Warning

The court hearing this matter directs that the following notice should 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: July 2, 2021 Court File No.: C71/20

Between:

Family & Children’s Services of Guelph and Wellington County Applicant,

— AND —

P.C. Respondent,

K.W.M Respondent.

Before: Justice S. Bondy

Heard on: June 4, 2021 Released on: July 2, 2021

Counsel:

Olivia Rebeiro ………….… Counsel for the Applicant, Family & Children’s Services of Guelph and Wellington County Jessi L.N. Stanfield ……………………..……………counsel for the Respondent, P. C. Gerald Punnett ……………………………………..counsel for the Respondent, K.W.M.

BONDY, J.:

Ruling on Motion

The Issue:

[1] This is a Motion for Summary Judgment where the Applicant, Family and Children’s Services of Guelph and Wellington County (hereinafter described as the “Applicant”) seeks a finding of protection pursuant to s. 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act (hereinafter described as the “Act”), an order that the child be placed in the care of his Mother for a period of six (6) months subject to supervision by the Applicant on terms and an order for access to his Father on terms at the discretion of the Applicant.

[2] The child is J.M.C., born […], 2019 (hereinafter described as “J.M.C.”). The Respondent, P.C., is the child’s Mother (hereinafter described as “Mother”) and the child’s Father is K.W.M. (hereinafter described as “Father”). As a result of a dispute over the child’s paternity a DNA test was conducted confirming the Father’s paternity. The Mother is not opposed to the relief sought. The Father is opposed and from his Answer filed he seeks an order of custody and/or access pursuant to the Children’s Law Reform Act under s. 102 of the Act, that the child’s primary residence be with his Father or, alternatively, an order that the child be placed with him subject to terms of supervision and for access to the Mother.

[3] At the time of this Motion there is a temporary Order by Caspers J., dated August 4, 2020, placing the child in the care of the Mother subject to supervision terms with temporary access to the Father. Previous to this order there were custody and access proceedings commenced that resulted in an order of March 13, 2020 placing the child in the Mother’s custody or decision making authority. Following that order there were problems related to the Father’s visitation or parenting time. On May 6, 2020 his access order was clarified with the order of Caspers J. The custody/access proceedings are now statutorily stayed by operation of s. 103 of the Act.

On the issue of statutory findings:

[4] Section 90 of the Act requires that as soon as practicable and in any event before determining a child is in need of protection, the Court shall determine the child’s name and age; whether the child is a First Nations, Inuit or Métis child and the location of the place from which the child was removed if the child was brought to a place of safety. The Notice of Motion filed in connection with this matter does not seek these findings. A perusal of the court file and Orders does not reflect these findings have been previously made. At the outset of the Motion, I was advised the Applicant sought these findings.

[5] Accordingly, I find that the child’s name is J.M.C. and the date of birth is […], 2019. J.M.C. was never taken to a place of safety so a finding under s. 90(2)( c) is not required.

[6] As for whether the child is a First Nations, Inuit or Métis child, the only reference I see to this issue is that the Affidavit of A.J. deposes that “J.M.C. is not a First Nation, Inuk or Métis to the best of my knowledge”. No parent disputes this statement. There is no further evidence surrounding this issue. The Act’s Regulations and case authorities dictate how these findings should be made. On this limited evidence, I will find that J.M.C. is not a First Nations, Inuit or Métis child for the purposes of this Motion only, however, and with considerable emphasis, this issue be re-visited and fully canvassed at the time a Status Review proceeding is brought. The principles and objectives of the Act require this finding. Further, Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples (the “Declaration”) without qualification, and has committed to its full and effective implementation. Merely stating that a child is not a First Nation, Inuk or Métis child is not at all adequate. It gives short shrift to this important issue.

On the issue of the law relating to the Summary Judgment motion:

[7] I have considered the provisions of Rule 16 of the Family Law Rules and the case authorities that inform on the use of the summary judgment motion. To repeat what the courts and rulings have said, the question at all times with a summary judgment motion is whether there is a genuine issue requiring a trial on the merits. Justice Neill summarized the test succinctly in Family & Children’s Services of Guelph and Wellington County v. K.H. and C.C.M., at paragraphs [12] through [21] of her ruling. I summarized the test again in Family & Children’s Services of Guelph and Wellington County v. C.R. and J.C.H., an unreported decision of May 5, 2021. I repeat and adopt what I wrote at paragraphs [30] through [33] of that ruling:

Summary Judgment Principles:

[30] This is a Status Review proceeding authorized by the Child, Youth and Family Services Act (hereinafter described as the “Act”) pursuant to Family Law Rule 16 summary judgment rules. Such proceedings according to the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 apply to child protection proceedings but as they engage the Charter rights of both parents and children exceptional caution is required. Exceptional caution and fairness principles have equated the phrase under Rule 16 that there is no genuine issue requiring a trial with descriptors like “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed” and “where there is no realistic possibility of an outcome other than that sought by the applicant”. Kawartha summarized the approach in summary judgment proceedings as follows:

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 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 not be admissible 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; and
5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[31] Kawartha repeats what Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 emphasizes. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment: at para 49. Hryniak found that that would be the case when the process (1) allows the judge to make the necessary findings of facts, (2) allows the judge to apply the law to those facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. Hryniak said that the standard of fairness is not whether the procedure is as exhaustive as a trial or focusing on how much and what kind of evidence could be adduced at 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, the test at all times being whether a trial is required: at paras 50 and 56. The court found that the summary judgment motion was transformed from simply weeding out unmeritorious claims to a significant alternative model of adjudication: at para 45. The summary judgment motion is part of the recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system: at para 2.

[32] In Hryniak, the court established a roadmap or framework approach to the conduct of a summary judgment motion. First, the judge must determine if there is a genuine issue requiring a trial based only on the evidence before her without using the new fact finding powers. Second, if there appears to be a genuine issue requiring a trial, then she should determine if the interests of justice allow for recourse to the fact-finding powers under the rules. Third, is the power to hear oral evidence which can often be used to address concerns about credibility or clarification of the evidence: at para 51. The use of these powers is not against the interests of justice if they lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole: at para 66.

[33] Family Law Rules 16, 16 (6) 16 (6.1) and 16 (6.2) establish the procedure of what Hryniak describes as a new regime of adjudication.

[8] For emphasis, Rule 16 (4.1) provides that a responding Affidavit should not merely 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. The Kawartha decision reinforces that this subsection does not shift the ultimate burden of proof from a moving party on a summary judgment motion nor compromise the important gatekeeping function of the motions judge to eliminate inadmissible evidence. Further, to repeat, special and exceptional caution is required as such proceedings engage the Charter rights of both parents and children.

[9] To repeat, Rule 16 and its subsections are the starting points of this exercise. It is imperative that I repeat, that the Summary Judgment Motion is a significant alternative model of adjudication provided I am satisfied that there is no genuine issue requiring a trial. See Hryniak.

The Evidence on this Motion:

[10] The Applicant’s material on this motion is lengthy, consisting of some five (5) Affidavits, a joint Document Brief filed on consent including a Notice of Intent to file Business Records which are historical and recent police occurrence reports together with copies of the Father’s criminal record history some 136 pages long. The Applicant also filed a Brief of Authorities and Factum. The Mother filed an Affidavit responding to some of the issues contained in the Society’s materials, but she is consenting to the finding and final Order sought and expressed so.

[11] At the outset of oral argument on this Motion I asked about the whereabouts of the Father’s Affidavit. It was not filed and did not appear in the Continuing Record of proceedings. I allowed the Father’s counsel to participate nonetheless, as the Father had filed an Answer in these proceedings, there was no request for adjournment, and I was mindful of the Father’s desire to participate and be heard. His two (2) page Factum makes no reference to the factual contents of whatever Affidavit was allegedly served, nor does it refer to the provisions of Rule 16 or the case authorities relating to the procedural and legal tests before the Court. His Factum then was essentially a complaint that the current social worker is biased against him, that he has supervised access pursuant to Justice Neill’s Order of March 13, 2020 pursuant to child custody/access proceedings, he is not receiving consistent or regular access to his son by the Applicant, he should be afforded an opportunity to parent as he is well capable of doing so, the Applicant’s offices where access is taking place are unclean, and that “the matter must go to trial so that all facts of the case can be properly decided” (his wording). The specific facts and issues that give rise to these claims were not addressed or itemized. No claim is made that any credibility findings are crucial. In conclusion, the Father’s Factum was largely unhelpful and unresponsive to the issues on hand.

[12] To be entirely fair, I also reviewed the Father’s Answer and Plan of Care filed. I would note that the Father’s Answer is not evidence, it is a pleading; merely a factual assertion, it is not given under oath or solemn affirmation. Nonetheless, to fully understand the Father’s perspective, I took this additional step. His Answer asserts that the Mother smashed her hand when she punched the Father on March 2, 2020. The inference it seeks to support is that there was no assault by the Father on the Mother on that date. He acknowledges that he has been charged criminally but does not indicate the nature of the charge. His Answer is a “menu” of complaints against the Mother; she is mentally ill, doesn’t take her medications, is unstable and prone to fits of rage and violence, she has actually assaulted him; that she didn’t want J.M.C. to be born and is abusive and neglectful to him. Attached to his Answer are several grainy black and white photographs of J.M.C. asserting how his care is compromised. The photographs are difficult to decipher.

[13] I will summarize what evidence I have considered on this Motion and why:

[14] The Affidavits of A.J., sworn April 22 and May 26, 2021 detail her involvement as the assigned Family Services Worker. She has been involved since March 4, 2020 until the time of the Motion. Save and except for a short period during which she was on a medical leave, she has a long period of ongoing involvement. She began her involvement when the OPP contacted the Applicant and expressed concerns arising from the criminal charges and a non-association order between the parties. Throughout the course of her involvement, she met several times with the Mother discussing her care of J.M.C., setting up counselling and parenting services for the Mother, discussions about the Father’s complaints, the alleged assault, what the Mother described as a history of abuse by the Father and her and the fact that J.M.C. was present during the March 2, 2020 incident. She observed that J.M.C.’s head initially presented as being flat on one side, but she observed over time, that it had rounded out. Her direct observations of the Mother’s home showed it to be well maintained, no vicious dogs or drug users (this had been the subject of complaints by the Father) with, to use her words, “lots of appropriate food and toys” for the child.

[15] As of April 22, 2021, she had met with the Mother over thirteen (13) times. As for the child, A.J. observed that J.M.C. was comfortable in the mother’s care and each responded to the other’s cues. The Mother was interested in more in-home supports and a clinical support referral was made.

[16] As for the Father, A.J. deposed that from the very onset he did not want to work with her, he was not interested in discussing any concerns related to the assault charge, he denied having any history of mental health issues or child maltreatment/neglect issues with other children. I will address these issues when I address the documents filed with the joint Document Brief. Many conversations ended with the Respondent hanging up the phone on A.J. Eventually, the Father relented and reluctantly attended supervised visitation but by the summer and Fall of 2020 that arrangement continued to sour. When he refused to make eye contact or engage with A.J., a December 3rd meeting was arranged, with the Father and his lawyer. A compromise was reached that if there were parenting concerns observed during the Father’s access time, that such concerns would not be addressed during the visit itself. Make up visits were rejected. Problems continued into 2021 with the Father resisting any parenting suggestions offered by the Applicant. Alternate supervisors for access visits and a referral to the Practice Development Team were arranged.

[17] According to A.J., J.M.C. was reluctant at times to engage and play with his father and the Father did not always respond well to the child’s cues. At the same time she noted that the Father always came well prepared with toys and food. Attempts to address some of these issues were met with resistance, anger and upset. Lawsuits by the Father were threatened. Visits were terminated when the Father acted out when he was coached about choking concerns with J.M.C. During some of the visits and at other times, the Father was more interested in detailing that the Mother was associating with drug dealers, spending time with sex offenders, had vicious dogs at her house, physically harmed and neglected J.M.C. and was abusive to him. According to A.J., she followed up with the Father’s concerns and was not able to verify his allegations. As for bumps and bruises, she concluded that they were not the result of abuse or maltreatment by the Mother but rather the usual type of cut or scrape that a young child would incur. When she reported to the Father that she could not substantiate or verify his claims, he was angry and upset. At the time of the argument of the Motion, J.M.C. was attending daycare two times weekly, so his access to his Father had been modified to address his attendance.

[18] A.J. asserted that the Mother had no history of involvement with a Children’s Aid Society however the Father’s search revealed 55 occurrences as a parent/child caregiver. I have not expressly considered this evidence. No attempt was made to introduce these findings as a business record. The specific detail relating to the Father was not provided. I can make limited use of this type of evidence. Moreover, the Joint Document Brief contains court Orders related to the Father which I found not only admissible but more relevant as to his past parenting history, rather than a broad allegation that a provincial child abuse registry showed him with 55 occurrences. No explanation was provided for what this recording meant or the nature and circumstances of these “occurrences”.

[19] A.J.’s Affidavit of May 26, 2021 responds to the Father’s Affidavit, which, I repeat, was not available at the time of this Motion. It chronicles how makeup visits for the Father were made between mid-December to mid-January 2021. The Father’s Answer and Factum complained about missed visits. Correspondence exchanged with the Father details that he becomes upset at visits, cancelled his makeup visits over Christmas and allegedly screamed at a volunteer driver. Apparently, the Sunday access exchange was problematic for the Mother and Father as they were frequently contacting the OPP for assistance. This is addressed in the Joint Document Brief. The Joint Document Brief details correspondence of August 13th and November 26th, 2020 directed to the Father describing the worries and goals of the Applicant which still remain outstanding.

[20] The Affidavit of A.B. was instructive. She was the coverage worker during A.J.’s sick leave. She observed 4 access visits between the Father and J.M.C. She described that she received many complaints by the Father relating to the Mother’s care of J.M.C. both during and outside of his visits. On reviewing the complaints, they are largely what he set out in his Answer and similar to his complaints to A.J. He told A.B. that he had people “keeping an eye on the Mother”, that the community was keeping tabs on her, he could “run the plates” on anyone who visited at her residence and that her neighbours would keep watch as they were family friends. He expressed concern that the Mother was grocery shopping with another man and J.M.C. The Father told A.B. he could see what the Mother was doing as he was “connected” to her iPhone. Last, but not least, he was seeking a sale of the mother’s residence, even though this is where she resided with his son, as she was withholding some of his belongings. As for the criminal charges, he told her that the Mother had “pushed things too far” and he complained that he now had a no contact order with her. He acknowledged that he suffered from historical addiction issues with drugs and alcohol; but he claimed he could be around drugs and drink without fear of relapse. She reported that there were many positive aspects to his visits with his son, as she was supervising them. She described the Father as interactive with J.M.C., affectionate and J.M.C. would respond in kind.

[21] In conclusion, she noted that both the Mother and Father had complaints about the care the other provided to their son. The Mother complained that the Father’s sister wasn’t properly supervising his Sunday visits. There were instances where the Mother either was unwilling or refusing to provide the Father with his weekly visitation. On one occasion she refused to give J.M.C. the Cheerios that his Father had provided for him. One visit was cancelled due to poor weather conditions. The Father argued that the weather conditions were exaggerated. The Mother was reluctant at maintaining Sunday visitation. Police were contacted over the missed visitation and asked to intervene. This is verified by the occurrence reports filed.

[22] The Affidavit of K.D. chronicles her observations of the Father’s visitation with J.M.C. She noted that he expressed concerns about bruising to J.M.C. or scratches, but she did not find this to be significant or alarming. He complained that J.M.C. was smelling during visits; she did not detect any odour. She observed that the Father appeared to struggle at times with J.M.C., pulling J.M.C.’s bottle out of his mouth while he was feeding or slapping the child’s hand as he had refused to eat “puffs” one at a time. She too received complaints over the Father’s unhappiness with the Applicant and his dissatisfaction with terms and frequency of visitation.

[23] The Affidavit of M.M. who was a family service worker assisting the Mother was most instructive. She had 10 separate occasions when she observed the Mother in a caregiving role to her son. She expressed that the Mother was consistently and effectively meeting J.M.C.’s needs. She observed the child as comfortable, engaging with his mother, loving and affectionate with each other. Most significantly, the Mother sought appropriate guidance and direction from this worker when it came to the issue of her son. She also noted that the Mother could become what she described as “deregulated” by yelling and crying as a result of her concerns that she was being constantly watched and monitored by the Father.

[24] M.M. supervised some 27 hours of the Father’s visits. The Society developed what she described as a clinical access plan. She describes how the Father was refusing to meet with Society representatives and stating that he didn’t want or require any direction as a parent. Once again, she was the recipient of many complaints from him relating to the Mother’s care. Issues involved J.M.C.’s need for hydration, concerns about his eating, diaper rash (she noted that J.M.C. was teething at the time and likely the source of the rash) and slight bruising that the Father observed. Parenting programs were suggested for the Father, but he declined.

[25] These Affidavits contain direct evidence on the issue of the parents’ presenting problems, observations of their parenting with J.M.C., complaints related to each other’s care and how each parent generally responded to treatment and service suggestions and recommendations. These observations I find were balanced and fair. The Father never directly refuted the contents of these Affidavits, but I am aware that he did so when speaking with the workers. The Mother’s Affidavit of May 12, 2021 deposes that she was physically assaulted by the Father when their child was 4 months old and that he previously sexually assaulted her. She denies that anyone living on her property is a drug user or drug dealer; she asserts that the only such person is the Father. As for having a vicious dog about her premises, she “got rid of the dog that was a problem”. She expresses concern that the Father may have others watching her home and feels that the source of her upset is the Father. She acknowledges that it was inappropriate to refuse to give the Father’s bag of Cheerios to her son. She expresses concern that his Sunday visits are problematic as they are not directly supervised by the Applicant but rather the Father’s sister. She is fearful that J.M.C.’s aunt is not capable of controlling the Father’s temper; she alleges that her child returns from visits upset and crying.

[26] I was advised that the Joint Document Brief was filed on consent, and when pressed counsel said they were in agreement the documents were filed “as to the truth of their contents”.

[27] The following is a summary of what I have considered in the context of this Motion:

1. Tab 1 contains police occurrence reports “involving” the Father between 1994 and 2017. Some of their content is redacted making the reports difficult to read or comprehend. They appear to relate to allegations of threats and/or domestic disputes between the Father and some of his previous female partners. I cannot determine if they resulted in criminal convictions or not. Attempts to correlate the report to the Father’s criminal record was an impossible task. I am not inclined to act on this evidence or give it any great weight except to say that the reports seem to suggest that the Father has struggled with certain behaviours for a long time – allegations of threats, assault, harassing behaviour, drug use and suicidal attempts “appear” to be chronicled. One complaint involves inappropriate discipline of a child named B. One thing is certain – police authorities seem to be kept busy responding to various complaints involving the Father;
2. Tab 2 includes the criminal record of convictions for the Father. I am content to rely on that Record especially as it was admitted on consent and no issue taken regarding to its contents. Commencing in 1999, the Father has convictions for an array of offences including common assault, threats, mischief, criminal harassment, breaches of recognizance and probation orders. Some of those convictions resulted in jail time. Others resulted in suspended sentences with orders of probation. His most recent conviction is for uttering threats to cause death or bodily harm in 2017. I note that he is still subject to a firearms prohibition for a period of 5 years commencing in 2017;
3. Tab 3 contains police occurrence summaries for the period of March 2019 to May 2020 which reflect, at the very least, a history of conflict and discord between the Mother and Father. The Mother and Father have reached out to Police frequently whenever there is any sort of conflict between them. These contacts occurred prior to and following the allegations of criminal assault. The reports show episodes of mutual threats of suicide, complaints by the Father alleging there is drug production in the Mother’s residence (i.e. shatter), that the Mother’s motor vehicle tag is expired, complaints over access exchanges and missed visits and general complaints of child neglect including requests for wellbeing checks by authorities. The Records also reveal that the Mother sought direction as to how to arrange access with the Father as a criminal no‑contact order was in effect, she alleged a historical complaint of sexual assault following the March 2 assault and she has sought a restraining order against the Father;
4. The Case File Synopsis for the assault charge reflects that the Mother and Father were arguing over cell phone use. According to the Mother, as she was attempting to leave the room, the Father ripped the cell phone from her hand, causing damage to her righthand pinky finger. When she tried to retrieve a second cell phone, she fell to the ground, bruising her arm. When the Mother attempted to leave the premises with her child, her exit was blocked by the Father. The Mother attended at a local hospital the following day with the Father for treatment to her right hand. The Father was arrested on the scene while he was sitting in the passenger seat of the Mother’s vehicle. He had accompanied her in a vehicle to the hospital. A trial of these charges is pending;
5. Tab 4 is a photograph of a person unknown. I do not know the purpose of its admission. It also includes a photograph of a noose hanging from a tree. I do not know the purpose or circumstances of this photograph. Neither did the Applicant’s counsel. I cannot ascertain why these materials are included in the Joint Document Brief;
6. Tab 5 is correspondence between A.J. and the Mother where the Applicant lists the concerns they have related to the Father’s conduct: patterns of domestic violence, mental health and addiction issues and his neglect and maltreatment of children. I have admitted this letter solely to support what the Applicant wanted the Mother to do: attend ongoing support for domestic violence counselling and address how that issue was impacting the Mother’s parenting;
7. Tab 6, 7, 8 and 9 are court documents relating to B.M., D.O.B. August 26, 2004. The Father in this proceeding is also B.M.’s father and another female partner. An order of August 2004 ultimately resulted in B.M.’s being made a Crown Ward without access by either parent. There are Statement of Facts filed in respect of the Crown wardship order and a previous order of Society wardship. B.M.’s Mother signed the Statements, his Father was found in default. His Father was present for some of the court appearances. The Statement of Facts reflects that B.M. was apprehended from his Father’s care and a psychiatrist diagnosed the Father with serious anger management issues. The Father was released from a mental health facility and served time in jail for threats to agency workers. Continued findings of protection were based on a lack of adequate care by failing to care for, provide for, supervise or protect the child, or a pattern of neglect in caring for, providing for, supervising or protecting the child. Another finding supported a risk of emotional harm for the child. Most significant, the Statement of Facts reveal the Father and Mother were described as fighting, there were concerns related to alcohol use, domestic violence and inadequate care of the child. Similar to the matter now before the Court, there was fighting between the Father and B.M.’s Mother over access times; with B.M. shuffled back and forth between the parents. There was what is described as an unsubstantiated claim of child abuse, when the Father allegedly slapped him in the head. The historical police reports at Tab 1 describe this incident as “inappropriate discipline”;
8. Tabs 10 through 16 are court documents relating to the Father and another female partner. The Father had two other children, born February 7, 2008 and December 27, 2008, with another domestic partner. The domestic partner had 4 other children by the Father’s brother. The chronology of court documents reflects that the Father’s child of February 7, 2008 was the subject of successive orders of supervision commencing in August 2008 with a finding of protection for inadequate care (s. 37(2)(b)(i) at the time). The Father’s second child by the same domestic partner was also subject to successive supervision orders until March 9, 2010 when it was terminated. Many of these supervision orders provided for placement of the children with their Mother, but subject to terms of supervision. The Father’s access at times was only at the discretion of the Applicant. Other terms included that he attend and complete a domestic violence program through PARS (Partner Assault Program) and not to abuse alcohol or drugs. Eventually the Father moved in with the Mother and all the children in March of 2009. Presenting problems in the various Statement of Facts reflects a history of acrimonious strife and poor communication between the Father and the children’s Mother. Neither parent was to expose the children to violence or inappropriate adult situations. Other terms provided that the Father undergo unscheduled drug testing and not to abuse drugs or alcohol. In the later part of 2009, there was an allegation that domestic violence that occurred between the Father and Mother, but these were recanted and the children did not confirm the incident even though they were allegedly present. The Statements of Agreed Facts of July 14, 2009, July 28, 2009, August 18, 2009 and March 9, 2010 were agreed to by the Father. What these various Court orders and Statements reveal is that findings of protection were based on inadequate care and at times and concerns of neglect that were expressly acknowledged by the Father. All in all the documents, the previous Orders and terms of supervision to this “set” of children reveals concerns with domestic violence particularly in the children’s presence, inadequate or abusive behaviour to the children, threats to the Applicant’s staff and ongoing anger management issues by the Father. What they also reveal is that there was a period of time just prior to the termination order of 2010 where the Father appears to have settled down, completed PARS, there were no reports of violence to the CAS or ongoing complaints to the police and this behaviour justified termination of the supervision order; and
9. I would note that the court documents and Orders are a critical piece of historical evidence relating to past parenting authorized by the operation of s. 93 of the Act.

Findings and Conclusions:

[28] There is no question in my mind that this is an appropriate case for findings pursuant to the Summary Judgment provisions of the Rules. The evidence led by the Applicant is compelling and persuasive and I conclude that there is no genuine issue requiring a trial on the evidence before me and I do not find it necessary to resort to my expanded powers found in rule 16(6.1) or (6.2).

[29] The Mother is consenting to the findings and the Order sought.

[30] The Father is actually in default of filing any materials on this Motion and I have stretched the bounds of propriety in considering what I think he was trying to say through the two (2) page Factum he filed and his Answer. His materials are denials and mere allegations and do not address the real issues before the Court – is this a case for a finding of protection and what order is appropriate and in J.M.C.’s best interests?

[31] As for claims that the Applicant’s mind is made up about him, he provides no proof for that claim and the evidence suggests that his behaviour towards the Applicant justified the temporary cancellation of visits. As for suggestions that the Applicant is biased by attacking his ability as a parent, I find no evidence supporting that claim. I find that withholding a baby bottle from J.M.C. and “taunting” him while feeding him “puffs”, are just two glaring examples of his lack, at times, of good childcare. I also note that this behavior is even occurring while the visits are “supervised”. I note again, this evidence and these observations are unopposed. As for his argument that the matter must go to trial so that all of the facts of the case can be properly decided, this is a misstatement, with respect, of the law. Hryniak finds that there is no genuine issue requiring a trial when a judge is able to reach a fair and just determination on the merits. That is the case when the process (1) allows the judge to make the necessary findings of facts, (2) allows the judge to apply the law to those facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. This is precisely what has happened here. A standard of fairness on a summary judgment motion is not whether the procedure is as exhaustive as a trial or focusing on how much and what kind of evidence could be adduced at 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, the test at all times being whether a trial is required: See Hryniak at paras 50 and 56.

[32] The Father’s criminal record speaks for itself. His child protection history with his other children including previous findings of protection, successive supervision orders and the Order of Crown Wardship is unopposed. His relationship with other domestic partners has been marked with discord, conflict, allegations of assault and inappropriate discipline coupled with poor communication and strife. Historically, he has been required to attend for counselling to address anger management, learn effective parenting and deal with his history of domestic violence. Historically, he has spent time in jail for some of that same behaviour. He acknowledged many of these findings when he signed the Statement of Facts at the time of the successive supervision orders relating to the children above. Other times, he simply failed to attend at court and/or did not file any responding documents at all.

[33] He can and has shown a history of improving his behaviour, for example, when a previous supervision order was terminated in 2010. On the whole, however, his history and his current behaviour reflects without question that he needs help with his anger, his relationship with the Mother, his conflict with her and improving his parenting. He rejects the suggestion that his problems are rooted in his history and a pattern of parenting that requires change and improvement.

[34] Turning to the Mother’s behaviour, the materials reflect that she has struggled with protecting herself and her child. To be fair, the evidence reveals she is understandably frightened of the Father. On the evidence before me, I find she was assaulted by the Father or at the very least, was engaged in conflict with him while J.M.C. was present. I don’t know the reason why the Father accompanied her to the hospital for treatment. Perhaps he was still controlling her exit; perhaps she wanted him to accompany her. Whatever the reason, she has resorted to contacting the police each time she encounters conflict with the Father which is what the police occurrence reports seem to suggest and she needs assistance in arranging access and pickup/drop-off times with the Father to avoid conflict. Over the last several months, the Father has continued to complain about her caretaking of J.M.C. and his threats include watching her whereabouts, forcing a sale of the home she lives in and keeping an eye out for her. His complaints “unnerve” her at times. She cannot unilaterally prohibit the Father’s access and she must comply with the terms of a reasonable court order for visitation if it is in the child’s best interests. The difference between the Mother and the Father is that she recognizes that she needs help from the Applicant and she is willing to learn and improve herself and assist her child.

Accordingly, then I hereby Order the following:

[35] On the finding of protection sought by the Applicant, I am satisfied that a finding shall issue pursuant to s. 74(2)(b)(i) only of the Act. The evidence reveals that J.M.C. may be at risk of suffering physical harm as a result of the conflict between the Mother and Father and the ongoing strife in their relationship and the impact that strife could have on J.M.C. and his physical wellbeing should he be present in any capacity. J.M.C. does not need to be exposed to constant bickering and calls to police authorities or be privy to physical conflict between the parties or be part of them. The other risk under s. 74(2)(b)(i) that J.M.C. may be exposed to is the failure that he be adequately cared for, supervised or protected by either his Mother or Father as a result of their conflict and the incessant complaints raised by his Father and their impact on his Mother and her caretaking. The Father has repeatedly charged that the Mother’s care is inadequate (i.e. associates with drug dealers, spends time with sex offenders, vicious dogs, physically harms and neglects J.M.C. with insufficient hydration, diaper rash and bumps and bruises etc.,). None of these complaints have borne fruit. The evidence reveals that the child has shown some stress during visitation with his Father as his focus seems to be complaining about the Mother and the Mother has yelled and cried as a result of the stress she feels raising J.M.C. in what is best described as a fishbowl.

[36] At this point, there is no evidence to find that J.M.C. is at risk of neglect as his Mother’s care and her participation in the Applicant’s programming is described as more than acceptable. She has also been subject to a temporary supervision order for several months which likely has protected J.M.C.’s interests.

[37] As for s. 101(2) and (3) of the Act, the evidence reveals that attempts were made to assist the Mother and Father prior to intervention through the use of voluntary services and Orders under the Children’s Law Reform Act, developing treatment plans and offering suggestions throughout supervised terms of access These measures were not adequate given the nature and extent of the conflict between the parties, the ongoing strife between them, their lack of effective communication, what appears to be relentless complaining about the Mother’s care and the risk of future conflict over custody and visitation arrangements which would directly impact J.M.C.

[38] As for s. 101(1)1., I am satisfied that an Order placing J.M.C. in the care of his Mother for six (6) months subject to supervision on the terms set out in paragraphs 2 (a ‑ h) of the Notice of Motion of April 30, 2021, is appropriate. I am also satisfied that the Plan of Care at Tab 4 of the Record is acceptable.

[39] Section 101(7) allows that a supervision order may include reasonable terms and conditions on the Father. I am satisfied the supervision terms set out in paragraph 2 (i ‑ n) of the Notice of Motion are appropriate. Hopefully with these findings he will find the ability and strength to start working more closely with the Applicant and address his anger management and incessant and unjustified complaints regarding the Mother.

[40] Pursuant to s. 101 and 104 of the Act, the Applicant seeks an order of access to the Father on terms in the discretion of the Applicant. Such an order on the face of it is not appropriate as it amounts to an unlawful delegation of the Court’s power and usurps the Court’s fundamental obligation to grant such relief. See J.S.R. v. The Children’s Aid Society of Ottawa, 2021 ONSC 630 (Ont. Div. Ct.). What I propose to do is provide for the continuation of the Father’s access as I understand it currently is taking place, but on terms and conditions that allow the Applicant to manage the supervision of the visits and approve the supervisor. In that respect, I refer to the supervision by J.M.C.’s aunt and what appears to have been some unwillingness to allow adequate monitoring of those visits. Success on the Father’s part during visitation will directly impact any move to unsupervised visits.

(a) The Father shall have a one-time weekly visit for a period of three (3) hours supervised by a person approved of by the Applicant and not to conflict with J.M.C.’s daycare attendance; (b) The Father shall have either a Saturday or Sunday visit each week for a period of at least three (3) hours supervised by a person approved of by the Applicant; (c) During the Father’s access visits he shall cooperate with the Applicant and use his best efforts to comply with the Applicant’s directions and recommendations. He shall refrain from making complaints or disparaging remarks about the Mother during his visits; (d) The Father and the Applicant shall be at liberty to arrange other reasonable access times provided they remain supervised.

Dated at Windsor this 2nd day of July, 2021.

Justice Sharman S. Bondy