COURT FILE NO.: FC-13-818-02 DATE: 20160429 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simcoe Muskoka Child, Youth & Family Services, Applicant AND: J.H., K.M., A.H. and D.H., Respondents

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: Jeffrey Hustins, for the Applicant Douglas Manning, for the Ontario Children’s Lawyer Meghan Smith, for the Respondent A.H. J.H., K.M. and D.H., Self-Represented

HEARD: April 11, 2016

ENDORSEMENT

Introduction

[1] On April 11, 2016 I heard a motion for summary judgment brought by the Applicant Society. The Society requests an order that the child A., who is 10 years of age, be placed into the custody of his father K.M. pursuant to s. 57.1 of the Child and Family Services Act. The Society also asks that the respondent mother, A.H. receive supervised access at a Supervised Access Centre once every three months and that the maternal grandparents, J.H. and D.H. receive access to A., again at a Supervised Access Centre, once per month. The Society further requests a restraining order against A.H. Assuming the s. 57.1 order is made, the jurisdiction for this order will be under the Children’s Law Reform Act.

[2] This motion arises out of a status review of a supervision order granted on June 27, 2014 by Olah, J. On that date, pursuant to a summary judgment motion placed before her, Olah, J. ordered that A. live with his father subject to Society supervision for one year.

[3] That was not, however, the first supervision order made in this proceeding. A. was apprehended from his mother’s care in Oshawa in September 2010 and has lived with his father since March 2012 subject to Society supervision. In October 2012 A.H. and her parents were noted in default and A. was placed in the care of the father subject to Society supervision for six months. On June 5, 2013 a further supervision order was made placing A. with his father for a further period of six months. Again A.H. and her parents were noted in default.

[4] Since the supervision order made in 2012, A.H. has had supervised access every three months and the maternal grandparents, D. and J.H., were permitted access once per month. All access was supervised by the Society.

[5] Both the 2012 and 2013 supervision orders were made in Oshawa. The order of June 5, 2013 also provided that the file be transferred to Barrie as K.M. had moved to Simcoe County with A. This status review proceeding began in June 15, 2015 and this motion for summary judgment was set down by Wood, J. on October 20, 2015. He scheduled the motion for February 12, 2016 and gave both the applicant and all of the respondents (the mother and maternal grandparents) time limits for replying to the CAS materials. No one complied with these directions. A.H. concentrated on bringing motions without notice, one of which was brought before Mulligan, J. on December 29, 2015 and the second of which was brought before me on December 30, 2015. Both those motions were dismissed.

[6] On return of this matter before me on February 12, 2015, A.H. requested an adjournment. She said that she was obtaining counsel and had not been able to file materials. I reluctantly granted the adjournment partly because the Society had also not complied with their own service requirement and A.H. said that she had only received the Society materials that day. The return of the motion on April 11, 2016 was peremptory on A.H. She was to file her materials on or before March 31, 2016.

[7] Instead of complying with the directions regarding filing of materials, A.H. then promptly brought another motion without notice on February 23, 2016. This was the fourth motion that she has brought without notice since July, 2015. This motion requested care and control of A. based upon statements made in the Society worker’s affidavit regarding bruising noticed at the school and investigated by the Society and the police. A.H. was directed to serve her materials on the Society if she wished to rely upon them at the return of the motion; she did not serve the Society with those materials. Her motion without notice was otherwise dismissed.

[8] A.H. appeared with newly retained counsel on return of the motion on April 11. Counsel requested an adjournment as she had only recently been retained.

[9] This matter is replete with numerous instances where A.H. has failed to engage with this matter on a timely basis. She was noted in default along with her parents on two occasions. She did not comply with my directions to serve her motion and affidavit on the Society and the matter was peremptory. I therefore refused the adjournment request.

[10] A.H. then filed an affidavit. Her parents had also filed an affidavit which was served on the Society on April 7, 2016 (well outside my directions for service from February 10, 2016). The maternal grandparents requested that A. be returned to his mother’s care failing which A. be placed with them in a kinship arrangement. Although no formal motion was filed those requests were contained in their affidavit. Alternatively they requested increased access for both themselves and the respondent mother.

[11] The Society now requests custody of A. to be placed with the father pursuant to a deemed custody order under s. 57.1 of the Child and Family Services Act. The Society agreed that it would continue to assist K.M. in obtaining counselling for the child as recommended by parenting capacity assessments in 2012 and 2015. The society would not agree to provide any further services to K.M. or the parties. Specifically the Society does not agree to being involved in any further supervision of access.

Issues

[12] The parties agreed during argument that there is no further need to consider whether A. was in need of protection in this status review. A. was previously found to be in need of protection on November 2, 2012 and on June 5, 2013. There was no finding of the child to be in need of protection by Olah, J. and all parties agreed that there was no need to make a further finding that A. was in protection for the purposes of this summary judgment motion notwithstanding case law that suggests there is a continuing need to make a finding of child being in need of protection: see C.M. v. Catholic Children’s Aid Society Metropolitan Toronto, [1994] S.C.R. 165 and Children’s Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754 (S.C.J.).

[13] The issues before me concerned disposition and a restraining order.

[14] The material filed demonstrates a lengthy status quo wherein K.M. has had care of A. The maternal grandparents have requested that A. now be placed in the care of either A.H. or themselves. According to their materials, that is partly based upon the failure of the Society to properly consider their kinship request. As well, that request is based upon alleged mistreatment of A. including physical discipline by K.M. while A. was in his care.

[15] The other major concern for the court is whether a supervision order should go as opposed to a s. 57.1 custody order. This involves a consideration of whether the Society’s continued involvement remains necessary in this matter. The Society says that continued supervision orders are no longer appropriate especially in light of the fact that there have been three previous to this date and it is a foregone conclusion as to where A. will reside. It is appropriate according to the Society that this matter be resolved on a final basis by way of a deemed custody order rather than continued supervision.

[16] Next there is the issue of access to both A.H. and to her parents. Finally, there is a motion for a restraining order.

Analysis

[17] This is a motion for summary judgment.

[18] Summary judgment may be granted where there, “is no genuine issue requiring a trial of a claim or defence”: see Rule 16(6) of the Family Law Rules, O. Reg. 114/99.

[19] Under Rule 16(4) the evidentiary requirements for a party seeking summary judgment requirements are as follows:

(a) the party making the motion shall serve an affidavit or other evidence that sets out specific facts showing there is no genuine issue requiring a trial;

(b) the responding party has a duty to provide meaningful reply materials. Under Rule 16(4.1) the party responding to a motion for summary judgment shall not make mere denials, but must provide by affidavit evidence specific facts which show a genuine issue for trial.

[20] The summary judgment rule has recently been amended. While previously the court was unable to make credibility findings, I now have new fact-finding powers. These are set out in Rule 16(6.1) of the rule. I may now weigh evidence, make credibility findings on the evidence, or draw inferences of fact from the materials filed. I may also direct a focused hearing or “mini trial” under Rule 16(6.2).

[21] To succeed on a summary judgment motion, the moving party must prove on a balance of probabilities that there is no genuine issue requiring a trial. “No genuine issue requiring for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”: Children’s Society of Oxford (County) v. J.(J.), 2003 ONSC 2388 at para. 8. Other courts have held that there is no genuine issue for trial when the “outcome is a foregone conclusion” or when there is “no realistic possibility of an outcome other than that as sought by the applicant”: Catholic Children’s Aid Society of Metropolitan Toronto v. O.(L.M.), 1996 ONSC 7271 at para. 80, and Children’s Aid Society of the County of Lanark and Town of Smiths Falls v. S.M., [2010] W.D.F.L. 2361 (Ont. S.C.J.) at para. 21. It is to be noted that Rule 16 is mandatory; if the court concludes there is no genuine issue requiring a trial of a claim or defence, the court must make a final order accordingly: see Children’s Aid Society of Toronto v. H.(R.), 2000 ONCJ 3158, [2000] O.J. No. 5853 (C.J.) at para. 14.

[22] It is implicit in the rule that the evidence must show material facts which would warrant a trial of an issue. A fact is “not material to an action in the sense that a result of the proceeding does not turn on its existence or non-existence”: see Irving Ungerman Ltd. v. Gallanas, 1991 ONCA 7275, [1991] O.J. No. 1478 at para. 16. It must be a point in issue of “sufficient importance to the outcome of the case to warrant a trial adjudication of the point in dispute”: see Children’s Aid Society of Toronto v. F.(M.), 2002 ONCJ 45134, [2001] O.J. No. 6076 (C.J.) at para. 12.

[23] The burden is on the applicant to set out evidence of specific facts showing no genuine issue requiring a trial. However, once the applicant makes a prima facie case, the evidentiary onus shifts to the responding party. That party must then point to evidence of specific facts showing there is a genuine for trial: Children’s Aid Society of Northumberland v. K.S., 2012 ONSC 6847 (Div. Ct.) at para. 28. The respondent must put his or her best foot forward and cannot rest on mere allegations or denials: Rule 16(4.1) of the Family Law Rules, O. Reg. 114/99; Children’s Aid Society of Hamilton v. K.F., 2014 ONSC 576 at para. 37. Another way to put this is that there must be 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. H.(R.), at para. 18. In other words, there must be some improvement in the circumstances of the parent since the date of apprehension to show a genuine issue for trial. I note that this point is particularly applicable to the present case.

[24] Courts must be cautious, however, in granting summary judgment in child protection cases since the stakes for the family are high, and granting summary judgment deprives the parent of the procedural safeguards of a trial: C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357 and Catholic Children’s Aid Society of Toronto v. M.(L.), 2011 ONCJ 146.

[25] As noted, we are dealing with the new amendments to the rule allowing additional fact-finding powers to the court. The Supreme Court of Canada recently considered similar amendments to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in Hryniak v. Maudlin, [2014] S.C.R. 87. Effectively, I must first consider the motion for summary judgment without regard to the new fact-finding powers under the rule. If on the basis of the materials filed I find a genuine issue for trial, I am then to determine whether a trial can be avoided through the process to be followed using the new fact-finding rules provided through the amendments to the rule. Karakatsanis J. also suggested that the judge hearing the motion for summary judgment remain seized of the matter once determining the issue.

[26] As noted above, the parties have agreed that I need not find the child to be in continuing need of protection. Accordingly, the issues are those of disposition based upon the best interests of the child. The best interests test is set out in s. 37(3) of the Child and Family Services Act, which reads as follows:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child’s physical, mental and emotional level of development.
3. The child’s cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
6. 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.
7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
8. 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.
9. The child’s views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. 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.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance.

Issue #1: Primary Residence of the Child

[27] A. was born [...], 2005. He initially resided with his mother until being apprehended in 2010. A. has resided in the care of K.M. since March 2012, subject to Society supervision. Both A.H. and her parents have filed materials that suggest that the primary residence of A. should be changed. D.H. and J.H., the maternal grandparents, suggest that A. be placed with his mother or alternatively, with them, rather than being left with K.M. A.H. filed an affidavit suggesting that A. be placed in her care (although she had not brought a motion for that relief).

[28] J.H. and D.H., as well as their daughter, the respondent mother, rely largely on an incident which occurred on February 4, 2016, when A. made a disclosure to his school about bruising on his arms as a result of his father hitting him. The allegations were investigated by the Midland Town Police who determined that A. was not being wholly truthful and that the bruising did not necessarily result from K.M.’s actions or excessive discipline. J.H. and D.H. are critical of this; they believe that the Children’s Aid Society worker, Jessica Belcher, influenced the police to not lay charges.

[29] It is to be noted that this is not the first time that K.M. has been called out for A.’s bruising. In October 2013, A. received bruising from “rough play/wrestling” with K.M. It turned out that A. disclosed the bruising to get his parents “back together”. K.M. was cautioned and, between then and February of 2016, there had been no further instances of bruising or potential physical disciplining or abuse.

[30] As well, both K.M. and A.H. had agreed to provide criminal records to the Society and through the Society to the court. D.H. and J.H. allege that K.M. was under house arrest for dealing in illegal substances. It is to be noted that the Society had sent consents out to both parties on December 8, 2015 in order to obtain consent so that the Society could obtain criminal records through a 14B Motion. K.M. did provide a criminal records consent, but A.H. has not yet provided her consent. The 14B Motion has not been brought. According to counsel, this is because the Society was waiting for A.H.’s consent prior to requesting criminal records for both parties.

[31] Stacked against these assertions is a large volume of evidence which indicates that it continues to be in the best interests of the child that he remain in the care of his father. These factors include the assessments conducted in this matter, the lengthy status quo, and the lack of improvement and change by the respondent mother and her parents since the apprehension and in particular, since the last motion was argued.

(a) Assessment Reports

[32] There were two assessments conducted in this matter. The first was a lengthy parenting capacity assessment conducted in 2011 and released in early 2012 by Dr. Betty Kershner in Durham. That assessment can be found attached to the Affidavit of Jessica Belcher, sworn January 6, 2016. As stated, it is lengthy, being in excess of 90 pages in length.

[33] The assessment is lengthy partly because it is comprehensive as to all of the parties that appear before the court. Certainly, K.M. and A.H. participated in this assessment; however, D.H. and J.H. were also involved. Psychological testing was performed on all of these parties by Dr. Kershner.

[34] Regarding A.H., Dr. Kershner felt that A. could not remain or be placed in her care. She states in her summary that A.H. is a “complicated person” and also states that “her presentation is so strident, uncooperative, demanding and rejecting at the same time as to be off-putting”. Dr. Kershner says that A.H. “cannot be trusted”. She says that A.H. is a “deeply troubled young woman” and that A.H.’s “mental health is significantly compromised”. Dr. Kershner’s conclusion was that A. could not be placed with A.H.

[35] Dr. Kershner was also critical of the maternal grandparents, J.H. and D.H. She says that they present a “enmeshed volatile style”. Dr. Kershner said that “attempts at working with [D.H.] result in [D.H.] feeling personally attacked”. Dr. Kershner stated that D.H. “lacks insight or motivation for change”.

[36] Regarding J.H., Dr. Kershner says that he “focuses on perceived wrong to [D.H., A.H. and A.], and resists looking at his own or their need for improvement”. She says that J. suffers from depression and a “drinking problem”.

[37] Dr. Kershner’s conclusion is that the only viable plan is that A. be placed with K.M. This should be subject to “supervised access for [A.H.], [D.H.] and [J.H.]”. She states that if access is unsupervised, there is a risk that “[A.H.] could take [A.] and flee or that she would speak to [A.] very badly about [K.M.]”. Notably, Dr. Kershner said that A.H. and K.M. would be unable to co-parent A.

[38] There was a second assessment completed. This was completed by the Child Advocacy and Assessment Program (CAAP) in Hamilton on October 5, 2015. This assessment was ordered by Olah J. on June 27, 2014. Significantly, notwithstanding Olah J.’s order that A.H. and her parents be interviewed by CAAP (or perhaps because she ordered this), A.H. and her parents refused to participate in this assessment. This is especially confusing, as A.H. is now stating that she wishes to use legal aid money to obtain a further assessment report when she could have easily participated in the CAAP Assessment. Neither A.H. nor her parents gave any reason why none of them participated in the CAAP Assessment.

[39] Because K.M. was the only participant in the CAAP assessment, this was more of an assessment of A. than the parties. Part of the reason for the assessment is A.’s “challenging behaviours, poor school functioning, and his relationship with his mother and maternal grandparents”.

[40] It is apparent from this assessment that A. is a very troubled child. He did say that he was “not able to see his mother but more importantly, his grandparents as much as he would like”. He did not understand why contact was limited.

[41] A. was described as “highly mistrustful, engaging only when certain that CAAP was not allied with CAS”. The assessment states that such mistrustful behaviour is “common in children who have experienced maltreatment, including exposure to violence and conflict between caregivers, in addition to disruptive detachments”.

[42] The assessment confirmed that A.H. advised CAAP that she would not be participating in the assessment. In addition, J.H. and D.H. did not contact CAAP and did not respond to attempts to telephone them or involve them in the assessment.

[43] The assessment concludes that A. “requires first and foremost, a parenting environment where he experiences stability and safety (specifically psychological safety).”

[44] As stated, the affidavit of J.H. and D.H. does not address why they did not participate in the assessment. J.H. takes exception to the assessment by Dr. Kershner. J.H. says that the Children’s Aid Society used the assessment report from Dr. Kershner to “butcher our reputations”. He does not, however, address any of the specifics in the assessment report, including the psychological testing. He blames the assessor for not getting her facts right, but spends most of his narrative on injustices perpetrated on his wife, A.H. and him by the Children’s Aid Society workers both in Oshawa and in Simcoe County. He also does not reserve his vitriol solely for the CAS workers involved; he was also extremely critical of counsel for the child.

[45] I note, however, that the conclusions of the Kershner assessment report are corroborated by the facts. A.H. attended numerous parenting programs in 2011, all of which were completed prior to the assessment report. No evidence was presented to the court of what she has done since. As well, A.H. has been inconsistent in exercising her access, and has brought numerous emergency motions without notice for a change in custody and/or for make-up access. She does not seem to understand the necessity of serving the Society or the Children’s Lawyer with these motions. There is an air of blame, instability and crisis surrounding A.H. which is in line with Dr. Kershner’s conclusions noted above.

[46] As well, A.H.’s parents continue to be enmeshed with their daughter. Their first choice would be for A.H. to have care and control of A. notwithstanding the serious problems noted by Dr. Kershner and the serious problems that A.H. continues to apparently have. They had their daughter come to one access visit and at another point in time when food was to be delivered to an access visit, they had their daughter (rather than a neighbor) deliver the food. They were aligned with A.H. in refusing to be involved with CAAP. They appear to be totally united with their daughter and I conclude that they would not, if requested, protect A. from A.H. or her mental health concerns, which appear to be unresolved. There is at least no evidence that anything has changed in that regard.

(b) Status Quo

[47] Paragraphs 1 and 2 of s. 37 of the Child and Family Services Act speak to the issue of the child’s stability and the respective abilities of the parties to offer that stability. The assessment reports appear to state that A. should remain in the home of his father which offers the stability that A. requires. The home is acknowledged not to be perfect, but much better than what can be offered through either the mother or the maternal grandparents. There is a lengthy status quo wherein A. remains in the care of his father where he has lived for four years now. This is nearly as long as A. had lived in his mother’s care prior to the apprehension which took place in 2010.

[48] That status quo is an important factor. Children need stability. To remove a child from the care of one parent and place him in the care of the other without adequate evidence would do the child a disservice, especially on a motion such as in the present case. There is no trial narrative with which I can determine what these parents are really like.

[49] As well, when seeking to change a status quo, the court must look at the importance of “continuity in the child’s care and the possible effect on the child of disruption of that continuity”: s. 37(3)7 of the Child and Family Services Act.

[50] The major reasons why the respondents state that the status quo should change is a bruising incident which took place in February 2016, as well as the failure of the Society to obtain the criminal record of the respondent father. J.H. alleges that K.M. was convicted of drug dealing and was under house arrest for two years as a result. He does not state the source of that knowledge. It is also to be noted that A.H. has failed to provide her consent for a criminal record check at this point in time.

[51] The Society as well as the police have investigated the bruising and determined that it was not caused by physical discipline. They do not trust A. when he says that his father hits him, and cite his troubled behaviour. J.H. does not provide the source of his knowledge of criminal activities on the part of K.M. and if this evidence is hearsay, he must state the source of that knowledge failing which I must draw an adverse inference: see Rule 16(5) of the Family Law Rules, O. Reg. 114/99. I cannot see where that knowledge came from if not from hearsay evidence. As well, A.H. cannot necessarily complain about the failure to obtain a criminal record, when she is seeking custody and has not provided her own consent for a criminal record check.

[52] A.H. and her parents submit that the status quo is exactly the reason that the care of the child should shift to them. They suggest that A. was doing well at the time he was apprehended from A.H.’s care. They note that that A. is now extremely troubled, as confirmed by CAAP and that the responsibility for this lies at the feet of K.M. and the present four year long status quo wherein A. has been living with him.

[53] Those submissions do not raise a genuine issue for trial. Firstly, Dr. Kershner confirmed that A. was extremely troubled even back in 2011 when she completed her parenting capacity assessment. She says that A. then had “many problem behaviours” even before being placed with K.M. Dr. Kershner noted A.’s “aggression and defiance”; that behaviour continues today. In other words, there is no evidence connecting A.’s problems today with the care that he has received from K.M.; A.’s problems long pre-dated his placement with his father.

[54] Further, it does not lie in the mouths of either A.H. or her parents to take the position that A. had few or no behavioural issues prior to the apprehension. The time to make that case was in 2012 and 2013 in Oshawa, when those facts were current and more available to the parties and the court. Instead of making that case then, the mother and her parents determined that they would not participate in the litigation, and they were noted in default not just once, but twice. This is especially so where all parties have agreed that they do not wish a reconsideration of the finding of A. being in need of protection for the purposes of this summary judgment motion.

[55] Finally, A.H. and her parents have not undertaken to continue A.’s attendance at the Native Friendship Centre. That is an extremely positive component of the present status quo. If there is anything that should continue, it is A.’s attendance at the Native Friendship Centre. That does not appear to be part of any plan of care from either A.H. or her parents.

[56] The Society has presented evidence suggesting that the present placement of A. with K.M., a long standing placement, is stable and meets the needs of the child. As noted above, the onus then shifts to the respondents to demonstrate compelling reasons why the status quo should change, especially when this is being dealt with without a trial.

[57] The respondent mother and her parents have not provided compelling reasons to warrant a change in a lengthy status quo. The bruising incident was investigated by both the police and by the Society without any protections concerns resting upon the respondent father, K.M. With regard to the factors set out in paragraphs 1, 2 and 7 of s. 37(3) of the Child and Family Services Act, the evidence confirms that stability warrants the child remaining in the care of K.M.

(c) Change in Circumstances

[58] In Children’s Aid Society of Toronto v. H.(R.), Katarynych J. stated that a genuine issue for trial must arise from some evidence of better prospects concerning a parent than those which existed at the date of apprehension of a child. It must be recalled that A. was apprehended due to mental health issues concerning A.H., as well as suspected drug use by A.H..

[59] There have been three supervision orders in this matter. The child has been in the care of the respondent father since 2012. The question is whether anything has changed for the mother or her parents, and, in particular, anything since the last supervision order made by Olah J. on June 27, 2014.

[60] Certainly, A. continues to be troubled. This is confirmed by reports from the school and the CAAP Assessment noted above. A. is a defiant child and often is disciplined at the school. If there is a positive, it is A.’s attendance at the Native Friendship Centre, which he enjoys as confirmed by the Affidavit of Suzie Kies, sworn November 26, 2015.

[61] A.H. and her parents have filed affidavits. These affidavits generally complain about the failure of the Society to meet their statutory needs, or to exercise in fairness in providing services to either of them. Nowhere does A.H. or her parents acknowledge the problems that once existed and the efforts that they have made to remedy those problems.

[62] A.H. states that she has completed “all counselling and courses as recommended”. She provides no specifics of the course that she has taken. She did obtain numerous parenting certificates in 2011, but these predated the Kershner assessment. She has not provided any evidence of counselling or certificates obtained since that assessment. She has not provided any evidence of change in her personal circumstances. If there is a change, it is that she is now living in Midland; that was news to everyone concerned, including the Society worker as, at our last court appearance, we were told she was living with her parents in Oshawa. As of the date of preparation of this endorsement, A.H. has not provided her address in Midland.

[63] In blaming K.M. for A.’s problems, the respondent mother and her parents ignore the need for them both to demonstrate change in their own personal circumstances which would warrant a change in care and control. A.H. speaks in her affidavit of A.’s views and preferences. It is correct that A. has expressed a viewpoint that he wishes to see his grandparents and A.H. more frequently than he presently does. Part of the responsibility for A.’s failure to see A.H. is her own inconsistency in attending access visits. The week prior to the motion, A.H. failed to attend at a visit and blamed this on hives; however, the worker confirmed that A.H. had never mentioned hives when she cancelled the visit. Although A. may not be aware of it, A.H. does bear some responsibility for the inconsistency in A. seeing his mother. A.H. has had only two or three visits since June of 2014. There were seven potential visits and A.H. has missed more than half.

[64] That being said, A. has not expressed any view that he wishes to be in the care of either his grandparents or his mother. He does not ask for a change in residency. His views and preferences confirm that he should remain in the primary care of his father.

[65] I do not find any evidence of a change in circumstances which would warrant a change in A.’s primary care as requested by the maternal grandparents or the respondent mother. As well, I do not find any demonstrated improvement in parenting skills from the time the child was apprehended or from the time of any of the motions whereby A. was placed in the care of his father under Society supervision.

Issue #2: Disposition: Section 57.1 Custody or Supervision Order?

[66] The Society requests a custody order under section 57.1 of the Child and Family Services Act. That section reads as follows:

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[67] Under s. 57.1(2) of the Child and Family Services Act, a custody order under s. 57.1 is deemed to be a custody order under the Children’s Law Reform Act. However, the criteria as to best interests of the child concerning making such an order remain the best interests earlier discussed under the Child and Family Services Act.

[68] The Society did not request alternative relief in its Notice of Motion. Specifically they did not request what had been granted on three previous occasions which was the children being placed with K.M. subject to Society supervision. When I discussed this with Mr. Hustins during argument he took the position that I did not have the option of making a Supervision Order as there was no motion before me requesting such relief. However he advised that if an oral motion was made during argument for that relief, I would then have jurisdiction to do so. Ms. Smith on behalf of A.H. promptly made such a motion.

[69] Mr. Manning also pointed out that, under Rule 16 of the Family Law Rules, O. Reg. 114/99, I have considerable discretion as to the orders that I can make. He noted that Rule 16(6) allows me to order “accordingly” when I find no genuine issue for trial. That, he suggested, gives me jurisdiction to make an order other than the order requested in the motion for summary judgment.

[70] In any event, and based upon submissions of counsel and the oral motion made during argument by the respondent mother’s counsel, I find that I have jurisdiction to make a supervision order and consider that as a head of relief to be granted.

[71] I have noted prior to this matter that orders under s. 57.1 of the Child and Family Services Act are becoming increasingly popular with societies. That is because, presumably, because of budget constraints, a deemed custody order allows a society to step away from a matter where they believe that a parent or other party who has care of the child can adequately parent a child without the assistance of the Society. It further allows the Society to also step away from the other costs of administering a child protection file such as supervision of access as in the present case.

[72] The position of the Society is not necessarily contrary to the best interests of the child. In fact, there is some benefit to ordering deemed custody rather than ongoing supervision: a deemed custody order provides finality to the parties and the child, and prevents further engagement in ongoing and continuing status review applications. It also leaves the parties with the responsibility to parent a child together without Society involvement, which may very well be appropriate where there is a toxic relationship between a party and the Society, as there appears to be between the Respondents and the society in the present case.

[73] For me to grant summary judgment for a s.57.1 custody order, I must be satisfied that there is no genuine issue for trial concerning the child being placed in the care of the proposed custodial parent without further Society supervision. In other words I must determine there is no triable issue remaining should I grant custody to K.M. over the objections of both the maternal grandparents and A.H. I must also find that Society supervision is now unnecessary for such an order to go. It is the very same thing as granting a custody order by way of summary judgment in a Children’s Law Reform Act case.

[74] The real issue for me is whether the applicant Society has finished its job with this child. I do not think they have for four reasons. These reasons include the counselling for the child as recommended by both assessments, the failure of the Society to obtain the Respondent father’s police records, the issues concerning bruising of the child as well as K.M.’s view of A.H. and her continued contact with the child.

[75] In considering all of these issues I consider as well the criteria respecting best interests of the child mentioned in subparagraph 1 of paragraph 37(3) of the Child and Family Services Act (the “child’s physical, mental and emotional needs and appropriate care or treatment to meet those needs”), subparagraph 5 (the “importance of for the child’s development of a positive relationship with a parent”) and subparagraph 11 (risk of harm through the child being “allowed to remain in the care of a parent”)

(a) Counselling issues

[76] As early as 2011, Dr. Kershner suggested that A. had “special education and emotional needs.” Dr. Kershner said that A. required “ongoing individual play therapy and special assistance in school”. Dr. Kershner recommended that A. be placed with K.M. “with the support and monitoring as above.” I assume that meant that the placement with K.M. would be subject to play therapy and therapy in general being provided to A..

[77] Unfortunately, since that assessment things have not improved. A. continues to be troubled in school. In regard to the last incident where there were allegations of bruising as a result of A.’s treatment at the hands of K.M., the police officer and the worker did not believe A. when it was implied that he had suffered injury at the hands of his father. In fact when A. told the school vice principal that, “sometimes my dad hits me as punishment” the principal noted that A. was “smirking” and that he was “not sure if [A.] was telling the truth or not”. In the affidavit of the worker in respect of these issues it was noted by Ms. Belcher that A. had put his finger in the teacher’s face and “told her to shut up.” Again the worker observed that A. smirked when she was told that his father hit him by way of punishment. A.’s allegations regarding being hit were not believed by either the worker or the police, and this was, in part, because A. is overtly quite troubled.

[78] These concerns were borne out by the CAAP assessment completed in 2015. In that assessment, the assessor stated that “K.M. may benefit from parenting support in understanding and helping A. with his behavioural and academic difficulties at school and also understanding A.’s experiences of trauma and how these experiences impact on his emotional/behavioural functioning.” CAAP further recommended that A. “have access to regular individual psychotherapy with a professional A. can form a trusting relationship with.”

[79] Notwithstanding all of these recommendations, A. still has not recently been to a therapist. A. was on a waiting list for Child Psychiatrist, Dr. M. D. Benjamin in March of 2014. Transportation became a barrier. The Society is now assisting the father in connecting him with a physician closer to home.

[80] There is no indication that K.M. is obtaining assistance as suggested by CAAP. Although A. had a therapist in 2013 when the previous status review began, this appears to have come to an end and there is no indication that ongoing therapy is continuing at this time.

[81] When I raised this concern during argument, and after receiving instructions, Mr. Hustins indicated that the Society was content that an order be made under s. 28 of the Children’s Law Reform Act that the Society continue to assist K.M. in obtaining therapy for the child. This, however, only addresses part of the ongoing concerns regarding the present placement of the child with K.M.

(b) Police Records

[82] A review of the assessment by Dr. Kershner confirms that A.H. has always been concerned about K.M.’s previous incarcerations. Both A.H. and her parents put K.M.’s criminal record in issue in their materials.

[83] I was advised by the Society that although K.M. had signed consents to obtain his criminal record, the 14B motion for police records had not yet been submitted. I was advised that this was because they had not received consents from A.H. for the production of her criminal record and they wished to submit both consents at once.

[84] With the greatest of respect, A.H.’s criminal record is not as much of a concern as is the criminal record of K.M. She is not the person the Society seeks to place the child with. The Society is requesting a deemed custody order under s. 57.1 which is, in effect, an order for custody under the [Children`s Law Reform Act](https://www.ontario.ca/laws/statute/90c12). In the context of a regular custody application, I would have received under Rule 35.1 of the Family Law Rules, O. Reg. 114/99 an affidavit which outlined any criminal convictions of the proposed custodial parent. Because this is an application under s. 57.1 and because no criminal record check has been submitted by the Society, I am in a worse position than I would have been had this application commenced under the CLRA.

[85] I therefore do not even have the information usually available to any Judge considering a custody application under the [Children`s Law Reform Act](https://www.ontario.ca/laws/statute/90c12). I do not know whether K.M. has a criminal record or for what. K.M. has filed no material and has not confirmed what criminal convictions he presently has. Had this been a custody application in the normal course, I would not today be in a position to grant a custody order to K.M. That being the case and considering that A.H. and her parents have put K.M.’s criminal record into issue, I do not feel that this is a case for summary judgment for the granting of a s. 57.1 custody order in favour of K.M.

(c) Bruising Issues

[86] The material filed by the Society, echoed by the maternal grandparents and A.H., confirms that A. has showed up at school with some severe bruising. He stated to his teacher and to the CAS worker (albeit with a smirk on his face) that his father hits him to discipline him. Ms. Belcher and the police constable did not see fit to take these statements seriously partly because of A.’s comportment at the interview.

[87] That being said this is the second incident of bruising. Previously, in 2013, K.M. was admonished because of bruising that appeared on A. because he was “playing rough with him”. He promised he would no longer do that. That was several years ago; however the pattern appears to be repeating.

[88] Because of this, I believe it to be premature for the Society to be withdrawing its supervision of this parenting arrangement. I trust the Society to have investigated the issue; however were a s. 57.1 order to be made, the continued involvement of the society may in fact be proven to be in A.’s best interests. There is a concern as to continued risk of harm which may be unresolved and again, K.M. has filed nothing. I cannot dismiss these incidents as nothing. Accordingly the best interests of this child dictates that continued Society supervision is necessary at this time.

(d) Continued Contact With Other Parent

[89] A.H. has very limited access at this point in time. She has been inconsistent in exercising this access. She may be largely responsible for the problematic relationship that A. has with her.

[90] That being said, the CAAP assessment confirms that A. wishes to have contact with his mother. At the CAAP assessment K.M. said that “he would like to have A.’s mother out of A.’s life”. There is a real concern as to whether K.M. will encourage the relationship between A. and A.H. should the Society remove itself from involvement in this matter.

(e) Conclusion

[91] For all of these reasons I do not believe it to be in A.’s best interests that Society supervision be withdrawn. In fact I believe it to be in A.’s best interests that Society supervision continue. Recent events have confirmed that there may be a risk of harm to the child in the father’s care and as well the Society’s failed to obtain the criminal conviction records of the father notwithstanding the fact that this had been placed in issue a number of times by A.H. and her parents. As well there is a concern that K.M. will not encourage a relationship between A. and his mother notwithstanding A.’s apparent views and preferences as disclosed in the CAAP assessment. Finally it appears that the Society has been lax in obtaining necessary counselling for A. which appears to have ceased prior to the first supervision order made in the Simcoe County Family Courts.

[92] The terms of supervision are as set out in the plan of care found at tab 8 of Volume 1 of the Continuing Record as amended by this order and subject to the following additions and/or changes:

(a) K.M. shall ensure that his child attend at a therapist as recommended by the society. (b) The Society worker to assist the respondent father in obtaining a psychotherapist for A. and in transporting A. to the counsellor. (c) K.M. shall ensure that A. continue to attend weekly at the Native Friendship Centre. (d) If necessary, K.M. and A.H. to provide any required consent for the disclosure of their respective criminal records and the Society to obtain each party’s criminal record forthwith upon receipt of the required consent.

Issue #3: Access

[93] Both A.H. and her parents have requested increased access to A.

[94] A. appears to have told the CAAP assessors that he wishes to see his mother more often. He has also confirmed, and the CAS worker also agrees that the visits between A. and his grandparents go well and are enjoyable for A.

[95] At this point in time A.H. sees A. on a very limited basis. She has one visit every three months for one and a half hours. She has missed numerous visits. In the last 22 months when she would have been entitled to seven visits, she has only had three. As disclosed by the numerous ex parte motions brought by A.H. she blames the Society for this. The Society workers provided an explanation for many of the missed visits and blame A.H.

[96] A recent development which has occurred is that Ms. Hick’s is now apparently residing in Midland, Ontario. Her address has not been disclosed. It is unknown how this will affect access between A.H. and A.

[97] The maternal grandparents D.H. and J.H. come from Oshawa to see A. once a month. Again their access is brief but more frequent than A.H. They see A. once a month for one and a half hours.

[98] All of this access is of longstanding since the original supervision order was made in 2012.

[99] The Children’s Lawyer has recommended on behalf of A. that the access to mother and her parents continue and that it not be changed.

[100] I mentioned the mother’s capacity for change earlier in this endorsement. As noted by CAAP, A. misses his mother dreadfully, and wants to see her more often. He is angry at the Society, who he perceives to be depriving him of visits to her.

[101] Notwithstanding A.’s views and preference (a factor to be taken into account under s. 37(3) of the Child and Family Services Act), A.H. has not improved her record of access. She continues to be sporadic and to miss visits. She is unable to negotiate in a reasonable manner the access visits set by the Society. The only person this hurts is A. who desperately wants to see his mother.

[102] To order increased access to A.H. would however be harmful to A. in view of the sporadic nature of A.H’s access. This would serve to set up continuing disappointments for A. which may harm him more than he already has been harmed. As noted by CAAP, “access relationships should only occur if the benefits of access outweigh the risks.”

[103] Because of the lack of a change in circumstances, as well as A.H’s own inconsistencies in exercising access, the access to A.H. will remain as originally ordered by the Oshawa Courts and as confirmed by Olah, J. by her order of June 27, 2014.

[104] The maternal grandparents have also asked for increased access. Their access is supervised at the Midland C.A.S. offices on one occasion per month.

[105] The reason for the limitation on the maternal grandparents is the fact that they are enmeshed with their daughter who suffers from mental health issues which continue to be unresolved. The fact that they are enmeshed with A.H. is confirmed by their own affidavit filed in the Continuing Record. In this affidavit they complain bitterly about the treatment that they have received at the hands of the Children’s Aid Society. They complain about A.’s counsel and their primary plan is that A. be returned to the primary residence of their daughter.

[106] They request unsupervised visits.

[107] I do not believe that unsupervised visits would be in A.’s best interest. I believe that based upon the affidavit filed by the grandparents that they continue to be entangled with their daughter. On January 27, 2015, at a scheduled access visit for the maternal grandparents the mother attended the Society office for access. This again occurred on February 19, 2015. It has been noted on February 19, the maternal grandmother D.H. had stated that a neighbour was dropping off food; in fact it was the mother dropping off food.

[108] Both of these incidents have occurred since the last supervision order by Olah J. Things have not improved; in fact they have worsened.

[109] In their affidavits neither D.H. nor J.H. explain what occurred in January and February of 2015. They express no regrets about this appearing to permit in light of their affidavit I doubt that they would cooperate with the Society or attend to any provision which prevented them from allowing contact between A. and his mother.

[110] I am also not willing to reduce the access as suggested by the Society in their latest notice of motion. A. enjoys the visits and there have been no incidents in more than a year. I believe it to be in A.’s best interests that the visits to the maternal grandparents be made longer, especially considering the distance they have to travel for visits. J.H. and D.W. will continue to have access at the Society Offices but for at least three hours a month as arranged between them and the Society.

Issue #4: Restraining Order

[111] The Society finally requests a permanent restraining order.

[112] The last restraining order was issued on December 9, 2013 by Olah, J. That was a temporary restraining order which came to an end when she made her supervision order of June 27, 2014.

[113] I have jurisdiction to make an order under s.80 of the Child and Family Services Act even where I have not made a s. 57.1 custody order.

[114] I believe it to be in A.’s best interest that I make an order under s.80 restraining the Respondent mother from having contact with either K.M. or A. A.H. has advised that she has now moved to Midland and she is now living in the same locale as K.M. The material filed in support of her numerous ex parte motions indicates a significant departure from reality which is concerning. She also expresses a great deal of personal animosity towards K.M. She does not appear to be a governable litigant.

[115] I therefore order that A.H. be restrained from molesting, annoying or contacting either K.M. or the child except where exercising access to the child under this order. This is permanent restraining order which will continue until further order.

[116] As requested, there shall be an order for police enforcement of the restraining order.

Order

[117] There will therefore be a final order to go on the following terms:

a. The child will continue to reside in the care of K.M. under the supervision of the Society for one year. b. The terms of the supervision order shall be as set out in the plan of care filed at tab 8 of Volume 1 of the Continuing Record as well as the additional conditions set out in para. 92 of this endorsement. c. The Respondent mother shall have access to the child for at least 1.5 hours every 3 months supervised by the Society at the Society offices in Midland, Ontario. The Respondent mother is to notify the Society by email or telephone call 24 hours in advance to confirm her attendance at the scheduled access failing which the access shall not take place. No makeup visits shall be scheduled. d. The maternal grandparents are to have their access supervised at the Society’s Midland office for at least three hours once every month. e. A restraining order to go restraining the Respondent mother from having contact with or molesting, annoying or harassing the Respondent father K.M. or the child except when exercising access to the child pursuant to this order. f. The police force having jurisdiction shall enforce this restraining order.

McDERMOT, J. Date: April 29, 2016