JUDGMENT

JAIN J.:

INTRODUCTION

[1] The Simcoe Muskoka Child, Youth and Family Services (the Society) has brought a summary judgment motion pursuant to r. 16 of the Family Law Rules[^1] seeking a finding that the child, S.C., born in 2011, is in need of protection pursuant to clause 74(2)(h) of the Child, Youth and Family Services Act[^2] (CYFSA). It seeks the disposition being a final order that S.C. be placed in the deemed custody of her parents A.N. and C.C., with primary residence with her father, C.C., and specified access to the mother, A.N., as set out in the Society’s materials, pursuant to s. 102 of the CYFSA. The Society further seeks an order for “parallel parenting” where each parent is given separate, defined areas of parental decision making, independent of the other.

[2] The mother of the child opposes the motion. She states that there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure. She does not agree to the finding nor the disposition sought by the Society.

[3] The father of the child does not oppose the motion. He is agreeable to the matter proceeding by way of summary judgment. He is further agreeable to the finding. The father seeks an order for sole custody of the child. In the alternative, he seeks an order for joint custody with specified access to the mother and parallel decision making, (basically the same disposition sought by the Society).

[4] The parties gave no submissions regarding the statutory findings at the outset of the hearing. There was no dispute regarding that issue. The child, S.C., is 7 years old (almost 8). S.C. is not a First Nation, Inuk or Metis child. S.C. was removed from the primary care of her mother and placed in the joint care of her mother and father subject to the supervision of the Society.[^3]

[5] I have read and relied on the following documents:

(a) The Society’s Motion, dated March 26, 2019, and filed at Vol. 1, Tab 16;

(b) The Affidavit of Child Protection Worker (CPW), Leah Friesen, dated March 26, 2019, and filed at Vol. 1, Tab 17;

(d) The Affidavit of the CPW, Leah Friesen, dated May 21, 2019, and filed at Vol. 2, Tab 19;

(e) The Affidavit of the mother, A.N., dated May 21, 2019, and filed at Vol. 2, Tab 20; and,

(f) The Affidavit of the mother, A.N., dated August 16, 2018, and filed at Vol. 1, Tab 8.

PRELIMINARY ISSUE: Adjournment Request

[6] This matter was set to begin at 12:00 noon on May 31, 2019. The mother was late in arriving. When argument of this motion commenced on May 31, 2019, Ms. McDougall requested an adjournment on behalf of the mother. This was the mother’s second request for an adjournment. In addition to being late for court, the mother had failed to file a responding affidavit for the summary judgment motion and Ms. McDougall argued that it was unfair to proceed. She submitted that fairness principles must apply to summary judgment motions especially in the child protection context.[^4]

[7] The basis for the mother’s request was the same as her first request for adjournment. She filed an affidavit setting out why she was requesting the adjournment, dated May 21, 2019.[^5] The first adjournment request was argued in front of Bennett J. on May 22, 2019. On that day, Bennett J. gave oral reasons for denying her request. He ordered that the “SJM will therefore proceed during these sittings, next week.” The issues in this matter were then conferenced on May 23, 2019 with no success at reaching an amicable settlement.

[8] Counsel for the Society, the father, and the Office of the Children’s Lawyer (OCL) all opposed the mother’s second request for an adjournment. Mr. Milne, counsel for the father, argued that the adjournment request issue was “res judicata” and that the mother should not be able to “shop her adjournment motion around to a different judge” in the hopes that a different judge will grant it. Mr. Milne argued that the mother had not raised any new issues or reasons for the requested adjournment since Bennett J.’s above endorsement. He further submitted that the mother has a history of non-compliance with court ordered deadlines and court orders in general.[^6]

[9] More than four months ago, on January 25, 2019, all parties consented to the matter proceeding by way of summary judgment during the May trial sittings. The Society filed their motion on March 28, 2019. The Society extended the mother’s time to file and serve her materials more than once, and yet, she still has not filed any responding materials. I found that the mother had ample time and opportunity to file materials. I found that the mother had not raised any new issues or reasons for the adjournment request. The court and the parties had been more than fair to the mother. Principles of fairness must apply to all parties involved and not just the mother. I found the mother’s adjournment request was “res judicata.” I therefore dismissed her request for an adjournment.

ISSUES TO BE DETERMINED

[10] Should the Society’s Motion for Summary Judgment be granted? Has the Society demonstrated a prima facie case that there are no genuine issues requiring a trial? Have the Respondents demonstrated that there is a genuine issue requiring a trial that cannot be resolved by way of the additional powers set out in rr. 16(6.1) and (6.2), such that the Society’s Motion for Summary Judgment should not be granted?

[11] Has the Society demonstrated a prima facie case in support of an order finding the child, S.C., in need of protection pursuant to s. 74(h) of the CYFSA?

[12] Has the Society demonstrated a prima facie case in support of an order that the child, S.C., be placed in the joint custody of her parents, pursuant to a deemed custody order under s. 102 of the CYFSA, with primary residence with the father and specified access to the mother?

BACKGROUND

[13] The parents have been separated and involved in protracted family litigation and child protection litigation for some time. The child, S.C., was born in 2011. At the commencement of this action, S.C. was residing full-time with her mother. The custody and access arrangement between the mother and father prior to these proceedings was a Temporary Consent Endorsement of Doyle J., dated February 23, 2015. This endorsement basically set out the father and child’s access: every other Friday until Sunday and every Thursday. Despite the endorsement including a provision for police enforcement, there is a history of non-compliance by mother. Although the parents experienced conflicts over the years and attempted to involve the police, they never varied this endorsement, it was also never turned into a final order. The father brought a contempt motion, but it was never heard.

[14] The Society has a long history of involvement with the mother since 2002. Concerns have included the mother’s mental health and its impact on her parenting (including her emotional responses to her children), her ability to follow through with hygiene of the home and daily routines, lack of supervision, domestic violence (between the mother and previous partners) and substance abuses.[^7] The current concerns also relate to the mother’s mental health and its impact on her parenting including, the mother’s inability to ensure regular and on-time attendance at school for the child, and the state of the mother’s residence, as well as the Respondent parents’ ongoing conflict (and the child’s exposure to same) and the mother’s inability to cooperate with the Society.

[15] A temporary care hearing was held on August 24, 2018. Mulligan J. granted the Society a temporary supervision order, placing the child in the care of each parent, subject to the supervision of the Society. Since then, the parents have generally followed a 2/2/3 schedule with the child being in each parents care for two school days and every other weekend.

ANALYSIS

Should the Society’s Motion for Summary Judgment be granted?

[16] The Society brings this motion pursuant to r. 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.

[17] The burden of proof is on the party moving for summary judgment. Pursuant to r. 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. The Society filed the affidavits of the CPW, Leah Friesen, dated March 26, 2019 and May 21, 2019.

[18] Pursuant to r. 16(4.1) the responding party 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. The responding party must put their best foot forward on the motion. 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. See: Children’s Aid Society of Toronto v. K.T., 2000 CanLII 20578 (ON CJ), 2000 O.J. No. 4736 (Ont. C.J.). In this case, the father filed an affidavit, dated April 28, 2019. As explained above, the mother did not file any materials responding to the summary judgment motion, except for her affidavit of May 21, 2019 in support of her request for an adjournment. She did, however, make reference to and rely on her affidavit, dated August 16, 2018, prior to the temporary care hearing heard on August 24, 2018.

[19] The father supports the finding and the disposition sought by the Society. He differs only with respect to the custody disposition in that he seeks an order for sole custody of the child or, in the alternative, an order for joint custody with additional terms that closely mirror those sought by the Society. Neither parent has set out any facts in an affidavit showing that there is a genuine issue for trial.

[20] Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. See: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80.

[21] Subrule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[22] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. Hyrniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

[23] 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 (Hryniak, paragraph 49). As the Supreme Court stated, at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (Kawartha, paragraph 63).

[24] Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (Kawartha, paragraph 1 of paragraph 80 and paragraph 64).

[25] Kawartha denotes an exceptionally cautious approach being taken for summary judgment in child protection proceedings. This is especially in the context of dispositions that result in extended care with no access; permanently severing the parent/child relationship and removing children from parents care. Exceptional caution is also required because of the vulnerability of the parties and potential denial of their Charter rights. However, this matter can be somewhat distinguished from Kawartha for a few important reasons. Any concerns about the denial of Charter rights had little to no bearing in this matter. The subject child, S.C., is not indigenous. The parties and the child all have legal representation. There was no issue raised about the admissibility of the evidence. Lastly, the Society was not seeking an intrusive order taking the child away from her parents. The Society was seeking a final order that S.C. be placed in the deemed custody of her parents, A.N. and C.C., with primary residence with her father and specified access to the mother. The Society’s motion was more akin to a motion for summary judgment under the Children’s Law Reform Act[^8] (CLRA), which will not attract the same degree of caution as set out in Kawartha. I still however, exercised exceptional caution to ensure the process was fair, and that adequate evidence was available for the court to reach a fair and just resolution applying the objectives of the CYFSA including the best interests of the child.

[26] The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant”. (Kawartha, paragraph 72). Based upon the affidavits of the Society, and given that the father consented and the mother had not filed any responding materials, there did not appear to be a genuine issue requiring a trial, based on the record. I was able to avoid using the additional powers set out in r. 16(6.1).

[27] I find that it is in the interest of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result.

[28] I find that the Society has established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought, and that the mother has not met her onus of establishing that there is a genuine issue requiring a trial on any issue. I find that if this matter proceeded to trial there is “no realistic possibility of an outcome other than that sought by the applicant”.

[29] I reach these conclusions for the reasons that follow.

ANALYSIS

Has the Society has demonstrated a prima facie case in support of an Order finding the child in need of protection pursuant to s. 74 (2) (h) of the CYFSA?

[30] The onus is on the Society to prove on a balance of probabilities that S.C. is in need of protection. The risks do not need to be intentional. The Society seeks a finding in need of protection pursuant to s. 74(2) (h) and (f) of the CYFSA. According to those provisions, a child is in need of protection where:

74(2)(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii) (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

74(2)(f) the child has suffered emotional harm, demonstrated by serious,

(i) Anxiety,

(ii) Depression,

(iii) Withdrawal,

(iv) Self-destructive or aggressive behaviour, or

(v) Delayed development,

And there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

[31] As stated above, the Society has a long history of involvement with the respondent mother since 2002. The current concerns relate to the mother’s mental health and its impact on her parenting including, the mother’s inability to ensure regular and on-time attendance at school for the child, and the state of the mother’s residence, as well as the respondent parents’ ongoing conflict and the child’s exposure to same, and the mother’s inability to cooperate with the Society.

[32] When the child was residing primarily with the mother, she was responsible for S.C.’s attendance at school. The mother takes issue with the attendance records and provides various excuses, suggesting they are skewed, inaccurate, and that she is not responsible for the child’s high rate of absenteeism or the results of same. She suggests that sometimes if S.C. is late, she is marked absent. The mother has refused to take responsibility for any of the concerns and, instead, placed blame on the child, the father or the school. She has even attempted to claim that S.C. has various learning or health issues such as ODD, ASD and PTSD, none of which appear to have ever been formally diagnosed and which are not supported by the observations of the father, the school or the Society.[^9] She suggests that the rate of absenteeism and/or lates are not serious child protection concerns warranting the change in residence or primary care and custody.

[33] Despite the mother’s attempts to deflect responsibility on the issue of the child’s attendance, I find that S.C.’s school attendance records while residing with her mother have been abysmal. This issue is not new or situational. S.C. has experienced chronic absenteeism over all her years of school attendance since 2015.[^10] The following is a record of her attendance:

Grade

Year

Absent

Late

2017/2018

67.5

2016/2017

70.5

2015/2016

46.5

[34] In addition, the mother has struggled to manage school attendance for all of her children, resulting in her two older children being placed in the care of the maternal grandmother exclusively during the week in order to ensure regular attendance at school and avoid the ongoing pattern of late arrivals that occurred when the children were in the mother’s care.[^11] This past conduct of the mother provides a reliable backdrop against which to measure the extent to which the Respondent’s abilities and circumstances have changed. As Olah J. said, “the best indicator of a parent’s likely future conduct is his or her past conduct.”[^12]

[35] The effect that S.C.’s habitual absenteeism and late attendance has on her education was discussed in Mulligan J.’s endorsement, dated August 27, 2018. The report cards have repeatedly commented on S.C.’s rate of attendance and its effect on her education.[^13] The following are some of the comments noted in her report cards relating to S.C.’s attendance:

S.C. has a high rate of absenteeism which has affected her progress…

S.C. would greatly benefit from regular attendance at school, so that she has the opportunity to develop the learning skills, work habits and concept knowledge necessary to ensure success…

S.C. has had a high rate of absenteeism which as affected her progress in all areas of language…

Due to a high rate of absenteeism, S.C. has missed many of these activities which makes it difficult to assess her understanding and determine next steps…S.C. would benefit from regular attendance to support development in all areas of math…

Due to a high rate of absenteeism, I was not able to evaluate S.C’s progress in Social Studies…

S.C. has missed many Gym lessons due to absenteeism…

Due to a high rate of absenteeism, I was not able to evaluate S.C.’s progress in Drama…

Due to a high rate of absenteeism, I was not able to evaluate S.C.’s progress in Art.

S.C. has had a high rate of absenteeism which as impacted her progress this year. Next year, S.C. would benefit from regular attendance at school to maximize her potential…

S.C. is a sincere, kind and loving student who tries her best when she is at school…

Unfortunately, due to a high rate of absenteeism, S.C. continues to read below grade level…

S.C. was absent for many lessons in math…

S.C. was absent for many science lessons this term…

[36] I find that S.C.’s high rates of absenteeism and late attendance at school while in the care of her mother put the child at risk of emotional harm and developmental delay pursuant to s. 74(2)(h) of the CYFSA. There is a direct correlation between regular attendance at school and academic success. Children like S.C., who have a pattern of absenteeism and late attendance, suffer from significant gaps in their education and are at a higher risk of developmental delay. If it is not caught early, the child can encounter many serious difficulties in basic skills like reading and math which are the basis for all other subjects. They will likely be challenged in achieving their potential. Additionally, like in this case, when children are habitually absent and/or late it is often a symptom of significant dysfunction or neglect in the family.

[37] It is not novel for a court to find that any child who is habitually absent or late from school without sufficient cause may be a child in need of protection. The court has noted that the unwillingness or inability of a parent to ensure that their child’s educational needs were met, as evidenced by having him/her attend school regularly and on time, places that child at likely risk to suffer emotional harm.[^14]

[38] The Society has additional concerns about S.C.’s risk of emotional harm due to the respondent parent’s ongoing conflict (and the child’s exposure to same), and the mother’s inability to cooperate with the Society. The Society’s affidavits and the father’s affidavit outlined the long history of conflict between the parents. The conflicts have ranged in severity over the years and include: frequent problems with access exchanges; mother withholding access; mother making false allegations of sexual abuse against the father; the mother’s tendency to pathologize the child (alleging the child is seriously ill when she is not); the mother denying or doubting the father’s paternity and discussing same with the child. Despite these issues, the mother has declined services offered by the Society and failed to attend meetings set up by the school and the Society.[^15]

[39] The mother filed no evidence. She does not acknowledge or accept the importance of S.C. regularly attending school. She further does not acknowledge or accept that exposing S.C. to adult conflict and her negativity about the father is emotionally harmful for S.C. She further provided no acknowledgement or explanation for her inability to cooperate with the Society or the father.

[40] The mother’s lack of acknowledgement and acceptance, shows a lack of insight into the Society’s concerns and an inability to address those concerns. Her refusal to take responsibility means she does not accept help or support and, instead, she blames others almost entirely for the issues. The lack of school attendance negatively impacts the S.C.’s academic progress and affects her socialization and development. When the mother has no insight into the effect of such poor attendance, there is an ongoing risk to the children’s emotional well-being.[^16] All of this together, means that the degree of risk of harm is high.

[41] I agree with the Society, the father and the OCL regarding finding the child in need of protection. The Society has demonstrated a prima facie case in support of an order finding the child S.C. in need of protection pursuant to s. 74(2)(h) of the CYFSA.

ANALYSIS

Has the Society has demonstrated a prima facie case in support of an order that the child be placed in the joint custody of her parents, pursuant to a deemed custody order under s. 102 of the CYFSA, with primary residence with the father and specified access to the mother?

[42] The onus is on the Society to prove on a balance of probabilities that an order placing the child in the deemed joint custody of her parents is in the best interests of the child, S.C. Section 1(1) of the CYFSA provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. Section 102 of the CYFSA provides that:

Custody Order – (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

(2) DEEMED TO BE ORDER UNDER S. 28 CHILDREN’S LAW REFORM ACT – An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be made under section 28 of the Children’s Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

[43] Section 74(3) of the CYFSA sets out the criteria the court must use to make an order or determination in the best interests of a child. As the child, S.C., has representation from the OCL, her views and preferences have been ascertained pursuant to Section 74(3)(a). S.C. is not of First Nations, Inuk or Metis. The relevant sections of Section 73(3)(c) provide that the court consider any relevant circumstances including the following:

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 place 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.

[44] Section 105(1) and (2) of the CYFSA sets out the following:

(1) Access: where child removed from person in charge

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

(2) Access: after custody order under s. 102

If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests.

[45] S.C. was apprehended from the care of the mother. She was placed in the care of her father. Since the order of Mulligan J., dated August 27, 2018, the child has been in the joint care of both parents under the supervision of the Society.

[46] The immediate effect of residing with both her father and mother has been a dramatic improvement to S.C.’s attendance and performance in school.[^17] According to the February 22, 2019 report card, she has been absent only 13.5 days and late 23 times (the majority of these occurred when the child was in the mother’s care).[^18] Absences are no longer cited in S.C.’s reports since residing with both parents.[^19] The teacher’s comments are very positive and show considerable improvement in S.C.’s performance at school. What this shows is that this child is smart and capable and able to succeed at school if the parents get her to school regularly. Unfortunately, it goes without saying that if she continues to live with both parents during school year, S.C. will only get to school regularly half the time. This is not in the child’s best interests. I find that it would be in the child’s best interests to have a schedule that has equal care (if possible) during the holidays, but not during the school year.

[47] In this situation, the protection concerns warrant a change in S.C.’s primary care and how any major decisions are made. I agree with the Society’s position for joint custody. However, I do not agree with the Society’s suggestion for “parallel parenting” where each parent is given separate, defined areas of parental decision making, independent of the other. Specifically, the Society suggests that the father make all medical and educational decisions and that the mother make all decisions regarding S.C.’s extra-curricular activities.

[48] The mother has shown by her words and her actions that she lacks insight regarding S.C.’s risks of suffering emotional harm while in her care. She simply denies the allegations made by the Society and the father. She has refused to engage with the worker or accept services that have been offered. She has shown by her behaviour and words that she is capable and willing to expose the child to extremely negative ideas about her father simply to undermine his role and importance in S.C.’s life.

[49] I find the level of conflict between these parents makes it impossible for joint decision making or parallel parenting to be successful. It is foreseeable that a situation could arise where a decision needs to be made which overlaps the areas of education, health and extra-curricular activities: missing school vs. attending the activity; completing homework vs. the activity; or, more seriously, an injury that may affect the child’s participation in the activity. Parallel parenting would just expose the child to more conflict and difficult situations where she is placed in the middle and being torn between her parents. I find that it is in the best interests of the child if the parents consult with each other; however, if there is a dispute, the father should make the final decision.

[50] Ms. Annand provided representation for S.C. through the OCL. She provided submissions on S.C.’s wishes and preferences. She did not take a position on legal custody. Ms. Annand advised the court that S.C. was content to continue the current shared residence schedule set by Mulligan J. of 2/2/3 until May of this year. Until recently, she liked having equal time with her parents and wanted it to continue. However, more recently, S.C. began to be “confused” and stated that she wanted different things and changed her position. The influence and/or catalyst for the changes seems to be the influence by the mother. In preparation for bringing the child to the interview, the mother made comments to S.C. of what to say. For example, S.C. told the OCL that she should live with her mother more because her mother is “more important” because she gave birth to her and breastfed her. The mother further made negative comments about the father and told S.C. about things that happened when S.C. was not born or when she was a baby.[^20]

[51] I find that unfortunately, due to the interference of the mother, the child’s wishes and preferences regarding her residence were not strong as they lacked consistency, strength and independence. However, what was consistent, strong and independent was S.C.’s expressed love for both of her parents. She said she misses her parents when she is not with them. She also said that her parents “yell at each other” and that her father likes her mother, but her mother doesn’t like her father. S.C. just wished “we could all be happy.”[^21]

[52] The child has been consistent in expressing that she loves both her parents and wants time with both of them. She enjoys her time with her father and despite her mother’s allegations and negative talk against the father, S.C. has not disclosed any concerns about her father’s care, nor have they been noted by the Society or the school.[^22]

[53] I find the father’s plan of care is in the best interests of S.C. and is most appropriate to meet the child’s physical, mental, and emotional needs. He also recognizes the importance for the child’s development of a positive relationship and emotional ties with her mother and he will support and continue their access and the mother’s involvement in S.C.’s extracurricular activities.[^23]

[54] If the child returns to reside primarily with the mother or the mother continues to make all major decisions, the child is likely to suffer emotional harm. The degree of risk justifies my finding that it is in S.C.’s best interests to be in the primary care of her father and have access to her mother.

[55] I agree with the Society, the father and the OCL regarding the disposition of deemed custody. I find that the Society has demonstrated a prima facie case in support of an order that the child, S.C., be placed in the joint custody of her parents, pursuant to a deemed custody order under s. 102 of the CYFSA, with primary residence with the father and specified access to the mother. I further find that it is in S.C.’s best interests that her father consult with her mother on major decisions; however, he must have final decision making power in case of any dispute.

[56] As a result, for all the reasons as set out above and, pursuant to r. 16 of the Family Law Rules, I make the following order:

(a) An order for Summary Judgment in relation to the child, S.C., on behalf of the Society, pursuant to its Protection Application and r. 16 of the Family Law Rules.

(b) An order that the child, S.C., is found in need of protection pursuant to s. 74(2)(h) of the Child, Youth and Family Services Act, 2017.

(c) A final order that the child, S.C., be placed in the deemed joint custody of her parents, A.N. and C.C., pursuant to s. 102 of the Child, Youth and Family Services Act, 2017 as follows:

(i) The child, S.C. shall reside primarily with the Respondent Father in his primary care.

(ii) The Respondent father shall have primary decision-making on all medical, psychological and educational matters regarding S.C. and any of her extra-curricular activities.

(iii) The Respondent father shall consult with the Respondent mother regarding all medical, psychological and educational matters regarding S.C. and her extra-curricular activities. If after consultation, there continues to be a dispute about any decision, the Respondent father shall make the final decision.

(iv) The child S.C. shall have access with the Respondent mother as follows:

In the school year, every other weekend from Friday after school (or at 3:30 PM if school is not in session) to Sunday at 7:30 PM (“weekend access”), with said weekends to be set forthwith in order to coincide with those weekends that the Respondent mother parents her sons.
Where the Respondent mother’s access weekend falls on a statutory holiday, the said access weekend shall be extended to include the additional day.
During the summer months, in accordance with the following schedule, subject to the child’s wishes and her half-brother’s summer schedule:

(a) The Respondent mother shall parent the child from Sunday at 5:00 PM to Wednesday at 5:00 PM;

(b) The Respondent father shall parent the child from Wednesday at 5:00 PM to Saturday at 5:00 PM;

(c) The Respondents shall parent the child from Saturday at 5:00 PM to Sunday at 5:00 PM in accordance with an alternating parenting schedule, with said alternating access weekends with the Respondent mother to coincide with those weekends that she would have alternating weekend access during the school year.

(v) Furthermore, each of the parents shall parent the child for 2 non-consecutive weeks (a week consisting of 7 consecutive days) during the summer. Commencing in 2021, in odd numbered years, the Respondent father shall notify the Respondent mother of his chosen 2 weeks by May 15^th and the Respondent mother shall the Respondent father of her chosen 2 weeks by May 30^th. Commencing in 2020, in even-numbered years, the Respondent mother shall notify the Respondent father of her chosen weeks by May 15^th and the Respondent father shall notify the Respondent mother of his chosen 2 weeks by May 30^th.

(d) Access exchanges shall occur at the child’s school while she is at school, or otherwise at the Barrie Public Library (Painswick branch) located at 48 Dean Ave. Barrie, Ontario.

(e) Both parents shall have access to all information as it pertains to the child’s medical, educational, psychological, and recreational matters.

Madam Justice R.S. Jain

Released: July 30, 2019

[^1]: Family Law Rules, O. Reg. 114/99.

[^2]: Child, Youth and Family Services Act, S.O. 2017, c 14, Sch 1.

[^3]: Endorsement and Order of Mulligan J., dated August 27, 2018.

[^4]: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316.

[^5]: Affidavit of the mother, dated May 21, 2019, filed at Vol. 2, Tab 20.

[^6]: Endorsement of McDermot J., dated August 17, 2018, indicates that the Mother did not comply with Quinlan J.’s prior endorsement and failed to file her Answer and Plan of Care.

[^7]: Affidavit of Leah Friesen, dated March 26, 2019, para. 7.

[^8]: Children's Law Reform Act, R.S.O. 1990, c. C.12.

[^9]: Affidavit of Leah Friesen, dated March 26, 2019, para 45-49, 56, 58.

[^10]: Affidavit of Leah Friesen, dated March 26, 2019, Exhibit C.

[^11]: Affidavit of Leah Friesen, dated March 26, 2019, Para. 15, 16.

[^12]: Children’s Aid Society of Simcoe (County) v. S., 2001 CarswellOnt, 1302 at para 11.

[^13]: Affidavit of father, dated April 28, 2019, Exhibit G.

[^14]: Children’s Aid Society of Halton Region v. J.K.V., 2018 ONCJ 337, at para 111.

[^15]: Affidavit of Lean Friesen, March 26, 2019, at para 23, 27, 36 and 37.

[^16]: Children’s Aid Society of Toronto v. M. (M.), 2016 CarswellOnt 10187, 2016 ONCJ 374.

[^17]: Affidavit of Father, dated April 28, 2019, Exhibit H.

[^18]: Affidavit of the father, dated April 28, 2019, Para 21.

[^19]: Affidavit of the father, dated April 28, 2019, Exhibit H.

[^20]: Affidavit of Leah Friesen, dated May 21, 2019.

[^21]: Affidavit of Leah Friesen, dated May 21, 2019.

[^22]: Affidavit of Leah Friesen, dated March 26, 2019 and May 21, 2019.

[^23]: Affidavit of the father, dated April 28, 2019.

SMCYFS v. C.C., 2019 ONSC 4541

Case Summary

JUDGMENT

INTRODUCTION

PRELIMINARY ISSUE: Adjournment Request

ISSUES TO BE DETERMINED

BACKGROUND

ANALYSIS

Should the Society’s Motion for Summary Judgment be granted?

ANALYSIS

Has the Society has demonstrated a prima facie case in support of an Order finding the child in need of protection pursuant to s. 74 (2) (h) of the CYFSA?

ANALYSIS

Has the Society has demonstrated a prima facie case in support of an order that the child be placed in the joint custody of her parents, pursuant to a deemed custody order under s. 102 of the CYFSA, with primary residence with the father and specified access to the mother?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 3