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: October 18, 2018
Court File No.: Sault Ste. Marie File No. 87/17
Between:
CHILDREN'S AID SOCIETY OF ALGOMA, Applicant,
— AND —
A.B., R.S., B.D., Respondents.
Before: Justice John Kukurin
Heard on: October 15, 2018
Reasons for Judgment released on: October 18, 2018
Counsel
Jennifer Mealey — counsel for the applicant society
Trevor Simpson — for the respondent mother, A.B.
Eric McCooeye — for the respondent father, R.S.
No one — for the respondent added party, B.D.
KUKURIN J.:
Introduction
[1] This decision is on a motion for summary judgment in this child protection application for:
- a finding that the child T., age 1, is a child in need of protection;
- a disposition for the child T.; and
- a decision on access to the respondent parents to T.
[2] The main issues in this case can be distilled down to these:
(a) is the concern of the court in making a suitable parental access order a sufficient reason to prefer, by way of disposition, a child protection care and custody order rather than a deemed custody order?
Background
[3] Some background is necessary. The child T. was apprehended at the hospital when born. This was in mid May 2017. It is now mid October 2018. Seventeen months have elapsed and a finding has not yet been made that the child is in need of protection.
[4] The mother had a lawyer. The mother filed an Answer and Plan of Care. Her lawyer was successful in removing himself as her counsel in January 2018 after representing her for about seven months. Since then, she has apparently retained her present counsel, but he has filed nothing for her and, in particular, nothing on the motion brought by the society for summary judgment. She has not provided her new counsel with instructions and is not present at the hearing of this motion. Her lawyer is present, but on a watching brief only.
[5] The father also filed an Answer and Plan of Care. In it, he asks for a return of the child to his care. Alternatively, he asks that the child be placed in his care with a supervision order. As a further alternative, he seeks access. He has filed some evidence although it is sparse and does not begin to respond to the many allegations about him made by the society. This is discussed further below. His position on this motion for summary judgment is set out in his most recent affidavit (at Tab 12, Vol 3). He concedes that T. cannot be placed with him now. However, he wants access to her. His current access at the society's Access Centre once weekly for three hours, fully supervised by the society, is not sufficient. He wants a mix of supervised and unsupervised access. He wants a specification in his access order of a minimum frequency and duration of his visits. He also wants visits so that T. can meet and foster relationships with the paternal family. He mentions weekend visits which suggests overnights. This would also require a specification of location. His complaint is that the society remains adamant in its 3 hours, once per week, fully supervised access, despite his requests for an expansion of access. He fears that if a deemed custody order is made, his access will not change or progress. He has been unable to get any commitment from the prospective (and present) custodian of T. other than that his "access will be at the Supervised Access Facility". The society's "Access Centre" is not the same as the Supervised Access Facility (the SAF). The latter caters to access visitors who are not involved in child protection proceedings.
[6] The society's position is that it has no protection concerns so long as the court makes a deemed custody order in favour of the added party, B.D. I say this tongue in cheek because the society makes it quite clear that it anticipates that, if this deemed custody order is made, it expects the court to make, at the same time, a deemed paternal access order. The paternal access order that it expects will be made is one that will be subject to the discretion of Ms. D. and will be fully supervised at the SAF. It does not expect that the court's access order will be specific in terms of frequency or duration of visits. It is content to leave that to the SAF and Ms. D.'s discretion. The SAF supervises all the visits at its facility, or, at least, monitors them.
[7] B.D.'s position is simple. She is the paternal grandmother of L.D., age 7 years, who is in her custody and has been for some years now. L. is T.'s half brother. He is the son of the mother A.B. and C.D., who is B.'s son. T. was placed by the court in the temporary care and custody of B.D. in June 2017 and has been living in her home for the 16 months to date, apparently happily so. Also in the home is A.D., B's husband. B. wishes a deemed custody order for T. in favour of herself and her husband A. She is agreeable to a deemed order for parental access but wants that access to be exercised at the SAF – which means that it will be supervised or monitored by SAF personnel and will be subject to SAF set limitations on frequency and duration. I am unsure if Ms. D. understands what access in her discretion actually means. I also am not sure if she understands what a deemed custody and a deemed access order actually are. She is not represented by counsel.
The Issue – Finding in Need of Protection
[8] The society seeks a finding on two specified grounds, namely:
- S.37(2)(b)(i) CFSA – which is the risk of physical harm should the child be returned to whoever had charge prior to society intervention. This is now s.74(2)(b)(i) CYFSA which has replaced and renumbered sections of the CFSA; and
- S.37(2)(g) CFSA – which is a risk of emotional harm grounds and has been replaced by s.74(2)(h) CYFSA.
Risk of Physical Harm
[9] I have no difficulty making a finding under s.74(2)(b)(i) CYFSA. The parties all agree that the mother and father both had charge of the child when the society intervened (i.e. apprehended the child at birth). I don't disagree with that position. The definitions of a child in need of protection does not require that all persons having charge be shown to have created the risk of harm contemplated by this ground. It is sufficient if one of them satisfies the circumstances for the court to make a finding. For the mother, I orally indicated in what ways she gave rise to the risk of physical harm and I reiterate them in these Reasons:
She is a five time loser with men with whom she has had a child. Five different fathers of five different children, not one father of whom is still, or was in any lasting relationship with her, and not one child who is in her care;
She has been a chronic drug user since at least 2007, and her drugs of choice have been fairly heavy duty ones: oxycontin, cocaine, methamphetamines, fentanyl, morphine, benzodiazepines and marijuana. She has been for residential treatment for her drug addiction more than one time, and has consistently relapsed.
She is still addicted to drugs. She attends a methadone clinic where as late as this year, 2018, she has tested positive for cocaine and other illicit drugs. The father says in his most recent affidavit, that "she has become deeply entrenched in the drug lifestyle".
She has been involved with domestic violence, fairly frequently and regularly, usually as a victim of the violence, including with the father of T.
She has no home, no personal possessions which she has apparently lost in her peregrinations, no residential stability, no job, no prospects except dismal ones. She has at various times been a resident of Women in Crisis, Breton House (women's shelters), Nimke (native shelter), has been evicted from her residence. The most current information is that she is couch surfing.
She has been involved in criminal conduct and has been charged by police.
She has put forward no plan for her care of the child that is remotely viable.
She has no consistent follow through with community service providers or agencies offering assistance to mothers like herself, assistance for things like personal counselling, addictions, domestic violence and parenting.
[10] In short, this mother is a clear failure as a mother to the children she has brought into this world. She would have been better off taking steps to prevent pregnancy long ago as she clearly cannot parent. It would have saved her from lengthy gestations in less than ideal circumstances, and the heartaches of removal of her babies from her by children's aid societies and the court.
[11] Having made this finding, I need not make any additional finding that the child is in need of protection with respect to the father on the grounds under s.74(2)(b)(i) CYFSA. It makes little difference in this case in any event. The father does not seek a return of the child to himself on this summary judgment motion, and certainly does not seek a return to the mother. Accordingly, he must necessarily concede that the child T. is a child in need of protection. The only way for the court not to return the child to him or the mother is for such a finding to be made. The father seems to oppose a finding based on his being a source of the risk of physical harm, and seems to do so because he feels that the society's evidence is unsatisfactory to justify such a conclusion. It is, according to him, mostly hearsay, or worse, double hearsay, unsubstantiated, opinion and not "trial worthy evidence". I see this evidentiary issue between the father and the society as an unnecessary time waster in this case that is already long overdue for a resolution, but if the society is adamant on a finding based on risk of physical harm due to the father's faults, I will gladly adjourn that portion of the case and direct a trial on that specific issue. Only one finding is needed to proceed further, and I am satisfied with the finding that I have made.
Risk of Emotional Harm
[12] The society wishes the court to make a finding that T. is a child in need of protection under s.74(2)(h) CYFSA (formerly s.37(2)(g) CFSA) as well. This is, in my view, one of the more difficult grounds for a society to establish. It is even more difficult when the child is a newborn.
[13] Firstly, the society must show that there is a risk that the child will suffer at least one of the emotional harms specified in the subsection. The harms are anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development.
[14] Secondly, not any degree of these possible future harms is sufficient. The society must establish that the degree of the harm is one that is serious, as opposed to minimal, mild or moderate.
[15] Thirdly, it has to establish that the risk of whatever emotional harm it is alleging, is causally connected to, or, in the words of the subsection, is "resulting from" the parents, who are admittedly the persons who had charge, and specifically by the actions, failure to act, or pattern of neglect of these parents.
[16] The society does not specify the risk of which of the listed emotional harms it is claiming exists for T. It says all of them. Why all of them? It doesn't say why. Nor does it adduce any evidence of why all of them. Of course, only one is sufficient if satisfactorily demonstrated. But it does not do that.
[17] The society does not show that the risk is of at least one of the listed harms that is of the serious variety. For that matter, it offers no evidence that helps the court to distinguish between whether the particular harm or harms are serious or are not serious or where to draw the line between these quantitative degrees. Nor does it produce any expert evidence to assist the court. I am not about to take judicial notice that any one or more of the type of harms listed, and in the degree that falls within the "serious" category is, on the balance of probabilities, a risk to T.
[18] Finally, the society must prove that the risk of at least one of these harms, in the required "serious" degree, would result from acts or omissions or a pattern of neglect by the parents. This causal connection is a pre-requisite for this ground. I am aware of other jurists who have inferred this causality from the evidence of the circumstances or the history of the parents, and while I don't disagree that this may be an appropriate judicial inference in some cases, it is not here. I would want someone competent, other than counsel for the society, or even society child protection workers in their affidavits filed on this summary judgment motion, to convince me that the risk not only exists, but exists as to one of the specified harms, in the required degree, and would result from one or the other or both of the child's parents. The society does not have the evidence on this summary judgment motion to persuade the court that a finding should be made on s.74(2)(h) grounds.
Disposition
[19] The best approach to the matter of disposition is sometimes to consider what is available, and to discard options to see what is left. This is made semantically more difficult since the advent of the CYFSA which uses different terminology than the CFSA, the "older" and now superseded statute. The society's application and amended application were under the CFSA, and it has not updated its application to use terminology or section numbers that are used in the new CYFSA.
[20] For T., the dispositional sections of the CYFSA following a finding that she is a child in need of protection are:
- s.101(1) which involves the making of a protection order,
- s.101(8) which involves no protection order but the return of the child to whoever had charge prior to the society's intervention with no order,
- s.102(1) which involves the making of a deemed custody order.
There are no other dispositions available after a finding is made so far as I know.
[21] Of the protection orders available under s.101(1), interim society care is possible, but no one is seeking that. No one is seeking extended society care. No one seeks anything but the option in paragraph 1, namely placement with someone with a society supervision order in place for a maximum of 12 months. The society's actual claim in its amended application is for such an order with a duration of six months, or alternatively, for 12 months. It is fair to say that the other three options under s.101(1) CYFSA can reasonably be rejected. The supervision order permits placement with a parent or another person. The mother and father, the only "parents" of T. in this case, are not suitable candidates, the mother for reasons stated above in connection with reasons for a finding, and the father, on his own admission, and also because of his history as set out in the evidence. This leaves only "another person". That person is B.D. (and her husband A.D.) who the society feels are quite suitable as custodians and caregivers, having demonstrated a good track record since T. was only a couple of months old. The mother, in her Answer, also advocated placement with the D.'s, albeit as an alternative to herself if she was unsuccessful in having T. returned to her care. The father, to be fair, acknowledges that the D.'s have done a creditable job with T.'s care and although he comes short of saying he advocates placement with them, he says he "appreciates all that B. [D.] has done for him and his family". There are no other suitable placements. The D.'s have the advantage of providing continuity of care, no disruption for T., and a sibling in their home. This is clearly an option that is viable and reasonable.
[22] Section 101(8) CYFSA is not really applicable here. It applies where a finding is made but any protection concerns have abated so that the child can be returned to its pre-intervention caregiver and custodian. This is clearly not the case here as there are still protection concerns emanating from both parents.
[23] Section 102(1) CYFSA offers a further alternative, namely, a custody order. This removes the child from the child protection arena, and removes the society from further involvement. The thinking behind this option seems to be that, if the child is in the custody of a suitable person or persons, the protection concerns that led to the finding that the child was in need of protection no longer apply, and there is no further need for the society to be involved from a protection standpoint.
[24] This custody order is deemed to be an order made under the Children's Law Reform Act (the CLRA), a domestic provincial statute, and can subsequently be terminated, varied or modified under that statute without society involvement. This "deeming" applies equally to an access order that is made at the same time as the custody order.
[25] This deemed custody order is the order that B.D. wants for herself and her husband with respect to T. She says in her Answer that she "has no issues with the parents having supervised visits with her." Unspoken and unspecified is where and when the parents are to have such visits and who will supervise them. At the summary judgment hearing, she elaborated on her plan for parental access should a deemed custody order be made. Parental access was to take place at the Supervised Access Facility, subject to its policies and practices and be supervised by that facility's personnel.
[26] This, too, is a viable option as a disposition. It offers the same continuity of care and minimizes any disruption for T. It preserves contact with parental families. It is suitable from a current and historical placement point of view as meeting T.'s needs. It also has the advantage of having a sibling residing in the same home as T., a sibling with whom she reportedly enjoys a happy relationship.
[27] The only criterion in choosing between a protection order and a deemed custody order is the finding of the court that "it would be in the child's best interests" to make the deemed custody order instead of a protection order. This has always struck me as a puzzling basis for such a choice. By statute, both kind of orders are necessarily made "in the best interests of the child." If that is so, how can best interests distinguish between these choices? It is like a man buying a suit and being presented with two, each of which is claimed to be the best suit. If being the best is the criterion, and both are best, how can a choice logically be made?
[28] In summary, the only reasonable dispositions that are actually available both involve continued placement with the D.'s. The first is with a supervision (protection) order in place and continued society involvement. The second is a deemed custody order with society involvement terminated.
[29] The temptation is to make a deemed custody order as it provides more permanency, a desirable objective of the CYFSA. As for parental access, there is an equal temptation to make no deemed access order at all leaving the matter of parental access to be resolved either by a domestic family court in an application made to that court, or by a consent of the parents and the D.'s. However, it is mandatory that the court make some access order for the parents in this case.
[30] On disposition, I choose to make a protection order. Specifically, an order that places T. in the care and custody of B.D. subject to a supervision order by the society for a period of nine months. This order will have conditions, in fact, the same conditions as are in the current temporary care and custody order made by Justice M. Dunn and dated July 25, 2017 lettered (a) to (m) inclusive. Why do I make this order rather than a deemed custody order? For a number of reasons which I set out below.
Reasons for Protection Order Rather Than Deemed Custody Order
[31] Firstly, I do not find that a deemed custody order instead of a supervision order is in the best interests of T. There is no evidence in this summary judgment motion to persuade me that, from a comparative point of view, deemed custody is a better dispositional option than a protection order. From a "permanency" perspective, deemed custody is no better than a protection order. A deemed custody order only relieves the society from its involvement. It does not necessarily provide permanency as it is subject to variation under the CLRA, and such variation can be with respect to custody, or access, or any incidents of either. A protection order (apart from an extended society care order which no one is seeking here) also provides for no permanency as it is subject to a mandatory status review in the future, at which time, care and custody are reviewable and so is access variation if a claim is made at that time (or at any time prior). From the child's vantage point, I cannot imagine that she perceives her place within the D. family as anything but permanent either way.
[32] Secondly, the society's claim for a disposition in this summary judgment motion is for a supervision order of six (or twelve) months duration, not for a deemed custody order for the D.'s. This corresponds with the claim for the disposition it is seeking in its amended child protection application. It is Ms. D. who makes a claim for a deemed custody order in her Answer filed by her as an added party. The best that the society can say is that it supports the making of the deemed custody order sought by Ms. D. if the court should choose this disposition over a supervision order. Accordingly, the onus is on Ms. D. to persuade the court that a deemed custody order is the preferred choice. The fact that Ms. D. is self represented does not relieve her of this onus. In meeting this onus, she has failed. In fact, while she and her husband may be excellent caregivers and custodians, I do not have any confidence that they have the financial ability, the resources, the understanding of the law, or the stamina to fend off a variation claim for either custody or access should one be brought under the CLRA following a deemed custody and deemed access order. The resources of the society are immensely superior to those of the D.'s. The battle surrounding T. has so far been waged by the society and the parents. The D.'s are recent additions to the fray and are only peripherally interested in the facts underlying why the parents cannot parent T. or have unrestricted access to her.
[33] Thirdly, the making of a deemed custody order is founded on the premise that there are no longer any protection concerns that require the further involvement of the society. I am not persuaded that this is so. The society may not see any protection concerns in the care that T. receives from the D.'s. However, the D.'s do not live in a vacuum. They have the bioparents to contend with, currently in terms of access rights, and perhaps in the future by way of variation of such access rights or, indeed, by way of variation of custody. The society has gone to a great deal of effort to persuade the court that the child is in need of protection from each of the parents now, and the restrictions, prohibitions and conditions it is seeking in any parental access order the court makes, whether deemed access or access in the context of a protection order, only underscores the continued need for protection. I agree with the society's assessment of the parents as historical and current sources of protection concerns. If not with placement, then certainly with parental access in the context of placement.
[34] Fourthly, the pre-requisite for making a protection order is the finding that the child is in need of protection. That the child is still in need of protection is a judicial finding that applies at the time of the hearing. It may seem odd that a child like T. would be in need of protection now (when the summary judgment hearing is being held) when she is safe and secure in her current temporary care and custody placement, and has been for the past 16 months, in fact, a placement that was sought by the society and ordered by the court. What is missing from the wording of the definitions of a "child in need of protection" in s.74(2) CYFSA is a part that is understood by all to be an essential part of the definition, namely, '....should the child be returned to its pre-intervention caregiver and custodian – or to the parent(s) or the person(s) having charge'. Without this being a part of the analysis, no child removed by a society from whoever had charge would ever qualify as being a child in need of protection.
[35] But removal of a child does not sever the parental ties. The parents still want to see the child even if they can't parent the child in the normal way. That contact is almost always through an order of access. However, not all parents can adequately parent their child, even in an access visit. Or maybe they can for a while, and then they can't for another while. Hence the need for access conditions.
[36] The matter of parental access is statutorily tied to some dispositional orders that provide for custody. Hence, access is a necessary consideration in what disposition the court chooses. If the court makes a protection order other than an order of extended society care, it is mandatory that it make an order for access to the person or persons who had charge of the child prior to the removal of the child from their care. The CYFSA does not say what kind of access order it is to make; it just requires the court to make one. Similarly, if the court makes an order for deemed custody to anyone other than the person who had charge prior to society intervention, it must make an order for access in favour of the person who had charge.
[37] The conditions that apply to such access vary with the circumstances in each case. Here, the father and the society and Ms. D. do not agree on what the order for paternal access should look like. Currently, the society is very involved with that access. In fact, it hosts that access at its own society Access Centre, it supervises it by its own society access supervisor employees, and it has a child protection worker whose job includes (if I am not mistaken) at least one monthly visit to the child's residence. The question of parental access is one that is governed by the best interests of the child, a criterion that is spelled out in s.74(3) CYFSA. That is a different criterion that is spelled out in s. 24 CLRA which would apply to any access determinations after a deemed custody order was made. From my point of view, it is desirable that the society remain involved with the child and its caregiver and custodian, even if only from the viewpoint of access. Access involves not only the custodian of the child and the person exercising access. It also involves the child and the access supervisors and the persons who run the location where the access takes place. It might be argued that access also involves the funding needed for such locations and such supervisors and hence, involves politicians and civil servants. And perhaps I am going too far afield. What I am attempting to say, in perhaps too many words, is that I see the access of the parents is better, from a child protection point of view, with the society remaining involved rather than dropping out of the picture. This is not a situation where the D.'s have anywhere close to the resources or the familiarity with the law that the society has, to deal with access issues involving the parents.
[38] Fifthly, the making of a deemed custody order necessarily takes this case out of the child protection sphere and into the domestic family law sphere. There is more than a possibility that the father or the mother would seek to vary either the deemed custody or deemed access order under the CLRA. Variations under the CLRA are contingent on material changes in circumstances. The change is from the date the deemed order was made to the date that the order is varied. How would either party in the CLRA variation case establish the factual circumstances that establish the start date for the material change? They would basically have to file the entire child protection continuing record (estimated 9-10 inches thick) in the CLRA variation proceeding. Not so if the order made is a protection order. Any variation for custody or access would be decided in the child protection case where the pleadings and the evidence are already a part of the record. From the parents' point of view, variation of custody, or more realistically, access is readily available as a claim they can pursue under the CYFSA at any time.
[39] For the above reasons, I choose to make a protection order, specifically an order that T. remain in the care and custody of B.D. subject to a supervision order in favour of the applicant society. This supervision order will have the same terms and conditions as are in the temporary care and custody order currently in place. There was no contestation of those conditions by any respondent. They seem to be reasonable in the circumstances.
[40] As for the duration of such an order, the society seeks one ranging between 6 and 12 months. I am inclined to make its duration nine months, not only to split the difference, but also because I believe six months is too little time to gauge whether any further protection order will be necessary or whether a different access order will be made in the meantime, or will be necessary thereafter.
Access
[41] As I intimated, access is a decision that the court must make. This is so because the CYFSA says that the court must make an order for parental access where the child has been removed from its parents and is not being returned (and is not placed in extended society care). It is also so because the society and both parents have made it an issue that they seek the court to adjudicate upon by including it as a claim in each of their respective pleadings. It would, as I have intimated in other decisions, be a dereliction of judicial duty to not adjudicate on this issue.
[42] However, there is clearly a wide gap in what various parties seek in terms of an access order, particularly, a paternal access order. The summary judgment motion is a procedure that attempts to avoid a trial where it is not necessary to have one. That is, where the evidence at trial is not going to materially or appreciably change the evidence that is made available on the motion. There is, in fact, an entire Rule (Rule 16) that is devoted to motions for summary judgment. Among other things, it requires the party bringing the motion to set out the specific facts on which it relies showing that there is no genuine issue requiring a trial. It also imposes a corresponding onus on the respondents in the motion to set out specific facts showing that there is a genuine issue for trial, and to do so not with mere denials or allegations.
[43] In the present motion for summary judgment, the society has comprehensive materials from various sources in its affidavits filed in support of its motion. The father has far fewer, and the mother none. However, the father maintains that the society's evidence is not "trial worthy" in terms of quality and that the court should not admit or rely on it. He says this without identifying the particular pieces of society evidence about which he complains. On the other hand, his evidence is extremely sparse and non specific in its response to that of the society.
[44] In the end, what evidence the father and the society have, and whatever the shortfalls may be with respect to any of their evidence, it is not a matter on which this summary judgment court has either the time or the means to make any rulings. Even with the expanded powers granted to this court by Rule 16(6.1), I am unable to conclude that there is no genuine issue for trial with respect to the claims of access. The present evidence is contradictory. There is evidence in the form of a dated Parenting Capacity Assessment of the father from another proceeding from which parts have ostensibly been deleted. There are clearly reports that are hearsay and double hearsay in nature and are being tendered for the truth of their contents. There are opinions of child protection personnel who have not been qualified as experts to give opinions. Moreover, not all of this evidence can be admitted as evidence of past parenting. Access is an issue that should be tried. The parties will be able to attack the evidence of the other as not being "trial worthy" as this will be evidence in the course of a trial of the access issue.
[45] For the time being, the summary judgment motion is granted as indicated above with respect to a finding under s.74(2) CYFSA and with respect to a disposition under s.101(1) CYFSA. These are aspects of this case that the society has demonstrated do not require a trial. They are adequately and justly dealt with by this motion.
[46] The matter of access is adjourned to the next court date, which I understand is Nov 7, 2018 at 9:30 am, at which time the parties should be addressing the further steps to be taken.
[47] As mentioned above, if the society wishes to pursue a finding that the child T. is in need of protection on the ground in s.74(2)(b)(i) with respect to the father as being the source of risk of physical harm, this can also be an issue for the trial I direct. Otherwise, the society has the alternative of withdrawing this claim, or the father has the alternative for conceding this claim.
[48] As for ongoing access, my inclination is to simply order that the existing orders with respect to maternal and paternal access shall continue.
[49] I thank counsel for their able submissions on this motion.
Released: October 18, 2018
Signed: "Justice John Kukurin"
Footnotes
[1] CYFSA S.74(2) A child is in need of protection where:
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's:
(i) failure to adequately care for, provide for, supervise or protect the child, or
[2] CYFSA S.74(2) A child is in need of protection where:
(f) the child has suffered emotional harm, demonstrated by serious:
(i) anxiety,
(ii) depression,
(iii) withdrawal,
(iv) self-destructive or aggressive behaviour, or
(v) delayed development,
and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;
(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;
[3] CYFSA S.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
- 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
- That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care
- That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
Consecutive orders of interim society care and supervision
- That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.
[4] S.101(8) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.
[5] CYFSA S.102(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
[6] CYFSA S.102(2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be made under section 28 of the Children's Law Reform Act and the court:
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any directions that it may give under section 34 of that Act.
[7] There is always the question of what a summary judgment motion properly can ask by way of relief. In this case, it is asking for a protection order. This is precisely what the application asks for. However, if what the summary judgment motion is asking for, or perhaps more fundamentally, is actually seeking is a deemed custody order, one has to question the propriety of the summary judgment motion in absence of an amendment to the application. The father has made a complaint that the tardy arrival in this case of Ms D. as an added party, with her claim for a deemed custody order has prejudiced him as he has not had thirty days yet to respond to this claim. In this, he is incorrect as he responds by a Reply (in Form 10A) – see Rule 10(6) – and his Reply is due within 10 days of service of the Answer. He has filed no Reply. But his position is not unreasonable. He was in this case for over 1½ years and only recently has he become aware that deemed custody was actually being sought.
[8] Access: where child removed from person in charge
CYFSA S.105(1) Where an order is made under paragraph 1 or 2 of subsection 101(1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child's best interests.
[9] The authority to make any order for access in a CYFSA proceeding, and the criteria for making such order are found in s.104(1). The only exception is in the case of access where a child is ordered into extended society care, where the criterion for best interests of the child also include two other considerations that are not applicable when any other disposition order is made.
[10] Rule 16(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5(1).