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.

(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.

(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.

Ontario Court of Justice

Date: 2020-04-13 Court File No.: Brampton 20051/19

Between:

THE CHILDREN’S AID SOCIETY OF PEEL Applicant

— AND —

D.J., H.M., and S.R. Respondents

Before: Justice Philip J. Clay

Heard on: March 24, 2020 Reasons for Judgment released on: April 7, 2021 Amended Reasons for Judgment released: April 13, 2021

Counsel: Ms. A. Rozario – counsel for the Applicant Society Ms. C. Sepuya – counsel for Respondent mother Ms. A. Baratz – counsel for the Respondent father Ms. M. Bharadwaj – counsel for the Respondent maternal aunt

Corrected decision: The text of the original judgment was corrected on April 13, 2021, and correction made is as follows:

Final Order paragraph 7 has been changed to:

The Status Review date is September 29/21 at a time and method of hearing to be advised in the S/R Application.

CLAY J.:

Summary Judgment Motion

[1] The Society filed a summary judgment motion on February 11/20 (Tab 1 Volume 3 of the Continuing Record). It was supported by the affidavits of Ms. Vanessa Woods the child protection worker at Tab 5, Ms. Lidia Mis the kinship services worker at Tab 2 and Ms. Pardip Pannu the child and youth support worker at Tab 3.

[2] The Society motion sought an order with respect to the child A.J. born […], 2018. It sought statutory findings, protection findings under s. 74 (2) (b) (i) and (ii) and a placement with of the child with the maternal aunt S. R. under Society supervision for a period of 6 months.

[3] S.R. filed an affidavit in response at Tab 5. The Respondent mother filed an affidavit at Tab 11 and the R. father file an affidavit at Tab 10.

Motion to Strike

[4] The Society brought a motion at Tab 1 of Vol. 4 of the C.R. to strike certain paragraphs of the affidavit of the father’s affidavit. The paragraphs were reviewed in turn and submissions received. For oral reasons given, I have deleted some paragraphs and some wording from other paragraphs. I did not delete the written description of the photographs, as requested, as the real evidence is the photo and the description is simply what the father thinks he is seeing. It is not admissible evidence of any actual condition or injury.

[5] I have left the affidavit at Tab 10 unchanged, but I have completed the deletions on a copy of that affidavit that was attached an exhibit to the Society’s affidavit at Tab 2 of Vol. 4. I have relied upon that changed affidavit for the father’s evidence upon this motion.

Position of the Parties

[6] The mother and maternal aunt consent to the Society’s motion. The R. father does not oppose the statutory or protection findings, but he opposes the disposition of placement with the maternal aunt.

The Law

[7] The Society brought this summary judgment motion pursuant to rule 16 of the Family Law Rules (“FLR”). The parts of that Rule relevant to this child protection matter read 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 an any defence presented in the case. O. Reg. 114/99, r. 16 (1) .

Any case except divorce

(2) A motion for summary judgment under sub rule (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) .

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.

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).

[8] In this matter the Society sought protection findings under ss. 74 (2) (b) (i) and (ii) of the CYFSA. These subsections read as follows:

(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

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

[9] If a finding is made that a child is in need of protection it is then necessary to consider the sub-sections of s. 101, 102 and 104 of the CYFSA that are relevant to the facts in this matter. They read as follows:

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 s. 102 , in the child’s best interests:

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.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

Child protection findings

[10] It is necessary for the court to satisfy itself that there is evidence that supports the child protection findings sought even when the findings are conceded by all parties. I read the comprehensive affidavit of Ms. Woods filed which addresses the mother’s situation prior to and after the birth of the child. It also set out all the resources that were offered to the mother to assist her in parenting the child. The resources were not accepted, and the mother decided that it was in the best interests of the child to be placed with her sister.

Issue

1. Has the Society proven that there is no genuine issue for trial as to whether the child should be placed with the maternal aunt subject to Society supervision for a period of 6 months?

Evidence

[11] The relevant evidence can be summarized as follows:

(1) The child, A.J. was born on […], 2018.

(2) The mother moved into the home of the maternal grandfather between her release from hospital and October 19/18.

(3) The Society had concerns with the mother’s ability to care for the child and her willingness to take on a parental role.

(4) Conflict developed between the MGF and the mother and on October 19, 2018 the child was placed with the maternal aunt under a voluntary kinship placement agreement.

(5) In February 2019 the father was charged with two counts of sexual assault and one count of sexual interference after a complaint made by the mother when the mother and father were in a vehicle together and the police were called to the vehicle.

(6) The offences were alleged to have occurred between October 1, 2015 and April 30, 2016 when the mother was under the age of 18 years.

(7) The father contacted Ms. Woods on March 29/19 to state that he was A.J.’s biological father and that he wanted to see his child. (To this point in time the Society had been told by the mother that a person named “J.” was the father-the mother subsequently confirmed that “J.” was H.M.)

(8) The father stated that he had had another child by a different mother earlier that year.

(9) On April 4, 2019 Ms. Woods attended at the father’s home which shall be referred to as 51. The father shared the home and had exclusive use of an upstairs bedroom and bathroom and a downstairs living area. Ms. Woods found the home to be tidy, but with an odour of marijuana.

(10) The father was offered parenting classes which he ultimately signed up for and completed a few sessions.

(11) On April 4/19 the father showed Ms. Woods his bail terms which outline both a no contact order between himself and the mother and a condition that he not be in the presence of anyone under the age of 18 years except for his son B.

(12) The bail conditions attached to the affidavit also set out that the father could have access to the child if authorized by the CAS or pursuant to a valid Family Court order made after that date. Ms. Rozario said that the Society received the document on May 25, 2019 and it was concerned that the no contact under 18 with a specific exception for B. was inconsistent with a term that allowed the Society to arrange access. The Society decided to permit supervised access, but not to allow unsupervised access until the bail conditions were varied.

(13) On May 26, 2019 the father had a visit with A.J. supervised by S.R.

(14) On June, 2019 S.R. said that she did not want to supervise visits.

(15) On July 11/19 Ms. Woods spoke to the father and discussed his custody application for A.J. At that time the Society became aware that the father had been convicted of forcible confinement, assault and breach of recognizance in June 2015 and had been sentenced to 6 months in custody and 1 year of probation. The mother was not the victim of those offences, but it is noted that the offences the father is now charged with are alleged to have occurred shortly after his release in October 2015.

(16) The father’s position with respect to the historic charges laid in February 2019 was that the mother had been hitting his car with a piece of metal and when police intervened she deflected blame from herself by falsely accusing him of raping her when she was a minor.

(17) On August 23, 2019 the worker attended at the father’s home at 51 where she observed the plans he had made for the child-crib, baby bath, new couch etc.

(18) The father’s plan was to care for the child at 51 even though his bail terms required him to live with his surety at his mother’s apartment on McLaughlin Road.in Brampton.

(19) On August 29, 2019 the father had his first supervised visit at the Society’s offices. Other than the father being 15 minutes late the father was prepared for the visit and it went fairly well.

(20) The father had positive visits throughout and he demonstrated good parenting skills. The only real concerns were that he was almost always 15-20 minutes late in attending.

(21) On October 9, 2019 the father met with Ms. Pannu of the Therapeutic Access and Assessment Program (TAAP) and he signed up for the program which he completed between October 22-24, 2019.

(22) Ms. Pannu’s affidavit stated that she worked with the father from October 9 to 29. That affidavit listed the father’s parenting strengths as observed during this intensive program. The only concern was his lateness which extended past the grace period. The father denied lateness this time. He also refused to talk about his parenting supports.

(23) The father continued to have positive access visits, but during access he pointed out concerns that he had as to the child’s appearance and health. He essentially alleged that she was not being well cared for as she presented with bites and marks. When she had a cold sore, he alleged that she got if from a Society worker. The Society workers felt all marks and scratches were not out of the ordinary for a toddler and the child did not need medical treatment. The complaints continued and led to the father attaching a series of photos to his affidavit.

(24) On November 21, 2019 the father had his bail varied on consent to add A.J. to B. as the specific exceptions to the provision that he could not be in the presence of children under 18 except in the presence of a surety.

(25) In February 2020 the father’s access became semi-supervised and they continued until the Society offices were closed on March 17 due to the pandemic.

(26) S.R. reported that the virtual visits that she arranged with the father did not go well so they were changed to supervised video visits.

(27) The father missed a few visits and on April 23 the Society became aware that he was in custody.

(28) The father was in custody on May 4 but was able to participate in the temporary care hearing that placed A.J. in S.R.’s care.

(29) The release order dated May 6/20 showed that the father was arrested on April 18/20. He was released on terms that he not contact C.J. or her two children C.J. was the father’s housemate at 51 where she resides with her children. Apparently, the police were at 51 for reasons other than the father being there, but when he was questioned it became clear that he had breached the recognizance that he not be with anyone under the age of 18.

(30) The Society tried to reach out to the father to restart access, but father did not respond to the Society until June 16 and his next visit was on June 21.

(31) Arrangements were made for the father to have access twice per week for 3 hours at the PGM’s home on McLaughlin where he was residing following his release. On July 6 the father said that twice per week access would not work for him as he was actively trying to find work. Two day a week access continued to occur though some visits were missed.

(32) The first visit at the PGM’s home occurred on July 8. The father’s same age son B. was also at the visit and the father said he had B. with him “all the time.”

(33) There were issues with COVID screening, but access occurred once per week throughout the summer of 2020 and the visits were positive.

(34) The father continued to raise concerns about how the child was being cared for by S.R. as he pointed out various issues with redness in her vaginal area, marks and bites. A doctor saw the child and had no concerns on or about August 12.

(35) Beginning on August 27 the father said he would begin access at 51 and then go to a park. He described 51 as his home and he was observed to be there outside with children. The bail release stated that he was to live on Mclaughlin Road in Brampton with his mother, but could go to 51 if he had no contact with C.J. or her son M.J.

(36) Beginning in October the father’s access moved to once a week -Thursdays from 10:00 a.m. to 7:00 p.m. The father asked for a weekend visit as there was a death in his family and S.R. cancelled her weekend cottage plans to accommodate the visit.

(37) On December 11 the father was advised that he could have access on Sundays as well beginning in January.

(38) Sadly, the MGM had a major stroke and passed away on January 23/21. The father was advised that for family reasons his visit would be cancelled the next day. The father objected as he said that the MGM’s death had nothing to do with his access and as he “shared custody” with S.R. he should have A.J. if S.R. could not care for her.

(39) On February 3/21 the Society approved a new access schedule whereby the father would have day visits on Saturday and Sunday one week and a day visit on the Thursday on the alternate week. The access then changed to Saturday and Sunday one week and Sunday the next as the father said he could no longer do Thursday access.

(40) The Society’s involvement with S.R. throughout the 30 day checks that began after October 19/18 led it to conclude that she was closely bonded to A.J. and able to meet all of her instrumental and emotional needs The child had started calling her Mommy and referring to the mother by her first name. To her credit the mother was fine with this.

(41) S.R. had facilitated the mother’s contact with the child and the mother’s position was that S.R. should continue to raise her child.

Society Submissions

[12] Ms. Rozario said that the evidence showed that the father was a good access parent. He was able to prepare for visits, engage with his daughter and provide for all of her needs during the access time.

[13] Counsel noted that the father resented the fact that S.R. was caring for his child instead of himself. He was laser focused on criticizing S.R.’s parenting. He raised allegations of negligent care and resulting redness, marks, bites, and scratches all of which were either normal or checked out by a doctor with no concerns noted. Ms. Rozario said that this raises concerns about the father’s judgment as he is unable to separate real concerns from non-concerns.

[14] The father does not recognize that were it not for S.R. coming forward to care for A.J. the child would be in foster care. He will not acknowledge that S.R. has done a good job parenting his daughter. The father is not capable of fostering any positive relationship with S.R.

[15] The father wants the child to be placed with him. Ms. Rozario stated that there are many things that have been hidden by the father and many unknowns with respect to a future plan. The child was born on […], 2018 and the father did not come forward to the Society until March 29, 2019. He did not disclose any of the particulars of his outstanding charges laid in February 2019 and he did not provide his criminal record until late June 2019.

[16] The father has had bail terms requiring him to live on McLaughlin Road in Brampton with his mother since February 2019, but he presented the house at 51 as his home. He said it was where he would exercise access and where he would raise the child if he was permitted to do so. The father was clearly living in the home with C.J. and her children. He was arrested for a breach of his bail when the police came to that home and reviewed his bail terms.

[17] Even after this charge the father still used 51 as the base for his access on a number of occasions even though it appeared that C.J. still lived in that home.

[18] Ms. Rozario noted that the father is facing very serious criminal charges. He has already served jail time for sexual assault and if convicted of sexually assaulting or sexually interfering with the mother when she was underage he will likely not be available to care for the child for some time.

[19] Ms. Rozario stated that the evidence showed that the Society did work with the father and provided him with resources. The Society expanded his access when appropriate to do so and at the time of this hearing he had day access two weekend days one week and one weekend day the next. There was a discussion of a movement to overnight access.

[20] Ms. Rozario concluded by stating that it was “plain and obvious” from the evidence that the father had no chance of success if this matter was to proceed to a full trial.

[21] With respect to the evidence supporting the placement of the child with the maternal aunt counsel noted that pursuant to s. 101 (3) of the CYFSA S.R has priority for placement of the child as in the words of the subsection she “had charge of the child immediately before intervention.” The mother has asked S.R. to care for the child. This was recognized as a voluntary kinship placement. The Society brought an Application when the father once identified did not consent to the placement.

[22] Ms. Rozario noted the ample evidence that showed that it was in the child’s best interests to remain in the care of the maternal aunt. That evidence included the positive kinship assessment, the fact that the child has been observed over a significant period of time in her care and the fact that the child is healthy and meeting all of her developmental milestones. In fact, the Society had no concerns with the aunt’s care. S.R. had co-operated with access and even made changes to the father’s access schedule to accommodate his family needs.

[23] Ms. Rozario effectively stated that the least disruptive option for the child was for her to remain in the maternal aunt’s home. The father will continue to have access as despite all of the concerns referred to above he is able to exercise positive access with the child.

[24] Ms. Rozario said that to the extent that the father raised issues about negligent care by the maternal aunt the evidence has absolutely no credibility. There is no medical evidence that supports the father’s allegations. The father’s allegations against S.R. and the Society are not supported by any other evidence and are pure hyperbole. Ms. Rozario said that there was no genuine issue for trial.

Maternal Aunt’s Submissions

[25] Ms. Bharadwaj said that S.R.’s position is aligned with the Society. She stated that there were so many unknowns with any plan that the father might put forward at trial. He is facing very serious criminal charges. Ms. Bharadwaj noted that the charge screening form that was disclosed showed that the Crown was proceeding by way of indictment and that if convicted the Crown would seek penitentiary time.

[26] Ms. Bharadwaj said that the maternal aunt continued to facilitate access to the mother and ensured that it was supervised twice a week. The aunt recognized that the mother has not addressed the protection concerns.

[27] S.R. has taken a very child focused approach to access. S.R. has her own child so on her Saturdays A.J. is with her child and on the father’s Saturdays she is with his son B.

Mother’s Position

[28] Ms. Sepuya stated that the mother supports the motion before the court and acknowledges that there is no genuine issue for trial.

[29] Ms. Sepuya said that the mother has not been exercising regular access lately. The mother still does not have a place of her own so cannot ask for more access. The evidence showed that the mother saw her daughter in the care of the aunt when she first placed the child with her sister. She is confident that the maternal aunt provides the right environment in which to raise A.J.

The Father

[30] Mr. Baratz noted that the father has insisted that his affidavit be re-done and that the father has taken issue with the position that he had taken on his behalf. Mr. Baratz said he would like to bring an oral motion to be released from the record. I declined to grant that motion but held that if the father felt that Mr. Baratz did not fully set out his position that he would have the opportunity to add submissions once his counsel concluded. The matter proceeded in that manner.

[31] The father’s position was that there was no basis for not having his child placed with him. He added that a supervision order would not be necessary, but he would agree to one.

[32] The father said that Ms. Woods was biased in favour of S.R. He said that he had been unfairly treated from the beginning. He said that the Society should have contacted him to care for the child as the mother knew he was the child’s father. After he came forward the Society insisted that his access be supervised because they did not correctly read the terms of his bail conditions.

[33] The father emphasized that his bail terms after his February 2019 arrest provided that the CAS could arrange his access. He said that the Society had no reason not to give him unsupervised access. He said that the Society unfairly denied him access by insisting that he get a bail variation before unsupervised access could occur.

[34] The father said that the Society continually covered up for S.R.’s poor parenting of his daughter. He said they minimized issues or refused to investigate the many concerns he had regarding cold sores, bites, scratches, cuts, and vaginal redness. He said that a Society worker gave his daughter the cold sore.

[35] The father said that the Society kept trying to put up barriers to his time with his daughter including a required parenting course, the TAAP program, and police checks for his mother and brother. He also said that the Society criticized him unfairly; for late attendance at access when he arrives within the grace period, for not providing the child with water during access when that was S.R.’s fault and for other issues.

[36] The father stated that the failure to comply charge laid on April 18, 2020 had been withdrawn so he was just subject to the November 2019 bail terms. The father’s affidavit set out the events of the night when he says the mother caused damage to his car and then falsely accused him of historical sex offences. The father said that he provided information about his criminal convictions when asked but his criminal lawyer had told him not to talk about the sexual assault charges arising from the mother’s allegations.

[37] The father said that he had provided a viable plan of care for the child that needed to be considered at a full trial. He said that the outcome was not a foregone conclusion. His position was that even if the court finds that there was not a triable issue about placement that there is a triable issue about the access he should be receiving.

Analysis

Protection Findings

[38] As noted above, the parties consented to the protection findings. I find that there was an overwhelming amount of evidence that the mother was unable to safely care for and protect her child when she asked her sister to care for her in October 2018. The evidence since then is that the mother has not addressed the protection issues.

[39] The mother still does not have housing. She does not see her daughter on a consistent basis. Outside of the period from early September to October 19, 2018 she has never cared for A.J. The evidence in the first six weeks showed major issues with her ability to look after a child.

Disposition

Maternal Aunt’s Care

[40] The evidence is clear that S.R. has provided good care to her niece. The Society has checked with her every thirty days for 2.5 years and no concerns have been noted. The child is healthy and meeting her developmental milestones. The child has bonded with S.R. and calls her “Mommy.” The mother has not taken issue with that as she knows that she is unable to provide the care that her sister has consistently provided for A.J.

[41] To her credit S.R. has provided access to the mother despite all of the challenges presented by the mother’s inconsistent involvement in her daughter’s life. She has also facilitated access by the father despite the difficulties associated with that. The father has criticized S.R.’s care of the child from the time that he contacted the Society about his child in March 2019. Notably the maternal aunt has not responded in kind, but instead has understood that it is important for A.J. to have a positive relationship with her father.

[42] S.R. has facilitated the father’s access relationship even when doing so has been difficult for her. She had to cancel a cottage weekend to ensure that the father would have his daughter for a family funeral even though he did not have weekend access at the time. She had to put up with the father not extending the same courtesy to her when her own mother died, and he insisted on access (it did not happen). S.R. cooperated with the changes in access. When the father said he could no longer see the child on Thursdays S.R. cooperated with a change so that the father now has his daughter every Sunday and every alternate Saturday. It is noted that she has her own child and she has created a situation where her child and A.J. are together on the alternate Saturday.

Father’s Plan

[43] The evidence shows that the father has the ability to be a good access parent. While the father alleged that the Society is biased against him, I find that the Society quite fairly gave the father credit for his positive access visits and close relationship with his daughter. The only concerns raised were legitimate. For a person who sought a full-time parenting role the father was significantly late for most of his access visits. The father also used his access time to make unfounded and mean-spirited allegations about the care the child received from the maternal aunt. The father showed no willingness to co-operate with the child’s caregiver. Throughout this entire proceeding he seemed to feel that as a parent to the child he had a right to have her in his care. He seemed to resent the aunt for usurping his authority.

[44] The father has not been forthcoming with information about his life and his plans. I understand that he would have received advice not to discuss the charges concerning the mother. He is presumed innocent of those charges. However, the father did not provide timely information about his criminal record or the background to the forcible confinement and sexual assault convictions that resulted in a sentence of 6 months incarceration.

[45] The father’s living arrangements and thereby his plan for the care of A.J. raises major concerns. The father was clearly living at 51 as he showed that residence to the Society as his home. He then had bail conditions then did not allow him to be with anyone under 18 when not with his surety. He spoke about his roommate C.J. and he was then charged with failure to comply with his bail when he was at 51 with C.J. and her children. He says that those charges have been withdrawn, but the fact that he was living there is not disputed. Since February 2019 he has been required by his bail to live on McLaughlin Road in Brampton with his mother and his brother, but he appears to base his access out of 51 and still describes it as his home.

Least Disruptive Alternative

[46] The child has been with the maternal aunt for her entire life. The Society’s Application occurred after the child was there so the maternal aunt had charge of the child at the relevant time. As a parent, the father is biologically closer to the child than the maternal aunt, but that does not mean that his plan should be given preference over her plan.

[47] The father has been a fairly consistent presence in the child’s life and the child should continue to have unsupervised access to him. However, it would not be in this child’s best interests to uproot her from the only home she has known and from a caregiver with whom she is closely bonded. The father’s plan is unclear at best. While there is a risk that the father might not be able to care for the child if he is convicted of the serious charges he is facing, I am not basing my decision on that risk. Even if I assume that the father will not be convicted, I still find that this plan could not succeed at trial.

[48] If the child is with the maternal aunt she will see the father regularly. Given the father’s very negative view of the maternal aunt, and history of not following terms set by a court, it is not clear at all if the child would be able to continue a good relationship with the maternal aunt if she was in her father’s care.

[49] The evidence is overwhelming in this matter that it is in the best interests of A.J. to be placed with the maternal aunt. I find that it is not necessary for me to consider the enhanced powers in Rule 16 (6.1) as this is not a case where my decision rests on a credibility finding or weighing of the relative merits of two plans. There is an existing positive care arrangement that has existed for the child’s entire life and there is a plan from a parent who has not even made it clear to the court where the child would actually reside.

[50] If I am wrong in finding that I do not need to resort to the 6.1 factors I should note that I find that if I had to weigh the evidence, the evidence provided to support a placement with the maternal aunt is very strong for the reasons set out above. The evidence supporting the father is simply that he is capable of being a good access parent, but due to his own actions or lack of actions, he has not yet even graduated to a single overnight access visit.

[51] With respect to credibility the maternal aunt has been honest and forthcoming with the Society and the court. The father has made false accusations against the maternal aunt and the Society workers. The father has withheld information until he was forced to produce it and there is evidence that has not followed the terms of his bail order with respect to his living arrangements.

Final Order

(1) There is no genuine issue for trial.

(2) Statutory findings to go as set out in paragraph 1 of the Notice of Motion of February 11, 2021.

(3) The child A.J. born […], 2018 is a child in need of protection pursuant to s. 74 (2) (b) (i) and s. 74 (2) (b) (ii) of the CYFSA.

(4) The said child shall be placed in the care and custody of the maternal aunt S.R. subject to the supervision of the CAS of the Region of Peel for a period of 6 months on the terms and conditions set out in paragraphs 3 a) and b) of the said N of M.

(5) Access to the mother as per paragraph 4 of the said N of M.

(6) Access to the father shall occur at a minimum of once a week and is currently day access every alternate Saturday and Sunday one week and day access on Sunday on the alternate week with additional access at the discretion of PCAS as to location, duration, frequency and level of supervision

(7) The Status Review date is September 29/21 at a time and method of hearing to be advised in the S/R Application.

Reasons released: April 7, 2021 Justice Philip J. Clay