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 NO.: FC-14-986-2

DATE: 2018/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF G.C.( DOB: […], 2018)

BETWEEN:

Children’s Aid Society Applicant

– and –

K. A.-D. (Mother) Respondent

T.D. (Father) Respondent

Brian Fisher, for the Applicant

Diana Aoun, for the Respondent Mother Huyen Tran, for the Respondent Father

HEARD: November 29, 2018

REASONS FOR JUDGMENT

blishen j.

Introduction

[1] On November 19, 2018 the Children’s Aid Society of Ottawa (the Society) filed a motion for summary judgment under Rule 16 of the Family Law Rules, O. Reg. 114/99 as am (FLRs) on a Protection Application filed March 13, 2018 regarding G.C. born […], 2018.

[2] The Society seeks:

1. A finding that the child, G.C. is a child in need of protection pursuant to 74 (2)(b)(i) and 74 (2)(b)(ii) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA);

2. Statutory findings for the child pursuant to Section 90 (2) of the CYFSA;

3. A Final Order that the child be placed in the Extended Society Care of the Children’s Aid Society of Ottawa without an order for access to either parent.

[3] The child has been in the care of the maternal grandparents since March 8, 2018 and under the terms and conditions of an interim without prejudice Supervision Order to the maternal grandparents since March 19, 2018

[4] The Society argues the evidence in support of the motion is overwhelming, credible and reliable and demonstrates there are no genuine issues requiring a trial of the Protection Application.

[5] The Society relied on eight Affidavits deposed by two Child Protection Workers, one former Child Protection Worker, an Adoption Kin Worker, a Child and Youth Counsellor who supervised the mother’s visits, and the maternal grandmother who, along with the maternal step grandfather, wishes to adopt G.C.

[6] The primary concern of the Society is the mother’s ongoing difficulty with drug addiction, specifically to opiates and cocaine. Although her difficulties with opiate addiction have continued for years, she has not attended a residential treatment program. In addition, when the application was filed, she had no permanent residence. The father was incarcerated at the time of G.C.’s birth with a release date of September 7, 2019. He has no relationship with his son.

[7] The mother, K.A.-D. filed an Answer. She consents to a finding that G.C. is in need of protection as outlined in the Society’s Notice of Motion but opposes the order sought for Extended Society Care and for no order as to access. Her Answer requests G.C. be placed with her subject to Society supervision. She did not file any Affidavit evidence on the summary judgment motion until the day the motion was argued when, on consent, she was permitted to file a brief affidavit with attached letters of support from her various service providers and workers. At the court’s request, she filed a further brief affidavit as to possible residential treatment. She argues she has made progress and should be given an opportunity to present a plan for the child at trial.

[8] The father, T.D., also filed an Answer. He too consents to a finding that the child is in need of protection but contests the order for Extended Society Care with no order for access. He requested an order that the child be placed in the care and custody of the maternal grandparents subject to Society supervision. On the motion for summary judgment, T.D. relied on an affidavit filed on consent on the day the motion was argued. Although he has been incarcerated since before the child was born and will not be released for approximately a year, he has completed programs and schooling while incarcerated and would like to have access upon his release.

Statutory Findings

[9] On May 9, 2018, K.A.-D. swore an Affidavit indicating G.C. was First Nations. Nothing was done with respect to service on or involvement by, the child’s band or First Nations community, prior to the hearing of the Summary Judgment Motion. At the court’s request, the Society provided an affidavit from the maternal grandmother sworn on November 30, 2018. D.C. indicates that, although the child identifies with a First Nation, he is not a member of a band. She indicates the biological maternal grandfather is half Native-American but of her four adult children, only the mother, K.A.-D. identifies as First Nations. There is no connection between the mother and a band or First Nations community.

[10] On the basis of the mother’s and maternal grandmother’s affidavits, I make the statutory findings as to the child’s name, date of birth, and parentage as per mother’s affidavit at Tab 7 of the Continuing Record.

[11] Although the mother identifies as First Nations, I find she has no connection with a Band or First Nations Community. The father does not identify as First Nations, Inuit or Metis.

Background

[12] The background facts are undisputed.

[13] The Society first became involved with K.A.-D. and T.D. just prior to the birth of their first child, E.D., on […], 2013. E.D. was born addicted to opiates. K.A.-D. had been using drugs throughout the pregnancy which necessitated the child going through withdrawal after birth. The mother and child went to reside with the maternal grandparents, D.C. and A.C., in Ottawa under a voluntary services agreement. At that time, the father, T.D., was incarcerated in London, Ontario.

[14] Many services were offered to the mother including: a public health nurse, Saint Mary’s outreach, one to one addiction counselling by Rideauwood at Saint Mary’s and a methadone program. It was recommended she attend the opiate program at the Royal Ottawa Hospital. Information regarding programs for residential treatment was provided.

[15] In February, 2014, the father was released from custody and began to reside in the maternal grandparent’s home with Ms. A.-D. Again a voluntary services agreement was negotiated with terms including: not being under the influence of drugs or alcohol in the home; participation in drug treatment and parenting education; random drug testing and a number of other conditions.

[16] Unfortunately, K.A.-D. continued using opiates during her time in the maternal grandparent’s home. In May, 2014, both parents left the home and resided in shelters. A protection application was filed. The Society requested placement of E.D. with the maternal grandparents. The mother attended visits but T.D. did not as he was again incarcerated for theft and trafficking in narcotics.

[17] The mother did not follow through with treatment for her drug addiction despite efforts and support by Rideauwood, a CMHA worker, Inner City Health and Sandy Hill Community Centre. K.A.-D. continued to use opiates. She did not have a fixed address and was homeless. Access was not regularly attended. T.D. continued to be incarcerated. Therefore, on October 20, 2014, a final order was made pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990. c.C.11, as am. (CFSA), finding E.D. a child in need of protection and placing him in the custody of his maternal grandparents under s. 57.1 of the CFSA, with access to the mother at the discretion of the maternal grandparents.

[18] K.A.-D. was charged with a number of offences (break and enters) and was in jail June 2015-January 2016 and April 2016-January 2017. The charges were subsequently dropped. T.D. was again incarcerated in July, 2017 for break and enters. As previously noted, his release is anticipated to be September, 2019.

[19] In 2017, prior to G.C.’s birth, the maternal grandparents adopted another grandchild, E.D. and G.C.’s cousin, M.

[20] G.C. was born […], 2018 and tested positive for opiates and cocaine. He was monitored for withdrawal and was placed on morphine.

[21] Although she was on a Managed Opioid Addiction Program (MOP), K.A.-D. continued to struggle with opiate addiction. She had been to the Royal Ottawa hospital and was on the waiting list for long-term treatment. Unfortunately she continued to be homeless and resided at the Shepherds of Good Hope from time to time. She had a Canadian Mental Health Association worker and Inner City Health to assist her.

[22] On March 1, 2018, K.A.-D. consented to placing G.C. with the maternal grandparents and he began to reside with them on March 8, 2018. The Society’s plan was to request an order of crown wardship based on the mother’s history. A Protection Application for crown wardship was filed on March 13, 2018. The maternal grandparents wished to present a permanent plan for G.C. through adoption.

[23] On March 19, 2018 Justice Linhares de Sousa made a temporary without prejudice order on consent, placing G.C. with the maternal grandparents under the terms and conditions of a temporary supervision order, with access to the mother at the discretion of the Society, a minimum of two times per week, to be increased if visits were consistent.

[24] K.A.-D. attended the visits permitted under the court order and met weekly with her CMHA worker. She signed an agreement with the Society that she would: 1. obtain housing, 2. attend her visits on time and regularly; 3. meet regularly with her social worker; 4. attend residential treatment for her drug addiction problems and 5. continue to address her mental health.

[25] On May 1, 2018, the mother filed an Answer requesting G.C. be returned to her care subject to Society supervision. She also requested access. Ms. A.-D. stated she understood she would have to complete a residential drug treatment program and deal with her addiction and mental health issues in order to properly care for G.C. She requested an opportunity to make positive changes in her life to enable G.C. to be placed in her care.

[26] It continued to be strongly recommended by the Society, as in the past with respect to E.D., that K.A.-D. attend residential treatment for her long standing, significant drug addiction. Although she had been on the waiting list for different residential treatment programs, more recently Women Kind in Hamilton, she has yet to attend any residential treatment.

[27] On May 25, 2018, the father filed an Answer requesting an order that G.C. remain in the care and custody of the maternal grandparents subject to Society supervision with access to him. In his Answer, T.D. indicated he was incarcerated with a statutory release date of September 7, 2019. He further noted that, after release, he will reside with other adult male offenders at Maison Decision House in Ottawa, at which point he would request access to his son. T.D. has never had any contact with G.C.

[28] In June 2018, K.A.-D. moved out of the Shepherds of Good Hope into her own bachelor apartment managed by the John Howard Society which was assessed by the Society as being clean and appropriate. She continued to be on the Managed Opioid Program (MOP) through Ottawa Inner City Health and to meet with her CMHA worker regarding her mental health issues.

[29] A letter from Dean Dewar, Case Manager at the John Howard Society of Ottawa dated June 28, 2018 indicated that since moving into her apartment through Carruthers Enhanced Supportive Housing, Ms. A.-D. has been providing others with peer support, “making meals for those who cannot, and has been nothing but kind to the people around her. K.A.-D. is also facilitating a self-care group within the residence. K.A.-D. has worked with her Case Manager closely and has been going to all of her appointments. K.A.-D. has been a valuable asset to the Carruthers community.”

[30] Her Housing Outreach Worker from CMHA noted in a letter dated June 27, 2018:

“Over the past few weeks, K.A.-D. has been thriving and has demonstrated her ability to access supports when needed, continue with attending her CAS visits on her own, maintain her housing independently as she is responsible for her own cleaning, grocery shopping, and paying bills, and has started working for the Shepherds of Good Hope 1-2 times a week.

Ms. A.-D. has shown herself to be a pleasant, hardworking, and a motivated individual with many goals especially as it relates to having her children back in her life. For the first time in many years, K.A.-D. has her own stable housing which will allow her to put good supports in place so that she can focus on treatment.”

[31] On June 28, 2018, a settlement conference was held after which, on consent, the mother’s access was changed to be at the Society’s discretion a minimum of three times per week for a minimum of one and a half hours per visit. The Society was to consider moving the visits to the mother’s residence and increasing the visits to two hours per visit. Ms. A.-D. was making significant progress.

[32] A further settlement conference was held on August 14, 2018. By that time Ms. A.-D. had been approved for ODSP and was expected to begin receiving benefits in September 2018.

[33] The settlement conference did not result in a resolution and trial dates were set for 10 days commencing February 25, 2019. A summary judgment motion was set for November 29, 2018.

[34] In September 2018, the Society worker became concerned that the mother was once again using opiates and/or cocaine and requested drug screens. K.A.-D. agreed to participate in drug screens. Initially, the results were not provided to the Society as the mother revoked her consent. When the Society ultimately obtained the results of drug testing done September 13, 2018, they were positive for crack cocaine. A test taken November 9, 2018 resulted in a positive screen for cocaine and morphine, which had not been prescribed. K.A.-D. acknowledges having a relapse this fall, despite her continued involvement with the MOP, supports through the John Howard Society, Carruthers Enhanced Supportive Housing, Inner City Health and her CMHA worker.

[35] K.A.-D. has been having access three times a week, twice at the Family Service Center for two hours per visit and once in her home for two hours. Unfortunately, particularly this fall, there have many missed and late visits. At times, the child has been transported and then returned to the foster home when his mother did not attend for the visit. As of October 9, 2018, K.A.-D. has been required to check-in prior to her visit. From October 1-November 6, 2018, of 13 possible visits, she only attended six.

[36] On visits, K.A.-D. is observed to be affectionate and polite. She gives G.C. lots of hugs and kisses and tells him she loves him. She has a good understanding of child development, asks appropriate questions and is comfortable with suggestions. G.C. appears content and comfortable on visits which he appears to enjoy. Unfortunately, the child and youth counsellor has recently noticed signs of K.A.-D. being under the influence of drugs on visits. As noted, the mother acknowledged a relapse.

[37] Ms. A.-D. is still on the waiting list for residential addiction treatment with Women Kind in Hamilton. She recently updated her Ontario Addictions Access and Referral Services (OAARS) assessment and scheduled a meeting for November 30, 2018 with the liaison worker, Steve Dorken to re-evaluate what other treatment centers might be available to her as soon as possible. She indicated a willingness to attend any treatment facility she can get into. The information regarding her attendance at OAARS and motivation for immediate residential treatment is confirmed by the affidavit of Child Protection Worker, Chantal Davis.

[38] G.C., who is now ten months old has been living with his maternal grandparents since shortly after his birth and has been under the terms and conditions of a interim without prejudice supervision order to his maternal grandparents since March 19, 2018, with access to his mother. There has never been any access to the father.

[39] G.C. is thriving in the care of his maternal grandparents who are managing well with three young children in their care, G.C., his 5 ½ year old brother E.D., and his cousin M. who has been adopted by the maternal grandparents.

[40] The maternal grandparents made it clear from the outset they do not consent to a custody order but wish to adopt G.C. and provide him with a permanent home. They are 100% committed to raising G.C. as their son with openness to his mother. They have completed all necessary steps and a home study for the purposes of adoption.

Law and Analysis

[41] The Society brings this motion pursuant to Rule 16 of the FLRs-the summary judgment rule which is available in child protection cases.

[42] The relevant sections of Rule 16 are as follows:

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. O. Reg. 114/99, r. 16 (1).

Available In Any Case Except Divorce

(2) 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. O. Reg. 114/99, r. 16 (2).

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. O. Reg. 114/99, r. 16 (4).

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. O. Reg. 91/03, s. 5.

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. O. Reg. 114/99, r. 16 (5).

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. O. Reg. 114/99, r. 16 (6).

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. O. Reg. 69/15, s. 5 (1).

Order Giving Directions

(9) 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). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

(10), (11) Revoked: O. Reg. 69/15, s. 5 (4).

[43] In Hryniak v. Mauldin, 2014 SCC 7,the Supreme Court of Canada set out a two stage process in determining whether summary judgment should be granted. The principles set out in Hryniak apply to child protection cases. See: Kawartha-Haliburton Children’s Aid Society v. M.W., 2018 ONSC 2783.

[44] The Supreme Court of Canada held that the court should first determine if there is a genuine issue requiring a trial based only on what is before the judge, without using the judge’s new fact finding powers set out in subrule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue requiring a trial, the judge may use the additional fact finding powers outlined in subrule 16 (6.1) to weigh evidence, evaluate credibility, draw inferences and possibly receive oral evidence on the motion.

[45] 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 the 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. (See Hryniak para. 49)

[46] The Divisional Court in Kawartha-Haliburton Children’s Aid Society v. M.W. set out the following:

a) Neither party has the onus of establishing who will succeed at trial. That is the wrong question. Pre-Hyrniak case law where courts examined whether a party has any reasonable chance of success no longer applies (paragraph 45).

b) The key question is whether it is in the interest of justice for the court to resolve the case summarily? To do so, the court is required to consider whether the process allows it to make the necessary findings of fact based on the facts pleaded, to apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure (par.46).

c) The summary judgment 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 (par. 43).

d) The burden of proof is on the party who moves for summary judgment. Sanzone v. Schechter, 2016 ONCA 566 at para. 30. Under Rule 16 (4) the moving party must “set out specific facts showing that there is no genuine issue requiring a trial.” The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hryniak (par. 48).

e) Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:

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.

(par. 49)

f) In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, 242 A.C.W.S. (3d) 794, affirmed 2014 ONCA 878, Corbett J. confirmed the continued applicability of the rules requiring the responding party to “put its best foot forward” or “lead trumps or risk losing”. Combined Air Mechanical Services v. Flesch, 2011 ONCA 764 at para 56; Bhakhri, v. Valentin, 2012 CarswellOnt 6667 (S.C.J.), para. 7; Pizza v. Gillespie (1990), 1990 4023 (ON SC). The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 at para. 30 (paragraph 50).

[47] As noted above, the Society relied on substantial affidavit evidence in arguing there are specific facts demonstrating no genuine issue requiring a trial with respect to a final disposition order of Extended Society Care pursuant to s. 101 of the CYFSA. It is further argued the undisputed facts demonstrate a trial is not required with respect to the Society’s request for no order for access, pursuant to s. 105 (5) of the CYFSA. The Society argued that the order for Extended Society Care and an order silent as to access, is in G.C.’s best interests as outlined under s. 74 (3) of the CYFSA.

[48] Although the summary judgment motion was set on August 22, 2018 and the parents were served with the Notion of Motion and supporting Affidavit evident on November 15, 2018, neither parent provided any responding evidence. On the day of the summary judgment motion, the mother requested leave to file a two paragraph affidavit with attached letters of support from June and August, 2018 and one from November, 2018. On consent, the affidavit was admitted. Similarly, on consent, the father was permitted to file a brief affidavit confirming he remains incarcerated until September, 2019 and would like to make a plan for access to his son once he is released. Neither parent disputes the facts outlined in the affidavit evidence of the Society.

[49] Given the most significant issue of concern to the Society is the mother’s long standing, ongoing addiction to opiates and her lack of residential treatment, at the court’s request, the mother and the child protection worker completed and filed brief affidavits updating the court as to the possibility of residential treatment. As previously noted, the mother has been on a waiting list for a treatment program in Hamilton but is now prepared to attend any available residential treatment program. There is no evidence as to the kind of program, its duration or where and when such a program may be available.

[50] I find it to be in the interests of justice to determine the Society’s request for Extended Society Care summarily. I am able to make the necessary findings of fact and to apply the law to the facts based on the comprehensive evidentiary record before me, without the need to use any expanded powers to weigh or to assess credibility and without the need for a trial. This process is a proportionate, more expeditious and less expensive means to achieve a just result. In addition, it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.

[51] I reach these conclusions for the following reasons.

[52] The possible dispositions available given that G.C. has been found to be a child in need of protection, are outlined under s. 101 (1) and s. 102 (1).

[53] Although the father requested a supervision order to the maternal grandparents in his Answer, on the summary judgment motion, his counsel argued an order for custody to the maternal grandparents would be appropriate and consistent with the previous order for custody of the older child E.D,. It is clear the maternal grandparents do not agree with a custody order. Section 102 (1) of the CYFSA indicates “the court may make an order granting custody of the child to one or more persons,…with the consent of the person or persons.” The evidence of the Society including the affidavit of the maternal grandmother, indicates that from the time G.C. was placed with the maternal grandparents, they indicated a desire to adopt him. It was on that basis that the maternal grandparents agreed G.C. would remain in their care. Given that the maternal grandparents must consent to a custody order, that disposition is not available.

[54] None of the parties argued that G.C. should be removed from the maternal grandparents care and placed in interim Society care. Therefore, the only possible dispositions available under s. 101 (1) of the CYFSA are a supervision order to the mother, a supervision order to the maternal grandparents or Extended Society Care.

[55] Considering the factors outlined under s. 74 (3) of the CYFSA with respect to a determination of what disposition would be in G.C.’s best interests, the evidence is overwhelming and undisputed that G.C.’s best interests will be served by an order of Extended Society Care.

[56] G.C. is ten months old and has been with his maternal grandparents since shortly after his birth. He is thriving in their care. His physical, mental and emotional needs are being met. G.C. resides with his 5 ½ year old brother E.C. and his cousin M. who was adopted by the maternal grandparents. His has an opportunity to maintain and build on his emotional ties to his brother and cousin as well as to his maternal grandparents.

[57] This risk of harm and degree of risk that resulted in E.D, being placed with his maternal grandparents over four years ago continues today. As with E.D., G.C. was born addicted to opiates and had to go through the process of withdrawal. Despite being placed on the Managed Opioid Addiction Program and having the assistance of the CMHA and Inner City Health worker, K.A.-D. continues to abuse opiates. Although she has obtained housing and letters of support from June and August 2018 indicate her progress in maintaining independent housing and her motivation, sadly Ms. A.-D.’s addiction to opiates has once again taken control of her life. She has relapsed and has no immediate or short-term prospects for residential treatment, despite the need for such treatment having been emphasized for over four years. G.C. needs and deserves stability, consistency and permanency which he can obtain by an order for Extended Society Care with a plan for adoption by his maternal grandparents.

[58] A child’s need for permanency planning within a timeframe sensitive to the particular child’s needs requires that the legal process not be used as strategy to allow a parent time to develop an ability to appropriately parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s love and desire to resume care for the child. It must be arguable from the parent’s evidence that he or she faces better prospects regarding the issues of concern than what existed at the time of the Society’s removal of the child from his or her care. See Children’s Aid Society of Toronto v. R.H.,2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.)

[59] Based on the evidence from the Child and Youth Counsellor and the Society Protection Worker, I find that K.A.-D.’s access with G.C. has been beneficial and meaningful to him. She is affectionate with G.C. and has a good understanding of child development. She asks appropriate questions and accepts suggestions. The visits are comfortable and G.C. appears to enjoy them. Unfortunately, she has been late and has missed many visits. She has recently relapsed and has appeared to be under the influence of drugs on some recent visits.

[60] T.D. has no relationship with G.C. He has been incarcerated since G.C.’s birth and has had no access to his son. There is no relationship to be maintained. Mr. T.D. has a history and pattern of criminal behaviour resulting in significant terms of incarceration. There is no genuine issue requiring trial with respect to any possible plan presented by T.D. In fact, his Affidavit simply states when he is released and has completed programming, he would like to have some access to his son. He is not presenting any other plan.

Conclusion

[61] I find the Society has established on a balance of probabilities a prima facie case for summary judgment with respect to an order of Extended Society Care and no order for access to the father. The responding parties have not met their onus of establishing a genuine issue requiring a trial with respect to those dispositions.

[62] However, I find the Society has not established on a balance of probabilities a prima facie case with respect to the issue of the mother’s access pursuant to s. 105 (5) and (6) of the CYFSA. If that matter cannot be resolved, a mini trial is to be held on that issue. Ms. A.-D. is to continue having access as per the order made at the settlement conference on June 28, 2018. It is hoped that she will attend her visits on time and in this way maintain and build on her relationship with her son.

[63] Given my decision on this summary judgment motion, the matter will be adjourned to January 8, 2019 at 10:00 a.m. for a combined settlement/ trial management conference on the issue of the mother’s access. If the matter is to proceed to a mini trial, it should be brief given the findings of fact and analysis provided on this motion.

Blishen J.

Released: December 13, 2018

COURT FILE NO.: FC-14-986-2

DATE: 2018/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF G.C.( DOB: […], 2018)

BETWEEN:

The Children’s Aid Society of Ottawa Applicant on the Motion

– and –

K. A.-D. (Mother) T.D. (Father) Respondents on the Motion

REASONS FOR JUDGMENT

Blishen J.

Released: December 13, 2018