COURT FILE NO.: 453/16

DATE: 2019/01/31

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Children’s Aid Society of the Niagara Region

Chris Etherden, Counsel for the Applicant

Applicant

• and -

S.C. and W.C.

Respondents

Wayne Brooks, Counsel for the Respondent mother S.C.

Father W.C. Respondent self-represented

HEARD: January 7, 8 and 9, 2019

WARNING

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

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

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

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

REASONS FOR DECISION

THE HONOURABLE JUSTICE M. J. DONOHUE

[1] The Society brought a motion for summary judgment pursuant to rule 16 of the Family Law Rules, O. Reg. 114/99, seeking a final order that the child, (“S-S. C.”), born […], 2013, be placed in the extended care of the Society without access for the purpose of adoption, in accordance with s. 113-114 and s.104-107 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 (“the CYFSA”). The parents oppose the motion.

[2] The mother of the child is S.C. The father is W.C. Hereafter, I will refer to them as the mother and the father.

[3] The child was brought to a place of safety on July 8, 2016. The Society commenced a protection application, and a temporary without prejudice order was made on July 13, 2016 placing the child in the care of the Society with access to the parents in the discretion of the Society.

[4] On April 6, 2017,on consent, the child was found to be in need of protection pursuant to s. 37(2)(b)(i), s. 37(2)(b)(ii) and s. 37(2)(g) of the Child and Family Services Act, R.S.O. 1990 c. C.11 (“CFSA”). She was made a ward of the Society for a period of three months.

[5] The child has continued in the same foster home since her removal and remains in care.

[6] On May 19, 2017, the Children’s Aid Society of Niagara (“the Society”) commenced a status review application of the order of Scott J. dated April 6, 2017, regarding S-S.C.

[7] The motion for summary judgment was originally scheduled for August 31, 2018. It had to be adjourned. The mother was not in attendance due to a medical emergency involving her elder daughter, and the father was not in attendance as he was incarcerated and it had not been arranged for him to attend court. Further, in light of hearsay evidence in the materials, the Society was to adduce some oral evidence by third party professionals. The matter commenced January 7, 2019 but came to a halt due to the father sustaining a fall and having to attend hospital. Court adjourned and the matter was fully heard on January 8 and 9, 2019.

[8] The child has resided in the Society’s care since July 8, 2016, a period of two years and six months. She is about to turn six years of age.

[9] The mother has a history with Brant Family and Children’s Services related to concerns of substance use. Her four eldest children have historically been cared for by Ms. L., the mother’s mother, while she addressed these concerns.

[10] There was no dispute regarding the preliminary findings.

[11] The matter in question is whether there is a genuine issue requiring a trial on the disposition of this child.

[12] The evidence in the hearing was as follows:

• Affidavits of Mallory Dilks, dated July 31, 2018 and December 5, 2018
• Affidavits of Bethany Cowley, dated August 1, 2018, December 6, 2018 and January 3, 2019
• Affidavits of Carly Alguire, dated August 1, 2018 and December 7, 2018
• Affidavit of Amy Chapman, dated January 3, 2019
• Affidavit of Jordan Carriere, dated August 2, 2018
• Viva voce evidence by Jeffrey Mathews of St. Paul Street Clinic
• Viva voce evidence by Vanessa Zwaagstra of CASON
• Viva voce evidence by Shirley Ann Ogilvie of ABC A Better Choice
• Viva voce evidence by Dr. Victor Uwaifo, psychiatrist
• Viva voce evidence by Tiffany Scriver of CASON
• Viva voce evidence by Nurse Seul Yoo
• Viva voce evidence by Willow Shawanoo of the Niagara Regional Native Centre

[13] The Society also filed business and medical records pursuant to the Evidence Act, R.S.O. 1990, c. E.23 as follows:

• Niagara Health System Emergency records, dated October 8 and 17, 2018
• Mental Health Outpatient Clinic report by Dr. Uwaifo, dated April 9, 2018
• Letter by Nurse Practitioner Yoo, dated May 29, 2018
• Life Labs Drug Screen – Urine, dated September 12, 2017
• St. Paul Clinic Urine Screens from January 4, 2018 to May 24, 2018
• Niagara Regional Police Service Occurrence, dated July 12, 2018
• Community Addiction Services of Niagara letter July 13, 2018 by V. Zwaagstra
• Community Addiction Services of Niagara letter dated July 31, 2018 by T. Scriver
• ABC Program letter dated August 1, 2018 by S. Ogilvie

[14] In response, the mother filed affidavits dated August 24, 2018 and December 17, 2018.

[15] The father did not file any responding materials.

Law on Summary Judgment Motions

[16] The Society brings this motion pursuant to r. 16 of the Family Law Rules.

[17] The burden of proof is on the party moving for summary judgment. Pursuant to r. 16(4), the party moving for summary judgment “shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.”

[18] Pursuant to r. 16(4.1), “the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.” The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial: see Kawartha-Haliburton Children’s Aid Society v. M.W., 2018 ONSC 2783 (Div. Ct.) (“Kawartha”).

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

[20] Rule 16(6.1) provides that in determining if there is no genuine issue requiring a trial:

[T]he 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 only exercised at trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[21] Pursuant to r. 16(6.2) “the court may, for the purpose of exercising any of the powers set out in r. 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.”

[22] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. The principles set out in Hryniak apply to child protection cases: see Kawartha, at para. 38.

[23] Hryniak sets out, at para. 49, that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

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.

[24] Neither party has the onus of establishing who will succeed at trial. That is the wrong question. Pre-Hryniak case law where courts examined whether a party has any reasonable chance of success no longer applies: see Kawartha, at para. 45.

[25] The key question is whether it is in the interest of justice for the court to resolve the case summarily. To do so, the court is required to consider whether the process allows it to make the necessary findings of fact, to apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure? See Kawartha, at para. 45.

[26] The inquiry into the interest of justice (a) considers the consequences of the motion in the context of the litigation as a whole, and (b) is a comparative process: see Children’s Aid Society of Ottawa v. K.F., J.M., and L.S., 2018 ONSC 3905 and Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371 (“CAS v. B.P.”).

[27] The summary judgment process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial: see Kawartha, at para. 43.

[28] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge: see CR v. Children’s Aid Society, 2013 ONSC 1357.

[29] While it is not appropriate to bypass a hearing just to ensure a speedy resolution, where the process is fair and the necessary evidence is available, the best interests of children and their particular needs should be addressed in a timely way: see Children’s Aid Society of Waterloo Region v. S.(R.), 2000 CanLII 22902 (Ont. C.J.).

[30] Delay in the litigation process in child protection matters must be measured from the child’s perspective. The court must consider the impact of delay on the best interests of the child: see Children’s Aid Society of Toronto v. L.T., 2016 ONCA 146 and CAS of Ottawa v. L.F.(1) and L.F.(2), 2016 ONSC 4044 (Div. Ct.).

[31] 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 the child faces some better prospect than what existed at the time of the Society’s removal of the child from the parent, and that the parent has developed some new ability as a parent: see Children’s Aid Society of London & Middlesex v L.A., 1999 CanLII 20470 (Ont. S.C.) and Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (Ont. C.J.).

[32] In determining if there is a genuine issue requiring a trial, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial, see: Children’s Aid Society of Dufferin County v. R.(J.), 2002 CanLII 45514 (Ont. C.J.) governing the child protection procedure under the Act and also the best interest of the child. In determining whether a genuine issue exists requiring a trial, the court must give paramount consideration to the best interest test which would include, among other factors, as certain a future as possible: see Children’s Aid Society of Algoma v. L.P., [2002] O.J. No. 2895 (S.C.J.); Children and Family Services for York Region v. J.V. and N.B., 2017 ONSC 4770.

Native Finding

[33] The preliminary finding included that the child had native heritage only, but no status. At that time, the matter was determined in accordance with the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended.

[34] The legislation has changed and this status review application is being decided in accordance with the CYFSA.

[35] Section 90(2)(b) of the CYFSA provides that before determining whether a child is in need of protection, the court shall determine whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuit or Métis Communities.

[36] The Society seeks a finding that the child is not a First Nations child, or if the court finds her to be a First Nations child, that she is not designated as affiliated with any band.

[37] The evidence is that the father has no native heritage.

[38] The mother, however, advises that her father and paternal grandmother were native. She believed they had had a connection to a reserve in Edmonton, but there were no other details upon which to make further enquiries. The mother is not connected with any band and only recently contacted the Niagara Regional Native Centre in August 2018, to be involved in several native heritage activities.

[39] There is no evidence of band identification of either the mother or the child.

[40] There is evidence of native heritage.

[41] Accordingly, I find the child has native heritage but is not affiliated with any band.

Overview

[42] The child was removed from her parents’ care due to the substance abuse concerns regarding both the mother and the father. Both were primary caregivers for the child. There was also a concern regarding criminal behaviour.

[43] It is not disputed that the Society workers repeatedly encouraged and facilitated a number of treatment programs for each parent over the last two-and-a-half years.

[44] Initially, the mother and the father denied that there had been any relapse into substance abuse but the materials disclose that it was later admitted that there actually was substance abuse.

[45] The final order of Scott J., dated April 6, 2017, made the child a ward of the Society for a period of three months. This is the order under review.

[46] The order at the time also dealt with the child’s older brother and included the following terms;

--Ms. C and Mr. C shall sign Releases of Information permitting the Society to exchange information with identified service providers for themselves and the Children as requested by the Society to exchange information with identified service providers for themselves and the Children as requested by the Society. Information sought will relate to attendance at services; topics covered; general progress and participation; and service provider recommendations.

--Mr. C and Ms. C shall refrain from any non-medically prescribed drug use.

--Ms. C and Mr. C. shall complete any substance use assessments, urine screens and substance use treatment programs, as recommended by the Society or other professionals they are associated with. This includes but is not limited to probation officers, family doctors, or counsellors.

[47] The materials disclose that both the mother and the father had relapses with substance abuse subsequent to this court order.

Urine Screens

[48] There is uncontradicted evidence that the father was caught on video tampering with urine samples.

[49] There is hearsay evidence that there was urine kept in the fridge from several sources. The evidence of the mother confirms that urine was kept in the fridge. The reason she gives is that it was kept there from the father’s mother, who had to have E. coli levels tested.

[50] Further, there was a refusal to sign releases for urine screens pre-dating September 12, 2017. The reasonable inference from that refusal is that the screens would show positive drug tests before that time.

[51] The urine screens for 2018 show no drugs detected.

Mother’s Health

Psychiatrist

[52] The psychiatrist, Dr. Uwaifo, testified and his consultation report was filed as an exhibit. He met with the mother on April 9, 2018 and reviewed her medical chart.

[53] The history the mother gave him stated she had been clean from substances for four years. Later she stated she had been clean from substances for eight years until “last summer”, which was 2017. She told him that she relapsed for one month, with heroin.

[54] On examination, he found her to be properly dressed, making good eye contact, her speech clear in tone, volume and rhythm, and her mood was described as stable. Her cognition was grossly intact and her insight and judgment were fair.

[55] His diagnosis was largely consistent with her medical history of: borderline personality disorder; panic disorder without agoraphobia; and Cocaine and opiate use disorder, in remission. The conclusion of his report was that “she seems to be on the right path, albeit symptoms in partial remission. She has been strongly encouraged to participate in dialectic behavioural therapy.”

[56] Her current prescription drug regimen was not changed as she advised the doctor that it was working for her: Effexor; valproic acid; Ferrous Fumarate; multivitamins; and methadone.

[57] He recommended that she participate in Dialectic Behavioural Therapy (“DBT”). He noted she said she was on a waiting list. He had recommended this in light of her borderline personality disorder. He stated that DBT treatment had been shown to be helpful to addiction and mental health patients to manage and cope in a crisis and help with relapse prevention.

[58] Dr. Uwaifo’s diagnosis and history was not disputed.

Nurse Yoo

[59] The Society’s service plan expectation was that the mother would address her mental health issues through Quest. Nurse Practitioner Yoo, from Quest, testified.

[60] Nurse Yoo had recommended the mother to DBT in April 2017, the previous year, but it was a long waiting list. Nurse Yoo asked the mother to meet with her on May 10, 2017 to fill out forms for DBT treatment at Canadian Mental Health Association (“CMHA”) and St. Catharines General Hospital, but the mother did not appear for the appointment.

[61] The mother had no appointments with Nurse Yoo from January to May 2018. Nurse Yoo kept renewing the pharmacy requests for medication by fax, but wished to meet to assess her.

[62] Nurse Yoo’s records indicate that the mother was a “no show” for the appointment of June 14, 2018 and a “no show” for the gynecologist’s appointment she arranged for July 4, 2018. The mother “did not show” for appointments for August 14, October 30, November 9 and December 10, 2018.

ABC Program

[63] The counsellor at A Better Choice program, Ms. Ogilvie, testified that she had six education visits with the mother from October 10, 2017 to February 14, 2018. They began the process to apply to a residential drug program in Whitby. Then the mother requested that they pursue the residential program at New Port in Port Colborne. Ms. Ogilvie stated this was not done as she lost contact with the mother.

[64] The mother contacted her again on February 14, 2018 requesting a referral to New Port but then missed the scheduled appointment with Ms. Ogilvie in March 2018. The last time Ms. Ogilvie had seen the mother was on February 14, 2018. The mother contacted her again in October 2018 but failed to attend the scheduled appointments. The mother contacted her most recently the day before this motion began to schedule an appointment.

CASON

[65] Ms. Zwaagstra of Community Addiction Services of Niagara testified that the mother contacted her to access services in June 2018 for the Relapse Prevention Program and individual counselling. The mother attended the intake appointment on June 25, 2018 and attended only one of the eight Structured Relapse Prevention groups. She missed her individual counselling appointment scheduled for July 9, 2018.

[66] The mother contacted her in the fall and began the eight session Structured Relapse Prevention Program on September 12, 2018. She missed three of the eight sessions and so the program was deemed incomplete. Ms. Zwaagstra stated that six out of eight sessions is counted as a completion of the program.

[67] On November 7, 2018, she began the paperwork for the residential program at New Port with the mother. There was still paperwork outstanding in December. The mother missed her appointment on December 27, 2018, which was to follow-up on the New Port referral and the paperwork required.

Niagara Regional Native Centre

[68] Ms. Shawanoo, native centre advocate, testified that she met the mother in August 2018. They discussed a referral to a residential program at New Port and also to the Native Horizons Treatment Centre. There was no application made to either. The Native Horizons Treatment Centre had a fire in the fall of 2018 and so it was no longer an option.

[69] Ms. Shawanoo was aware of perhaps eight access visits between the mother and child at the Native Centre drum nights in the early fall of 2018.

[70] Ms. Shawanoo arranged for the mother to attend a parenting course at the Native Centre. She coordinated with the Society for a volunteer driver to pick the mother up and bring her to the meetings. The mother was found not to be home for the first two sessions and so the driver had to be cancelled. The parenting course was never attended.

[71] The mother’s evidence was that the driver did not attend on the second date and she had no way of attending otherwise.

Overdose of the Mother on October 8, 2018

[72] Niagara Health System records confirm an ambulance was called and a patient was taken to St. Catharines General Hospital for opioid overdose. On arrival, the ambulance attendants found her Glasgow Coma score to be 3 out of 15. With treatment, she regained consciousness to 15 out of 15 within 10 minutes. There are references to crack and heroin and that “patient put unknown substance in her pipe and smoked it.” The nurse’s notes state that she thought she grabbed a cigarette but it was actually an opioid.

Mother’s Evidence

[73] The mother’s affidavit states that she plans to attend New Port Centre residential treatment center in January 2019 but there was no evidence that she had completed the application.

[74] In her two affidavits, she noted some of the challenges she had attending various appointments.

[75] Her evidence is that she did not complete the fall CASON sessions due to a conflict with access. The Society evidence in reply is that the mother initially did not advise of a conflict so the access could be changed. Although the access was changed for the last CASON session, the mother still failed to attend and complete the program.

[76] The mother admits the worker’s evidence that on May 18, 2018 pills were on the floor but states that the cat knocked them over.

[77] The mother admits the worker’s evidence that on May 22, 2018 some of the medication was in the garbage and explained that, at times, she forgets to take her night time medication.

[78] The mother admits there was an overdose in October 2018. Her evidence is that she had taken two prescribed sleeping pills and accidently picked up a glass stem of Fentanyl, thinking it was a cigarette, and smoked it by mistake.

Father’s Health

[79] The Society’s materials set out the father’s long denial of substance abuse despite observations by workers of his losing weight, fresh scabs, red dots, unkempt appearance, and drowsy behaviour on access visits. Ultimately, the mother acknowledged that the father had been “using” into 2017.

[80] On September 7, 2017, while incarcerated at Thorold Detention Centre, he disclosed to the worker, Ms. Dilks, that he wanted to focus on “getting clean” and he now planned to go for treatment.

[81] He began a parenting course after being released on October 2, 2017 but had quit the program in November 2017.

[82] To his credit, he followed through on the referral to the New Port residential treatment program for 18 days, which was completed March 1, 2018. On discharge, he was to seek support through the 12-step community program and continue working with CASON case management.

[83] Ms. Scriver at CASON testified regarding her attempts to have the father follow through with the aftercare treatment. Five scheduled appointments were missed by the father and the file was closed in April 2018 as a result.

[84] Ms. Scriver testified that the file was reopened on June 11, 2018 for the Structured Relapse Prevention Program but the father attended only two of the eight sessions and the file was closed July 27, 2018.

[85] It is clear that he did not complete those sessions due to his incarceration in July 2018. He was released, however, on October 27, 2018 and there is no evidence that he sought to re-enroll in the program.

Access

[86] Access began in August 2016 as supervised access, at the Society offices, for two hours, twice a week.

[87] There were a number of issues and concerns as set out in the affidavits that the parents were arriving consistently late; they were missing access or cancelling at the last minute; that they looked unwell, thin, unkempt and were drowsy and falling asleep during access.

[88] Rather than access being improved over time, the access was reduced to one visit a week by August 3, 2017, because of the concerns noted above.

[89] By September 2017 it was restored to two visits a week.

[90] There is evidence of the distress caused to the child when access was missed.

[91] Finally, on November 7, 2017, the Society was satisfied that access could be unsupervised at the Society offices, if their sobriety assessment was satisfactory.

[92] By March 29, 2018, the access was allowed to be unsupervised for two hours twice a week, in the community, at the Kiwanis Centre.

[93] Special access visits were given for the Easter egg hunt in April 2018 at Montebello Park and in October 2018 for the Pow Wow also in Montebello Park. While the father was incarcerated, there was telephone access in the summer of 2018.

[94] Following the mother’s overdose in October 2018, access was no longer in the community and was returned to the Society offices and occasionally at the Native Centre on drum night where it was supervised by their staff in November.

[95] Affidavit evidence of Society worker, Ms. Alguire, indicated that on December 5, 2018 the father’s access was terminated as he appeared “under the influence”. He was “sweating profusely…through parts of his sweatshirt.”

Kinship Plans

[96] Several kinship plans were presented over the last two years. None were viable options. The mother’s mother had withdrawn her plan. It was not argued by the parents that there were appropriate kinship plans. Their focus at the motion was on having the child returned to their own care.

Position of the Parties

The Society’s Position

[97] The Society has serious concerns about the substance abuse by both parents. It was for this reason that the child was removed and brought to a place of safety in 2016 and found to be in need of protection in 2017.

[98] Since that time, the parents have been urged by Society workers, and in fact ordered by the court, to follow through with treatment programs and counselling which have largely been incomplete.

[99] In light of past behaviour of tampering with urine samples, the Society is not reassured by the clean urine screens that have been provided in 2018. In light of the parents’ failure to follow through on rehabilitation and relapse prevention programs the future safety of the child remains compromised.

The Mother’s Position

[100] The mother relies heavily on the urine screens as evidence that she has been substance free for over a year.

[101] Her care plan, as set out in her affidavit of August 24, 2018, was to separate from the father and relocate to Hamilton so that she may care for the child on her own.

[102] Evidence elicited from the ABC counsellor, Ms. Ogilvie, indicated that there were plans for the mother to attend an augmented program jointly with CASON which will start in April 2019. It was argued that the mother planned to attend the residential treatment program at New Port in 2019.

The Father’s Position

[103] The father did not have a care plan and filed no materials. His position appeared to support that of the mother’s position. He too urged the court to rely on the urine screens as evidence of the parents being clear of any drugs.

Disposition

[104] I find that it is in the interests of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate the dispute.

[105] I find that I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility.

[106] I find that the evidentiary record is sufficiently comprehensive on all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a trial. Cross-examination of further witnesses would add little, if any, value to the court’s analysis. The material facts of this case are not really in dispute.

[107] 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.

[108] I find that the Society has established, on a balance of probabilities a prima facie case for summary judgment with respect to the relief sought, and that the responding parties have not met their onus of establishing that there is a genuine issue requiring a trial on any issue.

[109] My decision has considered the factors to be taken into account when dealing with the “best interests of the child”, as set out in s. 74(3) of the CYFSA. My decision takes into consideration the paramount purpose of the CYFSA, as articulated in s. 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations.

[110] 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 12 months if the child is younger than six on the day the court makes the order or 24 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.

[111] The evidence satisfies me on a balance of probabilities that intervention is required to protect the child both at the present time and for the foreseeable future, that an order placing the child in the care of either the mother or the father, or both, could not adequately protect her, even with terms of supervision, and 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.

[112] I reach these conclusions for the following reasons.

Reasons For Extended Care Order

• The Society has explored kinship plans and all have been found to be either unsuitable or withdrawn;
• although Dr. Uwaifo stated in April 2018 that the mother’s mental health was treated properly with her current drug regimen, in May 2018 the mother admitted that some of her medication was thrown out in the garbage because “at times she forgets to take her night time meds”;
• although denying that they were using drugs post-apprehension, ultimately it was admitted that both had relapses up to August 2017; furthermore, neither has completed a Relapse Prevention Program;
• the mother blames sleeping pills on the evening of October 8, 2018 for smoking a Fentanyl stem instead of a cigarette and not knowing what she was doing;
• the mother’s care plan set out in August 23, 2018 to separate from the father and relocate to Hamilton, has not taken place, even as of five months later;
• although Nurse Yoo was prepared to assist in getting the mother into the DBT treatment program recommended by the psychiatrist, the mother missed all the appointments scheduled in 2018 to do this paperwork;
• the urine screens, although providing encouraging evidence of being substance free in 2018, are weakened by the evidence of sample tampering in the past and the acknowledged presence of urine in the fridge;
• a number of times the mother has tried to seek treatment but has been unable to follow through on the DBT treatment, regular checkups with Nurse Yoo, scheduling a residential program, completing the CASON Structured Relapse Program, and the Native Centre parenting program over a lengthy two-and-a-half years; as past behaviour is the best predictor of the future, although she has plans to attend future programs, it appears most unlikely that she will complete them;
• while the father has spent a good portion of the last two-and-a-half years denying his drug use, he showed good initiative in completing the 18-day residential program in early 2018; but he completely failed to maintain the follow-up programs to prevent future relapses;
• there is a remarkable history over the last two-and-a-half years of the mother missing appointments for access; home visits by workers; appointments with Nurse Yoo, Ms. Ogilvie, Ms. Zwaagstra, CASON counselling and group sessions, as well as the parenting course at the Native Centre. The mother’s evidence gives excuses for missing a scattering of these appointments but does not address the bulk of these failures to attend;
• equally, the evidence is that the father has missed a great number of access visits, home visits, and attendances at CASON as well as discontinuing the parenting course. His situation has been complicated further by a number of months of repeated incarceration;
• despite more than two years passing, there remain concerns for child safety for such simple admitted things as medication on the floor; medication not taken and thrown out; and the taking of sleeping pills that would lead the mother to taking opioids unknowingly;
• there is evidence of ongoing risk of drug use by the mother’s ostensibly ‘accidental’ overdose and the father’s terminated access visit on December 5, 2018 when he appeared to be under the influence;
• the access has not progressed to a safe assessment of the child in the home despite the passage of over two years;
• the child has waited two-and-a-half years for the parents to complete treatment and it has not occurred.

Conclusion

[113] I am persuaded that the parents have had good intentions to try to do what is needed to get treatment to prevent future risk to their daughter but have been unable to do so.

[114] Despite help from Nurse Yoo, ABC counsellors, CASON counsellors and the Native Centre advocate, these parents have been unable to follow through on programs to completion and prevent future risks to this child.

[115] There remain profound and unresolved risks in relation to both the mother and the father for substance abuse relapses. They have not made meaningful progress.

[116] The material evidence is undisputed and there is no genuine issue requiring a trial as to what is in the best interests of the child.

[117] The love these parents have is demonstrated by their repeated efforts to see her and try to get treatment. Their challenges in life, however, for any number of reasons, have prevented them from being able to accomplish what is needed here.

[118] The Society and the court, as well as the child, have waited for these parents to actively participate in education and rehabilitation. They have in fact waited more than twice the time which the law allows. A child under the age of six years was to have permanence in her situation arranged within one year.

[119] I order the child be placed in extended care.

Access Once A Child is Placed in Extended Society Care

[120] Section 105(4) of the CYFSA terminates any order for access when the court makes an order that a child be in extended society care.

[121] Section 105(6) sets out considerations to determine whether access should be granted in a child’s best interest as follows:

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.

[122] The person requesting access must provide evidence and satisfy the court on a balance of probabilities on both these requirements. Otherwise the court cannot make an access order.

[123] The case law under s. 59(2.1) of the CFSA with respect to the interpretation of “beneficial” and “meaningful” remains relevant to s. 105(6) of the CYFSA.

[124] In determining whether the relationship is a “beneficial and meaningful relationship”, it must be evaluated from the child’s perspective. The person seeking access must prove that their relationship with the child brings a significant positive advantage to the child. It is insufficient that the child loves the parent, or that the parents wants to continue to be a part of the child’s life. Standing alone, those findings are inadequate to satisfy the requirement that the relationship between the child and parent is “beneficial” within the meaning of s. 59(2.1) of the Act. More is required than love, the display of love, the fact that the parent is the biological parent, and the fact that some visits are pleasant: see Catholic Children’s Aid Society of Toronto v. L.D.E., 2012 ONCJ 530 (“Catholic CAS”) at para. 57 citing the 2007 decision of Aiken, J. at para 29 in CAS Niagara v. J.C., 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058.

[125] A “beneficial” relationship is one that is advantageous to the child. A “meaningful” relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between the parent and child, that is not enough – it must be significantly advantageous to the child: see Catholic CAS at para. 58, citing the 2004 decision of Quinn, J. at para. 45 in Children’s Aid Society of Niagara Region v. M.J., K.S. and S.S., 2004 CanLII 2667 (ON SC), [2004] O.J. No. 2872 (S.C.).

[126] The onus is on the person seeking access to “satisfy the court that access to the Crown Ward will not diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption.” See CCAS v. L.S. & W.D., 2011 ONSC 5850.

[127] In CAS v. B.P., at para. 82, Pazaratz J. reviewed the test under the CYFSA relating to access to a child in Extended Society Care indicating that “the best interests of the child is the test” under s. 105(5), and that “the court may not order access to such a child unless it is satisfied that the order would be in the child’s best interests”.

[128] Pazaratz J. noted at para. 86 the following:

a) There is still a presumption against access to a child in extended Society care;

b) It is still mandatory for the court to consider whether the relationship is beneficial and meaningful to the child in some way;

c) The court still has the discretion to consider whether access will impair future adoption opportunities.

d) While the overall legal test is less rigidly define, [between the CFSA and the CYFSA] nonetheless the onus remains entirely on the person seeking access to a child in Extended Society Care to establish on a balance of probabilities that access would be in the best interests of that particular child.

[129] Pazaratz J. states further at para. 87 that “The…case law under s. 59(2.1) of the CFSA with respect to the interpretation of “beneficial” and “meaningful” remains relevant in relation to s. 105(6) of the CYFSA.”

[130] Also, in Children’s Aid Society of the Districts of Sudbury and Manitoulin v C.H., 2018 ONCJ 453, [2018] O.J. No. 3675 (C.J.), para. 23-24, Kukurin J. addressed this issue and noted:

23. I am of the view that there still remains an onus under the CYFSA on the person who seeks an access order to a child who has been ordered into extended society care, to persuade the court that the relationship between that person and the child is beneficial and meaningful to the child and to do so on the balance of probabilities. While this is now a “consideration” in the best interests test under s. 74(3) of the CYFSA, it is an important one, perhaps more important than any other.

24. The purpose of an access order after a child is ordered into extended society care is different than the purpose of an access order before an extended care order is made. The extended care order presumes that the child and the access seeker will not be re-united in one family. In fact, the permanency plan for such child is necessarily with someone else. So why have an access order? The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful. That is not to say that if the access seeker is, for example, a parent of the child, there is an automatic presumption that access between the child and that parent is beneficial and meaningful. It must still be shown to be. The same applies for any other category of access seeker, and even the child itself if he or she is seeking access.

[131] No evidence or argument was presented by either parent that access would be significantly advantageous to the child. It is noteworthy that the access has regressed from time in the community to access at the Society offices to review the sobriety of the parents. Access never progressed to time in the home.

[132] Accordingly, I find no genuine issue requiring a trial on the issue of access. I order no access, permitting the child’s adoption, which is in her best interests.

Final Order

[133] My final order is as follows:

1. The child, S-S.C, born […], 2013 shall be placed in the extended care of the Children’s Aid Society of Niagara.

2. There shall be no access between S-S.C. and the mother, S.C., or the father, W.C.

3. The child has native heritage but is not affiliated with any band.

M. J. Donohue, J.

Released: January 31, 2019

COURT FILE NO.: 453/16

DATE: 2019/01/31

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

Children’s Aid Society of the Niagara Region

Applicant

– and –

S.C. and W.C.

Respondents

REASONS FOR DECISION

M. J. Donohue, J.

Released: January 31, 2019