The Children’s Aid Society of Niagara Region v. M.Z.

CITATION: 2019 ONSC 6511

COURT FILE NO.: 157/18

DATE: 2019-11-12

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Children’s Aid Society of Niagara Region, Applicant

AND: M.Z., Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Paul Heinen for the Applicant; Linda McKenzie for the child

HEARD: November 12, 2019

ENDORSEMENT

[1] The Society moves for summary judgment on its Application for an order giving custody of the child to his maternal aunt. The aunt has consented to such an order. The child, who is 13 years old, supports the Society’s motion. The child is not Indigenous.

[2] This motion last came before the court on September 16, 2019, when the Respondent, the child’s mother, M.Z., consented to the removal of her lawyer from the record and agreed to represent herself. Gregson J. adjourned the motion for summary judgment, told the Respondent what she should file and when she had to file it. The Responding mother has filed nothing since and has not appeared today. At earlier stages in the proceedings she has filed two plans of care. She is not in a position to fulfil either plan. Court records show that she is prohibited by the terms of a judicial interim release order from having contact with any male person under the age of 16. She has been charged with administering a noxious substance to her then partner’s minor son. She has failed to appear on that charge and the latest available information is that a bench warrant is outstanding for her arrest. She has problems with mental health that have manifested in bizarre behaviour in the presence of the child. The Society has offered to help her, but she has not taken them up.

[3] The Society’s plan of care calls for the child to continue to be in the care of his maternal aunt, where he has been since 2017, with access to the mother in the aunt’s discretion. The aunt has had to exercise discretion because the mother has a history of missing access and of making toxic utterances during access visits. The aunt is closely bonded with the boy, who also sees his maternal grandmother regularly. The boy is doing well in school and enjoys extra-curricular sports as well. The affiant social worker has visited the aunt’s home and confirms that it is a fit place for the child to live.

[4] The child’s father was deported to Poland in 2014. Now in England, he has had telephone contact with the child relatively recently. The aunt reports that the contact has been positive. The father has not taken part in the present proceedings.

[5] The child was found to need protection on November 14, 2017.

[6] The principles for the application of Rule 16 of the Family Law Rules to child protection proceedings are summarized by the Court of Appeal in L.M. v. Children’s Aid Society of the Region of Peel, 2019 ONCA 841 at paragraph 49.

[7] The Society has established that there is no genuine issue that requires a trial. On the evidence before me it is inconceivable that the court could do otherwise than to grant the Society’s application. Alternatives would be inadequate to protect the child. It is in the child’s best interest to make the order under s.102 of the Act instead of resorting to s.101.

[8] I order under s.102 of the Child, Youth and Family Services Act that custody of the child be given to his maternal aunt with access to the child’s mother in the aunt’s discretion and in accordance with the child’s wishes, in terms of paragraphs 1, 2 and 3 of the prayer for relief at volume 2, tab 14 of the Continuing Record.

[9] Costs are not sought or ordered.

J.A. Ramsay J.

Date: 2019-11-12