Children’s Aid Society of Toronto v. K.C., 2024 ONCJ 142

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: 2024 02 16

COURT FILE No.: 22/12

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO

Applicant

— AND —

K.C. (Mother)

Respondent

Before Justice Susan Sullivan

Heard on December 4, 2023

Reasons for Judgment released on February 16, 2024

Ihtasham Shabbir........................................................... counsel for the applicant society

Emma Byrnes, agent for Ben Chiou.................................. counsel for the respondent

SULLIVAN J.:

Part 1 – Introduction

[1] This is the court’s ruling regarding the summary judgment motion brought by the Children’s Aid Society of Toronto.

[2] The motion for summary judgment is brought within an amended protection application issued June 22, 2023.

[3] The subject child is K. (born […], 2022). He was almost two (2) years old when submissions were received.

[4] The child’s mother is K.C.

[5] On January 12, 2023 Justice Kapurura found that there are no other persons who qualify as a parent to K., as defined in the Child Youth and Family Services Act, 2017.

[6] The Society seeks the following final order:

(a) Statutory findings:

(i) The child’s name is K., born […], 2022.

(ii) The child is 23 months old.

(iii) The child is not a First Nations, Inuk or Metis child.

(iv) The child was brought to a place of safety from Toronto, ON.

(b) Protection findings:

(i) The child shall be found to be in need of protection pursuant to subsections 74(2)(b)(i) and 74(2)(b)(ii) of the CYFSA .

(i) Pursuant to section 101 of the CYFSA, the child shall be placed in the extended society care of the Children’s Aid Society of Toronto.

(ii) Pursuant to subsections 104(1), 105(5), and 105(6) of the CYFSA , there shall be no access between K. and K.C. and neither the child nor his mother shall have a right of access to each other.

[7] The Society’s position is that the court can determine these issues via a summary judgment motion, as the facts, when considered as a whole, establish that there are no genuine issues that require a trial to resolve.

[8] The statutory findings are not disputed.

[9] K.C. opposes the motion and asks that it be dismissed on the basis that there are genuine issues requiring a trial. K.C. disputes that K. is or was ever a child in need of protection. Her request is that ultimately, the Society’s application be dismissed, and that K. be returned to her care. In the alternative, K.C. asks that K. be returned to her care subject to a supervision order. If an order is made placing K. in extended society care, K.C. wants as much access as the court will allow; her claim spans from weekly in-person access to cards and letters.

[10] I have reviewed the following:

(a) Affidavit of Jaclyn Kelland, affirmed November 14, 2023;

(b) Affidavit of D’Andrea Cummings, affirmed November 14, 2023;

(d) Affidavit of Patricia Dunn, affirmed November 14, 2023;

(e) Affidavit of Lerecia Williams, affirmed November 14, 2023;

(f) The Society’s Request to Admit dated November 10, 2023 and K.C.’s Response to Request to Admit dated November 27, 2023;

(g) Office of Registrar General Statement of Live Birth signed May 25, 2022;

(h) Society’s Amended Plan of Care dated June 22, 2023;

(i) Statement of Agreed Facts signed by K.C. and Society worker Simone Hernandez on March 19, 2019 in the matter pertaining to K.C.’s daughter T.;

(j) Statement of Agreed Facts signed by Ms. Hernandez September 11, 2020, K.C. October 13, 2020, and K.D. September 24, 2020 in the matter pertaining to T.;

(k) The contents of the Practitioners’ Report Brief filed by the Society; and

(l) K.C.’s affidavit dated November 27, 2023.

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

(a) Is there a genuine issue requiring a trial as to whether K. is a child in need of protection?

(b) Is there a genuine issue requiring a trial as to whether intervention through a court order is necessary to protect K. in the future?

(c) If the above findings are made, is there a genuine issue requiring a trial for a disposition for K. other than an order for extended society care?

(d) If the order for extended society care is made, is there a genuine issue requiring a trial to determine whether there should be access between K. and K.C.?

Part 2 – Evidence

2.1 General Background

[12] K.C. is 31 years old.

[13] K.C. resides at the Yonge Street Mission (YSM).

[14] K. was born in K.C.’s unit at YSM.

[15] K. was brought to a place of safety at birth.

[16] K. has remained in the Society’s care since birth.

[17] K.C.’s access with K. has always been fully supervised.

[18] YSM will not allow K.C.’s access to occur at its facilities, given the events of January, 2023 between YSM staff member Ms. Dunn and K.C. (which is discussed in detail below).

[19] In the summer of 2023, K.C. had access in the community.

[20] K. is K.C.’s fourth child. Her other children are:

(a) E., born on […], 2012;

(b) M., born […], 2014; and

[21] E. was brought to a place of safety on February 4, 2013.

[22] M. was brought to a place of safety at birth.

[23] T. was brought to a place of safety the day after she was born.

[24] E. and M. were made ‘Crown wards’ by an order of Justice Cohen dated June 12, 2015 following a motion for summary judgment brought by the Society. They have been adopted by extended family.

[25] T. was placed in the care of her father, K.D., subject to a 5-month supervision order on January 8, 2020.

[26] The Society filed a Statement of Agreed Facts in support of an order that T. be placed in the custody of her father, with access to K.C. However, within this summary judgment motion, this court has not been provided with a copy of the final order with respect to T..

[27] Similarly, within this summary judgment motion, the court was not provided a copy of Justice Cohen’s June 12, 2015 final order regarding E. and M..

2.2 K.C.’s Past Involvement With Child Welfare Authorities

[28] The March, 2019 Statement of Agreed Facts includes the following regarding K.C.’s history of involvement with child welfare authorities from 2012-2015:

(a) The Society first became involved with K.C. on April 22, 2012 following a referral from Toronto Police Services, 41 Division, who reported that K.C. assaulted a police officer. The police had concerns about K.C.’s anger issues and mental health. CAST’s file closed as K.C. was incarcerated at Vanier Centre for Women in Halton. She was pregnant with E. at the time.

(b) When E. was born, he was discharged into K.C.’s care; she was living with her aunt in Peel Region at the time and the file was referred to the Peel Children’s Aid Society.

(c) The file transferred back to CAST on October 30, 2012, and that agency worked voluntarily with K.C. until February 4, 2013. On this date, Detective Foley of TPS, 54 Division, reported to Ana Vieira, Family Service Worker, that K.C. was going to be arrested due to her surety pulling her bail.

(d) While E. was in K.C.’s care, there had been ongoing concerns regarding K.C.’s ability to follow through with medical appointments for E., her ability to maintain stable housing, her lack of cooperation with the Society, and her failure to comply with her bail conditions.

(e) Following E. being brought to a place of safety, K.C. continued to have difficulties with housing and anger management.

[29] The March, 2019 Statement of Agreed Facts includes the following regarding K.C.’s involvement with child welfare authorities from 2018-2019:

(a) On September 18, 2018 the Society received a referral from Angie Kim, Toronto Public Health Nurse with HARP Team, who reported concerns related to K.C.’s mental health. K.C. was pregnant with T. at the time. She was residing at Birkdale Shelter.

(b) Prior to giving birth, K.C. resisted engaging with the Society for support and service planning to address the protection concerns.

(c) K.C. self-reported a diagnosis of anxiety, depression, and PTSD. K.C.’s psychiatrist had given her a differential diagnosis of Nerve Conduct Disorder. K.C. reported to the Society and other professionals that she does not feel her mental health is an issue.

(d) At the time of T.’s birth, hospital staff, including her psychiatrist, expressed concerns to the Society about K.C.’s ability to independently care for the child. K.C. stated that the staff did not express their concerns to her.

(e) Prior to and shortly after giving birth, K.C. appeared to have little insight into her mental health, denied the Society’s concerns, and advised that she did not need any assistance with her mental health or parenting. K.C. further advised that she would not be seeking further treatment from her psychiatrist.

(f) K.C. became more engaged with the Society.

(g) K.C. was living at the Street Haven Shelter until January, 2019 when she was discharged from the shelter after getting into an altercation with an individual at the shelter. In March, 2019 she was living at the Fred Victor Shelter in Toronto.

(h) At two Plan of Care meetings for T. (November, 2018 and January, 2019), K.C. appeared to focus on her displeasure with the foster parent. The meetings had to be stopped several times as a result of K.C.’s conflictual approach to the foster parent. On one occasion, an access visit that was scheduled for after the plan of care meeting almost had to be cancelled as K.C. was unable to remain calm.

(i) It had been observed that K.C. attended access consistently and on time; K.C. completed instrumental childcare tasks adequately; K.C. spoke to T. in a child friendly voice and at least once without prompting showed T. affection by cuddling and kissing her and telling her that she missed her.

(j) It had been observed that at times, the worker’s suggestions were met with resistance from K.C., and she did not do certain things for T. as the worker had asked because she did not want to follow the worker’s suggestions. For example, T. was observed crying and K.C. delayed feeding her because it had been suggested to her that she do so. K.C. agreed and advised that she did not like people telling her what to do and she felt the worker did not give her a chance to do what she needed to do with T..

(k) There were concerns regarding K.C.’s ability to keep her emotions in check and at times, the worker feared for T.’s safety, especially when K.C. was upset.

(l) Further observations included that K.C. became angry and agitated at the worker when she made a suggestion, K.C. struggled to meet T.’s emotional needs, and teaching K.C. was difficult as she had shown an inability to understand concepts. K.C. reported that she felt agitated when being ‘followed’ by the worker.

[30] The Fall, 2020 Statement of Agreed Facts includes the following regarding K.C.’s involvement with child welfare authorities from 2019-2020:

(a) In January, 2020 K.C. moved into a bachelor until connected with Yonge Street Mission (YSM) and continued to live there.

(b) K.C. advised that she continued to take her medication. However, her support person Ms. Jo reported in April, 2020 that from what she understood, K.C. had not been able to take her medication, as she was to be seeing her psychiatrist regularly to have her dosage increased incrementally but this had not happened due to COVID-19 restrictions.

(c) Access with T. occurred at YSM and generally went well, with her support person from YSM supervising. Prior to in-person access stopping because of the COVID-19 pandemic, K.C. arrived on time, was able to engage with T., and responded to T.’s needs. In March, 2020 K.C. began to have virtual access via video chats and phone calls with T..

(d) The Society remained concerned that K.C. continued to have difficulty controlling her anger. Two incidents occurred at Yonge Street Mission while K.C. was having her access there, and T. was present. These incidents involved K.C. becoming verbally aggressive towards her support person at YSM and could only be managed by her support person leaving K.C. alone with T. and monitoring the access from a different area to de-escalate the situation.

2.3 Current Litigation Regarding K.

[31] With respect to the litigation regarding K.:

(a) On January 10, 2022, the Society commenced a protection application in which it requested that K. be placed in the interim care and custody of the Society for six months, with access by K.C. to be at the discretion of the Society.

(b) On January 11, 2022, Justice Scully made a temporary and without prejudice order that K. shall be placed in the temporary care of the Society and that K.C.’s parenting time shall be at the discretion of the Society as to frequency, duration, location, and level of supervision, a minimum of twice per week, and subject to any public health recommendations related to the COVID-19 pandemic in place at the time of the access.

(d) On January 20, 2023, Justice Kapurura granted the Society discretion with respect to whether K.C.’s parenting time was virtual or in-person.

(e) On March 21, 2023, Justice Kapurura appointed the Office of the Public Guardian and Trustee to legally represent K.C.

(f) On June 22, 2023, the Society amended its application to request an order that the child be placed in the extended society care of the Society with no access to K. by K.C.

2.4 Positives Regarding K.C.

[32] K.C. has attended meetings and medical appointments regarding K.:

(a) Since K. has been in the Society’s care, the Children’s Services Worker, Terence Sit has organized five virtual Plan of Care meetings at which K.’s well-being and progress was reviewed. K.C. has attended four of the five meetings scheduled. With respect to these meetings, K.C. was on time, she asked questions related to K.’s care, and she expressed her concerns.

(b) K.C. attended K.’s medical appointments on July 11, 2022; October 18, 2022; and January 10, 2023. She also attended his dental appointment on February 21, 2023. There were no incidents during the medical appointments. K.C. attended on time, she asked questions of the doctor, and showed great interest in K.’s health.

[33] Mr. Sit has also supervised many visits between K.C. and K. His observations include:

(a) K.C. was on time;

(b) K.C. was happy to see K.;

(d) K.C. asked questions regarding K. and his care.

[34] Family Support Worker DiAndrea Cummings supervised K.C.’s access with K. from February, 2023 to the time her affidavit was affirmed (November, 2023). She noted the following positives regarding the access:

(a) K.C. attended access on a consistent basis;

(b) K.C. was excited to see K., and for the most part she was caring towards him, she told him that she loves him and misses him;

(d) K.C. brought food and snacks to visits. She ensured that food she re-heated was a suitable temperature for consumption;

(e) K.C. read and responded in the communication book with Ms. Cummings’ assistance, and at times, on her own;

(f) During the Summer of 2023, when K.C.’s access occurred in the community, she was cautious over the child’s surroundings; and

(g) K.C. brought toys that she knew K. would enjoy.

[35] Patricia Dunn, a case manager specialist employed by YSM who supported K.C. between September, 2022 to January 18, 2023 noted:

(a) K.C. arrived on time and well prepared for her visits; and

(b) She saw K.C. display affection and concern for K.

[36] Lerecia Williams, who was K.C.’s Family Services Worker in 2022 and 2023 also made positive observations regarding her access, including that:

(a) K.C. regularly arrived early for visits;

(b) She used the articles left for K.’s care by the foster mother;

(d) She used the communication log to ask questions and get updated;

(e) She spoke lovingly to K.; and

(f) She sometimes accepted feedback.

2.5 K.C.’s Mental Diagnosis

[37] The Society submits that there is considerable evidence to support that K.C. has a mental health diagnosis. In support of this, the Society relies on its Practitioners’ Report Brief, which contains:

(a) Psychiatry consultation note of Dr. Wai dated […], 2018 of meeting with K.C. the day after T. was born.

(b) Psychiatry consultation note of Dr. Dang dated […], 2022 of meeting with K.C. the day after K. was born. It is not “St. Michael’s Hospital Psychiatry Consultation Report Dr. Liana Kaufman, dated […], 2022,” as described by the Society in the Table of Contents to its Practitioners’ Report Brief; it is Dr. Dang’s consultation note, which is addressed to Dr. Kaufman. As well, pages 3 and 4 are duplicates, and appear to be page 2.

(c) Notes of ‘St. Michael’s Obstetrics Mental Health Follow-up Visits’. The Table of Contents of the Practitioners’ Report Brief states that these records are “St. Michael’s Hospital Obstetrics Mental Health Follow-ups by Dr. Julie Maggi, dated October 4, 2018 to October 5, 2019”: (i) only the first page of the October 4, 2018 note is provided and Society counsel did not have the balance of that note to provide at the hearing of the motion; (ii) there is no note dated October 5, 2019; (jjj) there is a note (December 5, 2019) which post dates the time period referenced in the Table of Contents; (iv) not all the notes were authored by Dr. Maggi; it is often stated that the notes were authored by others, and reviewed with Dr. Maggi.

(d) The Table of Contents of the Practitioners’ Report Brief states that Tab 5 is the “Centre for Addition and Mental Health ED Multi Disciplinary Assessment by Dr. Kineta Valoo, dated April 13, 2023”. However, the following is at Tab 5:

(i) Triage note of Jessica Park (RN) at CAMH dated April 13, 2023;

(ii) ED Multi-Disciplinary Assessment performed by Tollla Hallengo (RN) on April 13, 2023 (which does include components completed by Dr. Valoo);

(iii) ED Multi-Disciplinary Assessment dated April 19, 2023 performed by Marc Greene (qualifications unknown), however, only the first page of Mr. Greene’s Assessment is provided; we know from Ms. Hallengo’s report that there are 12 parts to ED Multi-Disciplinary Assessments.

(e) Centre for Addiction and Mental Health Inpatient Discharge Report by Dr. Milovic dated April 17, 2023.

[38] K.C. denies having been diagnosed with a mental disorder.

[39] The St. Michael’s Obstetrics Mental Health Follow-Up Visit notes reveal the following historical information:

(a) K.C. struggled to provide a detailed health history.

(b) K.C. had been prescribed medication. She expressed uncertainty as to its purpose. On occasion, she said it was helpful, but could not explain how it was helpful.

(d) K.C. struggled to regularly attend medical appointments as scheduled.

(e) K.C.’s thought process often presented as disorganized; it was difficult to follow her ideas and to understand what she was trying to convey. Short answers could be clear, but elaboration was often difficult to follow. Often, her answers were not coherent with the questions.

(f) K.C.’s disorganized thoughts have impacted her judgment and insight. For example, at her September 12, 2019 appointment at St. Michael’s Obstetrics Mental Health, K.C. advised that she had been assaulted three weeks prior, and she wanted to move to Edmonton because she felt it would be quieter there. She was inspired by the pictures of Edmonton in her passport. She was encouraged to reconsider moving as she did not know anyone in Edmonton and her supports were in Toronto. As well, in the Fall of 2019, YSM called a code white on K.C. She was yelling and called her support worker Ms. Jo and told her she wanted to kill herself. K.C. indicated that she was trying to communicate her distress of not seeing her children, but she had no intent to harm herself or others.

(g) In 2019, she experienced instability in housing, having to move from one shelter to another.

2.6 K.C.’s Emotional Regulation

[40] The Society’s evidence includes the following with respect to K.C.’s difficulties with emotional regulation:

(a) On October 21, 2022, K.C. refused to return K. at the end of an access visit that was occurring at YSM. Ms. Dunn, who was supervising the visit, encouraged K.C. to return the child, but K.C. remained emotionally dysregulated and continued to yell and scream at Ms. Dunn and other staff (while K. was in K.C.’s arms). The police were called to assist with taking K. from K.C. K.C. tried to run away when the police arrived and later got into a physical altercation with a police officer. K.C. was brought down to the ground and arrested.

(b) At the December 13, 2022 access visit, K.C. continued to try and feed K., despite him continuously showing he did not want to be fed. Ms. Williams advised K.C. to look at the cues that K. did not want to be fed at that time. K.C. became upset, told Ms. Williams she did not require feedback, and demanded that Ms. Williams leave the room. K.C. left the room with K. and Ms. Williams asked her to return. K.C. proceeded to yell and swear at Ms. Williams, while she was holding K., and informed her that she did not require her feedback. After several minutes, K.C. returned to the access room and upon doing so, K.C. made verbal threats to beat up Ms. Williams.

(c) At the January 17, 2023 access visit, K. started to cry. K.C. did not respond. Ms. Dunn asked K.C. to pick K. up and console him. K.C. did not respond to this direction. Ms. Dunn picked K. up to console him. K.C. became upset and yelled at Ms. Dunn to give K. back to her. Ms. Dunn asked K.C. to calm down before she gave K. to her. While Ms. Dunn was holding K., K.C. started to grab K.’s arm forcefully. K.C. lunged towards Ms. Dunn, who pivoted her body away from K.C. as she feared she may cause K. physical harm. At this time, K.C. proceeded to pull Ms. Dunn by her hair, causing her to lose her balance, while K. was in her arms. After she lost her balance, Ms. Dunn accidentally grabbed K.C.’s hair to prevent her from falling on the floor with the child in her arms. K.C. continued to pull Ms. Dunn’s hair and subsequently brought her to the ground, with K. in her arms. K.C. proceeded to punch Ms. Dunn in the face, while she hovered over K. to protect him as she feared K.C. may cause him physical harm.

(d) On June 27, 2023, K.C. refused to release K. at the end of the visit. K.C. appeared agitated and confused about where K. was going and what was happening. Ms. Kelland explained to her that K. would be returning to his foster home, like he usually does at the end of visits. In response, K.C. told Ms. Kelland that she did not make any sense since he should just go home with her. K.C. continued to escalate by raising her voice and holding the child more tightly in her arms. K.C. told Ms. Kelland that K. was being kidnapped. K.C. advised Ms. Kelland that she did not want to assault her, but she would do so if she had to. The duty coverage supervisor, Dave Lewis (along with Ms. Kelland and society worker Ms. Cummings) had to provide support to K.C. in ending the visit.

(e) On August 18, 2023, K.C. advised Ms. Williams that she wanted the facts presented in the Society’s affidavits regarding her having a diagnosis of schizophrenia changed. K.C. accused Ms. Williams of lying about the information she had received from the previous society worker. K.C.’s behaviour escalated to yelling. Ms. Williams tried to calm her down, but K.C. continued to escalate and become louder. At one point, K.C. turned her body towards Ms. Williams to confront her. Ms. Williams told her that the meeting had to end due to her behaviour and walked away. K.C. continued to yell at her and called her a ‘bitch’. As Ms. Williams walked away, K.C. first walked, then ran, towards her. Ms. Williams feared for her safety and as such she ran behind two class doors at the Society’s office to protect herself. K.C. grabbed the doors and tried to pull them open. K.C. continued to bang on the glass doors and say, ‘why are you running bitch’. The building security guards had to be involved and tried to place themselves between K.C. and the doors to protect her. A ‘code white’ was called, which resulted in other visiting families having to shelter in place in their rooms for safety. Following this incident, the Society developed a safety plan in relation to K.C.

[41] The Society’s evidence includes the following with respect K.C.’s behaviour at K.’s Plan of Care meetings:

(a) At the March 30, 2022 meeting, K.C. got upset and started to raise her voice at Mr. Sit as he tried to advise her about appropriate toys she could purchase for K. K.C. also got upset because the clothes she purchased for K. were returned to her because they were too small for him. She also became upset and raised her voice when speaking to Mr. Sit about the child’s dry skin. K.C. alleged that the foster mother was using organic oil that burned her other child and she worried that this could happen to K. She said that using lotion was abusing K. because he did not know the foster parents. K.C. required a break and turned her camera off, but did not return later, so the meeting was ended.

(b) At the June 27, 2022 meeting, K.C. became upset at Mr. Sit about K. remaining in care. K.C. had to be redirected throughout the meeting to keep her focus on K. K.C. became very upset when she was told that the foster mother provided K. an ounce of water after his formula to help with his bowel movements; she was very upset that a doctor wasn’t consulted and wanted to know who gave the foster mother permission to give him water.

2.7 K.C.’s Thought Processes

[42] The Society’s evidence includes the following regarding K.C.’s thought processes:

(a) At the March 21, 2022 meeting, Ms. Williams observed that K.C. struggled to stay on topic in relation to the conversation and questions. K.C. had to be redirected to remain engaged and calm.

(b) At the April 12, 2022 access visit, K.C. spent approximately 30 minutes of the visit speaking to Mr. Sit about many issues; he found it very difficult to follow her because she was disorganized and jumped between topics quickly during the conversation.

(c) At the June 27, 2022 Plan of Care meeting, at times, K.C. said things to Mr. Sit that he was unable to understand because of her disorganized speech; she jumped from one topic to another.

(d) Ms. Dunn noted that K.C. was willing to work with her, but K.C.’s lack of capacity to understand negatively impacted K.C.’s ability to effectively communicate with her. Ms. Dunn also observed that K.C. struggled with organizing her thoughts which often led to K.C. being frustrated and aggressive towards her during her conversations.

(e) Ms. Cummings received numerous emails from K.C. which were “incoherent, lacked any pattern of communication, and included the same questions that were already answered.”

(f) Ms. Kelland, who has been K.C.’s family service worker since August, 2023, has received several emails from K.C. Sometimes these emails were to request a meeting, to have her access increased, or to have the child placed with her. Other times, K.C.’s messages were lengthy series of disorganized thoughts, without punctuation.

(g) At the August 29, 2023 transfer meeting, Society supervisor Christine Raposo presented K.C. with the safety plan regarding her access visits, which included the Society’s expectations. Ms. Kelland observed K.C. to be tangential, disorganized, and having difficulty following the conversation. K.C. had difficulty focusing and continued to talk about a plan to increase her access and transition K. to her care.

(h) At the September 28, 2023 virtual planning meeting, Ms. Kelland observed K.C. to be confused, disorganized, and to repeat a lot of the same things over and over without seeming to understand or retain the information provided.

(i) On many occasions, K.C. has asked why K. is in the Society’s care and when provided with the reasons, she appears unable to accept and/or comprehend what she has been told.

2.8 K.C.’s Access Visits

[43] The Society’s evidence includes the following regarding K.C.’s loss of focus, unusual behaviour, and inappropriate comments at access visits:

(a) On April 1, 2022, K.C. laughed loudly without reason, talked to herself very loudly, and paced the room while K. slept.

(b) On May 13, 2022, K.C. asked the child if he was “locked in the foster home by himself” without any reason for such an inquiry.

(c) On January 6, 2023, Ms. Dunn observed that K.C. was unable to remain engaged with K. for the majority of the visit and at times, K.C. got distracted talking about emails etc. Ms. Dunn had to redirect her to pay attention to K.

(d) On February 24, 2023 and March 2, 2023, K.C. started to discuss her daily routine instead of focusing on the visit. She also made comments that were unrelated to the access visit and blurted out comments such as, “I’ll be on my way”; “slavery”; and “you need prayer”.

(e) On October 10, 2023, Ms. Cummings told K.C. of different activities she could do to assist K.’s development, including his speech and vocabulary, given that he was assessed as being behind in these areas. In response, K.C. told Ms. Cummings that the child did not require anything related to his development and moved to another unrelated topic. Ms. Cummings tried to focus K.C. to the child’s development, but she continued to jump to other topics and lose focus.

(f) On October 17, 2023, unprompted, K.C. told Ms. Cummings that people were talking about her and she started to cry. K.C. went on to ask Ms. Cummings why she was there, and K.C. told Ms. Cummings she would call the police. K.C. started to talk about a man going to her house and being at the visit with her. Later in this visit, while cleaning up a spill, K.C. got very upset and told Ms. Cummings, “This guy is still whispering to me, when I am doing my shit, that’s abuse.” There was no one else present during the visit. Also at this visit, K.C. asked Ms. Cummings if she wanted to help her make a call. When Ms. Cummings asked her to clarify, K.C. was unable to tell her which call she needed help with. K.C. spoke about the bruise on her face several times and told Ms. Cummings that it was from yelling. At the end of the visit, K.C. went from very upset to totally calm and wanted to discuss the access visit. Ms. Cummings was unable to follow K.C.’s communication due to her thought pattern being ‘very sporadic’.

[44] The Society’s evidence includes the following with respect to K.C.’s struggles to appreciate physical safety issues at access visits:

(a) On March 3, 2022, Ms. Williams observed K.C. holding K. by his head.

(b) On April 1, 2022, Ms. Williams observed K.C., at times, holding K. in an erect position that seemed to be putting pressure on the child’s back. At times, K.C. held K. while she moved around in a way that resulted in his head becoming wholly unstable.

(c) On January 17, 2023, Ms. Williams discussed with K.C. what transpired that day between her and Ms. Dunn. K.C. did not demonstrate any insight into how assaulting Ms. Dunn while she held K. could have impacted K.’s physical, emotional, and psychological well-being.

(d) On March 21, 2023, Ms. Cummings observed K. shoving multiple puff chips in his mouth. K.C. did not react and did not appreciate the choking hazard. Ms. Cummings advised K.C. on multiple occasions to remove multiple puffs from K.’s mouth as it was a choking hazard, however, K.C. did not immediately follow through with the request.

[45] The Society’s evidence includes the following with respect to K.C.’s struggles to pick up on K.’s cues at access visits:

(a) On April 12, 2022, K.C. fed K. although he did not display any cues or make any signals to K.C. that he required a feeding.

(b) On March 14, 2023 at a medical appointment, Ms. Williams advised K.C. to rub K.’s back as he received his vaccination injection; she did not.

(c) On May 19, 2023, K.C. stopped feeding K. when he was displaying cues that he was hungry and wanted more. Ms. Cummings suggested that she check to see if K. wanted more food and without doing so, K.C. told Ms. Cummings he did not. When Ms. Cummings asked how she knew he did not want anymore food, K.C. asked K. if he wanted more food and then told Ms. Cummings he said no (K. was not even 1.5 years old at the time). When Ms. Cummings advised K.C. that K. was unable to express his desire clearly at this age and that she should re-try feeding him to see if he wants more, K.C. did not try again.

(d) On May 26, 2023, K.C. again asked K. if he was hungry. Ms. Cummings advised her (as she had the week before) that K. was unable to clearly verbalize his needs at his age and she should be picking up on his cues; K. was reaching for the food on the table. K.C. did not feed him, because she assessed that he was not hungry. Ms. Cummings proceeded to put the child in a highchair and feed him. After a while, K.C. saw that K. was eating and took over feeding him.

(e) On September 19, 2023, as K.C. was putting K. on the floor, he became fussy and threw himself on the floor. K.C. did not pick him up to comfort him. K.C. was unable to understand why the child was upset. Ms. Cummings subsequently picked him up.

(f) On October 10, 2023, K.C. again did not ensure that K. was full and instead, K.C. determined he was full. K. displayed cues of hunger such as fussiness and looking at the lunch box.

(g) On October 20, 2023, K. was crying. First, K.C. asked him why he was crying and asked him to stop. Then, as he continued to cry, K.C. picked him up to console him, but shortly thereafter got upset with him because he would not stop fussing. She placed K. on the couch beside her, but then moved him away from her as he was still being fussy.

(h) At many access visits, K.C. required numerous reminders from Ms. Cummings to change K.’s diaper after she failed to notice it needed to be changed, or without checking, K.C. told Ms. Cummings that K. did not require a diaper change.

(i) Ms. Dunn observed that K.C. was unable to pick up cues from the child regarding his physical and emotional needs.

[46] The Society’s evidence includes the following with respect to K.C. being agitated during access visits:

(a) On March 3, 2022, as Ms. Williams tried to speak with K.C. about safety concerns in her home, K.C. interrupted her and loudly spoke over her.

(b) On March 4, 2022, K.C. became upset with her partner Mr. J.. K.C. also became upset when her doula, Ms. Hill tried to teach her new techniques to care for K. As Mr. J. was leaving the visit, K.C. got very loud and upset with him to the point Mr. Sit had to ask K.C. to calm down and focus on the visit. K.C. apologized for this behaviour on March 11, 2022 and stated that she understood this behaviour was not acceptable.

(c) On April 1, 2022, when Ms. Williams pointed out to K.C. that her constant moving with K. in her arms was causing him to be unable to sleep, she responded by accusing Ms. Williams of calling her a ‘bad mother’.

(d) On April 12, 2022, when Mr. Sit pointed out to K.C. that the car seat straps were too loose she got upset at him, raised her voice, and told him that he woke K. up. Mr. Sit told K.C. that the child’s safety in the car seat was more important. K.C. proceeded to ask Mr. Sit multiple times why he woke K. up, and he reminded her that the child’s safety was very important, and the straps needed to be secured correctly.

(e) On May 24, 2022, K.C. suddenly threw K.’s bag to the wall as she said something to the child.

(f) On August 26, 2022, K.C. yelled at the Society driver and accused her of inappropriate behaviour with children.

(g) On December 20, 2022, K.C. got upset while she was feeding K. As well, when K. became upset, following K.C. taking a toy away from him, she picked him up and yelled several things to him, including, “stop crying” and “stop being bad.” Later, K.C. was upset by a smell in the room (which Mr. Sit could not smell). She said her skin was burning and she exited the visit room, leaving K. in a swing, without telling Mr. Sit of her plan to leave. At this access visit, K.C. also got upset with K. because he was moving around; she raised her voice at him multiple times and kept telling him to ‘stop’. K.C. placed K. in the car seat with approximately 10 minutes remaining in the visit. K.C. was visibly upset with K. because he was moving around in the car seat; she yelled at him to ‘stop’. She was also angry at this visit because K. was putting his thumb in his mouth. While looking very upset, she threw the diaper changing pad at the wall in anger.

(h) On February 24, 2023 and March 2, 2023, for reasons unknown to Ms. Cummings, K.C. became agitated and she had to end these two visits early.

(i) On March 14, 2023, Mr. Sit asked K.C. if she wanted him to take K.’s jacket off as she was holding him by the jacket and the room was warm. She got upset and raised her voice at Mr. Sit; she told him that she knew what she was doing and asked him why he was talking to her.

(j) On March 21, 2023, following redirection by Ms. Cummings about K. having too many puff chips in his mouth, K.C. got upset at Ms. Cummings.

(k) On May 20, 2023, as Ms. Cummings put K.’s blanket in the child’s bag for the child’s departure, K.C. became upset with her and yelled at her to stop following her and step back. Ms. Cummings explained that she was only putting the child’s blanket in the bag, but K.C. remained upset with her.

(l) On July 25, 2023, K. was displaying cues of wanting to be put down on the ground while he was in K.C.’s arms. K.C. asked him to behave. The child was waving his hands and accidentally hit K.C. in the mouth. She became visibly frustrated, tapped the child on the hand (not enough to cause physical harm), and put him on the ground. K.C. then picked K. up and he threw himself back and started to cry. In response, K.C. asked K. to stop and raised her hand as if to slap him, but she did not. Ms. Cummings interjected and advised K.C. that the child was young and likely to express his desire to be put down by getting fussy. Ms. Cummings suggested she use gentle words to ask K. to calm down if she did not want him to accidentally hit her again. K.C. was dismissive towards K. and asked Ms. Cummings to take him to the driver.

(m) On October 17, 2023, K.C. got upset with K. because he got fussy when K.C. tried to put on his jacket. K.C. spoke loudly to the child, saying, “Don’t act like that with me, especially in front of these people. Don’t act like that.” Later in the visit, K.C. got upset with K. again when he dropped his snacks on the floor. She told him in a loud voice, “Stop doing that. I am not going to put up with that.”

2.9 K.C.’s Willingness And Ability To Engage With The Society And In Services

[47] The Society’s evidence includes the following regarding K.C.’s willingness and ability to engage with the Society and in services:

(a) On March 21, 2022, K.C. indicated at a service meeting held at YSM (at which Dale Thompson (support person from YSM) and Meka Sadler (K.C.’s doula) were present) that she was diagnosed with schizophrenia, that she was not taking any medications related to her diagnosis, and she was not interested in doing so. K.C. also said that she did not want to reconnect with her mental health providers.

(b) At the end of June, 2022, K.C. confirmed with Ms. Williams that she was no longer working with her lawyer, nor did she have the support of her doula. K.C. declined a referral to CAMH or CMHA by the Society.

(c) On September 27, 2022, Ms. Williams advised K.C. that she required personal supports and needed to connect with mental health providers. K.C. declined mental health supports. K.C. declined Ms. Williams’ offer of a mental health assessment.

(d) On November 16, 2022, Ms. Williams reiterated to K.C. that the Society expected her to connect with mental health supports, engage in treatment for her mental health, and secure a support person that could assist in caring for the child.

(e) On November 30, 2022, Ms. Dunn emailed the Society and advised that she had discussed mental health supports with K.C., with little to no response from her.

(f) On January 30, 2023, Ms. Williams introduced K.C. to a psychologist. During this meeting, K.C. initially agreed that she would receiving counselling from this psychologist but declined to do so shortly after the psychologist left. Ms. Williams asked K.C. if she wanted to reconnect with her previous psychiatrist Dr. Levy; K.C. said no.

(g) On June 8, 2023, K.C. told Ms. Williams that her psychiatrist at CAMH had told her that she had a ‘cognitive delay’ and no treatment plan was assigned.

(h) At the August 29, 2023 transfer meeting, Ms. Kelland offered K.C. her business card which she declined. K.C. told Ms. Kelland that if she was not going to return K. to her care, she did not need to talk to her.

(i) On September 28, 2023 at a virtual planning meeting, K.C. advised the participants (Ms. Kelland, YSM support worker Michael Feurtado, and Ms. Cummings) that she did not need mental health support and there were no issues.

2.10 K.C.’s Evidence With Respect To Her Mental Health, Behaviour, And Thought Processes

[48] K.C.’s evidence includes the following with respect to her mental health, behaviour, and thought processes:

(a) She does not have any mental health issues.

(b) She has never been diagnosed with any mental health issues.

(c) She was on medications prescribed by Dr. Maggi but was never informed that they were for mood. Instead, she was told that it was to help her with sleep and to improve her cognitive abilities.

(d) She does not have thought disorganization.

(e) She does not have impairments in executive functioning.

(f) She does not have persecutory delusions.

(g) She does not have cognitive impairments.

(h) She does not have any issues with impulsivity.

(i) She does not have difficulty with distress.

(j) She does not have poor insight into her mental health.

(k) K.’s apprehension has caused her to suffer negative mental affects such as depression and anxiety. Despite this, these issues do not affect her ability to parent K.

(l) She actively takes steps to take care of her mental health. On April 14, 2023 she voluntarily went to CAMH to see if she could get a health check because she was not feeling well. She was not sleeping well, was tired, frustrated, and upset at the fact that K. has been in care for a very long time.

(m) She does not agree that she has been threatening or violent towards Society workers.

(n) She has raised her voice at certain times, not out of anger, but to ensure that she was not misunderstood.

(o) She realizes that it may be frightening to K. to hear raised voices and she will learn from this and try to minimize K.’s exposure to such statements in the future.

(p) With respect to the incident with Ms. Dunn, K.C. stated, “...while I regret hitting her, I must say that I did that only because Ms. Dunn first elbowed me and pulled my hair, resulting in my head hitting a metal pole. During that visit, K. was having a temper tantrum and I did not interact with him until he acted more appropriately. I wanted to teach him how to resolve temper tantrums. Instead of respecting my decision as a mother, Ms. Dunn picked K. up and gave him snacks. I told Ms. Dunn that she should not be giving K. such positive reinforcements when he acted poorly and asked for her to give K. back to me. She said no, elbowed me, and pushed me away, and then she pulled my hair and my head hit a metal pole. It was then that I punched her, out of self-defence. I understand that it was dangerous given that K. was in Ms. Dunn’s hands but I noticed that Ms. Dunn was squeezing K.’s head very hard before I acted out of self-defence.”

2.11 K.

[49] K. remains in the same foster home since he was brought to a place of safety in January, 2022.

[50] He has attended all his scheduled medical appointments and baby checks.

[51] His immunizations are up to date.

[52] There have been no concerns or worries noted by the doctors in relation to K.’s health or development.

[53] Mr. Sit has observed K. to be a very happy child.

[54] K. was meeting his developmental milestones, however, following completion of the 18 months Ages and Stages Questionnaire, it was noted that K. requires further assistance regarding his communication, fine motor, problem solving, and personal-social skills. Mr. Sit and the foster mother made plans for daily care that would allow K. to work on these areas.

2.12 The Society’s Plan

[55] The Society made a referral to the African, Canadian-Black Family Group Conference (“ACB FGC”), with K.C.’s consent, to search for a kinship placement for K. The facilitator was not able to reach any of K.C.’s family members.

[56] K.C.’s evidence with respect to the Society’s plan is:

(a) “I understand that the Society would like to place K. with C.M. and D.M. Other than the fact that I would like to K. placed with me. I sternly oppose any placement with the M.s.”

[57] The Society’s evidence includes the following with respect to its plan for K.:

(a) Ms. Kelland states, “It is my assessment that an access order between K.C. and the child would place the child at likely risk of physical and/or emotional harm and is therefore not meaningful or beneficial for the child. Furthermore, having regard to the safety risk to others who may supervise or interact with K.C., it is my assessment that an order for access will impair the child’s future opportunities for adoption.”

(b) Ms. Kelland further states, “In my assessment, the child’s permanency plan to be adopted by family and placed with his two siblings would be hindered by an access order due to the safety issues K.C. created in the past during her access visits for the family members. K.C. has continuously questioned why the child is in care, the care being provided by the foster parents, and believes the child should be returned to her. This thought process has not changed, therefore, there exists a significant likelihood that her beliefs in to have the child returned to her care will continue through any post extended society care / openness contact and likely result in risk to the child and the child’s permanent placement.”

(c) Ms. Cummings states, “In my assessment, K.C.’s behaviour and inability to mitigate the protection concerns are clear indicators that if she continues to be involved in the child’s life there is a likely risk that the child will suffer physical and emotional harm. Furthermore, K.C.’s lack of insight into her shortcomings and the best interests of the child may lead to K.C. interfering with permanency for the child and hinder his ability to live an emotionally healthy and prosperous life.”

(d) Mr. Sit states, “The child is a healthy, happy boy and working towards meeting his milestones. The permanency plan for the child is to place him for adoption once he is legally free to do so. Based upon my experience, there is a strong likelihood that an appropriate, racial and culturally matched home will be available to adopt the child. However, it is not in the child’s best interests to maintain access with his mother. Over the course of one year and 11 months K.C. has displayed great love for the child, but K.C. has not made any progress in addressing her mental health or improving her parenting capacity. Given the emotionally volatile, confrontational and occasionally aggressive and abusive manner in which she treats those who have been trying to support her and the child, any future placement could be at risk if faced with the same challenges. Furthermore, K.C. focuses on her view that it is unjust for her child (and other children) to be in care, and, in my view, this belief could interfere with the child’s emotional stability and well-being if exposed to these views and behaviour over the course of time.”

2.13 K.C.’s Plan

[58] K.C. wants K. to be placed in her care, with a supervision order if required. K.C.’s evidence in support of this plan includes the following:

(a) She has sufficient parenting skills to take care of K.

(b) She is able to understand his needs and satisfy them.

(d) She and K. have a loving relationship.

(e) She has always indicated a willingness to take parenting courses, if required by the Society. The Society has not given her any referrals to any such parenting resources. Instead, she has proactively taken parenting classes at the YSM.

(f) She currently stays at YSM. The YSM has indicated to her that she would have access to a larger unit when K. is returned to her care.

(g) Her housing will be child appropriate for K.

[59] If K. is placed for adoption, K.C.’s evidence is:

(a) She will respect the court order.

(b) She would like to have continued access to K.

(d) She will not say that K. should be in her care.

(e) She just wants to have a continuing relationship with K. and see him grow and support him in any way she can.

Part 3 – Legal Considerations

3.1 Summary Judgment

[60] The Society brings this motion pursuant to Rule 16 of the Family Law Rules (“the Rules ”) .

[61] If there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly. See: Rule 16(6) .

[62] The court may grant summary judgment on some issues, while ordering a trial or mini-trial on other matters in relation to which there is a genuine issue requiring a trial. See: Rule 16(6.2) .

[63] In Hryniak v. Mauldin, 2014 SCC 7 ( Hyrniak ) , the Supreme Court of Canada confirmed that 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 allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.

[64] In Hryniak , the court set out a two-stage process for summary judgment motions:

a. The judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact findings powers in Rule 16(6.1) and (6.2) .

b. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using fact-finding powers (per Rule 16(6.1), provided that it is not against the interest of justice to do so.

[65] The standard for fairness within a summary judgment motion is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that they can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. See: Hryniak .

[66] With respect to the use of summary judgment motions in child welfare proceedings:

(a) In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 361 (Kawartha) , the Court of Appeal stated that Hryniak 's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

(b) Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council. See: Kawartha.

(c) In L.M. v. Children’s Aid Society of the Region of Peel, 2019 ONCA 841 , the Ontario Court of Appeal clarified that the cautious approach in Kawartha, “neither precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context.” In this case, the court found that summary judgment in child protection cases can ensure a fair and just determination in a prompt and proportionate manner, but each case must be decided on the issues and evidence presented bearing in mind the particularly high stakes and Charter rights of parents and children in child protection cases.

(d) A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that the child faces some better prospects than what existed at the time of the society's removal of the child from the parent's care; and that the Respondent has developed some new ability as a parent. See: CAS of Hamilton v. D.B. et al., 2021 ONSC 4983 .

(e) Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care but are unable to take the steps to translate their proposals into a plausible reality. See: CAS Simcoe County v. T.D., 2012 ONSC 6737 ; CAS Waterloo v. R.A.M. & J.C., 2021 ONSC 2828 ; CAS of Hamilton v. D.B. et al. , supra.

(f) The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children, including summary judgment motions. See: Kawartha.

[67] With respect to the evidence at summary judgment motions:

(a) The burden of proof is on the party moving for summary judgment. They must provide affidavit evidence that "sets out specific facts showing there is no genuine issue requiring a trial." See: Rule 16(4) .

(b) The responding party must provide factual evidence demonstrating that there is a genuine issue requiring a trial. Mere allegations or denials are not enough. See: Rule 16(4.1) . This has been referred to as a party being required to put their "best foot forward". The court is entitled to assume that the responding party has presented all the evidence they would be able to adduce at trial. See: CAS of the Niagara Region v. S.T., 2020 ONSC 727 ; Children's Aid Society of Toronto v. K.T., 2000 ONCJ 20578 , 2000 O.J. No. 4736 (OCJ) ; Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200 ; CCAS of Hamilton v. T.E. et al., 2021 ONSC 3151 .

(c) It is not sufficient for a party opposing a motion for summary judgment to say that the evidence before a court might be weakened on cross-examination. See: Children’s Aid Society of Toronto v. M.R., 2016 ONCJ 215 . If cross-examination is desired to weaken the other party’s evidence, it should be completed in advance of the motion. See: Children’s Aid Society of Toronto v. T.B., 2009 ONCJ 782 .

(d) It is not sufficient on a summary judgment motion for a Respondent to say that further evidence may be available at trial. See: L.M. v. Peel Children's Aid Society , supra. Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not an adequate response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion. See: CAS of Hamilton v. D.B. et al. , supra.

(e) Although, Rule 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.

(f) Rule 16(5) allows for the use of hearsay evidence. However, if the party's evidence is not from a person who has personal knowledge of the facts, the court may draw conclusions unfavourable to the party. While hearsay evidence is admissible, each piece of hearsay evidence must be judicially weighed at the summary judgment motion. In making determinations regarding the weight to be given to hearsay evidence, the court must keep in mind the paramount purpose of the Act , and the primary objective of the Rules . See: CAS of Hamilton v. D.B. et al, supra.

(g) 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. In Kawartha , Justice Benotto adopted the following approach taken by Justice Sherr in Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 46 , at para. 25 :

My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make a determination.

(h) Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders. Statements of agreed facts are admissions, which are an exception to the hearsay rule. See: CAS of Waterloo v. M.W. and M.S., 2020 ONSC 1847 ; CAS of Toronto v. I.H., 2017 ONCJ 760 .

3.2 Statutory Findings

[68] Pursuant to s. 90(2) of the CYFSA , as soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine:

(a) the child's name and age;

(b) whether the child is a First Nations, Inuk or Métis child and, if so, the child's bands and First Nations, Inuit or Métis communities; and

(c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

3.3 Protection Findings

General

[69] The threshold issue in child protection proceedings is whether the subject child is in need of protection.

[70] If the court finds that the child is not in need of protection, then that is the end of the Society’s protection application. See: Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8 , at para. 116 .

[71] The onus of proof to determine a finding in need of protection is on the Society on a balance of probabilities. See: Children's Aid Society of Niagara Region v. R. (P.) , 2005 CarswellOnt 1406 (Ont. S.C.J.) .

[72] Despite anything in the Evidence Act , in any proceeding under Part V of the CYFSA , the court may consider the past conduct of a person toward any child if that person may care for or have access to a child who is the subject of the proceeding. Consideration of such evidence may occur at the protection finding stage. See: Subsection 93(1)(a) of the CYFSA ; Children’s Aid Society of Halton Region v. L.S.A., 2019 ONCJ 759 , at para. 81 .

[73] Past conduct evidence must not be permitted to suffocate evidence of a parent's current conduct, circumstances and functioning. The real relevance of past parenting evidence is the extent to which it provides a reliable backdrop against which to measure the extent to which the parents' abilities and circumstances have changed. See: Children’s Aid Society of Toronto v. F.A., 2015 ONCJ 678 .

[74] A child protection proceeding is unlike ordinary civil litigation. The court can choose a flexible approach when considering the timing of the protection finding in a child protection proceeding. The court can and should admit evidence arising at any time up to the date of the court hearing. See: Family and Children’s Services of St. Thomas and Elgin v. M.M., 2019 ONSC 4649 , at para. 63 ; Children’s Aid Society of Halton Region v. L.S.A. , supra , at para. 82 .

[75] The flexible approach allows the court to consider if the child is in need of protection at the start of the proceeding, the hearing date, or some other date. See: Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251 , at para. 85 .

Risk of physical harm

[76] Subsection 74(2)(b) of the CYFSA states:

Child in need of protection

(2) A child is in need of protection where,

(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,

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

[77] The Society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.

[78] The Society must prove that the risk of physical harm is real and likely, not speculative. See: Children's Aid Society of Rainy River (District) v. B. (C.), 2006 ONCJ 458 (Ont. C.J.) ; Children's Aid Society of Ottawa-Carleton v. T. , 2000 CarswellOnt 2156 (Ont. S.C.J.) .

[79] It is not necessary for the Society to prove intention to cause the children harm before finding that a child is in need of protection. See: Jewish Family & Child Service v. K. (R.), 2008 ONCJ 774 , affirmed at Jewish Family & Child Service v. K. (R.), 2009 ONCA 903 . However, it must be more than trifling physical harm. See: Children's Aid Society of Rainy River (District) v. B. (C.) , supra .

[80] A child may be at risk even if the conduct is not directed specifically towards that child. See: Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) , 1995 CarswellOnt 4393 (Ont. Prov. Div.) .

[81] Verbal abuse, aggression, and exposure to inappropriate situations can constitute risk of physical harm. See: Children’s Aid Society of Halton Region v. L.S.A. , supra, at para. 87 .

[82] Harm caused by neglect or error in judgment comes within the finding. See: Children’s Aid Society of the Niagara Region v T.P. , [2003] O.J. No. 412 (Ont. Fam. Ct.) .

[83] Untreated mental illness is a common circumstance leading to findings of physical harm or risk of physical harm. 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; others cannot. There is a wide range of mental illnesses that affect parents differently and, by extension, affect their children differently. The court needs to assess several factors to determine if a parent's mental illness places a child at risk of harm and if so, whether a child can still be placed in the parent's care. These factors include:

(a) The type of mental illness the parent has.

(b) The severity of the mental illness.

(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) Other risk factors impacting on the mental illness, including substance abuse, difficulties with interpersonal relationships, domestic violence and other stressors such as unstable housing and financial problems.

(g) The impact of the mental illness on the children.

(h) The insight of the parent into their mental illness.

(i) The ability of the parent to meaningfully engage with supports to address the mental health issues.

(j) Whether the parent is compliant with treatment recommendations.

(k) The strength of the parent's support system, the insight of those support persons into the parent's mental health issues and the ability of those persons to prioritize a child's needs to those of the parent's and to protect the child.

(l) Whether the children have any needs that make them more vulnerable to compromised parenting.

See: Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866 .

3.4 Disposition

Placement

[84] Subsection 101(1) of the CYFSA provides that where a court finds that a child is in need of protection, it must first satisfy itself that intervention through a court order is necessary to protect the child in the future.

[85] Subsection 101(8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act.

[86] In determining if a court order is necessary to protect a child in the future the court can consider protection concerns other than those that resulted in the child coming into care. See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482 .

[87] As well, prior to making any order under sections 101 or 102 of the CYFSA, pursuant to section 100 of the Act , the court shall obtain and consider a plan for the child’s care prepared in writing by the Society.

[88] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the Act , as set out in subsection 1 (1) , which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purpose, other purposes of the Act as set out in subsection 1 (2) are also designed to support the autonomy and integrity of the family unit and to utilize the least disruptive course of action available. See: Children's Aid Society of Toronto v. H.F., 2020 ONCJ 526 .

[89] If a court order is determined to be necessary to protect a child in the future, the court shall make one of the orders set out in subsection 101 (1) or section 102 of the Act in the child’s best interests. These read as follows:

Order where child 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:

Supervision order

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.

Interim society care

That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

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.

Custody order

102(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[90] Subsection 101(2) of the Act requires the court, in determining which order to make under section 101(1) or section 102, to ask the parties what efforts the Society or another agency or person made to assist the child before intervention under Part V of the Act.

[91] Subsection 101(3) of the CYFSA requires that the court look at less disruptive alternatives than removing a child from the care of the person(s) who had charge of the child immediately before intervention, unless it determines that those alternatives would be inadequate to protect the child.

[92] Subsection 101(4) of the Act states that where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under Part V of the Act, the court shall, before making an interim society care order or an extended society care order, consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection 101(1), with the consent of the relative or other person.

[93] In determining which disposition is in the child's best interest, the court must be aware of the mandated parameters regarding the total amount of time a child can be placed in the care of the Society. Subsection 122(1) states:

Time limit

122(1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding,

(a) 12 months, if the child is younger than 6 on the day the court makes the order; or

(b) 24 months, if the child is 6 or older on the day the court makes the order.

[94] Pursuant to subsection 122(5), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

[95] In determining the appropriate disposition, the court must decide what is in the children’s best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

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

(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.

[96] In Children's Aid Society of Toronto v. B. (S.), 2014 ONCJ 518 , the court discussed the importance of a parent providing a child with a safe, stable and secure home as follows:

[112] The major protection issue is the mother's ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.

[97] An order placing a child in the extended society care of the society (formerly crown wardship) is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children’s Aid Society of Hamilton-Wentworth v. J.G. (1997) 23 R.F.L. 4 th 79 (SCJ- Family Branch) ; Catholic Children’s Aid Society of Toronto v. G.O., 2014 ONCJ 523 .

Access

[98] Section 104 of the Act sets out the court’s powers in relation to access. It reads as follows:

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.

[99] When a court makes an order for extended care, any existing order for access to the child is terminated. See: Subsection 105(4) of the Act.

[100] Subsections 105 (5) and (6) of the CYFSA sets out the legal test for children who have been placed in the extended care of the society. It is a best interests test and the court has to consider whether the relationship between the child and the person seeking access is beneficial and meaningful for the child and whether access would impair the child's opportunities to be adopted.

[101] With respect to the determination of access post an extended society care order:

(a) The approach to access for children has significantly shifted as a result of the passage of the Act in 2017. It is now a broad, holistic best interests analysis; whether the child's relationship with a parent is meaningful and whether access would impair the child's opportunities for adoption, while important, are only two of many factors to consider, where relevant. See : Kawartha; Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 (J.G.)

(b) The legal test acknowledges that the CYFSA is remedial legislation enacted for the protection of society’s most vulnerable children, and as such it must be liberally construed to the benefit of the child. See: J.G.

(c) The interpretation of “beneficial and meaningful relationship” under the previous jurisprudence has no applicability under the current framework. The judicial injection of the words ‘significantly advantageous’ into the analysis may have applied under the old Act but it falls far sort of the expansive best interest considerations under the new CYFSA.” See: J.G.

(d) There is no longer a presumption against access for a child placed in extended society care. See: Kawartha, LM. V. Peel Children’s Aid Society , supra, at para. 70 . The issue of onus is more nuanced. The court is not called upon to determine past events and to make findings. Instead, the court must consider and weigh a number of factors, past, present, and future. A child’s best interests in connection with future access involves a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies. See: J.G.

(e) A parent who is not able to provide primary care may still have a meaningful and beneficial relationship with their children such that access post an order for extended society care is warranted. See: Kawartha.

(f) Access can come in many forms that depart from in-person visits and includes the exchange of gifts, emails, video chats, or phone calls. See: J.G.

(g) Access provides many benefits for children in extended society care: (i) It is very important for children to know their story, their history and where they come from; (ii) Many children will want to search out their birth parents at adolescence if they have no contact. It can help them remove any fantasy about their birth parents and have a more realistic understanding of who they are; (iii) It can help build a child's identity — to know who they are; (iv) It can help a child be more secure in where they have come from and where they are going. It might provide the child with a greater sense of security moving forward; (v) It helps the child understand their roots, heritage, culture and religion — about foods and events that are important in their culture; (vi) It helps the child understand why decisions were made about them and why they live where they live. It can inform them that they were and are loved by the birth parent; (vii) It definitely promotes self-esteem and can help meet the emotional needs of the child; (viii) It can provide the child with readier access to medical information. This can be very important if genetic concerns develop. This is also important information for the adoptive family to have; (ix) It allows the adoptive family to reinforce the child's ability to understand their story and their history.

(h) The challenge in making an access order for a child in extended society care is finding the fine balance between what will preserve a relationship in the best interests of the child and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the child in their new adoptive home. See: Children’s Aid Society of Ottawa v. J.B., 2017 ONSC 1194 .

(i) It is an error in law for a trial judge to delegate all discretionary decisions on the type, frequency, and duration of access in the discretion of the Society. Minimum rights of access must be established by the court. See : J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 (Div. Ct.) ; CAS of Waterloo v. T.D.R. and J.S., 2021 ONSC 2362 .

(j) While evidence of possible impairment of adoption opportunities would previously have thwarted access requests under the CFSA , under the CYFSA , access is to be ordered for a child with otherwise excellent adoption prospects if in his or her overall best interests. See: Kawartha.

(k) The court has set out the following attributes of persons who may impair a child’s future opportunities for adoption: (i) A difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family; (ii) A lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child’s sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child’s life; (iii) Dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child; (iv) A propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child’s life and are likely to engage in openness litigation; and (v) A person with a mental health condition, substance abuse issues, transience or chaotic lifestyle. Persons with this background may be difficult to deal with and their personal issues may result in there being difficulty in making arrangements with them for contact and as a result dissuade adoptive parents. See: Catholic Children’s Aid Society of Toronto v. R.E., 2023 ONCJ 154 ; Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631 ; Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678 ; Jewish Family and Child Service v. E.K.B., 2019 ONSC 661 ; and Catholic Children’s Aid Society of Hamilton v. I.B., 2020 ONSC 5498 .

[102] Pursuant to subsection 105(7) of the CYFSA , the court must specify who is an access holder and who is an access recipient in its decision. This is an important distinction, because only a holder of access may apply under subsection 196(1) of the Act to the court for an openness order, following notice that a child is being placed for adoption.

Part 4 – Analysis

4.1 General

[103] With respect to the Society’s request to conclude this matter via a motion for summary judgment:

(a) I have exercised exceptional caution before proceeding on a summary basis as this is a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.

(b) I have been consistently mindful that notwithstanding the obligations placed upon K.C. pursuant to Rule 16(4.1), the burden of proof lies with the Society. I’ve required that the Society set out specific facts showing there are no genuine issues requiring a trial.

[104] I find that it is in the interest of justice to proceed summarily with respect to the issues of whether K. is a child in need of protection; whether intervention through a court order is needed to protect K. in the future; and whether there are any lesser intrusive dispositions than extended society care. With resect to these issues, I can make the necessary findings of fact and apply the law to those facts. The evidentiary record is sufficiently comprehensive that I am able to make a fair and just determination of these issues on the merits without resorting to the expanded powers in Rule 16(6.1) and without the need for a trial. This is a proportionate and more expeditious and less expensive means to achieve a just result. It is appropriate that summary judgment be granted regarding these issues not because it is the inevitable result at trial, but because it is the correct result without the necessity of a trial.

[105] I find that it is not in the interest of justice to proceed summarily with respect to the issue of access post an order for extended society care. With respect to this issue, I cannot make the necessary findings of fact and then apply the law to those facts. The evidentiary record is not sufficiently comprehensive such that I am able to make a just and fair determination of this issue on the merits. The expanded powers in Rule 16(6.1) do not provide a means to do so. It is in the interests of justice that a mini-trial be held on this issue.

[106] Before proceeding, it is important to highlight that I have reached the conclusions that follow without finding that K.C. has a mental diagnosis.

[107] The court has not been presented with a comprehensive, written, medical report clearing stating who (and their qualifications) made what diagnosis, when it was made, and how (the methodology used) the diagnosis was arrived at.

[108] The psychiatric consultation notes of Dr. Dai and Dr. Dang do not provide a definitive diagnosis. Even if they did, these consultations were completed the day after K.C. gave birth; the validity of any diagnosis made in those circumstances would be questionable and this concern would have to be clearly addressed by medical evidence.

[109] There are two themes in the notes of St. Michael’s Obstetrics Mental Health Follow-Up Visits, which end December, 2019:

(a) There is repetition of K.C. having ‘atypical schizophrenia’ (which manifests as thought disorder, possible persecutory delusions) without any indication of the foundation - either in the notes or otherwise in the Society’s evidence - for those statements; and

(b) There is a fair amount of questioning by those involved with this program as to whether K.C. meets the criteria for a mental diagnosis, but there is no evidence to support this has been conclusively determined following a fulsome assessment. For example (i) the impression of the doctor (unknown) at K.C.’s September 12, 2019 appointment was, “ l ikely atypical schizophrenia presenting as frank thought disorganization and nonsensical speech without overt delusions, hallucinations or affective blunting. No neurological explanation for symptoms found, though testing reveals difficulties with attention and executive function. Possible consequence of concussion / head trauma as a young child.”; (ii) the June 27, 2019 note of Dr. Wassef included, “Atypical schizophrenia appears to be the most probable diagnosis (disorganized thoughts and disorganized behaviour – children apprehended by CAS, living in shelters, does not work, etc), no frank apparent perceptual abnormalities.”; (iii) Dr. Wassef’s June 13, 2019 note included, “ Probable diagnosis is atypical schizophrenia...because of atypical presentation and important consequence...R/O other diagnoses, including neurocognitive disorder.” (iv) Dr. Wassef’s note of March 21, 2019 states, “ Diagnosis remains undetermined. Current hypotheses are 1) R/O Neurocognitive disorder 2) R/O Psychotic disorder 3) R/O Complex PTSD.” [Emphasis is mine].

[110] Even if it could be found that the notes of the St. Michael’s Obstetrics Mental Health Follow-up Visits confirm a valid mental diagnosis, those notes end as of December, 2019, which was four years ago, and two years prior to K.’s birth. There is no evidence that any such diagnosis, if made before or during K.C.’s involvement with St. Michael’s Obstetrics Mental Health Clinic, is currently valid, or was valid at the time of K.’s birth.

[111] In addition, the content of Dr. Milovic’s April 17, 2023 discharge note casts doubt on K.C. having a current mental diagnosis.

[112] When K.C. presented to the CAMH emergency department on April 13, 2023, she was noted to be disorganized, tangential, and paranoid. She was placed on a Form 1 and the provisional diagnosis was ‘other specified schizophrenia spectrum and other psychotic disorder.’ The Form 1 was discontinued on April 15, 2023 and K.C. stayed in hospital until April 17, 2023 voluntarily. Dr. Milovic’s April 17, 2023 discharge note includes:

(a) Dr. Milovic told K.C. that she would benefit from ongoing voluntary admission for diagnostic clarification. She expressed wanting to follow up as an outpatient as she has a housing appointment today and CAS meeting with her children tomorrow, which is understandable.

(b) K.C. was agreeable to meet with Dr. Milovic in follow up.

(c) “In terms of diagnosis, K.C.’s presentation was more in keeping with an intellectual disability and perseveration rather than true thought disorganization. She was preservative on CAS matters and getting her children back, and expressed distrust in the system. There is also likely a component of trauma given significant physical + sexual abuse as well as post-concussive symptoms stemming from previous TBI (she had a previous MOCA of 19/30). Her reported paranoia is more consistent with mistrust and justified given that she has lost custody of all of her children.”

(d) “In terms of ongoing diagnostic clarification, we have requested collateral from Dr. Levy as well as copies of her prior psychological tests and will follow upon on a referral to ANS pending these results.”

[113] Dr. Levy was K.C.’s treating psychiatrist at the time of K.’s birth. For some unknown reason, the Society provided no evidence with respect to this physician’s involvement with the mother. Such evidence might have provided relevant evidence at the time K. was brought to a place of safety.

4.2 Protection Finding

[114] I have adopted a flexible approach as to the timing of determining whether K. is in need of protection pursuant to subsection 74(2)(b) of the CYFSA.

[115] There is an overwhelming evidentiary basis on which to find that K. is a child in need of protection.

[116] The trial-worthy evidence presented by the Society has not been meaningfully contested by K.C. Her sparse and hollow responding evidence centers on bald denials (save for the positives about her noted in the Society’s materials, which she agrees with), claims of being misunderstood, and assertions of being provoked to engage in self-defence behaviour.

[117] The particulars of the events described above in relation to K.C.’s emotional dysregulation (in K.’s presence), K.C.’s lack of appreciation of physical safety concerns at visits, and K.C.’s agitation while exercising access with K. provides the basis for finding that K. is a child in need of protection pursuant to subsection 74(2)(b) of the CYFSA. In sum, this evidence establishes that there is a real risk that K. is likely to suffer physical harm inflicted by K.C. as a result of her inability to consistently and adequately care for, provide for, supervise, and protect him. K. was directly involved in K.C.’s attack on Ms. Dunn. K.C. has all too frequently yelled and sworn at others in K.’s presence. K.C. has yelled at K. when frustrated with him. She left K., without notice, unsupervised, at visits when upset. K.C. has also raised her hand to hit K. and has thrown objects when irritated with him.

[118] When determining whether intervention is required to protect K. in the future, the evidence relied upon to find him in need of protection and to make the dispositional order granted, makes it clear that intervention through a protection order is required to protect K., both currently and for the foreseeable future.

4.3 Disposition - Placement

[119] It is clearly in K.’s best interests that he be placed in extended society care.

[120] It is glaringly obvious that K.C. has significant challenges with respect to her behaviour and thought processes. A formal diagnosis is not necessary to reach this conclusion.

[121] The evidence indicates that these issues are long-standing and profound.

[122] K.C. does not acknowledge that there are any problems with how she thinks and behaves. As a result, she has not been willing to accept referrals to service providers who may be able to assist, she has not received treatment, and there has been no improvement in the way she behaves.

[123] There is an evident link between K.C.’s behavioural challenges and problematic thought processes and her ability to parent, as well as her ability to meaningfully engage with service providers, as would be required of her, if K. was placed in her care.

[124] K.C.’s behaviour is often unpredictable and unstable. She has been observed by many professionals to become quickly agitated and aggressive, suspicious, and accusatory, both towards professionals when they provide reasonable and necessary direction, and towards K., when he engages in age-appropriate, yet challenging behaviour. Children require predictable and stable caregivers. K.C. has given no indication that she can meet this basic need. K.C.’s behaviour and poor insight mean that K. would be at significant risk of harm if placed in her care.

[125] K.C. has not provided a realistic plan of care for K.

[126] She does not address how she will deal with her challenges, other than to deny them.

[127] K.C. has shown little ability to work with the Society. She has not followed reasonable advice from multiple professionals. There is no evidence to support that she would cooperate with a supervision order.

[128] K.C. has provided no evidence with respect to having a support system. Given the facts in this case, it would be essential that she have a detailed plan outlining who will support her, when, and how, before the court could even consider placement of K. with his mother.

[129] It is also questionable whether K. can reside with K.C. at YSM. K.C. does not say who told her and when that a larger unit would be available to her if K. is placed with her (and what, if any, is the wait for said unit). This is particularly relevant, given that YSM will currently not permit supervised access to occur at its facilities.

[130] K. is entitled to permanency as soon as possible. Unfortunately, there is absolutely no basis to believe that return of K. to K.C.’s care would be successful.

[131] I further find that:

(a) K. is too young to express his views and wishes.

(b) The Society’s plan to place K. for adoption meets the child’s physical, mental, and emotional needs.

(d) The Society’s plan of adoption will better meet the child’s need for continuity and stable place in a family through adoption.

(e) The risk associated with placing K. with K.C. is unacceptably high.

(f) The Society has made reasonable efforts to assist the mother, before and during court intervention.

(g) There are no community placements to consider for K.

(h) The Society's Plan of Care identifies that K.’s needs will be met if an order for extended society care is made.

4.4 Disposition – Access

[132] There are notable gaps in the evidence regarding the very important issue of post extended society care access which results in me not being able to reach a fair and just determination of this issue.

[133] At a minimum, evidence regarding the following is required to decide this issue:

(a) What do the final orders say regarding K.C.’s access with her three non-subject children?

(b) Is K.C. currently having access with any of the three non-subject children?

(c) If not, did she have any access with those three children post final order? If she did and it has stopped, what were the circumstances leading to the termination?

(d) What are the specifics (location, duration, frequency, supervision) of any post final order access K.C. has had with the three non-subject children? Has she regularly attended and been on time?

(e) How has K.C. interacted with the three non-subject children at post final order access? Has she put their physical and/or emotional safety at risk? Has she spoken negatively about their caregivers to them? Has she said to these children that they should be in her care?

(f) Has K.C.’s actions or inactions post final orders put the placements of any of the three non-subject children at risk? If so, what are the particulars?

(g) Has K.C. engaged in inappropriate / conflictual behaviour with the three non-subject caregivers and others, in relation to access, or otherwise, post final orders? The court cannot accept Ms. Kelland’s vague statement that K.C. has created safety issues in the past during access visits for the family members, without being provided specifics that establish a foundation for the statement.

(h) Why can’t the Society’s stated concerns regarding access post extended society care be adequately addressed by an order for supervised access (at a supervised access centre, where K.C. and adoptive parents would not have contact with each other); video calls (supervised); and/or gifts and letters (passed on to the adoptive parents via a child welfare agency and vetted by the adoptive parents before providing to K.)?

Part 5 – Order

The following statutory findings are made:

(a) The subject child’s name is K., born […], 2022.

(b) K. is two (2) years old.

(c) K. is not a First Nations, Inuk or Metis child.

(d) K. was brought to a place of safety from Toronto, ON.
K. shall be found to be in need of protection pursuant to subsections 74(2)(b)(i) and 74(2)(b)(ii) of the CYFSA.
K. shall be placed in the extended society care of the Children’s Aid Society of Toronto.
There shall be a trial with respect to K.’s access with his mother, K.C., before me.
The matter shall be adjourned to March 6, 2024 at 11:45 a.m. via Zoom for a Trial Management Conference. A jointly prepared TSEF shall be filed by March 5, 2024 at 4:00 p.m. by way of email to the judicial assistant.

Released: February 16, 2024

Justice Susan Sullivan