WARNING

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

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

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

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

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

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

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

Ontario Court of Justice

Date: 2024 25 06 Court File No.: Toronto FO-22-00043066-0001

BETWEEN:

Jewish Family and Child Services of Greater Toronto Applicant

— AND —

Z.Y. (mother) B.S. (father) Respondents

Before: Justice D. Szandtner

Heard on: June 4, 2024 Reasons for Judgment released on: June 25, 2024

Counsel: Arthika Srivarapathy, counsel for the applicant society Colin Tobias, Agent for the Public Guardian & Trustee, legal representative for the mother Z.Y. Lorne Glass, Counsel for the child D.S.

SZANDTNER J.:

Part One – Introduction

[1] The Jewish Family and Child Services (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 October 25, 2023, concerning D.S. born […], 2013 (the child).

[3] On June 5, 2023, a final Order was granted by the Honourable Justice Sherr, finding the child to be in need of protection pursuant to sections 74(2)(b)(i), 74(2)(h) and 74(2)(k) of the Child, Youth and Family Services Act (the Act) and placing him in the interim care of the society for six months. A final order was granted for access with Z.Y. (the mother) to take place at the discretion of the society, at minimum of once weekly, with the ability to suspend visits, based on mother’s mental stability.

[4] The society’s Status Review application seeks a final order that the child be placed in the extended care of the society. It further seeks an order that access between the child and the mother shall be at the discretion of the society with respect to location, duration, frequency and level of supervision, at a minimum of one weekly visit, based on the needs and preferences of the child and the state of the mother’s mental health. If the society is concerned that the mother is not mentally stable at the time of each access visit, the society shall be entitled to suspend the visit.

[5] At the hearing, the society amended its position to seek a minimum of one visit every two weeks or to allow it to depart from the minimum visits in response to the state of mother’s mental health.

[6] The Public Guardian and Trustee was appointed to represent the mother as a special party. Counsel Mr. Tobias, Agent for the Public Guardian and Trustee did not file any affidavit evidence or an Answer to the Status Review application. He did not oppose the relief being sought by the society. However, he made submissions with respect to the society’s position on the access order. His position is that the minimum formally sought should not be varied with the caveat that the society would have discretion to depart from the minimum if the mother’s mental health is not stable at that time. He further made submissions that the mother should be an access holder in light of her participation in and the quality of her access with the child.

[7] The mother did not attend the summary judgment motion. She did not file any affidavit evidence in response to the motion.

[8] B.S. (the father) did not attend or seek to participate in the summary judgment hearing. He was served with the application on December 12, 2023. He did not file any Answer to the Status Review application or affidavit responding to the motion and the society seeks to note him in default.

Part Two – Facts

[9] The following facts are not in dispute:

a) The child was brought to a place of safety on September 9, 2022. The mother had been apprehended that day and hospitalized pursuant to the Mental Health Act.

b) On September 13, 2022, the Honourable Justice Paulseth made an order placing the child in the temporary care and custody of the society on a without prejudice basis.

c) A temporary care and custody hearing was held on January 10, 2023. On January 12, 2023, the Honourable Justice Sherr ordered that the child remain in the temporary care of the society and that the mother have access to the child in the society’s discretion.

d) At the temporary care and custody hearing the court made findings of fact that provided reasonable grounds to believe that mother’s mental health had seriously deteriorated including the following:

(i) The mother’s treating physician in hospital advised that the mother had been experiencing a psychotic illness and would benefit from antipsychotic medication.

(ii) The mother refused treatment in the hospital and did not receive any medication.

(iii) The mother’s evidence at the January 10, 2023 temporary care hearing was indicative of a person suffering from serious mental health issues. She believed that people are out to harm her and the child. She was hypervigilant. She trusted no one. She appeared to have a tenuous tether to reality. Her evidence was as follows:

i) She is being targeted by people and institutions at the behest of the father and members of his community. She believes that people are trying to kill her.

ii) She believes that the father had her driver’s licence renewed without her knowledge and has made her an organ donor against her will.

iii) She believes that people are breaking into her apartment, hacking into her devices and trying to steal her identity and are stealing other items in her home.

iv) She believes that these people are also poisoning her cooking oil and her food.

v) She believes that part of the hacking and threatening against her is that ambulances and fire engines keep driving by her home with sirens on.

vi) She believes that the child’s school has targeted her and the child. She submitted that the child not being included in school photos for several years is indicative of this persecution.

vii) She stopped the child’s online schooling because he was receiving images and messages that he shouldn’t be seeing on the computer provided to him from the Toronto District School Board. She believes that people hacked into this device to put these messages on it.

viii) She believes that the police, the hospital and the society are targeting her.

ix) She attributes her higher debt payments to the father influencing her creditors.

x) She has missed several visits after either refusing to take taxis provided by the society, or getting into altercations with taxi drivers because she feels they are associated with the father.

(iv) At the January 10, 2023 temporary care hearing the mother totally denied having any mental health issues. She disagreed with her mental health diagnosis. She was adamant that she would not take any prescribed medication. At that time she had not sought any treatment for her mental health issues following her departure from the hospital.

(v) At the time of the temporary care and custody hearing, the mother’s beliefs had had a serious impact on the child. He had adopted the mother’s view that he was not safe and was in peril. He believed that his food had been poisoned, that telephones in his home were hacked and that people were entering his home and stealing items.

(vi) On April 4, 2023, the father was noted in default. The society brought a motion to find the mother a special party and seeking an order for the appointment of the Public Guardian and Trustee for the mother. At that hearing, the Honourable Justice Sherr found that:

i) The society met its onus to prove that the mother should be found to be a special party.

ii) The mother was not able to understand information that is relevant to making decisions in her case.

iii) The mother is not able to appreciate the reasonably foreseeable consequences of a decision or a lack of decision regarding the issues in her case.

iv) The mother does not have the ability to consider a reasonable range of possible outcomes, both positive and negative.

v) The mother is unable to distinguish between relevant and irrelevant issues.

vi) This is likely a consequence of her mental illness.

e) On April 5, 2023, the court released its decision finding that no other person was appropriate and willing to act as a representative for the mother. The Honourable Justice Sherr appointed the Public Guardian and Trustee in this proceeding as her representative.

f) On June 5, 2023, the parties appeared in court. The mother appeared with her counsel from the Public Guardian and Trustee. On an unopposed basis, the Honourable Justice Sherr made final orders for statutory findings and a finding that the child was in need of protection pursuant to s.74(2)(b)(i),(h) and (k) of the Act. Further, the court made a final order for interim society care for the child for six months. Finally, an order was made that final access between the child and the mother was to be at the discretion of the Society with respect to location, duration, frequency of supervision, at a minimum of one weekly visit, based on the needs and preferences of the child and the state of the mother’s mental health. If the society is concerned that the mother is not mentally stable at the time of each access visit, the society shall be entitled to suspend the visit.

Part Three – Legal Considerations for Summary Judgment

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.

[18] 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).

[19] 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).

[20] 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).

[21] 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).

[22] 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).

[23] 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

[24] The Status Review Application is brought by the society pursuant to subsection 113 (2) of the Act.

[25] 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.

[26] The legal test for making a disposition order is found at subsection 101(1) 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.

1. 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.

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

3. 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.

4. 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.

[27] In determining the appropriate disposition, the court must decide what is in the child’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.

[28] Once the court determines the disposition, it must consider the issue of access. The Act sets out the following considerations if an extended care order is made:

s.105(5) When court may order access to child in extended society care – A court shall not make or vary an access order under section 104 with respect to a child in extended society care under an order made under paragraph 4 of subsection 101(1) or clause 116(1)(c unless the court is satisfied that the order or variation would be in the child’s best interests.

(6) Additional considerations for best interests test – The court shall consider part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child 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.

(7) Court to specify access holders and access recipients – Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)©, the court shall specify,

(a) every person who has been granted a right of access; and

(b) every person with who access has been granted.

4.2 Society Position

[29] The society’s Status Review application seeks a final order that the child be placed in the extended care of the society. It further seeks an order that access between the child and the mother shall be at the discretion of the society with respect to location, duration, frequency and level of supervision, at a minimum of one weekly visit, based on the needs and preferences of the child and the state of the mother’s mental health. If the society is concerned that the mother is not mentally stable at the time of each access visit, the society shall be entitled to suspend the visit.

[30] At the hearing, the society amended its position to seek a minimum of one visit every two weeks or to allow it to depart from the minimum visits in response to the state of mother’s mental health.

[31] The society relies on findings of fact already made during this proceeding. It also relies on the affidavit evidence of society worker Alexandra Alter to support its position that a further protection order is required and the child should remain in the care of the society with access at its discretion to the mother. It relies on the following updating evidence:

a) The mother has been non-cooperative with the society workers who have attempted to work with her during the past year. For example:

(i) Following a visit on June 19, 2023, child protection manager Samara Miller spoke to the mother about setting up a meeting to discuss society supports. The mother had historically denied all efforts for financial and mental health support. In a follow up email sent by the mother on June 2023, the mother stated that the woman she met was not Ms. Miller as she was not wearing eyeglasses. Ms. Miller had been wearing glasses in Zoom court on April 4, 2023. The mother stated “I want to let you know that I’m not blind I have good vision I am not blind you cannot sabotage me.” On July 23, 2023 in an email she again accused Ms. Miller “she do that to manipulate to say that I’m blind I’m not blind.”

(ii) On December 18, 2023, the mother’s access visit was cancelled as her child could not attend. The mother was advised upon arrival at the office as she did not have a phone. The mother was angry and combative with the society worker Ms. Khaitman. Ms. Khaitman had to call security as the mother could not de-escalate. As she left, the mother accidentally slipped on the staircase and fell. She accepted help from security and told them that Ms. Khaitman had assaulted and attacked her by pushing her down the stairs.

(iii) From December 18, 2023 to February 6, 2024 the society was unable to connect with the mother directly to confirm that she had recovered from the incident.

(iv) On February 6, 2024 a society worker dropped off a grocery card and a loaded PRESTO card with the mother at her home. The mother stated that her phone had been hacked and that people were putting things into her creams and products. The people were coming into her home in spite of the deadbolt she had installed. She explained that she did not report this to the police because she could not trust them.

(v) Ahead of a scheduled access visit on March 4, 2024 the mother reported to Ms. Alter that people are trying to break into her home when she was outside of the apartment and that they are trying to “destroy her physical” pointing to her face and hair to show that people are putting chemicals into her creams to negatively alter her appearance.

b) The mother’s access to the child has been as follows:

(i) At the time the final protection order was granted, access visits were taking place virtually on a supervised basis for 30 minutes. Access had previously been reduced to virtual in January 2023 following the mother’s escalated conduct at a visit that posed a safety risk to the child and the workers.

(ii) An in person visit was set up for the child’s birthday on June 19, 2023. Another in person visit took place on July 10, 2023 which the child enjoyed.

(iii) From late December 2023 to February 2024, the mother was not in contact with the society and therefore did not attend any scheduled visits. Access resumed and the mother is visiting the child every other Monday in person at the office.

c) The child has continued to thrive in the care of the society. He is very active and enjoys playing sports including lacrosse, ball hockey, soccer and basketball. His teachers have reported that he continues to experience academic growth. He works with a tutor three times a week to address his weakness in math. He meets with a therapist once or twice per week for individual support. He receives support from a Child and Youth worker once per week. The society is planning a psychological assessment to determine any diagnoses and recommendations for how to better meet his needs.

d) The father has not sought contact with the child since his admission into care. He has not participated in the court proceeding. He is in default.

e) Neither parent has presented a plan of care for the child.

4.3 Public Guardian and Trustee Position

[32] The mother was found to be a “special party” on April 4, 2023. Counsel Mr. Tobias was present at the summary judgment motion as Agent for the Public Guardian and Trustee. The mother failed to attend.

[33] Mr. Tobias did not file any affidavit evidence at the summary judgment motion. He is not opposing the extended care order sought by the society. However, he did make submissions in support of the access order sought in the society’s application, specifically preserving the minimum once per week visit. He also made submissions in support of the naming of the mother as an access holder in addition to naming the child as an access holder.

4.4 Child’s Views and Preferences

[34] The child has been represented by counsel Mr. Glass throughout this proceeding. The child’s counsel emphasized the social, academic and physical development of the child in care over the course of this proceeding. He is thriving in his foster home. He has progressed positively on every front.

[35] He advised the court that despite not seeing his mother frequently or regularly, the child does wish to have access with his mother. The child has three reasons why he wants to see his mother. He knows that his mother loves him and it is reassuring to hear that from her in the visits. Secondly, he worries about his mother. He has come to understand that his mother has serious mental health difficulties. He would like her to be assessed. He also enjoys access visits with his mother because she brings him good gifts and food during the visits.

[36] The child’s counsel further advises that the child does feel disappointed when her mother fails to attend access and if this continues his views on access may change.

[37] The child’s counsel supports the society’s position with respect to extended care and that the minimum visits be every two weeks as this reflects the current frequency of the visits. If the visits are minimum once a week, he suggests that the visits alternate between virtual and in person.

[38] The child’s counsel’s position is that the child’s access with his mother is both beneficial and meaningful. Furthermore, his position is that the child should be the access holder because if the mother fails to attend access visits for another long stretch, the child may not choose to maintain that contact post adoption. In the future, if and when openness is being discussed, the child can bring the openness application.

[39] The child’s counsel opposes a no contact order with respect to the child’s father. The child has expressed his desire to have contact with his father. While the father has not responded to this interest, this may change in the future and should not be barred at this juncture by a no-contact order. He supports silence as to access with respect to the father.

4.5 No Genuine Issues Requiring Trial Based on the Affidavit Material

[40] 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.

[41] 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.

[42] 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.

[43] 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 another party has not met their onus of establishing that there is a genuine issue requiring a trial on any issue.

[44] I reach these conclusions for the reasons that follow.

[45] The father was served with the Status Review application on December 11, 2023. He failed to file an Answer or a responding affidavit to this motion and is not in attendance at the hearing. He is noted in default.

[46] The mother has been found to be a special party. She did not attend at the hearing. An agent for her counsel from the Public Guardian and Trustee did attend. No Answer or affidavit evidence was filed on her behalf. The Public Guardian and Trustee is not opposing the extended care order or the access order sought in the Status Review application.

Final order for Extended Care

[47] The child is currently 11 years of age. He has resided in the care of the society for 22 months. He has almost met the statutory timeline of 24 months and requires permanency.

[48] The child’s physical, mental and emotional needs are being met in his foster home. He is thriving in care. He is actively engaged in sports. He is regularly attending school. He works with a tutor three times a week to address his weakness in math. He meets with a therapist once or twice per week for individual support. He receives support from a Child and Youth worker once per week. The society is planning a psychological assessment to determine any diagnoses and recommendations for how to better meet his needs.

[49] The court must consider risk in the best interests analysis. First, the court must consider the risk that justified the finding that the child was in need of protection from likely physical and emotional harm. Secondly, the court must consider the risk inherent in the child being returned to the care of their mother 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] At the time the final protection order was made on June 5, 2023, the society’s evidence established that the mother was in the grip of serious delusions which rendered her paranoid and resistant to treatment and supports. At that time, there was no evidence before the court that the mother had insight into her mental health issues. There was no evidence that she had connected with any mental health service providers. There was no evidence that she had been compliant with effective treatment.

[51] The society’s updating information reflects a continuation of these chronic and pervasive mental health issues. There is evidence of a continuation of the delusional and paranoid beliefs. The mother continues to lack insight into her mental health issues and that she is profoundly suspicious of society workers and others. She believes that she is being poisoned through her beauty products. She believes that the society workers are lying about their identities. She does not trust the police.

[52] There is still no evidence before the court that the mother has developed insight into her mental health issues, that she has connected with any mental health service providers or that she has been compliant with effective treatment. There has been no progress made to date.

[53] These delusional beliefs pose a continuing high risk to the child before the court. The mother is fearful of those who would be available assist her and the child. There is therefore a high risk that if the child were returned to her care that she would keep him home from school, his sporting events, tutoring, friends and other supports in order to “protect” him from perceived threats. This isolation imposed by the mother was very harmful to the child in the past and would be so in the future. There is also a continuing risk that she would share her delusional fears with him and negatively affect his sense of emotional and physical safety.

[54] The serious risk posed by the mother’s psychological fragility has not been addressed or mitigated in this case. The high risk persists and a return to her care is not safe for the child. Further, there is strong evidence to suggest that the mother would fail to cooperate with a supervision order as she does not have insight into her psychological condition and the society workers trigger her paranoid beliefs.

[55] The society’s motion for an extended care order for the child is unopposed by the mother, the father, the Public Guardian and Trustee (on behalf of the mother) and supported by the child’s counsel. There is no alternative plan of care before the court. The evidence overwhelmingly supports the society’s position that an order placing the child in the extended care of the society is in his best interests. The court has no evidence before it to raise a genuine issue for trial with respect to the extended care order.

Final Access Order

[56] Once an extended care order is made, the court must turn to the issue of access. The society, the Public Guardian and Trustee (on behalf of the mother) and the child’s counsel are agreed that an access order for the mother is in the child’s best interests. Their positions differ slightly with respect to the wording of the access order and the access holder.

[57] The evidence before the court supports a finding that an access order is in the best interests of the child. The mother has had access with the child following his admission into care. The child has clearly expressed a desire to continue his access visits with his mother. He enjoys seeing her due to her expressions of love during the visits and the gifts and food she brings. Further, he is worried about her mental health and wants to check in on her. The evidence supports a finding that access between the child and his mother is in the best interest of the child and that the relationship is beneficial and meaningful.

[58] The parties before the court also agree that the access order has to ensure that the child’s contact with his mother is supervised and safe. The parties all support the society’s broad discretion to respond to the vagaries of the mother’s mental health it its facilitation of access to the child. There were submissions with respect to different minimum numbers of visits.

[59] The evidence before the court supports the need for this discretion given the chronic protection issue of the mother’s mental health challenges.

[60] There is no genuine issue for trial with respect to the issue of the access order. A trial on this issue will not change the reality that the risk posed by the mother’s untreated mental health issues currently requires society supervision and will require flexibility with respect to the level of supervision in the future.

[61] The access order that the society is seeking in its application gives it discretion with respect to location, duration, frequency and level of supervision. The application specifies a minimum of one weekly visit, based on the needs and preferences of the child and the state of the mother’s mental health. If the society is concerned that the mother is not mentally stable at the time of each access visit, the society shall be entitled to suspend the visit.

[62] At the hearing the society sought to amend the order to seek a minimum number of visits every two weeks in light of the evidence of mother’s attendance pattern.

[63] The access order formally sought in the application builds in a high level of flexibility which allows the society to respond to the future trajectory of mother’s mental health. If the mother’s mental health does not allow for the minimum once weekly visit, the society may suspend the visits as appropriate. Similarly, the child’s needs and preferences can also be a reason for deviating from the once weekly visit.

[64] This is the order that was formally sought in the application served on the mother and the order that is appropriate. The amendment sought is not required to provide the flexibility sought by the society.

[65] The society is seeking to specify that the child shall be the access holder and the mother shall be the access recipient. The Public Guardian and Trustee made oral submissions to support the naming of the mother as an additional access holder. Counsel referred to the quality of the access visits and mother’s participation in same but filed no evidence in support of this position. The child’s counsel supports the society’s position that the child should be the sole access holder.

[66] Pursuant to subsection 105 (7) of the Act, the court must specify who is an access holder and who is an access recipient in making its extended society care with access orders.

[67] In Children’s Aid Society v. Y.M., 2019 ONCJ 489, the court found that the parents would likely delay any openness proceeding if made access holders, either through unreasonable litigation or through other methods, as they had delayed the protection case, often coming late for trial, or not at all. The court found that would put a chill on adoptive applicants and impair the child’s opportunities for adoption. The court found it in child’s best interests to make child and not parents access holders.

[68] The evidence before the court supports the identification the child as the sole access holder. There is no evidence supporting the mother as an access holder.

[69] The mother has been inconsistent in her exercise of access in the last year. She has missed her access for long stretches of time. She has been out of contact with the society. She has attended court sporadically. She has demonstrated paranoia and suspicion of the society and the court. Her erratic behaviour has the potential of deterring adoptive applicants who fear protracted openness litigation and negotiations.

[70] The child has been continuously represented by counsel and if there was an adoption plan, he would automatically be assigned counsel by the Office of the Children’s Lawyer to represent him with respect to the issue of openness. Identifying him as the sole access holder is in his best interests.

[71] Accordingly, the identification of the appropriate access holder does not create a genuine issue requiring a trial.

[72] The society further requests an order granting it the ability to apply for and obtain legal and government documents for the child including but not limited to health cards and passports, without the consent of the parents and dispensing with any requirement for their signatures on any applications to obtain such documents.

[73] The above order with respect to documents is in the best interests of the child. He requires up to date documentation to facilitate his education and travel. In light of his mother’s erratic and paranoid behaviour and the father’s failure to participate, the society should be responsible for these tasks.

[74] There is no genuine issue requiring a trial to determine whether the society should have the ability to apply for government documentation for the child.

Part Five – Conclusion

[75] A final order will go on the following terms:

a) An order that the father B.S. is noted in default for the purposes of the Status Review application issued October 25, 2023.

b) An order pursuant to Rule 16 of the Family Law Rules for Summary Judgement as follows:

a. The child D.S. born […], 2013 is placed in the extended care of the society.

b. Access between the child D.S. and the mother Z.Y. shall be at the discretion of the society with respect to location, duration, frequency and level of supervision, a minimum of one weekly visit, based on the needs and preferences of the child and the state of the mother’s mental health. If the society is concerned that the mother is not mentally stable at the time of each access visit, the society shall be entitled to suspend the visit.

c. The child D.S. shall be the access holder and the mother Z.Y. shall be the access recipient.

d. The society shall be permitted to apply for all government documentation for the child including but not limited to health cards and passports, without the consent of the parents Z.Y. and B.S. and dispensing with any requirement for their signatures on any applications to obtain such documents.

Released: June 25, 2024 Signed: Justice D. Szandtner