Catholic Children’s Aid Society v. J.B., 2022 ONCJ 229

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 22, 2022 COURT FILE No.: CFO-17-15764

BETWEEN:

THE CATHOLIC CHILDREN’S AID SOCIETY Applicant

— and —

J. B. Respondent mother

Before: Justice Sheilagh O’Connell

Decision and Ruling on Summary Judgment Motion, released on February 22, 2022

Counsel: Rachel Buhler ................................................................. counsel for the applicant society J. B. ................................................................................................................. acting in person

O’CONNELL J.:

Part One - Introduction

[1] The Catholic Children’s Aid Society (“the society”) has brought a summary judgment motion seeking the following orders:

a. a final order that the child, D. B., born […. 2019], be found to be a child in need of protection in accordance with section 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act (“the Act”);

b. a final order placing the child in the extended care of the society, and an order directing that there be no access to the child for the purpose of adoption planning;

c. an order making the required statutory findings relating to the child’s identity, pursuant to section 90(2) of the Act.

[2] The respondent mother, Ms B., opposes the motion. She states that there are genuine issues requiring a trial and that it would not be just to determine these issues on a summary judgment basis. She seeks an order dismissing the summary judgment motion and that this matter proceed to trial, where she will ask that the child be returned to her care.

[3] The child’s father is unknown. The mother initially identified P.S. as the child’s father, however, two DNA tests confirmed that P.S. was not the father. It is possible that the child’s father is a person named M. T.-O., however despite several attempts by the society, he has refused to participate in paternity testing or these proceedings.

[4] The child was removed from the mother’s care and brought to a place of safety following his birth. He has been in the care of society since that time, a period of approximately two and one-half years.

[5] The society’s original protection application sought an order placing the child in the kinship care of his paternal great aunt. The mother was served with the original child protection application on July 10, 2019. She retained a lawyer and served and filed an answer and plan of care to that application.

[6] On March 16, 2020, the society amended its application to seek an order for extended society care and no order for access. Ms B. was served with that application through her lawyer at the time. On September 10, 2020, Ms B.’s lawyer brought a motion to be removed as counsel of record, which was granted.

[7] Ms B. did not serve or file an answer to the amended child protection application. She was granted a number of adjournments before the summary judgment motion ultimately proceeded.

[8] The mother advised the court that she was choosing to represent herself at the summary judgment hearing. The mother had been represented by at least four lawyers in this proceeding. The mother was not happy with the lawyers that had represented her in the past. She wished to present her own case at the hearing.

[9] Given that the mother was self-represented, the court was mindful of and guided by the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23. See Catholic Children’s Aid Society of Toronto v. C.G. and D.S., [2018] O.J. No. 1612, 2018 ONCJ 193, per Justice Stanley Sherr at paragraph 15, and the decision of Justice Laura Fryer in Gray v. Gray, 2017 ONSC 5028.

[10] These principles include the following:

1. Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient, and accommodating.
2. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
3. Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons [1].

[11] Ms B. was granted a lengthy extension to serve and file her responding materials, as well as a permission to serve and file materials that exceed the ten-page limit under Covid-19 practice directions.

[12] Ultimately, Ms B. did not serve or file an answer, plan of care, or a responding affidavit for the summary judgment hearing. However, she did file a detailed typed written statement which the court accepted and reviewed before the hearing, notwithstanding the procedural deficiencies. In addition, she made lengthy oral submissions.

[13] The hearing of the motion was conducted virtually over Zoom.

Part Two - The Issues

[14] The issues for the court to determine on this summary judgment motion are as follows:

1. Is there a genuine issue requiring a trial as to whether a protection finding should be made?
2. If a protection finding is made, is there a genuine issue requiring a trial for a disposition order other than extended society care?
3. If an order for extended society care is made, is there a genuine issue requiring a trial as to what order, if any, should be made with respect to access between the child and the mother?

Part Three - The Law and Governing Principles regarding Summary Judgment Motions in Child Protection Proceedings

[15] 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), which is the summary judgment rule.

[16] 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.

[17] 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 the court all of the evidence that they would be able to adduce at trial. See: Children’s Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

[18] 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. See: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80 (“Kawartha”, supra).

[19] 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.

[20] 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.

[21] 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.

[22] 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.

[23] Hryniak 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.

[24] 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).

[25] As the Supreme Court stated at paragraph 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).

[26] In child protection proceedings, Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection case. A fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. (Kawartha, paragraph 64, 76).

[27] Consequently, in determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution in child protection proceedings and apply the objectives of the CYFSA, including the best interests of the child. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits. (Kawartha, paragraph 1 of paragraph 80, paragraphs 64 and 76).

[28] 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. Only trial worthy evidence should be admitted. (Kawartha, paragraph 3 of paragraph 80).

[29] The test of “no genuine issue” requiring a 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).

[30] In L.M. v. Children’s Aid Society of the Region of Peel, 2019 ONCA 641, the Ontario Court of Appeal made it clear that the principles enunciated in Kawartha do not suggest that a summary judgment motion can never ensure a fair and just determination in child protection matters and stated at paragraph 50 of that decision: “Kawartha clearly recognized that summary judgment may be appropriate in the child protection context.” The Court went on to say in the same paragraph that, “the cautious approach enunciated in Kawartha neither precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context.” [2]

Part Four - Evidence and Materials Filed

[31] To determine these issues, the history and facts of this case must be examined. In making my determination, I considered the following court documents and evidence, in addition to the mother’s submissions and statement filed:

a. Pleadings, including the Protection Application dated June 28, 2019 and the Amended Protection Application dated March 16, 2020 seeking Extended Society Care and no Access;

b. Answer and Plan of Care of the Mother dated August 15, 2019 to the original Protection Application (the mother did not serve and file an Answer to the Amended Protection Application dated March 16, 2020);

c. Affidavit of society worker Jennifer Matos and all exhibits;

d. Affidavit of society worker Samantha Couture and all exhibits;

e. Affidavit of society worker Elizabeth Holloway and all exhibits;

f. Affidavit of society worker Silvia Intelisano;

g. Affidavit of society worker Marcia Balbino and all exhibits;

h. Affidavit of society worker Sameiro DaSilva and all exhibits;

i. Affidavit of society worker Samantha Couture and all exhibits;

j. Statement of Agreed Facts signed by the mother and the society;

k. Temporary orders made by the case management judge.

Part Five - Background Facts

[32] Ms B. is the biological mother of D. The father is unknown. There were two potential fathers. The first father was ruled out by a paternity test. The society reached out to the second potential father, but he has refused to participate in these proceedings or to submit to a paternity test. As well, Ms B. has also stated adamantly that she does not want this person to be involved in the child’s life because he sexually assaulted her, and he is a violent man.

[33] Ms B. has three other children. None of the children are in her care or custody. Ms B. has, tragically, a very difficult life. She has had a significant child welfare history, both as a child herself and as a parent, dating back to at least 2000. As a child, she was placed in foster care and became a Crown Ward, now known as extended society care. Her father was criminally charged for sexually abusing her. There were also allegations of domestic violence and inadequate parenting in her family home. Ms B. remained in foster care and extended society care and maintenance until she was 21 years old.

[34] Ms B. has stated that because of her experience in foster care, she has been diagnosed with anxiety, depression, and post-traumatic stress disorder. She has stated this directly to society workers (as set out in their affidavits) and in an Agreed Statement of Facts filed regarding one of her other children. In addition to anxiety, depression, and PTSD, she has told a number of society workers that she may have an undiagnosed mood or borderline personality order. This evidence was not disputed but confirmed by Ms B.

[35] In 2012, Ms B. gave birth to twins. The twins were brought into care by Highland Shores Children’s Aid Society due to alleged concerns that Ms B. was not prepared for the children’s birth, she was transient and there were significant concerns of domestic violence by father of the twins. A potential kin plan did not materialize and in 2013, the twins were placed in extended care for the purpose of adoption.

[36] In 2014, Ms B. gave birth to her third child. This child was removed from her care due to alleged concerns regarding domestic violence, drug use, criminal activity, and the mother’s mental health and stability. This child is being raised in a kinship arrangement by her paternal grandmother and there continues to be an open child protection file with Peel Children’s Aid Society regarding this child.

[37] In 2017, Ms B. gave birth to E., her fourth child, who was also before me in a separate child protection proceeding, but now consolidated with this proceeding. This child was removed from Ms B.’s care by child protection authorities in British Columbia after the child’s birth. Following a kin assessment, the child was transported to Toronto and placed in the care of the biological father and paternal grandmother, who live in Toronto in August of 2017.

[38] Ms B. returned to Toronto at the same time as E. and lived for a period of time with the biological father, paternal grandmother, and the child. The society commenced a child protection application seeking a supervision order regarding E. shortly after she was placed in the care of the father and paternal grandmother. One of the conditions of the society’s supervision order is that Ms B. was not to be left alone with the child.

[39] Ms B. left the father’s household in mid-October 2017 because of ongoing physical and verbal conflict between her and the child’s father. The child continued to live with the father and the paternal grandmother under a temporary society supervision order, which included terms and conditions regarding the mother’s access to the child.

[40] In April of 2018, a final order for a child protection finding and a four-month supervision order were made regarding E. The society is now seeking a section 102 custody order placing E. in the joint care and custody of her father and the paternal grandmother.

[41] E. continues to remain in the care of the father and the paternal grandmother on status review. The society has also brought a summary judgment motion in that case, and I have delivered separate reasons for decision in that case.

[42] A Statement of Agreed Facts was filed in E.’s case on April 17, 2018. It was signed by Ms B. while she was represented by experienced child protection counsel. The parties agreed to the following facts in support of the child protection finding:

1. Ms B. has a long history of involvement with child protection agencies, dating back to when she was a child. She was physically and sexually abused by her father; she was exposed to domestic violence and eventually became a Crown Ward.
2. As a parent, Ms B.’s three previous children were removed from her care due to concerns regarding Ms B.’s transience, lack of prenatal care, suspected FASD (Fetal Alcohol Spectrum Disorder), developmental limitations, and involvement in a relationship marked by domestic violence. Ms B.’s oldest twins were made Crown Wards for the purpose of adoption. Ms B.’s third child was placed with the child’s paternal grandmother.
3. Ms B. reported that she has been diagnosed with anxiety, depression, and post-traumatic stress disorder. Ms B. has begun to participate in individual counselling and is in the process of connecting to services to address her mental health. The Society is exploring having Ms B. participate in a FASD assessment, to better understand her needs.
4. During home visits (while the mother was living with the father and paternal grandparents), society workers observed verbal conflict between Ms B. and the father, which included them swearing at each other and raising their voices, despite being cautioned. All the adults in the home consistently reported ongoing conflict between the parents. The paternal grandparents expressed difficulty living with the conflict and no longer wished to have the mother living in the home.
5. During home visits, the mother has at times become upset at the society worker, which has included raising her voice and swearing in the presence of the child.
6. In October 2017, due to concerns regarding incidents of physical conflict between the mother and father in the child’s presence in the home, the Society requested that the mother leave the home. The mother complied and moved out to a bedroom that she had already rented in an apartment.
7. The mother has been attending individual counselling and was referred to the Adult Program at Surrey Place for a Fetal Alcohol Spectrum Disorder assessment. At the time the Statement of Agreed Facts was signed, the referral had been recently accepted by Surrey Place.

[43] The parties agreed that E. would be placed in the care and custody of her father, subject to the supervision of the society for a period of four months, with unsupervised access to Ms B. to occur at a minimum of two times per week for a period of up to four hours for each visit, subject to a number of conditions.

[44] Ms B. also agreed to the following when consenting to the final order and terms and conditions made:

a. That she shall participate in services recommended by the Society to address her history of trauma, including the Trauma Therapy Program at Women’s College Hospital, and shall follow through with any reasonable recommendations made by the service providers.

b. Ms B. shall participate in a Fetal Alcohol Disorder Spectrum assessment through Surrey Place Centre and shall follow through with any reasonable recommendations made by the service provider.

[45] On August 10, 2018, the society brought an early status review application and an urgent motion in E.’s case seeking to vary the mother’s access from unsupervised to supervised because of some escalating concerns regarding the mother’s mental health. The motion was heard by Justice Manjusha Pawagi. Justice Pawagi ordered, on a temporary without prejudice basis, that the mother’s access to E. shall be supervised two times per week for two hours per visit, pending a full hearing of the motion. The motion was adjourned to August 29, 2018 to permit the mother to retain new counsel and to serve and file responding materials.

[46] On August 29, 2018, the mother did not attend court, nor did she file responding materials. This motion never proceeded. Between August 29, 2018 and May 30, 2019, the mother had retained three different lawyers, all of which were discharged for unknown reasons.

[47] The mother’s access to E. continued to be supervised at the society’s offices during the above time. The undisputed evidence of society workers is that on a consistent basis during access, Ms B. had periods of time where she would be triggered by an upsetting event and become very angry and verbally abusive towards society staff in the presence of the child, or at many other times during phone calls, emails and in meetings.

Part Six - The Evidence Regarding the Child in this Summary Judgment Motion

[48] D. was born in 2019. He has been in the temporary care of the society since his birth. He is now 2.7 years old. He has been in the same foster care since birth.

[49] Ms B. did not tell the society that she was expecting D., however, this became evident as her pregnancy progressed while she was attending supervised access visits with her daughter E. at the society offices.

[50] Jennifer Matos became the family service worker with respect to Ms B.’s planning for her unborn child. Ms B. was informed shortly before D.’s birth that the society had concerns about her ability to care for the child and that it would be pursuing a plan to bring the child to a place of safety while she addressed those concerns.

[51] It is not disputed in the evidence that Ms B. informed Ms Matos that she was unaware of her pregnancy until approximately 5.5 months gestation.

[52] The society advised Ms B. of the following protection concerns that would need to be mitigated for the child to remain with her after her birth:

1. Ongoing mental health concerns, including the need for a psychological or psychiatric assessment, as previously requested in the protection application regarding E.
2. Ongoing engagement with mental health professionals to treat her diagnosed PTSD, depression, anxiety, and possible mood disorders. Ms B. advised that she was not involved with any mental health professionals or therapeutic intervention. She had not followed through on the any of the recommendations for treatment and assessment that she had previously agreed to in the Statement of Agreed Facts regarding E. (including the FASD assessment). However, prior to D.s’ birth, Ms B. agreed again to follow through with treatment, including an assessment to ascertain her current mental health needs and to obtain recommendations going forward.
3. Stable housing. The society had explored residential homes for young mothers that could provide day to day support for Ms B., but she did not meet the age eligibility for any of these programs.
4. Ms B.’s inability to self-regulate her emotions or anger whether a child is present or not. Ms B. continued to be verbally aggressive, angry, and upset during access visits in front of E.
5. Ongoing concerns about Ms B.’s ability to be a primary caregiver. Ms B. has never been the primary caregiver for any of her children and presently had supervised access to E.
6. Criminal record check. Ms B. advised the society that her last recent criminal charges were six years ago, however, she did not complete the requirements for the criminal records check form as requested to confirm that there were no more recent charges. The society subsequently learned that the mother did have further criminal court matters involving charges of assault against another individual.

[53] Before the child’s birth, Ms B. presented a paternal aunt who resided in Alberta as a potential kinship plan. The society had several conversations with the paternal aunt as well as kinship workers with the Alberta Children’s Services, who commenced a preliminary assessment to determine if the child could be placed with the aunt following birth. The Aunt was committed to the plan at the time and came to Toronto for the birth of D.

[54] On June 28, 2019, two days after D.s’ birth, the society commenced a protection application seeking that D. be placed in the care of the paternal aunt/kin caregiver in Alberta. The matter appeared before the court on that day. However, the mother changed her mind about this plan, so the court made a temporary without prejudice order placing D. in the care of the society with access to the mother a minimum three times a week, to be supervised at the society’s discretion.

[55] The paternal aunt returned to Alberta on July 6, 2019 without D. There were further discussions and negotiations about this plan between the mother, the aunt, and the society. However, in January of 2020, the mother advised the society that she was now on bad terms with the aunt due to conflict over social media and was firm in her position that D. should not be placed in her care.

[56] The society asked the Alberta agency to complete its assessment in the event that the mother changed her mind again. On March 18, 2020, the kinship home study of the paternal aunt was ultimately not approved, however, even prior to that time, the paternal aunt had withdrawn her kinship plan.

Society’s Efforts to Assist the Mother and Services Offered

[57] Throughout the society’s involvement with the mother following the birth of D., there have been several attempts by society workers to support the mother in addressing her unstable housing, her criminal court matters, but most importantly help in accessing mental health services for therapeutic intervention, anger management and a psychological assessment to treat and assess both her diagnosed and undiagnosed mental illness or disabilities.

[58] In particular, prior to D.’s birth, society workers referred the mother to the Trauma Therapy Program at Women’s College Hospital and assisted her in accessing an assessment for FASD through Surrey Place Centre. The mother did not follow through with these referrals or assessments.

[59] Throughout her involvement, in addition to connecting her with anger management programs, society worker Jennifer Matos made several attempts to connect the mother with Parkdale post-partum and trauma counselling, Women’s College Trauma Counselling Program, a psychiatric assessment at Humber Rover Hospital, a psychological assessment, supportive housing services, affordable housing services, doctors, and assistance to obtain housing through a referral to the society’s Violence Against Women (VAW) housing worker.

[60] Immediately after D.’s birth, Ms Matos provided Ms B. with a list of anger management programs. In October of 2019, the mother advised that she wanted to connect with the anger management program offered by Regesh Child and Family Services. The society agreed to pay for this program for the mother.

[61] In late September of 2019, the society learned that the mother has been criminally charged for assaulting an ex-partner. Society worker Ms Matos attempted to discuss this with the mother. The mother initially did not want to talk about it and threatened to sue the society for slander. In October of 2019, the mother admitted to Ms Matos that she had been charged for assaulting someone that she had been previously involved with and that it was self-defence because she had a history of domestic violence with this person, who was both an ex-roommate and ex-partner.

[62] By January of 2020, more than six months after the society arranged and paid the anger management program, the mother had not yet connected with Regesh. Ms Matos obtained the mother’s consent to call for her to set up an appointment. By December of 2020, almost one year later, the mother had only one conversation with the Regesh counsellor, despite repeated requests by the society.

[63] In February of 2020, the mother was evicted from her home. Society worker Ms Matos had the society VAW worker reach out to the mother several times to support her in finding new housing. The mother was evicted from her home again in October of 2020 and the society offered further assistance at that time.

[64] Given the waitlist for publicly funded psychological assessments, in January of 2020, Ms Matos obtained approval for a psychological assessment to be funded by the society. The mother was provided with a list of potential assessors who were agreeable to doing this assessment. She was also advised that she could suggest someone of her own choosing, subject to the society confirming the cost.

[65] The mother did not follow through with this assessment, or any of the services that the society offered. The evidentiary record, including the mother’s own emails to the society is very clear on this issue.

[66] On September 10, 2020, the first appearance for the society’s summary judgment motion (served four months previously), was scheduled. The mother had not filed any responding materials and her lawyer at the time brought a motion to be removed as counsel of record, which was granted. The mother advised the court that she was now agreeable to participating in a psychological assessment. She requested a three-month adjournment of the motion, which was contested by the society.

[67] Following a contested hearing, the court granted the mother’s request for a three-month adjournment for the following purpose, as stated in the endorsement, dated September 10, 2020:

“The mother is seeking a three-month adjournment today. The Court explained to the mother that the Society is seeking Extended Society Care for the purpose of adoption (formerly known as Crown wardship). The mother understands this. D. has been in the care of the Society since birth (June 26, 2019). The mother has not yet filed an Answer and Plan of Care. The mother states that she plans to get a [new] family lawyer, move into a new home shortly, complete the psychological assessment that the Society offered to pay for, and attend anger management. She wants a further 3 months to be given one last opportunity to present her Answer and Plan of Care and of these things.”

[68] According to the Court Endorsement, on December 10, 2020, at the return of the hearing, the mother had not served or filed her Answer and Plan of Care or taken any of the steps that she needed to take. Ms B. advised the court on that day that her mother died on October 16, 2020 and that Ms B. herself was hospitalized for lung surgery shortly thereafter.

[69] No medical reports were provided for Ms B.’s hospitalization. The mother further advised the court that she had “started anger management counselling, but nothing else under these circumstances.” For oral reasons delivered, the court adjourned the hearing for either an uncontested hearing or summary judgment hearing in the spring trial sittings.

[70] Since that time, the mother refused to participate in a psychological assessment and refused the society’s request to speak to her anger management counsellor.

[71] On January 14, 2021, the mother sent an email to Ms Samantha Couture, the family service worker assigned after Ms Matos, and stated that she would not be doing the psychological assessment because it is “time consuming” and “it will not change any of your opinions on my son coming back to my care.” The mother also stated in that email that she would be proceeding with a parenting capacity assessment and that she now had the funds to do this, however, she has never done this.

[72] In January of 2021, the mother also revoked her consent to permit the society to contact the Regesh anger management counsellor. Ms Couture made several requests to the mother to reconsider providing her consent so that the society could understand the nature of her participation in the program and her progress, if any. The mother refused and in one of several emails to Ms Couture, the mother responded: “I do NOT consent to you to talk to my anger management…Bye. Stop playing games with me ya daft c..nt. I’ll take my kid and watch what I do to you right after I get my kid. I’m suing you Luc and Jennifer.” [Other society workers.]

[73] Despite a number of further requests, the mother continued to refuse to sign a consent to permit Ms Couture to speak with the anger management counsellor. The mother’s written responses were attached as exhibits to the worker’s affidavit, including one which stated, “See you in court. Maybe swallow a marble in the process? One less horrible person on earth.”

[74] At the time of the summary judgment hearing, the mother had not followed through with the psychological assessment that the society offered to pay for, nor did she follow through or complete any of the services offered by society workers, including housing services, trauma counselling, and anger management counselling.

The Mother’s Access with D. Since Birth

[75] Following D.’s birth, the mother’s access to D. remained supervised by the society until it was suspended. The mother’s access was suspended more than once. The mother has never had unsupervised access with D.

[76] The following undisputed observations regarding the mother’s access was described all of the society workers who directly observed the mother with the child:

1. The mother had some positive interactions with D. At the beginning of the supervised visits, in July of 2019 and on a few occasions later, the mother would talk to him in a gentle tone, smile at him, and came prepared to the visits and brought frozen breast milk bags for the foster mother. The mother could be affectionate. The mother breast fed D. She would sing to him.
2. However, almost immediately, the mother also became easily frustrated with D. Several workers described her behaviour as unpredictable, volatile and very challenging to manage. She was not able to respond to D.’s cues effectively, despite society workers trying to help her. There were several examples, including: a. On July 13, 2019, when D. was approximately three weeks old, the mother became very frustrated when D. started crying. She was unable to soothe him and became angry and upset, stating, “stop crying D.!”; “you’re making me crazy!”; “you’re making me insane” and “I can’t handle you crying!”. She covered her ears and said she could not hear him crying anymore. She was unable to accept the direction and reassurance from the society worker. She explained to the society worker that it was hard to hear D. cry because it brought back memories of her crying and being distressed and no one helping her. b. During another visit after cuddling and feeding D. to stop him from crying, the baby calmed down for a few minutes, but then started crying again. The mother became angry and said to the baby, “your diaper is changed, you’ve been fed, and you are still upset, what’s wrong with you?” She went on to say, “that means someone is doing something that they are not supposed to do and in that case I promise I will get another charge and that is a promise and people are not going to like me.” c. On another visit when D. was fussing periodically, the mother again appeared frustrated and stated, “ I know, they are fucking idiots, no-one is going to help you so you better learn to self-sooth, go to sleep D.”
3. By August of 2019, when D. was approximately 6 weeks old, the mother had also started to engage in very concerning behavior during access visits toward the society workers, including making threats to them, screaming and swearing at them while she was holding D., and upsetting other unrelated parents and children during their visits. She would become very agitated and upset when workers entered the room while supervising or offering direction. Many detailed examples are set out in the uncontradicted evidence of the society workers’ affidavit evidence: a. For example, on August 23, 2019, when the children’s service worker attempted to end the supervised visit, which should have ended ten minutes earlier, the mother screamed at her to, “get the f..ck out” several times in D.’s presence, which caused him to be startled from falling asleep. The mother continued to scream at the children’s service worker and stated that she would be getting a restraining order against her. The mother refused to leave and tried to slam the door of the access room in the worker’s face. Another child, not involved in this case but also there for an access visit, was observed to be quite upset upon seeing this. Security had to be called. The mother then came into the reception area approximately five minutes later and the baby left with the CTC driver without incident. a. On September 11, 2019, the mother was very angry that a worker had changed D.’s diaper while waiting for the mother (who was 20 minutes’ late for her visit) and said that she wanted to “bash somebody’s head in” and “I wonder why I have an anger issue and why I want to bash people’s heads in” and “keep it up and that six year record of no jail time will be coming to an end.” During the visit, the mother called the front desk and left a voice message for the branch manager asking that he come out to speak with her because “the worker is not respecting boundaries” with her son. b. During that same visit, when advised that the visit was over, the mother began screaming at the worker very loudly, causing another worker to come in to help. The mother began recording the worker. The mother did not leave for another fifteen minutes. During this visit, the mother was also taking photos of the baby’s penis while holding his legs down during a diaper change, notwithstanding the child’s obvious discomfort because she believed that the child had genital warts caused by the foster parent. c. On another supervised visit when the mother became increasingly agitated over the colour of the child’s bowel movement and the worker’s attempt to discuss this issue after the child’s visit, the mother stated to the worker, “you messed with the wrong bitch”. She then looked right at the two-way observation mirror and stated. “something’s gotta be done before Mama goes to jail for murder. I’m going to get a fricking charge for you.” The mother refused to meet with the worker after the visit to discuss her concerns. d. At times, the mother appeared to have insight into her angry and volatile behaviour, and would apologize, at least on one occasion. After a particularly difficult visit when the mother was yelling and using profanities in the reception area despite attempts to calm her down, worker Silvia Intelisano tried to encourage the mother to try different strategies to control her emotions when she was upset. The mother stated that she did not know how to do that. Ms Intelisano then suggested that the mother remove herself from the situation when angry. The mother stated that this would not work for her and that she would just come back even angrier. e. Other concerns regarding the mother’s access visits were her cancellations and late arrivals. All of the society workers’ undisputed evidence confirm that the mother was frequently late for visits, anywhere from 10 minutes late to up to 55 minutes during one visit.

[77] Following increasing concerns about the mother’s angry, threatening and agitated behavior during access visits, as well as frequent late arrivals, the mother’s access to D. (and her child E.) was suspended at the beginning of September of 2019. Rather than returning to court, the mother and her lawyer at the time agreed to the temporary suspension while they negotiated new access terms.

[78] On September 27, 2019, the mother and the society signed an “Access Contract” containing expectations and an assessment of her access visits. This Contract was filed as an exhibit in this hearing. In addition to agreeing to a number of terms and conditions, the mother’s access visits with D. would be reduced to twice each week, fully supervised at the society’s office for a minimum of three weeks. If after three weeks, the visits with D. go well, then the society would re-evaluate the access moving forward and would determine reinstating the third visit.

[79] Unfortunately, based on the evidentiary record, the visits did not go well. Although there were some positives, there were still significant concerns with missed and cancelled visits and the mother’s anger and volatility during visits. At one point, Ms Matos considered reinstating the third visit after meeting with the mother, however, she was not able to meet with the mother or have a meaningful conversation with her.

[80] Between October and December of 2019, the mother cancelled her visits with D. on the following dates: October 18, November 1, 4, 12, and 18, December 4, 2019.

[81] As the parties’ Access Contract was time limited and appeared to be no longer on consent, the society returned to court on December 9, 2019 to vary the temporary access order. The mother sought an adjournment to respond to the society’s motion. The motion was adjourned to January 17, 2020 to permit the mother to respond.

[82] During the adjournment period of the access variation motion, the mother missed a further five visits: December 13, 18, 2019, January 3, 6, 8 and 15, 2020. At the return of the motion on January 17, 2020, the mother consented to a temporary order reducing her access visits with D. to two visits per week, to be fully supervised at the society’s offices.

[83] Following the variation of the temporary access order on January 17, 2020, the mother continued to cancel visits and cancelled her visits on January 20, 27, and 29, and left early on January 22nd. She also cancelled February 5 and 10, 2020. D. would be brought to these visits because the mother did not call ahead to cancel, or she called when D. was already on route to the visit.

[84] On February 11, 2020, Jennifer Matos advised the mother that if she missed another two visits by the end of February, then her visits would be reduced to once a week.

[85] On February 17, 2020, the mother called to cancel her visit even though no visit had been scheduled for that day because it was Family Day.

[86] The mother’s visits were then reduced to once a week. On February 26, 2020, the mother did not call to cancel her visit and did not show up. The mother cancelled her visit on March 4, 2020 as well.

[87] On March 11, 2020, the mother attended a visit 1.5 hours late. The mother was agitated and very upset. She accused the worker Ms Matos of threatening her family. The mother was shaking with anger while yelling at Ms Matos and making threatening comments such as, “Don’t make threats you can’t keep”, “I have nothing left to lose” and that she was not going to control herself anymore.

[88] She continued to yell loudly at Ms Matos after the visit, started video recording her, and eventually “charged out of the room and slammed the door behind her.”

[89] Between November 1, 2019 and March 11, 2020, the mother missed 21 access visits out of 37 scheduled visits.

March 2020: Mother’s Visits Suspended

[90] On March 11, 2020, the mother’s visits were suspended due to the repeated and serious concerns of missed and late visits, disruptive behaviour, and frequent, aggressive and angry outbursts, often in the presence of the child. The mother was notified by Ms Matos in a letter in which the worker advised the mother that they could discuss how to reinstate her access in a meeting should she be able to behave calmly.

[91] The week following the suspension of the mother’s access visits, all in-person access visits were suspended at the society’s office due to the Covid-19 pandemic. However, Ms Matos continued to try to reach out to the mother by email and otherwise about engaging in anger management before reinstating access, even virtually. The mother did not respond for a significant time, however when she did, the tone of her emails, attached as exhibits, was belligerent and aggressive. She stated that she refused to work on identified goals unless the society agreed to reinstate her access first.

[92] The mother did eventually call Ms Matos on September 10, 2020, for the first time since her access was suspended, approximately six months later. This call took place approximately 45 minutes before the first scheduled court hearing following the pandemic. During that telephone call, the mother advised Ms Matos that she was once again homeless, among other issues.

[93] Ms Matos left on a leave of absence in December of 2020. Up until her departure, the mother did not attend any virtual access visits, nor did she request any, although she did see D. virtually at a plan of care meeting on November 16, 2020, for the first time since March of 2020.

[94] Samantha Couture, the new family service worker assumed carriage of the file in December of 2020. She has also attempted to engage the mother in setting up virtual access visits.

[95] On January 11 and 20, 2021, an access conference was scheduled to discuss reinstating access between the mother and D. The mother was invited to both conferences, however, she did not attend.

[96] Ms Couture set up four virtual visits in January and February of 2021. The mother missed all of these visits, although she did attend one 40 minutes late that had been cancelled. There has been little to no access since that time, although efforts continued to be made.

Part Seven - Statutory Framework

[97] Section 74(2) (b) of the Act provides that a child is in need of protection where it is established that,

74(2) (b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[98] Section 101 of the Act sets out options for disposition if the court finds that a child is in need of protection:

101(1) 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 or an order under section 102, in the child’s best interests:

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.

[99] The court has certain obligations to meet before making a disposition:

1. Section 101(2) provides that the court must inquire as to what efforts to assist the child have been made by Society or other entity.
2. Section 101(3) provides that before making an order that would remove a child from the care of a person who had charge of him before Society intervention, the court must be satisfied that less intrusive (including non-residential) alternatives are inadequate to protect the child.
3. Section 101(4) provides that before making an order that would remove a child from the care of a person who had charge of him before Society intervention, the court must consider whether it is possible to place the child with a relative or community member.

[100] Section 74(3) of the Act sets out a non-comprehensive list of factors to be considered by the court in determining a child’s best interests:

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.

[101] Sections 104 and 105 deal with decisions about access:

Access order

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Who may apply

(2) Where a child is in a society’s care and custody or supervision, the following may apply to the court at any time for an order under subsection (1):

1. The child.
2. Any other person, including a sibling of the child and, in the case of a First Nations, Inuk or Métis child, a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.
3. The society.

Notice

(3) An applicant referred to in paragraph 2 of subsection (2) shall give notice of the application to the society.

Society to give notice of application

(4) A society making or receiving an application under subsection (2) shall give notice of the application to,

(a) the child, subject to subsections 79 (4) and (5) (notice to child);

(b) the child’s parent;

(c) the person caring for the child at the time of the application; and

(d) in the case of a First Nations, Inuk or Métis child, the persons described in clauses (a), (b) and (c) and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

Child older than 16

(5) No order respecting access to a person 16 or older shall be made under subsection (1) without the person’s consent.

Six-month period

(6) No application shall be made under subsection (2) by a person other than a society within six months of,

(a) the making of an order under section 101;

(b) the disposition of a previous application by the same person under subsection (2);

(c) the disposition of an application under section 113 or 115; or

(d) the final disposition or abandonment of an appeal from an order referred to in clause (a), (b) or (c),

whichever is later.

No application where child placed for adoption

(7) No person or society shall make an application under subsection (2) where the child,

(a) is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c);

(b) has been placed in a person’s home by the society or by a Director for the purpose of adoption under Part VIII (Adoption and Adoption Licensing); and

(c) still resides in that person’s home.

Access: where child removed from person in charge

105 (1) Where an order is made under paragraph 1 or 2 of subsection 101 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child’s best interests.

Access after custody order under s. 102

(2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests.

Access after supervision order or custody order under s. 116 (1)

(3) If an order is made for supervision under clause 116 (1) (a) or for custody under clause 116 (1) (b), the court shall make an order for access by every person who had access before the application for the order was made under section 115, unless the court is satisfied that continued contact will not be in the child’s best interests.

Existing access order terminated if order made for extended society care

(4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), any order for access made under this Part with respect to the child is terminated.

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

Court to specify access holders and access recipients

(7) Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the court shall specify,

(a) every person who has been granted a right of access; and

(b) every person with respect to whom access has been granted.

When court to terminate access to child in extended society care

(8) The court shall terminate an access order with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) if the order is no longer in the best interests of the child as determined under subsection (6).

Society may permit contact or communication

(9) If a society believes that contact or communication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) is in the best interests of the child and no openness order under Part VIII (Adoption and Adoption Licensing) or access order is in effect with respect to the person and the child, the society may permit contact or communication between the person and the child.

Part Eight - Analysis

[102] Even in the absence of any responding affidavit evidence from the mother, although having considered her written statement and oral submissions, the court must still consider that there is sufficient trial worthy evidence from the society to meet its onus on this summary judgment motion.

[103] I have carefully considered all of (and only) the trial worthy evidence and the undisputed material facts. I find that the summary judgment process allows me to make the necessary findings of facts based on the evidence before me to achieve a just result without the need to use any expanded powers to weigh evidence or assess credibility.

[104] I find that the society has met its onus on a balance of probabilities and demonstrated that there is no genuine issue requiring a trial regarding every final order that it is seeking in this case for the following reasons.

Statutory Findings

[105] There is no issue regarding D.’s legal name or date of birth. The mother provided this information.

[106] Clause 90 (2) (b) of the Act requires the court to determine if a child is a First Nations, Inuk or Métis child and if so, to determine the child’s bands and First Nations, Inuit or Métis communities. This determination must be made before the protection finding. The inability to name a child’s bands and First Nations, Inuit or Métis communities does not negate the initial determination that the child is a First Nations, Inuk or Métis child. The court can then make the statutory finding that the child has no bands and First Nations, Inuit or Métis communities. See: Catholic Children’s Aid Society v. S.T., 2019 ONCJ 207, per Justice Stanley Sherr at paragraph 21.

[107] When Ms B. was pregnant with D., she advised the society that she has Polish ancestry and that on her father’s side there is Native ancestry, however, she does not identify as Native or Indigenous and does not have Native Status. When asked by society worker Ms Matos, the mother declined her offer to explore this further.

[108] However, more than one year later, on September 9, 2020, the mother told Ms Matos that she was “Native” and that her grandmother on her father’s side was Iqaluit, which would be D.’s great-grandfather. Up until this conversation, it is not disputed that every court document that the mother has been served with in multiple child protection proceedings has asked about Native ancestry. The mother had never identified as Native and has always advised that D. is not Native and has no status.

[109] Following this conversation, Ms Matos immediately sent a referral to the Truth and Reconciliation liaison at Native Child and Family Services (NCFS). Ms Matos connected with the liaison worker on that date to provide her with the information that she had obtained from the mother, in accordance with her legal obligation under the Act.

[110] It is not disputed that, based on the information that she received, Ms Matos advised the mother that in order to move forward, the mother needed to either provide Ms Matos with the consent to speak to the liaison worker at NCFS or to contact the liaison directly to gather information. The society made several unsuccessful attempts to connect the mother with the NCFS worker and there is absolutely no evidence that the mother did so.

[111] The definition of a First Nations, Inuk or Métis child is contained in section 1 of Ontario Regulation 155/18. This regulation reads as follows:

Interpretation, First Nations, Inuk or Métis child

A child is a First Nations, Inuk or Métis child for the purposes of the Act if,

(a) the child identifies themself as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;

(b) the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or

(c) it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that,

(i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or

(ii)there is a connection between the child and a band or a First Nations, Inuit or Métis community.

[112] Subclause 1 (c) (i) of this regulation refers to a relative of the child who identifies as a First Nations, Inuk or Métis person. Relative is defined in subsection 2 (1) of the Act as follows:

“relative means, with respect to a child, a person who is the child’s grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption;

[113] It is noteworthy that the definition of relative does not include the great-grandparent of a child, as in this case.

[114] In Catholic Children’s Aid Society v. S.T., supra, at paragraphs 37 and 38, Justice Stanley Sherr held that only a low threshold of reliable and credible evidence or information should be sufficient to make a finding that a child is First Nations, Inuk or Métis. In following other cases that have addressed this issue, he further held that a court should take a broad view in determining this issue, in keeping with the preamble and purposes of the Act.

[115] However, Justice Sherr also stated the following at paragraph 35 of that decision:

“The court agrees with the court in Bruce-Grey, supra, that there must be sufficient evidence or information to make a finding that a child is a First Nations, Inuk or Métis child. To just say that anyone, no matter how incredulous their claim may be, can put their hand up and have this claim accepted without question would be an open invitation to persons to abuse the administration of justice. It could cause considerable harm to children by delaying decisions affecting them and would be disrespectful to the First Nations, Inuit and Métis persons the Act is intended to include. The underpinning of any self-identification right is that it must be made in good faith.”

[116] In this case, there is absolutely no credible or reliable evidence or information that D. is First Nation, Inuk or Metis. The mother has never identified as FNIM in her lengthy child protection history with the society, including in previous Statements of Agreed Facts. At the time of D.’s birth, she advised the society that she did not identify as Indigenous. Approximately 1.5 years later, she claimed that D.’s great-grandfather was Indigenous, but failed to follow through with the Truth and Reconciliation worker at NCFS to gather any information or evidence regarding this claim to the society.

[117] Although the law is clear that a court may revisit identification findings when new evidence is provided, the mother has not provided any evidence in this proceeding to meet the low threshold necessary for this statutory finding.

[118] Accordingly, I find that I am able to make the statutory findings fairly and justly without requiring a trial.

Protection Finding

[119] A protection finding may be made based on facts at the outset of a case, or at any subsequent time up to trial [3]. A society seeking a protection finding under section 74 (2) (b) must establish that there is a real possibility that a child is more likely than not to suffer harm if returned to his parent. [4]

[120] The onus is on the society to prove on a balance of probabilities that D. is at risk of harm based on trial worthy evidence. The risk must be real and not speculative. See 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] O.J. No. 2273, (Ont. Fam. Ct.).

[121] It is not necessary for the society to prove an intention to cause harm before finding that a child is in need of protection. See Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903, 2009 ONCA 903 (Ont. C.A.).

[122] Inadequate supervision, domestic violence, untreated mental illness, neglect, inadequate shelter or food are common circumstances leading to findings of physical harm or risk of physical harm. See Children’s Aid Society v. R.S., 2019 ONCJ 866, [2019] O.J. NO. 6149 (O.C.J.), at paragraph 106.

[123] Harm caused by neglect or error in judgment comes within the protection finding. However, the harm must be more than trifling physical harm. A child may be at risk even if the conduct is not directed specifically towards that child. See: Children's Aid Society of the Niagara Region v. T.P., [2003] O.J. No. 412, (Ont. Fam. Ct.); Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458.

[124] Regarding a parent who struggles with mental health issues, Justice Stanley Sherr stated in Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, [2019] O.J. No. 6149 (O.C.J.), “It does not automatically follow that a child will be in need of protection just because a parent has mental health challenges. Many parents with mental health issues parent their children well. Other parents cannot. There is a wide range of mental illnesses that affect parents differently and, by extension, affect their children differently.” [paragraph 113 of the decision]

[125] Justice Sherr summarized the several factors that a court should assess when determining if a parent’s mental health places a child at risk of harm, and if so, whether a child can still be placed in the parent’s care with or without supervision. Some of these factors are the following:

a. The type of mental illness the parent has;

b. The severity of the mental illness;

c. The frequency of the parent's mental illness symptoms: whether they are situational or chronic;

d. The impact of the mental illness on the parent's functioning;

e. The impact of the mental illness on the parent's parenting;

f. The impact of the mental illness on the child;

g. The insight of the parent into their mental illness;

h. The ability of the parent to meaningfully engage with supports to address the mental health issues;

i. Whether the parent is compliant with treatment recommendations; [para. 114 of the decision]

[126] Applying the above legal principles and considerations to the admitted facts and the uncontested facts in this case, I find that there is overwhelming admissible evidence that D. is at risk of physical harm and neglect in the mother’s care as result of the following factors:

1. The mother’s demonstrated inability to regulate her anger, aggression, emotions, and potential for violence in the presence of her child, when he was a vulnerable infant, and even directed at him when she became frustrated and angry when he cried while not reading his cues. This is demonstrated by the undisputed direct observations of several workers in the affidavits filed. The child is now an active toddler who requires a great deal of undivided attention, patience, insight and energy.
2. The evidence of the mother’s anger, volatility, threats and aggression towards numerous workers in front of the child also puts the child at risk.
3. The undisputed evidence that the mother, who has admitted to being diagnosed with anxiety, depression, and post traumatic stress disorder, and has anger management problems, has been unwilling or unable to engage in any treatment for these mental health issues.
4. The lack of insight of the mother into her mental illness, even though she has acknowledged her diagnoses, and a possible undiagnosed personality disorder, by refusing to participate in any psychological or psychiatric assessment and to comply with treatment recommendations.
5. The risk of potential violence towards the child or that the child may be exposed to violence, based on the mother’s history of domestic violence with former partners, her own criminal history, and her untreated anger and mental health issues.
6. The past parenting history of the mother. Although past parenting history should never overwhelm or be determinative of a parent’s current or future ability to parent, it is undisputed that the mother has never been a primary caregiver to any of her five children. The only evidence of the mother’s parenting skills is the direct and uncontested evidence of the society workers’ affidavit evidence, which raises significant parenting concerns. The mother very sadly has a lengthy child protection history, with at least two previous children becoming what is formerly known as Crown Wards, with no access, and her two other children placed in the care of kin-caregivers and one father.

[127] Although not evidence, the court was also able to observe first-hand the mother’s inability to control and regulate her emotions during the court process, as well as her lack of insight into her parenting deficits and judgment. The mother often became volatile and angry during the summary judgment process.

[128] Based on the above, the risk to D. is clear. If a trial was held, there is no realistic possibility that a protection finding would not be made for D. I make a protection finding pursuant to section 74 (2) (b) (i) of the Act.

Disposition

[129] Once a court makes a protection finding, the next stage is the disposition of the case. What placement order is in D.’s best interests?

[130] Subsection 101(1) of the CYFSA provides that once a court finds that a child is in need of protection it must first determine that intervention through a court order is necessary to protect the child in the future. The need for continued protection may arise from the existence or absence of the circumstances that triggered the protection finding. The court can also consider protection concerns which have arisen since the intervention of the society. See Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[131] I find that a disposition order is required to protect D. in the future, based on the uncontested trial worthy evidence before me.

The Mother’s Plan of Care

[132] Despite being given a number of lengthy extensions to file an answer and plan of care to the society’s amended child protection application, as well as a responding affidavit, the mother did not do so. She gave very little detail of her plan for housing, income and supports in her statements and submissions before the court.

[133] The mother has been evicted a number of times during the child protection proceedings. The undisputed evidence as well as the mother’s own submissions demonstrate that the mother’s life has been unstable and chaotic. During the summary judgment proceeding, the mother advised that she had a new boyfriend who lived in the United Kingdom or Australia and was currently residing there. They met online. She asked permission for him to observe or participate in the hearing virtually. The mother advised that she wanted to plan for D. with him. She advised that he would be eventually travelling to Canada to join her. There was very little information about this person and no evidence filed about this person.

The child, D.

[134] It is undisputed that D. is a happy, energetic, loving and affectionate child. He has been in the same foster home since birth. He is the only foster child in the home with a foster mother and foster father. He is well connected to his foster family.

[135] D. is meeting his milestones. He is thriving and very healthy. He is walking and running and eating a variety of healthy foods, able to follow directions and meeting his fine and gross motor skills development. He is fully up to date with immunizations. He has no special needs or challenges.

The Plans

[136] There are only two plans before the court for the child when considering the required best interest factors: the society’s plan and the mother’s plan. There are no other plans before the court.

[137] If an order for extended society care is made, D.’s physical, mental and emotional needs will be met. The society will seek an appropriate adoptive home for D. The foster parents have put forth a plan.

[138] The positive aspects of the mother’s plan are as follows:

(a) The mother loves her child.

(b) If D. is placed with his mother, he would be raised by a mother who is biologically connected to him, and which would reflect his maternal family’s heritage.

[139] There are, however, many factors that weigh heavily against a placement of D. with the mother:

1. The degree of risk which triggered D. being taken into society care was high. This risk continues and has not abated.
2. The evidence is overwhelming that the mother has some obvious and very serious mental health challenges and anger issues that impact her parenting. Despite significant efforts by the society to connect the mother with support to address her trauma and her anger, the mother has not taken any meaningful steps to address these issues. Her anger and aggression make access visits often unsafe for D. He has been exposed to her anger, frustration and agitation during access. She is not able to consistently read his cues, became easily frustrated and was not open to suggestions or interventions from society workers.
3. The mother has had more than two years to address her significant mental health and anger issues and she had not done so. D. remains in limbo, well over the permissible statutory timelines and he requires and deserves permanency. He cannot be expected to wait any longer for permanency.
4. There is very little evidence of a positive parent/child relationship between the mother and D. given how sporadic her contact has been. There have been numerous missed and late visits. The mother has not been able to consistently demonstrate even in supervised access visits her ability to parent D.
5. The mother’s plan is either to live alone or with a boyfriend who currently lives in the U.K. that she met online and has not yet moved to Canada. She has no other supports.
6. The mother does not appear to have stable housing. Her housing has frequently changed throughout this proceeding. She has been evicted at least three times according to the undisputed evidence.

[140] There are no less disruptive alternatives to an order for extended society care that would be adequate to protect D. An order placing D. with the mother under a supervision order would not be adequate to ensure the child’s protection.

[141] The trial worthy and undisputed evidence before me clearly demonstrates that a supervision order would not be viable. The mother is unable and unwilling to cooperate with the society. The mother has had a very difficult relationship with several workers. She has been overtly hostile, angry, threatening, and aggressive to almost every worker during her supervised visits and otherwise. She has repeatedly yelled and cursed at several workers during supervised access and otherwise. She has refused to accept direction. She has written several hostile and aggressive emails, including referring to those who work for the society as “the most pathetic scum of people on this Earth.” She has threatened to sue at least three individual workers. She stated that she was prepared to go to jail, if necessary, when she became very angry at workers.

[142] The mother has also failed to follow through with the terms and conditions made in the previous supervision orders regarding the steps that she must take to address her mental health and anger issues. She has also failed to follow through with a psychological assessment despite initially agreeing to do so, and repeated recommendations by society.

[143] The court is fairly and justly able to deal with the decision about disposition without a trial, relying on the trial worthy affidavit evidence filed. It is abundantly clear that it is in D.’s best interests that there be a final order placing him in extended society care. There is no less intrusive option that would meet his best interests. The mother’s request to place D. in her care, with or without supervision, is sadly not realistically possible.

Access

[144] Section 105(5) of the Act sets out the test to be applied by the court in determining whether an access order should be made to a child in extended care of the Society. This section provides that a court shall not make an access order under section 104 unless the court is satisfied that the order or variation would be in the child’s best interests.

[145] Since 2017 and the passage of the Act, there is no longer any presumption against access to a child in extended care. Conversely, there is no presumption in favour of access either. The only test to be applied is what is in the child’s best interests. This new test is less strict and represents a shift in approach to access in extended care. The test makes the child’s best interests predominant in determining access. See Kawartha-Haliburton Children’s Aid Society v. M.W., [2019] O.J. No. 2020 (Ont. C.A.) and Children’s Aid Society of Toronto v J.G., 2020 ONCA 415 at paragraphs 37 to 38.

[146] Section 74(3) provides a non-exhaustive list of factors to be considered in determining the best interests of a child and these factors are set out in their entirety previously in this judgment. Section 105(6) adds two other factors the court shall consider in determining whether access to a child in extended care is in a child’s best interests. These factors are:

(a) Whether the relationship between the person and the child is beneficial and meaningful to the child, and

(b) If the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

[147] In determining whether to make an access order going forward, a court is not limited to past and present considerations when assessing whether the relationship between the mother and the child is meaningful and beneficial but can also look to future considerations when weighing this factor in the context of the entire best interest analysis. See: Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, [2020] at paragraphs 50 and 53.

[148] Section 105(6)(b) provides that if the court considers it relevant, it should consider whether the ordered access “will impair the child’s future opportunities for adoption.” Children’s Aid Society of Toronto v J.G. supra notes that this factor, previously a deciding factor in denying access in many cases, is now only one factor and must be viewed through a global best interests lens. Access now may be ordered for a child in extended care if it truly is in the overall best interests of the child. Justice Benotto, writing for the Court, stated the following:

“By adopting a best interests test to determine access, the legislature changed the previous highly restrictive test that tended towards termination of access between children and those important to them. Access can be now ordered for a child in extended care if it truly is in the overall best interests of the child. The overall best interests involve a consideration of the 15 articulated factors plus “any other circumstance of the case that the person [deciding the case] considers relevant”. S.74(3)(c). Under s. 105(6), whether the relationship is “beneficial and meaningful to the child” and only if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption remain relevant, but only as viewed through a global best interests lens.” [Paragraph 47.]

[149] At paragraph 64 of the same case, Justice Benotto also noted that access may come in many forms:

“The CYFSA requires a new approach to determining access. I note that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes."

[150] Section 105(7) provides that when a court makes an access order to a child in extended care, it should also specify who is the access holder and who is the access recipient as only an access holder has the right to apply for an openness order if a child is placed for adoption pursuant to section 196 of the Act.

[151] I have determined that I am able to fairly deal with the decision about access without requiring a trial, relying on the affidavit and documentary evidence filed and in hearing the mother’s submissions. There is ample trial worthy evidence to allow the court to adjudicate this claim in the summary judgment process.

[152] I have considered the following undisputed facts to be relevant:

1. D. is a highly adoptable healthy toddler. It is the Society’s plan to place him for adoption as soon as possible. D. has no special needs, no known congenital issues or health concerns.
2. The mother wants D. returned to her care and is very strongly and adamantly opposed to an extended society care order and adoption.
3. The mother has some very serious mental health issues, both diagnosed and undiagnosed that impact her parenting. The mother has not taken any meaningful steps towards treatment of her mental health. She has been actively resistant. The mother has very limited insight into her mental health challenges.
4. The mother’s unregulated anger, volatility and aggression have been amply demonstrated during the access visits that she did have with her son. The anger and volatility have been largely directed at both society workers who supervised the visits but also towards D. when the mother became frustrated with him and failed to read his cues. The mother’s conduct during supervised visits has placed D. at risk of physical and emotional harm.
5. The mother has missed many visits with her son, and for periods of times, she would not see him for several months. Between November 1, 2019 and March 11, 2020, the mother missed 21 access visits out of 37 scheduled visits. After March of 2020, the mother did not see D. for a period of eight months and refused to meet with society workers to reinstate even virtual access with D.. Following one virtual visit in November of 2020 at a plan of care meeting, the mother failed to attend all of the visits set up by the society worker in January and February of 2021, except one in which she was 40 minutes late, resulting in the cancellation of the visit.
6. If in-person access is ordered, the evidence amply demonstrates that the mother will do what she can to disrupt his foster placement and to obstruct any adoptive placement. The mother has very serious unregulated anger and trauma. The mother cannot accept or refuses to accept that she is unable to care for D. She has spent a significant amount of the supervised access visits she did attend yelling at and threatening society workers for not supporting her. The sad reality is that the access, when exercised by the mother, has been largely negative from D.’s perspective, based on the undisputed evidentiary record before me. Further, an in-person access order would impair D.’s opportunities for adoption by slowing down, if not obstructing the process.
7. However, I have also considered the fact that D. has siblings (or half-siblings). None of the mother’s other 4 children are in her care. Two children have already been adopted, but the other two children are in a kin-care placement with a paternal grandmother and with a biological father (not D.’s father or grandmother). D. may want to know or learn about these siblings in the future.
8. I have considered that some form of access may provide an avenue to D. to access the medical and cultural history of his biological relatives in the future and to “know his story” as he gets older.

[153] In weighing all the above, I find that there is a sufficient trial worthy evidentiary record to make an access order in D.’s best interests. I am prepared to grant access by cards or letter or by email three times per year, with updates provided regarding the child at that time. D. will be the access holder and the mother will be the access recipient.

Part Nine - Conclusion

[154] For all of the above reasons, the court makes the following final orders:

1. The statutory findings required under section 90(2) of the Act, as set out in the society’s notice of motion for summary judgment shall be made, specifically: a. The child’s full legal name is D. B. b. The child was born on [….2019]. c. The child is not a First Nations, Inuk, or Metis child.
2. D. is a child in need of protection pursuant to section 74(2)(b)(i) of the Act.
3. D. shall be placed in the extended care of the Catholic Children’s Aid Society, pursuant to section 101(1) of the Act.
4. The mother shall have access to D. three times each year in the form of letters, cards, or email.
5. The mother is responsible for providing an updated email address if communication occurs in this fashion. If communications occur by post, the mother and the foster or adoptive parents shall keep the other informed of their postal box address or mailing address.
6. D. shall be the access holder and the mother shall be the access recipient.

[155] I recognize that the mother loves D. and that this decision will be difficult for her. I hope that the mother will take the steps necessary to address her trauma, grief, and anger, as well as her other mental health challenges.

Released: February 22, 2022 Signed: “Justice S. O’Connell”