COURT FILE NO.: C427/17 DATE: December 14, 2018

ONTARIO SUPERIOR COURT OF JUSTICE - FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

BETWEEN:

Children’s Aid Society of London and Middlesex Christine McLeod for the Society Applicant

- and -

A.S. and R.D. A.S. in person Edward J. Mann for R.D. Respondents

HEARD: June 22, 2018

MITROW J.

Introduction

[1] This is a summary judgment motion brought by the applicant, the Children's Aid Society of London and Middlesex (“the Society”).

[2] The respondent, A.S. (“Ms. S.”), is the mother, and the respondent, R.D. (“Mr. D.”), is the father of the subject child, C., born ..., 2017 (“the child”). The respondents are at times collectively referred to as “the parents.”

[3] The Society issued its application on March 28, 2017 under the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] (“CFSA”), which was then in force, seeking a protection finding and an order for six months Society wardship with reasonable access to both parents supervised at the Society’s discretion.

[4] In January 2018 the Society amended its application to seek crown wardship, with the final order being silent as to access, but with the parents to have interim access to the child supervised at Society discretion.

[5] In his answer, Mr. D. sought an order to have the child placed in his custody pursuant to a s. 57.1. He also requested an order placing the child in his “care and custody” which I regard as a request for a supervision order; in the alternative, Mr. D. seeks access.

[6] Ms. S. in her answer sought the return of the child to her care either pursuant to a s. 57.1 custody order or a final supervision order. Ms. S. also sought an order placing the child with the paternal grandmother and, in the alternative, Ms. S. sought access.

[7] Prior to the hearing of the summary judgment motion, Ms. S. had not filed any responding affidavit material. She did prepare on the day of the hearing a handwritten affidavit that was filed as an exhibit on consent.

[8] Although Ms. S. was self-represented, she did have duty counsel assist her. Submissions were made on Ms. S.’s behalf by both Ms. S. and duty counsel. On the basis of the submissions made, Ms. S. did appear to acknowledge that she was not in a position at the date of the hearing of the summary judgment motion to assume care of the child.

[9] Although Mr. D. sought placement of the child with him, Mr. D.’s primary submission was that the Society motion for summary judgment should be dismissed because the evidentiary record raises a genuine issue requiring a trial.

[10] Notwithstanding that there was no affidavit from Mr. D.’s mother, V.D. (“the paternal grandmother”), the Society evidence establishes that the paternal grandmother is stepping forward to present a plan of care for the child, primarily as an alternative if the child is not placed with either of the parents. The paternal grandmother is not a party.

[11] The child was apprehended at the hospital pursuant to a warrant very soon after the child was born.

[12] Mr. D. has no relationship with the child. He has seen the child once, at the hospital, the visit being supervised by a Society social worker.

[13] The paternal grandmother has no relationship with the child. She was at the same supervised visit at the hospital with Mr. D. Also, Mr. D.’s sister was present.

[14] The child remains in the temporary care and custody of the Society pursuant to an interim without prejudice order made on March 28, 2017.

[15] Ms. S. has had ongoing visits with the child supervised by the Society. The Society raises concerns regarding the number of access visits that the mother has missed and the mother’s presentation at the access visits. These issues are discussed in more detail below.

[16] At the time of the hearing of the summary judgment motion, the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) had been proclaimed in force. Pursuant to the transition provision continued in the regulations of the CYFSA, the Society application commenced under the CFSA is deemed continued under the CYFSA [1].

[17] On February 1, 2018, the court made an order pursuant to s. 54 of the CFSA that Dr. Marlies Sudermann conduct a parenting capacity assessment on both parents and the paternal grandmother. Dr. Sudermann commenced her assessment near the beginning of March 2018 and her completed assessment report is dated May 1, 2018.

[18] Dr. Sudermann’s assessment report is evidence and is part of the court record of the proceeding. [2]

[19] Although Dr. Sudermann’s report is discussed in more detail below, it is noted that Dr. Sudermann, in her recommendations was rather forceful, stating in relation to both Ms. S. and Mr. D. that “under no circumstances” should the child be placed with either parent. In relation to the paternal grandmother, Dr. Sudermann’s recommendation included that the child should not be placed with the paternal grandmother as in Dr. Sudermann’s view this was “highly inadvisable.”

[20] Pursuant to the CYFSA, the Society’s request for disposition is that the child be placed in extended Society care pursuant to s. 101(1) paragraph 3.

[21] For reasons that follow, an order is made placing the child in extended Society care, silent as to access.

Ms. S. – The Mother

[22] There can be no doubt that Ms. S. has suffered from prolonged and serious substance abuse that continues to plague her life. Ms. S.’s hospital records confirm her admission to hospital on January 29, 2017 as a result of hemorrhaging; she was approximately 26 weeks into her pregnancy with C. Ms. S. admitted at the hospital to cocaine use throughout her pregnancy. However, other reliable evidence suggests that Ms. S.’s substance use also included other substances.

[23] Despite being told that her diagnosis of placenta previa can cause significant morbidity and mortality for both herself and the fetus should heavy bleeding occur, thus underscoring the importance of remaining in the hospital, Ms. S. nevertheless was gone from her room for long periods of time. On January 30, 2017, Ms. S. left her room without notifying staff; she could not be located and she was discharged effective January 31, 2017.

[24] The following day, on February 1, 2017, Ms. S. contacted the hospital and was readmitted. The seriousness of her condition, including the potential of “fetal demise and maternal death,” again was discussed with Ms. S. However, once more, Ms. S. left the hospital and, despite efforts by hospital staff, Ms. S. could not be located. The following day, Ms. S. was discharged against medical advice.

[25] Ms. S. was re-admitted to the hospital from February 4, 2017 to March 24, 2017, the discharge date being three days after the child’s birth. The hospital discharge documents confirmed that Ms. S. had “many leaves of absence from the hospital.”

[26] At the time of her hospitalization, including the birth of the child in March 2017, Ms. S. was homeless. Although Ms. S. did secure housing after the child’s birth, she was evicted subsequently for nonpayment of rent. This was despite having received a $50,000 lump sum payment in December 2016. This money was part of a settlement arising from serious injuries sustained by Ms. S. in a motor vehicle accident when she was a young child. Ms. S. also receives $1,331 a month as part of that settlement. Ms. S. was unable to articulate to the Society’s social worker any particulars of what she had done with that money, other than saying she had to pay off some debts.

[27] Ms. S. was homeless at the time of the hearing of the summary judgment motion.

[28] There was evidence that Ms. S. had been staying in shelters; at times, she had to leave given her non-compliance with the rules to be followed while staying at the shelters. In early February 2018, when asked about her housing plans, Ms. S. told Society social worker Cherilyn Meunier (“Ms. Meunier”) that she was still “couch surfing” and staying at various locations, including sleeping on cold floors and in laundry rooms.

[29] Ms. Meunier deposed that on April 18, 2018 she had met with Ms. S. Ms. Meunier’s description of Ms. S.’s situation at that time was graphic and sad. Ms. S. reported to Ms. Meunier that she continues to reside with friends but gets kicked out; Ms. S. also reported to Ms. Meunier that on one occasion she was walking the streets after midnight with her cat in its carrier. Ms. S. could not board the bus because of her cat, even though she tried, unsuccessfully apparently, to conceal the cat in her backpack. Ms. Meunier further deposed that Ms. S. presented as unkempt with matted hair, dirty fingernails and emitting a strong body odor. Ms. S. acknowledged to Ms. Meunier that her situation was “dirty” and “disgusting.”

[30] Although Ms. Meunier did meet with Ms. S. in early June 2018 while Ms. S. was staying at the Unity Project (a shelter) and observed that Ms. S. presented as “much more well kempt,” this evidence corroborated that Ms. S. still had not secured accommodation for herself.

[31] In her affidavit, Ms. S. deposed that she is in the process of finalizing arrangements for a two-bedroom apartment. It is her evidence that the rent will be $980 per month all inclusive, which she can afford with her “monthly trust fund of $1331.17.”

[32] Ms. S. attached no documents corroborating this rental. Ms. S.’s high-risk and unstable lifestyle raises serious issues as to her ability to maintain a stable residence for any sustained period of time. This uncorroborated evidence regarding a potential rental, tendered on the day of the summary judgment motion, is of little assistance to Ms. S. in defending the Society’s motion.

[33] I accept Dr. Sudermann’s conclusion as to Ms. S.’s chaotic lifestyle (at page 27):

It would seem that despite wanting to parent [C.], Ms. [S.] has not been able to stabilize her living situation, nor does she have anywhere stable to bring [C.]. It is highly likely that Ms. [S.]’s chaotic, risky lifestyle and her addictions issues are intertwined. The assessor would be very concerned that even if Ms. [S.] were somehow [to] obtain money for first and last months’ rent, and rent an apartment that this would be unsustainable for her, and that she would have very unsuitable conditions there for raising a child, both with regard to use of her resources financially as well as associates that she might have there.

[34] Ms. S. failed to follow through with a treatment plan at Addiction Services of Thames Valley (“ASTV”) despite frequent requests from Society social workers to do so. Ms. S.’s attendance was sporadic. She connected with services in June 2017; however, Ms. S. attended only 6 of 14 scheduled appointments (according to a report from ASTV) and in February 2018, her file was closed due to inactivity.

[35] Dr. Sudermann opined (page 20) in relation to Ms. S.’s substance abuse that Ms. S. “showed little or no insight that she required treatment, that this was a major issue or priority for her.”

[36] Ms. S. has a child, J., by a different relationship, born in 2010, and who was age seven at the time of the preparation of the assessment. As at that time, J. had been in the care of Ms. S.’s maternal aunt, L.M. (“Ms. M.”), and her husband for approximately one year; before that, J. had been cared for by Ms. S.’s mother (the sister of Ms. M.). Ms. M. and her husband assumed the care of J. when Ms. S.’s mother passed away in May 2017. Shortly before that, Ms. S.’s father also had passed away.

[37] Ms. M. corroborated, firsthand, Ms. S.’s substance abuse starting in her late teens or early twenties according to Ms. M. Ms. M.’s evidence was particularly poignant in describing the significant gains made by Ms. S. when she became pregnant with J.; Ms. S. had made a concerted and successful effort to raise and parent J., leaving behind her drug-plagued lifestyle. However, Ms. S. was not able to sustain her progress and relapsed into drug use.

[38] It was Ms. M.’s evidence that the $50,000 received by Ms. S. in December 2016 was gone by July 2017.

[39] It is not necessary to discuss further details relating to Ms. S.’s drug use. Dr. Sudermann discusses this issue in detail. I accept Dr. Sudermann’s conclusion, amply supported by the evidence, at pages 21 and 33 of the assessment report:

It would appear that Ms. [S.] has had a history of heavy drug use in the past, has used substances regularly during her pregnancy with [C.], and appears to have continuing substance abuse and addictions issues of a serious nature. She is still in the very early stages of addressing her substance use, and she admits she is continuing to have heavy drinking bouts, at the least, while her extended family contacts believe she is still using drugs heavily. This is a crucial issue, especially as Ms. [S.]’s drug use has led to severe social and practical dysfunction in her life and is associated with a choice of risky behaviours and associates. As long as this issue is not thoroughly addressed, Ms. [S.] is considered unsafe as caregiver for a child. Not only would Ms. [S.] be at risk of being incapacitated while in a caregiving role, she would, by her own admission, be involved and focused on getting the next “fix” or source of substances. There are also many other risks associated with the substance use, including Ms. [S.]’s associates who also participate. (page 21)

Without lengthy and thorough addressing of her drug and alcohol use, Ms. [S.] is likely not going to be able to access necessary or helpful community activities for [C.] or other children in her care, due to lowered motivation and fear of community reports about her drug use and child care patterns. Even after treatment, Ms. [S.] may be at risk of relapse, as persons with serious drug and alcohol problems are, and would require significant community monitoring by C.A.S. and other agencies in the community. Ms. [S.] began explaining to the assessor how one went about avoiding detection of drug use during pregnancy, and then stopped herself, saying, “Never mind, I don’t need to tell all my secrets”. (page 33)

[40] The evidence shows that Ms. S. recovered well considering the magnitude of her injuries sustained in the motor vehicle accident. Dr. Sudermann confirms that Ms. S. does have some residual issues “including much reduced speed of handwriting and note taking”; further, Ms. S. at times becomes “shaky” having trembling in her hands (page 11).

[41] Although Dr. Sudermann noted that Ms. S. complains of memory problems, for example forgetting appointments, Dr. Sudermann concluded that it was difficult to ascertain to what extent these symptoms may be related to Ms. S.’s drug use rather than her injuries. It was Ms. M.’s evidence that Ms. S.’s accident-related symptoms over the years had not affected Ms. S.’s memory; Ms. M. observed that Ms. S.’s memory problems started “a little over a year ago” and Ms. M. raised a concern as to whether Ms. S.’s memory problems were related to her drug use.

[42] I accept Dr. Sudermann’s conclusion that the “Clinical Assessment of Depression” questionnaire completed by Ms. S. during the assessment produced results indicating that Ms. S. is experiencing “significant symptoms of depression, anxiety, and cognitive and physical fatigue at present” (page 22).

[43] Dr. Sudermann’s assessment includes that Ms. S. has expressed suicidal ideation.

[44] According to Ms. S.’s psychiatric records filed as exhibits, a Form 1 pursuant to the Mental Health Act was signed by a physician on November 21, 2016 to have Ms. S. detained for a psychiatric examination. The physician signing this report indicated that the physician had reasonable cause to believe that Ms. S. has threatened or is threatening to cause bodily harm to herself and has behaved or is behaving violently towards another person. The physician observed that Ms. S. carried a rope, that she wanted to stab her ex-boyfriend and that Ms. S. “endorses depression for months.” The physician was of the opinion Ms. S. was suffering from a mental disorder of a nature or quality that will result in serious bodily to herself or serious bodily harm to another person.

[45] In her assessment, Dr. Sudermann noted Ms. S.’s agreement that when she becomes sober and is not intoxicated that her bad memories and feelings of sadness, anger, guilt and many other negative feelings tend to overwhelm her. Dr. Sudermann also opined that if Ms. S. began to address her addictions issue seriously then her feelings of depression may become more pronounced because the difficulties that she has had in her life would become more in focus for her without the distraction of feeling “high.” Dr. Sudermann recommended that Ms. S. likely would benefit from a coordinated treatment program that addresses both addictions and mental health (pages 22-23).

[46] The evidence raises serious issues concerning Ms. S.’s poor choice of partners and this includes her conflict-laden and violent relationship with Mr. D.

[47] In order to assist Ms. S. in improving parenting skills, the Society arranged for Ms. S. to take the Best Beginnings program at the Society. This program is facilitated by Anna Gavin (“Ms. Gavin”) who is a case manager with the Family Visiting Program. Ms. Gavin is employed by the Society.

[48] The Best Beginnings report that was appended to Ms. Gavin’s affidavit indicates that the Best Beginnings program is a group format parenting program. It is designed to teach participants basic infant care best practices and “Circle of Security” parenting “to facilitate repairing the ruptured relationship” when children are apprehended from their caregivers.

[49] It was Ms. Gavin’s evidence that Ms. S. attended 9 of 14 sessions in the Best Beginnings program. Ms. Gavin identified a number of concerns regarding Ms. S.’s participation in the Best Beginnings program which, I find, are accurately summarized by Dr. Sudermann:

Ms. Gavin noted in her report to the assessor that Ms. [S.] appeared to have great difficulty understanding and implementing the attachment based Circle of Security concepts and practices which form a significant part of the [Best] Beginnings programme. Ms. Gavin also noted that Ms. [S.]’s ability to focus on and attend to [C.] was variable, and that at times she did not respond appropriately to implement soothing and comforting strategies with [C.]. (page 28)

[50] Ms. S. deposed that she had “graduated” from both the Best Beginnings and Building Families programs. As to the latter, Ms. S. attached a certificate of attendance confirming she had attended 13 of 22 sessions; this program was in 2018 from January 17 to June 17.

[51] A report from Merrymount dated May 17, 2018 confirmed, as at that time, that Ms. S. had attended 12 of 18 sessions of the Building Families program. Importantly, on the dates that Ms. S. did attend, she was described as mostly arriving late, sometimes being one to two hours late for the three hour program and, on several occasions, Ms. S. was observed with her head down on the table or Ms. S. was observed slumped in a chair, appearing to be sleeping for most of session.

[52] In relation to her supervised access visits, Ms. S. missed more than one-third of scheduled visits according to the evidence of Society worker Gorett Salvador, who supervised access visits from June 9, 2017 to January 26, 2018. During this period, Ms. S. attended 39 of 63 visits. For a number of the missed visits, Ms. S. failed to call ahead, resulting in the child being brought to the visitation centre only to be returned to the foster home. While there were some positive aspects to the visits, overall the Society evidence regarding the visits was concerning.

[53] While Ms. S. was described as being happy and excited to see the child, it was observed that the child would often come to the visit happy and content but would leave distraught.

[54] A host of issues was observed by the access supervisor: Ms. S. was unable consistently to read the child’s cues, often leading to the child being frustrated; Ms. S. lacked insight as to her behaviour and its potential long-term effects on the child; during visits, Ms. S. focused on her own needs rather than the child’s needs; Ms. S.’s developmental expectations of the child were not age appropriate and this, at times, posed safety risks for the child.

[55] In relation to criminal matters, during the assessment process, Ms. S. was on probation for one year apparently in relation to a criminal property offence. In late 2018, Ms. S. was involved in an altercation with Mr. D. that resulted in an assault charge against Ms. S. As discussed in more detail below, there was another incident between Ms. S. and Mr. D. that let to criminal charges against Mr. D.

[56] Dr. Sudermann expressed a significant concern regarding the risk of placing a child in Ms. S.’s care. I accept Dr. Sudermann’s evidence as follows:

With regard to Ms. [S.], the biggest risk factor with regard to children would be that she would neglect the child or children in her care, due to the patterns that have been documented with regard to her substance use, impulsivity and poor choice of associates and risky activities. The risk of child neglect and child injury and poor development via neglect is considered very high by the assessor in Ms. [S.]’s current mode of functioning. (page 31)

[57] I find on the evidence that Ms. S. continues to suffer from chronic and untreated substance abuse. She has led, and continues to lead, a chaotic lifestyle and Ms. S. is unable to meet her own needs, including housing.

[58] Ms. S. displays limited insight in understanding her own personal challenges; she has a poor understanding of the child’s needs and Ms. S. has limited parenting skills as demonstrated during access visits and at the Best Beginnings program.

[59] Ms. S. has little ability, and will struggle, to understand and meet the needs of the child. Placement of the child in Ms. S.’s care would expose the child to serious risk of harm and neglect.

Mr. D. – The Father

[60] In addition to the child, C., who is the subject of the current proceeding, Mr. D. deposed that he has three other children, ages 13, 14 and 23. There are three different mothers for these children.

[61] Mr. D. deposes that he has not had “too much contact” with his middle child; for this he blames the mother, M.V. (“Ms. V.”), for not following the access order. Mr. D. otherwise deposes that he has a “good relationship” with all of his children and that he expects to have a good relationship with the child C. once the Society permits Mr. D. to “resume access” to the child.

[62] There has been no evidence filed by Mr. D. corroborating that he has a good relationship with his three older children. I place little weight on this evidence. Further, the reasons below discuss why there was no information obtained by the assessor from some of the children’s mothers as to Mr. D.’s relationship with those children.

[63] Mr. D. has an extensive criminal record that he has attached as an exhibit, which was generated on February 15, 2017; the criminal record is dealt with in more detail later in these reasons.

[64] As noted earlier, Mr. D. and the paternal grandmother have no relationship with the child, only having seen him soon after he was born.

[65] Mr. D. blames the Society for the fact that he has only had one visit with the child, stating that this was “not by my choice.”

[66] Further, Mr. D. raises the issue that the delay in the paternity testing has contributed to his lack of access.

[67] I find that Mr. D.’s reasons for not having access with the child are not persuasive.

[68] There is substantial and credible Society evidence describing multiple unsuccessful attempts to contact, and meet with, Mr. D. This included attempts to arrange supervised access between Mr. D. and the child.

[69] Although Society worker Ms. Meunier had carriage of this matter since late September 2017, it was her evidence that she was unable to meet personally with Mr. D. until April 18, 2018, and that this was despite much effort on her part to connect with Mr. D., including writing a letter to him dated December 19, 2017, asking to meet with Mr. D. and providing her telephone and email contact information.

[70] There is no doubt that Mr. D. was avoidant and uncooperative with the Society. The DNA results confirming Mr. D.’s paternity became available in November 2017; hence, any suggestion by Mr. D. that he was waiting for the test results prior to arranging access are not credible; Mr. D. fails to offer any reasonable explanation as to why he did not pursue access after November 2017.

[71] Also, there was no condition being imposed by the Society that Mr. D. should wait for the paternity test results prior to having supervised access.

[72] For example, after Mr. D. had his only visit with the child near the end of March 2017, a further supervised visit was arranged by Society worker Manon Bles for April 4, 2017, which Mr. D. cancelled stating he was not feeling well.

[73] Society worker Manon Bles then attempted to contact Mr. D. by phone on April 6, 18 and 26 and, on each occasion, was unsuccessful and could not leave a message as the voice mailbox was full; instead, the Society worker forwarded a letter dated April 26, 2017 to Mr. D. containing the Society worker’s contact information and asking Mr. D. to contact the Society worker.

[74] Dr. Sudermann found it “highly unusual” that Mr. D. had not established access visits with the child despite having signed and filed an answer and plan of care in July 2017 to have the child placed in his custody. Dr. Sudermann stated:

When asked about this situation of not having arranged access, Mr. [D.] told the assessor he was “patiently waiting” for a call from a C.A.S. worker, but he did not know the name of the worker. The assessor concluded that Mr. [D.] is feeling hesitant or ambivalent about the prospect of forming an attachment with [C.] and/or does not really plan to parent [C.] personally. The assessor felt that Mr. [D.] may primarily be interested in the relationship with Ms. [S.], and he may see obtaining care of [C.] as a way to ensure a future relationship of some type with Ms. [S.] [my emphasis] (page 41)

[75] I accept Dr. Sudermann’s evidence as to Mr. D.’s statement to her that he was “patiently waiting” to be called and did not know the name of the worker. That excuse, I find, proffered by Mr. D. is most unconvincing considering the Society evidence, which I accept, regarding multiple efforts to contact Mr. D. and his failure to respond.

[76] Mr. D.’s housing situation appears to be quite obscure. He reported to Dr. Sudermann that he was currently living at a specific address with friends, but when Dr. Sudermann attempted to arrange a home visit, Mr. D. declined, telling Dr. Sudermann that he was only at the address to store belongings and that he was “moving shortly” (page 39).

[77] In his affidavit sworn June 14, 2018, Mr. D. does not meaningfully address his residence situation. He describes his “plan” for the child to live with him. Then, at paragraph 41, Mr. D., as part of his plan, poses the question as to “where will the child live?” The answer: “with me.” There is no reliable evidence before the court that Mr. D. has procured accommodation that would be suitable for, and would meet, the child’s needs.

[78] A significant concern discussed by Dr. Sudermann is Mr. D.’s propensity for violence, including partner abuse.

[79] Starting in April 2003 up to and including June 2009, the RCMP criminal record filed by Mr. D. shows that Mr. D. was convicted of 24 criminal offences. The most serious convictions occurred in January 30, 2009; on that date, Mr. D. was convicted of attempted murder, uttering threats and possession of a weapon. His sentence included six years’ incarceration.

[80] Mr. D.’s criminal record also included a conviction of assaulting a police officer and another conviction of uttering threats.

[81] Mr. D.’s criminal record includes ten convictions that relate to Mr. D.’s failure to comply with court orders or attending court as required. Specifically, those ten convictions include failure to attend court, being unlawfully at large, disobeying an order of the court (s. 127(1) of the Criminal Code) and the balance of those convictions are either failure to comply with a recognizance or breach of probation.

[82] While serving his six year sentence, Mr. D. was released to stay in a half-way house, but ran into problems when he began to engage in a conflictual relationship with one of his former partners, Ms. V.

[83] Despite programming that Mr. D. had attended in federal prison, he engaged in a conflictual relationship with Ms. S.

[84] In February 2017, Mr. D., after an altercation at a hotel, was charged with assault and mischief, the latter relating to breaking a window on Ms. S.’s truck. In March 2018, according to Mr. D., these charges were dealt with, whereby Mr. D. entered a guilty plea to the mischief charge and the assault charge was withdrawn.

[85] When Mr. D. did meet with Ms. Meunier for the first time on April 18, 2018, he told her that he was serving an intermittent custodial sentence on weekends. He also advised that he was required to participate in “Changing Ways’ Partner Assault Response (PAR) program.” It appears from the evidence that the intermittent sentence related to a breach of recognizance when Mr. D. was released on the charges laid in the February 2017 occurrence; and, further, it appears that probation was part of Mr. D.’s sentence on the February 2017 charges.

[86] Regarding the February 2017 occurrence, Mr. D. minimized his conduct that resulted in breaking the glass on Ms. S.’s vehicle. I accept Dr. Sudermann’s evidence as to the following description given by Mr. D.:

Mr. [D.], when asked about the circumstances of his arrest while with Ms. [S.] at a motel on February 14/15, 2017, during the time Ms. [S.] should have been in hospital, he gave an extremely long (hour-long), circumlocutious, convoluted tale focusing on how he had been mistreated by, and was in a conflict with, the hotel manager prior to the incident with Ms. [S.] He denied being angry with Ms. [S.], and said he only “tapped” on her window or windshield, and that it must have been old, to shatter like it did. He said he himself called police, and was not guilty. However, he said he pled guilty to a charge related to damage to property as this was recommended by his lawyer. (page 36)

[87] Mr. D., in his evidence, fails to address the police records filed by the Society. The police records indicate that there were hotel cameras that captured the interaction between Mr. D. and Ms. S. The investigating officer viewed the video and observed Mr. D. “blatantly punch” the passenger’s side window of Ms. S.’s pick-up truck and the officer further observed Mr. D. “cock his arm back and forcefully strike the window.” No objection by Mr. D. was taken to this police record, which is admissible as a business record.

[88] Any suggestion by Mr. D. that he “tapped” the window is inconsistent not only with the description of the video in the police records, but with the fact that Mr. D. was convicted of the charge. I am not disposed to believe the gist of Mr. D.’s evidence to the effect that he was innocent but still pled guilty.

[89] In support of his position that a trial was necessary, Mr. D. deposed that the assessor did not interview B.L. and L.B., two of the mothers of his older children. This evidence, I find, is disingenuous.

[90] I accept Dr. Sudermann’s evidence regarding Ms. B.L. and Ms. L.B.:

Mr. [D.] reports that he now has good relationships with two of the three mothers of his three daughters, but although signing consents to two of these women, Ms. [B.L.], mother of [K.], and Ms. [L.B.], he never did supply telephone numbers for them or other contact information. This is significant as Mr. [D.] did have issues of conflict and family violence with partners, including Ms. [L.B.], in the past. (page 39)

[91] I accept Dr. Sudermann’s conclusion as to the risk posed by Mr. D. in exposing a child to domestic conflict and violence:

Mr. [D.] does have a significant, repeated record with regard to abuse of female partners, the mothers of at least two of his children. He also has a conviction for attempted murder, involving a severe attack with a weapon on a male associate, resulting in very severe injuries on that person. These factors are strong risk factors for future risk for children in his care. At minimum, any child in his care would be at greatly increased risk of witnessing woman abuse and family violence. This is especially true since Mr. [D.] has had a re-offense within the past year, involving Ms. [S.] and then associating with Ms. [S.] against a Court ordered bail condition. (page 42)

V.D. – The Paternal Grandmother

[92] The Society determined that it would not continue to seek completion of a kinship assessment regarding the paternal grandmother as a result of Dr. Sudermann’s recommendations contained in the assessment report.

[93] In his affidavit, Mr. D. makes only a cursory reference to his mother (the paternal grandmother). He fails to acknowledge in any meaningful way that his mother also was the subject of Dr. Sudermann’s assessment as a potential caregiver for the child.

[94] Given the dearth of evidence presented by Mr. D. regarding his mother, and the lack of any affidavit from her, the picture that emerges regarding the paternal grandmother comes primarily from the assessment report.

[95] The paternal grandmother works fulltime in a retirement home. She works from 11:45 a.m. to 7:45 p.m. with two days off during the week and with the days off often not occurring on weekends.

[96] As discussed earlier, the paternal grandmother, after seeing the child shortly after his birth, has not seen the child afterwards and has no relationship with the child.

[97] The paternal grandmother was very reticent to provide any information about her health and she declined to sign a release to her family physician; such a release is standard practice according to Dr. Sudermann. In refusing to sign the consent, Dr. Sudermann described that the paternal grandmother became quite angry. Mr. D. was present during the “outburst” and later apologized to Dr. Sudermann for his mother’s behaviour.

[98] Dr. Sudermann’s evidence included the following:

Ms. [V.D.] appeared to be angry and defensive and somewhat passive-aggressive during much of her assessment interviews with the assessor. The assessor found it unusually difficult to establish rapport with her. I don’t believe she has any known police charges or criminal record, at least according to her own report to the assessor. The assessor could see her having a temper at home, and having less than optimal conflict resolution skills. (page 44)

[99] The paternal grandmother lives in a two-bedroom apartment with her daughter, L., who was age 22 at the time of the assessment. It was Dr. Sudermann’s evidence that the paternal grandmother was “very reluctant” to permit Dr. Sudermann to have a home visit “to view the home environment.” When a visit finally was arranged, Dr. Sudermann described the apartment as being “in complete disarray” although the daughter’s room was observed to be “well organized.”

[100] It was Dr. Sudermann’s evidence that the paternal grandmother was “very reluctant” to answer questions about Mr. D., and that she “seemed very reluctant” to recognize any of Mr. D.’s issues; the paternal grandmother did not believe that Mr. D. could ever be a danger to a child (page 46).

[101] Dr. Sudermann gave the following evidence about whether the paternal grandmother had discussed with Mr. D. why he had failed to establish access visits with the child:

When asked by the assessor whether or not she had spoken to [R.] about why he was not following through with establishing visits to [C.], Ms. [D.] did say that she did once, and he stated he missed an appointment with a worker at CAS in February because he had been arrested. Ms. [D.] “kicked [R.] out” at that time. (page 46)

[102] Dr. Sudermann noted that a concern regarding the paternal grandmother’s potential care of the child is that she seems afraid to displease Mr. D. and “might fail to protect the child” from any risks posed by Mr. D. Dr. Sudermann opined that it is likely that the maternal grandmother “would not be forthcoming” if any issues arise while the child would be in her care (page 50).

[103] Regarding the issue of attachment, it was Dr. Sudermann’s evidence that the paternal grandmother’s care of the child would consist of a “patchwork” of caregivers and that the paternal grandmother views any placement with her as a temporary measure. Dr. Sudermann states:

The assessor is also concerned that Ms. [V.D.] would not be able to form a secure attachment with [C.], should he be placed with her, and that [C.]’s care in his ostensible placement with her would consist of a patchwork of various caregivers. This is not sufficient for a child, and would not give a child a reasonable chance for normal development, let alone optimal development. Also, Ms. [V.D.] sees [C.]’s placement with her as a temporary measure, as she strongly hopes that “[R.] and [A.] will get their act together”. The assessor believes she has not thought through the potential issues of [C.] being placed with her, and that [C.] would suffer poor care and very likely be re-apprehended if placed with her, leading to further disruption for him. (pages 50-51)

[104] I accept Dr. Sudermann’s evidence, as discussed above, in relation to the paternal grandmother and further I accept the opinions expressed by Dr. Sudermann and the issues and concerns identified by Dr. Sudermann.

The Child

[105] There is no dispute regarding Ms. Meunier’s evidence summarizing the situation regarding the child.

[106] The child was moved to his current foster home in February 2018. Ms. Meunier’s evidence is that the child has settled well into the home and there are no issues. The child is described as being developmentally on target for his corrected age. Ms. Meunier describes C. as being healthy and active and meeting his developmental milestones. The foster parents have described the child as easygoing and easily consoled when upset.

[107] An access visit was scheduled between the child and J. and was attended by the child’s great aunt, Ms. M.

[108] The evidence from Ms. Meunier is that the foster parents have been provided with Ms. M.’s contact information and that the foster parents have indicated a willingness to have ongoing contact with them should C. be adopted by them.

Is This a Proper Case to Proceed by Summary Judgment?

A. Rule 16

[109] Rule 16 of the Family Law Rules, O. Reg. 114/99 governs motions for summary judgment. The relevant provisions of r. 16 are:

WHEN AVAILABLE

16. (1) 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.

EVIDENCE REQUIRED

(4) 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.

EVIDENCE OF RESPONDING PARTY

(4.1) 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.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) 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.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6.1) 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.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) 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.

B. The Proper Approach on a Motion for Summary Judgment

[110] On a motion for summary judgment, the court is required to ascertain whether there is a genuine issue requiring a trial.

[111] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada explained what is required to determine that there is no genuine issue requiring a trial, at para. 49:

49 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.

[112] The approach on a motion for summary judgment was explained in Hryniak, at para. 66:

66 On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, 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.

[113] Although the reference in Hryniak, at para. 66, is to r. 20.04 [3] of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, this analysis applies to a motion for summary judgment under r. 16 of the Family Law Rules given the similar wording.

[114] The Society and Mr. D. refer to “pre-Hryniak” cases in discussing the principles applicable on a motion for summary judgment.

[115] Reliance on pre-Hryniak cases on a motion for summary judgment was disapproved by the Divisional Court in Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783, 2018 CarswellOnt 7160 (Div. Ct.), a decision not referred to by the parties in the case at bar.

[116] Kawartha-Haliburton was a case where Crown wardship with no access was ordered on a motion for summary judgment. The appeal related only to the denial of access to the mother.

[117] In Kawartha-Haliburton, the court stated:

36 The parties placed before the motion judge a number of decisions concerning summary judgment in the child protection context that appear to be premised on a pre-2014 understanding of summary judgment. This led to some confusion as to the applicable legal tests and the applicable burdens of proof. The confusion continued before this court with each of the parties arguing in their factums and orally about who has the burden to show that they will likely succeed at trial or that the other cannot possibly succeed at trial. The answer is no one.

[118] There was specific reference in Kawartha-Haliburton as to the applicability of paras. 49 and 66 as discussed in Hryniak: see Kawartha-Haliburton, paras. 42 and 44.

[119] The court in Kawartha-Haliburton concluded as follows regarding the error that was made:

45 At para. 43 of the decision below, the judge was misdirected by the pre-Hryniak case law submitted by the parties that dictated a consideration of likely trial outcomes as the determinant of whether summary judgment ought to be available. He considered whether it was "plain and obvious that the action cannot succeed" and whether there was "no realistic possibility of an outcome other than that as sought by the applicant." This led the parties before this court into a debate over which party has the burden to prove the likely trial outcome - the society, on which Rule 16 (4) places a burden to show that there is no genuine issue requiring a trial; or M.W. who bears the burden under s. 59 (2.1) (a) of the CFSA to prove that she and the children have beneficial and meaningful relationships.

46 As a result, the judge never asked the key question of whether it was in the interest of justice for him to resolve the case summarily. To do so, he was required to consider whether the process allows him to make the necessary findings of fact, to apply the law to the facts, and is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow him to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure?

47 In asking the wrong question, the judge set out the wrong legal test for determining whether there is a serious issue requiring a trial. That is an error of law that is not subject to deference in this court as discussed above. To the extent that the case law relied upon at para. 43 of the judge's reasons and in the parties' respective factums state that the test for summary judgment in a child protection matter turns on an assessment of whether the case has a very strong likelihood of success at trial, those cases are not good law after Hryniak and should no longer be relied upon for that purpose. Rather, the correct approach is set out in Hryniak, as discussed, for example in G. (A.), above and in Children's Aid Society of Ottawa v. C. (I.), 2016 ONSC 4792 (Ont. S.C.J.) at paras. 14 to 16 and 64 to 65, affirmed, 2017 ONSC 6935. [footnotes omitted]

C. Is Summary Judgment Appropriate?

[120] The material facts in the case at bar are not in dispute.

[121] Despite r. 16(4.1), neither respondent tendered any reliable or persuasive evidence to contradict either the Society’s evidence in relation to material facts or Dr. Sudermann’s conclusions and recommendations in the assessment report.

[122] I am satisfied that a fair and just determination on the merits can be made on this motion for summary judgment and that this process is a timely, affordable and proportionate procedure. The determination can be made on the evidence before the court utilizing the powers in r. 16(6.1) but without the need to resort to oral evidence pursuant to r. 16(6.2).

[123] I find there is no genuine issue requiring a trial.

[124] In his submissions, Mr. D. raised an issue as to the propriety of using hearsay evidence on a motion for summary judgment, relying in part on Children’s Aid Society of Ottawa v. J.B., 2016 ONSC 2757 (Ont. S.C.J.), a child protection case where the society sought Crown wardship on a motion for summary judgment. In that case, V.J. MacKinnon J. states:

15 In my view the FLRs do not supplant the starting point of the exclusionary common law rule that hearsay is inadmissible, but can be admitted if the twin requirements of necessity and reliability are met. To the extent that G. (O.) and K. (A.) suggest that the only threshold consideration is reliability, I disagree.

16 Less important or undisputed facts may be established in appropriate circumstances by admissible hearsay, but I do not agree with the articulation, "where there is no evidence provided by the respondent to dispute the allegation in the first place." The problem with that articulation is that there will not be evidence from the respondent to the motion for summary judgment in the "first place". The respondent will not be delivering any evidence until after the moving party has delivered its materials. I disagree with the submission made to me that the Society as moving party may tender whatever hearsay evidence it sees fit, and then wait to see if the respondent disputes it. Is it fair to expect a respondent to dispute inadmissible hearsay? If the respondent did, would the Society then expect to be able to provide first hand evidence by way of reply?

17 It seems clear to me that both questions are properly answered, no.

18 I agree with Justice Sherr where he stated in Children's Aid Society of Toronto v. B. (B.), 2012 ONCJ 646 (Ont. C.J.):

[25] My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination.

[125] Rule 16(5) does permit hearsay evidence on a motion for summary judgment.

[126] I would, with respect, have some concern with the principle that a court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. That prohibition is somewhat overly broad, in my view, as it has the potential of overriding or limiting the intent of r. 16(5).

[127] In Catholic Children’s Aid Society of Toronto v. N.B., 2013 ONCA 472 (Ont. C.A.), relied on by the Society, the Court of Appeal for Ontario in a child protection case stated that under the Family Law Rules the admission of hearsay evidence is not prohibited on a summary judgment motion: para. 2.

[128] In any event, in the case at bar, any use of hearsay evidence was not in relation to material facts, but rather was confined, at most, to less important facts.

Statutory Findings and Protection Finding

Statutory Findings

[129] The following findings are made pursuant to s. 90(2) of the CYFSA:

a) the child’s name is C.M.D., born ..., 2017; b) the child is not a First Nations, Inuk or Métis child; and c) the child was removed from a hospital in London, Ontario.

Protection Finding

[130] The evidence supporting a finding that the child is in need of protection is significant. The child was in need of protection at the time of birth and on a continuous basis throughout this proceeding.

[131] I find the child to be in need of protection pursuant to ss. 74(2)(b)(i) and 74(2)(b)(ii).

Disposition

[132] When making a disposition pursuant to s. 101 of the CYFSA, the court is required to do so in the child’s best interests.

[133] The relevant portions of s. 74(3), which set out the factors that a court is to consider when making a determination in a child’s best interests, are as follows:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(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;

(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.

[134] While all the foregoing factors listed in s. 74(3)(a) and (c) have been considered, the discussion below focusses on the factors in s. 74(3)(c) that are most relevant.

[135] In relation to clauses (i) and (ii), the child is in good health and meeting all milestones; no special needs are identified.

[136] Regarding clauses (v) and (ix), the child has been in Society care since birth and in the current foster home since February 2018. Given the length of time that the child has been in care, interim society care is not an option. Considering the passage of time, the disposition must reflect a result that without delay promotes the child being in a secure place as a member of a family, with minimal opportunity for that objective to be disrupted.

[137] Considering clause (vi), the child has no relationship with Mr. D., the paternal grandmother or any other member of the extended paternal family. The evidence supports a conclusion, which I make, that Mr. D., of his own volition, rebuffed the Society’s commendable efforts to institute access visits.

[138] While Ms. S. has made efforts to attend access, the evidence demonstrates that Ms. S. has minimal emotional ties with the child.

[139] The Society and Ms. M., the child’s maternal aunt, have acted responsibly and in furtherance of the child’s best interests by permitting access between the child and his half-sibling J.

[140] A consideration of clause (vii) requires the court to take into account the child’s current placement in a secure foster home where the child is doing well and meeting developmental milestones; any plan that disrupts the status quo must be evaluated and the likelihood of failure must be assessed.

[141] Clauses (viii), (x) and (xi) are properly considered together.

[142] Mr. D.’s plan lacks an air of reality. He has failed to implement even the most rudimentary component of any child-focussed plan of care – he has no accommodation suitable for the child and he has no relationship with the child.

[143] Mr. D.’s substantial criminal record and his history of violence, including domestic violence, are serious concerns that place the child at significant risk of exposure to violence.

[144] Any placement of the child with Mr. D. would require a lengthy supervision order, which would have a substantial potential of failure and re-apprehension of the child. Mr. D.’s numerous criminal convictions for breach of court orders belie any reasonable prospect that Mr. D. would comply with conditions contained in a supervision order.

[145] Mr. D.’s evidence that he apparently has a good relationship with some of his older children and with two of the mothers of his older children merits little weight given Dr. Sudermann’s evidence that Mr. D. failed to provide contact information for the two mothers.

[146] In relation to the paternal grandmother, there is no articulation clearly what her plan is; the best that can be gleaned from the evidence is that the paternal grandmother views any placement of the child with her as temporary, premised on the paternal grandmother’s unfeasible hope that Ms. S. and Mr. D. will resolve their differences.

[147] The paternal grandmother presented as emotionally volatile during the assessment process; she was uncooperative with Dr. Sudermann, refusing to provide a consent for a release of medical information. If placed in her care, the child would be subjected to a bricolage of caregivers. There is a palpable risk that the paternal grandmother would not be able to protect the child from exposure to Mr. D. and potentially Ms. S.

[148] In relation to Ms. S., her inability to care for herself, her untreated substance abuse issues, her dysfunctional, high-risk lifestyle, her inability to maintain a stable residence and her inability to care for a child have been discussed earlier in these reasons.

[149] It is not an option to place the child in Ms. S.’s care pursuant to a supervision order. Ms. S. has failed to address her own issues in any meaningful way, including substance abuse. Placement of the child with Ms. S. pursuant to a supervision order would expose the child to unstable parenting, risk of harm, exposure to violence and almost certain re-apprehension.

[150] I find that it is in the child’s best interests to place the child in extended society care.

Access

[151] Where a child is placed in extended society care, the CYFSA provides that no access order shall be made or varied unless the court is satisfied that it would be in the child’s best interests to do so. Sections 105(5) and (6) provide:

When court may order access to child in extended society care

(5) 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.

Additional considerations for best interests test

(6) 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.

[152] In Children's Aid Society of London and Middlesex v. N.H., 2018 ONSC 1582 (Ont. S.C.J.), I stated, and adopt, the following in relation to “meaningful and beneficial”:

[264] The requirement for the relationship to be “beneficial and meaningful” was also contained in s. 59(2.1) (a) of the CFSA. In my view, the discussion in Children's Aid Society of Niagara Region v. C.(J.), 2007 ON SCDC 8919, [2007] O.J. No. 1058 (Ont. Div. Ct.), at para. 29, regarding the meaning of “beneficial and meaningful” under the previous s. 59(2.1) (a) would apply to s. 105(6) (a) of the CYFSA.

[265] The reference to best interests requires that a court “shall consider” the factors set out in s. 74(3) and the additional factors in s. 105(6)(a) and (b), but in relation to (b), only if the court considers it relevant. When considering best interests, the legislation does not ascribe greater weight to the factors in s. 105(6) as compared to the factors in s. 74(3): see Family and Children’s Services of Guelph & Wellington County v. A.I.S., 2018 ONCJ 410, at paras. 58-59.

[153] In relation to Mr. D. and the paternal grandmother, who have no relationship with the child, a consideration of the relevant factors in ss. 74(3)(c) and 105(6) (a) establishes that it is not in the child’s best interests to order access to either individual. An access order in favour of Mr. D. or the paternal grandmother would amount, from the child’s perspective, to introducing the child to strangers. This would undermine the child’s current stable placement. Access by Mr. D. carries with it the risk of exposing the child to violence, including especially domestic violence. Access by the paternal grandmother would expose the child to potential contact with Mr. D. and also Ms. S.

[154] Introducing the child, at this stage in his life, to Mr. D. and/or the paternal grandmother through an access order would not promote or further any definable goal related to the child’s best interests.

[155] In relation to Ms. S., I consider first whether the relationship between the child and Ms. S. is beneficial and meaningful to the child. While Ms. S. did attend a number of visits, she engaged with the child, at best, on a superficial basis.

[156] As discussed earlier in these reasons: the child was described as leaving some visits distraught; and a number of issues were observed by the access supervisor and by Ms. Gavin who facilitated the Best Beginnings program.

[157] I find that the relationship between Ms. S. and the child is not meaningful and beneficial to the child.

[158] Considering also the relevant factors in s. 74(3), access between Ms. S. and the child would be disruptive to the child’s current stable placement and, given the many issues identified earlier regarding Ms. S., would place the child at risk of harm.

[159] An access order between the child and Ms. S. is not in the child’s best interests.

Order

[160] For reasons set out above, the child, C.M.D., born …, 2017, is placed in extended society care with the Children's Aid Society of London and Middlesex.

“Justice Victor Mitrow” Justice Victor Mitrow

Released: December 14, 2018

Footnotes

[1] Ontario Regulation 157/18; s. 11(1): A proceeding commenced under Part III of the old Act but not concluded before the day this section comes into force is continued as a proceeding commenced under Part V of the Act.

[2] S. 54(6) of the CFSA provides: “The report of an assessment ordered under subsection (1) is evidence and is part of the court record of the proceeding.” The corresponding section in the CYFSA dealing with assessments is s. 98; s. 98(12) provides: “The report of an assessment ordered under subsection (1) is evidence and is part of the court record of the proceeding.”

[3] Subrules 20.04(2.1) and (2.2) provide as follows: (2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge 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.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.