Court File and Parties

Court File No.: FC-12-1620 Date: 2018/06/22

Ontario Superior Court of Justice

Information contained herein is prohibited from publication pursuant to subsections 87(7) and (8) of the Child, Youth and Family Services Act

In the Matter of the Child, Youth and Family Services Act, S.O. 2017, c. 14, Schedule 1 And In the Matter of A.S., born […], 2009

Between:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant/Moving Party – and – K.F., J.M., and L.S. Respondents/Responding Parties

Counsel: Marie-Josée Ranger, for the Applicant Steve Duplain, for the Respondent, K.F. Stephen Pender, for the Respondent J.M. L.S., self-represented

Heard: June 14, 2018

Ruling on Motion for Summary Judgment

Corthorn J.

Introduction

[1] The Children’s Aid Society of Ottawa (“Society”) brings this motion for a final order that A.S. be placed in the custody of his father, L.S., pursuant to s. 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Schedule 1 (“CYFSA”). L.S. resides in Calgary with his wife, J.S. and their two children, M.S. (age 4) and T.S. (newborn).

[2] The relief requested provides for A.S. to have access with his mother, his Ottawa half-siblings, and his extended family in Ottawa in accordance with the Plan of Care filed by the Society and supported by L.S. The extended family in Ottawa includes A.S.’ paternal grandparents. The three Ottawa half-siblings are the children of A.S.’ mother and step-father.

[3] A.S. has, since January 2017, been in the temporary care and custody of his step-father, J.M. and J.M.’s mother, M.L. A.S. has been in their care together with his half-siblings, A.M. (age 7), W.M. (age 6), and B.M. (age 3.5). In April 2018, on the consent of the relevant parties, A.M., W.M., and B.M. were placed in the legal custody of their father and paternal grandmother.

[4] A.S. is the only child for whom a final order has not yet been made on this application.

[5] On May 23, 2018, J.M. and M.L. identified to the Society that they are not in a position to provide care for A.S. beyond June 30, 2018. L.S., J.M., and M.L. each support the Society’s motion for a final order placing A.S. in the custody of L.S. in Calgary.

[6] K.F. is A.S.’ mother. She opposes the Society’s Plan of Care and the relief sought on the motion for summary judgment. In her Answer to the Application, K.F. seeks custody of A.S. or, in the alternative, that A.S. is returned to her care pursuant to a supervision order.

Background

[7] In 2011 and 2012, K.F. and J.M. resided in New Brunswick. During those years, the provincial Department of Society Development had involvement with the family. That involvement arose from issues related to domestic violence, concerns with respect to the mental health of both K.F. and J.M., and J.M.’s involvement in criminal activities. K.F. eventually moved with the children to Ottawa.

[8] The Society has been involved with K.F. and the children on a number of occasions since 2012. Apprehensions and/or investigations were carried out in 2012, 2014, and 2015. Following the second apprehension of the children within the calendar year 2015, they were placed with their maternal grandmother. In early January 2017, the four children were placed in the temporary care and custody of J.M. and his mother.

[9] The Society’s concerns with respect to K.F.’s ability to function as a parent fall into two general categories: (a) an unstable lifestyle; and (b) mental health issues. Those concerns relate to each of the four children. In the context of this ruling, the concerns are discussed as they relate to A.S.

[10] The Society acknowledges that, in the six weeks preceding the date on which the summary judgment motion was argued, there were improvements in K.F.’s lifestyle. The Society maintains that despite those very recent improvements, there has not been a meaningful change to either K.F.’s mental health or to her lack of commitment to seek help for those health issues.

[11] K.F. has had numerous opportunities over the years to demonstrate, through co-operation with the Society and in this court process, that A.S. would not be at risk if placed in her custody or in her care pursuant to a supervision order. The following are but three examples of K.F.’s failure to co-operate or to follow court orders:

• In the fall of 2015, K.F. failed to follow the terms of the supervision order pursuant to which the children were placed in her care. The terms included that K.F. not permit her partner at the time to have contact with the children. K.F. permitted that individual to have contact with the children on a number of occasions;
• In 2016, K.F. failed to fully co-operate in the Family Court Clinic Assessment that was ordered on the consent of the parties; and
• In 2017, K.F. failed to fully co-operate in a second Family Court Clinic Assessment. Of note, this assessment was arranged at K.F.’s request. The assessor was, however, able to reach conclusions and make recommendations (discussed below in the Analysis section of this ruling).

[12] The most recent affidavits filed in support of the Society’s motion are dated May and June 2018. The evidence is that, as of spring 2018, K.F. was not consistent in arranging and keeping access visits with A.S. The affidavits also speak to A.S.’ state of mind.

[13] In her May 28, 2018 affidavit, Child Protection Worker (“CPW”), Karen Jolicoeur describes her visit with A.S. on May 24, 2018. They discussed A.S.’ views on access visits with his mother and where he would like to live. With respect to the latter, A.S. said that he would like to live with his mother, but would also like to live with his father in Calgary, and with his paternal grandparents. Ms. Jolicoeur reports that A.S. was, on that occasion as he always is, spontaneous in expressing his views about where he would like to live.

[14] Most poignantly, A.S. told Ms. Jolicoeur that, “it is hard being a kid in this sort of life” because he has “had three schools now, [given] up friends and teachers, and moved a lot, visit mom, don’t live with mom.” A.S. told Ms. Jolicoeur that to help deal with stress he journals and plays with his dog, Rubble; the latter because it helps him having an animal. In addition, A.S. told Ms. Jolicoeur that he has a bin packed to move to L.S.’ home and that from Calgary he could Facetime with his mother.

[15] In her May 17, 2018 affidavit, CPW Vinet says that “L.S. was previously assessed and approved by the Calgary Child Welfare Services.” That assessment was carried out through an interprovincial request from the Society. The assessment was carried out in August 2016. As of that date, L.S. and J.S. had been married for three years and a couple for seven years. Their son, M.S. was two years old.

[16] CPW Vinet attaches to her May 17, 2018 affidavit a copy of the Request for Assessment, the case notes of the assessor, and the Environmental Safety Assessment evaluation form. There are no child protection concerns (or concerns of any kind) identified in those documents. I note, however, that there is nothing from the office of the Calgary Child Welfare Services confirming that L.S. was “approved”, as stated by CPW Vinet in her May 17, 2018 affidavit.

[17] The Plan of Care presented by the Society calls for A.S. to be placed in the legal custody of his father. The Plan identifies that the paternal sides of the families of A.S. and his half-siblings (a) work well together and (b) will ensure that A.S. continues to have contact with his Ottawa half-siblings and other family members in Ottawa.

[18] In addition to supporting the Society’s Plan, L.S. filed a detailed plan for access. In summary, the access terms he proposes (and which both the Society and J.M. support) are:

• A.S. will spend a minimum of four consecutive weeks in Ottawa in the summer months;
• During those four weeks, A.S. will spend two weeks with his paternal grandparents (i.e. L.S.’ parents) and two weeks with J.M., M.L., and A.S.’ Ottawa half-siblings;
• When in Ottawa during the summer months (or any other time of the year), A.S. will have access visits with K.F. in accordance with the access schedule in effect for K.F. with A.S.’ Ottawa half-siblings;
• When in Calgary, A.S. may have telephone access with K.F. by Skype, during stated hours, for a minimum of 10 minutes, at a minimum of three and to a maximum of 10 times per week; and
• K.F. and A.S. will have the ability to communicate by email to an unlimited extent.

[19] The proposed access terms include that A.S. will travel between Ottawa and Calgary by air, with his parents sharing the cost of the airfare. On the return of the motion, L.S. informed the court that in the event K.F. is unable to pay her 50 per cent share of the travel costs, he is prepared to pay the full cost.

[20] The proposed access terms do not address who will accompany A.S. by air to and from Ottawa and the age at which A.S. will be permitted to travel by air alone. In the context of the Society’s motion, such particulars are not required. They are details, however, that L.S. will need to consider in the future assuming the final order requested is ultimately made.

The Issues

[21] The preliminary issue of K.F.’s request for an adjournment of the motion was determined on the return date for the Society’s motion. Oral reasons were given for the denial of that request. The preliminary issue is dealt with briefly below.

[22] The substantive issues on the motion are:

1. Is there a genuine issue that requires a trial?
2. If the answer to question 2 is “no”, has the Society demonstrated that it is in A.S.’ best interests that he be placed in the legal custody of L.S. on the terms set out in the Society’s Plan of Care and the access plan proposed by L.S.?

Preliminary Issue - Request for an Adjournment

[23] K.F. requested that the Society’s motion be adjourned to permit her to file a revised Plan of Care and affidavit evidence in response to the motion. Counsel for K.F. was not able to meet with K.F. to prepare responding materials. A number of appointments, commencing in early June 2018 were made for that purpose. Because of anxiety from which she was suffering, K.F. did not attend the appointments. Her anxiety was also the reason given as to why she was not present in Court on the return of the motion.

[24] In opposing the request for an adjournment, the Society relied on the decision of Sherr J. in Children’s Aid Society of Toronto v. E.S., 2017 ONCJ 365, 281 A.C.W.S. (3d) 325. That decision deals with a parent’s request for an extension of time within which to file a draft Answer/Plan of Care. The request was denied. Sherr J. focused on the test set out in subrule 33(3) of the Family Law Rules, O. Reg. 114/99 (“FLR”). It provides that, “[t]he court may lengthen a time shown in the timetable only if the best interests of the child require it.”

[25] In an earlier decision of his, Sherr J. addressed the test for an extension of the time within which to file an Answer/Plan of Care. In Children’s Aid Society of Toronto v. J.W., 2014 ONCJ 342, 243 A.C.W.S. (3d) 102, he concluded that the test for granting an extension is fundamentally similar to the test on a motion for summary judgment. Therefore, an extension of time should usually be granted if the party requesting the adjournment demonstrates that there is a genuine issue for trial.

[26] If there is no realistic possibility of an outcome other than as sought by the moving party, then there is no genuine issue for trial (CAS Toronto, at para. 21, quoting Children’s Aid Society of Niagara Region v. S.C. and B.M. (2008), 61 R.F.L. (6th) 328, 170 A.C.W.S. (3d) 504 (Ont. Sup. Ct.)).

[27] In seeking an order granting custody of A.S. to his father, the Society relies on two factors related to K.F.’s conduct. First, the Society relies on K.F.’s historically unstable lifestyle—a factor for which the Society acknowledges there has been some recent improvement. Second, and most important, the Society relies on K.F.’s significant and persisting mental health problems for which K.F. continues to fail to seek assistance and/or treatment.

[28] The Society argued that a timely outcome for A.S. is in his best interests; a delay is not in his best interests. In addition, the Society argued that, because of the significance of the concerns with respect to K.F.’s mental health, even if an adjournment were granted there is no realistic possibility of an outcome other than as sought by the Society.

[29] I agreed with the Society and gave oral reasons for denying the request for an adjournment. To those oral reasons, I add the following. A timely determination of the motion is required because J.M. and M.L. informed the Society that they are not in a position to continue to care for A.S. subsequent to June 30, 2018.

[30] As of that date, A.S. is going to spend a couple of weeks with his paternal grandparents. An airline ticket has been booked for each of A.S. and his paternal grandmother to travel to Calgary on July 10, 2018. The plan is for the paternal grandmother to stay in Calgary for one month to help A.S. adjust to his new environment.

[31] The return date for the Society’s motion was set on April 9, 2018, when the parties participated in a settlement conference. K.F. had two months’ notice of the return date. I find that there was nothing, other than the mother’s mental health issues, that precluded her from taking the steps necessary in a timely manner to prepare both an Answer/Plan of Care and responding materials on the motion.

[32] The Society served a number of affidavits sworn in late May and early June 2018. The timing of service of those affidavits did not preclude K.F. from marshalling her documents well in advance of the return date for the motion. There were many affidavits sworn in previous years upon which the Society relies in support of the motion and which had previously been served on the mother. The 2018 affidavit evidence primarily provides an update of K.F.’s behaviour and mental health issues.

[33] In summary, K.F.’s request for an adjournment of the motion for summary judgment was denied.

Issue No. 1 - Test on Motion for Summary Judgment

a) The Law

[34] The Society brings this motion pursuant to r. 16 of the FLR. There is no dispute that the Society is entitled to proceed with the motion at this time (r. 16(1)). All of the evidence upon which the Society relies was served on the responding parties (r. 16(4)). None of the respondents filed responding materials (r. 16(4.1)). Evidence with respect to L.S.’ plans for A.S., including access, is included in the materials filed by the Society.

[35] With the motion having been properly brought, it is important for the parties to understand that subrule 16(6) provides that “[i]f there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.” The use of the word “shall” means that it is mandatory in those circumstances for the court to make a final order.

[36] Rule 16 of the FLR is similar in wording to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Both rules include powers that may be exercised by the court in determining whether there is a genuine issue for trial. Subrule 16(6.1) of the FLR defines those powers:

In determining whether there is a 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 exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[37] In its decision in Hryniak v. Mauldin, the Supreme Court of Canada established principles to be followed in the application of the powers granted to the court pursuant to Rule 20 of the Rules of Civil Procedure (2014 SCC 7, [2014] 1 S.C.R. 87). Those principles are relevant by analogy to the application of r. 16 of the FLR and include:

• The first step on a motion for summary judgment is for the court to determine whether summary judgment should be granted without resort to the enhanced fact-finding powers (i.e. subrule 16(6.1));
• The enhanced fact-finding powers are presumptively available to a judge hearing a motion for summary judgment. The judge is entitled to exercise those powers unless it is in the interest of justice that they be utilized only at trial; and
• The inquiry into the interest of justice (a) considers the consequences of the motion in the context of the litigation as a whole, (b) is a comparative process. (See Children’s Aid Society of Ottawa v. K.(S.), 2015 ONSC 4623 at para. 84, 268 A.C.W.S. (3d) 577.)

[38] The Society has the burden of demonstrating that there is no genuine issue that requires a trial (CAS Ottawa v. K.(S.), at para. 85). Has it met that burden?

b) Analysis

[39] The Society relies on voluminous materials including (a) 12 affidavits from four CPWs involved with the families from 2015 through 2018, (b) the reports of two Family Court Clinic Assessments (from 2016 and 2017), and (c) the contents of the file from the Calgary Child Welfare Services for its assessment of L.S.’ family in August 2016. The motion is supported by L.S., J.M., and M.L.

[40] In the context of the motion for summary judgment, no request was made for cross-examination of the affiants. I am not aware of any request for cross-examination of the affiants having been made during any other aspect of the litigation (i.e. in 2015, 2016, or 2017 when the parties were before the court on interim matters). In the absence of responding materials and cross-examination of the affiants, credibility is not a critical issue.

[41] The history of the Society’s involvement with the families, the mother in particular, is well-documented. The evidence is undisputed with respect to K.F.’s historical and continuing mental health issues, L.S.’ ability and desire to provide a stable home for A.S., and the ability of L.S., J.M., and their respective families to work together to maintain A.S.’ relationships with his mother, Ottawa half-siblings, and extended family in Ottawa. That evidence provides the foundation for the findings made and the disposition of this motion.

[42] The paramount purpose of the CYFSA is “to promote the best interests, well-being and protection of children” (s. 1(1)). Proceeding with a motion for summary judgment in this matter is in keeping with that purpose. The motion provides a proportional and timely method by which to dispose of the Society’s application.

[43] Subject to my comments below (under Issue No. 2) with respect to the requirement for an updated assessment by the Calgary Child Welfare Services, this case is well-suited to be determined by way of a motion for summary judgment.

[44] In summary, I find that (a) the Society has met its burden of demonstrating that there is no genuine issue for trial, and (b) a determination on this motion will provide a fair and just adjudication of the issues on the application.

Issue No. 2 - A.S.’ Best Interests

a) The Law

[45] Pursuant to the March 2017 order of Kershman J., A.S., together with his Ottawa half-siblings, was found to be in need of protection based on s. 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”). The protection concern addressed in that sub-section of the CFSA is “that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child”. I note that s. 74(2)(b)(i) is the equivalent section in the CYFSA.

[46] The Society’s request for an order placing A.S. in the custody of his father is made pursuant to s. 102(1) of the CYFSA. That section provides that where a finding is made that a child is in need of protection, and it would be in the best interests of the child to do so, an order may be made “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.”

[47] Is it in A.S.’ best interests that he be placed in the legal custody of his father, L.S.?

b) Analysis

i) Removal from K.F.’s Care

[48] Section 97(1)(d)(ii) of the CYFSA requires that:

[W]here the order has the effect of removing or keeping the child from the care of the person who had charge of the child immediately before intervention under this Part, a statement of the reasons [be provided as to] why the child cannot be adequately protected while in the person’s care.

[49] K.F. had charge of A.S.’ care in 2015 immediately before the most recent intervention by the Society. I therefore start with why A.S. is being removed from his mother’s care.

[50] Concerns about K.F.’s ability to care for A.S. date back to late 2010 in New Brunswick. Initially the concerns stemmed from issues of domestic violence, with an allegation that J.M. had struck A.S. when the latter was only six months old and of domestic violence between J.M. and K.F. The provincial Department of Social Development was involved with K.F., J.M., A.S., and the older of A.S.’ half-siblings throughout much of 2011. In the latter half of 2011, K.F. moved to Ottawa with her three children and her sister.

[51] The Society first became involved with K.F. in 2012. The intervention occurred because K.F. left her three children in the care of their maternal grandmother with no stated date for K.F.’s return to Ottawa to care for the children. The first intervention continued for approximately two years. It concluded with the children being placed in their mother’s legal custody pursuant to s. 57.1 of the CFSA. Two referrals were made in 2014; neither led to any further intervention. The file for the first intervention was closed in December 2014.

[52] The Society’s second and third interventions occurred in September 2015. The third intervention occurred because of concerns that K.F. was struggling in providing care for her four children (B.M., the youngest, was born in late 2014).

[53] Events from September 2015 to the return date of the Society’s motion include the following:

• Sept. 20/15 The four children are apprehended from the care of their maternal grandmother.
• Sept. 22/15 The children are returned to K.F.’s care, subject to a supervision order.
• Sept. 25/15 Sheard J. grants a temporary order placing the children with K.F. The terms of the order include providing a safe home free of violence and conflict, ensuring the children always have an appropriate caregiver, and not permitting K.F.’s then boyfriend to have contact with the children or be in her home.
• Oct. 8/15 The children are apprehended again. K.F. had breached the terms of the supervision order by permitting her boyfriend to have contact with the children.
• Oct. 13/15 With K.F.’s consent, the children are placed in the temporary care and custody of the Society, with access to K.F. at the discretion of the Society.
• Mar. 3/16 On the consent of the parties, a Family Court Clinic Assessment is ordered of the mother, her boyfriend, and the children.
• Jul. 29/16 The Family Court Clinic releases its report. The author of the report notes that K.F. failed to co-operate fully in the assessment process. The substantive contents of the report are discussed below.
• Dec. 6/16 An order is made placing the four children in the temporary care and custody of J.M. and M.L. The order is to take effect on January 4, 2017 and is intended to provide a period of re-integration.
• Jan. 2017 A.S. began to have regular contact with L.S. through telephone and Facetime. A.S. had not seen his father for a number of years. The contact includes J.S. and A.S.’ half-brother, M.S. A.S. also begins to have in-person contact every weekend with his paternal grandparents in the Ottawa area.
• Mar. 27/17 With K.F.’s consent, an order is made finding the four children in need of protection (see paragraph 45 above). At K.F.’s request, an order is made for her to participate in a second Family Court Clinic Assessment.
• Jun. 2017 On a motion, opposed by K.F., an order is made permitting A.S. to travel to Calgary with his paternal grandfather and spend one week with L.S. and his family.
• Sept. 26/17 The Family Court Clinic releases its report of the second assessment. The author of the report notes that K.F., once again, failed to fully co-operate in the assessment process. The substantive contents of the report are discussed below.
• Apr. 9/18 With K.F.’s consent, an order is made placing A.M., W.M., and B.M. in the legal custody of J.M. and M.L., with access to K.F.

[54] The affidavit evidence is replete with references to K.F.’s continuing mental health issues and her inability and/or refusal to seek measures to treat them; this despite a long-standing acknowledgement by K.F. that she faces mental health challenges. These challenges are summarized in the Conclusions and Recommendations of the September 2017 report of the Family Court Clinic. The author of that report, Dr. Wood, concludes that K.F. struggles with ongoing depressive and anxiety features suggestive of an underlying Persistent Depressive Disorder that is exacerbated by acute stressors.

[55] In addition, Dr. Wood concludes that K.F. presents with a number of features consistent with a diagnosis of a cluster B personality disorder. Dr. Wood identifies a Borderline Personality Disorder, the symptoms of which include “unhealthy coping strategies, difficulty controlling anger, affective instability, a history of unstable relationships, and recurrent suicidal or self-harm behaviour” (Sept. 26, 2017 FCCA report, page 34).

[56] Dr. Wood relates his conclusions to K.F.’s ability, or inability, to parent her children:

It is our opinion that [K.F.’s] personality disorder and the ongoing depressive features directly impact her parenting, such as her ability to make choices or decisions based on the children’s best interests, as well as her ability to have harmonious relationships with others, including CAS and any other involved family members. In keeping with this, we would have serious concerns about her ability to provide the type of home environment the children will need over the longer term, which includes structure, nurturing, and a safe household where they are not subjected to any abusive behaviours or any further chaos.

[57] The affidavits filed in support of the motion include evidence of K.F.’s conduct with respect to access visits, towards the children specifically, and in relation to her mental health. As of early May 2018, K.F. had done little, if anything, to follow up with respect to the mental health supports available to her. In addition, as of the spring of 2018, K.F. remained inconsistent in arranging access visits and attending some of the visits she did arrange.

[58] The Society submits that K.F. has not demonstrated that she has made substantial or sustained changes in her life since the four children were removed from her care in 2015 and subsequently found to be in need of protection. The Society also submits that there is no evidence that K.F. has (a) better prospects at this time than she did when the children were removed from her care, or (b) developed the parenting skills she requires to care for A.S.

[59] The fact that three of K.F.’s children have already been placed in the legal custody of J.M. and M.L. does not serve to reduce the challenges that K.F. continues to face as a parent. I find that those challenges impact her ability to parent even a single child. I agree with the Society and find that K.F. is unable to adequately protect A.S. when he is in her care.

[60] It is understandable that, after consenting to the placement of three of her children in the legal custody of others, K.F. would oppose a request for a similar order with respect to her oldest child. Her decision to oppose the Society’s motion is the decision of a mother who loves her children, A.S. in particular. For K.F. to regain a more prominent role in the lives of her children, she needs to come to terms with the demands of the treatment she requires. For K.F.’s benefit and the benefit of her children, I hope that she obtains the treatment she needs and sees positive results from the treatment.

ii) The Society’s Plan of Care

[61] The re-integration plan for A.S. with L.S. and the latter’s extended family began in the spring of 2017. That plan included time spent by A.S. with his father in Calgary during the summer of 2017 and with his paternal grandparents in the Ottawa area on a regular basis. In addition, A.S. has been having regular telephone and Facetime communication with his father and step-family in Calgary.

[62] A.S.’ visit with his father and his step-family in Calgary in the summer of 2017 is described as a positive experience for all concerned.

[63] L.S. participated in the motion for summary judgment by telephone from Calgary and was self-represented. It is difficult to garner an impression of an individual over the telephone. That said, I found L.S. to be well-spoken, thoughtful, efficient in expressing his views, responsive to submissions made by counsel, practical and, as best I can tell, genuine in his desire to have A.S. become a member of his Calgary family. L.S. struck me as someone who is capable of handling himself well in a stressful situation.

[64] Section 74(3) of the CYFSA sets out factors to be considered in determining the best interests of a child. I am mindful that those factors include “the effects on the child of delay in the disposition of the case” (s. 74(3)(c)(ix)). The timelines in this case are of concern. By bringing this motion, the Society is attempting to ensure that A.S. gains stability in his life with (a) the impending completion of the academic year, (b) the proposed move to Calgary in early July, and (c) time to adjust over the summer months before beginning a new academic year, at a new school, in a new city, while living with a new family.

[65] I am, however, concerned about two matters related to the August 2016 assessment conducted by the Calgary Child Welfare Service. These concerns do not in any way detract from the positive impression made by L.S. on the return of the motion; nor do they detract from the positive impression made by L.S., J.M., and their respective extended families by their stated intention to maintain A.S.’ relationships with his mother, Ottawa half-siblings, and extended family in Ottawa.

[66] First, there is no documentary evidence that the Calgary Child Welfare Service “approved” L.S. as stated by CPW Vinet at para. 114 of her May 17, 2018 affidavit. Attached as exhibit “B” to that affidavit is a copy of the assessment file (referral note, handwritten notes of interview, and environmental safety assessment form). CPW Vinet does not provide any evidence as to when the approval was granted, by whom, or in what manner.

[67] Does the Society have any documentary evidence that L.S. was “approved” by the Calgary Child Welfare Service? If so, then that document should be before the court. If not, then CPW Vinet, or someone on behalf of the Society who is in a position to do so, should provide the court with evidence as to how the Society was informed of the approval of L.S. by their Calgary counterpart and the specific nature of the approval.

[68] Having expressed that concern, I want to emphasize that there is nothing in the file documents that even hints of a concern about L.S.’ ability to provide an appropriate home and to care for A.S.

[69] Second, almost two years have passed since the Calgary Child Welfare Services carried out their assessment of L.S., his home, and the family unit. Since that assessment was carried out, L.S. and J.S. have had a second child (T.S.). There is no evidence as to other changes, if any, in L.S.’ circumstances since August 2016.

[70] It would be helpful to know in what ways, if any, L.S.’ circumstances have changed. Do L.S. and J.S. still live with their family in the same three-bedroom home described in the assessment? Do L.S. and J.S. continue to have the same employment as in August 2016? Can it be confirmed, as it was in 2016, that neither L.S. nor J.S. has a criminal record?

[71] I have identified only a few of the elements of the assessment conducted in 2016. It does not appear that it would be difficult or time-consuming for the Society to request that the Calgary Child Welfare Service carry out an update of the 2016 assessment. The information to be updated would be in keeping with the areas covered in the 2016 assessment and include an updated Environmental Safety Assessment for Caregivers.

[72] The initial assessment was requested by the Society on July 12, 2016 and carried out in Calgary on August 2, 2016 (approximately three weeks subsequent to the date of the request). It appears that if an updated assessment is requested prior to the end of June, the results of same can be provided to the Society within a matter of weeks.

[73] I am mindful of the comment by Dr. Wood in his 2017 report, “[A.S.] would … benefit from remaining in a stable and loving environment where [he] can develop a sense of security and have the best changes to succeed later on in life”. It is not my desire to delay finality for the parties or to delay implementation of the Society’s Plan of Care, which is intended to provide A.S. with stability in his life. I hope that an updated assessment will add to the existing support for (a) a finding to be made that A.S.’ proposed move to Calgary in 2018 and placement in his father’s custody is in A.S.’ best interests, and (b) a final order to be made to that effect.

[74] In the interim, I find that it is in A.S.’ best interests to be placed in the temporary care and custody of his father in Calgary subject to the terms set out in the concluding section of this ruling.

iii) A.S.’ Views

[75] Pursuant to s. 74(3) of the CYFSA, in determining the best interests of a child, the court “shall … consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.” There are two sources for information as to A.S.’ wishes. The first is the September 2017 report for the second Family Court Clinic Assessment. The second is the affidavit evidence of the CPWs involved with A.S. and his family.

[76] To prepare the second Family Court Clinic Assessment report, the author of the report spoke with A.S. directly. A.S. was asked about his time with father and with his paternal grandparents:

When the writer asked about Calgary, [A.S.] said he went there for two weeks with his grandfather and his uncle [T] to visit his “other dad” and his family, including his younger half-brother, [M.S.]. He said it was a good trip, and that they did a lot of exploring and walking. He described his dad as “nice” but did not elaborate any further. [A.S.] also stated that he liked visiting his grandparents because they often gave him candy and they got to do a lot of fun things, like going to airplane museum [the previous day] …

When asked about his three wishes [A.S.] clarified that he would mainly like to visit his [paternal] grandparents … because he loves them and enjoys being at their house on weekends … he fully trusted them, and felt that they were good to him.

[77] As noted above in paragraph 13, A.S. recently spoke with CPW Jolicoeur about where he would like to live. I find that the views expressed by A.S. are in keeping with a child of eight (almost nine) years who has moved about frequently and experienced a significant amount of instability in his early life. A.S. is mindful of his family ties, does not want to disappoint his mother, but appreciates the quality of the time that he spends with his father and his paternal grandparents.

[78] I find that A.S. holds a multiplicity of views as to where he wants to live. It is helpful, in determining this motion, to know that A.S. has formed a significant attachment to his paternal grandparents, enjoys his time with his father in Calgary, and is interested to live with his father.

[79] A.S.’ views provide support for a finding that it is in his best interests to be placed in the legal custody of his father in Calgary. For the reasons set out above, however, pending the receipt and consideration of an updated assessment from the Calgary Child Welfare Service, I am not in a position to make that finding.

Summary

[80] Having concluded that there is no genuine issue for trial, the court is mandated by the FLR to make a final order in this matter (r. 16(6)). Such an order can only be made, however, based on the requisite evidence. An updated assessment of L.S. and his immediate family is required for me to consider making a final order on the motion for summary judgment.

[81] I therefore order as follows:

1. A.S. shall be placed in the temporary care and custody of his father, L.S. pending disposition of the motion for summary judgment.
2. A.S. shall, until June 30, 2018, continue to reside with J.M. and M.L. unless, prior to June 30, 2018, L.S., J.M., and M.L. agree upon alternate arrangements for A.S. to be put into effect following completion of the current academic year. (For example, and not to be included as part of the order, A.S. could spend time at his paternal grandparents’ home and/or cottage after the school-year ends and before leaving for Calgary as planned on July 10, 2018.)
3. Pending the continuation of the hearing of the motion for summary judgment, A.S. shall have access with K.F. in accordance with the plan of access included at exhibit “B” of the affidavit of CPW Vinet, sworn on May 17, 2018 (Tab 14B of the motion record).
4. The Society shall: a) Request that the Calgary Child Welfare Service (“CCWS”) complete an updated assessment; b) Request that the updated assessment include a letter from the CCWS addressed to the Society summarizing the results of the assessment; c) Obtain from the CCWS a copy of their complete file with respect to the assessment; d) Serve on the respondents an affidavit from a CPW employed by the Society to which are attached copies of the letter and the complete file from the CCWS; e) File the affidavit with the court; and f) Make arrangements for the hearing of the motion for summary judgment to be continued before me, for one hour, on an urgent basis as soon as possible following delivery of the CPW’s affidavit.
5. In the event a final order on the motion for summary judgment is not made on or before July 20, 2018, the Society shall bring this matter before me on an urgent basis for a further interim order to be made with respect to access for A.S. with K.F., his Ottawa half-siblings, and his extended family in Ottawa.

Madam Justice Sylvia Corthorn

Released: June 22, 2018