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: 2021·10·29 Court File No.: Woodstock C89/18

BETWEEN:

Children’s Aid Society of Oxford County Applicant

— AND —

V.B. J.P. T.K. Respondents

Before: Justice S. E. J. Paull

Summary Judgment Motion Heard on: October 14, 2021 Reasons for Judgment released on: October 29, 2021

Counsel: Jane Hegney, counsel for the applicant James Battin, counsel for J.P. V.B., on her own behalf Mark Maurer, OCL counsel for the children

PAULL J.:

[1] The Society has brought a motion pursuant to rule 16 of the Family Law Rules seeking a finding that the children continue to be in need of protection pursuant to section 74(2)(bi-ii) of the CYFSA. It seeks the disposition of a 102(1) custody order in favour of the maternal grandmother, T.K. with access to the parents.

[2] The only issue in dispute is whether the children’s continued placement with the maternal grandmother should be pursuant to a further supervision order or pursuant to a section 102(1) custody order.

[3] T.K. supports a s.102(1) order while J.P., the children’s father, seeks a further 6-month supervision order to ensure his access continues and that T.K. is providing appropriate care for the children. V.B., the children’s mother, was noted in default on December 15, 2020, however advised the court at that time that she did not oppose the children remaining with T.K., with access to her.

[4] Counsel for the children supports the Society’s motion and indicates that his clients’ views and preferences are to remain with their grandmother, where they have been since the fall of 2018, and to visit their parents.

[5] In addition to the submissions of the parties I have reviewed the affidavits at tabs 12-23, along with the applicant’s Document Brief and Book of Authorities.

The Law

[6] The Society brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.

[7] The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[8] Pursuant to subrule 16 (4.1) the responding party 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. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. Children’s Aid Society of Toronto v. K.T. 2000 20578 (ON CJ), 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

[9] Although subrule 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. Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80.

[10] Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[11] Subrule 16 (6.1) provides that in determining if there is no 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 only exercised at trial:

1. Weighing the evidence
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[12] Pursuant to subrule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[13] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

[14] Hyrniak sets out that the judge must first determine if 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) If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact finding powers to decide if a trial is required.

[15] 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. This will be the case when the 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) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak - paragraph 49). As the Supreme Court stated, at para. 50 of Hryniak, “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.” (Kawartha, paragraph 63).

[16] As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits (Kawartha, paragraph 76).

[17] 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 exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (Kawartha, paragraph 1 of paragraph 80 and paragraph 64).

[18] 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. (Kawartha, paragraph 3 of paragraph 80).

[19] The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. 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 it is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is a foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant”. (Kawartha, paragraph 72).

[20] In C.A.S. v. M.W. and M.S., 2020 ONSC 1847, Madsen J. succinctly summarizes the law on status review applications and the treatment of agreed statement of facts as follows:

1. On a status review, the task of the court is to assess what, if anything, has changed since the making of the prior final order. A status review hearing is not a re-hearing of the original protection application: see para. 51.
2. A consent order that ends an action is of the same effect as a judgment of a court following a trial or hearing, for the purpose of the doctrine of res judicata: see para. 52.
3. Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders: see para. 53.
4. Section 114 of the CYFSA provides that where an application is made for review of a child’s status under section 113, the court may, in the child’s best interests: a. vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order; b. order that the original order terminate on a specified future date; c. make a further order or orders under section 101; or d. make an order under section 102: see para. 73.
5. The test on a status review application is as follows: a. the original order is presumed to be correct. This is not a rehearing of the previous order that was made; b. the court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection; c. the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and d. secondly, the court must consider the best interests of the child. This analysis must be conducted from the child’s perspective: see para. 74.

[21] The examination to be undertaken involves two-stages, as confirmed by the Ontario Court of Appeal in Children’s Aid Society of Oxford v. W.T.C. 2013 ONCA 491:

a. First, determine whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection; b. If it has been determined that the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the child.

Background and Evidence

[22] There are two children subject to this proceeding, Z.B-P. born […], 2007 (male), and S.B. born ]…], 2013 (male). V.B. is the children’s mother, and J.P. is the children’s father.

[23] T.K. is the children’s paternal grandmother and she has had the children in her care since February 2018, at first on a voluntary basis, and then pursuant to various temporary and final supervision orders.

Litigation History

[24] The original Protection Application was resolved by final order dated October 30, 2018 which was made on consent for findings in need of protection and a six-month supervision order with the children placed with T.K.. A Statement of Agreed Facts was executed by both parents and outlines the following:

1. The parents have an extensive history of involvement with protection services related to domestic violence, substance abuse, neglect, lack of supervision, mental health issues, and J.P.’s extensive criminal history.
2. The CAS had been working voluntarily with the parents for several years before commencing court proceedings. The children had been with J.P. and his then partner. The children appeared to be doing well and on April 16, 2016 the parents agreed to joint custody with primary residence with J.P., with regular access to V.B..
3. In February 2018 J.P. voluntarily placed the children with his mother, as he had separated from his partner and lost his housing.
4. There were concerns with drug use by J.P. and that he faced numerous criminal charges, including drug related charges. J.P. denied drug use but refused to sign consents to confirm his involvement with the methadone clinic and refused to participate in drug testing.
5. There were no protection concerns regarding T.K. and she consented to the terms of placement.
6. The supervision order and the Plan of Care included terms that J.P. was to sign all consents, participate in anger management and addictions counselling, participate in drug screening, and to cooperate with services to address the developmental and behavioural issues of the children.

[25] A Status Review Application (SRA) was brought and resolved by a final order dated June 5, 2019 which found that the children continued to be in need of protection and continued their placement with T.K. pursuant to a further six-month supervision order. V.B. consented to the order, with J.P. being noted in default. However, J.P. was present in court on June 5, 2019 with counsel and indicated his consent to the further supervision order with T.K.

[26] The Statement of Agreed Facts filed in support of that order outlines the following circumstances since the previous order of October 30, 2018:

1. The children were settled and doing well with T.K., with no protection concerns noted. She was appropriately addressing the children’s behavioural issues and was accessing the necessary supports.
2. J.P. had little contact with the Society during the period of supervision and cancelled meetings or refused to meet with the worker. As a result, there was no information on J.P.’s circumstances including whether he had participated in the programming ordered.
3. J.P. had access with the children supervised by T.K., although his attendance was inconsistent at times and he went for several weeks without contact. Both children struggled emotionally as a result of J.P.’s inconsistency in attending access.
4. During this period V.B. worked with the Society and attended programming and had expanded access. However the access expansion was put on hold as a result of disclosures by Z.B-P. that their mother was permitting contact with J.P. during her access time, that alcohol was consumed, and that J.P. had said inappropriate things to him including to lie about him being there and asking if he would like “his Gramma [T.K.]” to die.
5. In March 2019 J.P. faced criminal charges including theft under and possession of a controlled substance.
6. The supervision order and the Plan of Care included terms that J.P. was to sign all consents, participate in anger management and addictions counselling, and participate in drug screening.

Current SRA

[27] The current SRA was first returnable November 26, 2019 and sought a six-month supervision order with the children placed in the care of V.B. on the basis of the applicant’s view that she had completed appropriate programming and was having alternate weekend access without issue. During this supervision period and up to the first return date J.P. had not had any contact with the worker and his contact with the children had remained sporadic and supervised by T.K.. He did not provide confirmation that he attended any of the programming ordered.

[28] J.P. filed an answer supporting that the children remain with T.K. as opposed to being placed with V.B.

[29] The Society amended the SRA in March 2020 to seek further supervision with T.K. as a result of disclosures by the children that their mother was continuing to consume alcohol. The children indicated that they wished to remain with T.K. and that they were afraid of their mother’s partner at the time.

[30] T.K. was added as a party to this proceeding on December 17, 2019 and filed an answer seeking a s.102.1 custody order with access to the parents at her discretion.

[31] V.B. did not file an answer to the original SRA or the Amended SRA and was noted in default on December 15, 2020.

[32] Since the last order of June 5, 2019 T.K. continued to supervise J.P.’s access. However, on September 11, 2019 T.K. informed the worker that she was no longer willing to permit J.P. in her home because he was rude and belligerent. J.P. had no contact with the worker about arranging visits and he appears to have had no access from September to December 2019.

[33] At the end of January 2020 J.P. began having weekly access at the Society’s supervised access centre for two hours. He attended on January 27, February 3 and 10, 2020 and then he either cancelled or was a no-show for visits scheduled for February 24, March 2, and March 9, 2020. As a result of the pandemic the Society’s in person supervised access program was suspended from mid-March to July 2020. After that the Society only had limited capacity to provide supervised access and the Merrymount Access Centre was not offering services.

[34] The worker deposes to repeatedly requesting from J.P. names of people who could assist with facilitating access, but he only provided one person who could not be approved due to her own struggles and involvement with the Society. J.P. denied providing any names.

[35] J.P. was incarcerated from November 2020 to February 2021 and did not resume access until April 2021.

[36] On December 15, 2020 the court ordered J.P. to provide the applicant a copy of his complete criminal record and an outline of his outstanding criminal charges, as well as to provide details of his Plan of Care. Counsel for J.P. provided a short letter dated January 15, 2021 confirming that J.P. was incarcerated but wished to resume access upon his release and that his long-term plan was still to have the children placed in his care. He provided a criminal record confirming his lengthy history of convictions including for possession of a Schedule 1 substance in December 2018 and two convictions for theft under in May 2019. However, the criminal record he provided appears to be dated November 26, 2019 and was not up-to-date and complete as ordered.

[37] Following his release from custody and starting in April 2021 he was scheduled to have supervised access at the CAS for one visit of two hours per week, however his attendance remained highly inconsistent. He attended access scheduled on April 13 and 27th, and May 4 and May 11, 2021. As a result of his non-attendance it was put on hold until June 8, 2021 following a telephone meeting between J.P. and the worker. Overall, J.P. cancelled or was a no-show for visits on April 20, May 18, June 8, 15, and 22, and July 13 and 20, 2021. At this point the access was once again put on hold as a result of three missed visits in a row until there had been a meeting between the worker and J.P.. Access was scheduled to resume on August 3, 2021 however J.P. failed to attend on that date, and on August 10, 2021 J.P. attended late and after the access visit had already been cancelled. The access visit scheduled for August 17 and 24, 2021 were cancelled because the children were unwell.

[38] As a result, after May 11, 2021 J.P. had no contact with the children until August 31, 2021.

[39] At the access visit on August 31, 2021 the supervisor observed J.P. acknowledge to his children his addiction issue and poor choices, and that these had impacted his ability to consistently attend visits. J.P. stated his desire to attend a drug rehabilitation program to help him. The supervisor felt that he did well talking to the children about these difficult issues and the children appeared content with the exchange.

[40] The access supervisors all depose that the children were nervous and apprehensive after gaps in the access as a result of their father’s non-attendance. However, the observations of all the access supervisors could be summarized as generally positive with the children being more comfortable as the access proceeded. At various times J.P. took responsibility for his missed visits and generally engaged appropriately, and the children appeared to enjoy the visits when they became more comfortable.

[41] The Society investigated an incident on September 26, 2021 when Z.B-P. left his grandmother’s home and went to V.B.’s home. He had started taking Prozac that day, which was a new medication for him, and he needed a high calorie diet. Z.B-P. was angry with T.K. about the food choices and quantity and left the home and went to his mother’s where he alleged that T.K. had thrown a plate which nearly hit him. He also alleged that T.K. had put her hands on his neck during a previous incident.

[42] T.K. denied this and spoke to the pediatrician about her observations of Z.B-P.’s unusual behaviours which started around the time he began taking Prozac. He recommended that she take Z.B-P. to the hospital immediately that evening to be assessed. The Society directed T.K. to pick up Z.B-P. from his mother’s home which she did without incident and took Z.B-P. to the hospital. He was assessed and released later that night.

[43] On September 8, 2021 worker, Kristie Cooper interviewed Z.B-P. privately about what he had stated at his mother’s home about his grandmother. Z.B-P. indicated he did not remember much and that everything that day was fuzzy. He confirmed that he felt safe with his grandmother and has no concerns with her, which was what he had always indicated to the worker previously. No protection concerns were verified.

[44] T.K. deposed an affidavit confirming that she receives ODSP and is financially able to support the children. She has arranged for both children to see a pediatrician, Dr. Tithecott. Z.B-P. has been diagnosed with ADHD and fetal alcohol syndrome, and S.B. has been diagnosed with ODD, however there are likely other issues which have yet to be formally diagnosed. She regularly engages with the children’s school and she attends counselling at Wellkin in Woodstock to get support working on parenting strategies. She has a plan for the children to attend also, however they will only be able to receive services from Wellkin when the court proceeding is complete.

[45] The Society has no protection concerns with T.K. and supports the children remaining at her care pursuant to a final section 102.1 custody order. V.B. continues to have regular access supervised by T.K., and she and T.K. continue to make these arrangements between them with the goal of moving towards a more regularized schedule.

[46] J.P. continues to have supervised access at CAS, and the applicant and T.K. support an order that his parenting time remain supervised and transition to Merrymount Access Centre if the custody order in favour of T.K. is granted.

[47] J.P. filed a responding affidavit indicating that he supported further Society supervision with the children remaining with T.K.. He feels that further supervision is required to ensure the children are appropriately cared for by T.K., and to ensure that his access is not unilaterally curtailed by her. His evidence included the following:

1. He stated he had participated in programming but did not indicate when or provide the particulars or independent confirmation.
2. In September 2019 he felt T.K. unfairly terminated and restricted his contact with the children by no longer allowing him in her home, and that she was “scamming” the Society by behaving appropriately when workers were present but was verbally abusive to the children when they were not.
3. Despite being ordered to do so, he acknowledged not signing consents to release information because he did not trust the Society worker.
4. He did not dispute the visits he missed and stated that he was attempting to attend consistently. He had various difficulties including no transportation, and no cell phone or no time on his cell phone. He felt the visits were unfairly cancelled by the CAS even when he was only a few minutes late, or when he had difficulty contacting the worker.
5. He acknowledged he was released from custody on February 5, 2021 after pleading guilty to two counts of failure to comply, theft under X3, and dangerous driving.
6. He acknowledged a struggle with “prescription medication” and that he needed to go into a rehabilitation program.
7. He felt that T.K. was not “child focused” and was abusive and not nurturing to him and his siblings growing up, including not ensuring that appropriate food was available. He is concerned that S.B. and Z.B-P. will be likewise abused.

[48] In reply T.K. denied J.P.’s allegations and states that she will continue to support the children’s relationship with both parents, and that J.P.’s relationship and time with the children will only improve if he is able to consistently attend and follow through with engaging in a drug rehabilitation program.

[49] OCL counsel, Mr. Maurer, supports the position of the Society and T.K. that there is no genuine issue for trial and that the best interests of the children support that they remain in the final custody of T.K. with access to the parents as arranged between the parties.

[50] Mr. Maurer reported his client’s views and preferences are that they wish to remain in the care of their grandmother and that they view her as protective. Both children enjoy seeing their parents and wish to continue to do so, although Z.B-P. is angry at times about his father’s non-attendance and wants his dad to address his drug issues. Further, Z.B-P. feels no need for the continued involvement of the CAS. He trusts his grandmother, feel safe with her, and is confident she will continue to support him seeing his parents.

[51] S.B.’s views and preferences were similar, and he expressed that he likes the arrangements of when he sees his mother and appreciates his grandmother being present when he does.

[52] With respect to the recent investigation following September 26, 2021 and Z.B-P.’s comments about his grandmother at the time, I am not of the view that these accurately reflect the circumstances of what happened on that date, or how he feels about his grandmother for the following reasons:

1. When interviewed privately two days later he did not recall what he had said as the day was “fuzzy”. He had just started a new medication that day which his grandmother observed impacted his behaviour negatively. In the subsequent interview he did not repeat or express any concerns with his grandmother and stated that he felt safe with her.
2. The Society has been involved for several years and workers have met with Z.B-P. and S.B. consistently over that time, and both boys have consistently expressed feeling safe with their grandmother.
3. OCL counsel submitted the same views and preferences that both children feel safe with their grandmother and wish to remain there.
4. Despite its lengthy involvement, the Society has never verified any protection concerns with T.K..

[53] I find that the statements of Z.B-P. made about his grandmother on September 26, 2021 while at his mother’s home are not a reliable or accurate description of the circumstances on that occasion.

[54] I have not considered the other hearsay statements in the affidavit evidence filed on behalf of the parties as the case law is now settled that evidence on summary judgement motions should only be of a standard that would be admissible at trial.

[55] With respect to J.P.’s allegations about T.K.’s inappropriate care of him and his siblings growing up, and the risk that this presents to Z.B-P. and S.B., I do not find these allegations credible for the following reasons:

1. J.P. voluntarily placed the children in T.K.’s care in February 2018.
2. J.P. executed the Statement of Agreed Facts dated October 30, 2018 which placed the children with T.K. pursuant to a supervision order. He raised no issues in his answer filed at that time or in the statement of facts regarding her ability to care for the children.
3. J.P. did not raise any concerns with T.K. when the further supervision order was granted on June 5, 2019. While he was noted in default and had not signed the Statement of Agreed Facts filed, he was present with counsel in court and consented to the continued placement with T.K.. The Statement of Agreed Facts outlines that J.P. had objected to the proposed change of placement to V.B. as he felt that the children were doing well in his mother’s care.
4. The Society has never verified any protection concerns with T.K., and during the workers’ home visits which occurred approximately monthly over the last several years no concerns have been noted, and the children have never expressed any fear or concern with residing there.
5. Despite his stated concerns J.P. continues to support the children’s placement with her as he has done since 2018.

[56] In all the circumstances his allegations that T.K. presents a risk to the children which justifies further Society supervision are wholly without foundation or corroboration. They were raised on the eve of a summary judgment motion despite several years of Society involvement and are contrary to the positions he has consistently taken in this matter. I do not find them credible in the circumstances.

[57] The findings the court is able to make based on the conflicting evidence, the acknowledgements in the parties’ evidence, and the uncontested evidence can be summarized as follows:

1. Both parents have lengthy protection histories for domestic violence, substance abuse, and J.P. continues to have significant involvement in the criminal justice system.
2. J.P. offered no independent evidence that he has engaged in any programming to address his addiction issues. This is despite final supervision orders requiring that he do so.
3. Despite being ordered to do so, J.P. has consistently refused to provide consents to permit the Society to verify his involvement with community supports and the criminal justice system.
4. J.P. has a very lengthy criminal record including numerous entries since he voluntarily placed the children with T.K. in 2018, and he did not comply with the court’s order to provide a complete criminal record.
5. J.P. has a significant substance abuse issue which he has not addressed through programming including a drug rehabilitation program.
6. When the children were attending access with V.B., she exposed them to her continued alcohol use and permitted J.P. to have contact. The children expressed fear and concern for this.
7. Neither J.P. nor V.B. have addressed the protection concerns that have previously been found and both acknowledge that they are not in a position to provide primary care for the children. Neither disputed that the children are in continued need of protection or that they remain with T.K..
8. J.P. has continued for several years to be highly inconsistent in attending his access resulting in significant gaps in his contact and emotional upset for the children. His access has remained supervised.
9. V.B. has had periods of inconsistency with access to the children, but since April 2021 has been more consistent in attending. V.B. and T.K. work out the access arrangements between them which are currently outside of T.K.’s home and in her presence, which is consistent with the children’s views and preferences.
10. S.B. and Z.B-P. wish to remain with their grandmother and view her as protective. They enjoy seeing their parents and wish to continue seeing them as they currently are.
11. There are no protection concerns with T.K., and she has consistently acted appropriately and protectively of the children and engaged the necessary supports for them. The children are under the care of a pediatrician and T.K. has accessed supports for herself through Wellkin and plans to have the children attend also when this proceeding is completed. While there is a CAS protection order in place the children are not able to access services from Wellkin.

Analysis

[58] I have considered that I should exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants. In this case the state has taken intrusive measures into this family and removed the children from their parent’s care.

[59] I find that it is in the interest of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate the dispute.

[60] I find that I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility.

[61] I find that the evidentiary record is sufficiently comprehensive on all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a trial. Cross-examination of witnesses would add little, if any value to the court’s analysis. Many of the material facts of this case have either not been disputed or are the subject of admissions in the respondent’s affidavit noted above.

[62] Given the length of time this proceeding has been outstanding, I find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.

[63] I find that the Society has established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought, and that the responding parties have not met their onus of establishing that there is a genuine issue requiring a trial on any issue.

[64] I find that if this matter proceeded to trial there is “no realistic possibility of an outcome other than that sought by the applicant”.

[65] I reach these conclusions for the reasons that follow.

Findings

[66] The Society is seeking a finding that the children continue to be at risk of physical harm pursuant to section 74(2)(bi-ii).

[67] As the court is being asked to make orders regarding both finding and disposition, in accordance with section 93(2) of the CYFSA, it is important that the court only consider evidence with respect to the finding and not the disposition at the first stage of the summary judgment motion.

[68] Clause 74 (2) (b) involves a risk of physical harm to the child. This must be proved on a balance of probabilities. The risk is that the child is likely to suffer physical harm. “Likely” to suffer has the implied connotation of “more probable than not”. There are three separate circumstances which may qualify for a finding on (b) grounds. The risk may be a likelihood that:

(a) the physical harm is inflicted by the person having charge of the child; or (b) the physical harm is as a result of the failure of the person having charge in adequately caring for, providing for, supervising or protecting the child; or (c) the physical harm is a result of a pattern of neglect by the person having charge in caring for, providing for, supervising, or protecting the child.

[69] The risk of harm must be real and likely, not speculative: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., 2000 21157 (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[70] A child may be at risk even if the conduct is not directed specifically towards that child: Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.), 1995 6216 (ON C.J.).

[71] The court writes in paragraph 112 of Children’s Aid Society of Simcoe County v. T.W., [2012] O.J. No. 2866 (SCJ):

112 There is a substantial body of jurisprudence that stands for the proposition that where a parent is abusing drugs or alcohol, the child is at risk: Lennox and Addington Children's Family and Services v. S.W., 2010 ONSC 2585, [2010] O.J. No. 1862 at paras. 6, 13-15, 22, 47-51, 58-62, 106; Children's Aid Society of Ottawa v. M.C., [2003] O.J. No. 6307, 2003 67754 (Ont. S.C.J.) at paras. 22-24, 31, 34; Children’s Aid Society of Waterloo Region v. F.(S.J.M.), [1994] O.J. No. 955, 1994 4424 (Ont. S.C.J.) at paras. 12-13; Children's Aid Society of London and Middlesex v. S.M., [2000] O.J. No. 2064(S.C.J.); Children's Aid Society of Durham v. M.F., [2000] O.J. No. 4007 (S.C.J.); Children's Aid Society of Hamilton v. L.V., [2009] O.J. No. 1468 (S.C.J.); Children's Aid Society of Owen Sound v. A.L., [2008] O.J. No. 5133 (Ct. J.); Children's Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 at paras. 28-32; Frontenac Children's Aid Society v. S.A.E., [2001] O.J. No. 5487 (S.C.J.) at paras. 3, 23, 27, 29. As Perkins J. stated in Children's Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 (S.C.J.) at para. 30:

The father's objection to the trial judge's taking judicial notice of certain facts surrounding drug addiction is not well founded. The substantial impairment of a person's parenting abilities caused by cocaine, to the point of obliviousness and unconsciousness, and the resulting risks to children in the parent's care, are facts commonly understood by reasonable people, and all the more by judges who hear child protection cases. That there is a serious risk of relapse among people who have been regular users of narcotics is similarly well known. We are long past having to prove these basic facts in each case.

[72] With respect to the case before the court, neither parent disputes the continued finding. The evidentiary record clearly establishes that the children remain in need of protection related primarily to the parents’ substance use and instability. The impact of J.P.’s drug use and lifestyle choices, which have consistently resulted in involvement with the criminal justice system, clearly pose a risk of harm to the children. These risks have been compounded by the parents’ failure to fully acknowledge and address the issues in a proactive manner.

[73] These concerns have been long-standing and there is no evidence that either parent is engaging in any programming to assist them.

[74] On the basis of the foregoing the applicant has satisfied the onus on a balance of probabilities that the children are at risk of physical harm, and that an order is required for their future protection.

Disposition

[75] For the following additional reasons the applicant has satisfied the burden of establishing that the least intrusive order consistent with the protection and best interests of the children is that they remain with their grandmother on the basis of a s.102(1) custody order, with access to the parents on terms.

[76] Sections 101 and 102 of the CYFSA provide that 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:

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;
2. that the child be placed in interim Society care and custody for a specified period not exceeding 12 months;
3. that the child be placed in extended Society care until the order is terminated under section 116 or expires under section 123;
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; or,
5. that one or more persons be granted custody of the child, with the consent of the person or persons.

[77] Sections 101(2), 101(3) and 101(4) of the CYFSA require the court to consider additional factors when determining the issue of placement. These factors include whether there are any less disruptive alternatives such as community or extended family placements. The court must also consider what efforts the Society has made to assist the child before intervention.

[78] The court’s decision must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations.

[79] The court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of children.

[80] The governing principle when considering the placement of a child is the “best interests of the child”. The factors to be considered in determining best interests of a child are contained in section 74(3) of the Act, which provides as follows:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

a. consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; b. in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and c. consider any other circumstance of the case that the person considers relevant, including, i. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, ii. the child’s physical, mental and emotional level of development, iii. the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, iv. the child’s cultural and linguistic heritage, v. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, vi. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, viii. the merits of a plan for the child’s care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, ix. the effects on the child of delay in the disposition of the case, x. the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and xi. the degree of risk, if any, that justified the finding that the child is in need of protection.

[81] The Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act which is to promote the best interests, protection and well-being of children. Under section 101(2) of the Act a court is required before making a disposition to consider what efforts the Society or other agency has made to assist the child before making an order that would remove a child from a parent’s care.

[82] The evidence in this case sets out significant efforts to support the parents both before and after the Society’s intervention by way of its original Protection Application, particularly in terms of working with the family prior to intervention to mitigate the concerns on a voluntary basis and by continuing to make recommendations and referrals for supports for the parents to address the particular concerns. Since intervention the applicant has continued in its efforts to engage the parents. The parents have largely resisted these efforts, with J.P. in particular not maintaining consistent contact with the worker throughout the applicant’s involvement.

[83] On the evidence before the court, a further supervision order is not required. I find that a section 102.1 custody order in favour of T.K. is the least intrusive order in the circumstances for the following reasons.

[84] Despite J.P.’s allegations, there have been no protection concerns with T.K. since the children’s placement with her in 2018, and the evidence establishes that she continues to provide them with appropriate care, and to engage the necessary supports. There is no credible basis to find that continued supervision is required to monitor the children’s placement and T.K.’s care.

[85] I am also of the view that further supervision is not required to ensure that J.P.’s access will continue.

[86] Despite J.P.’s concerns, I am satisfied that T.K. will continue to facilitate contact between the children and the parents. There is no evidence that she has not cooperated with the Society’s scheduling for J.P.’s supervised access or that she has not consistently made the children available. Rather, it is J.P.’s non-attendance that is overwhelmingly responsible for his lack of consistent contact with the children.

[87] V.B. has begun attending access consistently since April 2021, and she and T.K. appear to have the ability to work out arrangements between them. Both V.B. and T.K. indicated that they would attend mediation if, going forward, they were not able to work out the access issues on their own.

[88] The court has also taken into consideration the children’s views and wishes, given due weight in accordance with the children’s age and maturity pursuant to section 74(3) of the Act. Mr. Maurer reports that the children have consistently expressed a desire to remain with their grandmother, and at this time to maintain the supervised contact they have with their parents.

[89] The children’s views must be considered in context based on the circumstances of the continuing risk that the court has found exists. On that basis their views and preferences are not unreasonable and ought to be given significant.

[90] In Miller v. McMaster, 2005 CarswellNS 420 (N.S.S.C.) the court stated that supervised access is generally not a long-term solution to access problems but is appropriate in specific situations, some of which include the following:

a) Where the child requires protection from physical, sexual or emotional abuse; b) Where the child is being introduced or reintroduced into the life of a parent after a significant absence; c) Where there are substance abuse issues; or d) Where there are clinical issues involving the access parent.

[91] In all situations where supervised access is ordered, the hope and expectation is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve. Izyuk v Bilousov, 2015 ONSC 3684.

[92] Supervised access is usually a temporary arrangement. However, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. Tuttle v. Tuttle, 2014 ONSC 5011.

[93] The best interests of the children support that the parents’ access remain supervised given the views and preferences of the children and the lack of demonstrable progress by the parents in addressing the continuing protection concerns.

[94] As previously noted the children enjoy and want to spend time with their mother. V.B. is attending consistently now, she does not oppose the children remaining in the custody of T.K., and she and T.K. have been able to work out access arrangements which consider the children’s views and preferences.

[95] With respect to J.P. I agree with his counsel’s candid comments that he needs to “step up and be more consistent” in attending access. I also agree that despite J.P.’s personal challenges, all the access supervisors generally observed that when he does attend he is able to engage appropriately with the children and that they enjoy and want to spend time with him.

[96] There is no “quick fix” for the serious issues J.P. needs to address given the extent and long-standing nature of the protection concerns, particularly his drug use. He has made little to no real progress in addressing these issues since 2018 and has continued to accumulate criminal convictions during successive supervision orders with the children out of his care.

[97] I have no basis to conclude that a further period of supervision holds anything different. J.P. has expressed a desire to attend a drug rehabilitation program, and hopefully he will follow through with this. I agree with T.K. that if he does that and starts attending access consistently, he will likely be able to achieve more liberal and unsupervised parenting time.

[98] Meanwhile the children continue to thrive in the care of T.K.. The CAS has no protection concerns with her, and the children wish to remain there while maintaining contact with their parents. The children should not remain in litigation limbo any longer, and some degree of finality to this protection proceeding is in their best interests.

[99] Overall, the best interests of the children overwhelmingly support a final order for s.102.1 care and custody in favour of T.K. with access to the parents.

[100] The applicant seeks an order for access to the parents at the discretion of T.K.. While some degree of discretion is appropriate to give the parties the flexibility to modify the arrangements as circumstances warrant, it is also appropriate and in the children’s best interests for the court to impose some parameters and expectations for the parents’ access.

[101] As previously noted, T.K. and V.B. have been making arrangements between themselves, and have both agreed to attend mediation if they need assistance going forward. Despite their current level of cooperation, the following parameters for V.B.’s access would be in the children’s best interest:

1. Access by V.B. to the children as agreed between V.B. and T.K., or otherwise at the discretion of T.K. subject to the following: a. In person access to occur a minimum of once a week, and V.B. shall be permitted to contact the children at all reasonable times by phone. b. T.K. to ensure that V.B. always has up-to-date contact information for her and the children. c. V.B. shall ensure that J.P. has no contact with the children during her access times. d. V.B. shall not consume alcohol/drugs 12 hours prior to or during her access with the children. e. V.B. and T.K. shall communicate and work together, attending mediation if necessary, to make appropriate changes in the access arrangements. f. The parties shall consider the reasonable views and preferences of the children when making access arrangements.

[102] With respect to J.P. the circumstances are different. While T.K. is agreeable to facilitate his access, it is not appropriate that she supervise it. J.P. and T.K. need to rebuild a trusting relationship if possible, which will likely be more difficult given J.P.’s recent unfounded allegations against her.

[103] In the meantime, it is appropriate that J.P.’s access remain supervised and at the discretion of T.K. as to the frequency, duration, and need for supervision subject to the following minimum parameters:

1. J.P. shall have access supervised at the Merrymount Access Centre once per week for two hours, and T.K. shall cooperate in making these arrangements.
2. If J.P. misses five supervised access visits in a row at Merrymount, or Merrymount otherwise suspends access due to his non-attendance, his access at Merrymount shall be terminated pending further order of the court, or pending an agreement between T.K. and J.P..
3. J.P. shall not attend the home of T.K. unless invited to do so, and shall not consume alcohol/drugs 12 hours prior to or during his access times.
4. If J.P. seeks to review this order he shall file, with his Motion to Change, the complete access notes from Merrymount, an up-to-date and complete criminal record dated no more than 30 days before when the Motion to Change is issued, and independent confirmation of any substance use or other programming.
5. J.P. shall be permitted to have reasonable telephone access with the children at a minimum of one time per week, and T.K. will ensure that he has up-to-date contact information for her.
6. T.K. shall consider the reasonable views and preferences of the children when exercising her discretion over J.P.’s access with them.

[104] An order is also appropriate that will require T.K. to advise the Society in advance of any plan for either parent to have unsupervised access to the children. Further, if any party seeks to vary the custody and access order, their Motion to Change and supporting documents shall be served on the Society and an affidavit of service filed.

[105] In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the CYFSA.

[106] Z.B-P. and S.B. have lived with their grandmother since February 2018 and it is in their best interests to remain there. There are no protection concerns regarding her care of the children and it is not in their best interest to further prolong the child protection proceeding which would require them to continue to be interviewed by workers and others. T.K. continues to meet the needs of the children and has worked openly and willingly with the Society, and this court has found that she will continue to facilitate the children’s contact with their parents. A further supervision order would also continue to preclude the children from receiving counselling services from Wellkin.

[107] In terms of disposition, when the evidence as a whole is considered the least intrusive order consistent with the adequate protection of the children and consistent with their best interests is that the supervision order be terminated in favour of a section 102(1) care and custody order placing them with T.K. with access to the parents on terms. Hopefully the parents will begin to make more meaningful efforts to address the protection concerns that are abundantly clear on the evidence so that their time with the children can expand and normalize.

[108] As this is a deemed order under s.28 of the Children’s Law Reform Act, and to ensure continuity going forward, it is appropriate to incorporate the recently amended language from the CLRA into the order by referring to decision-making responsibility and parenting time rather than custody and access. I would rely upon and adopt the analysis of Justice Krause in Simcoe Muskoka Child Youth and Family Services v. A.H., 2021 ONSC 2789. I also agree with Justice Krause’s reasoning that, while the court did not hear submissions on this technical legal issue, it was not necessary in the circumstances (para.129-132).

[109] On the basis of all the considerations outlined herein there is no genuine issue requiring a trial on either findings or disposition and a final order shall issue as follows:

1. Summary judgment is granted.
2. The children continue to be at risk of harm pursuant to section 74(2)(bi-ii) and an order is required to protect them in the future.
3. The supervision order dated June 5, 2019 is terminated.
4. Pursuant to section 102.1 the children shall be placed in the care and custody of T.K., and she shall have sole decision-making authority.
5. Parenting time by V.B. with the children as agreed between V.B. and T.K., or otherwise at the discretion of T.K. subject to the following: a. In person parenting time to occur a minimum of once a week, and V.B. shall be permitted to contact the children at all reasonable times by phone. b. T.K. to ensure that V.B. always has up-to-date contact information for her and the children. c. V.B. shall ensure that J.P. has no contact with the children during her parenting times. d. V.B. shall not consume alcohol/drugs 12 hours prior to or during her parenting time with the children. e. V.B. and T.K. shall communicate and work together, attending mediation if necessary, to make appropriate changes in the parenting time arrangements. f. The parties shall consider the reasonable views and preferences of the children when making parenting time arrangements.
6. Parenting time by J.P. with the children at the discretion of T.K. as to the frequency, duration, and need for supervision subject to the following minimum parameters: a. J.P. shall have parenting time supervised at the Merrymount Access Centre once per week for two hours, and T.K. shall cooperate in making these arrangements. b. If J.P. misses 5 supervised visits in a row at Merrymount, or Merrymount otherwise suspends his visits due to his non-attendance, his parenting time at Merrymount shall be terminated pending further order of the court, or pending an agreement between T.K. and J.P.. c. J.P. shall not attend the home of T.K. unless invited to do so, and shall not consume alcohol/drugs 12 hours prior to or during his parenting time. d. If J.P. seeks to review the order he shall provide, with his Motion to Change, the complete access notes from Merrymount, an up-to-date and complete criminal record dated no more than 30 days before the date the Motion to Change is issued, and independent confirmation of any substance use or other programming. e. J.P. shall be permitted to have reasonable telephone contact with the children at least one time per week, and T.K. will ensure that he has up-to-date contact information for her. f. T.K. shall consider the reasonable views and preferences of the children when exercising her discretion over J.P.’s parenting time.
7. T.K. shall advise the CAS-Oxford in advance of any plan for either parent to have unsupervised parenting time to the children.
8. If any party seeks to vary this order, their Motion to Change and supporting documents shall be served on the CAS-Oxford and an affidavit of service filed.
9. This order shall be deemed to be an order made under s.28 of the Children’s Law Reform Act.
10. Pursuant to Family law Rules, Rule 7(4.1) and Rule 7(6), for any subsequent Motion to Change this order: i. The Motion to Change shall be given a new court file number; ii. The person making the motion shall be named as the Applicant, and every other party shall be named as a Respondent; iii. The CAS-Oxford shall not be named as a party.

Released: October 29, 2021 Signed: “Justice S. E. J. Paull”