WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act , 2017, which deals with the consequences of failure to comply, read as follows:

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

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

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

Court File and Parties

COURT FILE NO.: 381/11 DATE: 2018-07-17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of Niagara Region Applicant – and – B.P. Respondent B.W. Respondent

Counsel: Sukhpaul Tut, for the Applicant Self-Represented Respondent, B.P. Wayne Brooks, for the Respondent, B.W.

HEARD: July 13, 2018

JUDGMENT

THE HONOURABLE MR. JUSTICE A. PAZARATZ

(Note: To make it easier for the reader while at the same time maintaining anonymity, rather than initializing names I have changed the names of the children, the parents and any of their family members)

[1] This is a summary judgment motion brought within an Amended Status Review Application by the Children’s Aid Society of Niagara Region (“the Society”) seeking that the children Martin (age 7), Sandra (age 5), and Christopher (almost 4) be placed in Extended Society Care, without access, for the purpose of adoption.

[2] The relevant adults:

a. The mother of all three children is Brenda. b. The father of all three children is Bruce. c. Brenda and Bruce are no longer in a relationship. They are living separate and apart. In fact Bruce has been in jail since last year and he’s likely to remain in jail for at least another year. d. Brenda was the children’s primary caregiver until March 2017. e. The mother’s father is Donald. f. The mother has an adult sister Bernadette. Bernadette has an almost two-year old daughter Natalie.

[3] The issues herein can be summarized as follows:

a. Martin, Sandra and Christopher have been in Society care for periods totalling more than 640 days, most recently since March 20, 2017. They are all in the same foster home. b. The Society says time is up, neither parent has demonstrated any ability to safely care for the children (even under supervision), and they require (and deserve) the permanence of Extended Society Care, with no access, leading to adoption. c. The father would like the children returned to his care. Even before he was incarcerated last year he wasn’t exercising regular access. He knows he’s going to be in jail at least until August 2019, serving time for his most recent convictions. As well, if he is convicted on any of his outstanding criminal charges, he’ll likely remain in jail until at least 2020. He realizes he’s not really able to advance a plan for the children right now. His “first choice” would be for the children to be placed with the mother. In the alternative, he proposes that the children remain in foster care until he gets out of jail and is able to organize his life. At that unknown point he would want the children placed with him. d. The mother isn’t really advancing much of a plan either. She wants the children placed with her father Donald, at least until she’s able to straighten out her own life. She says she would be part of that plan and eventually she would want the children in her care. e. The mother and Donald both complain that the Society has unfairly refused to assess Donald’s kinship proposal. f. The Society says that for the most part Donald has failed to pursue a kinship proposal. And when he did express interest the Society clearly explained to him why it cannot consider placing the children with him, for safety and other reasons.

[4] In addition to receiving submissions from all parties, I considered the following materials:

a. Nine lengthy affidavits from Society workers dated between March 22, 2017 and July 5, 2018. b. The mother’s two-page (plus exhibits) affidavit dated May 25, 2018. c. The maternal grandfather Donald’s three-page affidavit dated May 11, 2018. d. The father’s three page affidavit dated June 28, 2018. e. The Amended Application, Answers, and Plans of Care.

[5] At the day-long hearing of the motion on July 13, 2018 a preliminary issue arose in relation to the mother.

a. The hearing of the motion commenced at 10:00 a.m. as scheduled. The father was brought to court from jail. The mother was not in attendance. b. At approximately 10:30 a.m. the mother and maternal grandfather arrived while the Society’s submissions were underway. Since she did not currently have counsel of record, I stood the matter down and allowed her to see duty counsel. c. When we reconvened, duty counsel assisted the mother in conveying a request that the summary judgment motion be adjourned to allow the mother to retain counsel. d. The Society objected to the adjournment request, noting that this summary judgment motion had originally been scheduled to be heard on June 1, 2018. On that date, the mother fired the lawyer who had been representing her for more than a year. Justice Scott acceded to the mother’s request for a brief adjournment to follow up on her stated intention to retain a lawyer she referred to by name. e. However, on June 1, 2018 Justice Scott made it clear that only a brief adjournment would be allowed, and the motion was to be argued during the week of June 18, 2018. As it turns out the matter was not reached during that week. But on July 19, 2018 Justice Scott adjourned the hearing of the motion to July 13, 2018 “peremptory” on all parties. f. Despite being given effectively two extensions, the mother did not retain replacement counsel. In fact she acknowledged that since June 1, 2018 when she fired her former lawyer, she hadn’t yet applied for Legal Aid or selected another lawyer. She requested an adjournment so she could embark on that process. g. The father’s counsel supported the mother’s request for an adjournment. h. But given the very important subject matter; the mother’s responsibility for electing to fire her lawyer on the day the summary judgment motion was initially to be heard; the mother’s lack of any meaningful effort to retain replacement counsel since June 1, 2018; and the overriding priority that must be given to resolving the situation of children languishing in Society care; for all of those reasons I agreed with the Society that any further delay would be inappropriate. i. In declining the request for an adjournment, I noted that the motion record included the mother’s affidavit prepared by her former counsel, setting out her position.

[6] During submissions, the mother referred to other evidence or assertions which she wished she had included in her affidavit. She expressed a general hope that if she retained another lawyer she would likely be able to formulate a more persuasive case to present at trial.

[7] It is not uncommon for parties – especially on child protection summary judgment motions – to suddenly remember things they wished they had said in their affidavits. But as set out below, the essence of the summary judgment process is to allow – indeed, to require – that parties convey all relevant evidence in their affidavits. Endless afterthoughts and embellishments during submissions would render the summary judgment process meaningless.

SOCIETY’S EVIDENCE

[8] I will summarize the Society’s very detailed evidence as follows.

[9] The Society has been involved with this family on seven occasions from August 2010 to the present.

[10] During the Society’s involvement the protection concerns have included:

a. The mother’s history of domestic violence, substance abuse, transience, mental health, home conditions, and inability to follow through with support services for herself and the children. b. The father’s substance abuse, lack of supervision, hazardous home conditions, and his criminal lifestyle. c. On two occasions the children had to be placed with family members while the mother’s home was cleaned.

[11] On October 12, 2016 the children were found in need of protection under the Child & Family Services Act (“CFSA”). A final order was made placing the children in care of the mother under a six month supervision order, subject to terms and conditions. On two previous occasions (including since February 2016) the children had been placed in the care of the maternal grandfather Donald, under Society supervision.

[12] On March 6, 2017 the Society received a report that Brenda and her sister Bernadette – who were living together, along with their respective children, in the maternal grandfather Donald’s home – were engaging in conflict, including a physical altercation. It was reported that Donald had broken up the physical altercation. During the incident the children were reported to have been home and exposed to the violence.

[13] The Society attended the home on that day to complete a safety assessment.

a. Brenda confirmed that a physical altercation had occurred with Bernadette. b. Brenda blamed the escalation on her sister, as a result of “getting in her face.” c. At the time Brenda was still subject to a supervision order. The Society reminded the mother about previous discussions about conflict, and also about the mother’s lack of follow through with the children’s needs, such as daycare.

[14] On March 20, 2017 the Society received a report that Brenda and Bernadette were selling drugs from their home; that drug addicts were present in the home; and there were concerns about hazardous and inappropriate conditions in the home, including the presence of needles and inadequate sleeping arrangements for an infant. That same day the Society attended the home for an unscheduled safety assessment.

a. Brenda was observed to be in an intoxicated state. b. She was belligerent, slurring speech and presented as unsteady on her feet. c. The youngest child Christopher presented with unexplained marks and scratches. d. The children were dressed adequately. e. The home was dirty and in disarray. f. Several hazards were noted throughout the home including marijuana paraphernalia and open alcoholic beverages.

[15] Given the concerns on March 6, 2017 about the children’s exposure to adult conflict, and the inability of any of the adults (including Donald) in the home on March 20, 2017 to care for the children and mitigate serious risks, the Society removed Martin, Sandra and Christopher from the home.

[16] On March 21, 2017 Donald advised the Society he would like to present a kinship plan for the children.

a. The Society advised Donald they would proceed with assessment of his plan. b. But they also explained they viewed Donald as culpable in the current situation, as he owned the family home and he admitted he had observed suspicious individuals frequenting the home. c. The Society had observed signs of marijuana use in Donald’s bedroom and an open beer can. Donald said he never smoked marijuana around the children. But the Society doubted this explanation, given the odour of marijuana in various areas of the family home which the children could access. d. Donald advised the Society that he hadn’t been living at the home on a full time basis, but he had decided to return to the home and change the locks. e. Donald advised the Society it was evident that Brenda was struggling with substance abuse issues much more than she was acknowledging to the Society. f. He said he would no longer allow Brenda to reside in his home. g. He also undertook to ensure that no inappropriate persons attended at the home. h. The Society agreed that Donald could start having access to the children in his home, once he cleaned it up and changed the locks.

[17] During a discussion a few days later Donald advised the Society:

a. He had been dealing with the “Terrible Two’s” for 22 years with Brenda. b. He said that in the past when the children were apprehended from his care, he felt it was without justification. c. But this time he agreed with the Society’s decision to intervene and remove the children from Brenda’s care. d. He said he felt a level of guilt because when the children were returned to Brenda’s care in October 2016, he had relinquished all responsibility.

[18] On March 24, 2017 a temporary order was made removing the children from the mother’s care and placing them in the temporary care and custody of the Society, with access to the parents as arranged and supervised by the Society. This order continues to be in force at the present time.

a. The mother has had weekly two hour access to the children since then, supervised at the Society. b. Donald had weekly access at his home until January 2018 when problems emerged. After that his access was also supervised at the Society. c. The father hasn’t been having access.

[19] On March 24, 2017 the Society was advised by the office of Brenda’s family doctor that the children had only been seen once, and not for vaccinations. There was no history of immunizations for Sandra and Christopher.

a. The mother subsequently confirmed to the Society that she hadn’t submitted the paperwork regarding the immunizations, because she had been evicted from her home and the paperwork had been destroyed when her belongings were left in the rain. b. The mother was again urged by the Society to be more attentive to issues like arranging daycare and immunizations. c. The Society arranged the immunizations.

[20] On April 21, 2017 Donald had another discussion with Society workers.

a. He said his access to the children was going well. b. When asked if he was presenting a kinship plan for the Society to assess, he responded “he cannot”. c. He said he would lose his job. He was still trying to catch up on laundry that had been left for him. d. He said he hadn’t had contact with Brenda.

[21] The Society materials set out that on each occasion when the children were apprehended (whether from Brenda’s care or Donald’s care) the Society had difficulty locating the father Bruce. Invariably, they would later discover that he was incarcerated.

[22] Following the March 20, 2017 apprehension the Society was finally able to establish contact with the father on May 1, 2017:

a. He was advised the Society had difficulty reaching him because none of his contact numbers were in service. b. He advised that prior to the March 2017 apprehension he had stopped attending the Society for access because Brenda had been allowing him to see the children without the Society’s knowledge. c. Bruce confirmed he knew Brenda had been selling cocaine and marijuana from the home. d. He said he didn’t want his children released to Brenda “because that’s fucked up now”. e. He noted that Brenda doesn’t seem to care and is acting as if she presumes she will not be getting the children back. f. He said he didn’t want his children to be made Crown wards.

[23] The father last had contact with the Society on September 7, 2017 when he was served with court documents while incarcerated. He has not had any access to the children for about a year.

[24] During a June 2, 2017 home visit with Donald, the maternal grandfather was again asked if he was presenting a kinship plan.

a. He said he is not in a position to care for the children, despite wanting to. b. He advised that if the children were placed with him, he would not be happy, and that wouldn’t be fair for the children.

[25] On August 30, 2017 the Society amended its application to seek (what is now referred to under the current legislation) Extended Society Care with no access, for the purpose of adoption. Both parents were represented by counsel and filed Answers opposing the relief sought.

[26] Although Brenda has mostly been homeless since the March 2017 apprehension, by early January 2018 Donald had apparently allowed Brenda back into his residence because she had nowhere else to go.

[27] On January 15, 2018 the Society received a report about drug use and trafficking in the home. There was a report that Bernadette’s daughter Natalie was unattended, and that Bernadette’s boyfriend (a known drug dealer) was also living in the home and trafficking heroine, crack, crystal meth and marijuana. Bernadette was also reported to be using drugs.

a. A worker attended the home that same day on an unannounced basis. b. Donald was supposed to be watching Natalie. c. The worker knocked on the door several times, called Donald, sent him a text message and waited 25 minutes. But she couldn’t get a response from Donald. d. During the time she was waiting outside, the worker observed and heard Natalie through the living room window and no one attended to her. At times the child was screaming but no one in the house came to her. e. Donald later explained that he had his headphones on and couldn’t hear anyone knocking. But he insisted he could hear Natalie and the child was not screaming. f. Based on all its observations that day, the Society removed Bernadette’s child Natalie from the home and brought her to a place of safety.

[28] The next day Donald advised the Society he asked both of his daughters to leave the home. They left, and Brenda again became homeless. But Donald also told the Society his daughters were welcome to come back.

[29] On January 16, 2018 Donald was again asked by the Society if he was presenting a plan to care for Brenda’s three children.

a. He said that was “up in the air right now.” b. When asked for clarification, he said it depends on Brenda and if she is willing to make changes. c. He said he was unsure if he wanted to take responsibility for three young children given his age. d. He said he didn’t really want to disrupt the children, and noted that they are doing really well. e. He said he didn’t want the children in care. But he noticed positive changes in their behaviour since being in care. He didn’t want to disrupt that.

[30] The Society attended Donald’s residence on January 23, 2018 for a safety assessment.

a. The home environment was deemed not safe for the children. b. There continued to be concerns about individuals who frequented the home, and the state of the home environment itself. c. The beds for the children had been thrown out by Donald. d. Brenda’s sister Bernadette subsequently advised the Society that Brenda was sleeping on her child Natalie’s crib mattress somewhere in Donald’s house. Bernadette described the home as a “trap house”.

[31] On January 29, 2018 Donald attended at the Society office for a meeting.

a. He was advised that the Society would no longer allow him to have access to Brenda’s children in his home, because of the verified protection concerns which caused them to remove Bernadette’s young daughter Natalie from the home. b. He was reminded that the January 2018 protection concerns in his home were similar to the March 2017 protection concerns which caused Brenda’s children to be apprehended. There was verified substance abuse; allegations of drug trafficking; and a lack of supervision of children. c. Donald insisted he had no idea what activities his daughters were engaging in while living in his home. He said he respected their privacy, and he was never aware of anything which might have jeopardized any of the children. d. He said he still wanted access to Brenda’s children. The following month his access resumed, but supervised at the Society office. e. Donald also advised that Society that he was putting forward a plan for the children. However, Donald was advised that as a result of the safety concerns in his home which resulted in the apprehension of Brenda’s children in March 2017; and the similar safety concerns in his home which resulted in the apprehension of Bernadette’s daughter in January 2018 – that the Society could not approve him as a kinship provider.

[32] The Society materials deal extensively with the mother’s ongoing (and unresolved) issue with homelessness.

a. There are numerous references to discussions Society workers had with the mother since at least May 2017, offering to assist her in finding housing (as well as referrals to other community services). Brenda appears not to have followed up on those offers. b. Brenda insisted to the Society that she didn’t need their help, and she could find her own housing. But apart from her aforementioned brief return to her father’s residence, she has been homeless. She spoke of the humiliation of having to knock on friends’ doors, to ask to be allowed to take a shower. c. In the more than a year since her children were apprehended the mother hasn’t been able to arrange housing for herself or the children she wants in her care. d. Even as of the date the summary judgment motion was argued, Brenda still didn’t appear to have a permanent residence. She asked that a copy of the court judgment be mailed care of her father’s address.

[33] The Society’s materials set out serious ongoing concerns about the supervised access the mother has been having since the children were apprehended.

a. The mother is chronically late arriving for visits. She is consistently 10 to 15 minute late for her two hour weekly visits. Sometimes she is between 25 and 45 minutes late. The Society has repeatedly explained the importance of punctuality from the children’s perspective, but the mother has been unable to resolve this issue, causing inconvenience for the Society and upset for the children. b. During visits the mother frequently has difficulty staying alert or even awake. There have been repeated instances of her closing her eyes, “zoning out”, or even falling asleep. At times either a worker or one of the children have had to wake her up. The mother has at times attributed her fatigue to her homelessness (“living in a Tim Horton’s”). But the Society has also expressed concern that the mother’s unfocussed and inappropriate presentation appears to be consistent with ongoing substance abuse. The Society requested that Brenda take a urine test to address the substance abuse issue, but the mother declined. c. During visits the mother at times makes inappropriate, harsh, and upsetting statements to the children and calls them names, causing upset and confusion. The mother draws the children into adult issues, and reacts in a punishing manner if she perceives they are not showing loyalty to her. Her attitude and interaction with the children is inconsistent and confusing for them. d. During visits the mother becomes easily frustrated and exhausted by the children. She has difficulty managing their behaviours, and is resistant to suggestions or recommended programs. e. During visits (and on other occasions) the mother has been confrontational, aggressive, abusive and intimidating with Society staff. She has been physically aggressive to such an extent that the Society had to call a “Code White” (emergency situation) at its office. She has made threatening statements, used vile profanity, and made offensive allegations. She has exposed other families at the supervised access center to frightening commotion.

[34] The Society has had long-standing concerns about the mother’s mental health.

a. During earlier proceedings, the mother had taken anger management and individual counselling. b. But since March 2017 when her children were again removed from her care, the mother has provided no proof that she has followed up on recommendations and engaged in any counselling for her mental health or anger problems. c. The mother’s mood and affect has been inconsistent during her dealings with the Society. d. At times she has stated she felt anxious, stressed, defeated or “extremely depressed.” e. However, when she mentioned to the Society that she was returning to counselling, the Society asked if she would be willing to sign a release for the counselling agency to confirm her involvement and progress to the Society. The mother refused to provide a release, and she had not provided any written verification of participation in any counselling since the most recent apprehension.

[35] The Society’s materials set out ongoing and unresolved concerns about the mother’s lack of insight and commitment.

a. She minimizes the significance of her use of alcohol and its impact on parenting. She feels concerns about her having “a few drinks” are overblown. b. She minimizes the deplorable state of her home when the Society apprehended the children. c. She minimizes the risks associated with open drug activity within the home, or the children’s exposure to questionable adults in her home. d. She is unable to comprehend (or act upon) the fundamental requirement that she arrange stable housing for herself and her children. She has been resistant to offers of help, but completely unsuccessful addressing this issue on her own. e. She appears unable to organize her life to prioritize the children and meet their needs. f. She does not appear to understand the negative impact on the children when she is constantly late for her relatively brief supervised visits. g. She also fails to understand the negative impact on the children when she is inattentive during visits, closes her eyes, and sometimes falls asleep on them. h. She has failed to take effective steps to regulate her emotions and anger management issues. She is inappropriate with both Society staff and (more importantly) with her own children.

[36] On March 1, 2018 – about a year after the most recent apprehension – the mother mentioned to the Society that she would have two other names of people willing to present kinship plans. But at a March 13, 2018 meeting the mother advised that those people had “fallen through” and she had no other names.

a. Donald was present during that meeting and again asked why the Society was not considering him. b. The Society worker advised that he was fully aware why his plan was not considered, and reminded him of his history. She did not go into detail as the foster parents were present.

[37] The uncontroverted evidence of the Society is that the three children have blossomed since going into care. They are thriving within the structure and routine of their foster home.

MOTHER’S EVIDENCE

[38] The mother filed a single two-page affidavit dated May 25, 2018 in response to the Society’s voluminous materials. A summary of her evidence:

a. She and the father are no longer in a relationship and live separate and apart. b. She says the Society’s attendance at her home on March 20, 2017 arose of a result of a false and malicious complaint by a former neighbour. The mother denied the allegations of drug use and trafficking. c. She admits that when the Society attended at her residence on March 20, 2017 she was intoxicated. She said she had a few drinks with a friend she hadn’t seen in a long time. She said a friend had been watching the children, but the friend left the home when the Society showed up, because he didn’t want to be involved. (The Society saw no sign of any such person watching the children.) d. She did not deny that “the house was in poor shape that day.” But she said this was not typical. She noted that the Society had attended her home regularly on previous occasions and there were never concerns about the state of the house. e. She admitted she was upset when she learned the children were being apprehended. But she said historically she has been cooperative with the Society. That’s why the Society had returned the children to her care in October 2016. f. She said between the fall of 2016 when the children were returned to her and March 2017 when they were apprehended, the Society’s case notes reflect that the children were observed to be well groomed and dressed appropriately. g. She said on March 20, 2017 her father Donald clearly indicated to the Society that he was presenting a plan to care for the children. She said on March 22, 2017 her father was told his plan would be assessed. But she says this was never done. h. She said her father’s plan deserves serious consideration because in February 2016 the Society had placed the children with her father, and they remained in his care until they were returned to her in October 2016. i. She said following the apprehension, in September 2017 the Society started allowing home access visits at her father’s home. There have been no concerns with those visits. j. She said her father is still presenting a plan to care for the children. k. She is seeking a trial for the court to consider her plan to have the children placed with her father.

[39] The maternal grandfather Donald filed an affidavit May 18, 2018 in support of the mother’s position. A summary of his evidence:

a. When the children were removed from the mother’s care on March 20, 2017 he immediately presented himself as an alternate caregiver for the children, and the Society worker stated they would consider him as a kin provider. b. The children had previously been placed in his care for six months under supervision, and there was no reason the children couldn’t have been placed with him when they were apprehended. He said he was not intoxicated and doesn’t use drugs. He was available to resume care of the children. c. On March 20, 2017 when the children were removed, he was residing mostly at his ex-girlfriend’s home. Brenda was living in his home with her children. Donald’s other daughter Bernadette was also residing in the home with her daughter Natalie. d. Even though Donald didn’t reside in the home full time, he still stopped by the house daily. He acknowledges that Brenda and Bernadette argued from time to time, but he never witnessed any physical conflict, and neither of them reported any physical altercations to him. e. He said there was “no doubt that the children were likely” exposed to some arguments between Brenda and her sister, but they were never exposed to violence. f. He said after the children were returned to Brenda’s care in the fall of 2016 they were well cared for. g. He said the house was clean and in order, and during previous attendances at the home the Society worker never raised concerns about Brenda’s care for the children. h. He acknowledged the Society worker mentioned there were issues with Brenda missing meetings, or being asleep when the worker attended the home. He said this was because of the mother’s shift-work. But apart from missing meetings, the Society didn’t raise any serious concerns. i. He said on the day of the apprehension the Society worker entered his bedroom without justification. He admitted that during what he characterized as an “illegal search” the Society observed some drug paraphernalia related to his personal use of marijuana. But he denied there was a digital scale in his room, and he noted that the police never laid any charges. He said he never smokes marijuana in the house or in the presence of the children. j. He also believes the Society attended at the home as a result of a malicious and unfounded complaint by a former neighbour. k. He said he didn’t recall the house being in the state described by the Society. He said it may have been “a bit messy”. (Notably, even the mother admitted in her affidavit that the house was in “poor shape” that day – although during her submissions she argued it wasn’t that bad.) l. Donald confirmed the mother’s evidence that on March 20, 2017 she had been drinking with an old friend. But he said the children were being watched by another friend, so they were never left unattended. m. He said about a week later the children started attending at his house on Saturdays from 11:00 a.m. to 3:00 p.m. and there were never any concerns raised about the visits. This continued until January 2018. n. On January 15, 2018 police and the Society attended at his home while he was out for dinner and removed Bernadette’s daughter as a result of allegations that her ex- boyfriend was trafficking. He said despite another illegal search, all they found was a box of syringes the boyfriend had left in Bernadette’s room. There were no drugs or other items found. o. He said after that the Society cancelled his Saturday visits and returned all access to their office. p. He said he had no knowledge of any drug activity in his house. q. He insisted that the children have never been at risk when they were in his care, either during their six month placement with him, or during Saturday visits. r. He has repeatedly advised the Society he is prepared and able to care for his grandchildren. But he said the Society advised him they do not think he is fit to care for the children, and they would not place them with him.

FATHER’S EVIDENCE

[40] The father filed an affidavit dated June 28, 2018 in which he stated:

a. He is presently incarcerated serving a sentence of 26 months. He doesn’t specify the nature of his convictions or criminal record. b. His “earliest possible” release date is August 2019. c. He is presently unable to present a plan for the children and proposes that they be returned to the mother. d. Upon his release he plans to secure employment and a residence for himself and the children. He believes at that time he will be in a position to have the children returned to his care on a full-time basis. e. The Society has never raised concerns about the children being in his care. The children were previously placed in the mother’s care because the father’s residence was not large enough for them. f. The Society’s materials relate mostly to the mother. g. His “first wish” is for the children to be returned to the mother. If that’s not possible, he wants them to remain in foster care until he is released from jail.

STATUS REVIEW

[41] As stated, this summary judgment motion is brought within the context of an Amended Status Review Application. Protection findings were previously made under the CFSA . The legislation has now changed, and this application must now be decided pursuant to the provisions of the Child, Youth and Family Services Act (“CYFSA”).

[42] Section 90(2)(b) of the CYFSA provides that before determining whether a child is in need of protection – or continues to be in need of protection, in the case of a Status Review Application – the Court shall determine whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuk or Métis communities. In this case there is no evidence or suggestion that any of the three children have any such affiliation or connection.

[43] In Catholic Children’s Aid Society v. S. (B.L.) 2014 ONSC 5513 (S.C.J.) this court summarized the test to be applied on a Status Review Application:

a. In a Status Review Hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made. b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection. c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.) , [1994] 2 S.C.R. 165 (S.C.C.)) d. Secondly, the court must consider the best interests of the child. e. The analysis must be conducted from the child's perspective.

[44] Sections 101 and 102 of the CYFSA set out the orders available where the Court finds that a child is in need of protection and is satisfied that intervention through a Court Order is necessary to protect the child in the future. Section 101(1) sets out the options available to the Court on this summary judgment motion:

101(1) Order where child in need of protection Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child's best interests:

1. Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
2. Interim society care — That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
3. Extended society care — That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
4. Consecutive orders of interim society care and supervision — That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

[45] Sections 101(2), 101(3) and 101(4) of the CYFSA obligate the Court to consider additional factors when determining the issue of placement, including whether there are any less disruptive alternatives, such as community or extended family placements, and to make enquiries with respect to what efforts the Society has made to assist the child before intervention.

101(2) Court to inquire In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part. 101(3) Less disruptive alternatives preferred The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child. 101(4) Community placement to be considered Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. 101(5) First Nations, Inuk or Métis child Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child's extended family if it is possible or, if it is not possible, (a) in the case of a First Nations child, another First Nations family; (b) in the case of an Inuk child, another Inuk family; or (c) in the case of a Métis child, another Métis family.

[46] Section 114 of the CYFSA prescribes that where an Application for review of a child’s status is made under section 113, the Court may, in the child’s best interests:

(a) vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order; (b) order that the original order terminate on a specified future date; (c) make a further order or orders under section 101; or (d) make an order under section 102.

[47] The “best interests of the child” is the governing principle when considering placement. The factors to be considered in determining the best interests of a child are contained in section 74(3) of the Act , which provides as follows:

74(3) Best interests of child Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall, (a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained; (b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuk and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child's physical, mental and emotional level of development, (iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child's cultural and linguistic heritage, (v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community, (vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[48] The Court’s decision with respect to what will happen to a child must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations. The Court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of the child.

1(1) Paramount purpose The paramount purpose of this Act is to promote the best interests, protection and well-being of children. 1(2) Other purposes The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.
3. Services to children and young persons should be provided in a manner that, i. respects a child's or young person's need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons, iii. takes into account a child's or young person's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, iv. takes into account a child's or young person's cultural and linguistic needs, v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and vi. includes the participation of a child or young person, the child's or young person's parents and relatives and the members of the child's or young person's extended family and community, where appropriate.
4. Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.
5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.
6. First Nations, Inuk and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuk and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.
7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

[49] In determining which disposition is in the child’s best interests, the Court must be cognizant of the parameters imposed with respect to the total amount of time a child can be placed in the care of the Society. Section 122 of the CYFSA provides that the Court shall not make an Order that results in a child being in the interim care of a Society for a period exceeding twelve months if the child is younger than six on the day the Court makes the Order or twenty-four months if the child six or older on the day the Court makes the Order. These timelines may be extended by up to six months if the Court determines that it is in the child’s best interests to do so.

122(1) Time limit Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101(1) that results in a child being in the care and custody of a society for a period exceeding, (a) 12 months, if the child is younger than 6 on the day the court makes the order; or (b) 24 months, if the child is 6 or older on the day the court makes the order. 122(2) Calculation of time limit The time during which a child has been in a society's care and custody pursuant to the following shall be counted in calculating the period referred to in subsection (1):

1. An agreement made under subsection 75(1) (temporary care agreement).
2. A temporary order made under clause 94(2)(d) (custody during adjournment).

122(3) Previous periods to be counted The period referred to in subsection (1) shall include any previous periods that the child was in a society's care and custody under an interim society care order made under paragraph 2 of subsection 101(1) or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society's care and custody. 122(4) Deemed extension of time limit Where the period referred to in subsection (1) or (5) expires and, (a) an appeal of an order made under subsection 101(1) has been commenced and is not yet finally disposed of; or (b) the court has adjourned a hearing under section 114 (status review), the period is deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 114, as the case may be. 122(5) Six-month extension Subject to paragraphs 2 and 4 of subsection 101(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

SUMMARY JUDGMENT

[50] Rule 16 of the Family Law Rules permits a matter to be resolved by way of a motion for Summary Judgment. The Rule is available in child protection matters.

16(1) When Available After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. 16(2) Available in Any Case Except Divorce A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. 16(3) Divorce Claim In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12(6). 16(4) Evidence Required The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. 16(4.1) Evidence of Responding Party In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. 16(5) Evidence not from Personal Knowledge If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. 16(6) No Issue for Trial If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. 16(6.1) 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.

16(6.2) Oral Evidence (Mini-Trial) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. 16(7) Only Issue Amount of Entitlement If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount. 16(8) Only Issue Question of Law If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. 16(9) Order Giving Directions If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1(7.2), (a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise); (b) give directions; and (c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure). 16(10) [Repealed O. Reg. 69/15, s. 5(4).] 16(11) [Repealed O. Reg. 69/15, s. 5(4).] 16(12) Motion for Summary Decision on Legal Issue The court may, on motion, (a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs; (b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or (c) dismiss or suspend a case because, (i) the court has no jurisdiction over it, (ii) a party has no legal capacity to carry on the case, (iii) there is another case going on between the same parties about the same matter, or (iv) the case is a waste of time, a nuisance or an abuse of the court process. 16(13) Evidence on Motion for Summary Decision of Legal Issue On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission.

[51] In Kawartha-Haliburton Children's Aid Society v. M.W. 2018 ONSC 2783, the Divisional Court recently summarized the proper approach to summary judgment motions, applying the principles set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.

[52] The fundamental objective is to foster and enhance access to civil justice in Canada.

a. The cost and delays associated with lawsuits that proceed to trials can prevent people from being able to obtain a true measure of civil justice. b. Even if parties are successful at trial, the cost and delay may be disproportionate and prevent the outcome of being a truly just one. c. There must be a "culture shift" away from civil trials toward a more efficient, affordable, and proportionate civil dispute resolution process. d. It is no longer appropriate to limit the use of summary judgment as a tool merely to weed out the weakest of claims, leaving all other cases to proceed to trial. e. Summary judgment must be recognized as its own, separate, alternative process to resolve cases. f. The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial. g. To find a faster, cheaper outcome, the test for determining whether there is a "serious issue requiring a trial" must now focus on whether a summary process will provide a fair outcome in the interests of justice. h. The goal is to avoid slow and expensive trials where it is fair and just to resolve the case without a trial.

[53] As set out in Hryniak, the “test” and procedure for determining whether there is a genuine issue requiring a trial has now evolved.

a. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. b. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. c. The process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial.

[54] In Hryniak the Supreme Court set out principles to be followed and questions to be asked by a judge in applying Rule 16 and deciding whether the case is one that should be dealt with summarily:

a. The first step is for the Court to determine whether there is a genuine issue requiring trial (and whether summary judgment should be granted) based only on the evidence before the Court, without using the enhanced fact-finding powers in Rule 16(6.1). b. There will be no genuine issue requiring a trial if the summary judgment process provides the Court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. c. If there appears to be a genuine issue requiring a trial, the Court should then determine if the need for a trial can be avoided by using the expanded powers described in Hryniak. d. The Court has the discretion to use those powers, provided that their use is not “against the interest of justice”. Their use will not be “against the interest of justice” if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. e. The inquiry into the interest of justice (a) considers the consequences of the motion in the context of the litigation as a whole, and (b) is a comparative process. Children's Aid Society of Ottawa v. K.(S.) 2015 ONSC 4623 (S.C.J.); CAS of Ottawa v. K.F., J.M., & L.S. 2018 ONSC 3905 (S.C.J.).

[55] The burden of proof is on the party who moves for summary judgment.

a. The moving party must "set out specific facts showing that there is no genuine issue requiring a trial." b. The party must satisfy the Court that it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hryniak.

[56] Rule 16(4.1) sets out the requirements applicable to a person who wishes to resist summary judgment.

a. In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue requiring a trial. b. Even under the amended Rules , the responding party is required to “put its best foot forward”. c. The motions judge is entitled to assume that the parties have put before the Court all of the evidence that they would be able to adduce at trial.

[57] Rule 16(6.1) provides that in determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties and may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.

[58] Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims.

[59] The test for summary judgment is made out where the moving party satisfies the Court that there is no genuine issue of material fact that requires a trial for its resolution. If the determination of the issue will have no bearing on the outcome of trial, it is not a genuine issue requiring a trial. Catholic Children's Aid Society v. S. (B.L.) (supra).

[60] On a Motion for Summary Judgment, the Court may dismiss the Motion; rule that only certain issues require a full hearing; or determine the entire application. B.(F.) v. G.(S.) , [2001] O.J. No. 1586 (S.C.J.).

[61] In all cases, the Court must consider the primary objective of the Family Law Rules, which is to deal with cases justly. This includes: ensuring that the procedure is fair to all parties; saving expense and time; and dealing with the case in ways that are appropriate to its importance and complexity.

[62] This new and comprehensive approach to summary judgment motions was cogently summarized by O’Dea J. in FACS of Guelph & Wellington County v. T.S. 2018 ONCJ 411 (O.C.J.).

13 In domestic family and child welfare cases, the Divisional Court confirms Rule 16 continues to apply in summary judgment motions. However, where a sub-rule suggests an onus, the court determined neither party is required to prove it will likely succeed at trial or that the other cannot possibly succeed. 14 Initially, the moving party must now identify a fact base that satisfies the Judge that it is in the interests of justice that its case be decided summarily. In assessing the interests of justice, the court will ask three questions: (1) do the facts pleaded allow the judge to make findings of fact ; (2) do the facts pleaded allow the judge to apply the law to the facts; and, (3), do the facts pleaded allow the judge to determine that summary judgment is indeed a more proportionate, more expeditious and less expensive means of achieving a just result . 15 The responding party's materials will focus facts that diminish the motion judge's ability to make clear findings of fact or law. Submissions on the three questions will focus how the facts pleaded dilute the ability to achieve a just result through a summary judgment motion. 16 At the initial stage, sub-rules 16(4) and (4.1) are focused. The cases defining these sub-rules, especially how the responding party should answer the moving party's materials ("best foot forward"; "all evidence the responding party would be able to adduce at trial") continue to apply. 17 After a review of all of the evidence tendered, if any of the three questions are answered in the negative, a serious issue requiring a trial may be identified. The fact that the motion judge identifies a serious issue for trial in this initial assessment does not, however, automatically mean that issue must be resolved only in a formal trial. 18 The motion judge must determine whether the identified issue can be resolved without a trial using the powers in sub-rule 16(6.1). Use of the sub-rule 16(6.1) powers is discretionary and the discretion should only be exercised on a clear determination that their use will lead to a fair and just result that will serve the goals of timeliness, affordability and proportionality - in other words, their use is in the interests of justice. 19 Hyrniak does not alter the moving party's onus in regard to facts supporting the disposition sought or the statutory issues that must be considered before a child is not returned to the person having prior care and control. The facts pleaded must still meet the standard of a balance of probabilities.

EXTENDED SOCIETY CARE ANALYSIS

[63] I have carefully considered the evidence and the submissions:

a. I find that within the framework of this summary judgment motion, I am able to make the necessary findings of fact and to apply the law to the facts. b. I find that I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility. c. I find that the evidentiary record is sufficiently comprehensive on all aspects of this case to allow me to make a fair and just determination of the issues on the merits, without the need for a trial. d. I find that this approach is a proportionate, more expeditious and less expensive means to achieve a just result. e. Indeed, within the context of a child protection application in which children have languished in care for a long time, I find that resolution of these children’s lives by way of summary judgment motion is not merely efficient and expeditious – but it is a fundamentally desirable and necessary mechanism to respect and achieve objectives of the legislation, based on the clarity of the evidence before me.

[64] I find that the Society has established, on a balance of probabilities, a prima facie case for summary judgment with respect to each aspect of the relief sought, and that the responding parties have not met their onus of establishing that there is a genuine issue requiring a trial on any issue.

[65] While the Society materials included some hearsay, for purposes of this analysis I have not relied on any third party information except for any statements or admissions made by the mother, or for the narrow purpose of providing the context for various steps taken by the Society workers or to explain why various services were put in place and why various events occurred.

[66] The evidence satisfies me that all three children continue to be in need of protection, and they require a court order for their protection.

[67] The time limits set out on s.122 of the CYFSA significantly narrow the options now available.

a. In Martin’s case, he is seven years old. He has been in care almost the full 24 months permissible under s.122(1)(a). b. But Sandra and Christopher has been in care well in excess of the 12 months permissible under s.122(1)(b). c. Even if the maximum extension under s.122(5) were to be granted, Sandra and Christopher would still be out of time. d. In any event, an extension of the timelines is only appropriate if it is in the best interests of the children. And in this case, there is no evidence that any extension – any further delay of their resolution – would be in the best interests of any of the children. e. These three siblings, who have a close relationship and are thriving in the same foster home, require permanence – individually, and collectively. f. At this late stage the Court’s options are to either place the children in the care of the mother, the father, or another person, with or without terms of supervision -- or to place the children in the Extended Care of the Society.

[68] The evidence satisfies me on a balance of probabilities that intervention is required to protect the children – both currently and for the foreseeable future – and that an order placing the children with the mother, the father, the maternal grandfather, or any combination thereof, could not adequately protect the children even with terms of supervision.

[69] It is appropriate that summary judgment be granted in this matter – not because it is the inevitable result at trial, but because it is the correct result without the necessity of a trial.

[70] The father’s plan is patently unrealistic:

a. He’s in jail. b. He’s going to remain in jail for a long time. At least another year. Maybe longer. c. He’s not seeing the children. He hasn’t had access in a long time. He wouldn’t even be in a position to have access for a very long time. d. He has no specific plan for the future. Just a vague proposal that at some unknown date he’ll get an unknown job and find an unknown residence. e. His “first wish” is to place the children with the mother. But his affidavit sets out nothing as to the merits of that plan from the children’s perspective. His affidavit does not deny or contradict his earlier expressions of concern to the Society that it would be unsafe for the children to be in the mother’s care, given her multiple problems. f. And there is absolutely nothing child-focussed about his alternate suggestion that the children simply remain in foster care – in limbo – for at least another year (or more) while he serves his jail sentence.

[71] The mother’s plan is equally untenable – whether characterized as her own plan; in support of her father’s plan; or some combination of both.

[72] I reject the notion that the maternal grandfather has consistently offered himself up for a kin placement. I accept the Society’s evidence that for an extended period it repeatedly inquired of Donald whether he was submitting a kin proposal. And he repeatedly – and quite understandably -- explained that he wasn’t willing or able to do so.

[73] I accept the Society’s evidence that in January 2018 Donald requested that the Society consider him as a kin placement. And I find that it was entirely reasonable and appropriate that the Society advised Donald that he could not be considered for placement of the children, given the serious problems the Society detected within Donald’s home (both in March 2017 and in January 2018); and given his willful blindness or disinterest with respect to the multitude of dangers his grandchildren were exposed to within his home.

[74] As for the mother advancing her own plan, her situation is truly sad – but entirely inappropriate for children to be exposed to.

a. When she had a home, it was in deplorable condition when the children were apprehended. b. More to the point, she hasn’t been able to secure a home for a very long time, despite sincere efforts on the part of the Society to offer assistance. (Indeed, I would go so far as to say I am satisfied that the Society has made reasonable efforts to assist and work with Brenda, Bruce, and Donald in every respect). c. I accept that the mother has substance abuse issues which she hasn’t acknowledged or addressed. d. I accept that the mother has anger management and mental health (or emotional) issues which have undermined her relationship with her children – and subverted community efforts to assist her. e. The mother continues to lack insight with respect to even the basic requirements of parenting. f. I accept the Society’s evidence that there has been a chronic and indefensible problem with the mother showing up late for visits. I would have thought that given the limited amount of supervised time the mother was being offered, she would have been much more motivated to take advantage of every available second. In any event, her perpetually late arrivals have created needless inconvenience and disappointment for the children. g. I accept the Society’s evidence that the mother’s presentation and behaviour during access has been inappropriate and concerning. h. Specifically, I accept the evidence that the mother has had difficulty focussing on the children and even keeping awake during visits. i. I accept that she has had difficulty managing the children. j. I accept the Society’s evidence that the mother has been harsh and insensitive in her dealings with the children – and confrontational and intimidating in her dealings with Society staff. k. I agree with the Society’s observation that on many levels the mother is unable to regulate her emotions, statements and behaviours. l. Fundamentally: the mother lacks insight and commitment.

[75] There is no circumstance in which the children could be safely placed with Brenda, Bruce or Donald – or any combination thereof – with or without supervision. Given the fact that the aforementioned multitude of problems arose while the parents were already subject to a supervision order, there could be no level of confidence that a future supervision order would offer meaningful protection.

[76] All of these proposals entail a request for more time, while adults get their act together. But the Society is right (and the legislation mandates): there is no more time. These children have already been in care far too long. Our obligation to be child-focussed requires that decisive and timely action be taken, once the Court is satisfied as to the best interests of the children.

[77] I am satisfied that there is no genuine issue requiring a trial as to whether it is appropriate for Martin, Sandra and Christopher to be placed in Extended Society Care.

a. The Society has explored all reasonable options. b. The Society has appropriately rejected Donald as a kin placement and no other kin options are available c. The Society has made reasonable efforts to assist the family. d. The Society’s request is the least intrusive safe option for the children. e. Delaying this matter – for a trial and/or to allow the adults to address deficiencies – would be unproductive and inconsistent with the children’s need for permanence and a timely resolution of their lives.

[78] I find that Martin, Sandra and Christopher should be placed in the Extended Care of the Society.

ACCESS ANALYSIS

[79] Section 104 of the CYFSA sets out the Court’s powers in relation to access.

104(1) Access order The court may, in the child's best interests, (a) when making an order under this Part; or (b) upon an application under subsection (2), make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[80] Section 105 deals with access where a child has been removed from a person who had charge.

105. Access: Where Child Removed from Person In Charge 105(1) Access: where child removed from person in charge Where an order is made under paragraph 1 or 2 of subsection 101(1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child's best interests. 105(2) Access after custody order under s. 102 If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child's best interests. 105(3) Access after supervision order or custody order under s. 116(1) If an order is made for supervision under clause 116(1)(a) or for custody under clause 116(1)(b), the court shall make an order for access by every person who had access before the application for the order was made under section 115, unless the court is satisfied that continued contact will not be in the child's best interests. 105(4) Existing access order terminated if order made for extended society care Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101(1) or clause 116(1)(c), any order for access made under this Part with respect to the child is terminated. 105(5) When court may order access to child in extended society care A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) unless the court is satisfied that the order or variation would be in the child's best interests. 105(6) Additional considerations for best interests test The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5), (a) whether the relationship between the person and the child is beneficial and meaningful to the child; and (b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption. 105(7) Court to specify access holders and access recipients Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c), the court shall specify, (a) every person who has been granted a right of access; and (b) every person with respect to whom access has been granted. 105(8) When court to terminate access to child in extended society care The court shall terminate an access order with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) if the order is no longer in the best interests of the child as determined under subsection (6). 105(9) Society may permit contact or communication If a society believes that contact or communication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) is in the best interests of the child and no openness order under Part VIII (Adoption and Adoption Licensing) or access order is in effect with respect to the person and the child, the society may permit contact or communication between the person and the child.

[81] Section 105(4) of the CYFSA states that where the Court makes an Order that a child be in Extended Society Care, any Order for access is terminated. This is the same as under the former CFSA in relation to Crown wards.

[82] But section 105(5) changes the access test regarding children who are placed in Extended Society care. The section sets out that in considering the issue of access to a child in Extended Society Care, the best interests of the child is the test. The court may not order access to such a child unless it is satisfied that the order would be in the child’s best interest.

[83] This brings us back to the best interests factors as set out in s.74(3).

a. The best interests test under s.74(3) has been changed to require mandatory consideration of the child’s views and wishes. b. The only other factor mandatory in determining best interests is the consideration of preserving the cultural identify and connection to community for a First Nations, Inuk or Métis child (s.74(3)(b)). But as stated, none of the children herein fall under this section.

[84] Section 105(6) of the CYFSA sets out additional factors to be considered in determining whether an access order would be in the best interests of a child in Extended Society care. These are:

a. Whether the relationship is beneficial and meaningful to the child, and b. If the court considers it relevant , whether the ordered access will impair the child’s future opportunities for adoption.

[85] But the relevance of the “beneficial and meaningful” and “not impair adoption” criteria is different under the new legislation.

a. Under s.59(2.1) of the CFSA , access to a Crown ward could not be ordered unless a parent satisfied both elements of the conjunctive test. b. But under s.105(5) of the CYFSA the “beneficial and meaningful” and “not impair adoption” criteria are no longer prerequisites for an access order. They are only two of many criteria to be considered in the ultimate determination of best interests. c. While the CYFSA requires the court to consider whether the relationship is beneficial and meaningful, it does not preclude an order for access even if these criteria are not met. d. Further, it is only if the Court considers it relevant that it must consider whether access will impair the child’s future adoption opportunities.

[86] While the revised legislation gives the court more flexibility and discretion in determining the issue of access to a child in Extended Society Care, it is important to be mindful of how much the legislation has really changed -- and how much it hasn’t.

a. There is still a presumption against access to a child in extended Society Care. b. It is still mandatory for the court to consider whether the relationship is beneficial and meaningful to the child in some way. c. The court still has the discretion to consider whether access will impair future adoption opportunities. d. While the overall legal test is less rigidly defined, nonetheless the onus still remains entirely on the person seeking access to a child in Extended Society Care, to establish on a balance of probabilities that access would be in the best interests of that particular child.

[87] The abundant caselaw under s 59(2.1) of the CFSA with respect to the interpretation of “beneficial” and “meaningful” remains relevant in relation to s.105(6) of the CYFSA. Important guidance is provided in Children’s Aid Society of the Niagara Region v. J.C.; Children’s Aid Society of Niagara Region v. J. (M.); Children’s Aid Society of Ottawa-Carleton v. C. (A.) [2007] O.J. No. 1322 (S.C.J.); and Children’s Aid Society of Toronto v. A. (M.).

a. “Beneficial” means “advantageous”. b. “Meaningful” means “significant”. c. The person seeking access should be able to show that their relationship with the child brings a significant positive advantage to the child. It is the child’s perspective that matters. d. More than love or the display of love is required. e. More than historical caregiving is required. f. More than biological connection is required. g. Even if there are some positive aspects to the relationship between the parent and the child, that is not enough. There must be significant advantages to the child. h. The fact that some visits are pleasant is not determinative, particularly where the child has also experienced countervailing negative experiences on other occasions. i. The existing relationship between the person seeking access and the child must be considered, and not a future, potential relationship. j. Even if the relationship is beneficial and meaningful, there must still be a qualitative weighing of the benefits to the child of access versus no access. k. Even if visits are generally enjoyable, the court must consider whether the beneficial aspects of visits outweigh the child’s need for continuity of care and a secure place as a member of a stable family.

[88] In their affidavits responding to this summary judgment motion, the parents have provided scant information about the quality of their respective relationships with the children. They have said virtually nothing on the topic of access in the event that the children are placed in Extended Society care.

[89] But given that this is a summary judgment motion, the onus is on the Society to establish that there is no genuine issue requiring a trial in relation to access. And in this respect I have considered the voluminous evidence of the Society workers in relation to the positive and negative aspects of the relationship between the parents (and Donald) and each of the children.

[90] I find that the children’s relationship with each of Brenda, Bruce and Donald is not beneficial and meaningful.

a. Bruce may long ago have had more significant involvement in the children’s lives. But he is out of the picture and out of their lives. b. Brenda’s relationship with the children entails some modest positives which are cancelled out by serious negatives. The children sometimes display affection for her and generally enjoy seeing her. But they are frustrated and confused by her tardiness; her lack of commitment and consistency; her inability to focus on them (and even stay awake); her quick temper; and her harsh and emotionally damaging outbursts and name-calling. c. To put things in sad perspective: On September 7, 2017 Brenda arrived for a visit 25 minutes late as the children were getting ready to be sent back to the foster home. The Society allowed the visit to take place since the children hadn’t left yet. While waiting in the reception area for Brenda to join the children, Sandra (who was four years old at the time) approached two separate women calling them “mommy!” The women appeared embarrassed and confused. When Brenda finally entered the room, Sandra and Martin did not approach to greet her until they were specifically asked to by Brenda. d. Although Donald is not a party and has not formally presented a plan, I would note that the evidence suggests the children perceive him as a familiar and enjoyable grandparent, but not a significant presence in their lives.

[91] I have considered the best interests criteria as set out in s.74(3).

a. The children have an emotional need for stability, consistency, and reliable parenting. Brenda and Bruce have clearly established that they are unable to provide these. b. All of the children are young and require a clear sense of belonging and family. Brenda and Bruce are unable to meet these fundamental needs. c. The children need physical and emotional security. Brenda and Bruce’s lives are in disarray. They can’t even take proper care of themselves. d. The children are closely bonded to one another. In this respect it is reassuring that the Society intends to seek an adoptive placement for all three children together. And if that’s not possible, the Society consents to an order that there be sibling access. But while the children are closely bonded to one another, they evidence suggests they are not closely bonded to Brenda, Bruce or Donald. e. I have considered the issue of disruption in the children’s lives. Severing their contact with Bruce will be minimally disruptive, as they have virtually no ongoing relationship with him. Severing their contact with Brenda will entail some disruption. But the reality is that their ongoing (and very limited) contact with their mother is full of disruptions (as to when she will show up and how she will behave). f. I have considered the effects of delay on each child. These children need to get on with their lives and establish permanent connections within loving families. Ongoing contact with the parents will jeopardize that important integration. Delaying the determination of this issue by having a needless trial will also work to the disadvantage of the children.

[92] I also find that an access order would likely impair the children’s opportunities for adoption.

a. This is always a difficult and somewhat speculative topic. Under the former legislation it was often argued that parents faced an almost impossible task satisfying this second component of the conjunctive s.59(2.1) test. b. But we need to be realistic. c. Brenda and Bruce each have extremely difficult, volatile and aggressive personalities, with no insight as to the damage their lack of insight and self-control has caused for their children. They have shown no cooperation. Perhaps Bruce will be safely in jail for a while. But Brenda has been abusive and intimidating with various Society workers. It is entirely foreseeable that she would continue to be unable to regulate her behavior in dealing with prospective adoptive parents. d. Where parents have a history of bitterness and behaving badly, we owe it to children entering Extended Society Care not to allow prospective adoptive placements to be scared off.

[93] I find that the Society has established that there is no genuine issue requiring a trial in relation to the issue of access, and that the children should be placed in Extended Society Care, without access, for the purpose of adoption.

FINAL ORDER

[94] The children Martin, Sandra and Christopher (dates of birth withheld) are not First Nations, Inuk or Métis and do not identify with any Band as defined under The Indian Act; nor do they identify with any First Nations, Inuk or Métis community as defined in sections 2 and 68 of the Child, Youth and Family Services Act.

[95] The children Martin, Sandra and Christopher continue to be in need of protection.

[96] The children Martin, Sandra and Christopher are placed in the Extended Care and Custody of the Society, without access, for the purpose of adoption.

Pazaratz, J. Released: July 17, 2018