WARNING The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Ontario Court of Justice

DATE: February 16, 2021 COURT FILE No.: Brantford C 58/19

BETWEEN:

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

— AND —

M.G., F.B., D.M. Respondents

Before: Justice A.D. Hilliard Heard on: February 3, 2021 Reasons for Judgment released on: February 16, 2021

Counsel: B. Culp............................................................................... counsel for the applicant society D. Maltby............................................................................ counsel for the respondent M.G. F.B................................................................................................................... on his own behalf No appearance by or on behalf of D.M. service having been dispensed with. K. Morris................................................ counsel for the Office of the Children’s Lawyer, legal representative for the children

Hilliard J.:

Overview

[1] This is a status review application commenced in November 2019 after the termination of a six month interim society care order on July 24, 2019. The Applicant Society brought a motion for summary judgment seeking that the two subject children, J.G.P.G, born February 15, 2009, and J.B.G., born April 6, 2012, continue to be found to be in need of protection and then be placed in the extended care of the Society with access to the Respondent mother, M.G.

[2] The only responding materials filed on the motion for summary judgment were by the Office of the Children’s Lawyer (OCL). The Respondent mother, although represented by counsel who was present during the motion hearing, did not join the Zoom meeting on the date the motion was argued. Mr. B was present by Zoom link during the motion, participating in the proceeding for the first time since the commencement of the status review application.

[3] For the reasons that follow, the Society’s motion to have the children placed in the extended care of the Society will be granted with an order for specified access to the Respondent mother, M.G., and the Respondent father, F.B.

Participation of F.B. in the motion for summary judgment

[4] Mr. B was noted in default on January 13, 2020. From the first return of the status review application until the date of the hearing of the Society’s motion for summary judgment, Mr. B had not appeared at any court date. An affidavit of service was filed by the Society indicating that Mr. B has been served the status review application and supporting documents by personal service.

[5] On the date of the hearing, Mr. B denied that he had ever been served any documents regarding this status review proceeding. Mr. B stated that he had never been made aware of any of the court dates in this matter, presumably with the exception of the hearing date scheduled on February 3, 2021 at which he was in attendance. Mr. B’s repeated submission that he had not been served any court documents was strenuously objected to by counsel for the Society.

[6] Although Mr. B had previously been noted in default by me over a year ago, I allowed him to make submissions during the hearing of the motion for summary judgment. Mr. B had not filed any documents in the status review proceeding and therefore there was no evidence filed by or on behalf of Mr. B for me to consider.

[7] Transparency in the judicial process is of vital importance. An order placing children in the extended care of the Society has long been recognized as the most intrusive order a court can make with respect to children. It has been likened to the imposition of a life sentence in a criminal proceeding. In light of the seriousness of the order the Society was requesting on this motion for summary judgment, I was of the view that it was important to allow Mr. B to participate in the proceeding. To entirely exclude Mr. B from a process that will result in orders being made that will directly impact his life for years to come would have been an inappropriate exercise of my judicial discretion.

[8] Every individual is entitled to be treated with dignity and respect. The integrity of the judicial process is strengthened when a judge shows empathy for the persons who come before the court seeking justice. Had I failed to recognize the very significant impact of the decisions I was being asked to make on the life of Mr. B., then I would have failed to discharge my obligations and the consequence would surely have been an erosion in the public’s confidence in the administration of justice.

[9] Mr. B. conducted himself appropriately during the proceedings. He kept his microphone muted whenever he was not speaking to the Court. He did not interrupt. He made it known when he wanted to speak but waited until being called on to unmute and address the Court. Despite the obvious strong emotions he was feeling, Mr. B. responded appropriately when redirected or when told that his request to allow another person to speak was denied.

[10] Allowing Mr. B. to participate in the proceedings does not mean, however, that the Rules no longer apply. The extent to which I can make decisions based on the submissions of Mr. B. without any evidence is limited by the law. By his own admission, Mr. B. is familiar with court processes, having participated in family litigation in both Ontario and British Columbia, and he therefore knew or ought to have known that he has an obligation to inform himself of the steps he needed to take to be able to properly put his position before the Court.

[11] Although I accept that Mr. B.’s love and affection for these two children is genuine, that in itself is insufficient to make any ruling on. There is no motion before me to set aside my order noting Mr. B. in default. There is no evidence filed by Mr. B. for me to consider on this motion for summary judgment. Therefore, other than the extent to which Mr. B.’s submissions are supported by the evidence that is before the court, I cannot take into consideration in my determination of the motion for summary judgment on the merits any of Mr. B.’s statements during the hearing.

Extended Society Care

[12] Ms. G. is the only parent with a plan of care before the Court. However, she has filed no evidence in response to the Society’s motion for summary judgment.

[13] The evidence of the Society is that Ms. G. has failed to consistently maintain contact with the worker assigned to the file. There is no evidence that Ms. G. has a stable residence or an ability at present to care for the children on a full-time basis. The evidence is that Ms. G. has not had stable housing and continues to struggle with mental health issues that prevent her from being in a position to provide care for the children. Ms. G. is not even able to consistently call the children for virtual access visits as scheduled, despite being sent messages reminding her of the date and time. Although the most recent affidavit filed by the Society dates as far back as October 2020, there is recent evidence filed by the OCL confirming that Ms. G. remains inconsistent in calling the children, supporting a conclusion that Ms. G. continues to be unable to present a plan of care. Ms. G.’s absence from these court proceedings is also notable, and appears to demonstrate a lack of ability to prioritize her children over herself.

[14] The evidence of the OCL clinician is particularly compelling in considering whether there is a genuine issue for trial regarding whether the children should be placed in the extended care of the Society. The clinician’s affidavit, sworn January 25, 2021, describes J.G.P.G’s insight into her mother’s situation. J.G.P.G describes Ms. G. as “unreliable” citing her mother’s inability to maintain regular telephone contact. The clinician states that J.G.P.G “is aware that her Mother may not be able to care for her right now.” Even J.B.G. who is not yet 9 years old expressed to the OCL clinician that he recognized that living with his mother was not realistic at present. Despite this insight, the children both have expressed a wish to be able to return to living with their mother.

[15] Although Mr. B. has no plan of care before the Court and no evidence filed on the motion for summary judgment, for the reasons set out above, I allowed Mr. B. to put forward his position that he is prepared to care for both children. In addition to there being no evidence before the Court for me to properly assess whether Mr. B.’s proposal to care for the children is a viable plan raising a genuine issue for trial, there is the evidence of both children set out in the clinician’s affidavit that J.G.P.G and J.B.G. would prefer to remain living in Ontario, close to their mother and older sister.

[16] But for the affidavit of the OCL clinician, I may not have been satisfied that the Society has met its onus to demonstrate that all possible community placements for these children had been investigated and ruled out. There is no evidence filed by the Society indicating what contact Mr. B. has had with the Society or what efforts the Society has made to investigate whether Mr. B. or any other member of his extended family may be able to put forward a plan to care for one or both of these children. This lack of evidence from the Society is notable as it is clear from the evidence of the OCL clinician that Mr. B.’s contact with the Society has been sufficiently consistent to permit Mr. B. to maintain weekly telephone contact with the children.

[17] A move to British Columbia would represent a significant disruption in the lives of these children. Even were there some evidence of a potential placement for both children with Mr. B. or a member of his extended family, both children have expressed the desire to at least live close to their mother, if they can’t live with her. Both J.G.P.G and J.B.G. are settled in the current schools and have significant connections and ties to the community where they are residing. A move to British Columbia would likely sever their connection with their mother and older sister, which relationships both children have identified as extremely important to them. After all the upheaval and uncertainty in these children’s lives, the significant disruption a move to British Columbia would cause to the relative stability J.G.P.G and J.B.G. now have, is not in these children’s best interests at this time.

[18] On all of the evidence before me, I am satisfied that there is no genuine issue for trial regarding the children’s permanent placement. I find that it is a foregone conclusion that after a trial the children would be placed in extended society care as there is simply no evidence before me on this motion that any parent or other individual has put forward a viable plan to care for these children.

Access

[19] The issue of what access order should be made is somewhat less straightforward. Although the Society and the OCL both agree that there should be an access order made in relation to Ms. G., there is no agreement on the frequency of access that should be ordered. There is also disagreement between the OCL and the Society as to whether a specific access order should be made for Mr. B.

[20] The release of the Divisional Court’s decision in J.S.R. v. Ottawa, 2021 ONSC 630, on January 27, 2021, impacted the Society’s request that access be in their discretion, as originally plead in their notice of motion brought prior to this decision. Society counsel appropriately conceded that given the Court’s ruling in Ottawa there should be a provision in the access order for a minimum of four (4) visits annually for Ms. G. The Society’s position is that more than four (4) visits annually would be unmanageable given Ms. G.’s inconsistent track record of exercising access and maintaining consistent contact with the worker. The position taken by the OCL on behalf of the children is that there should be a minimum of six (6) access visits a year, as the children have expressed that they wish to have as much contact with mother as they can get.

[21] In considering the frequency of access, I must consider what is in the best interests of the children. There is nothing in the legislation that allows me, in determining the frequency of access, to consider what is manageable for the Society. By virtue of the extended society care order, the Society is now the permanent guardian for these two children. With that status comes obligations and responsibilities, including ensuring that all court ordered access is facilitated.

[22] None of the considerations set out in s. 74(3) or 105(5) of the CYSFA provide for a consideration of whether or not the access parent will in fact exercise the access ordered in determining the frequency of access that is in the children’s best interests. Although I accept that Ms. G is not currently exercising, on a consistent basis, the virtual access that has been arranged for her, that fact alone cannot lead to a finding which results in a final order stating it is in the best interests of the children to severely limit the minimum access visits ordered.

[23] What I must consider is the views and preferences of the children, their relationship and emotional ties to their mother, and the importance of their continuity of care and any possible effect of disruption to that continuity. There is clear evidence that the children would return to living with their mother if she were able to care for them. Their relationship with their mother is clearly important to both J.G.P.G and J.B.G., despite Ms. G. not being able to keep in regular contact with them. Both children have made it clear that they wish to remain living in Ontario to keep open the option of having more contact with their mother. There is also evidence that the current foster parents are supportive of J.G.P.G and J.B.G. continuing to have contact with Ms. G. and will help as far as they can to facilitate that contact. There is no evidence that continued or frequent contact with their mother will jeopardize J.G.P.G and J.B.G.’s current placement.

[24] I find that the position of the OCL, that the minimum number of visits for Ms. G. should be set at six (6) per year, reflects what access order would be in the children’s best interests based on the evidence before me.

[25] I also agree with the OCL that there should be an order providing for Mr. B. to have access with the children.

[26] There is evidence before me that the telephone and video access that the children are having with Mr. B. is meaningful and beneficial for both children. Mr. B. is consistent in maintaining contact with the children and there is evidence from the OCL clinician that the children wish for this contact to continue. There is no evidence that the weekly contact Mr. B. has by telephone or video with J.G.P.G and J.B.G. in any way compromises the stability of their current placement. Given this evidence, I find that no order as to access with respect to Mr. B. would not be in the children’s best interest.

[27] The OCL has also requested a specific order for access with the children’s older sister, D. This request is not opposed by the Society. There is evidence that the children have regular telephone contact with their sister and that contact is important to both children. Although J.G.P.G and J.B.G. would live with their sister if she was able to care for them, they both acknowledge that D.’s own child care responsibilities make that impossible at present. However, their relationship with their sister is important to both J.G.P.G and J.B.G. and I find that access with their sister is in their best interests and should be protected by way of a court order.

Order

[28] The following final order shall issue:

(1) The children, J.G.P.G., born February 15, 2009, and J.B.G., born April 6, 2012, are found to be in continuing need of protection pursuant to section 74(2)(b)(i), 74(2)(b)(ii), and 74(2)(h).

(2) The children, J.G.P.G. and J.B.G., shall be placed in the extended care of the Society.

(3) Ms. G. shall have access with the children a minimum of six (6) times per year, which visits (in person or virtual) will be subject to the discretion of the Society as to location, duration, and supervision, in consultation with the children’s foster parents, as well as such further and other times as can be arranged and agreed upon, taking into consideration the views and preferences of the children.

(4) Mr. B. shall have virtual access with the children which shall include a minimum of bi-weekly telephone calls, a minimum of once monthly video calls, and such further and other virtual or in person access visits as can be arranged at the discretion of the Society in consultation with the children’s foster parents, and taking into consideration the views and preferences of the children.

(5) The children shall have virtual access (telephone or video calls) with their older sister, D.G., a minimum of once per month and such further and other virtual or in person access visits as can be arranged at the discretion of the Society, in consultation with the children’s foster parents, and taking into consideration the views and preferences of the children.

(6) J.G.P.G and J.B.G. shall be the holders of access. Ms. G., Mr. B., and D.G. shall be access recipients. J.G.P.G and J.B.G. shall have a right of access to one another. J.G.P.G and J.B.G. will be access holders and access recipients in relation to one another and shall be entitled to a minimum of weekly access visits with each other in the event that they are placed in separate foster homes, or separate kin or community placements.

(7) There shall be no access to the children by the Respondent, D.M.

(8) The unrepresented Respondents approval as to the form and content of this order is dispensed with.

Released: February 16, 2021 Signed: Justice A.D. Hilliard