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: March 7, 2022 COURT FILE No.: CFO-17-15764

BETWEEN:

THE CATHOLIC CHILDREN’S AID SOCIETY Applicant

— and —

J. B. and P. S. Respondent mother and Respondent father

Before: Justice Sheilagh O’Connell

Decision and Ruling on Summary Judgment Motion, released on March 7, 2022

Counsel: Rachel Buhler ................................................................. counsel for the applicant society J. B. ............................................................................ respondent mother, acting in person Herschel Gold ........................................................................ counsel for respondent father

O’CONNELL J.:

Part One - Introduction

[1] The Catholic Children’s Aid Society has brought a summary judgment motion on an early status review application regarding the child E., now five years old.

[2] E. was found to be a child in need of protection pursuant to section 37 (2) (g) of the Child, Youth and Family Services Act, (the “Act”) on April 17, 2018. The society is seeking these final orders regarding a disposition order and access for the child:

a. An order granting custody of E. to her father and her paternal grandmother, pursuant to section 102 of the Act.

b. An order that decision-making authority for the child shall rest with the father.

c. An order that the father or the paternal grandmother shall be permitted to apply for government issued identification documents for the child, including the child’s passport, without the consent of the mother.

d. An order that the father is permitted to travel outside of Canada with the child without the consent or the permission of the mother.

e. An order that access to the child by the mother be at the discretion of the father and supervised at a supervised access centre.

[3] The respondent father supports the society’s motion.

[4] The respondent mother opposes the motion. She states that there are genuine issues requiring a trial. She seeks an order dismissing the summary judgment motion and that this matter proceed to trial, where she will ask for joint custody with the father and the paternal grandmother, or alternatively, joint custody to the father and paternal grandmother and generous unsupervised access to her, including unsupervised alternating weekends and overnights, specified holiday access and other incidents of custody. She also seeks an order that E. shall reside at the paternal grandparents’ home until she is 6 years old.

[5] The paternal grandmother is not a party to this proceeding, however she has consented to the orders being sought by the society after obtaining independent legal advice from counsel. Her signed Consent to Custody Order and Certificate of Independent Legal Advice, dated March 3, 2021, was filed in this hearing.

[6] The mother advised the court that she was choosing to represent herself at the summary judgment hearing. The mother was represented by at least four lawyers in these proceedings. 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.

[7] 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.

[8] 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]

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

Part Two - The Issues

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

1. Is there a genuine issue requiring a trial regarding the disposition order for the child, and in particular: a. Does the child continue to be in need of protection? b. Is intervention through a court order necessary to protect the child in the future? c. If so, is an order placing the child with the father and paternal grandmother under section 102 of the Act in her best interests? d. Is there a genuine issue requiring a trial regarding what access order is in the child’s best interests?

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

[11] 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.

[12] 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.

[13] 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 ONCJ 20578, 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

[14] 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 trial worthy 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, (“Kawartha”, at par. 80).

[15] 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.

[16] 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.

[17] 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.

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

[19] 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.

[20] 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).

[21] As the 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.”

[22] 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, paragraphs 64 and 76).

[23] 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).

[24] 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).

[25] The test of “no genuine issue” requiring a trial has been referred to in a number of ways in the case law. 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).

[26] 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. The Court held that “Kawartha clearly recognized that summary judgment may be appropriate in the child protection context” and 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:

[27] 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:

a. Pleadings, including the Society’s Early Status Review Application issued August 10, 2018;

b. Statement of Agreed Facts dated April 7, 2018;

c. The Mother’s Answer and Plan of Care, dated May 28, 2019;

d. Affidavit of society worker Jennifer Matos and all exhibits, sworn November 18, 2020;

e. Affidavit of Society worker Jolanta Wisniowska, sworn November 19, 2020;

f. Temporary and final protection orders made by the case management judge.

[28] The mother did not file a responding affidavit, despite being granted multiple extensions and adjournments. She relied on her answer and plan of care and made extensive oral submissions at the hearing.

Part Five - Summary of Evidence and Background Facts:

[29] Ms B. is the biological mother of E. Mr. S. is the biological father. The parties were not married but lived together for a short period of time. At the time of the hearing, Ms B. lived alone, but has a boyfriend who apparently lives in the U.K. They have never lived together.

[30] Mr. S. lives with his parents and E. in the paternal grandparents’ home. E. has lived with the father and her paternal grandparents since birth. The mother also lived with the father and E. in the grandparents’ home, but she moved out after approximately eight months in October of 2017, due to her conflictual relationship with the family. E. was nine months old at the time.

[31] Ms B. has a long history of involvement with child protection agencies. She has four other children. None of the children are in her care or custody. On February 22, 2022, I released a separate decision following a summary judgment motion regarding Ms B.’s fifth child D. The child D. was born during the child protection case regarding E., the child in this case. Both children were before the court in a consolidated proceeding.

[32] 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, neglect, 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.

[33] Ms B. has been diagnosed with anxiety, depression, and post-traumatic stress disorder. In addition to anxiety, depression, and PTSD, there is suspected Fetal Alcohol Spectrum Disorder (FASD) and possible borderline personality disorder.

[34] As a parent, Ms B.’s other children were removed from her care due to concerns about her transience, lack of prenatal care, violent behaviour, significant mental health issues, including anger management, and involvement in relationships marked by domestic violence.

[35] E. was born on […], 2017. E. was removed from Ms B.’s care by child protection authorities in British Columbia. On February 7, 2017, she was placed in the care of the father and the paternal grandparents in Toronto following a kin assessment. It was recommended that Ms B. not be left alone with E. and that she participates in intensive counselling to deal with her past trauma.

[36] Ms B. returned to Toronto from British Columbia at the same time as E. and lived with E. and the father in the paternal grandparents’ home until October of 2017. On August 10, 2017, the society commenced a protection application seeking an order that E. be placed in the care of the father and her paternal grandparents, with access to the mother at the discretion of the society.

[37] During home visits, the Society observed continuing verbal conflict between the mother and the father and in October of 2017, the Society asked Ms B. to leave the paternal grandparents’ home. The mother moved out to a bedroom that she had already rented in an apartment. E. continued to live with the father and the paternal grandparents under a temporary society supervision order.

[38] The temporary supervision order included terms that the mother not reside in the paternal grandparents’ home and that any access between the mother and child that was longer than four hours shall be supervised by a third party approved by the society.

[39] On April 17, 2018, on consent, Justice Brian Weagant found E. to be a child in need of protection pursuant to section 37(2)(g) of the Act and placed her in the care and custody of the father, subject to a four-month supervision order, on terms and conditions, with access to the mother as outlined in the Agreed Statement Facts filed on that day.

[40] The mother’s access included a minimum of two visits each week for up to four hours at the mother’s new home, and included several conditions, such as maintaining a safe and hygienic home environment, adequate supervision, and being consistent with visits.

[41] The Statement of Agreed Facts dated April 17, 2018, was signed by Ms B. while she was represented by experienced child protection counsel. The parties agreed to the following facts, among others, in support of the child protection finding [3]:

1. 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.
2. 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 an FASD assessment, to better understand her needs.
3. 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.
4. 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.
5. 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.
6. E. has been thriving in the father’s care. She is developing well, and her needs appear to be appropriately met.

[42] Ms B. also agreed to the following conditions of access when consenting to the finding in need of protection and the four-month supervision order to the father:

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.

[43] It is not disputed that the mother did not follow through with these services. On August 10, 2018, the society brought an early status review application and an urgent motion following serious concerns about the mother’s unsupervised access with E. in her home or the community:

a. The mother’s progressively deteriorating mental health and emotional stability.

b. The mother becoming more and more aggressive towards society workers, including screaming, using profanity, abusive language and threatening behaviour.

c. The mother’s failure to comply with the court-ordered conditions regarding home visits. The mother refused to permit the society worker to conduct home visits and she and the worker was only able to observe one access visit between the mother ad E. at her home.

d. The ongoing conflict between the mother and father, and the mother and other people, involving several contacts with the police.

e. The state of the mother’s home. The mother struggles to maintains hygienic conditions in the home, partly due to the animals that she keeps, and she is unable to consistently provide a safe home environment for the child.

[44] 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.

[45] 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.

The Mother’s Access:

[46] The mother’s access to E. continued to be supervised at the society’s offices during between August 29, 2018 and May 30, 2019. The undisputed direct evidence of society workers is that consistently during access, Ms B. would become triggered by an upsetting event and become angry, threatening and verbally abusive towards society staff in the presence of the child. The mother’s access was also sporadic and inconsistent.

[47] In the spring of 2019, the mother was pregnant with her fifth child. She then started to engage with society worker Ms Matos to address the child protection concerns. Following the birth of this child, the society sought a change to the access order for E.

[48] On July 24, 2019, on consent, the court ordered, on a temporary without prejudice basis, that the mother shall have specified access to E. in her home once a week from 2:00 PM to 4:00 PM. This visit was to be fully supervised by the family service worker. In addition, the mother was granted a second visit in the community for two hours to be supervised by the paternal grandmother or a mutually acceptable third party. The court also ordered that the parties attend mandatory mediation regarding the issue of access provided that their counsel are also able to participate in the mediation.

[49] Unfortunately, the mandatory mediation did not occur as the mother did not participate in the process in a manner that allowed it to proceed.

[50] As well, the mother’s engagement with the society and her follow through with services again decreased significantly. Her aggression and hostility towards society staff and others increased. The society brought a further motion to vary access which led to the current temporary access order, made on January 17, 2020:

a. The mother shall have access to the children at the society’s discretion.

b. The mother shall access to baby D. [4] two times a week on Mondays and Wednesdays and to E. once per week on Wednesdays. The Wednesday visit shall be with both children.

c. All access is supervised at the society’s office. If the father has to cancel E.’s access on Wednesday for a special event, or otherwise, there shall be make-up access the same week unless E. is sick.

[51] Following the January 17, 2020 Order, the mother’s engagement with the society virtually ceased for several months, according to the unchallenged evidence of Jennifer Matos. The mother’s access also ceased. The mother had one visit with E. at the society’s office on January 22, 2020. The visit on this day ended early at the mother’s request. All visits that were scheduled between January 22, 2020 and March 11, 2020 were then cancelled by the mother.

[52] On March 11, 2020, the mother attended a visit approximately 1.5 hours late. Ms Matos did not supervise that visit but she was scheduled to meet the mother following the visit to discuss the mother’s frequent cancellations. While returning E. to the father’s care after her visit, the mother behaved very aggressively towards Ms Matos and accused her of threatening her family, among other claims. Ms Matos attempted to re-direct the mother and focus on the children, who were present. Shortly afterwards, the mother again approached Ms Matos and made statements such as, “Don’t make threats you can’t keep”, that she has “nothing left to lose” and that she was not going to control herself anymore. She was observed to be shaking with anger while yelling loudly at Ms Matos.

[53] The mother continued to yell loudly at Ms Matos after her visit with both children ended, so Ms Matos brought her to a private meeting room. The mother started to video record her in a meeting room, and eventually “charged out of the room and slammed the door behind her.”

[54] Following this incident, the mother’s visits were suspended due to her disruptive and escalating behaviour when she did sporadically attend visits as well as her frequent cancellations. The mother was notified by Ms Matos in a letter of the suspension. She advised the mother that they could discuss how to reinstate her access in a meeting should she be able to behave calmly. The mother was invited to call her to discuss.

[55] 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 by phone and outlined the society’s position and the steps that she needed to take in reinstating her access. The mother did not contact Ms Matos for several months and would not engage in working with her.

[56] The mother finally called Ms Matos on September 9, 2020, shortly before a court hearing regarding her fifth child. The mother advised Ms Matos that the father had allowed her to see E. on her (the mother’s) birthday in August of 2020. Since that telephone call, there have been no further visits at the society’s offices between the mother and E.

[57] During the hearing, the court learned that the parents were making their own arrangements for access, which is supervised by the father or paternal grandparents, at the mother’s request. The mother’s visits have been sporadic and inconsistent.

Society’s Efforts to Assist the Mother and Services Offered:

[58] Throughout the society’s involvement with the mother, there have been several attempts by society workers to support the mother in addressing her unstable housing and her criminal court matters, but most importantly, to help her in accessing mental health services, in particular, anger management counselling, and a psychological assessment. The purpose of the assessment was to understand the mother’s diagnoses and to provide recommendations for treatment.

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

[60] 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] By January of 2020, 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.

[62] On January 20, 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.

[63] 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 trauma counselling and anger management counselling.

Housing:

[64] In February of 2020, the mother was evicted from her home. Ms Matos arranged for the society housing worker to reach out to the mother to support her in finding new housing. On September 8, 2020, the mother called the housing worker and advised that she had been evicted again that morning. The society offered further assistance at that time.

[65] On October 14, 2020, the mother called Ms Matos advising that she was facing eviction again after renting a basement apartment from someone whom she had now learned was not the legal landlord. The mother has also lost her identification documents. Ms Matos offered her supportive services, which included providing her with a copy of her birth certificate on file, referring her to an ID clinic to help her replace her other documents, and arranging for a shelter.

[66] The mother was able to obtain new housing with the assistance of her Ontario Works worker in November of 2020, although no evidence regarding this housing was presented by the mother.

Part Six: Statutory Framework:

[67] The court's decision on a status review application must take into consideration the paramount purpose of the Act, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, which takes precedence over all other considerations.

[68] The test on a status review application is as follows:

(a) the original order is presumed to be correct. This is not a rehearing of the previous order that was made;

(b) the court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection;

(c) the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and

(d) secondly, the court must consider the best interests of the child. This analysis must be conducted from the child's perspective. [5]

[69] Section 114 of the Act provides that where an application is made for a review of a child's status under section 113, the court may, in the child's best interests:

(a) vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 101; or,

(d) make an order under section 102.

[70] Section 74(3) of the Act sets out the criteria that a court shall consider in determining the child’s best interests:

Best interests of the child

1. Where a person is directed [under the Act] to make an order or determination in the best interests of a child, the person shall,

i. consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

ii. 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

iii. consider any other circumstance of the case that the person considers relevant, including,

a. the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

b. the child's physical, mental and emotional level of development,

c. the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

d. the child's cultural and linguistic heritage,

e. the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

f. 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,

g. the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

h. 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,

i. the effects on the child of delay in the disposition of the case,

j. 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

k. the degree of risk, if any, that justified the finding that the child is in need of protection.

Part Seven: Analysis:

[71] Even in the absence of any responding affidavit evidence from the mother, the court must still determine that there is sufficient trial worthy evidence from the society to meet its onus on this summary judgment motion.

[72] I have carefully considered all of 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 under Rule 16 (6.1).

[73] I find that the society has met its onus on a balance of probabilities and has 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.

7.1 Is a Court Order Necessary to Protect the Child in the Future?

[74] There is no genuine issue requiring a trial regarding this question. Intervention through a court order is necessary to protect E. in the future.

[75] The protection concerns that led to the protection finding, made on consent on April 17, 2018, continue unabated. I find that I can determine this issue based on the trial worthy evidence before me and the undisputed material facts.

[76] The unchallenged evidence is that the mother, who has admitted to being diagnosed with anxiety, depression, and post traumatic stress disorder, has significant unregulated anger, hostility and aggression. She has been unwilling or unable to meaningfully engage in any treatment or supports for these mental health issues. The mother’s untreated mental health challenges continue to impact her parenting.

[77] The mother’s lack of insight into her mental illness, the need not to expose the child to violence and conflict, and in particular, the need not to expose the child to conflict with the father, continues to place the child at risk of emotional harm.

[78] The past parenting history of the mother also gives rise to the continued need for protection. 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.

7.2 What Disposition Order is in E.’s Best Interests?

The Father’s Plan:

[79] The father and E. will continue to live with the paternal grandparents in their home in Toronto. The Society has no concerns about the father or the grandparents’ care of E. They have stable housing. The father has a stable source of income.

[80] E. has remained in her father’s care with the support of the paternal grandparents since her birth. The Society sought the joint custody order with the paternal grandmother in order to ensure continuity of E.’s care in case of an emergency, and not as a reflection of the father’s care of E.

[81] According to the unchallenged evidence filed, there are no concerns with the family home. E. continues to develop well in the care of her father with support from the grandparents. E. was attending daycare regularly prior to Covid. During the daycare closures as a result of the pandemic, E. was cared for primarily by the paternal grandmother as the father works outside of the home.

[82] The father has followed up with E.’s medical needs. He is well aware of the family medical history on the mother’s side and appears willing and capable to follow up with any programs that may be necessary in the future. He will also enroll E. in the FAME program in the future when age appropriate, which is a program for children to help them understand their parent’s mental health related behaviours.

[83] At the encouragement of the society, the father has enrolled in a counselling program called “Family Connections” which helps family members cope with someone close to them with mental health challenges. The father has limited his own contact with the mother, particularly after he helped her to move to a new home in November of 2020 and the mother reported him to the police following conflict between them. The father was charged and bail conditions provided that he have no contact with the mother unless through a third party to arrange access for E.

[84] The father has also participated in a psychological consultation arranged by the society that provided him tips and suggestions on how to support E. with having infrequent and sporadic contact with her mother. He has been open and willing to follow the society’s recommendations.

The Mother’s Plan:

[85] The mother filed an answer and plan of care seeking joint custody of the child with the father and the paternal grandparents but conceded that the child’s principal residence should continue with the father and grandparents at least until she is six years old. She presented a detailed access schedule for herself, which included alternating weekends including unsupervised overnights and specified holidays. However, during the mother’s oral submissions at the summary judgment hearing, her plan was unclear. It appeared that she wanted E. eventually returned to her primary care.

[86] The mother gave very little detail of her plan for housing, income and supports in her answer and submissions before the court. She is no longer residing in the home described in her answer. She has been evicted a number of times since then.

[87] No evidence was provided regarding the mother’s current home and whether it was suitable for overnight access. No evidence was provided regarding the mother’s current supports, if any, nor was there any evidence about activities, child-care or supports for the child and herself. No evidence was provided about the mother’s new relationship with her boyfriend in England and if he would be coming to Canada to be part of her plan of care.

[88] The unchallenged evidence as well as the mother’s own submissions during the hearing demonstrate that the mother’s life has been unstable and chaotic for a number of years.

[89] The mother’s plan for joint custody with the father and the paternal grandmother would not be viable.

[90] The undisputed evidence before me clearly demonstrates a conflictual, and sometimes volatile relationship between the parents. The mother has serious anger management issues. It is not only with the father that she has been in conflict. The mother has had a very difficult relationship with society child protection workers. She has been overtly hostile, angry, threatening, and aggressive during her supervised visits and otherwise. She has repeatedly yelled and cursed at workers and the father in the presence of the child.

[91] I find that I am fairly and justly able to deal with the decision about disposition without a trial. It is not necessary to use the additional fact-finding powers under Rule 16 (6.1). The unchallenged trial worthy evidence is sufficiently comprehensive to make this determination.

[92] The material facts regarding custody in this case are not in dispute. E. has been living with her father and the paternal grandparents since her birth. She is now 5 years old. She continues to thrive in their care and is meeting her developmental milestones. This is the only viable and permanent plan.

[93] It is abundantly clear that it is in E.’s best interests that there be a final order that she reside in the joint care and custody of the father and the paternal grandmother. The father, with the support of the paternal grandparents, is meeting all of E.’s physical and emotional needs and has provided E. with consistency and stability. He has cooperated with the society and complied with court orders. The society has no concerns regarding the father’s care of the child.

7.3 What Access Order is in E. Best Interests?

[94] I have considered the following evidence and material facts to be relevant:

1. The mother has not exercised any access to the child at the society’s office since March 11, 2020, despite repeated requests by the society to re-engage. Prior to that time, the mother frequently cancelled her access visits. Indeed, between January 17, 2020, and March 11, 2020, the mother cancelled every visit except one on January 22, 2020. The visit on this day ended early at the mother’s request.
2. 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. The mother has very limited insight into her mental health challenges.
3. The mother has 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, including undergoing a FASD assessment. She has also failed to follow through with a psychological assessment despite initially agreeing to do so, and repeated requests by society.
4. The mother’s unregulated anger, volatility and aggression have been amply demonstrated during direct observations by society workers, as set out in their evidence of the access visits that the mother did attend. The mother appears to have little or no insight into her mental health issues.
5. E. has lived with her father and the paternal grandparents since birth. They are her custodial parents. The father is in the best position to determine the nature and level of supervision that is in E.’s best interests, and he has done so by ensuring that all access, which has been minimal, is supervised.

[95] In weighing all of the factors above, I find that there is a sufficient trial worthy evidentiary record to make an access order in E.’s best interests without the need for a trial.

Part Eight - Conclusion:

[96] For all of the above reasons, the court finds that if this matter proceeded to trial, there is no realistic possibility of any outcome sought other than that by the society. The court therefore makes the following final order:

1. The father and the paternal grandmother shall have joint custody of the child, pursuant to section 102 of the Act. The child shall reside with the father and paternal grandparents.
2. The father shall have decision-making authority for the child.
3. The father or the paternal grandmother shall be permitted to apply for government issued identification documents for the child, including the child’s passport, without the consent of the mother.
4. The father or the paternal grandmother shall be permitted to travel outside of Canada with the child without the consent or the permission of the mother required.
5. The mother shall have access to the child at the discretion of the father, however the access shall be supervised at a supervised access centre or otherwise, pending further court order.
6. Any requests to change the terms of this Final Order by either parent or the paternal grandmother shall be served on all parties including the Catholic Children’s Aid Society of Toronto.

Released: March 7, 2022 Signed: “Justice S. O’Connell”