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 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.

Court File and Parties

COURT FILE NO.: FC-06-1031-2 DATE: 2020/02/24 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF G. (D.O.B. …. 2018)

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – K.S. Respondent

Counsel: Karine Jackson, for the Applicant Kristen Robins, for the Respondent

HEARD: October 28, 2019

Reasons for Decision on a Motion for Summary Judgment

D. Summers J.

Overview

[1] The Children’s Aid Society of Ottawa (the Society) brings this motion for summary judgment under Rule 16 of the Family Law Rules, O. Reg. 114/99 (FLR’s) and within the context of a status review application under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA). The Society seeks an order that the child, G., born [….] 2018, be placed in extended society care for purposes of adoption. The Society submits that the child, G., continues to be in need of protection and that the mother has demonstrated little insight into the protection concerns or ability to meet those concerns.

[2] The respondent mother, K.S., opposes the motion and asks that it be dismissed. She says the evidentiary record is insufficient to support the factual findings that the court must make to support a summary judgment order. She submits that the Society has not met the burden of proof.

[3] To determine this motion, I reviewed and considered the following documents and affidavits: the Society’s Status Review Application and Plan of Care; the mother’s Answer and Plan of Care; the Notice of Motion dated July 3, 2019; the affidavits of the Child Protection Worker sworn July 4, 2019 and October 9, 2019; the affidavit of the Child-in-Care Worker sworn October 10, 2019; the affidavits of two Child and Youth Counsellors, one sworn March 1, 2019, one sworn August 1, 2019 and two sworn October 11, 2019; the Family Court Clinic Assessment dated June 25, 2007 prepared in relation to the mother’s first-born child, L.; a Statement of Agreed Facts dated December 19, 2007 signed in the protection application concerning L.; the affidavit of the mother, sworn October 21, 2019; and the affidavit of the mother’s case manager from Service Coordination for People with Developmental Disabilities sworn July 31, 2019.

[4] As I will explain below, I find that I can reach a fair and just determination on the trial worthy evidence before me. I find that G. remains in need of protection and there is no less intrusive disposition that is in her best interests than extended society care. The Society’s motion for summary judgment is allowed. The mother shall have access to the child, and the child shall have access to the mother.

Background

[5] The Society became involved with the mother in 2005 when she was pregnant with her first child, L. He was apprehended at birth in 2006 and placed in temporary Society care. The protection concerns related to the mother’s mental health, anger management issues and inability to provide adequate care. L. did return to the mother’s care for a brief time before being apprehended again. In December 2007, the court made an order, on consent, placing L. in the custody of his paternal grandmother. The mother was granted access but ultimately decided to terminate all contact.

[6] After the Society attempted, unsuccessfully, to reach out to the mother prior to the birth of the child, G., who is the subject of this proceeding, a birth alert was created. G., who is now 18 months old, was taken to a place of safety at birth, on [….] 2018. K.S. is her biological mother.

[7] Justice K. Phillips made a temporary without prejudice order placing G. in the care of the Society. The order provided the mother with access at the discretion of the Society subject to a minimum of three visits per week. In the event the mother missed two or more visits within a two-week period without reasonable justification, access reverted to the Society’s discretion.

[8] On November 27, 2018, Justice J. Blishen found G. to be in need of protection under s. 74 (2)(b)(i) of the CYFSA and made a final order, on consent, for four-month interim society care with access to the mother. The level of supervision, frequency, duration, and location of the mother’s access was at the Society’s discretion subject to a minimum of three visits per week. In the event the mother missed two visits in a row or fifty percent of the visits in a two-week period without reasonable justification, access reverted to the Society’s discretion. The court also made statutory findings including the finding that the father is unknown and that the child, G., has indigenous heritage but does not identify with any band or community.

[9] On February 27, 2019, the Society brought the status review application currently before the court.

[10] On June 11, 2019, Engelking J. ordered the production of the mother’s medical notes and records from the Ottawa Hospital and the mother’s community medical centre. Production from the hospital covered the period between March 2018 and the date of the order. Production from the mother’s primary care physician at the medical center covered the period between the date of the child’s birth to the date of the order.

[11] G. has been in the same foster home since her discharge from the hospital. She is developing well. Her time in care exceeds the statutory maximum.

The Issues

[12] The issues to be determined are:

1. Is there a genuine issue requiring a trial to determine whether the child continues to be in need of protection;
2. Is there a genuine issue requiring a trial to determine whether there is a disposition that is in the best interests of the child that is less intrusive than extended society care;
3. Is there a genuine issue requiring a trial to determine whether access is in the child’s best interests.

The Law

(i) Status Review Application

[13] The law on a status review application was summarized by Justice Pazaratz in Catholic Children’s Aid Society of Hamilton v. S. (B.L.), 2014 CarswellOnt 12921 (Ont. S.C.J.) at para. 83:

a. In a status review hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made. b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection. c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 (S.C.C.)). d. Secondly, the court must consider the best interests of the child. e. The analysis must be conducted from the child’s perspective.

[14] Under s.114 of the CYFSA, the court, on a status review application, must determine what order is in the best interests of the child. It may:

a. vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order; b. order that the original order terminate on a specified future date; c. make a further order or orders under section 101; or d. make an order under section 102.

[15] If the court finds the child continues to be in need of protection and is satisfied that an order is necessary to protect the child in the future, the court must make one of the following orders under s. 101 of the CYFSA, or make a custody order under s. 102, in the best interests of the child:

Supervision Order

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;

Interim Society Care

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

Extended Society Care

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

Consecutive Orders of Interim Society Care and Supervision

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.

[16] Section 74(3) of the CYFSA, sets out the factors to be considered when determining the child’s best interests. It states that the decision maker 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.

[17] Sections 101(2), (3), and (4), require the court to determine what efforts the parties made to assist the child before intervening and to determine whether there are less disruptive alternative dispositions that would provide adequate protection before removing the child from the person who had charge immediately before the intervention. Alternative dispositions include non-residential care, placements with an extended family member, or placements with a community member.

[18] Decisions made under the CYFSA must consider the paramount purpose of the legislation which is to promote the best interests, protection and well-being of children. The court must also consider the additional objectives set out in the legislation under s.1(2) to the extent that they are consistent with the paramount purpose in ss. (1). These objectives recognize a host of factors including the following: when help is offered to the parents for the care of a child, it should, where possible, support the autonomy and integrity of the family unit; the import of taking the least disruptive action that is available and appropriate for the child; and the child’s need for stability and continuity of care within a family and cultural environment. The services provided should also consider all aspects of the child’s needs and qualities including physical, emotional, spiritual, mental and developmental needs and the child’s race, colour, ancestry, ethnicity, place of origin, disability, sex, sexual orientation, gender identity, gender expression, regional differences and cultural and linguistic needs. Services should build on the strength of families where possible. Special consideration is owed to the needs of indigenous families to recognize their culture, heritage and traditions.

(ii) Summary Judgment

[19] Rule 16 of the Family Law Rules, O. Reg. 114/99, as. am. (FLR’s), governs summary judgment motions. The rule applies to child protection cases. The sections of the rule relevant to this motion are:

When available

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

Available in any case except divorce

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

Evidence required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

Evidence of responding party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

Evidence not from personal knowledge

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

No genuine issue for trial

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

Powers

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

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

Oral Evidence (Mini-Trial)

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

[20] The Supreme Court of Canada, in Hryniak v. Mauldin, 2014 SCC 7, said that a motion for summary judgment requires the judge to first determine whether there is a genuine issue requiring a trial by considering only the written evidence before the court. If the court determines that it can fairly and justly decide the merits of the motion on that evidence alone, there will be no genuine issue requiring a trial. For the summary judgment process to be appropriate, it must allow the judge to make the necessary findings of fact, to apply the law to the facts, and be a proportionate, speedier and less expensive means to a just result. If, however, it appears that there is a genuine issue requiring a trial, the judge should then determine if that need can be addressed by using the new fact-finding powers. They are discretionary powers under the summary judgment rule and may be used by the court if doing so is consistent with the interests of justice. That will be so if their use will lead to a fair and just result while serving the goals of timeliness, affordability and proportionality considering the whole of the litigation.

[21] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the Ontario Court of Appeal summarized the proper approach to motions for summary judgment in child protection proceedings as follows:

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. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

Trial Worthy Evidence

[22] In closing argument, counsel acknowledged the presence of hearsay evidence in the affidavits filed by both parties. Counsel did not state the purpose for which the hearsay was tendered nor were the specific instances identified. It was suggested that the court itself could address the hearsay issues and determine admissibility. I did not find that suggestion helpful. Since neither counsel attached enough importance to the hearsay evidence to address the specifics and since the first-hand evidence persuades me that there is no genuine issue requiring a trial, I do not find it necessary to conduct an independent analysis to determine whether the evidentiary record contains inadmissible hearsay. My factual findings and order for summary judgment are based on first-hand, trial worthy evidence.

Issue No. 1 - Is there a genuine issue requiring a trial to determine whether the child remains in need of protection?

Historical Concerns

[23] The historical protection concerns relating to the older child, L., included the mother’s mental health, anger management issues and inability to provide proper care. A Family Court Clinic Assessment was completed in 2007. Although the report is admissible under s. 98(14) of the CYFSA, it is twelve years out of date. Accordingly, I attach little weight to it and consider it only as a tool to measure change.

[24] In 2007, it was the assessor’s opinion that the mother presented with mixed personality traits in most areas of life – as someone looking for attention but at the same time pushing others away. The mental health diagnosis was of a personality disorder. It was the assessor’s opinion that the mother was unable to parent full-time and recommended that L. be placed in the custody of the paternal grandmother with access to the mother. In that regard, it was also the assessor’s opinion that the mother would benefit from the Society’s continued involvement for another six months. The Society continued as recommended. The assessor also indicated that the mother could benefit from emotional regulation training and parenting programs.

[25] The evidence indicates that the mother did take a parenting course. This was one of the reasons she stated when refusing the Society’s request to take another. She said she had taken one already and, in any event, it was too far away. The suggestion of using Para Transpo upset and angered her. She raised her voice, put her hand up and refused to have the conversation.

[26] There is no evidence that the mother engaged in any mental health program.

[27] The Society provided the court with a copy of the Statement of Agreed Facts signed by the mother when L. was found in need of protection and placed in the custody of the paternal grandmother. There, she admitted to the Society’s pre-natal involvement due to community concerns regarding her mental and emotional health, anger issues and parenting capacity. She also admitted that she was unable to meet the child’s needs without constant assistance and monitoring. Despite these admissions, the mother still states that she does not know why L. was removed from her care.

Ongoing Concerns

[28] In addition to the historical concerns, the Society identifies the ongoing protection concerns as: the mother’s enduring mental health, physical health and developmental challenges; the impact of these challenges on her ability to be meet G.’s needs; her inability to provide self-care; and her lack of commitment to access and inconsistent attendance.

[29] The Society has not been able to determine the mother’s current mental health diagnosis. In September 2019, she rejected the Society’s request that she meet with a mental health professional to discuss her health and make recommendations. She refused to meet with a psychiatrist or a counsellor and said she would not take medication.

[30] The Society was unable to obtain an updated psychiatric assessment. The last assessment was done in 2008 and was not before the court. The mother criticizes the Society for their lack of effort to obtain an update, however, she initially rejected their request for one. After the four-month interim Society care order made by Blishen J. on November 27, 2018, the mother changed her mind and agreed to a mental health assessment. In doing so, she told the worker that she did not agree with previous diagnoses that included borderline personality disorder, ADHD, oppositional defiant disorder, Asperger’s, and hoarding. The mother said then, and continues to say now, that she has autism, epilepsy and migraines but cannot remember the name of the doctor who diagnosed her with autism.

[31] Although the mother agreed to the updated psychiatric assessment, she refused to give the Society permission to speak to her primary care physician about a referral. She said she preferred her worker from Service Coordination for People with Developmental Disabilities to do so. The mother’s doctor declined to make the referral sought and said she favoured another Family Court Clinic Assessment. She did not say why. The mother agreed to an FCC assessment, but after some consideration, the Society decided not to pursue that option.

[32] In September 2019, the Canadian Mental Health Association made a referral to the Royal Ottawa Hospital for an updated assessment of the mother. When the motion was argued, the referral was still pending. The mother’s case manager at Service Coordination for People with Developmental Disabilities stated that wait lists are long and she was uncertain if the mother would meet the eligibility criteria.

[33] I am satisfied that the Society did what it could to obtain an updated mental heath assessment. The mother would not cooperate and when she did agree, she refused permission for the Society to speak with her doctor. This was one among many requests by the Society for access to her doctor. At no time throughout this proceeding did the mother permit the Society to speak with her primary care physician despite their explanation that they needed to clarify her diagnoses, to know that she was connected to mental health professionals, and to understand her health needs to know how to best support her in the goal of G. returning to her care. When the mother was faced with requests that she did not like, she would frequently respond in a raised voice, with her hand up, stating “no” and that she was unwilling to discuss it further. The mother’s lack of cooperation has been unfortunate and demonstrates an ongoing lack of insight into the Society’s protection concerns as well as her unwillingness to address their concerns. The mother’s refusal is especially concerning considering her statement that her health issues are complex – so much so, she says, that the medical community is still working to diagnose her.

[34] In addition to her belief that she has autism, the mother states that she was diagnosed with ADHD and a learning disability. The 2007 Family Court Clinic Assessment does not describe the mother as a person with autism nor did the assessor agree with the ADHD and learning disability diagnoses. He regarded the mother’s difficulties in life as behavioural in nature and linked to her personality disorder.

[35] The mother reports many physical health conditions. These include seizures, chronic pain in one arm that limits her ability to raise it above her head, mobility limitations from foot deformities that require her to wear ankle braces and use a walker, migraines, mild to moderate hearing loss, mild vision loss, balance issues, low immunity, problems with her liver, problems with passing out, and a gallbladder condition that causes her considerable stomach upset. The mother also indicates a recent episode of septic shock. The medical record related to that incident only indicates that she presented with a fever. The mother’s physical health conditions appear to have developed since 2007. They were not mentioned in the Family Court Clinic Assessment.

[36] The mother does not demonstrate any insight into how her physical challenges may impact her ability to care for G., now and in the future. When presented with certain questions in relation to G.’s care, she responded that she will not need to lift her sore arm to bath the child as she will be reaching down, not up. She also said that if she is unable to get down on the floor to play with G., she will play with her on the bed. She did not say what she would do as G. gets older and becomes more mobile.

[37] The mother has an extensive network of professional supports in place to assist with her own needs. These include an adult services case manager from Service Coordination for People with Developmental Disabilities and a Community Outreach Worker for three hours each week. According to her services coordinator, the mother currently has funding available for a second outreach worker and is waiting for that individual to be assigned. She also has an Independent Living Worker through Innovative Community Support Services to assist with general life skills like cooking, cleaning, and excursions into the community for groceries and appointments, a Personal Support Worker who attends her home twice a week to help her bath and wash her hair, and a worker from the Canadian Mental Health Association. There is no evidence that these individuals are available to assist with G.’s care. The mother, however, argues that the regular presence of these workers in her home should provide the Society with a measure of comfort that they will be alerted if there are concerns with G.’s care.

[38] Although the mother has significant professional supports, she does not have personal supports. She has no contact with her family and states that she does not have friends. The only potential third-party support identified by the mother should she need help was a woman in her building who she says runs a $10 a day, 24-hour daycare. She did not know the woman’s name but had apparently engaged her and her daughter previously to watch her cats. The mother has long refused assistance from the Society to help her develop personal connections with others. It was not until October 2019 that she reluctantly agreed to even meet with a family finding worker.

[39] The inconsistency of the mother’s attendance at access visits is a significant and longstanding concern. Her explanations for frequently cancelling visits include illness and medical appointments. Other reasons cited have been bad weather, a heat rash, and the need to care for her sick cat. To the mother’s credit, when she cancels, she calls in advance. Nevertheless, she has missed dozens of visits with G., and more often than not, fails to attend all three access visits in any given week. She recently declined the invitation to attend G.’s doctor’s appointment despite significant notice and the offer of transportation.

[40] The Society has attempted unsuccessfully to problem solve with the mother around her poor access attendance. Their efforts included an offer to create a calendar of her appointments that would allow her to cancel access with enough notice for the visit to be rescheduled. When the mother expressed a dislike of her individual supervised access visits at the Society saying she felt like all eyes were on her, the Society moved two of the three weekly visits to a group setting. The mother’s attendance did not improve. When her visits had to be moved ahead by an hour in the morning to accommodate the child’s nap time, the mother objected saying that the new time would interfere with her sleep needs. She then cancelled many visits. The Society also offered to reduce the number of access visits from three to two with a view to improving the mother’s attendance. All ideas were refused.

[41] The Society’s observations of the mother and her home have generally been consistent since G. was removed from her care. The apartment is described as cluttered with collectibles. On some occasions, the floors and kitchen were noted as clean. On others, the worker found the bedroom floor congested with bags of clothing, the living room floor strewn with items including televisions, cords, plastic bags, multiple cat toys, and papers everywhere. The mother rectifies some safety concerns but refuses to address others. One example is her refusal to secure a large hallway mirror to the wall. Despite being advised of the safety risk posed, the mother replied that she had not and would not secure it, as requested. She said it was an antique and she would not risk damage by fastening it to the wall. The apartment frequently smells of cat urine and feces. As a result, access never progressed to include home visits. I am satisfied that the mother’s home continues to present safety risks for G. who is now a busy toddler.

[42] Also, of concern in relation to the mother’s health, are two home visits reported by the Society. Throughout the first visit in April 2019, the mother wore a ski mask saying that her face was cold. During the second visit in June 2019, the mother wore sunglasses and a motorcycle face mask, with her hood over her head. She said she liked the look and wore it a lot but not around children because it scared them.

[43] The Society’s observations during access visits have also been consistent. The mother is reported as affectionate with the child and that she usually interacts with her. G. appears comfortable with the mother and will seek her out for comfort when she is upset. The mother is able to meet G.’s basic needs such as diapering, preparing her bottle and feeding her, removing and securing her in her car seat. She reads G.’s cues and provides her with encouragement and praise. She can usually sooth and calm her. Sometimes the mother will ask for assistance and be receptive to suggestions. Other times, she will be angry and argumentative. Sometimes during access, the mother is distracted and shifts her focus from the child to others in the group. She blames this on her autism and ADHD. Periodically, the worker needs to remind the mother of information previously provided with respect to G.’s needs.

[44] It was apparent from the evidence that the mother’s behaviour can quickly change from calm, to angry and aggressive, then back to calm.

[45] I am satisfied that G. remains in need of protection. The mother’s home continues to present safety concerns that she is unwilling to address. On occasion, she demonstrates the inability to prioritize the child’s needs over her own. This limitation presents itself in different ways including the mother’s inability to commit and follow through with her access visits. She is unwilling to problem solve or accept the assistance offered by the Society. The mother needs help with self-care and has not demonstrated the ability to care for G. beyond meeting her basic physical needs for feeding, diapering and soothing. Access remained supervised and never moved outside of the Society’s facilities. I am satisfied, on the balance of probabilities, that there remains a risk of harm that G. is likely to suffer physical harm, either directly or indirectly through neglect or a failure to adequately provide care for her, supervise or protect her, if returned to her mother’s care. I find that G. remains in need of protection under s. 74 (2) (b)(i) of the CYFSA.

Issue No. 2 - Is there a genuine issue requiring a trial to determine whether there is a disposition in the child’s best interests that is less intrusive than extended society care for the purposes of adoption?

[46] The Society’s Plan of Care provides for extended society care for purposes of adoption. That is the disposition they say is in the child’s best interests. If the order is granted, they plan to reduce the number of current visits to transition the child to adoption once a placement is identified. They will canvas with the mother whether there are particular cultural events or traditions that she may wish to have G. exposed to based on her report of some indigenous heritage that, to date, she has been unable to identify or relate to a band or community. In the event the child is returned to the mother’s care, they propose certain conditions.

[47] In submissions, the Society emphasized that it was not arguing that a parent with mental or physical health challenges warranted their intervention or should not care for a child. What the Society stressed was this; if supports are needed, they must be put in place. Here, the mother has been unwilling or unable to work with them to create a plan for G. that may have allowed her to return to her care.

[48] In her plan of care, the mother denies that there is risk of harm to the child. She seeks an order that G. be returned to her care. She states that she will work with the Society either voluntarily or under the terms and conditions of a supervision order. In the alternative, she seeks an order awarding her access to the child and access by the child to her.

[49] There is no detail to the mother’s plan. She has not stated how she will provide for G.’s physical, emotional or developmental needs. Nor has she identified who her formal and informal supports will be, if she has plans for activities or playgroups for the child or how she will transport her to and from appointments.

[50] I have concluded there is no air of reality or evidence to support the mother’s plan that would allow G. to be returned to her care, with or without a supervision order. The mother has not demonstrated her ability to protect the child or meet the full range of her needs. Nor has she demonstrated the degree of commitment or cooperation that would allow the court to find that a supervision order would be adequate to provide for G.’s safety.

[51] G. is described as a happy, healthy baby who loves to cuddle and play and is easily soothed. She is reported to be well-bonded to her foster parents. She responds to their voices and presence in a room with laughter and happy looks. She is curious and learning to explore her environment.

[52] G. is 18 months old. It is impossible to know her wishes. She has been in care since birth. She needs and deserves stability and a permanent home with a family who can meet all of her needs. There can be no further delay. I am satisfied on the record of trial worthy evidence before me that an order for extended society care is in G.’s best interests. There is no less intrusive disposition that would meet that test. There is no genuine issue requiring a trial to fairly and justly determine the appropriateness of that order. It is in G.’s best interests that permanent plans now be made for her future care.

Issue No. 3 - Is there a genuine issue requiring a trial to determine whether an access order is in the child’s best interests?

[53] In the Society’s Plan of Care, the Society states they will facilitate access between the mother and child as they consider appropriate subject to a reduction once they have identified an adoption placement. In her Answer and Plan of Care, the mother seeks an order that she have access to the child and that the child have access to her. Neither party made submissions on this issue.

The Law

[54] Section 105 (4), (5), (6) and 7 of the CYFSA provide:

Existing access order terminated if order made for extended society care

(4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), any order for access made under this Part with respect to the child is terminated.

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(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.

Court to specify access holders and access recipients

(7) Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the court shall specify,

(a) every person who has been granted a right of access; and (b) every person with respect to whom access has been granted.

[55] The Court of Appeal in Kawartha-Haliburton, 2019 ONCA 316, discussed at length the court’s obligation under ss. 105(5) and (6). It said,

… the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive…

[56] I have considered the mother’s request for access, the test set out in s. 105(5) and (6) along with the factors set out in s. 74(3) of the CYFSA. I am persuaded there is a bond between the mother and child. The mother is said to provide her with affection and some playful interaction during access. The child responds positively to her mother and looks to her for comfort when upset. In the circumstances of this case, I find that access is in the child’s best interests.

[57] There shall be a final order on the following terms:

1. The child, G., continues to be in need of protection under s. 74(2) (b)(i) of the CYFSA.
2. The child, G., shall be placed in extended society care.
3. The mother shall have access to the child and the child shall have access to the mother. The frequency, duration, location and extent of supervision required shall be at the discretion of the Society.

Madam Justice D. Summers Released: February 24, 2020