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.

87.— (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.

87.— (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: 2018-10-18

Court File No.: Kitchener 395/17

Between:

The Children's Aid Society of the Regional Municipality of Waterloo

Applicant,

— AND —

J.J. and J.T.

Respondents

Before: Justice K.S. Neill

Heard on: October 4, 2018

Reasons for Judgment released on: October 18, 2018

Counsel

• J. Boich — counsel for the applicant society
• S. Naidoo, duty counsel — counsel for the respondent Mother J.J.
• D. Lang — counsel for the respondent father J.T.
• V. Ruoso — counsel for the Office of the Children's Lawyer, legal representative for the child

Judgment

NEILL J.:

Introduction

[1] The parties to this proceeding are J.J. ("the mother") and J.T. ("the father"). They are the parents of one child, G.T., who is 12 years of age.

[2] The parents have not been in a relationship since G.T. was very young. The father had no contact with him since 2010 until December, 2017, after the Society's Protection Application was commenced.

[3] Due to the mother not being able to manage G.T.'s behaviour, he was placed in the care of the Society on December 21, 2016 pursuant to a Temporary Care Agreement ("TCA") for a period of 6 months. As the mother could not care for G.T. when the TCA expired, the Society commenced a Protection Application in June, 2017, seeking findings and an order for society wardship.

[4] The father had a few supervised access visits with G.T. in December, 2017 and for several days over the Christmas holidays at his home in Chatham. However, the father has not had contact with G.T. since January, 2018.

[5] In the fall of 2017, the mother relocated to the Netherlands, but has returned to have visits with G.T. at least 3 times, and has had contact with him by phone and on social media. The mother's visits with G.T. are unsupervised and in the community. There are no reported concerns with these visits. G.T. appears to enjoy the visits and has always wanted to have more access visits with his mother. Unfortunately, the mother cannot put forth a plan for G.T., although his wish would be to reside with his mother.

[6] In March, 2018, the Society amended its Protection Application to seek an order for extended society care without access to either parent. Neither parent filed any response to this Amended Protection Application.

[7] On August 28, 2018, the Society commenced a motion for summary judgment seeking an order for findings and extended society care without access to the parents. Both parents were served with the motion on September 4, 2018. The mother did not file any responding material, but she did travel from the Netherlands to attend on the date that the motion was argued on October 4, 2018. The father did not file any materials in accordance with the time lines as ordered on June 14, 2018 when the motion for summary judgment was scheduled, but he too attended on the date that the motion for summary judgment was argued and without objection from any party, filed a short affidavit on that date.

[8] On October 4, 2018, the parties and the Office of the Children's Lawyer consented to a final order that G.T. is in need of protection pursuant to s. 74(2)(h) and (o) of the Child, Youth and Family Services Act ("CYFSA"), that G.T. be placed in extended society care, that G.T. shall have a right of access to his mother and that G.T. shall be the holder of access, which access shall be at the discretion of the Society and subject to the wishes of the child.

[9] The only outstanding issue on the motion for summary judgment is whether or not there is a genuine issue requiring a trial with respect to whether there should be an access order between G.T. and his father.

Position of the Parties

[10] The Society's position is that there is ample evidence before the court to determine the issue of the father's access and that there is no genuine issue requiring a trial. The Society is not opposed to an order that is silent on the issue of access, but as the Society's plan is to pursue an adoptive placement for G.T., they want as little barriers as possible to this plan, and access to the father may present a barrier. Further, it is the Society's position that there no evidence for an order that even G.T. to be the holder of access.

[11] Ms. Ruoso on behalf of the child, G.T. supports the Society's position. Ms. Ruoso is also not opposed to having the issue of access silent and also advocated to reduce any barriers for G.T. to be adopted.

[12] The mother supports the position of the Society and the Office of the Children's Lawyer.

[13] The father argues that there is a genuine issue requiring a trial with respect to his access with G.T. He wants G.T. to have a right of access to the father as he does with his mother.

The Law on Summary Judgment

[14] Motions for summary judgment are governed by Rule 16 of the Family Law Rules, with the ability of the court pursuant to subrules 16(6.1) and (6.2) to weigh evidence, evaluate the credibility of the deponent, and draw any reasonable inference from the evidence, and to order oral evidence on the motion to exercise these new powers.

[15] In 2014, the law with respect to motions for summary judgment significantly changed with the Supreme Court of Canada's decision in Hryniak v. Mauldin ("Hryniak"). In that case, the Supreme Court of Canada called for a "culture shift" away from civil trials toward determining whether there is a "serious issue requiring a trial". Hryniak confirmed that 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 allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. The principles in Hryniak apply to child protection cases.

[16] The Supreme Court of Canada in Hryniak outlined the questions to be asked in deciding whether the case should be dealt with summarily, being:

1. The judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact findings powers in Rule 16(6.1) and (6.2). There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.

2. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers, provided that it is not against the interest of justice to do so. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[17] On a motion for summary judgment, the first step is still to review the entire evidentiary record to determine whether there are specific facts to support a triable issue on any of the determinations required to be made by the court.

[18] The court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. It is the Society's onus to show that there is no genuine issue requiring a trial. The test now is not whether the Society has a strong likelihood of success at trial, or that there is "no realistic possibility of an outcome other than that as sought by the applicant", but whether a summary process will provide a fair outcome in the interests of justice.

[19] Initially, the moving party must identify a fact base that satisfies the judge that it is in the interests of justice that the case be decided summarily. In assessing the interests of justice, the court will ask three questions:

(1) do the facts plead allow the judge to make findings of fact;

(2) do the facts plead allow the judge to apply the law to the facts; and

(3) do the facts plead allow the judge to determine that summary judgment is indeed a more proportionate, more expeditious and less expensive means of achieving a just result.

[20] The respondent also has an obligation, faced with a prima facie case for summary judgment to provide a full evidentiary record, and must provide specific facts showing that there is a genuine issue for trial. A responding party cannot rest on a denial and must put his or her best foot forward. The court must assume that this is the most that the parent has to offer at this stage.

[21] In the context of child protection cases, there are additional considerations in summary judgment motions, including the nature of the evidence on the motion, if any mandatory time frame is involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in the issues to the case. This analysis must be undertaken under the umbrella of the paramount purpose of the CFSA (now the CYFSA) which is to promote the best interests, protection and well-being of the children.

[22] The court must ensure that the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a genuine issue requiring a trial as to where the best interests lie, those best interests themselves call for a resolution without delay associated with a trial and resulting prolongation of the state of uncertainty about the child's future.

[23] Finally, Rule 16(6) is mandatory. If the court concludes that there is no genuine issue requiring a trial, the court shall make a final order accordingly.

Access

[24] In this case the only issue is whether there is a genuine issue requiring a trial with respect to access between G.T. and the father.

[25] Once an order for extended society care is made, there is a presumption against access unless the tests in s. 105(5) and (6) of the Act are satisfied and the court finds access would be in the child's best interest, taking into consideration the factors under s.74(3). Further, the court shall consider, as part of its determination of whether access is in a child's best interests, two additional factors, being:

(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 not impair the child's future opportunities for adoption.

[26] The onus at trial is on the person seeking access to satisfy the test for access to a child placed in extended society care. However, on the motion for summary judgment, the onus is on the Society to establish that there is no genuine issue requiring a trial in relation to access. If the Society proves there is no genuine issue requiring a trial on the issue of access, the usual burden of proof on the father to satisfy the test for access will apply.

[27] The test for access to a child in extended society care has changed under the new CYFSA to be focused on a determination of what is in the child's best interest. The case law since the CYFSA was enacted indicates that following regarding the new test under s. 105(5) and (6):

1. While the revised legislation gives the court more flexibility and discretion in determining the issue of access to a child in extended society care, it is important to be mindful of the following:

   (a) There is still a presumption against access to a child in extended society care.

   (b) It is still mandatory for the court to consider whether the relationship is beneficial and meaningful to the child in some way.

   (c) The court still has discretion to consider whether access will impair future adoption opportunities.

   (d) While the overall legal test is less rigidly defined, nonetheless the onus remains entirely on the person seeking access to a child in extended society care to establish on a balance of probabilities that access would be in the best interests of that particular child.

2. There is no longer a "formal" requirement that both considerations of beneficial and meaningful, and impairing adoption be demonstrated to satisfy the court that an access order should be made. 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) of the CFSA, but arguably may have placed some of that onus with respect to access (or no access) on the society.

3. The person seeking access must prove that access is beneficial 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. The evidence must show that the relationship is beneficial and meaningful to the child now and not in the future.

4. 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. It is a child focused inquiry. It matters only a little, if at all, what the relationship may be for the access seeker.

5. The case law under s. 59(2.1) of the CFSA with respect to the interpretation of "beneficial" and "meaningful" remains relevant under s. 105(6) of the CYFSA.

[28] With respect to the beneficial and meaningful test, the former case law under s. 59(2.1) of the CFSA outlined the following principles:

(a) To satisfy the test that the relationship between a parent and the child is beneficial and meaningful to the child, evidence of good access visits is not enough. A beneficial relationship is one that is "advantageous" and a meaningful relationship is one that is "significant", and this must be demonstrated from the child's perspective. This is a significant onus to meet.

(b) The terms "beneficial" and "meaningful" are different. Whether a relationship is "beneficial" requires the court to decide whether, overall, the relationship between the child and the parent is a benefit or good for the child. This is an objective analysis. Whether a relationship is "meaningful" requires the court to assess the subjective importance of access for the child. This is separate from the question of whether the access would be "beneficial", a question that requires an objective assessment of the advantages of access for the child. Of course there is some overlap between "beneficial" and "meaningful" as one of the benefits of access is continuation of a close family bond between the parent and the child, something that, by definition, would be meaningful to the child would also be a benefit. However, the two analyses should not be combined.

(c) When considering access to a child in extended society care and although the court is aware that an order for access may lead to an application for openness, at this stage the court, at least when considering the test of a beneficial and meaningful relationship, should not consider the possibility of any openness application.

[29] The new section 105(6) indicates that only if the court considers it relevant, shall the court consider whether the ordered access will impair the child's future opportunities for adoption. 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.

[30] Justice Kukurin indicated in Children's Aid Society of the Districts of Sudbury and Manitoulin v. C.H. that although the tests of "beneficial and meaningful" and "impairing adoption" are now only factors that the court must consider when determining access, it would be virtually impossible to order access if these two criteria are not met. However, in Family and Children's Services of Guelph & Wellington County v. T.S., Justice O'Dea provided a different interpretation. Justice O'Dea indicated that reading s.105(5) and (6) together, he found that the beneficialness and meaningfulness criteria should be given no greater weight than the balance of the subsection 74(3) criteria. Regardless, it is clear that the court must consider all of the criteria under s. 74(3), and s.105(6)(a) when making a determination of access to a child in extended care, and the criteria under s. 105(6)(b) if the court considers it relevant.

Analysis

[31] In the fall, 2017, the mother relocated to the Netherlands. However, G.T. maintains contact with her and they are still "close". The mother has returned at least 3 times to Ontario to have visits with G.T., which are unsupervised and in the community. G.T. has always indicated that he would like to reside with his mother, but understands that he cannot. He has a positive relationship with his mother and wants to have contact with her. The Society acknowledged that the mother is "very clearly an important person in G.T.'s life and ongoing contact would be beneficial for G.T.".

[32] It is clear that G.T.'s relationship with his mother is beneficial and meaningful to him, and it is in G.T.'s best interests that there be an order for access. These are the reasons that an order was made on October 4, 2018 granting G.T. the right of access to his mother.

[33] It is a far different situation with the father.

[34] On the day that the motion for summary judgment was argued, the father filed a very short 2 ½ page affidavit. What is not disputed are the following facts:

• He was only in a relationship with the mother until G.T. was 3 months old and they separated in July, 2006. After separation, there was a shared custody arrangement.

• In December, 2010, the father was charged with assaulting G.T. The father denies the assault and states that these charges were subsequently withdrawn.

• In the past, the father has been in and out of prison for drug trafficking offences, and was last in jail from 2013 to 2015.

• The father had no contact with G.T. from December, 2010 until after he was contacted by the Society in November, 2017.

• Between December, 2017 and January, 2018, the father had 3 supervised access visits with G.T. and a 4 day overnight visit with G.T. over the Christmas holidays. Although G.T. said that his visit with his father was "good", G.T. did express some concerns regarding this visit and did not want to commit to any future visits.

• The father has not seen or contacted G.T. since January, 2018. There is no evidence that he has made any efforts to do so despite being encouraged by the Society to connect with G.T.

• The father acknowledges that he is a regular user of marijuana to control his mental health issues of post traumatic stress disorder, obsessive compulsive disorder and generalized anxiety disorder. He smoked marijuana while caring for G.T. over Christmas, 2017, but outside his apartment on the balcony. G.T. indicated that his father's house smelled like marijuana.

[35] The father has had very limited contact with G.T. in the past 7 years and no contact for 9 months. As G.T.'s lawyer, Ms. Ruoso argued, G.T. is ambivalent about his father, and expressed concerns regarding their recent visit over Christmas. G.T. clearly has expressed that he wants no contact with his father. Although the father indicates that he "thinks he will change his mind about not seeing me sometime in the future", G.T. has not expressed this. G.T.'s views and wishes are given priority and must be taken into consideration when assessing what is in his best interests pursuant to s. 74(3). I cannot find on the basis of the undisputed evidence that the relationship between G.T. and his father is beneficial and meaningful to G.T.

[36] I do believe it is relevant in this case for the court to consider whether an access will impair G.T.'s future opportunities for adoption. The Society's plan is to search for an adoptive home for G.T. G.T. is 12 years old, with some behavioural issues and it could be challenging to find an adoptive home for him. No kinship placement has come forward with a permanent plan. Having an access order to the father, even if G.T. is an access holder, could present a barrier to any adoptive placement. G.T. looks forward to his visits with his mother, which will not occur often as she resides in a different country and as such her contact with G.T. does not form a barrier for G.T.'s placement for adoption.

[37] I find that the Society has provided sufficient facts to satisfy the court that access between G.T. and his father is not in G.T.'s best interest. There is no evidence that G.T.'s relationship with his father is beneficial and meaningful to him and evidence that an access order could impair adoption. I also find that in the interests of justice this case should be decided summarily and there is no genuine issue requiring a trial.

[38] Section 105(9) indicates that:

If a society believes that contact or communication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) is in the best interests of the child and no openness order under Part VIII or access order is in effect with respect to the person and the child, the society may permit contact or communication between the person and the child.

[39] G.T. has regular access visits on alternate weekends with his maternal aunt and uncle, and cousins, and also ongoing contact with his grandmother. The Society is committed to continuing these connections for G.T. even without an access order. The Society also indicates that should G.T. request access in the future with his father and he is not in an adoptive placement, there is nothing to prohibit some informal contact even with a no access order in place.

[40] I had initially asked the parties if they would agree to an order that is silent with respect to access. However, the issue of the father's access to G.T. has been placed before the court for adjudication and an order that is silent with respect to access could be seen as a dereliction of a judicial duty to adjudicate on this issue. There may be cases where an order that is silent with respect to access is appropriate but I do not find this is such a case.

[41] Therefore, there will be the following order:

1. There shall be no access between the child, G.T., d.o.b. March 26, 2006 and his father.

2. The father is granted leave to file his affidavit of October 4, 2018.

DATED: October 18, 2018

Justice K.S. Neill