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.
DATE: November 23, 2021 File. No.: 15/19
ONTARIO COURT OF JUSTICE
159 Cedar St., Suite 201, Sudbury, Ontario P3E 6A5
CASE NAME: CAS of S&M v M.C. and J.V. Date: Nov 23, 2021 Present: Kukurin J.
Counsel: P. Marcuccio for the applicant society G. Florentis for the respondent mother, M.C. J.V., Respondent father (self represented)
[1] Before the court is a motion for summary judgment brought by the society in which it seeks a judicial finding of no issue requiring a trial on
(a) a finding that the subject child is a child in need of protection,
(b) the disposition to be made under s.101 or s.102, or none, and
(c) maternal access
[2] The subject child is B., now 2 months short of her third birthday. She was apprehended by the society on the same day she was born and has been in the society’s care with the same foster parents for most of the time since then. She was never parented by either her mother or her father except when she was still in hospital for a day or two, and in the context of later access visits, all supervised, some of which took place at her residence.
[3] The father was not initially a party but paternity testing confirmed his bio-parenthood of B. He was duly served but has filed no Answer. He attended at this hearing despite being in default, and confirmed that he was in agreement with what the society was seeking.
[4] The society amended it application twice. It’s most recent one (at tab 9) seeks a finding that B. is in need of protection under s.74(2)(b)(ii) of the Child, Youth and Family Services Act (CYFSA). It also seeks an order for Extended Society Care (ESC). It does not seek an order for access to either parent. The society’s Plan of Care is to find permanency for B. by adoption. The present foster parents, whom the society refers to as ‘kin in care’ have indicated that they are committed to B. long term and would seek adoption if she is placed in extended society care.
[5] The mother has filed an Answer and Plan of Care and seeks a return of B. to herself with a supervision order, but preferably without one. She has also indicated that she seeks “access”, presumably if a return to her does not materialize. Accordingly, maternal access is an issue placed before this court and the court must also determine if there is a triable issue relating to maternal access. The mother has counsel present this day but the mother did not attend even though the proceeding was remote and connection was possible electronically.
[6] Summary judgment motions have been utilized, perhaps too often in the view of some, and have generated some recent appellate case law that provides guidelines to trial courts on the summary judgment procedure in the child protection sphere. Two from our Ontario Court of Appeal are the Kawartha case [1] and the L.M. case [2] They are instructional in setting new standards and approaches to evidence in summary judgment cases, and in criticizing some former practices under the Child and Family Services Act (CFSA), the predecessor of the CYFSA. The summary judgment motion has recognized benefits, two of which are to reduce the time for a trial when a trial is not needed, and to bring a permanent solution for children much earlier than is possible if a full blown trial is held that would lead to essentially the same resolution. Among the evidentiary principles gleaned from this jurisprudence is that evidence on a summary judgement motion must be trial worthy. In short, if it would not be admissible at trial, it should not be admissible on a summary judgment motion.
[7] In any event, the requirements of summary judgement motions are to have factual evidence of the motion applicant (invariably the society) and factual evidence from the motion respondents. The court is allowed, in considering this evidence to
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence. 3
[8] Ultimately, the summary judgment procedure works, as put by Jain J.at paragraph 26 of the K.R. decision: [4]
“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 (See: Hryniak, at para. 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." (See: Kawartha, at para. 63).
[9] The society has filed four fairly detailed affidavits on this motion. Not all of the contents are trial worthy as some allegations are clearly hearsay and occasionally opinion. However, there is sufficient factual information that the court can admit including admissions of the mother. The mother has filed an affidavit (at Tab 18) of 22 paragraphs in length by way of reply. Much of it does not address the three main issues in this proceeding.
[10] Firstly, the society relies on grounds set out in S.74(2)(b)(ii) which involve a risk of physical harm to the child by reason of a pattern of neglect on the part of the person who had charge of the child. This is not the first time that this society has relied on this ground when the child was apprehended on the day of birth. I consistently reject this ground as I do not believe that the “pattern” spoken of in s.74(2)(b)(ii) can be established in one day, or that the pattern can be established by neglect of such person to other children. It reminds me of the person who will keep trying the same thing over and over again and expecting eventually a different result. I do, however believe that s.74(2)(b)(i) grounds are available and a finding may more readily be made on this ground, based on the same evidence of the society.
[11] The evidence of the society indicates that the mother had two prior children born in 2009 and 2013. They were removed from her care, made crown wards after lengthy proceedings and were each adopted.
[12] The society’s evidence with respect to B. being a child in need of protection is based not only on the mother’s past history with her prior children but also on her more recent history, which includes:
- She has mental health diagnoses of high functioning autism, depression, alcohol addiction and intravenous drug use.
- She has seen a psychiatrist but this was short term, she could not even remember his name, and there is no information from her of what he was able to do with/for her.
- She has denied consuming alcohol or drugs but has made admissions to society workers who are deponents of affidavits in this proceeding that she consumed alcohol daily, and her admission of alcohol use was as late as Oct 10, 2019
- She was admitted to hospital on a Form 1(involuntary admission) for several days. for mental health reasons
- She was involved with domestic arguments with the father, called the police on him, was noted to be intoxicated and was taken at her request to Crisis Intervention.
- was assaulted by the father for which he spent some time incarcerated.
- Is residentially transient living in a variety of locations often hotels, and never for very long, and on at least one occasion, was evicted.
- The mother has not been learning to care properly for the child at her access visits and required re-direction from her access supervisors.
- The mother has not had access since Oct 2019 over one year ago and has moved to southern Ontario (Delhi/Port Burwell area)
- The mother’s support system is not identified and her statements about them (her mother and brother) indicate they are less than supportive and have significant problems of their own.
- The mother is not amenable to learning even the basics of parenting and does not have the financing, suitable accommodations, the amenities or any cogent plan for caring for the child.
[13] Based on the foregoing, I am satisfied that the child B. is a child in need of protection under s.74(2)(b)(i) CYFSA.
[14] For many of the same reasons, this court cannot place B. in the care or custody of her mother. She has no plan for B. that she has put forward. Apparently the mother works and her counsel says she plans to continue to do so. Her plan is to get her own house but how she proposes to do that is not stated. Who will care for the child when the mother is at work is unknown. Finally and most importantly, this mother has never parented any child and indications of observations with her and B., even in the structure and supervision of access visits, leave this court with a significant concern should the child be placed with her mother.
[15] The CYFSA dictates that placement decisions are to be made having regard to the best interests of the child. The considerations in the best interests test are set out in s.74(3) CYFSA. Apart from the blood ties between the child and the mother, most other relevant considerations militate in favour of continued placement with her present caregivers (who I understand also have some familial ties to the child) with whom the child has already formed attachments.
[16] This leaves the question of maternal access. The fact that the mother left this area and moved to southern Ontario says much about the value of her access with B. It is true that many access visits between them were enjoyable for both and were incident free. However, the mother was not always faithful in attending her visits even when living in this area. That has now devolved to no visits in over a year and no requests for visits by her. One of the considerations for determinations of access, apart from the best interests of the child is the presence of a beneficial and meaningful relationship of the child with the person seeking access. It is the mother who must convince the court of that. She has not. In fact, her evidence is tepid on access.
[17] The respondent in a CYFSA motion for summary judgment must put his or her best foot forward. In short, this is the time for the mother to put her best evidence before the court. The court has to deal with the evidence of the parties as if this were a trial, and that what is placed before a summary judgment court would be what is placed before a trial judge. The mother’s evidence does not begin to address the significant allegations of the society in its evidence on this motion. It certainly does not rise to the level of persuading this court that a trial is necessary. This court concludes that the result is unavoidable and would be the same if a trial were to be held
[18] Rule 16(6) is mandatory. If the court finds that there is no issue requiring a trial, it shall make a final order accordingly. Based on the Reasons above, I find that the applicant society has met its onus in this summary judgment motion and a finding in need of protection and a final order shall be made.
Order to Go:
- That the child B.L.C., born […], 2019, is found to be a child in need of protection pursuant to s.74(2)(b)(i) and shall be placed in the Extended Society Care of the applicant Children’s Aid Society of the Districts of Sudbury and Manitoulin.
- That the claim of the mother for access to the child is dismissed.
Justice John Kukurin