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: 2019-11-14
Court File No.: Sudbury C-384-09 ext 04
Between:
Kina Gbezhgomi Child and Family Services Applicant
— AND —
D.B.-R. and J.M. Respondents
Before: Justice Heather-Ann Mendes
Heard on: September 25, 2019
Reasons for Judgment released on: November 14, 2019
Counsel
Robin Saari — counsel for the applicant society
Darren Berlinguette — counsel for the respondent mother, D.B.-R.
George Fournier — counsel for the respondent father, J.M.
Decision
MENDES J.:
Proceeding Before the Court and Position of the Parties
[1] The respondent mother, D.B.-R. (hereinafter referred to as "the mother") and the respondent father, J.M. (hereinafter referred to as "the father") are the parents of the child B. (hereinafter referred to as "the child") born […], 2018.
[2] The child was removed from the care of the mother and the father by The Children's Aid Society of the Districts of Sudbury and Manitoulin (hereinafter referred to as "the Society") on January 31, 2018 at Health Sciences North in Sudbury, Ontario.
[3] The child B. was placed in the care of J.S. and B.M., the paternal grandparents (hereinafter referred to as "the paternal grandparents") upon his release from hospital after birth.
[4] The matter was transferred from the Society to Kina Gbezhgomi Child and Family Services (hereinafter referred to as "KINA") by way of the Order of Justice Bishop dated April 19, 2018.
[5] KINA filed a Summary Judgment Motion on August 22, 2019 at tab 25 of the continuing record seeking the following:
(a) An identification order for the child pursuant to section 90(2) of the Child Youth and Family Services Act (hereinafter referred to as "CYFSA");
(b) A finding that the child is need of protection pursuant to sections 74(2)(b)(i) and 74(2)(b)(ii) of the CYFSA;
(c) An order that J.S. and B.M., the paternal grandparents, be granted custody of the child pursuant to section 102 of the CYFSA;
(d) An order that the mother and father have supervised access to the child as agreed upon between the parents and the paternal grandparents, failing which at the supervised access centre;
(e) An order that an application or motion to vary the provisions of a final order shall be served upon KINA or Society in the jurisdiction in which the child resides, which agency may, at its discretion, become a party to or participate in the proceeding.
[6] The paternal grandparents have also brought a motion found at tab 23 of the continuing record seeking to be added as parties to the proceeding.
[7] The summary judgment motion was argued on September 25, 2019 and the paternal grandparents' motion to be added as a party was spoken to and is to be addressed once the decision of the summary judgment motion is released.
[8] The father's position is that he supports the summary judgment motion which seeks that the paternal grandparents be granted custody of the child and that he and the mother have supervised access to the child as agreed upon between them and the paternal grandparents, failing which that access be at the Supervised Access Centre.
[9] The mother takes no position with respect to the section 90(2) identification order sought and has provided no instructions to her counsel regarding the issue of the finding. The mother opposes the order sought by KINA with respect to the paternal grandparents being granted custody of the child, however, if in fact custody is granted by this court to the paternal grandparents, she opposes the order for access sought by KINA.
Background on the Mother's Other Children
[10] The mother has three children from previous relationships namely, E. born […], 2009; El. born […], 2014; and S. born […], 2016.
[11] The father of the child E. is S.M. E. resides in the care and custody of the maternal grandmother A.B. (hereinafter referred to as "the maternal grandmother"). The maternal grandmother resides in Parry Sound, Ontario with her partner, D.H.
[12] The father of the child El. is unconfirmed. The mother had named J.B. and then D.B. (hereinafter referred to as "Mr. B.") as potential fathers, however Mr. B. was excluded as the biological father of El. through paternity testing.
[13] El. was removed from the mother's care on or about May 27, 2015 due to concerns regarding the mother's developmental delays, condition of the home and concerns regarding domestic violence. El. currently resides in the care and custody of the maternal grandmother.
[14] The father of the child S. was initially identified by the mother as S.F. (hereinafter referred to as "Mr. F."). Mr. F. is listed as the birth father of S. on her birth certificate.
[15] The child S. was removed from the care of the mother on or about August 10, 2016 by way of an interim without prejudice order of Justice J.G. Lebel and she was placed in the care of Mr. F.
[16] In November 2016 the mother identified Mr. B. as the biological father of S. Paternity testing confirmed that Mr. B. is the biological father of S., however, S. remained in the care of Mr. F.
History of Society Involvement
[17] The Society became involved with the mother dating back to 2009 after the birth of the child E. due to concerns regarding the mother's developmental delay and ability to meet the child's needs.
[18] The mother was diagnosed with a developmental delay as per a psychological evaluation completed by Michelle Dermenjian, psychological associate of the Algonquin Child and Family Services on July 10, 2008. The mother was 17 years old at the time the evaluation was completed.
[19] The Society had received referrals regarding the mother's capacity and motivation to parent an infant child from the hospital after the child's birth. As a result of these concerns the child E. was placed in the care of the maternal grandmother on September 8, 2009. On August 18, 2010 an Order was made granting the maternal grandmother custody of the child E.
[20] In or about the spring of 2015, after the birth of the child El., the Society received referrals again from various agencies such as Healthy Babies Healthy Children, concerning the mother's lack of appropriate care for the child as well as unrealistic expectations for the child which resulted in El. being removed from her care and placed with the maternal grandmother in or about May 2015.
Dr. Ross Assessment
[21] In the child protection proceeding involving the child El., on June 29, 2016, Justice A. Guay made an order that Dr. Patricia Ross (hereinafter referred to as "Dr. Ross") shall conduct an assessment of the mother for the following reasons:
(a) To determine whether there are any psychological factors which would increase or decrease her risk of harm to children?
(b) To determine if the mother has psychological issues which would impact her ability to parent?
(c) To determine whether there are any factors which would impede or impact the mother's ability to seek appropriate timely medical treatment, understand medical recommendations and follow through consistently with recommendations for a child in her care?
[22] The court required that Dr. Ross address the parenting capability of the mother including those attributes, skills and abilities regarding the risk of physical harm to the child El.; her ability to parent the high needs of the child El. and mental health concerns.
[23] The report of Dr. Ross was completed on October 26, 2016 and filed as evidence in this proceeding. Dr. Ross completed a further assessment of the mother and administered a number of psychometric tests including the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV); Wechsler Memory Scale, Fourth Edition (WMS-IV); Peabody Picture Vocabulary Test, Third Edition (PPVT-III); Expressive Vocabulary Test (EVT); Millon Index of Personality Styles, Revised (MIPS, Revised). The test results administered confirmed an intellectual disability.
[24] The Overall Summary of Dr. Ross' report is as follows:
The serious cognitive deficits of D.B.-R. are a prominent factor identified in this assessment with respect to her capacity to safely and effectively meet the needs of a child. Meeting the diagnostic criteria for an Intellectual Disability, her overall intellectual abilities tested within the 'extremely low' range, at the 1st percentile. These results would be consistent with those of a Psychological Assessment completed by the Algonquin Child and Family Services in 2008, when she was 17 years of age, in which she was diagnosed with a Developmental Handicap.
Of particular importance given the nature of this assessment, D.B.-R. showed specific weaknesses in her verbal abstract reasoning skills (1st percentile); social judgment and ability to use her knowledge in practical situations (1st percentile); expressive language skills (0.3rd percentile); immediate and delayed memory skills (1st and 2nd percentiles, respectively) and her auditory working memory skills (1st percentile).
Specific cognitive strengths were identified, specifically in terms of her visual working memory skills; the rate at which she was able to process visual information; and her performance on one abstract visual reasoning task. However, because of the severity and pervasiveness of the intellectual, language and memory deficits identified, these isolated strengths would not be sufficient to substantially improve her functioning in general or as a parent.
Given these critical characteristics, even with continued intervention to improve her parenting skills, D.B.-R. would be severely limited in her ability to develop and effectively provide minimally adequate basic child-care skills for even one child over the long-term. A child placed in her primary care would be considered at significant risk of physical, developmental and emotional harm. These risks would increase if there is more than one child in her care and if any of these children had any special needs.
[25] The mother has stated that as of December 2018 that she was undergoing a further Parent Capacity Assessment. The mother states that the assessment was completed by Dr. Hugo in May 2019.
Current Application Before the Court
[26] With respect to this application before the court, reports of the mother being pregnant were made to the Society dating back to August 2017. The mother swore an affidavit on November 29, 2017, commissioned by her lawyer, denying that she was pregnant.
[27] The mother also contacted the Society in January 2018 via telephone and left a voicemail message to advise that she was not pregnant and that she had nothing to hide.
[28] The mother gave birth to the child B. on […], 2018 at 34 weeks. The child was in the Neonatal Intensive Care Unit ("NICU") as he was born premature and the doctors were trying to control his blood sugar.
[29] The Society was concerned about the mother's lack of cooperativeness with the Society, including her denial of the pregnancy. Further, the mother appeared to not have made the father aware of her previous and current involvement with the Society regarding her other children and so it came as a surprise to him that the Society wished to become involved with the child B.
[30] The father does not have any involvement with the Society as an adult, as the child B. is the father's first-born child.
[31] The paternal grandparents immediately proposed a plan to care for the child B. and the appropriate checks and home visits were completed by the Society in order to facilitate same upon the child being released from the hospital.
[32] The child B. was placed in the care of the paternal grandparents on an interim without prejudice basis pursuant to the order of Justice P. Bradley dated February 2, 2018 and the child has remained in their care since.
[33] Pursuant to the order of Justice P. Bradley, the mother and the father were to have access to the child supervised by the Society or its designate and at the Society's discretion.
[34] The father and the mother's access to the child was initially supervised by the paternal grandparents. The father was residing at the home of the paternal grandparents, but he moved out in or about March 2018.
[35] In or about April 2018 the paternal grandmother reported to the Society that the father was avoiding the family home and that the father was not motivated with respect to the care of the child.
[36] The paternal grandfather also reported concerns regarding the father's hygiene as well as the father's inappropriate care of the child requiring intervention by the paternal grandfather.
[37] As indicated above, the matter was transferred from the Society to KINA on April 19, 2018.
[38] The parents ended their relationship in October 2018. At this time, the paternal grandmother also reported to KINA that the parents were not welcome in their home as the father was aggressive towards the paternal grandmother during an access visit with the child. As such the parents' visits with the child were moved to the offices of KINA for a period of two hours twice per week. Despite the parents being separated, at their request, their access visits with the child have remained joint.
[39] On January 22, 2019 an interim without prejudice order was made by Justice R.W. Lalande placing the child in the care of the paternal grandparents, subject to the supervision of KINA, and that the parents have access to the child at the discretion of KINA and supervised by KINA or its designate.
Parental Access History
[40] The parents have not been consistent with exercising access to the child. The parents have either called to cancel visits for a variety of reasons including illness or work schedules and on other occasions, they have simply not shown up at all.
[41] In 2018 the parents had 46 scheduled supervised access visits with the child but only exercised 21 visits due to cancellations and no shows.
[42] In 2019, from January 11, 2019 to May 13, 2019, out of a possible 39 visits, the mother only attended 19 visits. From May 16, 2019 to July 8, 2019, the mother had 18 scheduled visits with the child, however, she only attended 6 of these visits. The father attended 7 of the scheduled 18 visits.
[43] As of July 8, 2019, the parents' visits with the child were suspended until the parents met with the worker to discuss their poor attendance. At the time of the summary judgment motion on September 25, 2019 the parents' visits remained suspended.
[44] Prior to the mother's access being suspended, she was required to contact KINA to confirm that she would be attending access that day. Many visits were cancelled as the mother did not call in to confirm her visit or she called after the designated time and the visit had already been cancelled.
[45] The mother has held various jobs over the course of these proceedings, including working at Shoeless Joe's restaurant; Topper's Pizza; Your Independent Grocer; Tutti Frutti restaurant; Reliable; Levert Group as a confined space attendant; St. Joseph's Villa as a Personal Support Worker; TSYS as a fraud analyst and presently at […] as a security guard.
[46] It is the mother's position that as a result of her various work schedules, she is not able to commit to the supervised access schedule imposed upon her by KINA. Further, the mother states that she has attempted to relay to KINA that she is unable to contact them by the set time to confirm her access as she is at work during that time and not able to make the call. Conversely, when the mother is not at work, which is typically on the weekends, she is able to call and confirm her access visit.
[47] The mother also states that KINA has not explored the other options available for placement of the child or her access such as family third-party supervisors. The mother has proposed as supervisors the maternal grandmother, her sister C.A. and C.A.'s partner, as well as the mother's new husband, J.P. (hereinafter referred to as "Mr. P.") or his mother, B.P.
[48] KINA indicates that the mother has not provided the contact information for the aforementioned third-parties proposed by her. Further, these individuals have not contacted their offices to express an interest in supervising the mother's access with the child.
[49] KINA has received information from Nogdawindamin Family and Community Services (hereinafter referred to as "Nogdawindamin") that the mother's new husband, Mr. P., has two children from a previous relationship, but he does not have any contact with them and he has not had access to them since July 2018.
[50] In addition, KINA further states that the mother has historically not been consistent in exercising access to her other children be it either supervised by the maternal grandmother or at Society's or KINA's facility.
[51] Regarding the children E. and El., the mother was provided with financial assistance to attend access at the home of the maternal grandmother in Parry Sound, but the mother still would not attend for access consistently.
Father's Position and Current Status
[52] The father indicates that while he resided with the paternal grandparents, he had unfettered time with the child and he assisted in all aspects of caring for the child until he moved out in March/April 2018.
[53] Since the supervised access was suspended in July 2019, the parents were to meet with KINA on two occasions in order to reinstate their access visits with the child. Neither of the meetings were kept by the parents and so the access visits have remained suspended to the date of the hearing of the summary judgment motion.
Child's Status with Paternal Grandparents
[54] The child has been in the care of the paternal grandparents since his release from the hospital in February 2018. The paternal grandparents have met all of the child's needs; are cooperative with KINA and are supportive of access visits with the parents.
[55] The child is reported to have a healthy attachment to his paternal grandparents and his interactions with them are engaging and positive. The child is meeting his developmental milestones regarding fine motor skill development; mobility and speech. The paternal grandparent's home is a safe and nurturing environment. The child is also enrolled in daycare and enjoys and participates appropriately in activities.
The Law
[56] KINA brings this motion pursuant to Rule 16 summary judgment of the Family Law Rules. The relevant portions of Rule 16 are as follows:
Rule 16: Summary Judgment When Available
16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
Available in any Case Except Divorce
16. (2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
Evidence Required
16. (4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
Evidence of Respondent Party
16. (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
Evidence not from Personal Knowledge
16. (5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
No Genuine Issue for Trial
16. (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
Powers
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.
Oral Evidence (Mini-trial)
16. (6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[57] The decision of the Court of Appeal in Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, sets out the proper approach to summary judgment in child protection proceedings at paragraph 80 as follows:
80 To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:
Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
[58] Section 74(3) of the Child Youth and Family Services Act sets out the following:
Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child's physical, mental and emotional level of development,
(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child's cultural and linguistic heritage,
(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,
(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
Discussion
[59] As KINA is the moving party, it has the burden of proof to satisfy the requirement that there is no genuine issue for trial. Further, the court must exercise caution in applying the objectives of the CYFSA which include the best interests of the child as cautioned by the Kawartha decision.
[60] The evidence filed in the continuing record, as well as the affidavit of the mother submitted on the date of the summary judgment motion, was carefully reviewed and considered along with the submissions of all counsel on behalf of the parties.
[61] The affidavits filed and reviewed by the court are the affidavit of Brianne Rochon sworn February 1, 2018 filed by the Society; affidavit of Greg Miller sworn December 10, 2018 filed by KINA; affidavit of J.M. sworn December 9, 2018 filed by the respondent father; affidavit of D.B.-R. sworn December 7, 2018 filed by the respondent mother; affidavit of Amanda Tessier sworn January 17, 2019 filed by KINA; affidavit of D.B.-R. sworn April 23, 2019 filed by the respondent mother; affidavit of Amanda Tessier sworn May 17, 2019 filed by KGCFS; affidavit of Amanda Tessier sworn July 16, 2019 filed by KINA; affidavit of Amanda Tessier sworn August 8, 2019 filed by KINA and affidavit of D.B.-R. sworn September 24, 2019 filed by the respondent mother.
Custody Analysis
[62] The child B. has been in the care of the paternal grandparents for almost 22 months. The paternal grandparents have met all of the child's needs and he is thriving in their care.
[63] Over the past 22 months, neither parent has demonstrated an ability to maintain any sort of consistent schedule in visiting with the child and while it appears that there may be reasons as to why this has occurred, the fact remains that there have been significant gaps in time in which this young child has had no contact with either parent. The most recent span of time being from July 8, 2019 to the date of the hearing of the summary judgment motion on September 25, 2019.
[64] The mother has three older children from previous relationships, none of whom are in her care and these children are being cared for by alternate caregivers. The mother has a history of not being able to care for her other children or meet their needs.
[65] The mother completed a parent capacity assessment with Dr. Ross in October 2016 and the results of the assessment set out in the report indicate that "…even with continued intervention to improve her parenting skills, D.B.-R. would be severely limited in her ability to develop and effectively provide minimally adequate basic child-care skills for even one child over the long-term."
[66] The mother has stated in her evidence that she has undergone a further parent capacity assessment with Dr. Hugo, however, no evidence was filed by the mother to support this statement. A report has not been submitted to the court for consideration nor even a letter from Dr. Hugo indicating that he or she is in fact retained to complete an assessment and what questions are to be considered in the report.
[67] In looking at the factors with respect to the best interest of the child pursuant to section 74(3) of the CYFSA, the child's physical, mental and emotional needs are currently being met in the care of the paternal grandparents. The child has formed a positive relationship with the paternal grandparents, and they have met all of his needs such that he is meeting his developmental milestones.
[68] When considering the permanency and stability for the child, given the length of time that the child has resided with the paternal grandparents, coupled with the lack of commitment from the parents over the course of the last 22 months, it is clear that there is no genuine issue requiring a trial with respect to the issue of custody and same shall be granted to the paternal grandparents.
Access Analysis
[69] With respect to the issue of access, given that the father is in agreement with the proposal that his access to the child be supervised as agreed upon with the paternal grandparents, and failing such agreement same shall occur at the Supervised Access Centre, said order shall be made.
[70] Regarding the mother's access, given that there appears to be discord with the paternal grandparents at this time and that there are varying versions of events as to why the mother has not been able to exercise access, namely due to her work schedule, I am not satisfied that there is no genuine issue requiring a trial with respect to this single issue.
[71] The mother has lied to the Society as well as swore a false affidavit for court that she was not pregnant. This seriously calls in to question the mother's credibility and establishes why KINA has a difficult time believing statements made to them by the mother.
[72] However, both the Society and KINA are aware that the mother has an intellectual delay and so they need to make exceptions when working with her. This includes making allowances regarding the protocol for calling in to confirm access as well as adjusting the access schedule to accommodate the mother's work schedule.
[73] Despite the mother's intellectual delay, she appears to have held a number of jobs over the years and she should be commended for same. As such, KINA needs to take a flexible and reasonable approach in accommodating the mother's access such that it does not interfere with her ability to work. An example of this would be that if the mother was not able to call to confirm the visit by 12:00 p.m. due to her work schedule, then a wider window to confirm the visit should be provided. Perhaps, even the removal of this condition could be considered if a work schedule was provided to KINA.
[74] KINA does not accept the mother's work schedule as she states it to be, and so, steps should have been taken to obtain the mother's work schedule or at least communicate to her lawyer that the work schedule is being requested in order to accommodate her work schedule and access. There is understandably not a lot of trust between the mother and KINA so attempting to address some of their concerns through counsel should have been explored, again, given that they are well aware of the mother's intellectual delays.
[75] Regarding the proposed third-party supervisors, the mother is indicating that KINA has not explored same. These third-parties have been noted since the mother filed her affidavit in December 2018. Although KINA indicates that these individuals have not reached out to them to confirm their intention to supervise the mother's access, genuine efforts must be made to coordinate with the supports that the mother has identified. If these efforts cannot be made through the mother herself then KINA, again, needs to do so through the mother's counsel whom she has retained since the commencement of this proceeding.
Order
[76] Based on the above, and for the aforementioned reasons, paragraphs two, three, four and six of KINA's motion for summary judgment is granted as follows:
1. The child shall be identified as follows:
(a) The child's proper name is B. […], born […], 2018.
(b) The child is not First Nation, Inuk or Métis.
(c) The child was removed from the care of the respondent parents, D.B.-R. and J.M., on […], 2018 at Health Sciences North in Sudbury, Ontario.
2. There shall be a finding that the child B., born […], 2018 is a child in need of protection pursuant to sections 74(2)(b)(i) and 74(2)(b)(ii) of the Child, Youth and Family Services Act.
3. J.S. and B.M. shall be granted custody of the child B., born […], 2018.
4. Any application or motion to vary the provisions of custody of the child B., born […], 2018 shall be served upon Kina Gbezhgomi Child and Family Services of the Child Protection Agency in the jurisdiction in which the child resides, which agency may, at its discretion, become a party to or participate in the proceeding.
[77] Regarding the issue of access to the parents, given that the father supports the motion for summary judgment, an order shall go regarding his access as follows:
5. The respondent father, J.M. shall have supervised access to the child B., born […], 2018 as agreed upon with the paternal grandparents, J.S. and J.M., failing such agreement, the access shall occur at the Supervised Access Centre.
[78] With respect to the claim regarding the mother's access to the child B., born […], 2018, it appears that there are a number of issues regarding why the access has been suspended and I am not satisfied that the options for alternate third-party supervisors have been satisfactorily explored by KINA.
[79] As such, the singular issue of the mother's access to the child shall be set for a focused hearing scheduled for one day as contemplated by Rule 16(6.2) of the Family Law Rules.
[80] Examination-in-Chief shall proceed by way of a comprehensive affidavit of the mother and all of her witnesses as well as KINA and their witnesses, which may include the paternal grandparents. Cross-examination of the mother and the KINA Child Well Being Worker shall be limited to 1 hour each and cross-examination of any other witnesses shall be limited to 30 minutes for each witness. Closing submissions by KINA and the mother shall be limited to 30 minutes and both counsel shall submit to the court a copy of the order being requested.
[81] Regarding the paternal grandparents' motion to be added as parties to the proceeding. I do not believe that same should proceed to a hearing given that a final order is granted in favour of custody to them. The motion at tab 23 of the continuing record shall remain returnable before me on the first court date of December 17, 2019 at 9:30 a.m., to be spoken to, to determine the next step regarding the motion.
Released: November 14, 2019
Signed: Justice Heather-Ann Mendes