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.: FC-17-632-1 DATE: 2018/08/15

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD YOUTH AND FAMILY SERVICES ACT, S.o. 2017, chapter 14 Schedule 1 AND IN THE MATTER OF J.Q. born […], 2015

BETWEEN:

The Children’s Aid Society of Ottawa Applicant -and- E.Q. (Mother) -and- J.E. (Father) -and- A.E. (Paternal Grandmother) Respondents

Counsel: Marie-Josee Ranger, counsel for the Applicant Mellington Godoy, counsel for the Respondent (Mother) Not appearing (for J.E. (Father)) Not appearing (for A.E. (Paternal Grandmother))

HEARD: August 10, 2018

Endorsement

Overview

[1] This is a motion for summary judgment pursuant to Rule 16 of the Family Law Rules [^1]. This motion is brought by the Children’s Aid Society of Ottawa (“Society”), seeking a final Order on their Status Review Application placing the child, now age 3, in the Extended Care of the Society, with access to the mother and maternal grandmother at the discretion of the Society [^2].

[2] For the reasons that follow, the Court grants the motion.

Litigation History

[3] The child was born on […], 2015. The child is Inuk. When the child was approximately seven months old, the parents placed the child in the care of the paternal grandmother. On November 30, 2016, the child was removed from the paternal grandmother’s care due to concerns about the paternal grandmother’s alcohol use. The child has been in the Society’s care since that date, with the exception of a few days, for a total of approximately 618 days as of August 10, 2018.

[4] On December 2, 2016, the paternal grandmother agreed to a Temporary Care Agreement for the child to stay in the Society’s care for approximately three months. At the time, the paternal grandmother advised that the mother was living on the street and she did not know how to contact her.

[5] Subsequently, the Society completed a kin placement with another relative. On January 3, 2017, the child was placed in the care of that relative. The paternal grandmother moved into the same residence and resided there with the child.

[6] On January 9, 2017, that kin placement broke down and the paternal grandmother left the residence with the child, against the Society’s expectations. There continued to be concerns regarding the paternal grandmother’s alcohol use, parenting skills, and shelter. On January 11, 2017, the paternal grandmother signed a second Temporary Care Agreement placing the child in the Society’s care for three months. At that time, the mother was located at the Ottawa Detention Centre. The mother agreed to the temporary care placement. The father was also located and agreed to the temporary care placement.

[7] On April 9, 2017, due to a lack of progress and continuing child protection concerns, the child was formally apprehended and placed in the care of the Society. The Society sought an Order for Society Wardship for a period of six months. On April 13, 2017, Justice Toscano Roccamo made an interim without prejudice Order placing the child in the care of the Society, with access to the mother, father and paternal grandmother.

[8] The father did not participate in the child protection proceedings. The mother did participate to some extent but did not file an Answer and Plan of Care, although she was granted two extensions to do so.

[9] On July 25, 2017, with the consent of the paternal grandmother, Justice Doyle made a final Order finding the child in need of protection and granting a six month Society Wardship, with access to the parents and paternal grandmother. The Status Review Application was set to return on January 23, 2018.

[10] At the time the protection Order was made, the father had limited contact with the Society and was not attending access. The mother was released from jail at the end of January, 2017, but had sporadic contact with the Society. There were renewed concerns that the mother was living on the street with continued alcohol and drug abuse issues, and she was not attending access. There were concerns about the paternal grandmother’s ability to provide for the child due to other demands on her, and that the child had been significantly behind in milestones when he came into care. The child was reported to have been thriving in his foster placement. The Society was providing supports to access his Inuit culture. The Society was exploring whether the maternal grandmother would present a kinship plan.

[11] On the Status Review Application, the Society sought to place the child in the Extended Care of the Society, with access to the mother and maternal grandmother at the discretion of the Society.

[12] The father was served with the Status Review Application on January 27, 2018. He has not participated in these proceedings nor filed any material and as such, he is in default.

[13] The paternal grandmother was served with the Status Review Application on January 18, 2018. On March 1, 2018, she was granted an extension of time to March 21, 2018 to file an Answer and Plan of Care. She did not do so. On April 16, 2018, Justice Blishen denied her request for a further extension and as such, she is in default.

[14] The mother filed an Answer and Plan of Care dated April 24, 2018. She was granted leave to do so by Order of Justice Audet, dated April 25, 2018.

[15] This matter returned to court on May 15, 2018, at which time the Society requested a court date for a motion for summary judgment. The matter was adjourned to allow the mother time to seek new counsel, as her previous counsel had, suddenly, passed away.

[16] On May 29, 2018, the matter was again adjourned to allow the mother time to retain counsel.

[17] The matter returned on June 12, 2018, at which time the mother had retained new counsel. The summary judgment motion was scheduled for July 27, 2018.

[18] This motion was before me on July 27, 2018. The mother attended court on July 27, 2018 and through her counsel requested a brief four day adjournment to file responding material. This request for an adjournment was opposed by the Society. In order to ensure a fair and just process, I granted the adjournment. I ordered that the mother file her responding material prior to August 3, 2018. The motion was adjourned to August 10, 2018.

[19] On August 10, 2018, this motion proceeded. The mother was not in attendance in court although her counsel was. The mother has not filed any responding material. Her counsel advised that he did not have instructions from the mother although he reiterated her position that she opposed the motion.

Evidence

[20] The evidence on this motion consists of the following:

a. the affidavits sworn by the child protection workers, including the first worker’s affidavit, sworn April 11, 2017, and the subsequent worker’s affidavits, sworn January 10, 2018, April 13, 2018; May 10, 2018, July 9, 2018, and August 7, 2018; b. the affidavits of the child’s foster parents, sworn July 9, 2018, and August 7, 2018; c. the affidavit of the adoption worker, sworn July 9, 2018; and d. the affidavit of the Society’s law clerk, attaching a number of police records relating to the mother, sworn August 2, 2018.

[21] The mother has not filed any responding material on this motion. She has not filed any sworn affidavit material in either this proceeding or in the original child protection proceeding. There are no other affidavits before me except for the ones provided by the Society.

[22] The only other document I have before me is the mother’s Answer and Plan of Care, dated April 24, 2018. The mother’s Plan of Care is not a sworn document but it does represent her proposed disposition for this matter. The mother states that she intends to return to Pond Inlet, where she states she has a number of supports in the community. The mother’s plan is for the child to return to Pond Inlet with her to attend the local community school and be cared for by family. At the time that she filed her Plan of Care, she stated she was attending a five week inpatient treatment program. This limited her ability to exercise access but she requested that the Society allow her to have access at times that the program provided. Upon leaving the program, the mother proposed that she would engage in support services in the Ottawa community until the Society and the mother could plan her move to Pond Inlet where she would continue to engage with community members to ensure that she maintained her sobriety.

[23] The mother stated that her plan was in the best interests of the child because she had been regularly attending access while the child was in the Society’s care and had a strong bond with him. She believed that it was in the child’s best interest to maintain a strong relationship with his family and heritage and for that reason she was seeking that the child be returned to her care.

[24] The mother sought an order for the child to be placed in her care pursuant to a supervision order with reasonable conditions. In the alternative, the mother sought an order for the child to be placed in the care of the child’s maternal grandmother pursuant to a kin agreement with provisions allowing for continued regular access of the mother as agreed between the maternal grandmother and the mother.

[25] The evidence before me supports the following findings, which I make:

a. The mother has an extensive history of alcohol and drug abuse issues related to trauma but which also significantly impairs her ability to parent and meet the best interests of the child. b. A number of support services have been provided to the mother through the Society and the Ottawa Inuit Children’s Centre (“OICC”). Unfortunately, these have not been successful in assisting the mother to make the significant progress that needs to be made to address her challenges. c. Since January 2018, the mother has continued to have sporadic contact with the Society and she has been inconsistent with access visits. d. Although the mother completed a residential treatment program between April 23, 2018 and May 25, 2018, she has continued to be inconsistent with contact with the Society and other supports. e. Following the mother’s release from treatment, she had access visits scheduled twice a week at the OICC, supported by the OICC to assist with transportation of the child. However, the mother only attended at two access visits - one on May 26, 2018, and a second visit on June 21, 2018. f. Following the mother’s release from treatment, she has had a number of interactions with the police. The occurrence reports record six incidents, most recently on July 24, 2018, involving charges against the mother for public intoxication. g. The mother has not presented any evidence that she has been able to maintain her sobriety since completing the treatment program, or has engaged in any aftercare programs or other supports to assist her in maintaining her sobriety. h. The evidence before me supports a finding that the mother continues to struggle with sobriety issues, that she has not been able to maintain her sobriety since completing the treatment program, and that it is not in the child’s best interests to be placed in her care, even with supervision. i. Neither the father nor paternal grandmother has presented a Plan of Care for the child. Both are in default. j. No other kin plans have been presented or approved by the Society.

Statutory Findings

[26] The required statutory findings were made under the previous legislation, within the original child protection proceedings [^3]. Under the CYFSA, the required statutory findings have been modified slightly [^4]. The previous statutory findings continue, with one adjustment to comply with the new legislation’s requirements, being that the child is Inuk. To support this finding, I have relied on all of the evidence before me, in particular the affidavits of the Society workers, which are consistent with how the mother has identified the child in her Plan of Care.

Legal Framework

[27] The issue on this motion is whether there is a genuine issue requiring a trial to determine whether the child should be placed in the Extended Care of the Society with access to the mother and maternal grandmother at the discretion of the Society.

[28] Rule 16 requires the Court to grant summary judgment if there is no genuine issue requiring a trial [^5]. The moving party has the onus to provide evidence that there is no genuine issue requiring a trial. If the evidence leads to an inevitable outcome - that the best interests of the child require an order for Extended Care to the Society - there is no genuine issue for trial. [^6]

[29] As set out in Hryniak v. Mauldin [^7]:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[30] In child protection proceedings, the Court should proceed with caution on a motion for summary judgment, particularly where the final order sought is for Extended Care with the Society, in keeping with the principles of justice, fairness and the best interests of the child. There is a special duty in child protection matters to place the best interests of the child foremost. [^8]

[31] While caution is important, it is nevertheless the case that if the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child’s future. [^9]

[32] On a Status Review Application pursuant to ss. 113 to 116 of the CYFSA, the court must first determine whether the child continues to be in need of protection. 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. The court must then consider the best interests of the child. [^10]

Analysis

[33] I find that the evidence before me allows me to reach a fair and just determination on the merits of this matter. The evidence before me supports the following findings:

a. The child continues to be in need of protection. b. There is no realistic possibility that the mother will be successful in seeking to have the child placed in her care, even subject to conditions. There is no realistic possibility that the mother’s alternative plans of care will be successful, given that her mother and grandmother are not proposing to care for the child. c. The child has been in the Society’s care for 618 days, well past the statutory timeframes expected in such matters. The Society’s adoption worker has determined that there are two potential families who can meet the needs of the child, who would provide him with a permanent family that can support and nurture his Inuit cultural heritage, and who are willing to have some form of openness with his birth family. It is in the child’s best interests to provide for the stability and certainty that the resolution of this proceeding will allow. d. There is no realistic possibility of an outcome other than that sought by the Society, being that the child should be placed in the Extended Care of the Society, with access to the mother and maternal grandmother at the discretion of the Society. e. There is no genuine issue requiring a trial.

[34] Accordingly, a final Order will issue as follows:

a. Summary judgment is granted pursuant to Rule 16 of the FLR, as follows: i. the child, J.Q., born […], 2015, shall be placed in the Extended Care of the Children’s Aid Society of Ottawa; ii. the child, J.Q., born […], 2015, shall have access to the mother, E.Q. and the maternal grandmother, M.Q. at the discretion of the Society.

Justice P. MacEachern Date: August 15, 2018

COURT FILE NO.: FC-17-632-1 DATE: 2018/08/15

ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD YOUTH AND FAMILY SERVICES ACT, S.o. 2017, chapter 14 Schedule 1 AND IN THE MATTER OF J.Q.

BETWEEN: The Children’s Aid Society of Ottawa Applicant

• and- E.Q. (Mother) -and- J.E. (Father)
• and- A.E. (Paternal Grandmother) Respondents

ENDORSEMENT Justice P. MacEachern

Released: August 15, 2018

Footnotes

[^1]: Family Law Rules, O. Reg. 114/99, Rule 16 (“FLR”) [^2]: Child, Youth and Family Services Act, S.O. 2017, c.4, sch. 1, sections 113 to 116 (“CYFSA”) [^3]: Child and Family Services Act, R.S.O. 1990. c.C.11, as am., section 47(2) [^4]: CYFSA, s. 90(2) [^5]: FLR, Rule 16(6) [^6]: See Catholic Children’s Aid Society of Hamilton v. B.W.B. et al, 2015 ONSC 7621 at paras. 84 and 85 [^7]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49 [^8]: See Jewish and Child Family Services of Toronto v. A. (R.) [2001] O.J. No. 47 (Ont.S.C.) at para 20; Children’s Aid Society Region of Halton v. A. (K.L.) (2006), 32 R.F.L. (6th) 7, at para 25 (Ont.C.A.); Catholic Children’s Aid Society of Hamilton v. A. (M.), 2012 ONSC 267, at para 27; Children’s Aid Society of the Regional Municipality of Waterloo v. S. (R.) at para 25 [^9]: Catholic Children’s Aid Society of Hamilton v. A. (M.), 2012 ONSC 267, at para 7 [^10]: Children's Aid Society of Hamilton v. S. (B.L.), 2014 ONSC 5513 at paras 83 to 84