Family & Children’s Services of St. Thomas and Elgin v. M.M., 2019 ONSC 4649

2019 ONSC 4649

COURT FILE NO.: 242/16

DATE: August 21, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM

PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE

CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

BETWEEN:

Family & Children’s Services of St. Thomas and Elgin

Dana Haklander for Family & Children’s Services of St. Thomas and Elgin

Applicant

and -

M.M. and J.L.

M.M. in person

Greg S. Parrack for J.L.

Respondents

HEARD: July 11, 2019

Reasons on a Summary Judgment Motion

Tobin J.

The Parties

[1] The Family & Children’s Services of St. Thomas and Elgin (the “Society”) brings this Summary Judgment Motion within a Child Protection Application that was issued December 21, 2016 and amended July 10, 2018.

[2] This case concerns the child, T.E.L., born […] 2015 (the “child”).

[3] The respondent, M.M., is the child’s mother (the “mother”).

[4] The respondent, J.L., is the child’s father (the “father”).

The Relief Sought

[5] The Society asks the court: (a) to make the statutory findings required under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”), s. 90(2); (b) to find that the child is in need of protection under the CYFSA, subclauses 74(2)(b)(i) and (ii) (risk of physical harm) and clause 74(2)(h) (risk of emotional harm); (c) to make a disposition order placing the child in extended society care; and (d) for an order allowing the mother access to the child subject to the Society’s discretion and that the father have no access with the child.

[6] In her affidavit sworn May 23, 2019, the mother asks that the child be placed in her care but, if that is not possible, that she be allowed to have access with him. On the day the Summary Judgment Motion was argued, she asked to be able to see her son.

[7] The father consents to the statutory findings sought but opposes the balance of the relief sought by the Society as it pertains to him.

Statutory Findings

[8] On consent, I make the following statutory findings:

the child’s name and age: T.E.L., three years old, born […] 2015;
the child is not a First Nations, Inuk, or Métis child; and
the child was brought to a place of safety before the hearing from within the County of Elgin.

Preliminary Matter: Admissible Evidence

[9] The Society relies upon a number of affidavits and its Plan of Care in support of the relief it seeks.

[10] Admissible evidence on this Summary Judgment Motion must be trial-worthy evidence. If the evidence relied upon would not be admitted in a trial, it is not to be admitted on this motion: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at para. 80 ¶3.

[11] Most of the affidavits filed on the Society’s behalf were sworn before the Kawartha decision was released. In its factum and in argument, Society counsel acknowledged that the hearsay evidence being offered for its truth should not be considered by the court on this Summary Judgment Motion. It did not attempt to identify or rely on any exceptions to the hearsay rule. In its factum, the Society detailed those hearsay statements offered not for the truth but for narrative purposes, which it argues are admissible, and those it concedes are not to be relied upon.

[12] As required by Kawartha, any evidence that would not be admissible at a trial has not been relied upon in these reasons.

Facts

Prior to the Child’s Birth

[13] Society worker Carrie Parker first met with the parents on July 10, 2015. The parents, who had known each other for approximately one-and-a-half years, were then cohabiting. The mother was pregnant with her first child. The parents provided details to the social worker about their respective personal and family histories.

[14] The mother told the worker that she used and was addicted to “oxy and fentanyl patches” when she was 17 years old. At the time of the interview, she was on a methadone program and reported having six carries.

[15] The mother also acknowledged mental health issues (depression and anxiety), for which she was taking medication and managing well.

[16] The father stated he often “dabbled” with “blow” while at a group home but denied a significant history with drugs. He also acknowledged having been diagnosed with ADHD and ADD.

[17] The parents agreed with the Society worker at that meeting that they would work voluntarily with the Society once the baby was born.

[18] At a meeting on September 4, 2015, the father told the Society worker about his several residential placements at CPRI and hospitalizations due to his mental health instability.

[19] The parents engaged with the Society and other service providers during the mother’s pregnancy.

The Child’s Birth

[20] The child was born seven weeks premature on […] 2015. He remained in hospital until November 3, 2015.

Birth Until Placed in Care

[21] Following the child’s birth, the parents agreed with the Society worker that the father would be fully supervised while with the child until a comprehensive mental health assessment was undertaken.

[22] The father was encouraged to obtain support from the Canadian Mental Health Association (“CMHA”). Because of a past bad experience he had with the CMHA, the father did not want to re-engage with that service.

[23] By late November 2015, the parents were becoming overwhelmed with their parenting responsibilities. The mother wanted to have some respite by allowing the child to go to the maternal grandmother’s home. The father refused to allow this.

[24] In December 2015, the father was referred to the Caring Dads program. He missed the first two sessions.

[25] During January 2016, the mother made plans to leave her relationship with the father. She was fearful for her safety as well as the child’s, regardless of whether she left, or she stayed.

[26] On February 2, 2016, the mother and child moved to a women’s shelter from the home of the paternal grandmother, where she had been living with the father.

[27] The father and the paternal grandmother met with the social worker and her manager on February 10, 2016. The social worker reviewed with the father her concerns regarding his untreated mental health, lack of engagement with support services, and conflict in the presence of the child. The meeting ended abruptly because, according to the social worker, the father was unable to take responsibility for his actions. This was not denied by the father in his evidence.

[28] At a meeting held on June 15, 2016, the parties and paternal grandmother agreed to an access plan whereby the father would have access with the child, supervised by the paternal grandmother. They also agreed that, if the mother and father were together for access, the access would take place at a neutral setting or in the community.

[29] By August 2016, the mother and father arranged for the father to have access with the child at the mother’s home. This was contrary to the Society’s expectations. The Society worker made clear to the mother that she did not support the father having access in the mother’s home until he successfully engaged in services. The worker made clear to the father her concerns relating to conflict between him and the mother’s neighbours.

[30] In November 2016 and continuing into December 2016, the mother continued to experience conflict with her neighbours. She was worried for her and the child’s safety because of this conflict. This disclosure prompted a new child protection investigation. The father was often involved in that conflict. The mother also reported to the social worker that the father continued to attend at her home. The mother did not see why he should not be able to do so.

The Child is brought into Care

[31] On December 21, 2016, the Society obtained a warrant and apprehended the child, who was then placed in the care of the maternal grandmother, B.M.

[32] On December 22, 2016, O’Dea J. granted an interim without prejudice order placing the child in the care of the maternal grandmother subject to terms of supervision. The father was granted a minimum of four hours of access with the child, supervised at the discretion of the Society. The father’s access was arranged to take place at the Society’s Family Visiting Program. The mother was granted access subject to Society discretion.

The Child Returns to the Care of the Mother

[33] In the spring of 2017, the relationship between the maternal grandmother and her partner was troubled. Their home was a contentious one. The Society sought an order placing the child in the mother’s care subject to terms.

[34] On September 7, 2017, O’Dea J. granted an order placing the child in the mother’s temporary care. One of the terms of the order was that the mother was to reside at Fresh Start Maternity Supports or another residence preapproved by the Society.

[35] This plan did not work out.

[36] The social worker observed the mother’s home located at Fresh Start to be cluttered and with some hazards. The mother was not able to identify the risks to the child, having regard to his stage of development and the state of the home. The mother minimized the risk to the child when leaving him unattended for short periods. She also lost her carries from the methadone clinic. Subsequently, the mother moved into the home of the maternal grandmother and her partner.

[37] On January 23, 2018, the mother acknowledged having used marijuana and cocaine. She minimized the effect cocaine would have on her parenting. The mother told the Society worker that she was stressed out and that is how she coped. Eventually, the mother recognized that she was vulnerable and drug use was a poor way to cope.

The Child is brought back into Society Care

[38] The Society decided to remove the child from the mother’s care. It looked for family options, but none were possible.

[39] On February 17, 2018, the maternal grandmother brought the child to the proposed foster home.

[40] On February 23, 2018, Ross J. made an interim-interim without prejudice order placing the child in the care of the Society. The child has been in care continuously since that date. Both parents were granted access (the mother a minimum of eight hours per week and the father a minimum of four hours per week) subject to Society discretion.

[41] After the February 23, 2018 order was made, the mother continued to use drugs. By July 2018, the mother advised the Society worker she was using crystal meth and was transient.

[42] The mother was inconsistent in attending access and communicating with the Society at the time. More recently, the mother has been consistently attending access. Although back on the methadone program, she advised the Society worker in March 2019 that she had used opiates three weeks prior. At that time, she had no carries from the Methadone Clinic and did not as yet have a stable residence.

[43] The mother’s evidence is that: (a) she is living in the home of the maternal grandmother’s partner; (b) it is a stable place where she could live with the child; (c) the child is comfortable and familiar with that house; (d) he already has his own bedroom there; and (e) the maternal grandmother and her partner would be around to help and support them.

The father’s mental health and behaviour

[44] In the spring of 2018, the father advised the Society worker that he completed a psychiatric assessment. Hospital records were provided to the Society. They are admitted and considered on the basis that they are properly admitted medical records.

[45] On May 17, 2018, the father was seen by a medical doctor. The doctor’s report discloses the following:

the father was seen for treatment of bipolar disorder, ADHD, and attachment disorder;
the father’s mood was low on the date of that examination, but the father stated he was managing his helplessness and hopelessness; and
the father spends his days watching television, going for bike rides, and taking walks.

[46] The doctor’s assessment was that the father’s manic episodes are managed through medication. The father was also said to be managing his symptoms of depression and participating in an outpatient treatment group.

[47] The father did attend supervised access with the child. His access was increased from four to six hours per week. He requested more time. In April 2018, the Society worker wrote to the father advising that he needed to “demonstrate that you are able to cope without supervision before we can assess an increase of community access (unsupervised).”

[48] In August 2018, the Society worker advised the father that he needed to deal with his anger management as well as participate with other service providers.

[49] The father’s last community visit took place on August 29, 2018. Community visits ended because of the father’s escalated behaviour during access.

[50] The father’s access was reduced to four hours per week in September 2018 due to his behaviour, which included concerns for Society workers’ safety and their ability to redirect him. The child was exposed to this behaviour. The Society provided affidavits from a number of access supervisors. Some access supervisors noted positive aspects of the father’s access. An example is the observation of Cara Gogan in her affidavit sworn on October 22, 2018. She states that “overall, [J.L.] reads [T.E.L.]’s cues and responds appropriately.” She provided an example that occurred on September 4, 2018. She noted that J.L. does not take direction well. When direction was provided, he appeared to struggle to accept the direction or acknowledge the importance of it.

[51] The access supervisor, Jamesie Blackwell, swore an affidavit on January 8, 2019. She observed that the father always arrives at the visit with a snack and appropriate supplies. The father is often observed providing the child with physical affection and that the child reciprocates that affection towards the father.

[52] The access supervisor, Wynie Dearlove, swore an affidavit on December 17, 2018. She observed that, between November 2017 and March 2018, the father demonstrated, during his interactions with the child, an ability to learn, recall, and put to use information shared with him during a program he took. Though he required some cues and reminders, he was able to manage his emotions in response to receiving difficult information.

[53] The access supervisor, Erin Driver, swore an affidavit on April 16, 2019. She described a meeting that occurred on March 12, 2019 with the father and two other access supervisors. They discussed how the workers observed a change in the father’s reaction to the child. The workers observed that the father was sharp with the child between January 2019 and March 2019. The child was observed to look sad, have a flat affect, or interact with others during access visits and would look away when the father talked to him. I do not rely on the evidence to the extent it purports to state the observations of the other two access supervisors. It is not clear what each saw and said to the father. I accept the evidence contained in the affidavit only as it relates to the observations and statements of the affiant, Ms. Driver. The father did not accept these observations.

Legal Considerations:

1) Summary Judgment Motion

[54] Rule 16 of the Family Law Rules, O. Reg. 114/99, permits a party to make a motion for summary judgment. The following subrules in R. 16 are relevant in this case:

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.

(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.

(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.

(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.

(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.

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

(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:

Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.

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

[55] Rule 16(6) is mandatory: if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[56] In Kawartha, supra, the court summarized the approach that should be taken in Summary Judgment Motions in Child Protection proceedings as follows:

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 caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. 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.
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[57] A party answering a motion for summary judgment cannot just rest on bald denials. The party must put their best foot forward, showing that there is a genuine issue for trial: Children’s Aid Society of Toronto v. T.(K), 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736, at paras. 9 and 10 (Ont. C.J.).

[58] 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: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.

[59] On a motion for summary judgment, the motions judge is entitled to assume the record contains all the evidence the parties will present if there is a trial: Toronto Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5.

2) Finding the Child in Need of Protection

[60] The Society’s position is that the child is in need of protection under subclauses 74(2)(b)(i) and (ii) and clause 74(2)(h), which are formulated as follows:

74(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(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;

[61] The risk of physical harm referred to is one that is a real possibility, not speculative: see Children’s Aid Society of Niagara v. P.(T.), 2003 CanLII 2397 (ON SC), [2003] O.J. No. 412 (Ont. S.C.J.), at paras. 62-64.

[62] Proof of intent to harm is not necessary to find a child in need of protection. Risk of harm caused by neglect or error in judgment is still risk of physical harm: Children’s Aid Society of Niagara Region v. P.T., supra, at para. 65.

[63] The court can choose a flexible approach when considering the timing of the protection finding in a child protection proceeding. The court can and should admit evidence arising at any time up to the date of the court hearing: Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, at para. 57 and Children’s Aid Society of Toronto v. S.M.T., 2018 ONCJ 540, at para. 50.

[64] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm: Children’s Aid Society of Ottawa v. J.R., 2019 ONSC 3012, at para. 185.

3) Disposition

[65] The CYFSA provides a statutory pathway that is to be followed in a child protection application: see L.(R.) v. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 5589 (ON SC), [1995] O.J. No. 119 (Ont. Gen. Div.) and Children's Aid Society of Toronto v. L.(T.), 2010 ONSC 1376, [2010] O.J. No. 942 (Ont. S.C.J.).

[66] If the child remains in need of protection, the court must then determine if a court order is necessary to protect the child in the future: ss. 101(1) and (8).

[67] For the reasons that follow, I am satisfied that an order is necessary to protect the child in the future.

[68] The next step is to consider which one of the orders under ss. 101(1) ¶ 1, 2, 3 or 4 or ss. 102(1) should be made in the best interests of the child. The options in ss. 101(1) and 102(1) are:

101(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

102(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 may 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.

[69] It is necessary to consider the circumstances enumerated in ss. 74(3) of the Act when determining the child's best interests: ss. 101(1).

[70] The court must consider what efforts the Society or another Society or person has made to assist the child before the intervention under Part V of the CYFSA: ss. 101(2).

[71] Before making an order removing the child from a parent, the court must determine whether there are less disruptive alternatives that would adequately protect the child: ss. 101(3).

[72] If the child is to be removed from a parent's care, the court is to consider whether there are family or community placements before making an interim or extended society care order: ss. 101(4).

[73] Subsection 101(1) is limited by s. 122, which provides that the court shall not make an order for interim society care that results in a child being in the care and custody of the Society for a period exceeding 12 months, if the child is less than 6 years old on the day the order is made, or a period exceeding 24 months, if the child is 6 years old or older on the day the order is made, unless the time is extended as provided in ss. 122(5). Subsection 122(5) gives the court discretion to extend the time periods above by six months, if it is in the child's best interests to do so.

[74] It is important not to judge the parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests. See Catholic Children's Aid Society of Hamilton v. J.I., I.M. and V.I.O., 2006 CanLII 19432 (Ont. Fam. Ct.), at paras. 38-39.

[75] The significance of the child-centered approach is that good intentions are not enough. The test is not whether a parent has “seen the light” and intends to change, but whether they have in fact changed and are now able to give the child the care that is in their best interests. There is not to be experimentation with a child's life with the result that, in giving a parent another chance, the child would have one less chance. See Children's Aid Society of Winnipeg (City) v. R., [1980] M.J. No. 243 (Man. C.A.), at para. 6. There has to be some demonstrated basis for a determination that a parent is able to parent the child without unreasonably endangering the child's safety. See Children's Aid Society of Brockville Leeds & Grenville v. C., 2001 CarswellOnt 1504 (Ont. S.C.J.), at para. 56.

Application of Legal Principles: Finding the Child in Need of Protection

[76] I find that, based on the admissible evidence filed on this summary judgment motion, the Society has met its onus in establishing that there is no genuine issue that requires a trial on the issue of finding the child to be in need of protection under subclauses 74(2)(b)(i) and (ii) and clause 74(2)(h).

[77] The uncontradicted and admissible evidence establishes:

a) The mother suffers from a longstanding drug addiction. At times she has been compliant with her methadone treatment but at other times she has not. The drugs she has used, including cocaine and crystal meth, impair her ability to care for and protect the child.

b) The mother’s use of cocaine to relieve her stress demonstrates an inability to understand the effect that this has on her parenting abilities.

c) When the child was in her care, the mother on occasion left the child briefly unattended. Having regard to the child’s vulnerability because of his age, leaving the child unattended, even briefly, put him at risk of harm. This amounts to neglect.

d) The mother’s periodic lack of consistent attendance at access also supports a finding of risk of physical harm as it can be seen as a pattern of ongoing neglect. A pattern of not exercising access consistently may also place the child at risk of emotional harm.

e) On occasion, when the child was in the mother’s care, the condition of her home was such that it put the child at risk due to clutter and hazards. At his age and stage of development, the child would be at risk of physical harm in that home.

f) The mother’s inability to perceive risks to the child based on the child’s development demonstrated poor parenting skills.

g) The mother was at times transient.

h) The child was exposed to the father’s angry outbursts and conflict with the mother.

i) The parents did not follow the Society’s safety plan in that the mother allowed the father into her home and to be in the presence of the child in circumstances when they knew this was not approved of by the Society.

j) The father’s behaviour at times during access, in the presence of the child, towards Society supervisors, and in his conflict with the mother’s neighbours, is consistent with him having unresolved anger management issues.

k) The father did not successfully engage with all services recommended by the Society to address his behaviour.

l) The father has difficulty in consistently engaging with Society workers, whose role it is to assist him in addressing his parenting deficiencies.

m) In February 2018, the father agreed with the Society worker that he was not ready to parent full-time.

[78] The father argues that a diagnosis of mental illness does not by itself support a finding of risk of either physical or emotional harm. In the father’s case, his behaviour, as demonstrated by the facts as found by me in this summary judgment motion, does support the finding of a risk of physical and emotional harm, whether his behaviour is caused by his mental illness or not. In short, in this case, it is not the fact of the father’s mental illness that puts the child at risk of physical and emotional harm, it is the father’s behaviour that does.

[79] My conclusion that the Society has met its onus in having the court determine that the child is in need of protection, as described, is based upon my careful screening of the evidence. The evidence relied upon were the admissions and statements of the mother and father as well as the observations of the Child Protection workers that were not contradicted.

Application of Legal Principles: Disposition

Plans of Care

[80] The mother wants the child placed with her. It is helpful to understand her circumstances and plan by considering her words as set out in her affidavit sworn May 23, 2019. The mother deposed as follows:

… A child should be with their family if that is possible, and in [the child’s] case, it is. I believe it would be in his best interests for him to one day [soon] come and live with me back in my care. I know I have more I’d like to do better myself for him, and I will be doing those things regardless of what happens. But if he could, he could come and live with me today.

Realistically however, I know this won’t happen. But if I had even three months to show you, you’d see I’ve continued to do well, and only improved my life since.

I have a stable place where him and I could live, at my mother’s partner’s ([P.M.’s]) house (where I’m currently staying). He is extremely comfortable and familiar with the house and his nannies (my mom [B.] and her partner [P.]). He already has his own bedroom there, with a bed, personal bedding, lots of toys, clothes, his favourite foods, everything he needs. [B.] and [P.] would also be around to help and to support us, not to mention [the child] absolutely loves them and being at [P.’s]. …

[81] The mother recognizes that if her circumstances were stable, the child would be better off in her care. She also recognizes that she needs more time to achieve and demonstrate the requisite stability in all aspects of her life.

[82] The father did not propose a plan to place the child with him or family members within the affidavit material relied upon by him in this summary judgment motion.

[83] The father argues that he has never had a chance to parent the child. He wants the opportunity to do so.

[84] The Society’s plan is that the child be placed in extended society care. The child would be placed with foster parents, who are willing to provide a permanent placement for the child through adoption.

The Child

[85] The child is now three years and nine months old. He has not been in the care of the father since December 22, 2016.

[86] The child has been in the temporary care of the Society under court order since February 23, 2018. This is now a period of 17 months.

[87] The uncontradicted evidence of the Society with respect to the child is as follows:

The child has maintained a stable placement with his foster parents since his admission to care.
The child has developed strong attachments to the foster parents as his primary caregivers, as well as their son.
The child has been attending the Early Learning Centre Daycare full-time since October 2018. He is doing well at daycare and is socializing with peers and following routines.
The child has had regular and, as needed, medical and dental appointments. There are no concerns regarding his health or development while in foster care. The child was seen by a pediatric dermatologist in connection with a mole on the left side of his face. He is being followed by the doctor.
The child’s language and speech skills are within normal limits.

Services Offered

[88] The Society provided assistance to the respondents prior to the intervention under Part V of the CYFSA.

[89] The services offered included the following:

(a) prenatal support to the mother; (b) a referral for public health; (c) engaging with family supports; (d) safety planning with the mother when she began to question the father’s anger and aggression; (e) safety planning with the father regarding supervised access on a voluntary basis; (f) referring the father to Caring Dads; (g) providing a child protection support worker; (h) providing Infant Family and Community Planning meetings; (i) referring the father to services to address his mental health; and (j) referring the matter to child protection mediation.

[90] The Society continued to offer services to both parents after this case was started.

[91] I am satisfied that the Society took appropriate steps to assist this family.

[92] Further, I am satisfied on the uncontradicted evidence in this record that the Society did not frustrate or interfere with the parents’ opportunity to parent the child.

[93] The child was placed in the care of the mother for a period but, unfortunately, had to be removed due to her inability to adequately care for the child.

[94] The evidence discloses that, with respect to the father, he sought an increase in the amount of time he could spend with the child. Counsel did not point to any evidence that, while this case was ongoing, the father put forward a plan whereby the child could be placed in his care. He did not describe the premises the child could live in, nor the supports that he would have. The father’s vague request for an opportunity to parent the child while in his care is akin to requesting an experiment with the child’s life, one that on the evidence could not be supported as being in the child’s best interests.

Best Interests Considerations

[95] It is not possible to ascertain this young child’s views and preferences.

[96] The Society’s plan will better meet the child’s physical, mental, and emotional needs. Its plan will see the child remain in the care of the foster family where he was placed, is doing well, and his needs are being met. This family will provide the stability needed by the child for the long term. They are willing to adopt the child if he is not returned to the care of the parents.

[97] The evidence discloses that the child has developed a strong attachment to his foster parents and their child. The foster parents are attending to the child’s medical needs.

[98] There are some positive aspects to the mother’s plan:

(a) I accept that the mother loves the child and wants to be able to care for him. (b) The mother’s plan would allow the child to be raised and cared for by her with help from family members.

[99] But there are some significant challenges to the mother’s plan.

[100] The most significant problem with the mother’s plan is that the evidence on this motion discloses that she has not been able to adequately care for the child. She has not been able to demonstrate sufficient improvement in her ability to consistently and adequately care for the child, even with Society supervision and support. Nor is she in a position to do so now. Her plan is an aspirational one, rather than one likely to succeed based on the record.

[101] The mother continues to struggle with substance abuse. She has not been able to maintain abstinence or sobriety for an extended period. The mother may have the support of the maternal grandmother and her partner, but details of how this support would be put into effect are not evident on this motion. The mother had the support of the maternal grandmother and her partner in the past, but that plan was not successful. The evidence does not disclose how circumstances have changed to such an extent that the mother’s plan in this regard is viable at this time.

[102] The facts which ground the finding that the child is in need of protection also support a finding that it would not be in the child’s best interests to be placed in the mother’s care.

[103] The child has been in care in excess of the statutory time limits allowed by s. 122(1). The extension of the time limit allowed for in s. 122(5) would not be in the child’s best interests as the evidence does not support a finding that the mother has made sufficient progress or that she is likely to do so within the remaining time allowed.

[104] Though the father has not put forward a plan whereby he could adequately care for the child with supervision, I accept that he loves his son and wants to care for him. He has demonstrated his connection to the child by the regularity with which he attends at access with the child.

[105] The father has not been able to demonstrate an ability to care for the child except on occasion in a supervised access setting.

[106] The Society’s plan will better provide the child with a chance to develop a secure place as a member of a family. The willingness of the foster parents to adopt the child will provide for this. The uncertainty of the mother’s ability to provide a stable home militates against her being able to provide the security the child requires.

[107] The child has been in the care of the foster family continuously since February 17, 2018. As stated above, this has been a stable and positive placement for the child. Prior to this placement, the child had been with the parents, the mother, and the maternal grandmother and her partner. This child has experienced much disruption in his short life. The evidence does not support a finding that placement in the care of the mother would be sustainable in the long term. It is important for the child to experience continuity of care. This will be best achieved under the Society’s plan.

Family or Community Plans

[108] The maternal grandmother and her partner did not put forward a plan to have the child placed in their care.

[109] Despite efforts by the Society, no other family or community member has come forward with a plan for the care of the child.

[110] It is for these reasons that I find that the Society has met its burden of establishing: (a) that a trial is not necessary to determine that the least disruptive alternative that would adequately protect the child and that is in his best interests is an order that he be placed in extended society care; and (b) that a trial is not needed to make a fair and just determination of the issue of disposition in this case.

Access

[111] The CYFSA provides at s. 105(5) that a court shall not make an access order with respect to a child who is in extended society care unless the court is satisfied that the order would be in the child’s best interests. Also, at s. 105(6), the court is directed to consider as part of the s. 105(5) best interests determination:

(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.

[112] The test for access after an extended society care order is made changed from what it was under the Child and Family Services Act, R.S.O. 1990, c. C.11. In Kawartha, supra, the court observed the following, with respect to this change in the test to be applied before granting access following an extended society care order:

48 This change is not just semantics. It represents a significant shift in the approach to access for children in extended care.

49 The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child's future adoption opportunities. Instead, 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:

Best interests of child

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

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

Access by Mother

[113] The Society now supports access between the child and the mother due to the ability of the maternal grandmother and her partner to facilitate this access with the assistance of the foster parents and the Society. If the mother is sober, supervised access can occur. The evidence discloses that there have been positive interactions between the mother and child at access.

[114] In Kawartha, supra, at para. 54, the court recognized that:

A mother who cannot adequately provide primary care may still have a meaningful and beneficial relationship with her children such that access is warranted.

[115] I accept, on the evidence, that continued contact between the mother and child would be in the child’s best interests. The child identifies her as his mother. Access has allowed this bond to continue.

Access by Father

[116] I find that a hearing is necessary to determine the issue of access between the father and the child.

[117] The evidence discloses that the father interacts positively with the child when there are access visits. The father was often observed providing the child with physical affection that was reciprocated by the child.

[118] A hearing is needed to determine whether it would be in the best interests of the child to have access with the father. It is not possible to weigh the evidence or draw inferences from it based on this record. There is evidence, untested as yet, of positive and negative aspects related to the father’s access with the child. I am not able to reach a fair and just determination on the merits of the Society’s request for an order that the father have no access with the child after an extended society care order is made.

[119] It is for these reasons that a hearing is required to determine what, if any, access with the father would be in the best interests of the child. I direct that the child protection application be before the court on the soonest possible date as arranged by counsel and the trial coordinator for the purpose of conducting a trial management conference on this issue.

Order

[120] I make the following order:

The statutory findings are as follows:

(a) the child’s name and age: T.E.L., three years old, born […] 2015;

(b) the child is not a First Nations, Inuk or Métis child; and

There are no material facts that require a trial to determine the issues of finding the child in need of protection, disposition, and access to the mother.
The child is found to be in need of protection pursuant to s. 74(2)(b)(i) and (ii) and s. 74(2)(h) of the CYFSA.
The child shall be placed in extended society care.
The respondent mother shall have access with the child, at the discretion of the Society with respect to frequency, location, duration, and need and level of supervision. The mother is to be sober before any access visit occurs.
A trial of the issue of access between the father and the child is directed.
The trial coordinator shall forthwith arrange with counsel and the parties a trial management conference at the earliest opportunity on the issue of the access between the father and child.

“Justice Barry Tobin”

Justice Barry Tobin

Released: August 21, 2019