CITATION D.R. v. Children’s Aid Society of London and Middlesex, 2023 ONSC 2571
DIVISIONAL COURT FILE NO.: DC-58/19
DATE: 20230427
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
Backhouse, Petersen and Schabas JJ.
B E T W E E N:
D.R.
Appellant
- and -
Children’s Aid Society of London and Middlesex
Respondent
M.-M.-K.P. and W[...] Island First Nation and O[...] Nation of the T[...]
Respondents
Unrepresented
Lisa Walters, for the Respondent Children’s Aid Society of London and Middlesex
Christina Ninham, for W[...] Island First Nation
M.-M.-K.P.and O[...] Nation of the T[...], unrepresented
HEARD by videoconference at Toronto: April 26, 2023
WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2 017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child - No person shall publish or make public in formation 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) 0ffences re publication - A person who contravenes subsection 8 7(8) or 1 34(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.
backhouse J.
reasons for judgment
Appellant’s Failure to Participate in Hearing
[1] This appeal was initially scheduled to be heard on November 21, 2022. The Appellant, D.R., failed to join the videoconference and did not respond to communications from the Registrar. The Appellant subsequently indicated he wished to proceed, and the appeal was rescheduled to April 26, 2023.
[2] At the outset of the April 26, 2023 hearing, the Appellant connected to the videoconference and then took himself on and off video and audio a number of times. An email and chat were sent instructing him to call in to the Registrar. The Registrar also attempted to reach him at the phone number he had provided to the court. A sign was held up at the videoconference with the phone number for the Appellant to contact the Registrar. When he did not call in, the hearing was ended. After the parties had left the hearing, he telephoned the Registrar. He stated that he had data and software problems. The Registrar advised him how to join the hearing by audio and that he did not require data or software, only a telephone which he was speaking to her on. She confirmed her instructions by email to him. The Appellant did join the videoconference by audio but was unwilling to speak to the Registrar. The panel returned to the hearing and advised the Appellant that if he wished to proceed with his appeal, he needed to say so or the appeal would be considered abandoned. He was again unwilling to respond, and the hearing was concluded.
Overview
[3] The Appellant is the father of the children, H.W.D. and K. W. P, both born [...],, 2018. He appeals the decision of Templeton J. (“the motion judge”) dated October 10, 2019, placing the children in the extended society care with the Children’s Aid Society of London and Middlesex pursuant to s.101(1)3 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1(“CYFSA”). The Appellant asks in his factum that the decision of the motion judge be set aside, and the matter be remitted to trial.
[4] While the Appellant has abandoned this appeal, it is very important that there be finality and closure for the children who are almost 5 years of age and have been in the care of the Society since their birth. Both counsel for the Society and for W[...] Island First Nation submitted that the appeal should be dismissed. I have considered the grounds for appeal set out in the Appellant’s factum. For the reasons set out below, the appeal is dismissed.
Background
[5] The children have resided in the care of the Children Aid’s Society of London and Middlesex since they were born. The Society brought a child protection application on June 4, 2018, amended on January 31, 2019, to seek Extended Society Care of the twins.
[6] On March 22, 2019, Henderson J. found the children to be First Nations children. They are identified with W[...] Island First Nation and the O[...] Nation of the T[...]. The children’s mother, M.-M.-K.P., did not participate in any court proceedings and has not had contact with the children since their birth. The children’s mother is their First Nations bands connection.
[7] On April 26, 2019, Mitrow J. made statutory and child protection findings under s.74(2)(b)(i) of the CYFSA.
[8] The Society brought a motion for summary judgment which was heard on August 9, 2019. The motion judge granted the Extended Society Care order for both children on October 10, 2019 and released written reasons on the same date. The children have lived with the same caregivers since the early days of their life.
The Motion Judge’s Reasons for Summary Judgment
[9] The motion judge determined that there is no genuine issue for trial. She summarizes her reasons at paragraph 121:
- I arrive at this conclusion [that there is no genuine issue for trial] for a variety of reasons:
(a) the physical, mental and emotional needs of each child. H. and K. were born prematurely with special medical needs. They remain dependent infants who require specialized and ongoing medical treatment and, in my view, focused parental commitment and care to ensure that their needs are met. D.R. has consistently presented on multiple occasions during access as unfocussed, self-absorbed and unable to appreciate the vigilance required to ensure the safety and health of the children especially given their vulnerable and entirely dependent stage of development;
(b) the Respondents W[...] Island First Nation and O[...] Nation of the T[...] are in complete agreement with the request of the Society and the plan of the Society. The children are First Nation children and their maternal aunt has been and will continuously be maintained. There is no probative evidence before me that D.R. is willing to or committed to developing a relationship with anyone involved in the cultural and linguistic heritage of the children let alone maintaining their cultural and linguistic heritage;
(c) in order for these or any children to reach their full potential, the development of a positive relationship with parent(s) and a secure place as a member of a family is essential. I am entirely satisfied that D.R. is neither capable or willing to provide that security. There is no doubt that he loves these children. But D.R. has repeatedly failed to continually focus on them and their needs in priority to his own. He is readily distracted away from concentrating on them to preoccupation with the injuries he alleges he has suffered, his antagonism toward the police, his antagonism toward the Society and his perceptions of how he has been wronged by state and governmental intervention;
(d) there is little probative evidence of the bonding necessary between the children and D.R. that would lead to the appropriate attachment. It is trite to say that children (especially at the age of these children before me) need more than love or playtime. D.R. suggests that his sons view him as a significant caregiver. I cannot agree. They may respond positively to him when he sees them but D.R.'s consistent verbal and emotional digression from the positive and supportive interaction the children require to ensure their healthy development undermines the connection with a parent that they require;
(e) D.R. has attended access on a fairly regular basis and, at times, there has been positive interaction between him and the children. But even in circumstances in which D.R. (i) has access to his sons that is limited in frequency and time; (ii) has been offered or provided with transportation; (iii) has no other dependent children; and, (iv) has no work commitments, D.R. has also missed a number of visits with his children. These children require a depth of continuity and commitment that D.R. is either not capable of or has chosen not to consistently prioritize in his personal life;
(f) the Society's plan for these children including placement and openness with their maternal aunt is in the best interests of these children. After months, D.R. does not only not have an appropriate home for his children, he does not even have (at least as of the hearing) a home for himself. He is unable to offer the children either in the short or long term, the stability they so very much need. He asks the Court to delay the order sought so that he can find housing. But, firstly, he has had months to do so and has unfortunately been unsuccessful. Secondly, children cannot and do not wait. Their physical, emotional and medical needs are consistently immediate and urgent in view of their ages;
(g) these children are infants and of very tender years. After fifteen months of Society care, they deserve and have the right to a family life that offers them warmth, security, support, nurture and love. Any further delay would not, in my view, in the factual circumstances of this case, be in their best interests;
(h) the evidence is unequivocal in my view that the risk that these children not may but would suffer harm if they were placed in the care of either D.R. or M.-M.-K.P. would be substantial, if not inevitable. In D.R.'s care, the child K. has fallen off a couch (where D.R. placed him notwithstanding a warning by the supervisor that he not do so) and hit his head on the edge of a table. D.R. has used the flame of a lighter to remove string from the baby H.'s undershirt. In an attempt to play with the children, he has placed them in the situation where H. has fallen headfirst to the ground after rolling off D.R. and K. has fallen on top of H. In addition, it is also clear that D.R.'s understanding of appropriate personal and environment hygiene for the children is significantly deficient. These incidents may well be isolated and mistakes happen in all parenting of children but these types of mistakes are indicative of D.R.'s lack of skill with respect to the care and safety of the children. More importantly perhaps with respect to the impact of this shortfall is D.R.'s attitude in response - more particularly, his response to correction by Ms. Salter. His lack of awareness of his own shortcomings and needs renders the court incapable of trusting D.R.'s willingness or ability to keep the children safe;
(i) I am entirely satisfied that the degree of risk in this case that justified the finding that these children are in need of protection remains alive and well today.
[10] At paragraphs 125 and 126 of her Decision, the motion judge finds that the Appellant is not capable or willing to acquire the necessary parenting skills in order to meet the needs of the children, and that there is no positive advantage with respect to ongoing contact. The motion judge finds that the placement in extended society care is the only viable option for the children, and that there are no kinship options. At paragraph 130, the motion judge concludes that the Society has met their onus to demonstrate a plan and placement for the children that will support and promote their Indigenous heritage.
Issues
[11] The Appellant raises the following issues on the appeal:
Did the motion judge make a palpable and overriding error of fact and law by failing to find a genuine issue requiring a trial?
Did the motion judge make a palpable and overriding error in law with reference to ss.74(3) and 105(5) of the CYFSA in determining the best interests of the children in the context of access?
Did the motion judge make a palpable and overriding error of fact and law by not considering a kinship placement for the children?
Did the motion judge make an error in law by not giving adequate consideration to the Indigenous heritage of the children in her reasons?
Court’s Jurisdiction
[12] The Divisional Court has jurisdiction to hear this appeal pursuant to s. 121 of the CYFSA and ss. 19(1) and 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Standard of Review
[13] The applicable appellant standards of review for judicial appeals are set out in Housen v. Nikolaisen.[^1] On questions of law, the standard of review is correctness. On findings of fact, the standard of review is palpable and overriding error. On findings of mixed fact and law, the standard is palpable and overriding error, unless there is an extricable error in principle, which amounts to an error of law.
Analysis
Issue 1: Did the motion judge make a palpable and overriding error of fact and law by failing to find a genuine issue requiring a trial?
[14] The Appellant argues that there was conflicting evidence and given the complexity and the gravity of the matter, there was an overriding and palpable error of fact and law made in failing to refer the matter to trial to test the evidence with cross-examination.
[15] The Appellant cites the decisions in CAS Toronto v. C.D., 2017 ONCJ 342, and CAS Toronto v. B.B., 2012 ONCJ 646 for the proposition that summary judgment motions in child protection cases should not be used when there is a triable issue, or to water down the rules of evidence. Further, citing para. 80 of the decision Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the Appellant lists the approach that courts are to take for summary judgment in child protection proceedings.
[16] In her Decision, the motion judge begins with Rule 16 of the Family Law Rules for summary judgment procedure, and specifically cites the Court of Appeal for Ontario in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 on summary judgment considerations in a child protection case. At paragraph 9 of her Decision, the motion judge states the circumstances for the Court to consider when the children have been found to be in need of protection, and have also been identified as Indigenous, citing the factors in s.74(3) of the CYFSA.
[17] The motion judge then goes on to review in paragraphs 11 to 106 of her Decision the evidence submitted by affidavits, beginning from before the children’s birth in May 2018, until May 30, 2019, recounting all interactions between the Society, the children’s mother, and the Appellant father. The motion judge notes at paragraph 119 that the Appellant father did not dispute any of the allegations about what he said or wrote during his interactions with the Society up until May 2019.
[18] In her analysis, the motion judge begins by asking whether there is a genuine issue requiring a trial, and that the Society has the burden to meet this test. She determines there is no genuine issue requiring a trial based on the entire evidentiary record before the court, except for evidence that goes against the hearsay rule. The blanket contention in the Appellant’s factum that there exists some palpable and overriding error of fact and law is not supported by specific reference to an alleged error and is made without specific reference to the motion judge’s Decision.
[19] There was no error in the motion judge’s Decision that there was no genuine issue for trial.
Issue 2: Did the motion judge make a palpable and overriding error in law with reference to ss.74(3) and 105(5) of the CYFSA in determining the best interests of the children in the context of access?
[20] The Appellant submits that in finding at paragraph 125 of the Decision that “the evidence…does not support a finding that there is a significant positive advantage to the children” that the motion judge did not apply the correct test, being the best interest test outlined in ss. 105 and 74(3) of the CYFSA.
[21] When the Decision is read in its entirety, it is clear that the motion judge considered the best interests of the child test and not just whether contact with the Appellant would be beneficial and meaningful. The decision respecting the Appellant’s access is fully supported by the evidence referenced by the motion judge concerning the Appellant’s repeated delusional and distracted failures to continually focus on the children and their needs in priority to his own. She found that the Appellant is not capable or willing to acquire the necessary parenting skills in order to meet the needs of the children. Further, the motion judge addressed the “best interests” test in ss. 74(3) and 105(5) of the CYFSA at para. 121(c)(d) and (h) of her Decision.
[22] With regard to the Appellant’s submission that there is future benefit for the children if he were to be granted access, the Appellant presented no evidence to suggest that his circumstances were improved or changed since the birth of the children.
[23] The motion judge made no palpable and overriding error in law with reference to ss. 74(3) and 105 of the CYFSA in the context of access to a child placed in extended society care.
Issue 3: Did the motion judge make a palpable and overriding error of fact and law by not considering a kinship placement for the children?
[24] The Appellant asserts that the Court was unable to fufill its duty to consider the best interest of the child because it was not made aware of potential kin that had come forward seeking to be considered as a kinship placement. Citing ss. 101(2)(3) and (4) of the CYFSA, the Appellant submits that the Court was to consider the least intrusive order to protect the children, whether a community placement with a relative or extended family member was available, and to investigate what assistance the Society has offered the Appellant, before making an order for extended Society care.
[25] The Court was made aware that the subject children had a half sibling who had been adopted. That other child became a member of a separate and distinct family. (ss. 217(2) and (3) of the CYFSA). The motion judge found that the children have significant and meaningful contact with their mother's sister, their maternal aunt who is First Nations but that aunt was not able to assume care of the children. The motion judge found that there was no relative or extended family member available to care for the children. The motion judge considered the assistance the Society offered the Appellant before reaching the conclusion that there was no genuine issue for trial. There is no error and no merit to this ground of appeal.
Issue 4: Did the motion judge make an error in law by not giving adequate consideration to the Indigenous heritage of the children in her reasons?
[26] In support of this ground the Appellant submits that the motion judge failed to give adequate consideration to the Indigenous perspective of the subject children and their rights to know their family and heritage, amounting to an error of fact and law. He further submits that the court did not apply any of the terms set out in the Calls for Justice, Reclaiming Power and Place Report (2019) with respect to Indigenous children in child protection proceedings.
[27] The motion judge addressed the children’s Indigenous culture and perspectives in the Decision, by highlighting the importance of a continued relationship with the children’s maternal aunt and the support of two First Nations bands that participated in the proceedings and supported the disposition.[^2] Counsel for W[...] Island First Nation submits that the appeal from the motion judge’s Decision should be dismissed. Further, the Appellant father of the children has no Indigenous connection. The motion judge found that there is no probative evidence before her that D.R. is willing to or committed to developing a relationship with anyone involved in the cultural and linguistic heritage of the children, let alone maintaining their cultural and linguistic heritage. She found that the children have significant and meaningful contact with their mother's sister, their maternal aunt who is First Nations and that Both W[...] Island First Nation and O[...] Nation of the T[...] will ensure that the children will maintain and have access to their heritage.[^3]
[28] There is no merit to this ground of appeal.
Conclusion
[29] The appeal is dismissed. on all grounds raised by the Appellant, and the decision of the motion judge is affirmed. The Appellant’s new claim seeking leave to bring a kinship application on behalf of the adoptive parents of a former half sibling of the subject children is denied.
[30] No costs were sought. Accordingly, none are awarded.
Backhouse J.
I agree: ____________________________________
Petersen J.
I agree: ____________________________________
Schabas J.
Released: April 27, 2023
CITATION D.R. v. Children’s Aid Society of London and Middlesex, 2023 ONSC 2571
DIVISIONAL COURT FILE NO.: DC-58/19
DATE: 20230427
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Petersen and Schabas JJ.
B E T W E E N:
D.R.
- and -
Children’s Aid Society of London and Middlesex
- and -
M.-M.-K.P. and W[...] ISLAND FIRST NATION and O[...] Nation of the T[...]
REASONS FOR JUDGMENT
Backhouse J.
Released: April 27, 2023
[^1]: 2002 SCC 33, [2002] 2 S.C.R. 235.
[^2]: [Footnote missing in original document]
[^3]: Decision at paragraphs 110 to 112 and 121(b).