WARNING

This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

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

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

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

COURT FILE NO.: FC-18-FO299

DATE: 2019-09-25

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant

AND

M.J., Respondent

A.N. (having been noted in default October 17, 2018)

BEFORE: The Honourable Madam Justice D. Piccoli

COUNSEL: Kimberly Putman, for the Applicant

Walter Wintar, for the Respondent M.J.

HEARD: July 31, 2019

THE HONOURABLE MADAM JUSTICE D. PICCOLI

DECISION

Overview

[1] The Children’s Aid Society of the Regional Municipality of Waterloo (“the Society”) has brought a motion (Vol 2, Tab 3 of the Continuing Record) pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99, seeking a finding that the child H.J., born […], 2018, is in need of protection pursuant to section 74(2)(b-i) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). The Society seeks a disposition that H.J. be placed in extended care until the extended Society care is terminated under section 114 or expires under subsection 123. The Society further seeks a disposition that there shall be no right of access to H.J. by the parties.

[2] The Society served and filed six separate affidavits in support of its motion for summary judgment: the affidavit of Cornelia Purza, sworn June 10, 2019, filed at Vol 2, Tab 4, the affidavit of Eileen Radford, sworn June 7, 2019, filed at Vol 2, Tab 5, the affidavit of Lisa Schofield, sworn June 7, 2019, filed at Vol 2, Tab 6, the affidavit of Alicia Schuster, sworn June 7, 2019, filed at Vol 2, Tab 7, the affidavit of Fran Widmer, sworn June 10, 2019, filed at Vol 2, Tab 8 and the affidavit of Tameika Samuda, sworn June 10, 2019, filed at Vol 2, Tab 9 of the Continuing Record.

[3] M.J. relied on her affidavit, sworn July 8, 2019 and the affidavit of D.E., sworn July 8, 2019 at the summary judgment motion. As D.E. indicated to counsel for M.J., Walter Wintar, that he was dyslexic and could not read, a further Affidavit of Lillian Weatherall, sworn July 8, 2019, was filed to confirm that she had read both M.J.’s affidavit and D.E.’s affidavit word for word to him and that he agreed with the contents of each of them. These three affidavits are filed at Vol 2, Tabs 10, 11, and 12 of the Continuing Record.

[4] The Society served and filed reply affidavits of two of its workers, Cornelia Purza, sworn July 11, 2019, and Eileen Radford, sworn July 11, 2019. These two affidavits are filed at Vol 3, Tabs 1 and 2 respectively, of the Continuing Record.

[5] The father, A.N., was noted in default on October 17, 2018.

[6] The mother, M.J., opposed 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.

[7] On consent, the statutory findings with respect to H.J. were made at the outset of the motion. Therefore, the issue is that of disposition.

Facts

[8] As of the date of hearing this motion, this protection application has been outstanding for 458 days. H.J has been in the care of the Society since birth, i.e. […], 2018.

[9] The Ontario Court of Justice made a temporary without prejudice order placing H.J. in the care of the Society with access by M.J. to H.J. at the discretion of the Society on May 3, 2018. This is the current order before the court.

[10] M.J. served and filed an Answer/Claim and Plan of Care in this proceeding. M.J. is seeking that this matter be withdrawn, or, in the alternative, that this matter be withdrawn upon her entering into a Voluntary Service Agreement, or, in the further alternative, that H.J. be placed with her under the terms of a supervision order. M.J.’s Answer and Plan of Care can be found at Vol 1, Tab 8, of the Continuing Record.

[11] A.N. has two children in his care who are not subjects of this application.

[12] A.N. has a history with both the Society and Brant CAS.

[13] A.N. has not had any contact with H.J. since his birth.

[14] M.J. has five other children; C. (born […], 1996), B. (born […], 2000), L. (born […], 2005), N. (born […], 2006), and E. (born […], 2015).

[15] None of M.J.’s children are in her care. On August 26, 2009, L. and N. were made Crown wards without access. C. remained with his father and stepmother pursuant to a custody order. B. was made a Crown ward without access on November 25, 2009.

[16] The matter regarding E. proceeded to trial in November 2017, January 2018 and fresh evidence was heard in May and June 2018. The Reasons for Judgment were released on January 25, 2019 and are found at Volume 2, Tab 4 of the Continuing Record.

[17] On January 25, 2019, it was ordered that E. be placed in extended care with no access.

[18] A parenting capacity assessment was completed by Dr. Niza Perlman on November 26, 2016, which is found at Exhibit “A” to the affidavit of Cornelia Purza, sworn May 2, 2018. At page 14 of her decision, Justice Oldham notes “the mother’s history of insecure attachments in relationships and losses has resulted in significant childhood trauma, which would require considerable psychological treatments in order to allow her to parent effectively. Treatment would require considerable and significant commitment, motivation and supports to be successful.”

[19] In her decision released on January 25, 2019, Justice Oldham found among other things that:

(a) M.J. attended two residential treatment programs and has significantly addressed her drug abuse issues, however, it continued to be a concern;

(b) M.J. used crystal meth on at least three occasions, twice prior to the removal of E.J. from her care;

(c) when E.J. was placed in her care, M.J. had to have been fully aware of the presence and the potential ramifications of engaging in behavior that resulted in the loss of her previous four children;

(d) Justice Oldham could not find any other explanation for the presence of drug paraphernalia in M.J.’s home other than the fact she is associating with people who were either using with her or who presented significant risks as a trigger to her. Her lack of judgment in terms of restraining, or seeking assistance in these circumstances raises concerns about her ability to comply with [a term to refrain from drug use] and the effectiveness of a supervision order;

(e) part of the reason she avoided prenatal care was to avoid Society involvement;

(f) M.J. has not removed the risk of domestic violence from her life, and since her children were made Crown wards in 2009 she engaged in at least three relationships which have resulted in varying forms of domestic violence;

(g) it is clear she continues to attract males in her life who have the potential to expose her child to adult conflict, if not domestic violence;

(h) there is no acknowledgment by M.J. of any work that needs to be done to ensure she seeks out positive rather than negative relationships;

(i) M.J. has not adequately addressed the issues and relationships would continue to present a risk if E. were in her care and the fact that she was less than candid about ongoing conflict raised concerns about the effectiveness of a supervision order in terms of protecting E. from exposure to domestic violence and adult conflict;

(j) Dr. Perlman’s opinion was that M.J. needed to do some very extensive, significant work before she would be able to address the root problems which result in her making poor decisions that put her children at risk. Justice Oldham agreed with Dr. Perlman and stated that she “cannot return a child in hopes that the new future will be better.” M.J. had taken no steps to even commence this process and instead advised that if ordered she would engage in counselling. Justice Oldham found that this provided little comfort to the Court. M.J. had not sought counselling to address her issues and history of trauma. She has not sought any recent treatment for drug use and continues to deny drug use; and

(k) Justice Oldham found that M.J. had not progressed significantly since the commencement of the application for E.J. Commitments from the witness stand to do things that were suggested earlier on, seemed empty.

(See the Reasons for Judgment of Justice Oldham, dated January 25, 2019.)

The Society’s Position

[20] The Society’s position can be summarized as follows:

1. the mother has done very little since the order of Justice Oldham to improve her situation;

2. the mother has a pattern of being in unstable and volatile relationships;

3. the mother has a significant history of domestic violence and conflict;

4. the mother has no formal or informal supports;

5. the mother does not follow through with the Society’s expectations. The Society’s expectations are not new and are in fact reiterated in the mother’s own affidavit and plan of care;

6. the mother does not cooperate with the Society (declining to sign consents for information, declining Society support, refusing to provide an address for home visits);

7. the mother does not engage in services that would assist her;

8. the mother has a history of criminal behaviour;

9. the mother has a history of drug use;

10. the mother has difficulty understanding and meeting the needs of her children;

11. summary judgment allows us to meet obligations in the legislation;

12. the legal process should not be used to allow the parents to buy time;

13. a child cannot be returned in the hopes that things will be better; and

14. there has been no progression past supervised access.

[21] The plan for H.J. is that the family who has care of four of M.J.’s other children wish to adopt him.

The Mother’s Position

[22] The mother’s position can be summarized as follows:

1. she has secured appropriate accommodation for she and H.J., which allows a separate, secure accommodation for she and H.J. yet allows her to share other areas of the home, i.e. kitchen, washroom, laundry room and living room;

2. if H.J. were placed with her she would remain home on a full-time basis to care for him;

3. she is financially stable in that she is in receipt of Ontario Works;

4. once H.J. is old enough, she would look for employment to assist in support for H.J. and herself;

5. she does not currently use illegal drugs;

6. she uses marijuana for pain management but not excessively or to the stage where she is intoxicated;

7. if H.J. were placed with her she would not use marijuana to the extent that she would be unable to parent;

8. she completed an inpatient program at Hope Place Treatment Centre from May 24, 2016 to June 23, 2016 (before the order of Justice Oldham);

9. she completed the Live-In Integrated Addiction and Trauma Treatment Program for Women (the time is not specified but it was confirmed in oral submission that this occurred prior to the trial before Justice Oldham);

10. at the date of the motion she has made telephone calls to schedule her attendance at a Partner Assault Response (“PAR”) program and was still waiting for a response;

11. she is prepared to take programming and counselling as directed;

12. she would ensure H.J. has a medical doctor;

13. she would not allow contact between H.J. and his father and she has a plan in place should the father seek contact, namely involving the Society;

14. her community supports are her current partner D.E. and “other persons in the community including members of Vineyard Church”;

15. she is in a good and stable relationship with D.E.;

16. she regrets the incident that resulted in her being charged with assaulting D.E. (January 10, 2019) and she appreciates D.E.’s willingness to allow her back into his home;

17. there have been no police reports or altercations between she and D.E. since April 4, 2019;

18. she is complying with the terms of her peace bond;

19. D.E. does not have a criminal record;

20. access with H.J. is regular and consistent (Wednesdays and Thursdays from 10 a.m. to 12 p.m.);

21. during access, H.J. comes to her and opens his arms to be hugged and kissed and he returns her affection;

22. during access she plays with H.J., she brings toys and snacks and feeds him if he is hungry;

23. access is a positive experience for H.J. From his actions and speech, he clearly enjoys spending time with her and is completely comfortable being with her and being cared for by her;

24. she believes that she and H.J. have a positive relationship and he is positively attached to her;

25. she can read H.J.’s cues in access and understands what he needs; she is patient and not frustrated with him; and

26. the Society has recently allowed her to have D.E.’s children in her care (ages 6 and 12) without supervision so the same should be allowed between she and H.J.

Pregnancy and Birth of the Child, H.J.

[23] During the trial on January 8, 2018, M.J. testified she was not pregnant.

[24] On February 6, 2018, M.J. admitted to a protection worker that she was pregnant. As a result, Ms. Purza, a family service worker, attempted to meet with M.J. to discuss the pregnancy and plan for the baby.

[25] During a home visit on March 29, 2018, M.J. provided Ms. Purza and Children’s Services worker, Fran Widmer, with information, including:

(a) M.J. believed she was seven months pregnant;

(b) M.J. did not have prenatal care, she did not see her physician because she did not feel he was supportive of her in the past and she instead went to Franklin Medical Centre and saw a doctor whose name she did not know. She was still waiting for an ultrasound date;

(c) M.J. was not involved in any services in the community; and

(d) M.J. was not involved with any formal supports, but she continued to receive support from her trustee at Bridges Shelter.

[26] M.J. declined to sign consent forms for Franklin Medical Centre and for social services. She declined Society support. She was provided with information about supports and resources for pregnant women and advised of the importance of prenatal care.

[27] As of April 17, 2018, M.J. had not signed the consent forms.

[28] On April 28, 2018, Larry Ellis, child protection worker, was advised by Grand River Hospital that M.J. gave birth. He apprehended the baby that day.

[29] Hospital records show that M.J. shared with the nurse that she used both crystal meth and marijuana during pregnancy. M.J. also shared she used drugs before coming into the hospital when she was going into labour.

[30] On May 4, 2018, Ms. Purza met with M.J. During the meeting, M.J. admitted to having used crystal meth and marijuana during her pregnancy. She was advised that she was expected to refrain from drug use. Her response was that she was not parenting at this time, implying that she should not be expected to refrain from drug use.

[31] M.J. refused to provide an address for home visits.

Potential Adoption

[32] A. and J. have expressed an interest in adopting H.J. They have adopted three of M.J.’s older children (B. N. and L.) and are in the current process of adopting E.

[33] E. has been placed with A. and J. since June 2018. She had visits with them for a year prior to placement to ensure sibling contact. At the end of February 2019, E.’s visits with M.J. ended and therefore she was not having sibling access with H.J. A. and J. planned sibling visits between E. and H.J., with two occurring before the date of Ms. Widmer’s affidavit.

The Evidence

(a) Unstable and Volatile Relationships/Domestic Violence and Conflict/Criminal Behaviour

[34] M.J. has a significant history of domestic violence and conflict.

[35] Between January 2006 and May 2011, M.J. was involved in 17 police incidents, the majority involving domestic violence with M.J. as either the victim or abuser, with different partners. She was also involved in conflict with her mother, D.J.

[36] On February 2, 2017, M.J. and A.N. engaged in a verbal dispute and physical altercation leading to police involvement.

[37] On February 27, 2017, M.J. and A.N. engaged in an altercation leading to M.J. being charged with assault.

[38] On August 4, 2017, police were involved due to a domestic violence incident between M.J. and A.N.

[39] When Ms. Purza followed up with M.J. about this incident, she minimized the incident and advised her that it was just a “words exchange.”

[40] On December 24, 2017, M.J. and A.N. were involved in a domestic violence incident that involved police.

[41] On April 3, 2018, M.J. and A.N. were involved in a domestic violence incident and M.J. was charged with assault and disobeying an order of the court.

[42] On June 14, 2018, M.J. was arrested and charged with assault, breach of a peace bond and mischief following an incident with A.N.

[43] M.J. was charged with assault and breach of probation for an assault on D.E. on January 10, 2019. This charge was dealt with by way of a peace bond with a 12-month term. D.E. has allowed M.J. to resume contact and reside in his home.

[44] M.J. has had other police involvement, and/or breaches during the more recent Society involvement.

(b) Accessing Supports

[45] Since the order of Justice Oldham, M.J. has done very little in the way of accessing supports.

[46] M.J. declined the advice to attend an in-patient treatment program regarding her drug use.

[47] M.J. declined to address her migraines and mental health issues.

[48] M.J. refused to disclose where she was in counselling or sign consent forms, indicating she did feel she needed treatment.

[49] M.J. and D.E. were recommended counselling. It was declined.

[50] Condition eight of M.J.’s adult probation order dated December 13, 2018 indicates she is to “attend and actively participate in all assessment, counselling or rehabilitative programs as directed by probation office and complete them to the satisfaction of the probation officer.”

[51] M.J.’s peace bond terms from the order dated April 4, 2019, directed her to attend and successfully complete the PAR and anger management programs. She was to contact both within 15 days of the commencement of that order.

[52] As of the date of hearing the summary judgment motion, M.J. had not started the PAR program. M.J. states in her affidavit that she made calls for the purposes of attending the PAR and anger management programs, but no specifics were provided.

[53] On May 30, 2019, Ms. Purza was advised by Carol Blayney from probation and parole that M.J. was not involved in any support services at the time, such as counselling or the PAR program, as had been recommended.

(c) Follow Through/Cooperation with The Society Expectations

[54] M.J. declined or did not provide consents for the Society to follow up with service providers and/or probation on:

(a) March 29, 2018;

(b) April 10, 2018;

(c) April 17, 2018; and

(d) February 19, 2019.

[55] On March 13, 2018, after admitting she was pregnant with H.J., M.J. declined to meet with Ms. Purza. She stated she was busy that week and the following and she would not be available to meet. She was advised it was important to meet as soon as possible to provide the Society with updates and to plan for the baby.

[56] Ms. Purza was able to later schedule a meeting for March 20, 2018. M.J. did not attend the meeting and did not call to cancel.

[57] After a series of text messages, M.J. agreed to meet March 29, 2018. When Ms. Purza and Ms. Widmer arrived, a man answered the door and claimed he did not know where M.J. was. M.J. eventually texted the worker and later came to the door and allowed the home visit.

[58] M.J. refused to disclose a home address for home visits in 2018 and finally disclosed an address on June 19, 2018.

[59] On January 14, 2019, Ms. Purza called M.J. to advise she wished to schedule a meeting to discuss her recent assault and breach of probation charges. When asked, M.J. disclosed she had no fixed address. M.J. declined to meet the next day and ended the conversation, advising she was in the middle of something.

[60] On January 15, 2019, Ms. Purza supervised M.J.’s access. She asked M.J. for her address and to schedule a home visit or a meeting. M.J. advised she was staying between her mother’s home and a friend’s in Kitchener. She did not provide an address. She was reminded she was expected to accommodate regular home visits. She asked Ms. Purza to text her Ms. Purza’s availability so M.J. could schedule a visit. Ms. Purza did so, proposing January 21, 2019. M.J. did not respond despite a follow up text from Ms. Purza and so a meeting did not occur.

[61] Scheduled home visits were cancelled or rescheduled by M.J. (September 17, 2018, September 21, 2018, and November 23, 2018) and M.J. did not co-operate in scheduling others (January 21, 2019, January 29, 2019, April 1, 2019, May 1, 2019).

[62] An unscheduled home visit was attempted by the Society on June 21, 2019 as M.J. was not responding to attempts to arrange a scheduled visit. On July 5, 2019, Ms. Purza attended for a scheduled home visit and there was no answer.

(c) Drug Use

[63] As previously noted, M.J. used both crystal meth and marijuana during her pregnancy and prior to coming into the hospital when she was going into labour.

[64] M.J. denies any ongoing illegal drug use. She admits to using marijuana for pain management (migraines and back pain) as opposed to taking direction from Dr. Ashton.

Access

[65] The Society states the mother does not always arrive on time, she does not always take direction, is reactive to supervising workers such that they are unable to role model or provide parental education, is at times inappropriate in front of the children, does not always follow through with suggestions, has difficulty ending the visits, difficulty adjusting to routine, is task oriented during the visits, and has difficulty adjusting to H.J.’s stage in life.

[66] The Society states that of the 111 access visits between May 4, 2018 and May 22, 2019, 24 were cancelled due to lack of confirmation by M.J. and that out of the 87 that occurred M.J. was late for 24.

[67] The Society states that access is mixed – it is neither horrific nor fantastic.

[68] The mother’s position with respect to access is quite different. She states that access with H.J. is regular and consistent, that he comes to her and opens his arms to be hugged and kissed and he returns her affection, that she plays with him and brings toys and food. She states that access is a positive experience for H.J. From his actions and speech, he clearly enjoys spending time with her and is completely comfortable being with her and being cared for by her. She believes that she and H.J. have a positive relationship and he is positively attached to her. She can read H.J.’s cues in access and understands what he needs; she is patient and not frustrated with him.

The Law

[69] Sections 101 and 102 of the CYFSA provide that 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:

1. 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;

2. that the child be placed in interim society care and custody for a specified period not exceeding 12 months;

3. that the child be placed in extended society care until the order is terminated under section 116 or expires under section 123;

4. 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; or,

5. that one or more persons be granted custody of the child, with the consent of the person or persons.

[70] The “best interests of the child” is the governing principle when considering placement.

[71] The factors to be considered in determining the best interests of a child are contained in section 74(3) of the Act, which provides as follows:

(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

(c) consider any other circumstance of the case that the person considers relevant, including,

i. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;

ii. the child’s physical, mental and emotional level of development;

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

iv. the child’s cultural and linguistic heritage;

v. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;

vi. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community;

vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;

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

ix. the effects on the child of delay in the disposition of the case;

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

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

[72] Sections 101(2) to (4) of the CYFSA obligate the court to consider additional factors when determining the issue of placement, including whether there are any less disruptive alternatives, such as community or extended family placements, and to make enquiries with respect to what efforts the Society has made to assist the child before intervention.

[73] The court’s decision with respect to what will happen to a child must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations.

[74] The court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of children.

[75] In determining which disposition is in the child’s best interests, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be placed in the care of the Society.

[76] Section 122 of the CYFSA provides that the court shall not make an order that results in a child being in the interim care of a Society for a period exceeding twelve months if the child is younger than six on the day the court makes the order, or twenty-four months if the child is six or older on the day the court makes the order. These timelines may be extended by up to six months if the court determines that it is in the child’s best interests to do so.

[77] Sections 105(5) and (6) of the CYFSA provide that a court shall not make or vary an access order with respect to a child who is in the extended care of the Society unless the court is satisfied that the order or variation is in the child’s best interests. As part of this best interests’ analysis, the court must consider whether the relationship between the person and the child is beneficial and meaningful to the child and, if the court considers it relevant, whether an access order will impair the child’s future opportunities for adoption.

[78] This section does not create a presumption against access. Under the CYFSA, 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 interest’s 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: see Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, [2019] O.J. No. 2029.

A. The Test for Summary Judgment in Child Protection Cases

[79] The Family Law Rules allow for a matter to be resolved without trial by way of a motion for summary judgment. In this case, the burden of proof is on the Society, who is the moving party. The moving party shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: see Rule 16(4).

[80] In its decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, the Supreme Court of Canada established a new approach to summary judgment motions.

[81] In its decision in Kawartha-Haliburton Children’s Aid Society v. M.W., the Court of Appeal for Ontario provided the following concise summary of the approach that the court should take to summary judgment within the context of child protection litigation, considering the decision in Hryniak:

[80] To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

1. 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.

2. 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.

3. 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.

4. Judicial assistance must be provided for self-represented litigants. 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.

5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[82] Rule 16(6.1) provides that in determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.

[83] Hyrniak states 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 Rule 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.

[84] 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: see Hryniak.

[85] The decision in Hryniak emphasizes that 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. In child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage rights for a vulnerable segment of our society under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings, which promotes Hryniak’s principle of reaching a fair and just determination on the merits: Kawartha-Haliburton Children’s Aid Society v. M.W.

[86] Hryniak’s fairness principles must be applied recognizing the distinctive features of a child protection summary judgment 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: Kawartha-Haliburton Children’s Aid Society v. M.W.

[87] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.) and Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, [2012] O.J. No. 3140 at para. 98.

[88] The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interest. There is not to be experimentation with a child’s life with the result that, in giving the parents another chance, the child would have one less chance. There must be some demonstrated basis for a determination that the parents are able to parent without endangering his or her safety. (See: Children’s Aid Society of Toronto v. C.G., supra, at para. 103).

[89] It is impossible for parents to overcome many years of destructive ways with an eleventh-hour reformation, no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children. (See: Children’s Aid Society of Hamilton v. A.M. and T.L., 2012 ONSC 6828, [2012] O.J. No. 5700 at para. 40).

[90] Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care, but are unable to take the steps to translate their proposals into a plausible reality. (See: Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737, [2012] O.J. No. 5780 at para. 7).

1. Finding that the Child is in Need of Protection

[91] The parties have agreed on consent that the child is in need of protection pursuant to section 74(2)(b-i) of the CYFSA.

B. Should the Court Grant Summary Judgment with Respect to the Society’s Request for Extended Care?

[92] Having considered the evidence before me, I find that it is in the interests of justice that this issue be resolved summarily. I find that I am able to make the necessary findings of fact and apply the law to the facts, and that such an approach is a proportionate, more expeditious, and less expensive means to achieve a just result.

[93] I find that the evidentiary record is sufficiently comprehensive on this aspect of the case for me to make a fair and just determination of the issues on the merits without the need for a trial.

[94] With the evidence I have before me and without the use of any expanded powers to weigh evidence or assess credibility, I am able to make a fair and just determination of the issue on the merits. Based on that evidence, I find that the Society has established, on a balance of probabilities, a prima facie case for summary judgment and that the responding party has not met her onus of establishing a genuine issue requiring trial, with respect to an order for extended care.

[95] Given the length of time the child has been in society care, I find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.

[96] The evidence satisfies me, on a balance of probabilities, that (1) intervention is required to protect the child both at the present time and for the foreseeable future, (2) that an order placing the child in the care of the mother could not adequately protect him, even with terms of supervision and, (3) that an order placing the child in the extended care of the Society would be a foregone conclusion if this matter were to proceed to trial.

[97] The factors that I have considered in arriving at the conclusion that there are no genuine issues for trial with respect to the child’s continuing need of protection, the requirement for intervention and the child’s placement into extended care are as follows:

(a) The child has been in foster care since birth. The mother has for this child’s entire life had only supervised access to the child. The Society is in no position to withdraw.

(b) The mother has a significant history of refusing to cooperate with the Society, and for her to now say that if she is ordered to co-operate she will is not credible, given that she has not worked with or co-operated with the society in any meaningful way to date. A supervision order would be of little assistance in this situation.

(c) The mother has cancelled scheduled appointments with the Society or not attended meetings without cancelling in advance. This lack of consistent communication has prevented the Society from working with her to address their concerns and raises significant doubt regarding her commitment to working with the Society toward the child returning to their care.

(d) The court has significant concerns regarding the mother’s pattern of unstable and volatile relationships and her reliance on these relationships. She has a significant history with domestic violence and conflict. Even her current relationship has been the subject matter of criminal charges.

(e) The mother has taken no steps to access the services she clearly needs to address her long-standing issues. Other than having a phone call with someone from the PAR program, and despite the clear comments made by Justice Oldham and the parenting capacity assessor, she has either declined or not accessed services.

(f) The mother has very little support. She identifies her supports as D.E. (the person whom she assaulted in 2019) and “other persons in the community” including Vineyard Church and contact persons Truck Lacoursiere Frederick and Christine Lakatos.

(g) She admitted to using illegal drugs during her pregnancy with this child when she clearly knew this was wrong.

(h) The mother did not have prenatal care while pregnant.

(i) The mother uses marijuana for pain management as opposed to going to a doctor.

(j) The mother’s lack of treatment, lack of cooperation with the Society, lack of insight would place the child at significant risk of harm if returned to her care.

(k) The mother has not always been truthful or forthcoming with the Society regarding her drug use, and her criminal involvement, suggesting that terms of supervision would not serve to always protect a child placed in her care.

[98] The Society has no knowledge of kinship caregivers available to care for the child. The mother has not put forward any suitable support person.

[99] Despite the love she feels for the child, the mother has been unable to effect sustained positive change in her life. The court cannot put the child’s life on hold while we wait for his mother to sort out hers.

[100] I have considered the best interests factors set out in s. 74(3) and make the following findings:

(a) the child is too young to ascertain his views and wishes;

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

(c) Any other relevant circumstances:

i. there is no evidence that the child has special needs;

ii. potential plan allows for siblings to be part of each other’s lives;

iii. there are no specific considerations regarding his race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression. I have no evidence regarding the child’s cultural and linguistic heritage;

iv. the society proposes that the child be placed for adoption or adopted. This plan will be beneficial for the child, as he will be able to form bonds with a family who can provide a safe and nurturing environment;

v. delay in the disposition of this case will have a negative impact on the child. It is in his best interests to be adopted as soon as possible so that he can form bonds with a family while young;

vi. there is a real and significant risk that the child may suffer harm through being returned to the care of his mother; and

vii. the child is two years old and has never been in the care of his birth parents. He requires stability and the opportunity to bond with a family. At his young age, his physical, mental and emotional level of development require stability.

[101] H.J. is a young and vulnerable child who has spent his entire life in the care of a child protection agency. He requires a stable, reliable and committed caregiver who can provide him with a safe, secure and permanent home.

[102] There are additional considerations when considering summary judgment motions in the context of child protection cases. These include the nature of the evidence, the mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved and particularly how material the facts in issue are to the case. In addition, the analysis must be undertaken under the umbrella of the paramount purpose of the legislation, which is to promote the best interests, protection and well-being of children. Specifically, summary judgment can be used as a procedural remedy to promote the child’s best interests and to support the time limitations established by the legislation. (See: The Children’s Aid Society of Waterloo (Regional Municipality) v. C.A.D., 2011 ONCA 684, [2011] O.J. No. 4891 at para. 5; Children’s Aid Society of Algoma v. A.K., 2015 ONSC 6166, [2015] O.J. No. 5372 at para. 35).

[103] Granting the summary judgment allows the court to meet the obligations of the legislation. The test is not will the parent change, but have they changed. A child cannot be returned in hopes that things will be better.

[104] The Society’s expectations with respect to H.J. are not new, they were in place and the plan of care for B.B. found at Vol 1, Tab 6 and in fact, in her own answer, she confirms those plans (Vol 1, Tab 8). There is no evidence before this court that the mother has done anything she said she would do.

[105] I have considered that I should exercise considerable caution before proceeding on a summary basis on a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants. I find that it is in the interest of justice for the court to determine this case summarily, save and except the issue of access. 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. The summary judgment process allows the court to fairly and justly adjudicate the dispute. I find that the evidentiary record is sufficiently comprehensive on the aspects of the case for which I have made my decision such that I can make a fair and just determination of the issue on the merits without the need for trial.

[106] M.J.’s plan for H.J. is not in H.J.’s best interests. H.J. is 1 year and 5 months old. He needs stability and a home. M.J. has not progressed significantly since the commencement of this application. The plan to place H.J. with his siblings has many benefits. Justice Oldham found the home to be “stable, loving and supportive.” (See Reasons for Judgment of Justice Oldham, dated January 25, 2019, at p. 29).

[107] Although there is no evidence that her current partner is abusive, their relationship has been far from stable. Although M.J. regrets her behaviour, she has not followed through with her peace bond conditions to attend programming. Without professional help and given her past relationships, the court does not have confidence that this relationship will be stable in the long term. The relationship is also what allows for housing. If her relationship breaks down, it is likely housing will break down. This is a case where the only option at this stage is extended Society care.

[108] Having determined that intervention is required and that it is not in the child’s best interests to be placed in the care of the mother, and having no other less intrusive options available, I find that the child’s best interests require an order placing him in the extended care of the Society.

3. Access

[109] As noted previously, when a child is placed into the extended care of the Society, any existing order for access to the child is terminated. The Society is seeking an order that there be no future access between the child and the responding parties.

[110] The interpretation of the terms “meaningful” and “beneficial” was considered on appeal by the Divisional Court in the case of Children’s Aid Society of the Niagara Region v. J.C., 2007 8919 (ON SCDC), 281 D.L.R. (4th) 328 (Ont. S.C.J.). In considering the grounds of appeal, Aitken, J. per the Court held:

Beneficial” has been held to mean “advantageous”. “Meaningful” has been held to mean “significant” (Children’s Aid Society of the Niagara Region v. M.J., supra, at para. 45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother’s relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was “beneficial” within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children’s emotional health, were identified.

[111] In Children’s Aid Society of Niagara Region v. J. (M.), 2004 2667 (ON SC), 2004 CarswellOnt 2800 (Ont. S.C.J.), Quinn, J. outlined several important principles relating to the test as set out above, stating:

What is a “beneficial and meaningful” relationship in clause 59(2)(a)? Using standard dictionary sources, a “beneficial” relationship is one that is “advantageous.” A “meaningful” relationship is one that is “significant.” Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough — it must be significantly advantageous to the child.

I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[112] The test is not whether the access is beneficial and meaningful to a parent or family member; the access must be beneficial and meaningful from a child’s perspective (Children’s Aid Society of Ottawa-Carleton v. C. (A.), [2007] O.J. No. 1322 (Ont. S.C.J.).

[113] The burden of proof is on the party moving for summary judgment. 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., supra, at para. 80).

[114] There are factual differences as to (a) the description and assessment as to how access is progressing, (b) why the visits were missed, and (c) whether the interaction is positive and comfortable.

[115] There are material facts in dispute.

[116] Based on the evidence that has been presented and considering the factors set out in section 74(3) of the CYFSA, I find that the issue of access is a triable issue.

Orders Granted

[117] This court orders the following:

1. An order for summary judgment pursuant to Rule 16 for the following:

a. the name and date of the birth child is H.T.N.J., born […], 2018;

b. H.J. is not a First Nations, Inuk or Metis child;

c. the location from which H.J. was removed is the Waterloo Region; and

d. H.J. is in need of protection pursuant to section 74(2)(b-i) of the Child, Youth and Family Services Act, 2017.

2. H.J., born […], 2018, be placed in extended society care, until the extended society care is terminated under section 114 or expires under subsection 123, and be placed in the care of the Children’s Aid Society of the Regional Municipality of Waterloo.

3. There shall be a focused hearing as to whether the mother has the right of access to H.J. and/or whether H.J. has a right of access to the mother.

D. Piccoli J

Released: September 25, 2019