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 Family Services Act, 2017 , which deals with the consequences of failure to comply, read as follows:

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

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

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

Court File and Parties

COURT FILE NO.: FC-16-170-5 DATE: 2019/07/08 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 H.M. (D.O.B. XX XX, 2019)

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – K.M. Respondent – and – A.T. Respondent

COUNSEL: Lois Boateng Amirikah, for the Applicant No one appearing for the Respondent, K.M. Cedric Nahum, for the Respondent, A.T.

HEARD: June 24, 2019

REASONS FOR DECISION

D. SUMMERS J.

Overview

[1] This is a motion for summary judgment brought by the Ottawa Children’s Aid Society (the Society) concerning the child, H., born XX XX, 2019. The Society asks the court to make the required statutory findings under s. 90(2) of the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA) and seeks an order that the child is in need of protection under section 74(2)(b) (risk of physical harm). The disposition sought is extended society care for purposes of adoption with access in the discretion of the Society in accordance with the child’s best interest under s. 101(1) and (9) of the CYFSA.

[2] The respondent mother, K.M., could not be located for service. An order dispensing with service was granted by Justice T. Engelking on May 2, 2019. The respondent father, A.T., filed an Answer and Plan of Care. It is bereft of detail. He took no other steps in this proceeding. He did not attend court appearances nor did he file any evidence on this motion.

[3] I read and rely on the following documents: The Protection Application, the Society’s Plan of Care, the father’s Answer and Plan of Care, and the affidavits of the Child Protection Worker, Josephine Parke, sworn February 19, 2019 and June 14, 2019.

[4] For the reasons that follow, I grant the Society’s motion for summary judgment, in part.

Background Facts

[5] The child, H. was born on XX XX, 2019. She was apprehended at birth.

[6] A temporary without prejudice order placing H. in the care of the Society was made by Justice T. Engelking on February 19, 2019. The order granted access to the parents at the discretion of the Society.

[7] The mother, K.M. has not seen the child since she left the hospital nor has she been in contact with the Society since the end of February 2019. The father, A.T. has not had any contact with the child.

[8] H. has been in the same foster home since her discharge from the hospital.

Issues to Be Determined

[9] The issues to be determined are:

1. The statutory findings for the child;
2. Is there a genuine issue requiring a trial to determine whether the child is in need of protection;
3. Is there a genuine issue requiring a trial to determine whether there is a disposition that is in the best interests of the child that is less intrusive than extended society care;
4. Is an order for access in the child’s best interests.

Issue No. 1 – The Statutory Findings

The Legal Framework

[10] Section 90 of the CYFSA states,

Child protection hearing

90 (1) Where an application is made under subsection 81 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 101.

Child’s name, age, etc.

(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child’s name and age;

(b) whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuit or Métis communities; and

(c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

[11] Neither parent completed an affidavit deposing to the child’s birth, parent, and indigenous status. The Society’s evidence in this regard is set out in paragraphs 32 to 44 of J. Parke’s affidavit sworn June 14, 2019.

[12] The Society learned of the child’s birth directly from the hospital on the day she was born. On the same day, the child protection worker met with the mother, K.M., who confirmed the birth information and advised of the child’s name.

[13] During the Society’s prior involvement with the parents and their three older children who are now all in extended society care, the mother, K.M., did not identify as a First Nations person or state a connection to a First Nations, Inuk or Metis community. In the protection application immediately preceding the current application, the father, A.T., said he was of indigenous heritage but did not identify membership with a particular Band or affiliation with a community.

[14] In absence of better evidence from A.T. in the previous proceeding, the Society undertook further investigation. They were unable to corroborate any indigenous heritage. They searched Society records and spoke with two of A.T.’s paternal relatives who confirmed there is no indigenous status on that side of the family. The Society also relies on judicial findings in prior protection applications where the court made extended society care orders for the parties’ older children, R., L., and D.

[15] A.T.’s counsel stated his belief that his client, A.T., has First Nations heritage and made two arguments. He said that the court should not take into account prior findings made under the previous legislation where the test was different. Here, I note that the last protection application concerning the child, D., was, in fact, determined under the CYFSA as required under the transitional provisions of the legislation. See: O. Reg. 157/18, s.11 (1). Moreover, s. 93 (1) (b) of the CYFSA states that the court may admit into evidence and consider, among other statements and reports, the findings or reasons for a decision in an earlier civil or criminal proceeding, if considered relevant by the court. See also: Children’s Aid Society of the Regional Municipality of Waterloo v. M. (A.), 2015 ONSC 2496. The decision concerning the child D. was made in April, 2019. I consider it relevant. In response to the absence of evidence from A.T., counsel submitted that it was open to the court to make no finding in relation to the child’s First Nation, Inuk or Metis status. I disagree. The court must make a finding. Section 90(2) of the CYFSA is clear. The court shall determine the child’s name, age, whether she is First Nations, Inuk or Metis and her location before she came into care before making a finding that the child is in need of protection.

[16] I have considered the legislation and the Society’s evidence. It is the only evidence before the court. I accept it and make the following findings:

(i) The child before the court is H. Her date of birth is XX XX, 2019. (ii) K.M. and A.T. are the child’s parents. (iii) H. is not a First Nations, Inuit or Metis child. (iv) When these proceedings began, H. ordinarily resided in Ottawa, Ontario. She was brought to a place of safety from the Ottawa General Hospital, in Ottawa, Ontario.

Issue No. 2 - Is there a genuine issue requiring a trial to determine whether the child is in need of protection?

The Legal Framework

[17] Rule 16 of the Family Law Rules, O. Reg. 114/99, as. am. (FLR’s), governs summary judgment motions. The rule includes child protection cases. The key sections of the rule as they relate to this motion are:

r. 16 (1) WHEN AVAILABLE - After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) AVAILABLE IN ANY CASE EXCEPT DIVORCE - A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

(4) EVIDENCE REQUIRED - The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) EVIDENCE OF RESPONDING PARTY - In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(5) EVIDENCE NOT FROM PERSONAL KNOWLEDGE - If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

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

(6.1) POWERS - In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

(6.2) ORAL EVIDENCE (MINI-TRIAL) - The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[18] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada said that on a summary judgment motion, the judge must first determine whether there is a genuine issue requiring a trial based only on the written evidence before her. If that evidence allows the court to make a fair and just determination on the merits of the motion, there will be no genuine issue. The summary judgment process must allow the judge to make the necessary findings of fact, apply the law to the facts, and be a proportionate, more expeditious and less expensive means to a just result. If, on the other hand, there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new fact-finding powers. Those powers may be used at the court’s discretion if doing so is consistent with the interests of justice. That will be so if their use will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[19] The Ontario Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, confirmed that the principles established in Hryniak apply to summary judgment motions in child protection cases but emphasized that fairness in child protection matters necessitates caution and consideration of the unique features of such cases including the best interests of the child.

Analysis

[20] To the extent that some of the evidence before the court is hearsay, I consider whether it should be admitted for the truth of its contents. Ms. Parke, the child protection worker, has been involved with this family since November, 2016. Where her evidence is not based on her personal knowledge, she identifies the source of her information. The third party information regarding past parenting that pre-dates her involvement with this family comes from her review of Society records including the file notes of other workers. She also recounts information from hospital professionals involved with the mother and child.

[21] I am satisfied that the Society’s reliance on out of court statements is reasonably necessary considering the availability of the other witnesses.

[22] I also find the hearsay evidence presented by the Society is sufficiently reliable to meet the requirement of threshold reliability. There is a marked commonality between the evidence of past parenting evidence derived from Society records and the present case. The similarities include the mother’s severe and chronic drug use, the parties’ three older children, R., L. and D. tested positive for cocaine at birth whereas H. showed signs of withdrawal, the children were all apprehended at birth, and none of the children received parental contact. I also accept that the nature of the work done by the out of court declarants is high volume and the information they record at the time is likely to be more accurate than their memory of the event. These individuals are obliged to keep accurate notes and, in my view, are without motive to mislead.

[23] For these reasons, I find the hearsay evidence before the court satisfies the requirements of necessity and threshold reliability and I allow it for the truth of the contents.

[24] I also consider subrule 16(5) under the FLR’s. It permits the court, on a summary judgment motion to draw a negative inference against a party for presenting evidence of the facts in dispute that does not come from a person with personal knowledge. I find no reason to draw any unfavourable conclusions here.

[25] There have been multiple file opening for the mother, K.M., dating back to the birth of her first child, D. in 2007. This is the fourth with the father, A.T., since 2016. H. is the parties’ fourth child together and the fourth to be apprehended at birth. The first three children tested positive for cocaine. Their first and second child, R. and L., were placed in extended society care (then crown wardship) in 2017. The third child, D., was placed in extended society care in 2019.

[26] The mother has an older child from an earlier relationship, D.T. After several years of Society involvement, he was removed from the home following an incident of domestic violence between the parties where both sustained injuries. D.T. was made a crown ward in 2017.

[27] The child protection concerns over the years include K.M.’s mental health, severe and ongoing drug and alcohol abuse, past domestic violence with her previous partner and her abusive relationship with A.T, the lack of appropriate and stable housing, the use of physical discipline on D.T., the eldest child, and neglect of his basic hygiene, emotional, medical, and educational needs.

[28] A.T.’s history includes substance abuse, domestic abuse and other violent crimes. He has been incarcerated for armed robbery, break and enter, unlawful confinement, and uttering threats.

[29] In A.T.’s Plan of Care, he denies that there is risk of harm to the child, H, and seeks to have her returned to his care. There is no detail to his plan and no evidence to support his claims.

[30] The protection concerns for H. began in September, 2018 when the mother attended the Montfort Hospital. She was 12 weeks pregnant and admitted to abusing crack cocaine and heroine. The Society completed a provincial birth alert and received notice accordingly when H. was born. At that time, the hospital further advised that they had admitted the mother a few weeks earlier that month. She disclosed then that she had used crack cocaine that day. Methadone was prescribed. Hospital staff also reported the mother statement she had been living at a homeless shelter.

[31] The day after H.’s birth, the father, A.T., attended the hospital. Security stopped him from entering the building. Due to past behaviours, there was a no trespass order against him.

[32] The parents have not been in contact with the Society nor have they participated in H.’s life in any way. The father, A.T., has not had any contact with the child and aside from his attempt to attend at the hospital after her birth, has not taken any steps to see her. His last contact with the Society was in the early spring of 2018 when D. was born. The mother, K.M., has not seen H. since her discharge from the hospital 4 days after her birth. Her last contact with the Society was February 27, 2019 when she scheduled a visit with the child. She did not show up or call. The Society has not been able to locate the mother since.

[33] The Society is the only party with evidence before the court. I find the evidence reliable and compelling. It allows me to fairly and justly determine that there is no genuine issue in this case that requires a trial and I make this determination in the context of the child’s best interest and the remedial purposes of the legislation. I am also satisfied that here, the summary judgment procedure is timely, affordable and proportionate to the dispute before the court.

[34] The parents have not demonstrated any ability to protect and care for H. I am satisfied, on the balance of probabilities, that there is a risk that she is likely to suffer physical harm, either directly or indirectly through neglect or a failure to adequately provide care for her, supervise or protect her, if returned to one or both of her parents. I find that H. is in need of protection under s. 74 (2) (b)(i) and (ii) of the CYFSA.

Issue No. 3 - Is there a genuine issue requiring a trial to determine whether there is a disposition in the child’s best interests that is less intrusive than extended society care without access for the purposes of adoption?

[35] The mother has not contacted the Society and their efforts to find her were not successful. An order dispensing with service was made.

[36] The father’s Answer and Plan of Care was the only step he took toward establishing any involvement with the child. His pleading does not disclose an address or any other contact information. His plan was for H. to be placed in his care. Unlike his previous Answers, he did not list anyone who would have information to support his plan except a housing worker at Wabano. Without A.T.’s consent, the Society could not speak to the worker. However, the Society did follow up with the individuals named in his previous Answer who indicated interest in presenting a plan for the child, D. Two families have come forward and a kin assessment is underway. The Society seeks to place H.and D. together in the same adoptive home.

[37] I am satisfied that the Society has established on the balance of probabilities that there is no genuine issue requiring a trial to determine whether extended society care is the least intrusive disposition that is consistent with H’s best interest. She is now almost 5 months old. She has been in foster care since birth and has had no contact with either parent. Under s. 122(1)(a) the maximum amount of time that a child under age 6 can be in care is 12 months. H. has not developed a bond or attachment to either parent. She does not know them and they have not demonstrated any meaningful interest in her, capacity to care for her, or interest in gaining the capacity to care for her. I find “there is no realistic possibility of an outcome other than that sought by the applicant”. See: Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 212, at paras. 66-67 and F. v. Simcoe Muskoka Child Youth & Family Services, 2017 ONSC 5402, at paras. 21-23. It is the best interests of H. that permanent plans now be made for her future care. An order for extended society care is in her best interests.

Issue No. 4 - Is an order for access in the child’s best interests?

[38] The Society seeks an order that the child shall have access to her parents in accordance with her views and best interests to be exercised at the discretion of the Society with respect to location, duration, frequency and level of supervision. Under s.105 (5) of the CYFSA, the court must make an order for access unless satisfied that continued contact would not be in the child’s best interests.

The Legal Framework

[39] Section 105 (5) and (6) of the CYFSA provide:

When a court may order access to a child in extended society care

105 (1) Where an order is made under paragraph 1 or 2 of subsection 101 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child’s best interests.

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.

[40] The Court of Appeal in Kawartha-Haliburton discussed at length the court’s obligation under ss. 105(5) and (6). It said,

… the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive…

Analysis

[41] I have considered the Society’s request for access, the factors set out in s. 74(3) of the CYFSA and the particular circumstances of this case and find that access is not in the child’s best interests. In particular, I take into account the fact that the child is too young to express her views, she has never been in the care of either parent, they have not had any contact or shown any interest in her, historically they have been unable to parent their children. The mother suffers longstanding and severe drug abuse, and the father has a violent criminal history. In addition, there is no evidence to suggest that access would be beneficial and meaningful to the child. She does not know them. The Society’s proposed plan of care is that the child will be placed for adoption. A kin assessment is underway to place H. with her brother D. in the same home. There is evidence in the prior proceeding involving D. from one of the prospective kin on the father’s side that she wants nothing to do with him. To the extent that it may impair H.’s future adoption opportunities, I find access to be contrary to her best interests.

Conclusion

[42] There shall be a final order on the following terms:

1. The statutory findings for the child are: (i) The child before the court is H. Her date of birth is XX XX, 2019. (ii) K.M. and A.T. are the child’s parents. (iii) H. is not a First Nations, Inuit or Metis child. (iv) H. ordinarily resides in Ottawa, Ontario. She was brought to a place of safety from the Ottawa General Hospital, in Ottawa, Ontario.
2. The child, H., is in need of protection under s. 74(2)(b)(i) and (ii) of the CYFSA.
3. The child, H., shall be placed in extended society care.
4. The mother and father shall have no access.

Madam Justice D. Summers

Released: July 8, 2019

COURT FILE NO.: FC-16-170-5 DATE: 2019/07/08 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 H.M. (D.O.B. XX XX, 2019) BETWEEN: THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – K.M. Respondent – and – A.T. Respondent reasons for decision D. SUMMERS J. Released: July 08, 2019