WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 , (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
ONTARIO COURT OF JUSTICE DATE: September 28, 2023 COURT FILE No.: Toronto CFO 22-6
BETWEEN:
CHILDREN’S AID SOCIETY OF TORONTO Applicant
— AND —
F.G. and D.N. Respondents
Before: Justice Pawagi
Heard on: September 12, 2023 Reasons for Judgment released on: September 28, 2023
Counsel: Diana Castillo, counsel for the applicant society Leonard Kotylo, counsel for the respondent mother D.N., respondent maternal grandmother on her own behalf
PAWAGI J.:
NATURE OF THE CASE
[1] Can the respondent mother retract her consent to placing her 21-month-old son in the final custody of maternal grandmother after the court made that order pursuant to an agreed statement of facts that she signed?
[2] That was the question for the court at the outset of the society’s summary judgment motion heard September 12, 2023. Said motion was initially set for all of the issues: protection finding, disposition and access. The society then filed the agreed statement of facts. The case management judge made the protection finding and disposition order on August 31, 2023 as requested in the agreed statement of facts and referred the issue of access to be determined at the motion. The mother then brought a 14B motion seeking to withdraw her consent.
POSITION OF THE PARTIES
[3] The mother asks that the Final Order dated August 31, 2023 be set aside with respect to disposition on the basis that she has retracted her consent. The summary judgment motion would then involve the issue of disposition and access. She asks that the summary judgment motion be dismissed.
[4] The society asks that the court not set aside the disposition order. The society asks that the summary judgment motion, which concerns only the issue of access, be granted. In the alternative, if the disposition order is set aside, the society asks that the disposition sought by the society also be ordered on a summary judgment basis.
FACTS
[5] The mother is not seeking to retract her consent to the protection finding which was made pursuant to s. 74(2)(b)(i) and (ii).
[6] The following facts are not disputed.
[7] The society first became involved with the mother shortly after the child’s birth in December 2021 when a hospital social worker called the society to report concerns about the mother’s drug use and mental health.
[8] The newborn tested positive for cocaine. The mother acknowledged that she smoked crack cocaine at various points during her pregnancy, including within a few days of giving birth.
[9] On January 10, 2022, the court made a temporary order on a without prejudice basis placing the baby in the care of maternal grandmother subject to the supervision of the society with supervised access to the mother three times per week.
[10] The mother has schizoaffective disorder bipolar type. Her anti-psychotic treatment includes an ARIPprazole injection every three weeks. The medication helps individuals organize their thoughts and lowers agitation and anxiety.
[11] The mother has been involuntarily hospitalized at CAMH three times:
- (a) February 16, 2022 when she was held for 72 hours following an incident where she assaulted maternal grandmother and pulled a knife on her when trying to see her son. A urine drug screen revealed cocaine in her urine;
- (b) September 26 to November 16, 2022; and
- (c) March 18 to April 25, 2023, when she was brought to hospital as she was not adhering to her community treatment order and there were increasing concerns about her behaviour including barricading herself in her home with her fridge, preventing maintenance workers from fixing her fire alarm and assaulting a co-resident.
[12] The mother has not followed up with treatment for addiction. She completed an initial intake with Jean Tweed for the purpose of working on addiction, mental health and parenting skills. She stopped attending shortly after her intake.
[13] The mother is pregnant. Her most recent urine exam (August 2023) showed traces of crack cocaine.
[14] The mother has not been consistent with treatment for her mental health, resulting in repeated involuntary admissions to hospital.
[15] The maternal grandmother has been caring for the child since January 10, 2022 without issue. The child is now 21 months old. He is meeting his developmental milestones. He presents as happy. He easily engages with maternal grandmother and seeks her out to have his needs met. His immunizations are up to date.
[16] The maternal grandmother has worked cooperatively with the society and other professionals. She has the assistance of a case worker from Yonge Street Mission who will be assisting her to connect with supports such as ESL, food bank, daycare. Yonge Street Mission will also be available to supervise the mother’s access.
[17] The mother has not consistently attended for access at the society office. Prior to her attendance for a visit on September 5, 2023, she last attended on May 30, 2023.
[18] When the mother is calm, supervised access visits go smoothly. When the mother is agitated there are issues such as her inability to soothe the child when he cries and inability to follow the directions of the access supervisor. For example, during the visit on August 23, 2022, the following transpired:
- (a) When the child threw up after drinking milk, the worker advised the mother not to give him any more milk as he seemed full. The mother told the worker to leave the room;
- (b) The mother left the child on the change table in a sitting position and went to the other side of the room. The worker told her this was unsafe. The mother said, “Go away, leave the room, this is my placenta, this is my period.” The worker did not leave the room until the mother picked up the child;
- (c) When the worker told the mother the taxi was here, the mother yelled at the worker to leave the room. She told the worker, “This is my placenta, this is my period, don’t touch him,” referring to the child.
ANALYSIS AND THE LAW
Can the mother retract her consent?
[19] The mother seeks to retract her consent and set aside the final order dated August 31, 2023 with regards to disposition.
[20] While the mother did not file a formal motion to do so, the parties effectively argued a motion as counsel for the mother and counsel for the society filed affidavit evidence, provided case law and made oral submissions on this question.
[21] Counsel for the mother argues that this court should permit her to retract her consent and should set aside the final order on the basis of the following new evidence regarding what happened between the time she signed the Agreed Statement of Facts on August 23, 2023, and Justice Sullivan made the final order re disposition on August 31, 2023:
- (a) The mother signed the Agreed Statement of Facts in the belief that maternal grandmother would teach her so that she could learn and develop her parenting skills and be able to care for the child. But what happened is that maternal grandmother “pushed” her away from the child and thus maternal grandmother is not the proper person to have custody of the child and not the proper person to teach the mother parenting techniques.
- (b) The maternal grandmother told the mother she would not let the mother see the child and that the mother would not get him back. The maternal grandmother took the child to her church and gave him bread and wine and placed a thread around his neck and a cross on his forehead and showed off the child as her own in church.
- (c) The mother believes that through this behaviour the maternal grandmother has displaced her as a parent and that the maternal grandmother is not going to respect her as a parent, but just as an occasional visitor.
[22] However, the issue of the admission of new evidence relates to when an order is under appeal. This is not an appeal.
[23] The authority of this court to set aside an order is found in Rule 25(19) of the Family Law Rules which provides that the court may, on motion, change an order that,
- (a) was obtained by fraud;
- (b) contains a mistake;
- (c) needs to be changed to deal with a matter that was before the court but that it did not decide;
- (d) was made without notice; or
- (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.
[24] Counsel for the mother did not provide evidence to address any of these criteria. The existence of new evidence is not one of the criteria. Even if it were, the evidence counsel for the mother relies on is not “new evidence”:
- (a) There is no evidentiary basis in the agreed statement of facts or any of the affidavits to support the mother’s contention that she agreed to custody to the maternal grandmother on the basis that the maternal grandmother would teach her the parenting skills to enable her to assume care of the child.
- (b) The evidence that the maternal grandmother takes the child to church and that the mother is not happy about that predates the signing of the agreed statement of facts. It has been a longstanding concern of the mother’s.
- (c) The mother’s contention that the maternal grandmother does not respect her as a parent and prevents her from seeing the child is not evidence, but rather her belief. The current access order made July 14, 2022, provides that mother’s access shall be supervised by the society and take place at the society’s office; and that “access shall not take place at maternal grandmother’s home without the express consent of grandmother and with the permission of the court.”
[25] The mother’s request to retract her consent to the agreed statement of facts and set aside the order dated August 31, 2023, with respect to disposition is denied.
Has the society met the test for summary judgment motion?
[26] Given that the disposition order was not set aside, the only issue for the summary judgment motion is access. However, a review of the undisputed facts demonstrates that the evidence would support the making of both disposition and access orders on a summary judgment basis.
[27] The society has met its onus pursuant to Rule 16(6) of the Family Law Rules that there is no genuine issue for trial with respect to both disposition and access.
[28] Counsel for the society relies on T.M.N. v. Child and Family Services of Grand Erie, 2023 ONSC 2959, an appeal decision which upheld a motions’ judge’s decision to rely on the facts contained in an agreed statement of facts on a summary judgment motion where the consent itself was withdrawn.
[29] While I agree that I may do so here, given that the mother in her affidavit evidence does not contradict the facts in the agreed statement of facts, I find there is also ample undisputed evidence to make the disposition and access orders sought by the society in the affidavits provided on the motion.
[30] The mother’s evidence in her affidavit sworn September 6, 2023 amounts to just a wish to parent the child. She raises no genuine issue for trial. She deposes at paragraph 6 that she is capable of caring for the child because:
- (a) I am his mother;
- (b) I went through all the pain of child birth to allow him to be born;
- (c) I have the maternal instincts to care for him;
- (d) I have sought out opportunities to care for him;
- (e) I am capable of dealing with and concluding any mental health issues, and any drug cravings;
- (f) I want to live with him as a family;
- (g) I am a better role model. I am more nurturing. I know the feelings of my son better than anyone;
- (h) My body is strong. I can handle stress.
[31] The mother simply asserts she is capable of dealing with her mental health issues and drug cravings without providing any evidence regarding what steps she has taken to address both issues.
[32] The mother deposes at paragraph 52, “I work to no longer take drugs” without providing any evidence regarding what work she is doing.
[33] The mother deposes at paragraph 61 and 62 that she was hospitalized for a few months in 2023 while the doctors worked to make her medication levels appropriate to address her mental health issues and that “I have been dealing with that adjustment” without providing any evidence regarding how she is currently dealing with it.
[34] The mother acknowledged that she is pregnant without providing any evidence regarding how she plans to parent two children.
[35] The society has confirmed with Yonge Street Mission that they will provide supervised access services to the mother on a long-term basis which means that the mother can stop attending for a period of time and then re-start at a later date with no repercussions.
ORDER
[36] The final order dated August 31, 2023 shall remain in effect.
[37] Final order re access to the mother shall go as per the society’s amended notice of motion returnable September 12, 2023 at paragraph 7 (a) to (e) inclusive.
Released: September 28, 2023
Justice M. Pawagi