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.
Court Information
ONTARIO COURT OF JUSTICE
DATE: 2024 02 12 COURT FILE No.: Toronto C41486/21
Parties and Counsel
BETWEEN:
Children’s Aid Society of Toronto Applicant
— AND —
S.D. (mother) M.C. (father of A.D.) J.W. (father of J.W. Jr.) C.R. (kin caregiver) Respondents
Before: Justice D. Szandtner
Heard on: January 4, 2024 Reasons for Judgment released on: February 12, 2024
Counsel: Katie Skinner, counsel for the applicant society Paula McGirr, counsel for the Public Guardian & Trustee, legal representative for mother S.D. C.R. (kin caregiver), self-represented S.D. (mother), on her own behalf
Reasons for Judgment
SZANDTNER J.:
Part One – Introduction
[1] The Children’s Aid Society of Toronto (the society) has brought the within summary judgment motion pursuant to Rule 16 of the Family Law Rules.
[2] The summary judgment motion is in relation to its Status Review Application issued July 20, 2023, concerning J.W. Jr. born [...], 2020 and A.D. born [...], 2017 (the children).
[3] The society seeks an order pursuant to subsection 102(1) of the Child, Youth and Family Services Act (the Act) placing the children in the care and custody of the kin caregiver C.R. (the kin caregiver).
[4] The society seeks a final order that access by the children to S.D. (the mother) shall occur a minimum of once monthly, to be supervised at a supervised access centre such as Access for Parents and Children Ontario or at the sole discretion of the kin caregiver including discretion as to location, duration and level of supervision as arranged between her and the mother taking into consideration the children’s views, wishes, ages and stages of development.
[5] The Public Guardian and Trustee was appointed to represent the mother as a special party. Counsel Ms. McGirr for the Public Guardian and Trustee did not file any affidavit evidence. She does not oppose the relief being sought by the society.
[6] The mother was permitted by Justice Sherr to file an Answer/Plan of Care dated August 14, 2023 that she prepared. She also attended the summary judgment motion. She did not file any affidavit evidence in response to the motion. She made oral submissions seeking the return of the children to her care.
[7] On October 31, 2023, both fathers were found to be in default of this proceeding by Justice Sherr. The fathers did not attend or seek to participate in the summary judgment hearing.
Part Two – Facts
[8] The following facts are not in dispute:
a) The mother was the primary caregiver for the children prior to society involvement.
b) The mother was involuntarily admitted to the hospital on July 13, 2021 on a Form 1 pursuant to the Mental Health Act. The mother remained in the hospital until July 16, 2021.
c) The children were first brought to a place of safety on July 13, 2021 after the mother’s hospital admission. The society worked with the mother and her family and agreed to return the children to the mother with a specific safety plan. The mother agreed that she would live with the maternal grandmother and take the medication prescribed by her psychiatrist. Her sister and cousin agreed to check in on her regularly. The children were returned to the mother’s care by the society on July 16, 2021 relying on this plan.
d) The mother immediately breached the safety plan. She left her mother’s home and refused to take her medication. She stopped cooperating with the society. No other members of the mother’s family were prepared to have the children live with them at that time.
e) As a result, the children brought to a place of safety a second time on July 23, 2021.
f) On July 28, 2021, Justice Sager made a temporary, without prejudice order placing the children in the care of the society with access by the mother to be at the discretion of the society, a minimum of twice per week.
g) The temporary placement order was confirmed following a motion before Justice Sherr on August 5, 2021. He found on the evidence before the court that supervision terms would be inadequate to protect the children. He found that the mother was very hostile to society involvement and was refusing to engage with the society or to attend for visits with the children. She refused to live with her mother or to take her medication. He found that at this time, the mother would not comply with a supervision order putting the children at an unacceptable risk of harm. He further found that mother had untreated mental health issues that required supervision of her access to the children by the society to ensure the emotional and physical safety of the children.
h) Justice Sherr set a focused hearing on the issue of finding on January 19, 2022. The mother failed to attend. The mother’s Answer/Plan of Care was struck on oral motion by the society. On January 19, 2022 both children were found to be in need of protection pursuant to subsections 74 (2)(b)(i) and (h) of the Act. In oral reasons Justice Sherr made the following findings of fact as a basis for the findings that the children were in need of protection:
i) The mother had significant mental health issues that severely impacted her ability to look after the children. She was unable to provide the children with an emotionally stable, secure and consistent parent that placed them at a risk of physical and emotional harm.
ii) The children have significant developmental issues. The mother denied this showing an inability to understand or to meet those needs. This also placed the children at risk of neglect or emotional harm.
iii) The mother had chosen not to see the children since July 23, 2021, not appreciating the emotional harm that this could cause the children.
iv) The mother had demonstrated absolutely no insight into the protection concerns – increasing the risk concerns.
v) The mother was not cooperating with the society – she was hostile to society involvement. This also increased the risk of harm to the children since society assistance was not being used to evaluate or ameliorate the risks. It was also a strong indicator that the mother was unwilling to acknowledge or to address significant risk concerns.
i) On March 23, 2022, the society filed a Statement of Agreed Facts on consent of A.D.’s father and unopposed by the mother and J.W. Jr.’s father. Justice Sherr made an interim Society care order for both children for four months. Final access to the children by the mother and father M.C. was to be supervised by the society in its discretion. Final access to J.W. Jr. by his father J.W. was in the society’s discretion. The court endorsed that the mother had recently been charged with assault, formed under the Mental Health Act, and admitted to the Centre for Addictions and Mental Health (CAMH.)
j) The mother was released from CAMH on March 31, 2022. She advised the society on April 8, 2022 that she was back in the hospital because she felt overwhelmed. She began visiting the children at the society offices on May 6, 2022.
k) On July 19, 2022, the society brought its first Status Review Application seeking a temporary supervision order placing the children with the kin caregiver who was a maternal cousin. The society also brought a motion to have the children placed with the kin caregiver.
l) On August 29, 2022, the children were placed on a temporary supervision order with the kin caregiver by Justice Sherr following a motion that was opposed by the mother. Justice Sherr also dismissed an oral motion brought that day by the mother to place the children in her care.
m) On September 21, 2022, the mother was found to be a “special party” by Justice Sherr following a motion. Justice Sherr made the following findings of fact at this motion:
i) The mother was not able to understand information that was relevant to making decisions in this case.
ii) She was not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding the issues in the case.
iii) She was unable to choose counsel and had mistaken beliefs regarding the law and court procedure.
iv) She remained convinced that there were no child protection concerns regarding the children.
v) She believed that the children had been kidnapped and were being held unlawfully.
vi) She had not signed consents to enable the society workers to speak to her service providers.
n) On February 3, 2023, the society and the Public Guardian and Trustee (representing the mother) brought a 14B motion seeking a final order. The fathers of the children were noted in default. The children were placed on a six-month supervision order with the kin caregiver. The statutory findings were varied to identify both children as Métis. Access to the children by the mother was ordered to be at the discretion of the society to occur a minimum of once per week with the location, level of supervision and duration of the access to be at the society’s discretion, taking into account the children’s wishes and needs and the current mental health of the mother on any date on which the access is scheduled. Access shall wherever possible be in person and not by video or phone. Access to A.D. by his father M.C. was ordered to be in the discretion of the society with respect to location, duration and level of supervision, to occur a minimum of once per week. Access to J.W. Jr. by his father J.W. was ordered to be at the discretion of the society.
o) On July 20, 2023, the society brought its second Status Review application seeking a final order placing the children with the kin caregiver under a s.102 order and other final orders that she have the ability to travel and secure government documentation for the children without the consent of any other party. The application seeks an order that final access to the mother shall occur a minimum of once monthly, to be supervised at a supervised access centre. It also seeks a final order that access to A.D. by his father M.C. and access to J.W. Jr. by his father J.W. shall be at the discretion of the kin caregiver.
Part Three – Legal Considerations for Summary Judgment
[9] 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.
[10] 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.
[11] 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, 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.
[12] 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.
[13] Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.
[14] 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:
- Weighing the evidence
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[15] 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. 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.
[16] 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.
[17] 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.” (Kawartha, paragraph 63).
[18] 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 (Kawartha, paragraph 76).
[19] 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 CYFSA including the best interests of the child. (Kawartha, paragraph 1 of paragraph 80 and paragraph 64).
[20] 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. (Kawartha, paragraph 3 of paragraph 80).
[21] 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” (Kawartha, paragraph 72).
[22] 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 the 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 she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H., 2000 ONCJ 3158, [2000] O.J. No. 5853.
Part Four – Disposition
4.1 Legal Considerations
[23] The Status Review Application is brought by the society pursuant to subsection 113 (2) of the Act.
[24] Under section 114 of the Act, where an application for review of a child’s status under section 113, the court may, in the child’s best interests,
a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;
b) order that the original order terminate on a specified future date;
c) make a further order or orders under section 101; or
d) make an order under section 102.
[25] The legal test for making a disposition order is found at subsection 101(1) and section 102 of the Act:
101.(1) Order where child in need of protection – 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 no 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.
(1) Custody order – 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 interest, 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 person or persons.
(2) Deemed to be order under s.28 of the Children’s Law Reform Act – An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be a parenting order or contact order, as the case may be, made under section 28 of the Children’s Law Reform Act, and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any directions that it may give under section 34 of that Act.
[26] 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.
[27] Subsection 101(5) of the Act requires the court to place a Métis child, unless there is a substantial reason for placing the child elsewhere, with a member of the child’s extended family or if is not possible, with another Métis family.
[28] 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 its determination. This subsection reads as follows:
74(3) Best interests of child - 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.
4.2 Society Position
[29] The society is taking the position that the children should be placed in the permanent care and custody of the kin caregiver under a section 102 order. The kin caregiver is a maternal cousin and a member of the children’s extended family. She is registered with the Eastern Woodland Métis Nation in Nova Scotia.
[30] The society relies on the evidence presented by kinship care worker Craig Gostyn with respect to the success of the children’s placement with the kin caregiver.
[31] The society also relies on the viva voce evidence of the kin caregiver who confirmed her willingness to care for the children on a long-term permanent basis.
[32] The society relies on the affidavit evidence of society workers Satnam Dhillon, Kayla Hoosen, and Lestra Ikeazor to support its position that a further protection order is required and the children should remain in the kin caregiver’s care under a final custody order. It relies on the following evidence:
a) The mother has not addressed the protection concerns relating to her mental health. Her mental health issues are serious and recurring. They place others at risk. The most current update available to the society is as follows:
i) The mother reported to the society that she was charged and arrested on May 6, 2023. The mother reported on July 2, 2023 that she was admitted to CAMH.
ii) A CAMH social worker confirmed for the society that the mother was brought to CAMH under a warrant of committal as she was identified as being ‘unfit’ to stand trial and was transferred from Vanier Detention Centre under a treatment order. She was transferred back to Vanier on July 12, 2023.
iii) On July 20, 2023, the mother was readmitted to CAMH. She had attended the outpatient clinic and advised that she did not agree to receiving a monthly injection. The attending psychiatrist assessed her to be “actively psychotic and paranoid” and she was formed under the Mental Health Act, Form 3 and was held for treatment and observation for two weeks. She was discharged on August 5, 2023. The mother was referred to the Lakeridge Health Team for ongoing service in Scarborough.
iv) In 2023 the mother was facing seven current charges relating to assault, mischief and resisting arrest relating to strangers in the community. The mother has not disclosed the particulars of these charges to the society.
b) The mother has been non-cooperative with the society workers who have attempted to work with her during the past year. She yells at them. She calls them “liars” “devil worshippers” and “evil.” She repeatedly threatens them with physical assault. When they contact her she complains that they are harassing her and engaging in misconduct. She repeatedly requests worker changes and does not attend meetings convened at the society to discuss planning for her children.
c) The mother’s access to the children since March of 2023 has been inconsistent. Her access was suspended after a March 22, 2023 incident at a visit during which her behaviour escalated and was aggressive. Her access was restarted, only to be cancelled from May to August 2023 at her own request. Her access in September and October 2023 did occur for one hour per week fully supervised before she cancelled it again on November 2, 2023.
d) The mother’s communications with the society workers this year have at times been delusional. She has advised the society workers that she is the Queen of Canada and that she is a scientist with a cure for cancer.
e) There is no evidence before the court that the mother has connected with any mental health service providers following her discharge in August of 2023. There is no evidence that she has been compliant with effective treatment.
f) Since August 30, 2022, the kin caregiver has proven her ability to meet all of the children’s physical, mental and emotional needs and to provide them with continuity of care and a stable home environment. She followed up on any of their routine illnesses with a pediatrician. She enrolled A.D. full time in school. She initially cared for J.W. Jr. during the day. She agreed to a referral for A.D. to autism services. She was working directly with J.W. Jr. with respect to his speech development and the kinship worker noted clear improvement in his speech. She enrolled A.D. in summer camp. She enrolled J.W. Jr. in daycare in August of 2023. In September of 2023 A.D. began attending a regular grade one class. She continued to welcome the autism services for him in her home. The children attended for developmental assessments at the Brampton Civic Hospital. On October 19, 2023, the assessors confirmed the diagnosis of mild Autism Spectrum Disorder and speech delay for A.D. and a speech delay for J.W. Jr.
g) The kin caregiver is committed to providing the children care on a long-term permanent basis.
h) The kin caregiver has agreed to transport the children to the access centre to support access between the children and their mother. She has also demonstrated a commitment to reaching out to the paternal families.
i) Neither father has presented a plan of care for the children.
4.3 Review of Plan of Care of the Mother
[33] The mother’s Answer and Plan of Care filed August 16, 2023 states as follows:
a) She agrees that the children are placed with the kin caregiver until the society wants to return them to her care.
b) She does not need to take medication as this is her Charter right of freedom of expression and opinion.
c) Her sons are not under-weight and never were.
d) Her access visits with her children are positive. She denied that she demonstrated difficulty with self-regulation.
e) She plans to be a stay at home mother when the children are returned to her care.
[34] The mother’s plan of care does not address the developmental needs of the children and indicate how these needs will be met. Rather, it simply denies that they have any special needs.
[35] Her plan is to live alone with the children. She does not identify any professional mental health supports or safety plan to address her mental health needs. She denies that these needs exist.
4.4 Public Guardian and Trustee Position
[36] The mother was found to be a “special party” on September 21, 2022. She was assigned counsel Ms. McGirr who was present at the summary judgment motion.
[37] The Public Guardian and Trustee is not opposing the final orders sought by the society and the kin caregiver at the summary judgment motion.
4.5 No Genuine Issue Requiring a Trial Based on the Affidavit Material
[38] I have considered that I should exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.
[39] I find 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.
[40] I find that I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility. Cross-examination of witnesses would add little if any value to the court’s analysis.
[41] I find 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 the mother has not met her onus of establishing that there is a genuine issue requiring a trial on any issue.
[42] I reach these conclusions for the reasons that follow.
[43] The children are currently 6 and 3 years of age. They have resided in the care of the society for 13 months and in the care of the kin caregiver for 17 months.
[44] The children’s physical, mental and emotional needs are being met in the kin caregiver’s home.
[45] The children have special needs. The eldest has been diagnosed with Autism Spectrum Disorder. The younger child has been diagnosed with a speech delay. They are thriving in their current home. The kin caregiver has been collaborating with professional supports to ensure that their developmental needs are met. The continuity of this positive care would be disrupted if they were to be removed from this home.
[46] The children’s placement with the kin caregiver permits them to stay meaningfully connected to their cultural and linguistic heritage. The kin caregiver is a maternal cousin and committed to facilitating safe access to their parents.
[47] The children’s relationship and emotional ties with their mother can be calibrated safely through contact that the caregiver directs in terms of level of supervision, frequency and duration.
[48] The children are identified as Métis. The kin caregiver is both a member of their extended family and is registered with Eastern Woodland Métis Nation in Nova Scotia. The children will qualify for membership in this Nation once they turn 16 years old.
[49] The court must consider risk in the best interests analysis. First, the court must consider the risk that justified the finding that the children were in need of protection from likely physical and emotional harm. Secondly, the court must consider the risk inherent in the children being removed from their kin caregiver and placed in the care of their mother or in an expanded or unsupervised parenting time visit with their mother. The court must consider if the risk persists and if a protection order is still required.
[50] The society has provided evidence of three mental health breakdowns that put others at risk and required the hospitalization of the mother. The initial incident in 2021 occurred while the mother had primary care of the children and they experienced being locked in a bathroom with their mother while she experienced a paranoid episode. The second incident occurred in March of 2022 when she was charged with assault, formed and admitted to CAMH. The third incident involved the mother’s criminal assaults of strangers prior to her incarceration at Vanier and transfer to CAMH in 2023.
[51] This pattern of recurring mental health episodes poses a continuing high risk to the very young children before the court. The children are too young to be able to detect the early signs that a mental health episode is imminent for their mother and to participate in meaningful safety planning. The mother has not been willing to work with service providers and to follow a medication regime making a recurrence more likely. She has not been willing to live with family members to assist in monitoring her mental health status. Therefore, the serious risk posed by the mother’s psychological fragility has not been mitigated in this case. The high risk persists and a return to her care is not safe. Further, there is overwhelming evidence to suggest that the mother would fail to cooperate with a supervision order as she does not have insight into her psychological condition.
[52] The mother has not led any affidavit evidence at this motion. The Public Guardian and Trustee is supporting the disposition sought by the society and has not filed any affidavit evidence or documentary evidence on her behalf.
[53] The mother’s expressed wish to have her children return to her care does not create a genuine issue for trial. The court acknowledges that these are her heartfelt wishes, but her plan to return the children to her care is in no way in the best interests of the children. The mother has failed to address her mental health issues and to cooperate with the society in developing a safety plan.
[54] The importance of continued contact between the children and their mother which form part of the best interests analysis can be addressed through a parenting time order that can maintain contact for the children with their mother that is supervised and safe.
[55] The parenting time order for mother that is sought by the society and the Public Guardian and Trustee is as follows: a final order that access by the children to their mother shall occur a minimum of once monthly, to be supervised at a supervised access centre such as Access for Parents and Children Ontario or at the sole discretion of the kin caregiver including discretion as to location, duration and level of supervision as arranged between her and the mother taking into consideration the children’s views, wishes, ages and stages of development.
[56] The mother’s access order is not a genuine issue that requires a trial. A trial on this issue will not change the fact that the risk posed by her untreated mental health issues currently requires supervision and will require flexibility with respect to supervision in the future.
[57] The kin caregiver’s discretion with respect to access in accordance with the children’s wishes and development needs is the only realistic order available to the court. The kin caregiver is the primary caregiver for the children. The expansion of contact is possible within this flexible order. There can be no specified expansion schedule given the unknown trajectory of the mother’s mental health.
[58] The society further requests an order granting the kin caregiver the ability to apply for government documentation for the children and to be able to travel with them without the mother’s consent.
[59] The evidence before the court is that the mother is consistently uncooperative with others and often paranoid about their intentions. At this time, she is unable to focus on the needs of the children. This behaviour would render it impossible for the kin caregiver to engage with her on documentary issues and travel issues in a timely, constructive and child-focused manner. It would likely lead to undue delays in securing the children’s documents and impede their ability to travel.
[60] There is no genuine issue requiring a trial to determine whether the kin caregiver, as the primary caregiver of the children, should have the ability to apply for government documentation for the children and travel with them without the mother’s consent.
Part Five – Conclusion
[61] A final order will go on the following terms:
a) There are no genuine issues requiring a trial.
b) An order that the children, A.D. and J.W. Jr. be placed in the care and custody of kin caregiver C.R. pursuant to s.102 of the Act.
c) The kin caregiver C.R. shall be permitted to apply for all government documentation for the children (including but not limited to birth certificate, passport and passport renewals, health card and health card renewals, social insurance card, Ontario card) without the consent of any other party.
d) The kin caregiver C.R. may travel outside of Canada with the children without the consent of any other party.
e) The society shall be served notice of any request to change the terms of this order.
f) Access by the children to their mother shall occur a minimum of once monthly, to be supervised at a supervised access centre such as Access for Parents and Children Ontario (APCO) or at the sole discretion of the kin caregiver including discretion as to location, duration and level of supervision as arranged between her and the mother taking into consideration the children’s views, wishes, ages and stages of development.
g) Access by the child A.D. to his father, M.C. shall be in the discretion of the kin caregiver, C.R.
h) Access by the child J.W. Jr. to his father J.W. shall be in the discretion of kin caregiver C.R.
Released and Signed
Released: February 12, 2024 Signed: Justice D. Szandtner