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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: November 8, 2021 COURT FILE No.: Brantford C 410/07 ext 009

BETWEEN:

The Children’s Aid Society of Brant o/a Brant Family and Children’s Services Applicant

— AND —

S.M., B.H., B.S., R.M., B.M., T.M., Six Nations Child and Family Services Department Respondents

Before: Justice A.D. Hilliard

Heard on: August 11, 2021 Reasons for Judgment released on: November 8, 2021

Counsel: E. Capitano....................................................................... counsel for the applicant society D. Miller............................................................................. counsel for the respondent S.M. R. Sager............................................................................ counsel for the respondent B.H. No appearance by or on behalf of B.S. having previously been noted in default. T.M. and R.M. .......................................................................................... on their own behalf B. Maracle................................... band representative for the respondent Six Nations V. Mendes da Costa.......................... counsel for the Office of the Children’s Lawyer, legal representative for the child

Hilliard J.:

Overview

[1] There are two (2) remaining subject children in this protection application: K.M. (11) and D.M. (9). The Respondent, S.M., is the children’s biological mother. The Respondent, R.M., is the children’s biological father. The Respondent, B.H., is the children’s maternal great-grandmother. The Respondent, T.M., is the children’s paternal grandmother. The Respondent, B.S., previously noted in default, is the biological father of two (2) other children who have been dealt with in a previous proceeding. [1]

[2] The children have been identified as First Nations children under section 90(2) of the Child, Youth and Family Services Act (CYSFA). The Respondent mother identifies as a member of the Six Nations of the Grand River Haudenosaunee Confederation.

[3] The Society has brought a motion for summary judgment regarding K.M. and D.M. seeking an order that the children be found to be in need of protection and that they be placed in the care and custody of their father, Mr. R.M., with access to their mother, Ms. S.M. in the discretion of Mr. R.M. The Band supports the Society’s request for the children to remain in the care of their father. Ms. B.H. takes no position except to support an order for sibling access. Ms. T.M. made no submissions during the motion hearing.

[4] Mr. R.M. supports the Society’s motion. He did concede, however, during argument that Ms. S.M.’s access should be expanded to every other weekend and two mid-week visits on a graduated basis.

[5] Ms. S.M. has conceded that a protection finding under s. 72(2)(h) [risk of emotional harm] is appropriate in relation to K.M. and D.M., but otherwise opposes the Society’s motion for summary judgment. She argues that the parties are capable of jointly parenting these children and an order should therefore be made for joint custody with some form of shared parenting regime.

[6] For the reasons that follow, the Society’s motion shall be granted in part.

Law

[7] The test on a motion for summary judgment in a child protection proceeding was clarified in Kawartha-Haliburton Children’s Aid Society v MW, 2019 ONCA 316:

• In exercising Hryniak’s fairness principles for summary judgment in child protection matters, the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
• The burden of proof is on the party moving for summary judgment, but if the respondent’s evidence does not establish a genuine issue for trial, the court must be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
• The court must conduct a careful screening of the evidence to eliminate inadmissible evidence.
• Judicial assistance must be provided for self-rep litigants; 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 Person (2006) established by the Canadian Judicial Council.
• Special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[8] The provisions of An Act Respecting First Nations, Inuit and Métis children, youth and families also apply in this case, specifically s. 16(1):

16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (a) with one of the child's parents; (b) with another adult member of the child's family; (c) with an adult who belongs to the same Indigenous group, community or people as the child; (d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or (e) with any other adult.

Placement with or near other children (2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child's family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.

Customs and traditions (2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.

Family unity (3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with (a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or (b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a). [3]

[9] On a protection application, there are four (4) possible orders I can make under s. 101 of the CYSFA or an order can be made under s. 102, as is being requested by the Society. I must consider what is in the children’s best interests in determining what order should be made, during which deliberations I must remember that less disruptive alternatives are to be preferred, as per s. 101(3).

Analysis

[10] K.M. and D.M. have been continuously in the care of their father, Mr. R.M., since July 5, 2019, after having been removed from the care of their mother, S.M. The children were removed from S.M.’s care due to allegations of abuse and neglect.

[11] A previous protection application had been withdrawn after the children were placed in the shared custody of Ms. S.M. and Mr. R.M. Previous to that withdrawal, K.M. and D.M. had been found to be in need of protection and were placed with Ms. B.H. in August 2016.

[12] This motion is somewhat unusual in that the Society is seeking an order on behalf of Mr. R.M. who has not filed any responding materials on the motion. Ms. S.M. argues that the lack of evidence from Mr. R.M. in itself should be grounds for dismissing the motion. I disagree. The burden of demonstrating that there is no genuine issue for trial rests with the moving party, the Society in this case, and a lack of evidence from Mr. R.M., the proposed custodial parent for the children, does not impact whether the Society has met its onus.

[13] There have been no protection concerns reported regarding Mr. R.M.’s care of K.M. and D.M. since they were placed in his care. Mr. R.M. is working cooperatively with the caregivers of K.M. and D.M.’s siblings to ensure there has been ongoing sibling contact and access.

[14] Given K.M. and D.M.’s ages, their views and preferences are an important consideration. OCL counsel advised that both K.M. and D.M. have advised her that they wish to remain living primarily with their father. Based on the submissions of the OCL, I am satisfied that K.M. and D.M.’s views and preferences have been independently formed and have been consistently expressed.

[15] Ms. S.M. argues that there is evidence to support a conclusion that she and Mr. R.M. could co-parent these two (2) children, such as to raise a genuine issue for trial regarding the custodial designation or decision-making, as it is now referred to under the Children’s Law Reform Act. Although I agree that there is some evidence that Ms. S.M. and Mr. R.M. have at times been able to successfully co-parent K.M. and D.M., that in and of itself does not raise a genuine issue requiring a trial. This is a child protection proceeding and the issue to be determined is what disposition order is in the children’s best interests taking into consideration the protection concerns that exist.

[16] I agree with the submission by Society counsel that the narrow issue of decision-making authority for K.M. and D.M. could be dealt with by way of a focussed hearing rather than a full trial. The key issue on this motion for summary judgment is the primary placement of K.M. and D.M. and whether it is a foregone conclusion that they will remain primarily in the care of their father, Mr. R.M., after a trial.

[17] In seeking to have the Society’s motion for summary judgment dismissed, Ms. S.M. takes the position that the children should be placed in the joint care of her and Mr. R.M. with a shared parenting arrangement ordered. She is not seeking to have the children live primarily with her, but rather to have the previous parenting arrangement that existed in 2017 be reinstated.

[18] The positions of the respective parents, Ms. S.M. and Mr. R.M., are relevant to the determination as to whether there is a genuine issue for trial. Ms. S.M. does not dispute that K.M. and D.M. should be in the care of their father at least half of the time. Mr. R.M. concedes that Ms. S.M. should have her access increased to alternate weekends and two (2) days during the week. Leaving aside the issue of the decision-making designation, the parents’ relative positions are not very far apart. The Society’s request that Ms. S.M.’s access be left in the discretion of Mr. R.M., subject to minimum periods, concedes the decision as to how much time Ms. S.M. spends with K.M. and D.M. to Mr. R.M.

[19] Despite the concessions made by Mr. R.M. and the Society with respect to how much access should be granted to Ms. S.M., I continue to have serious concerns about Ms. S.M.’s failure or refusal to acknowledge her responsibility for all of her children being removed from her care in July 2019. In particular, Ms. S.M. has specifically singled out D.M. in her evidence defending this motion for summary judgment, claiming that D.M. was involved in a plan to make allegations against Ms. S.M. that would ultimately prevent her from having the youngest of the siblings returned to her care.

[20] In a companion judgment being released on the same date as this judgment, I found that there was no genuine issue for trial regarding placement of Ms. S.M.’s two youngest children and ordered that they be placed in the care and custody of their father on a final basis. In that judgement, I found that Ms. S.M. has not demonstrated any real insight into her own behaviour, in particular how her care of the children in 2019 resulted in the Society intervening and removing the children to a place of safety. Those findings are relevant to my determination as to whether there is a genuine issue for trial in this case, specifically whether the Society has demonstrated that it is a foregone conclusion that the children will be placed primarily with Mr. R.M. rather than some joint parenting regime between Mr. R.M. and Ms. S.M.

[21] An order for a shared parenting regime is appropriate where both parents are equally positioned to provide adequate care for the children. That is not the case here. There are ongoing child protection concerns about Ms. S.M.’s ability to care for K.M. and D.M., whereas there are none about Mr. R.M. Although Mr. R.M. and the Society have conceded that Ms. S.M. may be able to provide adequate care for K.M. and D.M. during periods of access, such as alternate weekends, that concession does not necessarily lead to the conclusion that Ms. S.M. is therefore equally capable of providing adequate care for K.M. and D.M. on a shared parenting schedule.

[22] Shared parenting schedules require cooperation and collaboration between the parents. There is some evidence before me that Ms. S.M. and Mr. R.M. have been able to work cooperatively with one another. However, there is also evidence before me that Ms. S.M. continues to engage in conflict with the caregivers for her other children and takes very little personal responsibility for her role in the conflict. Ms. S.M. continues to point the blame at others and minimize her own actions. Despite engaging in counselling and accessing support services, Ms. S.M. continues to be unable to demonstrate through her actions that she has gained the insight necessary to alleviate the protection concerns.

[23] The interactions between Ms. S.M. and Society workers is a further demonstration of this issue. Ms. S.M. is combative and argumentative with the family service workers, blaming the Society for failing to provide her with adequate support services. Ms. S.M. also argues that the Society has chosen sides with the fathers of her children against herself and thereby failed to discharge their responsibility to work with her to remediate the issues that resulted in her children being brought into care.

[24] As I found in a companion judgment, there is nothing more that the Society could have done to assist Ms. S.M. during these protection proceedings given the manner in which she has interacted with the family service workers. Furthermore, the Society has an obligation to assess each parent or person putting forward a plan to care for children. In this case, Mr. R.M. has been caring for K.M. and D.M. without any protection concerns. The Society has therefore concluded that, in its assessment, Mr. R.M. is the parent best positioned to provide a stable and permanent home for K.M. and D.M. That assessment does not bind the Court but the determination that Mr. R.M. is the parent that has demonstrated the ability to provide care for the children that addresses or eliminates the protection concerns is within the Society’s legislative mandate.

[25] In weighing all of the evidence before me on this motion for summary judgment, the views and preferences of the children to remain residing primarily with Mr. R.M., combined with my findings regarding Ms. S.M. failing to demonstrate an ability to adequately address the protection concerns, lead to my conclusion that there is no genuine issue for trial as to placement of K.M. and D.M. I find that the Society has met its onus to demonstrate there is no genuine issue for trial regarding K.M. and D.M.’s placement.

[26] However, given the concessions of both the Society and Mr. R.M., I am not satisfied that there is no genuine issue for trial regarding Ms. S.M.’s access. K.M. and D.M. wish to have access with their mother, specifically more access than they are having at present.

[27] I am not satisfied that access should be left in the discretion of Mr. R.M. as requested by the Society. It is the court that must make the determination as to what access Ms. S.M. should have and it would be an error for me to delegate that decision to Mr. R.M. on a final basis.

Conclusion

[28] A final order will issue placing K.M. and D.M. in the care and custody of their father, Mr. R.M.

[29] The issue of Ms. S.M.’s access with K.M. and D.M. will proceed to trial, if not resolved by the parties in advance.

[30] Therefore, order to go:

(1) The children, K.M. and D.M., shall be placed in the care and custody of their father, Mr. R.M., pursuant to s. 102 of the CYSFA. (2) The issue of the Respondent mother, Ms. S.M.’s access with the children shall be adjourned to the trial management conference date scheduled for February 14, 2022.

Released: November 8, 2021 Signed: Justice A.D. Hilliard

Footnotes:

[1] My judgment on a separate motion for summary judgment regarding those two children was reported at Children’s Aid Society of Brant v. S.M., 2021 ONCJ 27

[2] Kawartha-Haliburton Children’s Aid Society v MW, 2019 ONCA 316, [2019] OJ No 2029.

[3] SC 2019, c 24, s 16.