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: 2020-09-03

Court File No.: Toronto C10364/18

Parties

Between:

CHILDREN'S AID SOCIETY OF TORONTO Applicant

— AND —

A.A. (FATHER), T.E. (MOTHER), E.A. (HALF-BROTHER), A.B. (PARTNER OF E.A.) Respondents

Before: Justice Robert J. Spence

Heard by teleconference on: August 31, 2020

Reasons for Judgment released on: September 3, 2020

Counsel

• Ms. Julia O'Byrne — counsel for the applicant society
• Mr. E.A., respondent half-brother — on his own behalf
• No one appearing for T.E., the mother — service having been dispensed with
• No one appearing for A.A., the father and A.B., the half-brother's partner — both previously having been noted in default
• Mr. Keyshawn Anderson — counsel for the Office of the Children's Lawyer, legal representative for the child

Decision

R.J. SPENCE J.:

1: INTRODUCTION

[1] The Children's Aid Society of Toronto (society) brings a motion for summary judgment seeking the following:

(1) An order that there is no genuine issue requiring a trial;

(2) An order that the child J., born […], 2010, shall be placed in the interim care and custody of the society for a period of six months; and

(3) An order that access between the child J., and her half-brother E.A. and his partner A.B., shall be at the discretion of the society, taking into account J.'s wishes and in accordance with any criminal court proceedings.

[2] The Office of the Children's Lawyer (OCL) supports the society's motion.

[3] The brother is opposed and asks the court to dismiss the society's motion.

2: BACKGROUND

[4] In the following recitation of facts, the court relies on information that is either not disputed by the brother and his partner, or where the information is met with bald denials.

[5] In 2017 the father brought J. from Nigeria to Canada and they lived together until November 2017. The father returned to Nigeria for medical reasons, leaving J. with a family who were members of the father's church. J. remained there until February 15, 2018 when that family was no longer able to care for J.

[6] The society commenced its protection application on February 20, 2018. On the same date this court made a temporary without prejudice order placing J. with H.S., a teacher from J.'s school.

[7] The father returned to Canada from Nigeria on May 31, 2018 and J. went to stay with him shortly afterwards.

[8] On July 17, 2018 Justice Zisman ordered J. to be placed with her father on a temporary supervision order.

[9] When the society subsequently learned that the father had placed J. with her brother and his partner, without the society's knowledge, the society brought a motion on October 1, 2018 to place J. with the brother and his partner on a temporary basis.

[10] On October 1, 2018 Justice Zisman made the following order:

(1) temporary care and custody to the brother and his partner, supervised by the society subject to specified terms and conditions;

(2) the brother and his partner were made parties to this proceeding;

(3) The father was noted in default;

(4) Service on the mother was dispensed with;

(5) The statutory findings were ordered regarding the identity of the child; and

(6) A finding that J. is a child in need of protection pursuant to paragraph 74(2)(k) of the Child, Youth and Family Services Act (Act).

[11] On May 28, 2019 J. made disclosures to her teacher that the brother had assaulted her and that she was afraid to return to his care. On that same date the child was brought to a place of safety.

[12] On June 17, 2019 Justice Zisman made a temporary order placing J. in the society's care with access to the brother and his partner in the discretion of the society.

[13] J. disclosed the following to the society worker on May 28, 2019:

(1) The brother hit her on the head with a full water bottle;

(2) The brother hit her on the head and all over her body; her face, her bottom and her head;

(3) The brother kicked her;

(4) Her hip bone hurts and she thinks it may be broken; and

(5) J. said that she does not want to return to her brother's home.

[14] On or about July 24, 2019, the police arrested the brother and charged him with assault and assault with a weapon. The brother was released on bail with certain conditions, one of which was to have no contact direct or indirect with J.

[15] While the brother denies the allegations made by J., he does state in his affidavit dated June 4, 2020:

I have only spanked J. on two occasions, between October 2018 and March 2019. I have not spanked J. since March 2019. I have only used an open hand on her bottom, and I have never used a closed hand. I have never used any object in my hands when I spank J. I have only spanked J. for corrective purposes, and not in anger. I have never spanked J. to the point where she might feel like I "broke her bones." I have never left marks or bruises on J.

[16] On August 29, 2019 the society amended its protection application, seeking a six-month interim care order with the society.

[17] Both the brother's partner and the child's father failed to serve an Answer/Plan of Care and Justice Zisman noted them both in default. Justice Zisman also ordered that service on the child's mother be dispensed with on December 18, 2019.

[18] The brother did serve and file an Answer and Plan of Care on June 26, 2019. He seeks an order placing J. with him and his partner.

[19] On April 22, 2020, the society was contacted by the Victim Witness Office to advise that the criminal trial pertaining to the outstanding criminal charges has been scheduled for October 26, 27 and 28, 2020 and that J. will need to testify.

[20] The brother has had no contact with J. since his last visit with her on June 28, 2019. That visit was supervised by the society.

[21] The brother's partner has had no contact with J. since the brother was arrested.

[22] The society has repeatedly asked the brother to provide details regarding his existing bail conditions. The brother has refused to provide this information.

[23] The society's information from the police is that the bail conditions prohibit the brother from communicating directly or indirectly with J.

[24] The society's information is that the brother has taken no steps to vary his bail conditions in order to permit some sort of society-supervised access between the brother and J.

[25] In January 2019, the society contacted J.'s half-sister, Ms. A., who lives in Albany, New York.

[26] Ms. A., came to Toronto for a first supervised visit with J. on August 30, 2019. Ms. A. brought her 23-year-old daughter with her for that visit. The society says that visit went well.

[27] Ms. A. had a subsequent supervised visit in the community with J. on October 11, 2019.

[28] International Social Services (ISS) completed a Home Study Assessment on December 22, 2019 and recommended that Ms. A. and her husband become permanent parents to J.

[29] Ms. A. has expressed the willingness to proceed to court to gain custody of J. They are capable of financially supporting J.

3: THE LAW

3.1: Rule 16

[30] Rule 16 of the Family Law Rules provides 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. O. Reg. 114/99, r. 16 (1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(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. O. Reg. 114/99, r. 16 (2).

DIVORCE CLAIM

(3) In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12 (6). O. Reg. 114/99, r. 16 (3).

EVIDENCE REQUIRED

(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. O. Reg. 114/99, r. 16 (4).

EVIDENCE OF RESPONDING PARTY

(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. O. Reg. 91/03, s. 5.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(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. O. Reg. 114/99, r. 16 (5).

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

POWERS

(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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

ORAL EVIDENCE (MINI-TRIAL)

(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. O. Reg. 69/15, s. 5 (1).

ONLY ISSUE AMOUNT OF ENTITLEMENT

(7) If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount. O. Reg. 114/99, r. 16 (7).

ONLY ISSUE QUESTION OF LAW

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. O. Reg. 114/99, r. 16 (8).

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2):

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

(10), (11) Revoked: O. Reg. 69/15, s. 5 (4).

MOTION FOR SUMMARY DECISION ON LEGAL ISSUE

(12) The court may, on motion:

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because:

(i) the court has no jurisdiction over it,

(ii) a party has no legal capacity to carry on the case,

(iii) there is another case going on between the same parties about the same matter, or

(iv) the case is a waste of time, a nuisance or an abuse of the court process. O. Reg. 114/99, r. 16 (12).

EVIDENCE ON MOTION FOR SUMMARY DECISION OF LEGAL ISSUE

(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission. O. Reg. 114/99, r. 16 (13).

3.2: Statutory Pathway in the Child, Youth and Family Services Act

[31] As I noted earlier, the court made a finding in need of protection on October 1, 2018.

[32] The society amended its protection application on August 29, 2019, seeking the order set out in the within motion.

[33] The issue of disposition has remained outstanding since that date.

[34] Following a finding in need of protection, section 101 of the Act then provides:

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Interim society care

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

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

Court to inquire

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

Less disruptive alternatives preferred

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

[35] As the Act makes clear, the court must make two determinations following the protection finding.

[36] First, the court must determine whether there are ongoing protection concerns such that the society must make a court order to protect the child. See Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[37] If the court does determine that there are ongoing protection concerns, the court must then decide which of the four above-enumerated orders should be made, having regard to the child's best interests.

3.3: Time Limits

[38] Section 122 of the Act deals with time limits. That section provides:

Time limit

122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding:

(a) 12 months, if the child is younger than 6 on the day the court makes the order; or

(b) 24 months, if the child is 6 or older on the day the court makes the order.

3.4: Hryniak v. Mauldin, 2014 SCC 7

[39] Hryniak v. Mauldin, 2014 SCC 7 sets out a two-step process for determining whether summary judgment ought to be granted.

[40] First, the motions judge must determine whether there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16(6.1), set out above. If after this initial determination, there still appears to be a genuine issue requiring a trial, the motions judge may resort to the additional fact-finding powers to decide if a trial is required.

[41] Hryniak makes it clear 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 the motion for summary judgment. This will be the case when the summary judgment process:

(1) Allows the judge to make the necessary findings of fact;

(2) Allows the judge to apply the law to the facts; and

(3) The process is a more expeditious and less expensive means to achieve a just result.

[42] At paragraph 50 of Hryniak the court stated:

When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

3.5: Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316

[43] In the Kawartha case, the Ontario Court of Appeal expanded the jurisprudence on summary judgments in the context of child protection cases. The Court of Appeal noted that in child protection proceedings, Charter rights are engaged for a vulnerable segment of society. And in recognizing that vulnerable segment of society, Kawartha emphasized the need for the motions judge to take a cautious approach, something which promotes the Hryniak principle of reaching a fair and just determination on the merits.

[44] At paragraph 80, the Court of Appeal in Kawartha summarized the correct approach to be taken by the summary judgment motions judge:

[80] To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

1. 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.

2. 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.

3. 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.

4. 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.

5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[45] In the present case all the considerations from 1 to 4 apply. I am particularly mindful that the brother in this case is self-represented.

[46] At paragraph 72 of Kawartha, the Court adopted the following statement as the test for determining whether a genuine issue exists requiring a trial:

The test of "no genuine issue for trial" has been referred to in a number of ways. It has been equated with "no chance of success" or that is "plain and obvious that the action cannot succeed". The test has also been enunciated as being when the "outcome is foregone conclusion" or where there is "no realistic possibility of an outcome other than that sought by the applicant".

4: ANALYSIS

4.1: The Law as Applied to the Facts of this Case

[47] The material undisputed facts upon which the court relies in reaching its decision are as follows:

(1) The brother was charged criminally in July 2019 with assaulting the child.

(2) The brother has admitted to inflicting some corporal punishment on the child.

(3) The brother's bail conditions prohibit any contact with the child.

(4) The brother has not seen the child since June 28, 2019.

(5) The brother has not varied his bail conditions which prohibit contact with the child.

(6) Despite the lack of any legal restrictions, the brother's partner and their children have taken no steps to visit with the child since the last visit occurred on June 28, 2019.

(7) The brother's criminal trial is not scheduled to occur until the last week of October 2020.

(8) The child has been in the care of the society since May 28, 2019.

(9) The child's older sister and the sister's family have been approved by ISS as appropriate permanent caregivers for J. and they are willing to assume full custody of J.

[48] As I noted earlier, S.P., supra, confirmed that a court, when deciding disposition, must first determine if a protection order is necessary to protect the child in the future (subsection 101 (1) of the Act). The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time.

[49] In determining if a protection order is necessary to protect the child in the future, the existence of emotional ties between a child and the child's caregiver are an important consideration. In Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, the Supreme Court of Canada expressed that the Act "seeks to balance the best interests of the child with the need to prevent indeterminate state intervention, while at the time recognizing that the best interests of the child must always prevail". Because of this goal, the best interests of the child is "an important and, in the final analysis, a determining element of the decision as to the need of protection". The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See also S.P., supra.

[50] The original protection order was made as a result of J.'s parents being unavailable to care for J. and without making adequate provision for her care. J.'s parents continue to be unavailable.

[51] Moreover, there are circumstances which have arisen "since that time". Specifically, J. was removed from her brother following her disclosure that the brother had physically abused her. And in the 15 months since that removal, the child has now become emotionally and psychologically attached to her present placement and does not want to return to live with her brother.

[52] Following J.'s placement with her brother, she was removed from her brother's care because of allegations of physical abuse and the resultant criminal charges against him. Those criminal charges remain outstanding. The bail conditions prohibit the brother from having any contact with J. The brother has not seen J. for more than 14 months. J. remains in foster care.

[53] On this undisputed evidence before the court, there is a continuing need for a protection order.

[54] As stated in section 101 of the Act, the court's dispositional order must be based on what is in the best interests of the child. In considering best interests, the court must have regard to the factors set out in subsection 74(3) of the Act.

[55] One of those factors – J.'s cultural and linguistic heritage – would favour placing J. with her brother. However, as I have noted, that is currently legally impossible on the evidence now before the court.

[56] The balance of the considerations in subsection 74(3) of the Act would all seem to point toward the disposition being sought by the society.

[57] I place special emphasis on paragraph 74(3)(a), which provides:

[the court shall] consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[58] OCL counsel has met with J. several times. He advises the court that the child is vocal and articulate, and she has made clear to her lawyer not only what she wants but, as well, what she does not want. Counsel advised the court that J.'s views are independent, strong and consistent. The following are the child's views:

(1) She has no desire to return to live with her brother.

(2) After a number of unsuccessful foster home placements, the child is now in a home which works for her. She told her lawyer that this is her "home of love". She feels secure and loved where she currently lives, and she wants to remain there.

(3) The only drawback of her present home is that it is not a cultural match. And that is one of the reasons why she wishes to resume contact with her brother, his brother's partner and their children.

(4) Importantly, J. keeps asking her lawyer why the brother has not varied his bail so that he can have the opportunity to resume contact with her.

(5) The connection with J.'s older sister in New York is important to her and J. is open to a long-term relationship with the sister. She wants to explore the possibility of a permanent relationship with the sister. However, at the present time, J. considers her foster home to be her psychological home.

[59] At the age of 10-1/2 years, the child's views and wishes are to be accorded meaningful weight. And this is particularly so where, as her counsel advises, the child is both "articulate" and "vocal", and her expressed views are "independent", "consistent" and "strong".

[60] The logical inference from those views is that they are directly connected to her emotional well-being, so that any attempt to force her to move in a different direction could be emotionally harmful to her.

[61] The importance of protecting the psychological/emotional integrity of a child's connection to her foster family was well recognized by the Supreme Court of Canada in C.M., supra. That court repeatedly referenced in its decision that the child's bonding to her foster family must be at the forefront of any analysis in determining what is in the child's best interests.

[62] Not having seen her brother for more than 14 months, she has no meaningful relationship with him at the present time.

[63] Regardless of the outcome of the brother's criminal trial he would have no ability to even contact J., for at least another two months.

[64] Put another way, on the current evidence before the court, the brother's plan of care to have J. placed with him is a legal impossibility.

[65] Giving the brother every possible benefit of the doubt, even if his version of the corporal punishment inflicted on J. is more accurate than J.'s allegations, and even if there were no current bail restrictions in place, the court's assessment of what is in J.'s best interests must be alive to J.'s perceptions and to her reality and, particularly, to her views and preferences.

[66] In terms of views and preferences, I accept the evidence of OCL counsel as to the child's wishes. The brother's denial of those expressed views are without any evidentiary foundation, and the court rejects the brother's statement regarding his belief of what J.'s wishes really are, as nothing more than a bald denial of the OCL's statements to the court.

[67] Furthermore, the brother has provided no real explanation for rebuffing the society's efforts to work with the brother in its attempts to help facilitate a rehabilitation of his relationship with J. If he were truly sincere, the brother would have taken all reasonably necessary steps to vary his bail. In other words, what the brother says is inconsistent with his (in)actions.

[68] Moreover, the brother's partner and their children were not prevented by any court order from visiting with J. over the past 14 months. Why didn't they do so? Why didn't they take advantage of the opportunity to maintain the connection between J. and the brother's family? On the one hand the brother talks about preserving the relationship between J. and his family, while on the other hand, this lack of action by the family belies the brother's bare statements.

[69] J. has been in the society's care for more than 15 months. The time limits in section 122 of the Act are not intended as a licence to take the maximum allotted time for the court to reach a decision on the child's future. Delay in the litigation process in child protection matters must be measured from the child's perspective. The court must consider the impact of delay on the best interests of the child. CAS of Toronto v. T. (L.) 2016 ONCA 146.

[70] The issue of delay also ties into clause 74(3)(c)(ix) of the Act, namely, "the effects on the child of delay in the disposition of the case", in determining what is in J.'s best interests. See Children's Aid Society of Toronto v. R.H..

[71] The court is also mindful of two additional facts. First, the only active respondent in this proceeding is the brother. The parents are long out of the picture. This is not a case where the society is seeking an order which would remove a child from her parents.

[72] Second, J. lived with the brother for a relatively brief period – from about September 2018 until May 2019 – approximately 8 months in this child's 10-1/2-year lifespan. These two facts are relevant circumstances in the consideration of J.'s best interests.

[73] While these considerations do not alter the legal tests which apply to how a summary judgment motion is determined, they do, in the court's view tie into paragraph 74(3)(c) of the Act which requires the court to consider "any other circumstance of the case which [the court] considers relevant" in determining what is in the best interests of a child.

[74] More particularly, the court considers the 8-month time period out of a 10-1/2 year life relevant to clause 74(3)(c)(vii) of the Act, namely, "the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity". Disrupting a child's relationship with parents or family which has been ongoing for years is far more impactful than disrupting a relationship which has existed for a discrete 8-month period of that child's life, especially in circumstances where that 8-month period represents only a small fraction of the child's age. To put these numbers into even greater focus, the child's residential relationship with her brother is equal to barely half the time she has spent since coming into the society's care.

4.2: The Outcome is a Foregone Conclusion

[75] The brother filed a 30-page affidavit, with numerous exhibits attached. He had much to say about the child welfare proceedings.

[76] He has provided a detailed chronology of his interactions with the various society workers over the course of the litigation. He lists many grievances and complaints against the society, and he lays the blame for these grievances solely at the feet of the society workers.

[77] He has accused one of the society's family services workers of sexually abusing J. The society investigated this accusation and found it to be without merit. The society also told the brother how he could make a formal complaint if he was dissatisfied with that investigation. The brother did not lodge a formal complaint; nevertheless, he continues to stand by his original complaint.

[78] However, whether his assertions and grievances have any merit, is not for this court to determine. Those assertions would be relevant to the within motion only if they raised an issue which require a trial. They do not.

[79] It is this court's responsibility to determine on the admissible evidence (as outlined earlier) whether the society has satisfied the court that there is no genuine issue requiring a trial such that the court can reach a fair and just determination on the merits, in accordance with the principles stated by the courts in Hryniak and Kawartha-Haliburton, supra.

[80] Until such time as the society can make a final determination that all the immigration and travel issues can be worked out so J. can be sent to live with her sister in Albany, there are no other options for J. at the present time, apart from remaining in the society's care.

[81] By operation of the criminal law and the existing bail conditions imposed on the brother, J. cannot be placed in the brother's care. On the evidence before the court it is a foregone conclusion that the brother cannot succeed in his claim that J. be placed in his care.

[82] That leaves, as the only possible disposition, an interim care order with the society. The outcome of placement with the society is a foregone conclusion. The court does not need to resort to its fact-finding powers under subrule 16(6.1) in order to reach this conclusion.

[83] Turning next to the requested access order, by operation of the criminal law and the existing bail conditions, the brother can have no access to or contact with J.

[84] This prohibition in and of itself is sufficient for the court to conclude that there can be no access at the present time. That outcome is also a foregone conclusion.

[85] Moreover, access is very much tied to the question of what is in J.'s best interests. At the present time, the best admissible evidence before the court is that J. has no wish to see her brother and forcing her to see him contrary to her wishes could be damaging to her emotional well-being.

[86] The court is satisfied on the evidence and the law that there is no genuine issue requiring a trial. Accordingly, there will be an order to go as requested in paragraphs 1, 2 and 3 of the society's summary judgment motion dated April 29, 2020, with the modification to the access provision referred to in the Introduction of these reasons.

[87] My final comments are for the brother. If the brother is sincere in the statement he made to the court that "I want my sister to be comfortable", he should be starting to work immediately on repairing his relationship with J., something which J. has clearly expressed a desire to happen. The brother should not be reluctant to move in that direction simply because his sister does not want to live with him at the present time. That may change; it may not; but it is solely within the brother's control to decide whether he will take the necessary steps to reconnect with his sister. If he can do that, in a child-focused manner, he will have succeeded in conferring a real benefit on his sister.

Released: September 3, 2020

Justice Robert J. Spence

(signed electronically)