WARNING

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

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

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

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

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

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

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

DATE: March 18, 2024 COURT FILE NO. C11074/17 ONTARIO COURT OF JUSTICE

B E T W E N:

CHILDREN’S AID SOCIETY OF TORONTO APPLICANT

KATHERINE GEORGIOUS, for the APPLICANT

- and – J.A.L., K.T., C. B.-H. and J.L. RESPONDENTS

KEYSHAWN ANDERSON, for the RESPONDENT, C. B.-H. THE RESPONDENTS J.A.L., K.T. and J.L., not attending and found in default

HEARD: MARCH 14, 2024

JUSTICE S.B. SHERR

REASONS FOR JUDGMENT

Part One – Introduction

[1] The respondent C. B.-H. (the mother) has had seven children. This protection application is about two of them. They are MA, born in June 2019, a 4-year-old girl, and MH, born in June 2020, a 3-year-old boy.

[2] MA first came into the care of the Children’s Aid Society of Toronto (the society) on December 10, 2019. MH first came into the care of the society on June 12, 2020. They remained in the care of the society until July 5, 2021, when they were placed in the care of J.A.L. (the paternal aunt) and K.T. (the paternal uncle).

[3] MA and MH came back into the care of the society on April 24, 2023 at the request of the paternal aunt and paternal uncle. They have remained since then in the society’s care.

[4] The society started this protection application on April 27, 2023. The mother is the only respondent who filed an Answer/Plan of Care. She seeks an order that MA and MH be placed in her care.

[5] The mother has been incarcerated since December 28, 2023.

[6] The respondent J.L. (the father) is the father of MA and MH. He is presently incarcerated.

[7] The paternal aunt, paternal uncle and father have been found in default on the protection application.

[8] MA and MH were found to be children in need of protection pursuant to clause 74 (2) (k) of the Child, Youth and Family Services Act, 2017 (the Act) on September 1, 2023. The remaining issues on the protection application are what dispositional and access orders are in their best interests.

[9] The society has brought a summary judgment motion seeking the following final orders regarding disposition and access for MA and MH:

a) They be placed with the society in extended society care.

b) They have access to the mother in its discretion, a minimum of twice each year, subject to listed terms and conditions. MA and MH to be the access holders and the mother to be the access recipient.

c) They have access to the paternal aunt, in its discretion, a minimum of twice each year if requested by her. MA and MH to be the access holders and the paternal aunt to be the access recipient.

d) They have no access to the father and paternal uncle.

e) They have access with each other in its discretion, a minimum of twice each month. They are to be both access holders and access recipients.

[10] The mother was the only respondent to participate on this motion. She asked for the motion to be dismissed. She submits the society did not meet its onus to show there is no genuine issue requiring a trial. In the alternative, she asked for her access to take place a minimum of four times each year.

[11] The society was the only party that filed evidence on this motion.

[12] The court read and relied on the motion brief of the society. This included the affidavit of the society worker (the worker), relevant endorsements and orders, a Statement of Agreed Facts filed on November 30, 2020 in the initial child protection proceeding for MA and MH, the mother’s judicial release order and Toronto Police Service Charge Sheets.

[13] The society agreed at the outset of the motion to exclude some of the evidence contained in the society’s motion brief. The excluded evidence including CPIC records for the mother, some of the police charge sheets and some hearsay evidence contained in the worker’s affidavit.

[14] Neither the society nor the mother asked the court to hear oral evidence.

[15] The court has to determine if there is a genuine issue requiring a trial on any of the following issues:

a) Is a protection order necessary to protect MA and MH in the future?

b) If so, is an extended society care order in MA’s and MH’s best interests?

c) If so, what access orders are in MA’s and MH’s best interests, including who should be access holders and who should be access recipients.

Part Two – Legal considerations for summary judgment

[16] The society brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.

[17] The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[18] Pursuant to subrule 16 (4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See: Children’s Aid Society of Toronto v. K.T., 2000 ONCJ 20578; Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

[19] Although subrule 16 (4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”, this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. See: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80.

[20] Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[21] Subrule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[22] Pursuant to subrule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

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

[24] Hyrniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

[25] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak, paragraph 49). As the Supreme Court stated, at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” See: Kawartha, paragraph 63.

[26] As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits. See: Kawartha, paragraph 76.

[27] 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 exceptional caution and apply the objectives of the Act, including the best interests of the child. See: Kawartha, paragraph 1 of paragraph 80 and paragraph 64.

[28] The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. See: Kawartha, paragraph 3 of paragraph 80.

[29] The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that it is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is a foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant”. See: Kawartha, paragraph 72.

[30] The cautious approach enunciated in Kawartha neither precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context. See: L.M. v. Children’s Aid Society of the Region of Peel, 2019 ONCA 841.

Part Three – Material facts not in dispute

[31] The material facts required to make this decision were not in dispute.

[32] The mother has had significant child protection involvement regarding her children.

[33] Some of the mother’s child protection history is set out in a Statement of Agreed Facts, filed on November 20, 2020, in the previous child protection case concerning MA and MH. This sets out the following facts at that time:

a) The mother had had involvement with child protection agencies since August 2012.

b) The mother’s first child, born in February 2012, had been in the custody of the child’s maternal grandmother since 2012.

c) The mother’s second child was severely injured after he and the mother were in a car accident. The child was not appropriately secured in his car seat. The child died of his injuries in October 2016.

d) The mother’s third child was born in June 2017. He was brought to a place of safety on June 26, 2017. On August 2, 2017, he was found to be a child in need of protection pursuant to clause 74 (2) (b) of the Act (this is the risk of physical harm clause). On October 18, 2018, he was placed with the society in extended society care with no access to the mother.

e) MA, the mother’s fourth child, was born in June 2019. She was brought to a place of safety on December 10, 2019 after the mother and father could not be located for a long period of time. She was placed in the temporary care and custody of the society on December 16, 2019.

f) MH, the mother’s fifth child, was born in June 2020. He tested positive for methamphetamine at birth. He was underweight and required an IV and oxygen. The mother and father left the hospital against medical advice and did not return.

g) MH was brought to a place of safety on June 12, 2020. He was placed in the temporary care and custody of the society on June 17, 2020. MH was in the hospital until July 9, 2020.

h) On November 30, 2020, MA and MH were found to be children in need of protection pursuant to subclauses 74 (2) (b) (i) and (ii) of the Act.

i) The protection concerns about the mother were her instability, lifestyle, mental health, substance abuse, transiency, criminal behaviour, extensive criminal involvement, judgment and parenting ability.The protection concerns about the father were his criminal history and reported drug use.

j) Both parents were arrested on February 22, 2020.

k) The mother and father had a history of arrests and periods of imprisonment making them unavailable to parent. The father was released from jail in May 2020. The mother was in jail from February to March 31, 2020, for one week in June 2020 and again from August 15, 2020 to October 19, 2020.

l) The mother and father had stopped visiting MH.

m) The father had not exercised access with MA since February 2020.

n) A final order was made placing MA and MH in interim society care for 3 months. Access to the mother and father was in the society’s discretion.

[34] In February 2021, the paternal aunt and paternal uncle put forward a plan to care for MA and MH.

[35] The mother was incarcerated again between April and May 2021.

[36] On July 5, 2021, MA and MH were placed in the temporary care and custody of the paternal aunt and paternal uncle.

[37] The mother gave birth to her sixth child (MM) in August 2021. MM was brought to a place of safety and on August 31, 2021, placed in the temporary care and custody of the society.

[38] On December 2, 2021, MM was found to be a child in need of protection pursuant to clause 74 (2) (b) of the Act and placed in interim society care for 6 months.

[39] On April 14, 2022, the court made a final order placing MA and MH in the care and custody of the paternal aunt and paternal uncle pursuant to section 102 of the Act. This completed the child protection proceeding regarding MA and MH.

[40] On January 16, 2023, the court conducted an uncontested hearing regarding MM. The court made a final order placing her with the society in extended society care with no access to the mother and father. The court found that the mother and father had not addressed or mitigated any of the protection concerns that had led to MM, MA and MH being found to be children in need of protection.

[41] MA and MH were brought to a place of safety on April 24, 2023, after the paternal aunt and paternal uncle told the society they would no longer care for them. They were placed in the temporary care and custody of the society on April 27, 2023.

[42] Despite considerable efforts, the worker could not contact the mother between April and July 2023 to let her know that MA and MH were back in the society’s care.

[43] On July 22, 2023, the mother gave birth to her seventh child (MY) while she was incarcerated. MY was brought to a place of safety on July 25, 2023 and subsequently placed in the temporary care and custody of the society on July 28, 2023.

[44] The society was advised that the mother was released from jail on August 4, 2023.

[45] The mother started exercising access again with MA and MH on August 24, 2023. The worker deposed that at this visit, MA and MH described their foster parent as their mother and the mother as their friend.

[46] The mother missed her next two scheduled visits with MA, MH and MY. The mother’s next visit with MA and MH took place on September 14, 2023. After that the worker could not contact the mother for several weeks.

[47] On September 21, 2023, MA and MH were found to be children in need of protection under clause 74 (2) (k) of the Act. This clause reads as follows:

k) the child’s parent has died or is unavailable to exercise the rights of custody over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody;

[48] On September 22, 2023, the mother served her Answer/Plan of Care.

[49] On October 10, 2023, MY was found to be a child in need of protection pursuant to clause 74 (2) (k) of the Act. The mother has filed an Answer/Plan of Care for MY. The disposition of that case remains outstanding.

[50] The mother had her third visit with MA and MH on October 24, 2023.

[51] On October 25, 2023, the worker attended at an address the mother had provided to her for a scheduled home visit. The mother was not there. The worker deposed that no one at this address knew who the mother was.

[52] The worker contacted the mother’s probation officer who provided her with a different address for the mother. He provided her with the address of the mother’s surety.

[53] The mother subsequently told the worker that she had changed her address on October 15, 2023. She said the judge told her she did not need to reside at her surety’s address as long as she complied with a curfew. The mother provided the worker with a new address and scheduled a home visit, telling the worker she resided in apartment number 3B.

[54] The worker attended at this address on November 3, 2023 for the scheduled visit. The mother was not there. There was no apartment number 3B. The worker contacted the mother who said she had forgotten about the visit.

[55] On November 14, 2023, the mother provided yet another address to the worker and scheduled a home visit for November 16, 2023.

[56] The worker attended that address for the scheduled visit. No one responded when the worker buzzed to come in.

[57] Another home visit was scheduled for November 30, 2023. This visit took place. The worker had no concerns with the mother’s residence. This residence was not the mother’s surety’s residence.

[58] The mother told the worker during this visit that the last time she had used crystal meth was during her pregnancy with MY. She said that she smoked marijuana every night to ease her anxiety and this began to have an impact on her punctuality with access visits. She told the worker that she was registered with Renascent, a Toronto Addiction Rehab Centre and was still in their intake process.

[59] The mother attended her fourth visit with MA and MH on November 28, 2023. This visit was positive. Visits were increased to twice each week.

[60] On December 4, 2023, the society agreed to move access to the mother’s home after three more weeks of consistent visits. Positive visits took place on December 12 and 13, 2023.

[61] On December 14, 2023, the society worker was advised by Toronto Police Service that the mother had multiple outstanding warrants for her arrest as well as new ongoing investigations against her.

[62] On December 21, 2023, the society received a copy of the mother’s judicial release order. This confirmed that since August 4, 2023, the mother was supposed to be residing with her surety. The mother was not permitted to live at a different address, as the mother had previously told the worker. The addresses provided to the worker by the mother, including the address where the worker conducted the home visit on November 30, 2023, were in violation of the mother’s judicial release order.

[63] On December 28, 2023, the mother was arrested. She has been incarcerated since that time. The extended visits with MA and MH did not take place.

[64] The mother has had the following criminal law involvement:

a) She has had 25 criminal convictions. These include convictions for identity frauds, possession of identity documents, unauthorized use of credit card data, possession of stolen property obtained by crime, breaches of conditional sentence orders, fail to comply, flight while pursued by a police officer, dangerous operation of a conveyance, obstructing a police officer, and possession of stolen or restricted weapon.

b) On October 22, 2020, she received a sentence of one day in jail, but received credit for 112 days of pre-sentence custody served.

c) The mother has been incarcerated twice during this protection application; first, from July 2023 to August 4, 2023 and second, since December 28, 2023.

d) The mother has 49 pending criminal charges with Toronto Police Services. Twenty-three of those charges were laid after MA and MH came back into the society’s care. Eleven of those charges came after she served and filed her Answer/Plan of Care.

e) The pending criminal charges involve allegations of break and enter, motor vehicle thefts, possession of stolen property, dangerous operation of a motor vehicle, possession of an automobile master key, failing to stop at a scene of an accident, failures to comply with probation orders, obstructing a police officer and flight while pursued by a police officer.

[65] The father remains incarcerated in Toronto. He has not proposed a plan for MA and MH. He has not asked the society how they are doing. He has not sought access with them since they came into care. He has not engaged with the society.

[66] The paternal uncle has shown no interest in MA and MH since they came into care. He has not asked the society how they are doing. He has not asked to see them. He has only spoken negatively to the worker about them.

[67] The paternal aunt has advised the society she does not want to plan for MA and MH. She missed several scheduled visits with them. She has only seen them three times in 11 months. The visits that have taken place have been positive. The paternal aunt makes inquiries to the worker about them.

[68] There have been long gaps where the mother has not seen MA and MH. She has also missed several visits. She is sometimes late for visits.

[69] The mother’s visits have been positive when she exercises them. She demonstrates good caregiving skills, engages well with MA and MH and plans age-appropriate activities for them. She has been observed to be kind and soft-spoken towards them. They are affectionate towards her.

[70] MA and MH have remained in the same foster home since April 24, 2023. It is racially and culturally matched to their paternal Filipino heritage.

[71] MA and MH have been observed as being very close to their foster parents. They refer to them as their parents. The worker deposed MH is not aware that the mother is his biological mother.

[72] MA and MH have a very close bond with one another.

[73] MA has no health concerns and is meeting her developmental milestones. She was observed by the worker to be a happy, curious, smart and talkative child. She started elementary school in September 2023 and is making new friends.

[74] There are minor concerns about MH’s speech and hair growth. They are being assessed by medical professionals. He is on the waitlist for speech therapy. He was described by the worker as a healthy and rambunctious boy. He started attending daycare in November 2023 and is doing well there.

[75] No other family or community plan for MA and MH has been presented, despite considerable efforts made by the worker as outlined in paragraphs 131 to 140 of her affidavit.

Part Four – Is there any genuine issue requiring a trial?

[76] The court has considered that it should exercise exceptional caution before proceeding on a summary basis in a child protection case. It recognizes and has considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.

[77] The court finds that it is in the interest of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate the dispute.

[78] The court finds that it is able to do so based on the evidence before it, and without the need to use any expanded powers to weigh evidence or assess credibility.

[79] The court finds that the evidentiary record, and in particular, the material facts not in dispute, set out in Part Three above, are sufficiently comprehensive on all aspects of the case for the court to make a fair and just determination of the issues on the merits without the need for a trial. Cross-examination of witnesses would add little, if any, value to the court’s analysis.

[80] Given the length of time the children have been in society care, the court finds that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the Act.

[81] The court finds that the society has established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought, and that the responding parties have not met their onus of establishing that there is a genuine issue requiring a trial on any issue.

[82] The court finds that if this matter proceeded to trial there is no realistic possibility of an outcome other than that sought by the applicant.

Part Five – Disposition

5.1 Legal considerations

[83] Subsection 101 (1) of the Act 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.

[84] 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.

[85] 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

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Interim society care

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

Extended society care

3. 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

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

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.

[86] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part V of the Act.

[87] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[88] Subsection 101 (4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.

[89] 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

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

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

[90] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a mother, provided that the standard used is not contrary to the child’s best interests. See: Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

[91] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child’s needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused. See: Children’s Aid Society of Toronto v. D.S., 2009 ONSCJ 60090.

[92] 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 discernible from a parent’s evidence that they face some better prospects than what existed at the time of the society’s removal of the child from their care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H., 2000 ONCJ 3158.

[93] In Children’s Aid Society of Toronto v. S.B., 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.

5.2 Continuing need for a protection order

[94] The court finds that a protection order is necessary to protect MA and MH in the future for the following reasons:

a) The pre-intervention caregivers, the paternal aunt and paternal uncle, are unwilling to have MA and MH live with them.

b) The mother does not have a viable plan for MA and MH. She is incarcerated and unavailable to care for them.

c) The mother provided no information about the status of her criminal proceedings, such as when her next court date is, or if any trial has been scheduled. The court has no information about how long she might be in jail and be unavailable to care for MA and MH.

d) The mother provided no current evidence about her plan to care for MA and MH if she is released from jail.

e) The mother has lived a chaotic, unstable and criminal lifestyle for many years. This has continued since MA and MH came into care. Many of the criminal charges she now faces were laid after MA and MH came back into care and even after she filed her Answer/Plan of Care. This lifestyle creates significant risks of physical and emotional harm to MA and MH. They need an available and stable caregiver. The mother is unable to provide that for them.

f) The mother admitted to the worker that she used crystal meth during MY’s pregnancy. MH tested positive for methamphetemines at birth. No evidence has been provided that the mother has taken treatment to address her long-standing substance abuse issues.

g) The mother has not meaningfully addressed the protection concerns that led to MA and MH (and her other children) being removed from her care.

h) The mother has a long history of disappearing, being unavailable and not cooperating with the society. This has continued since the protection application started. The society could not locate her after MA and MH came back into care and the mother did not exercise access with them until August 24, 2023. She missed several opportunities for visits with them. She missed many meetings with the society worker. She provided the worker with several addresses and missed home visits.

i) The mother has a long-standing pattern of dishonesty, including with the society.

j) Even if the court was to contemplate placing MA and MH in her care, the court would need to be confident that the mother would cooperate consistently with a supervision order. The mother has many convictions for fraud and breach of court orders. There is no evidence to support a conclusion that the mother would now cooperate with a supervision order.

k) The father has chosen to have no involvement with MA and MH. He is presently incarcerated. He was also noted in default in the previous protection application regarding them.

5.3 Family and Community Plans

[95] The court is satisfied with the society’s attempts to find a family or community plan for MA and MH. Unfortunately, the family plan with the paternal aunt and paternal uncle has broken down.

5.4 Services to the family

[96] The court is satisfied that the society has provided appropriate services to the family.

[97] The society offered services to the paternal aunt and paternal uncle in the hope of maintaining MA’s and MH’s placement with them. These offers were declined.

[98] It was difficult to provide services for the mother. First, she was absent. Then, she missed meetings with the society. The society set up meetings with the mother and her counsel and was prepared to move access forward in her home once she established consistency for a few weeks. However, this never happened because the mother was incarcerated.

[99] MA’s and MH’s medical needs have been met in care. MH is being followed for his speech and hair issues.

5.5 Statutory time limits

[100] MA and MH have been in care well in excess of the statutory time limits set out in section 122 of the Act. This is because MA was in society care for close to 17 months and MH for close to 12 months during the initial protection proceedings. They have been in care for almost 11 months since being brought back into the society’s care on April 24, 2023.

[101] Pursuant to subsection 122 (3) of the Act, the court must include the times MA and MH were in care during the previous five years when applying the time limits. Section 122 of the Act reads as follows:

Expiry of Orders

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.

Calculation of time limit

(2) The time during which a child has been in a society’s care and custody pursuant to the following shall be counted in calculating the period referred to in subsection (1):

1. An agreement made under subsection 75 (1) (temporary care agreement).

2. A temporary order made under clause 94 (2) (d) (custody during adjournment).

Previous periods to be counted

(3) The period referred to in subsection (1) shall include any previous periods that the child was in a society’s care and custody under an interim society care order made under paragraph 2 of subsection 101 (1) or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society’s care and custody.

Deemed extension of time limit

(4) Where the period referred to in subsection (1) or (5) expires and,

(a) an appeal of an order made under subsection 101 (1) has been commenced and is not yet finally disposed of; or

(b) the court has adjourned a hearing under section 114 (status review),

the period is deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 114, as the case may be.

Six-month extension

(5) Subject to paragraphs 2 and 4 of subsection 101 (1), 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.

[102] At the hearing of the motion, the mother did not ask for an extension of the time limit pursuant to subsection 122 (5) of the Act. However, since the society addressed this issue in its submissions, the court will briefly deal with it.

[103] The test for granting a subsection 122 (5) extension order was set out in Windsor-Essex Children’s Aid Society v. B.D., 2022 ONCJ 284 as follows:

1. The decision to extend must be made in accordance with the child’s best interests.

2. The decision to extend must be viewed from the child’s perspective.

3. The factors in subsection 74 (3) of the Act must be considered.

4. The court must be satisfied, balancing the factors set out in subsection 74 (3), that there are unusual or equitable principles in the circumstances that would justify granting an exception to the general rule “for the child’s sake”.

[104] In Catholic Children’s Aid Society v. S.S., 2011 ONCJ 803, this court gave examples of some of the cases where an extension could be granted at paragraph 135 as follows:

There will be cases where, for a variety of reasons, it is in the best interests of a child to return to a parent, but a delay is appropriate. In these limited cases, the court should make the extension order set out in subsection 70(4). See Kawartha-Haliburton Children's Aid Society v. K.M.. These would include cases with the following facts: where a parent needs a little more time to complete a program where participation was delayed due to waiting lists; where a parent or child is waiting for an important support service or imminent housing to become available or where a child needs additional time to make a positive and gradual transition from a foster placement to a home placement. It would be detrimental to a child in such cases to rush this process for the sake of strict compliance with a time limit.

[105] There is conflicting case law on the ability of the court to make an extension order pursuant to subsection 122 (5) of the Act that will keep a child under the age of six in society care for more than 18 months (as would be the case if the extension order was made here). Some courts take the approach that subsection 122 (5) creates a hard cap of 18 months for a child to remain in society care – it cannot be extended beyond that. Other courts, including this court, interpret subsection 122 (5) more broadly and have found that the 6-month extension order may be calculated from the date of the hearing, even if the child’s total time in society care exceeds 18 months. See: Children’s Aid Society of Toronto v. N.G., 2022 ONCJ 235, where the court reviewed this conflicting law and explained why it adopted the more flexible approach to determining whether to make an extension order.

[106] Even applying the flexible approach, the court finds it is not in MA’s and MH’s best interests to grant an extension order for the following reasons:

a) They have been in care well in excess of the statutory time limits and need permanency.

b) The court was provided with no information about how long the mother will be in jail and how long she will be unavailable to parent them. She has not put forth a viable plan to care for the children.

c) The mother has provided no evidence that she has meaningfully addressed the protection concerns about her substance misuse and criminal activities.

d) Even if the mother was released from jail soon, the protection concerns are so profound that the mother would have to establish a long period of stability with no criminal activity, consistency in seeing the children, and a commitment to participating with the services required to address the protection concerns before a court could seriously contemplate placing MA and MH with her. It is not in their best interests to wait in limbo for this to happen, particularly when the mother has been unable to do this in the past.

e) None of the circumstances listed in S.S. are present here. There is no evidence that suggests this is one of those limited cases where a delay is appropriate, or that unusual or equitable principles in the circumstances justify granting an exception to the general rule.

5.6 Disposition

[107] The court finds that the least disruptive alternative, consistent with the best interests of MA and MH, is to place them with the society in extended society care. In summary:

a) The society’s plan to place them for adoption will best meet their physical, mental and emotional needs.

b) The society’s plan will best meet their physical, mental and emotional level of development.

c) The society’s plan will best meet their need for continuity and stability.

d) The risk of placing them with the mother is unacceptably high.

e) The society’s plan will better address their needs than the plan proposed by the mother. It is the only viable plan before the court.

f) This case should not be delayed any further and they should receive permanency as soon as possible.

Part Six – Access

6.1 Legal considerations

[108] Section 105 of the Act deals with access when a child has been removed from a person who had charge of the child.

[109] Subsection 105 (4) states that where the court makes an order that a child be in extended society care, any order for access is terminated.

[110] Subsection 105 (5) sets out that in considering the issue of access to a child in extended society care, the best interests of the child is the test. The court may not order access to such a child unless it is satisfied that the order would be in the child’s best interests. The court is to consider the relevant best interests considerations set out in subsection 74 (3) of the Act.

[111] Subsection 105 (6) of the Act sets out additional factors to be considered in determining whether an access order would be in the best interests of a child in extended society care. These are:

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

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

[112] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 the Court of Appeal wrote the following:

a) The changes to the access test are significant (par. 47).

b) The changes are not just semantics. They represent a significant shift in the approach to access for children in extended society care (par. 48).

c) The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities (par. 49).

d) Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant (par. 49).

e) This means that it is no longer the case that a parent who puts forward no evidence will not gain access (par. 49).

f) Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests (par. 49).

g) The court should reference the best interest considerations in subsection 74 (3) of the Act in making its decision (par.53).

h) The “presumption against access” to “Crown Wards” test no longer exists (par. 53).

[113] The phrase “impair the child’s future opportunity for adoption” means more than just impairing a child’s opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369; Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489.

[114] With a young child, impairment of the opportunity to be adopted will almost always be a relevant consideration. See: Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, affirmed on appeal at 2020 ONSC 4993.

[115] In Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, the court set out the following attributes of persons who may impair a child’s future opportunities for adoption:

[166] The first attribute is 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.

[167] The second attribute is 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.

[168] The third attribute is 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.

[169] The fourth attribute is 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.

[116] A fifth attribute was added by Justice Roselyn Zisman in Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631, being: 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.

[117] The attributes set out in A.F. and in A.P. were followed as appropriate considerations in an appeal decision in JFCS v. E.K.B., 2019 ONSC 661.

[118] There is no gap in the Act that permits a court to be silent as to access to a child who is placed in extended society care. See: Children’s Aid Society of Toronto v. J.F., 2019 ONCJ 248.

[119] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters, or limited annual visits won’t, and will be ordered. See: Children’s Aid Society of Toronto v. C.J., 2014 ONCJ 221; Catholic Children’s Aid Society of Toronto v. S.B., 2013 ONSC 7087; Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489.

[120] 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.

[121] The distinction between who has been granted an access order (the access holder) and who is the person with respect to whom an access order has been granted (the access recipient) has now become a critical consideration because only the access holder has the right to bring an openness application if served with a Notice of Intent to place a child for adoption. The access recipient only has the right to be given notice of the society’s Notice of Intent to place a child for adoption.

[122] Subsection 105 (7) of the Act recognizes the importance of the distinction between who is an access holder and who is an access recipient, by requiring such identification when making an access order to child who is placed in extended society care.

[123] The best interests consideration of impairment of the opportunity to be adopted takes on heightened importance when assessing whether a person should be made an access holder. The court might only order the person to be an access recipient (if access is ordered at all) if there is a concern that they might frustrate, delay or undermine the adoption process. See: Children's Aid Society of Toronto v. E.U., 2014 ONCJ 299; Catholic Children’s Aid Society of Toronto v. M.C., 2023 ONCJ 527; Catholic Children’s Aid Society of Toronto v. K.G., 2021 ONCJ 621.

6.2 The father and paternal uncle

[124] The father and paternal uncle have decided to have no involvement with MA and MH. They have not asked the society about them. They have not asked to see them.

[125] MA and MH do not have a meaningful and beneficial relationship with either the father or paternal uncle. It is in their best interests to order no access to them.

6.3 The paternal aunt

[126] The society submits that MA and MH have a beneficial and meaningful relationship with the paternal aunt. They have an emotional tie to her. The worker observed that MA and MH had positive interactions with her.

[127] The paternal aunt has made inquiries about MA and MH and has spoken positively about them. She has exercised some access with them.

[128] The paternal aunt, at this point, is MA’s and MH’s only connection with the paternal side of their family and their Filipino heritage.

[129] However, there are concerns with the amount of access MA and MH should have with the paternal aunt for the following reasons:

a) She rejected them by asking the society to bring them back into its care. This disrupted their sense of security and stability. It remains to be seen if this will cause them long-term emotional harm.

b) She has cancelled or forgotten many scheduled visits with them. This results in disappointing them. She has only attended three times for visits since they were brought back into society care.

c) She has minimally cooperated with the society.

[130] The court also has some concerns that access to the paternal aunt may impair MA’s and MH’s future opportunities for adoption, as it adds an extra layer of complexity to processing any openness proceedings. This concern can be addressed by making the paternal aunt an access recipient and not an access holder. This means the paternal aunt will not be able to initiate an openness application. It would have to be initiated by either the society or the Office of the Children’s Lawyer on behalf of MA and MH. They can assess the quality of the relationships at that time to determine if an openness application to the paternal aunt is warranted.

[131] The court finds the access orders sought by the society with the paternal aunt are in the best interests of MA and MH.

6.4 The mother

[132] The society seeks an order that MA and MH have access to the mother in its discretion, with a minimum of two visits each year, subject to terms and conditions. It proposes that MA and MH be the access holders and the mother be the access recipient.

[133] The mother proposed, if an extended society care order is made, that there be a minimum of four visits each year. The mother made no submissions about whether she should be made an access holder.

[134] The court considered the following positives factors in favour of ordering access to the mother:

a) When she attends access with MA and MH, the visits are positive. She plans activities for them. She is gentle and affectionate with them. They are affectionate towards her.

b) The society submits that MA’s and MH’s relationship with her is beneficial and meaningful.

c) She is an important tie to MA’s and MH’s maternal side of the family.

d) She was making better efforts to attend access in the two months prior to her being incarcerated.

e) The society was close to extending visits into the mother’s home before she was incarcerated.

f) The mother is polite and soft-spoken at visits.

g) There is no evidence that the mother has attempted to undermine their placements.

[135] The court balanced these positives against the following concerns about the mother:

a) She has been absent from MA’s and MH’s lives for long stretches of time.

b) She is presently incarcerated. It is unknown when she will be released and on what terms.

c) She has been inconsistent in attending access and keeping appointments.

d) There is a real concern, based on her history, that she will not consistently see MA and MH. This could lead to the children being disappointed and destabilized.

e) She has untreated substance abuse issues.

f) She has led a chaotic and unstable lifestyle.

g) She has a long history of criminality.

h) She has a long history of dishonesty.

i) There is some risk that prospective adoptive parents will not want to engage with her because of this history. As set out by Justice Zisman in Catholic Children’s Aid Society of Toronto v. A.P., supra, 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. This could impair MA’s and MH’s future opportunities for adoption.

j) If she is made an access holder, there is a real possibility that an adoption of MA and MH would be delayed due to her inconsistent history of engaging with the society and the court process.

[136] Balancing these considerations, the court finds it is in the best interests of MA and MH to order that the mother have a minimum of three visits each year with them, on the terms and conditions set out by the society in its notice of motion.

[137] The concerns about the mother’s access impairing MA’s and MH’s future opportunities for adoption can be addressed by making them the access holders and the mother the access recipient. This means the mother will not be able to initiate an openness application. It would have to be initiated by either the society or the Office of the Children’s Lawyer on behalf of MA and MH. They can determine if an openness application to the mother is warranted, based on the circumstances that exist at that time.

6.5 Sibling access

[138] It is in the best interests of MA and MH to have access with each other.

[139] MA and MH are very close with one another. They have lived together through considerable disruption in their lives.

[140] The society’s plan is to try and find an adoptive home that will adopt MA and MH together.

[141] The relationship between MA and MH is beneficial and meaningful.

[142] There is no evidence that a sibling access order would impair MA’s and MH’s future opportunities for adoption.

[143] In the event that MA and MH are separated, the access proposed by the society (which the mother does not oppose) is in MA’s and MH’s best interests and will ensure they maintain their important connection.

Part Seven – Conclusion

[144] An order shall go granting the society’s summary judgment motion, subject to a change to the frequency of the mother’s access with MA and MH, on the following terms:

a) MA and MH shall be placed with the society in extended society care.

b) Access by MA and MH to the paternal aunt shall be in the discretion of the society, with respect to frequency, duration, location, mode, and level of supervision, a minimum of two times each year, if requested by the paternal aunt. MA and MH shall be the access holders and the paternal aunt shall be the access recipient.

c) Access by MA and MH to the mother shall be in the society’s discretion, with respect to frequency, duration, location, mode and level of supervision, a minimum of three times each year, if:

1. The mother keeps the society up to date regarding her contact information and,

2. The mother makes herself available for such access.

d) MA and MH shall be the access holders and the mother shall be the access recipient.

e) Access by MA and MH to each other shall be in the society’s discretion a minimum of twice each month. MA and MH shall be both access holders and access recipients.

f) There shall be no access between MA and MH and the father.

g) There shall be no access between MA and MH and the paternal uncle.

[145] The court thanks counsel for their very professional presentation of this motion.

Released: March 18, 2024

Justice Stanley B. Sherr