from her mother, father and a friend who are also prepared to support her and J.H. if he is returned to her care.
Law and Analysis
Summary Judgment Framework
[41] This summary judgement motion is being made pursuant to Rule 16 of the Family Law Rules which provides:
RULE 16: SUMMARY JUDGMENT
16. (1) When Available – 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.
(2) Available In Any Case Except Divorce – 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.
(4) Evidence Required – 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.
(4.1) Evidence Of Responding Party – 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.
(5) Evidence Not From Personal Knowledge – 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.
(6) No Genuine Issue For Trial – If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
(6.1) Powers - 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:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
(6.2) Oral Evidence (Mini-Trial) – 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.
(9) Order Giving Directions – If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1(7.2):
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);
(b) give directions; and
(c) impose conditions (for example, require a party to pay money into court as security or limit a party's pretrial disclosure).
[42] Justice Sherr in A.E.A. v. F.A.H., 2015 ONCJ 339, refers to the Supreme Court of Canada decision in the case of Hryniak v. Mauldin, 2014 SCC 7, to describe the process to be followed in applying the expanded summary judgment rule in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure. Specifically he states:
[7] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.
[8] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests 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 (paragraph 66).
[9] If there are concerns about credibility or clarification of the evidence then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).
[10] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).
[11] The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.
[12] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).
[43] In child protection matters, I am to consider not only the nature of the evidence, the intrusiveness of the order, the mandatory time frames, but also the statutory criteria involved and in particular, how material are the facts in dispute to the issue before the court (see: CAS Algoma v. E.W.).
[44] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. (See: C.R. v Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357.)
[45] In Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court), the Divisional Court had the following to say about the steps to follow in a summary judgment case:
a. 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 (para. 45).
b. The key question 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 based on the facts pleaded, 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 (para.46).
c. 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 (para. 43).
d. The burden of proof is on the party who moves for summary judgment. See: Sanzone v. Schechter, 2016 ONCA 566 at para. 30.
e. 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 (para. 48).
f. 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."
Status Review Applications
[46] In a status review hearing the original order being reviewed is presumed to be correct. This is not a re-hearing or re-trial of the order previously made. See: Children's Aid Society of Hamilton v. C.G., 2013 ONSC 4972.
[47] The examination to be undertaken involves two-stages, as confirmed by the Ontario Court of Appeal in Children's Aid Society of Oxford v. W.T.C., 2013 ONCA 491:
a. 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;
b. If it has been determined that the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the child.
[48] In determining what order is required to meet the child's best interests, the court must consider the degree to which the risk concerns that prompted the original order still exist. This must be examined from the child's perspective. (See: Catholic Children's Aid Society of Toronto v. M. (C.), 2 S.C.R. 165 ("M.(C.).") and Children's Aid Society of Hamilton v. R.M. and N.M., 2015 ONSC 5101.)
[49] With respect to the first part of the test in Status Review proceedings, the Supreme Court did not state that the child must be found to be "in need of protection" as that phrase is defined in subsection 37(2) of the CFSA (now subsection 74(2) of the CYFSA). What is required is that the child welfare agency involved must justify ongoing state intervention in the life of the family by proving that a court order continues to be necessary to protect the child in the future. The Ontario Court of Appeal reiterated this point in Children's Aid Society of Oxford County v W.T.C., 2013 ONCA 491.
[50] The Supreme Court emphasized in M.(C.) that a preliminary determination of whether ongoing state intervention is required to protect the child is important to ensure that the overall objectives of the CFSA are protected and promoted. In support of its decision on this issue, the court relied heavily on the fact that these statutory objectives include the preservation of the autonomy and integrity of the family unit, and the provision of child protection services in the least restrictive and disruptive manner. The court also held that the inquiry into the child's continued need for protection involves more than simply analyzing the events and concerns that triggered the child welfare intervention in the first instance and determining if those concerns persist. Rather, the issue must be assessed from the perspective of both the child and the parents, taking into account the reality that the needs and circumstances of both evolve continually. A finding that the child continues to require protection can be based on ongoing concerns respecting the parents' ability to meet the child's needs, or for reasons unrelated to the parties' parenting, such as concern about the effects of removing the child from a long-term caregiver who is able to present a permanent plan.
[51] Once it has been decided that the child is still in need of protection, the court must consider the least restrictive alternative consistent with the child's best interests. (See: CAS Peel v. W., 14 RFL (4th) 196.)
Is there an Ongoing Need for Protection
[52] Under the post-Hyrniak analysis, at the first stage, I am required to consider if there is a genuine issue requiring a trial based only on the evidence before me, without using the new fact-finding powers. In this case, I do not require the new fact-finding powers.
[53] There is no question that J.H. has been subjected to physical and sexual abuse while in the care of his Mother. N.K. has a history of anxiety, depression and panic attacks. Historically, she has not been able to recognize and protect the Children from risks presented by persons with whom she associates. There is no evidence before me to confirm that she has addressed these issues. She continues to associate with W.J. who is someone who has abused J.H. and is someone of whom he is fearful. There is no evidence before me that she has gained insight into the risk he poses, both physically and emotionally, although she maintains that she will ensure that there is no contact.
[54] From J.H.'s perspective, the ongoing relationship with W.J. presents a continued risk to him. Ongoing Society involvement is required to ensure that J.H. is protected.
What disposition is in J.H.'s best interest
[55] J.H. has been in care for almost four years now. He is nine years of age and has far exceeded the statutory limit of twenty four months in care for a child over the age of six to be in society care as set out section 70 of the CFSA (now subsection 122 of the CYFSA). Accordingly, the only options available to the court are to return J.H. to N.K.'s care, or to make an order for extended care.
[56] This is a very difficult situation in that notwithstanding the length of time that J.H. has been in care, there is a possibility that he could have been returned to the Mother's care if W.J. were not present in N.K.'s life. At a minimum, that would be an issue requiring a trial. However, I am satisfied that there is no issue requiring a trial in that J.H. cannot return to his Mother's care given the ongoing relationship with W.J. I am further satisfied that the SJM process allows me to fairly and justly adjudicate the issues before me in a timely, affordable, and proportionate manner. In coming to this conclusion, I am aware that the relief sought by the Society is one of the most restrictive orders available.
[57] I agree with the Society that the court should be concerned about the choices that the Mother has made in respect of W.J. By re-engaging in a relationship with him, she has put W.J. before her Children; not once, but twice. Specifically, in early 2015 the Society was prepared to return both D.H. and J.H. to the Mother's care. At that time W.J. was residing in the home and advised that he was not prepared to have the Children returned home. He was concerned about their behaviours and as a result of his position and the Mother's decision to stay in that relationship, the re-integration of her Children did not commence at that time.
[58] The Society continued to work with the family and agreed that re-integration with W.J. in the home could commence in September of 2015. However, shortly before re-integration could commence, W.J. got into the physical altercation with J.H. as described above.
[59] N.K. re-engaged in an intimate relationship with W.J. notwithstanding her acknowledgement of the abuse and her commitment to ensure that W.J. not be exposed to her Children. The Mother continued this relationship notwithstanding the strong message from the Children, through the OCL, that they are afraid of W.J. and want nothing to do with him.
[60] While there is no evidence that J.H. has been exposed to W.J. it is extremely difficult to understand how she will be able to parent A.J. without exposing J.H. to W.J. at any time. The Society obtained the records from KW Counselling which indicate that the family attended for some Attachment Counselling in 2016. Specifically, there were 11 counselling sessions between March and November 2016 with J.H., D.H. and N.K. J.H. was involved in 4 of the 11 sessions. In his last session on July 27, 2016, Jane Robson MSc notes the following as the ongoing evaluation statement: "It appears as though J.H. is recalling some of the past traumas that he experienced before being apprehended and put into care. Continue to work through these traumas and brainstorm coping mechanisms." There is no evidence that N.K. and J.H. continued to work through these issues.
[61] N.K. engaged in some Therapeutic Counselling in 2012, but missed a number of sessions. In 2015 she attended a number of parenting workshops including: Understanding Me (January 21, 2015 – March 18, 2015); "Controlling the Volcano Within (February 3 - March 10, 2015), Parenting Your 6-12 Year Old (February 11 - March 11, 2015) and "Trusting Loving Connections (May 8, 2015). While she did not attend all of the sessions, she attended more than 50% and received a certificate of completion for each. N.K. attended two of the 10 sessions for Building Better Boundaries (September 22, 2016 to November 24, 2016). There are no counselling records after November 24, 2016 and no evidence to confirm that she understands the impact of the abuse on her Children or has gained insight into how she may ensure J.H. is not re-traumatized.
[62] Her decision to re-engage with W.J. shows a lack of insight in respect of the protection concerns and her remedy – to ensure W.J. does not have any contact with J.H. – demonstrates a naïve approach. While she has ensured that J.H. has not been exposed to W.J. since the apprehension in November 2014, she only has three hours of unsupervised access per week and this has only been since February 2017. Her total weekly access is only seven hours in one week and 10 in the next.
[63] N.K.'s counsel raises concerns about the hearsay evidence relied on by the Society in its affidavits; particularly as it relates to comments by J.H. She submits that the court should only rely on statements made by J.H. to the OCL. As noted by J. Sherr in CAS of Toronto v. B.B., [2012] O.J. 4855 at para 25, the court should not rely on evidence in a summary judgment motion that it would be inadmissible at trial.
[64] I need only rely on the information obtained by the OCL. I do not agree with counsel that Ms Dyszuk's report of J.H.'s wishes and preference raises concerns as to the accuracy and consistency. While Ms Dyszuk's affidavits references two meetings with J.H.; one on January 14, 2017 and then a year later on January 9, 2018, her involvement includes a full review of all of the information gathered by Ms Breithaupt prior to her appointment. She worked with and had continuity with this family since her appointment on November 30, 2016.
[65] J.H. is reported by Ms Dyszuk as being clear and consistent in his position that he does not want any contact with W.J. In fact, that position has not changed over the past four years. His reasons are deeply rooted in his belief that W.J. is mean to him and 'tortures' him. A trial is not required to assess whether a return home with N.K. maintaining a relationship with W.J., even if only peripherally to parent A.J. is in J.H.'s best interest. J.H. has suffered significant trauma as a result of the physical and sexual abuse he has suffered. I am not satisfied that N.K. can adequately protect him, even with terms of a supervision order requiring that she not allow any contact between W.J. and J.H.
[66] Not only am I concerned about her ability to protect him emotionally, given the challenges of maintaining physical boundaries, there is a risk of physical harm to J.H. if he were returned to his mother's care in these circumstances. It is naïve to think that N.K. and W.J. can co-parent A.J. without any physical contact between J.H. and W.J. occurring at any time. There is no evidence before me to suggest that N.K. has the ability to protect J.H. from W.J. if there is contact.
[67] I would agree with the submissions of counsel for the Mother that it is difficult to determine J.H.'s wishes and preferences in terms of whether he wishes to live with his Mother or in care, because he does seem somewhat conflicted. While he indicates that he wants to see his Mother every day, he identifies that he would like to move to a foster home, or at least seems to recognize that he is unable to return home. What is very clear from his views and preferences, however, is that he does not want to have any contact with W.J.
[68] As noted by Justice Horkins, "a person's desire to resume care with a promise of future positive prospects is similarly not enough to raise a serious issue requiring a trial. The evidence must be based on the here and now and be in existence at the time of the motion." (See: C.J. v. K.E., 2013 ONSC 63 paragraph 55.)
[69] N.K. has not provided any evidence to support her bald promise to ensure that J.H. is not exposed to W.J. Her past conduct, being her failure to protect her Children from R.C. and W.J. notwithstanding the warnings raised to her through the Society, does not provide any comfort. Her sustained defence that she had not observed, nor had the Children reported any abuse, supports the conclusion that she has not gained any insight. She continues to minimize the abuse notwithstanding the clear trauma acknowledged by the OCL and counsellors. She maintains that she did not know that R.C. presented a risk, and that W.J. only abused J.H. and D.H. on the one occasion in September 2015. In the SAF she claims that she did not recognize his conduct as domestic violence because it was not as bad as what J.H. (Sr) had done to her. In her most recent affidavit sworn on March 16, 2018, she claims that she never heard J.H.'s claim that he was chained to a coffee table and does not believe that it ever happened. This statement is too dismissive as it is clear that J.H. was abused at the hands of W.J. Her approach provides no comfort that she will respect or recognize risks posed to J.H.
[70] When reviewing the best interest factors set out in subsection 37(3) of the CFSA, now subsection 74(3) of the CYFSA, it is clear that an order for extended care, with access to his mother and siblings, is in J.H.'s best interests. I am concerned that he has not been placed in a foster home, nor has an adoptive family been identified for him. Instead, he has continued to reside in the care home to avoid multiple moves. He will need to move whether he is placed with his Mother or a permanent foster home. That said, he has been doing well in care. His physical, mental and emotional needs are being met. He has established a good access relationship with his mother and brother. J.H. needs permanency and an order ensuring a safe home with continued access respects the important relationships in his life while providing permanency.
Order
[71] For the reasons set out above, the following order will issue:
The Society's motion for Summary Judgment is granted.
The child J.H. born on […], 2009 will be placed in extended society care until the order is terminated under section 116 or expires under section 123 of the CYFSA.
Pursuant to subsection 104(2) of the CYFSA, the child, J.H. shall have an independent right of access to each of:
a. His brother, D.H. born on […], 2007 (male);
b. His sister A.J. born on […], 2018 (female); and
c. His mother, N.K.
N.K. shall also have a right of access to J.H. at the discretion of the Children's Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children's Aid Society of the Regional Municipality of Waterloo.
Released: October 3, 2018
Signed: Justice B.C. Oldham