Court File and Parties

COURT FILE NO.: FS-19-10027 DATE: 20200520

WARNING The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87 …

Order excluding media representatives or prohibiting publication (7) 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.

Prohibition re identifying child (8) 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.

Prohibition re identifying person charged (9) 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 …

Offences re publication (3) 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.

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Toronto Applicant/Respondent in the Appeal – and – O.P. Respondent/Appellant R.W. Respondent

Counsel: Chris Andrikakis, for the Catholic Children’s Aid Society of Toronto O. Benjamin Vincents, for O.P. R.W., Self-represented Patric Senson, counsel from the Office of the Children’s Lawyer for the children

HEARD: April 14, 2020

Kiteley J.

Reasons for Judgment

[1] This is an appeal pursuant to the Child, Youth and Family Services Act [1] by the mother, O.P., from the decision of Justice Carol Curtis, dated April 8, 2019 (the decision) in which she granted the summary judgment motion brought by the Catholic Children’s Aid Society of Toronto (CCAST or the Society) and placed the children in the Society’s extended care with access to the parents in the discretion of the Society. For the reasons that follow, the appeal is dismissed.

Background

[2] The children are as follows: JP-1 and JP-2 are twins born [], 2007; JP-3 was born [], 2011. As a result of the order dated September 17, 2018, they have been represented by the OCL. Counsel has been assisted by Joanna Seidel, Clinical Investigator.

[3] Pursuant to the Child and Family Services Act, [2] the children were legally brought to a place of safety on March 29, 2016 and remained in care of the Society. The Society commenced the protection application on April 4, 2016. The endorsement on that date by Zisman J. indicates that the parents attended, that a temporary without prejudice order was made, and that the matter was adjourned to May 18, 2016.

[4] The mother saw the children on May 17, 2016 but neither of the parents attended court on May 18, 2016. The endorsement indicates that the CCAST was assessing the plan of care proposed by the mother’s cousin N.S., and the matter was adjourned to July 11, 2016.

[5] There is no endorsement dated July 11, 2016 but the endorsement dated September 19, 2016 indicates that the parents were noted in default at the hearing on July 11, 2016.

[6] The next endorsement in the appeal book is dated September 19, 2016. Neither parent attended. Following an uncontested hearing, Zisman J. made final orders in which she found that each child was in need of protection pursuant to sections 37(2)(b)(i), (b)(ii), (g), and (g.1) of the CFSA and each was placed in the care and custody of the CCAST for a period of four months, with access at the discretion of the Society. The CCAST informed the court that the “kinship plan looks promising”. Justice Zisman set the Status Review hearing for January 17, 2017. The following is taken from the transcript of the hearing:

Under, and I have read it, (the affidavit for an uncontested hearing), and I note that, the parents were noted in default July the 11th, 2016. The original protection application concerns were with JP-1 and JP-2, who were almost 9 years old, and never attended school up to the point where you apprehended them. There were serious issues with respect to transience, homelessness, and they’d never been to a doctor or a dentist, so clearly their needs were not being met there. And the access had been sporadic, to say it nicely, actually, so in my view there’s absolutely overwhelming evidence with respect to the request being made.

[7] The parents did not attend the Status Review on January 17, 2017 at which time, Zisman J. placed the children in the temporary care and custody of N.S. on terms including an order that N.S. not permit the mother or the father to have access to the children except as expressly permitted by the Society. The matter was adjourned to March 20, 2017.

[8] On March 20, 2017, neither parent attended court despite telling the family service worker that they would attend. As indicated in paragraph 39 of the March 16, 2018 endorsement, they arrived at 11:50 a.m. for a 10:00 a.m. attendance and the matter had already been dealt with. They did not file an Answer and Plan of Care and were noted in default. The matter was adjourned for an uncontested hearing.

[9] The parents attended court on May 1, 2017. The mother had seen the children on May 17, 2016 and then had no contact with the Society until January 11, 2017 when she contacted the Society worker. At that time, the worker suggested that the mother write a letter to the children to re-introduce herself into the children’s lives. Four months later, the Appellant brought the letters for the children to the hearing on May 1, 2017. On a default basis, Zisman J. made a final order placing the children in the care and custody of N.S. under the supervision of the Society for a period of six months on conditions, including that N.S. not permit the mother or the father to have access to the children except as expressly permitted by the Society. That order provided for a Status Review on October 3, 2017.

[10] There is no endorsement dated October 3, 2017.

[11] On December 5, 2017, neither parent attended court. The matter was adjourned as the Society was in the process of arranging for counselling between the mother and the kin caregiver.

[12] In the status review application, the CCAST had recommended that the court make a s. 102 custody order in favour of N.S. On January 22, 2018, the parents attended court and, each having retained a lawyer, asked for an extension of time to file Answer/Plans of Care. As indicated in paragraph 27 of the March 16, 2018 reasons, the Society opposed their request on the basis that there was no air of reality to their plan. And it was the Society’s position that the children had been residing with their current kin caregiver for a year where all of their needs were being met and the parents had only begun to exercise supervised access in June 2017. Justice Zisman refused the request for an extension, made an order noting the parents in default, and granted to the parents leave to serve and file a motion within 30 days to set aside the noting in default and to seek an extension to file the draft Answer and Plan of Care submitted on January 22, 2018. Justice Zisman made a s. 102 custody order in favour of N.S. subject to N.S.’s consent being filed. After receiving independent legal advice, N.S. subsequently advised that she was unable to consent to the s. 102 custody order, but she would be a long-term caregiver.

[13] On March 13, 2018, Zisman J. heard submissions and, in reasons for decision dated March 16, she dismissed the parents’ motion to set aside her order dated January 22, 2018 refusing an extension of time to file Answer/Plans of Care.

[14] The CYFSA was proclaimed in force April 30, 2018.

[15] In its Amended Status Review Application dated September 6, 2018, the Society asked for an order for extended care for the purpose of adoption planning and an order for access at the discretion of the Society, including supervision thereof.

[16] According to the endorsement dated September 17, 2018, the parents’ lawyers asked to file their Answers and Plans and Care in response to the Amended Status Review Application. Justice Zisman gave an extension to October 31, 2018. Her endorsement also indicates that the assessment of N.S. was ongoing. The access to the parents was increased to two hours bi-weekly. The matter was adjourned to November 6, 2018 for a case conference.

[17] The Appellant filed her Answer/Plan of Care dated October 22, 2018 and the father’s is dated October 24, 2018.

[18] In the endorsement dated January 17, 2019, Zisman J. indicated that she had held the settlement conference and she granted leave to the parents to bring a motion for expanded access. Justice Zisman also scheduled the summary judgment motion for April 8th and set a timetable for delivery of materials for the motion. On consent, access by the parents was increased to once per week for two hours.

Summary Judgment Motion

[19] In support of the motion for summary judgment for an order placing the children in extended care for the purpose of adoption planning, the Society served the following affidavits:

(a) Child Protection Worker Samira Abdulatif dated February 20, 2019 (b) Child Protection Worker Alisa Lewis dated February 25, 2019 (c) Child Protection Worker Chris Chua dated February 25, 2019 (d) Child Protection Worker Tara Patterson dated February 26, 2019 (e) N.S. dated February 26, 2019 (f) Child Protection Worker Bridget Anene dated February 26, 2019 (g) Child Protection Worker Nandie Myers dated February 26, 2019

[20] The OCL delivered an affidavit of the Clinical Investigator dated March 22, 2019.

[21] The parents delivered affidavits dated March 22, 2019.

[22] At the hearing on April 8th, the mother was represented by counsel, but the father was not represented.

Decision under appeal

[23] At the time of the apprehension by the Society on March 29, 2016, the twins were one month short of their ninth birthday and JP-3 would have been five years old in May 2016. The motion judge described their circumstances as follows [3]:

13. Now I want to turn to the protection concerns and some of the evidence about those protection concerns. The parents were unable to provide for the children’s basic needs. The mother acknowledges that sometimes there was no adequate provision of food in the home, and she admitted that the children desired and required more than the available food, clothing and general resources. And she admitted that she had challenges providing for them adequately at a particular point in time. The children also told N.S. some of this information.

14. Next, medical neglect: The OHIP records provided showed that there was no medical attendances between 2011 and 2016. That is a five-year period. That is actually quite a shocking statement.

15. Dental neglect: All three children required extensive dental work when they were admitted to foster care. And this dental work and the requirement for it is ongoing.

16. Transience: the mother in particular had a long history of transience. The parents currently have suitable accommodation and have been there for about a year, but the issue for the Court to look at really is what they had when they had the children.

17. School: At the age of nine-years-old, the twins had never been to school. The twins are the two oldest boys, [JP-1 and JP-2]. They were significantly behind academically, they had speech issues, and they required significant speech and language therapy. The mother alleged that she was home schooling the children, but has not produced any documents to prove this and no registration for home schooling.

18. The mother at the time was dealing with transience and was actually struggling just to meet the children’s basic needs and was not meeting the children’s basic needs. The mother had no insight into the fact that she was in no position to be home schooling the children, and that whatever instruction she did provide for them was wholly inadequate.

19. Mental health: The mother suffered from depression at the age of 15, which is a long time ago, while in the care of the Catholic Children’s Aid Society, and she admits to anxiety and to using marijuana for it. She has not seen any professional to deal with this, and she produced no evidence on the summary judgment motion suggesting that these concerns of the agency were unfounded.

[24] On April 8, 2019, in oral reasons for decision, the motion judge granted summary judgment placing the children in the extended care of the Society for the purpose of adoption planning. She ordered that access by the children to the parents was at the discretion of the Society, including supervision. The decision has not been reported but the transcript is attached as Schedule A to this endorsement.

[25] The final orders were signed on December 23, 2019.

[26] The mother appeals from the decision placing the children in the extended care of the Society and the decision as to access.

Issues in the Appeal

[27] The Mother’s notice of appeal is dated May 8, 2019. [4] The issues identified in the notice of appeal and in the facta and in submissions evolved.

[28] In view of the decisions by the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W. and in L.M. v. Children’s Aid Society of the Region of Peel [5] I have modified the issues as follows:

(a) Did the Motion Judge err in law by relying on the test for summary judgment as articulated by the Divisional Court in Kawartha-Haliburton? (b) Pursuant to the CYFSA, should this court apply the correct legal framework as outlined by the Court of Appeal in Kawartha-Haliburton and L.M.? (c) Applying the correct legal framework, should the appeal from the order for extended society care be allowed? (d) Applying the correct legal framework, should the appeal from the order of access at the discretion of the Society be allowed?

Standard of Review

[29] In Children’s Aid Society of Toronto v. V.L. [6], the court articulated the standard of review as follows:

4. Housen v. Nikolaisen, 2002 SCC 33 [2002] 2 S.C.R. 235 confirms that different standards of review apply depending on the nature of the issue. For a pure question of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error. Where the trial judge draws inferences from facts, the standard of review first is whether the trial judge made any palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inferences from those factual findings (the second part of the test is not simply whether the inferences could reasonably be drawn from the factual findings).

5. For a mixed question of law and fact, if it involves the trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge’s interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.

Analysis

A. Did the Motion Judge err in law by relying on the test for summary judgment as articulated by the Divisional Court in Kawartha-Haliburton?

[30] The motion for summary judgment was brought pursuant to rule 16 of the Family Law Rules, O. Reg. 114/99, which mandates that the court make a final order “if there is no genuine issue requiring a trial of a claim”.

[31] At the time these three children were apprehended in March 2016, the CFSA applied. The legislature made significant changes by enacting the CYFSA with a proclamation date of April 30, 2018. The CYFSA applied at the time of the hearing.

[32] In Kawartha-Haliburton, the Society brought a motion for summary judgment. The mother agreed that there should be a declaration of Crown wardship, but she opposed the request by the Society for an order for no access. A Family Court judge made an order dated October 13, 2017 for Crown wardship, no access. The mother appealed. Notwithstanding the proclamation of the CYFSA, to which the Divisional Court made no reference, in its decision dated May 7, 2018 the Divisional Court articulated the test to be applied in a motion for summary judgment in the context of the CFSA. In the decision dated April 18, 2019, the Court of Appeal overturned the decision of the Divisional Court.

[33] In paragraphs 8 to 12 of the decision, the motion judge referred to paragraphs 45 and 46 of the decision of the Divisional Court in Kawartha-Haliburton as having set out a “new test for summary judgment”.

[34] The Appellant takes the position that the motion judge erred in law by applying that “new test”. The motion judge cannot be criticized for applying the decision of the Divisional Court before it was overturned by the Court of Appeal. However, it was an error of law to apply that “new test” without considering the impact of the significant changes brought about by the CYFSA to which the Divisional Court made no reference.

[35] The CCAST and the OCL do not agree with the Appellant that the motion judge erred by relying on the Divisional Court decision. However, all counsel agree that, based on the transitional provisions, this appeal is to be decided on the basis of the CYFSA.

[36] A transitional regulation, O. Reg. 157/18, that came into force the same day as the proclamation of the CYFSA, provides at s. 11(1) that a “proceeding” commenced under Part III of the CFSA but not “concluded” before the proclamation of the CYFSA continues as a proceeding commenced under the CYFSA. In Kawartha-Haliburton, the Court of appeal held that a proceeding is not concluded until a decision is rendered, including any appeals. I accept the submission of counsel that the CYFSA applies to this appeal.

B. Pursuant to the CYFSA, should this court apply the correct legal framework as outlined by the Court of Appeal in Kawartha-Haliburton and L.M.?

[37] My conclusion that the motion judge erred by applying the “new test” does not mean that the motion for summary judgment must be sent back for reconsideration in the Ontario Court of Justice within the correct legal framework. As the Court of Appeal held in paragraphs 53 to 56 in L.M., if the record suffices, the appellate court has jurisdiction to apply the correct legal framework to the evidence. In that case, the appeal was based on uncontested findings of fact.

[38] In this appeal, the motion judge made detailed findings of fact, most of which were uncontested. I turn now to the challenge by the Appellant to the findings of fact or findings of fact and law, and whether, on the basis of the record before the motion judge, this court is in a position to substitute its decision.

[39] One of the findings of fact that is challenged in this appeal arose out of the transience of the Appellant. The following excerpts from the decision are relevant:

5. The agency put forward a list of issues. . . These are some of those issues: The parents were transient. . .

6. Transience: The mother in particular had a long history of transience. The parents currently have suitable accommodation and have been there for about a year, but the issue for the Court to look at really is what they had when they had the children. [7]

7. The mother at the time [of the apprehension] was dealing with transience and was actually struggling just to meet the children’s basic needs and was not meeting the children’s basic needs.

8. Next, the parents disappeared from the children’s lives. . . The mother told the worker that she had been in a bad place that year and had been homeless for periods of time, . . .

9. . . . The mother still does not understand why the children were removed from her care. The parents in their material think that it was due to a temporary lack of accommodation. They have no insight or minimal insight into all the protection concerns and the depth of those concerns and the breadth of those concerns. . .

[40] Before the motion judge and in this court, the parents do not challenge that they were transient at the time the children were apprehended and for the two years following. The evidence was that about a year before the summary judgment motion (i.e., in the spring of 2018) the parents began residing in rental accommodation and were still there at the hearing of the summary judgment motion. The Appellant argues that the motion judge misapprehended the significance of that fact and erred in law in concluding that it did not have a bearing on the decision. She takes the position that the deficiencies in medical and dental care, educational needs and disappearance of the parents “all flowed from lack of adequate accommodation of the parents or homelessness” and the motion judge minimised that development.

[41] I disagree. As the excerpted passages indicate, the motion judge was well aware of the importance of transience and equally aware that the parents had had stable accommodation for about a year. Those facts are uncontradicted. The challenge by the Appellant is actually to the inference of fact and law drawn by the motion judge that, having established stable accommodation two years after the apprehension that persisted for a year at the time of the hearing did not resolve the also uncontradicted evidence as to the profound and “shocking” shortcomings in their parenting. It was not a palpable and overriding error for the motion judge to arrive at that inference.

[42] The second finding of fact challenged by the Appellant is the conclusion of the motion judge that the mother was not co-operative with the CCAST. The motion judge did not make a specific finding that the mother was not co-operative. Aside from the Court’s findings at paragraph 20 of the decision about the Appellant “disappearing from the children’s lives” and not attending court, the submission is based largely on the following excerpt:

23. The parents have not followed through with recommendations or expectations. The agency made their expectations clear to the parents from the outset of their involvement three years ago. For the mother, the agency recommended counselling, a mental health assessment, and attending for a substance abuse assessment. These recommendations were conveyed several times to the mother and were conveyed in writing. The mother did attend her family doctor for a referral and attended two or three therapy sessions. The mother said she completed programs at Pinewood, but provided no proof of this before today, in the three-year period. And the mother is now disputing the need for a mental health evaluation, and in her evidence and in her submissions minimized this issue. Today, the mother filed material regarding program sessions that she recently attended through Lakeridge Health and Pinewood Centre in Oshawa. The mother started these programs seven weeks ago. From the letter provided, it is clear that the attendance was for programs as opposed to counselling.

24. The programs listed are auricular acupuncture, A-U-R-I-C-U-L-A-R auricular acupuncture, early recovery group, and life skills group. The mother started these programs only seven weeks ago. The case has been in court for three years. The mother have [sic] not - the children have not been in the mother’s care for three years. . .

34.: . . . [the parents] have not done any of the things needed or recommended to them to show [that they want to parent the children]. . . . they have had three years to do this. A very long time to do all of the things that are needed or even some of the things that are needed to be done; either the parents are unwilling to do these things or they are unable to do them.

[43] The Appellant takes the position that, if the motion judge had dismissed the motion for summary judgment and ordered a trial, the Appellant could have shown that there were no mental health issues. In her affidavit sworn March 22, 2019, the Appellant confirmed that she had suffered depression when she was 15 years old “while under the auspices of the Society, due to Child Protection Issues” but she insisted that that has been “translated and forwarded to the present time without due justification. The Society has yet to justify the need for Mental Health Report”. She also said that “the Society could have asked for a proper Assessment under its auspices, but did not.”

[44] I agree with the Society’s position that there was considerable evidence as to the lack of co-operation by the Appellant to which the motion judge did not make reference. The motion record includes affidavits from each of the Family Services Workers involved with the family. As an example, paragraphs 34 to 56 of the affidavit of Tara Patterson are particularly informative on the issue of the expectations that the Society communicated on multiple occasions, including letters dated February 12, 2019 and February 25, 2019.

[45] In effect, the Appellant takes the position that the inference drawn by the judge of the failure to follow up on many of the stated expectations of the Society was unsound. I disagree. The evidence on behalf of the Society amply supports the findings that the Appellant did not do many of the things that the Society requested, which the Appellant agreed to do, and that those that she did do were recent and not as expected. The findings of the motion judge and the inferences drawn from those findings do not constitute palpable and overriding errors.

[46] This court has jurisdiction to apply the correct legal framework to the evidence. Section 134(1)(a) of the Courts of Justice Act authorizes an appeal court to make any order or decision that ought to or could have been made by the court appealed from. In my view, this court should exercise this jurisdiction here for two reasons. [8] First, while those facts or inferences are challenged, it is largely on the basis that those findings or inferences from them do not support the conclusion reached by the motion judge, which I have rejected. The Appellant has not challenged the factual findings essential to this appeal.

[47] Second, the passage of time dictates that it is important to give the children certainty as to their status as soon as reasonably possible. The children were apprehended on March 29, 2016. They had been in the care of the Society for over three years at the time of the summary judgment motion, a period well beyond the statutory time limits under s. 122 of the CYFSA. It has now been four years since apprehension and, even if the hearing in the Ontario Court of Justice was expedited, it would still be more than twice the statutory time limit.

C. Applying the correct legal framework, should the appeal from the order for extended society care be allowed?

[48] The CCAST asked that the children be placed in the extended care of the Society for the purpose of adoption planning with access in the discretion of the Society. The Appellant’s position was that the children should be returned to her and R.W. The position of the OCL was that the children were old enough to express their preference, namely that they remain living with their aunt and have access with their mother.

[49] I start by articulating the test to be applied on a summary judgment motion in which the Society proposed extended Society care assuming the continuation of the kin placement and the parents proposed that the children be returned to their care.

[50] In Kawartha-Haliburton, the Appellant had consented to a summary judgment motion seeking Crown wardship, but she sought access. In L.M., the Appellant had opposed Crown wardship and she sought access. In both decisions, the court articulated principles to be applied on motions for summary judgement. Those aspects that inform this decision are as follows:

(a) A highly cautious approach to summary judgment in child protection cases is warranted because of the serious interests at stake. Few state actions can have a more profound effect on the lives of parent and child. Furthermore, the Charter rights to personal security of both parents and children are often engaged, many of whom are vulnerable litigants disproportionately afflicted by poverty and other forms of marginalization.

(b) The court must exercise caution and apply the purposes of the CYFSA including the best interests of the child.

(c) As the Supreme Court held in Hryniak, “no genuine issues requiring a trial” will exist only when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.

(d) The burden of proof is on the moving party to establish that there is no genuine issue requiring a trial.

(e) The court must conduct a careful screening of the evidence to eliminate inadmissible evidence.

[51] In s. 1(1) of the CYFSA, the “paramount purpose” is to promote the best interests, protection and well-being of the children. Pursuant to s. 1(2), the additional purposes, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the least disruptive course of action that is available and appropriate, and respect a child’s need for continuity of care and for stable relationships within a family.

[52] In this case, the Appellant did not argue that the motion judge relied on inadmissible evidence. Indeed, based on the evidence of the Family Services Workers, most of the record consists of first-hand evidence, not hearsay. I do not consider the admissibility of the evidence to be a factor in this appeal.

[53] Furthermore, while the Appellant disagreed with the children remaining with their aunt and argued that the children should be placed with her (and R.W.), she did not argue in the summary judgment motion (in April 2019) that the children were not in need of protection. The question in the summary judgment motion was not whether the children continued to be in need of protection, but what was the placement that was in the best interests of the children, particularly given that they had been in the Society’s care for three years, which the motion judge described in paragraph 35 of the decision as “shocking” and “distressing”.

[54] As indicated in paragraphs 56 to 58 of L.M., the test for whether the children should be placed in extended society care involves two broad inquiries: (1) whether the child is “in need of protection”; and (2) whether placement of the child in extended society care is “in the child’s best interests” and the court is “satisfied that intervention through a court order is necessary to protect the child in the future”. [9]

[55] The court determines whether a child is “in need of protection” by applying the criteria in s. 74(2), which include the risk that a child is likely to suffer physical harm from a parent’s failure or pattern of neglect to adequately care for, provide for, supervise or protect the children (ss. 74(2)(b)(i) and (ii)). [10]

[56] The court determines whether the order for extended society care is in the “child’s best interests” by applying the criteria in s. 74(3) of the CYFSA, which includes the child’s views and wishes (s. 74(3)(a)); the risk of harm to the child if the child is returned to or allowed to remain in the care of a parent (s. 74(3)(c)(x)); and the degree of risk that justified the finding that the child is in need of protection (s. 74(3)(c)(xi)). [11]

[57] As indicated in paragraphs 8 to 12 and paragraphs 36 and 37 of the decision, the motion judge applied the wrong test in granting summary judgment. However, when the correct legal framework is applied, I am satisfied that the conclusions she reached justify granting the motion for summary judgment and dismissing the appeal.

[58] As indicated in paragraph 23 above, the evidence of parental neglect at the time of the apprehension was overwhelming. As indicated in paragraphs 41, 59, and 64 of her affidavit, the Appellant acknowledged that she would need support from the Society if the children were returned to her care. The fundamental issue in the motion for summary judgment was whether the circumstances of the parents (and particularly of the Appellant mother) had so significantly improved to warrant a finding that the children were no longer at risk or that the risk was sufficiently diminished that it could be managed under Society supervision. The findings by the motion judge as to the circumstances of the Appellant since the apprehension were as follows:

20. Next, the parents disappeared from the children’s lives. . . the mother disappeared for eight months. The mother told the worker that she had been in a bad place that year and had been homeless for periods of time, and that she was experiencing periods of instability. She also stopped attending court at that point. She dropped out of contact with the Catholic Children’s Aid Society for a six month period from July, 2016 to January, 2017. . . . visits did not resume until 26 June, 2017, so the mother missed a full year of access to the children. That is quite astonishing. It is very significant to the Court, and it is a statement about the mother’s interest in the children. . .

21. When the parents were having visits, they were cancelling visits and arriving late. Cancelling visits and arriving late has direct consequences for the children, and the parents were told about this. When the visits were cancelled, the boys tended to act out all week. When the parents were late, the boys displayed anxious behaviour, including asking the supervisors to call their parents and needing reassurance. Since the last court date, however, [January 17, 2019] the parents have arrived on time for visits and have not missed visits.

22. The parents have not followed through [see paragraph 42 above for the balance of this paragraph.] . . .

23. There was an unfortunate episode with a cell phone. In December of 2018, very recently, the mother gave the children a gift of a cell phone. But the cell phone contained very explicit sexual material. The children were then 11, 11 and seven-years-old. Fortunately the caregiver checked the phone before letting the children see it.

24. One of the most significant protection concerns to the Court is the lack of insight of the parents into what has happened, and the blaming of the caregiver, N.S. The mother still does not understand why the children were removed from her care. The parents in their material think that it was due to a temporary lack of accommodation. They have no insight or minimal insight into all the protection concerns and the depth of those concerns and the breadth of those concerns. And they make no acknowledgement of how the children were impacted by their parenting. Instead, the parents continued to blame N.S. and the mother’s sister, portraying the entire situation as malicious, and referring to ulterior motives on the part of family members. They lack – the parents lack any insight into the many valid concerns that family had about the – about the mother’s care of the children. The parents are unable to accept their role in the fact that the children are not in their care. They are unable to accept responsibility for this situation. It is easier for them to simply blame others.

[59] The motion judge considered the Plans of Care proposed by the Society and by the parents. In paragraphs 27 and 28 of the decision, the motion judge noted that “very little detail was offered”, the plan “included very little indication that they understood that the children had significant needs and what kind of parenting would be needed to address them”, and very few supports were identified”.

[60] The Appellant’s Plan of Care appears under that heading at paragraph 29 to 32 of her affidavit. However, it is also mentioned directly or indirectly in many paragraphs of her affidavit. A review of the evidence of the Appellant and of CCAST makes it clear that that finding by the motion judge as to the deficiencies of the Appellant’s Plan of Care is substantiated and the concerns expressed by the motion judge in paragraphs 30 and 34 are justified.

[61] The Society’s Plan of Care was that, if the order for extended society care was made, the children would continue to live with the maternal aunt N.S. At paragraph 29, the motion judge reviewed the details of that Plan.

[62] In her evidence the Appellant was critical and dismissive of that plan for at least two reasons. First, in paragraph 15 she took the position that a plan integrating her into a plan of support by the Society and N.S. would have been “the least intrusive and in the best interests of the children” but that was not done. Her evidence ignores the Society’s evidence as to the prolonged conflict between the Appellant and N.S. fuelled by the Appellant’s disparaging comments such as her belief that N.S. was motivated to agree to care for the children for purposes of qualifying for funding (as reflected in paragraphs 52, 56, and 68 of her affidavit) and also ignores the attempts by the CCAST to have the Appellant and her sister engage in counselling to address the conflict between them. I note however, that having expressed her opposition to the continued placement with N.S., the Appellant had no criticism of the day-to-day care that N.S. provided. In fact, at paragraph 40 of her affidavit, she acknowledged that the children “have come to appreciate the provisions” from their aunt.

[63] Second, the Appellant asserted in paragraph 72 of her affidavit that the Society had “not done anything towards verifying [the maternal grandmother’s] abilities to support the care” by the Appellant. Her evidence ignores her own inconsistent evidence about the role she says her family members played in having the children apprehended in 2016 and her evidence in paragraph 41 that the “family members”, which appears to include her mother, had “betrayed” her by providing information to the Society. Furthermore, her Plan of Care provided no details as to how her “family members” would actually provide support and assistance.

[64] As indicated above, one of the factors the court must consider in arriving at a decision as to the best interests of a child, is “the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained”. In her evidence, the Appellant insisted that the children wished to live with their parents, and she gave examples of how she thought that that was demonstrated.

[65] The OCL had filed an affidavit of the clinical investigator. I will deal with it in more detail below on the subject of access. However, on the point of placement, the evidence of the clinical investigator was that “the children independently and consistently expressed that they miss their mother and would wish to live with her”. The clinical investigator described that as their “preference”. The clinical investigator went on to say that the children, “most particularly [the twins] understand and clearly surmise that their preference to live with their mother is not the right plan for them however. All three children, independently and very clearly expressed that they want a consistent home, food, clothing, care, schooling and activities”. Paragraphs 21 to 40 of the affidavit of N.S. describe how their home functions and supports the expression by the children of staying with their aunt. In paragraphs 19 to 23 of the clinical investigator’s affidavit, she summarized the views of the children about their feelings of affection, comfort, and security with their aunt.

[66] At the time of the summary judgment motion, the twins were almost 12 and the younger child was almost eight. Based on the evidence of the clinical investigator and the Appellant, the children had expressed a wish to be reunited with their parents. However, it was open to the motion judge to accept the evidence of the clinical investigator that the children were mature enough to distinguish between the uncertainty that characterized their lives with their parents and the stability that the CCAST provided through the placement with their aunt. In effect, the children understood the difference between what they wished for and what was in their best interests.

[67] Based on the findings that the motion judge made, it is apparent that the decision to grant summary judgment was based on weighing the evidence in favour of extended care and in favour of the parents.

[68] On the one hand, the motion judge considered the profound neglect and failure by the parents to provide for the children’s basic needs at the time of the apprehension in March 2016; the failure of the Appellant (and the father of the children) to make any meaningful changes that would provide the basis upon which the court could conclude that the children were no longer at risk from the care of their parents, or that the risk had diminished and could be managed through supervision; the lack of detail of the parents Plan of Care; the lack of insight by the parents as to their role in creating the circumstances leading to the apprehension of the children and their persistent blaming of others rather than accepting responsibility; notwithstanding the three year delay, to which they had contributed, they had not taken advantage of an extensive opportunity to show that they had made the changes in their ability to care for the children; and the extent to which the children were thriving with N.S.

[69] On the other hand, the motion judge considered the evidence advanced by the parents, including having established stable housing for approximately one year prior to the motion; the parents loved the children; the children have a strong bond with the mother; and between January 17, 2019 and the date of the affidavits, the parents had been compliant with the consent access order for two hours per week.

[70] The responsibility of the motion judge is to assess and weigh the evidence. I am not persuaded that she made a palpable and overriding error in arriving at the factual findings and the findings of fact and law. The motion judge exercised her discretion on the basis of reliable evidence.

[71] I agree with the CCAST and the OCL that, applying the correct legal framework, the evidence supports the conclusion that summary judgment for extended Society care was justified. In this court, the Appellant did not take the position that the children were no longer in need of protection. The focus was on placement. Taking a highly cautionary approach, on this record, the court is able to reach a fair and just determination consistent with the purposes of the CYFSA and consistent with the best interest, protection and well-being of the children. The CCAST has proven on a balance of probabilities that the children are in need of protection, that the children should be placed in extended society care with a view to adoption, and that there is no genuine issue requiring a trial.

D. Applying the correct legal framework, should the appeal from the order of access at the discretion of the Society be allowed?

[72] In the motion for summary judgment, the position of the CCAST was that the children should have a relationship with their parents and the parents should have access, but the Society sought to retain the authority to impose conditions including supervision. The position of the Appellant was that the children wanted to see their parents more frequently than the status quo of two hours per week but she did not propose a timetable for increasing the access. The position of the OCL was that the children wanted to see their parents and the children said that the duration of each visit was too short. The issue before the motion judge was not whether there would be access but the circumstances under which it occurred including duration, frequency, and supervision.

[73] In Kawartha-Haliburton, the issue on the summary judgment motion was whether access should occur. In that case, after articulating the framework the court must apply given the changes brought about by the CYFSA, the Court of Appeal set aside the decision but concluded that the record was insufficient to permit it to apply the correct test, and referred the matter back to the Superior Court. In L.M., the Court of Appeal concluded that the record was a sufficient basis on which it set aside the no access order and ordered that the Appellant have access. The Court had granted leave to the OCL to filed fresh evidence in the form of an affidavit addressing the issue of access in the context of adoption. The Court noted that that evidence suggests that some form of access would be in the children’s best interests, that it was the preference of one of the children, and that all the children appeared to have strong emotional ties to the Appellant. Furthermore, the Peel CAS conceded that an access order would be appropriate as being in the children’s best interest. The Court remanded the issues of the nature and extent of access to the OCJ for determination.

[74] Pursuant to s. 105(4) of the CYFSA, an existing access order terminates when an order is made for extended society care. Section 105(5) provides that a court shall not make or vary an access order under s. 104 with respect to a child who is in extended society care unless the court is satisfied that the order or variation would be in the child’s best interests. As a result of s. 105(6) in considering whether an order or variation would be in the child’s best interests under subsection (5), the court must consider whether the relationship between the person and the child is beneficial and meaningful to the child. [12]

[75] As the Court of Appeal emphasized in Kawartha-Haliburton, [13] the change reflected in s. 104(5) and (6) represented a significant shift in the approach to access for children in extended care.

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access.

[76] In this case, the motion judge identified some of the evidence on access but did not explain the basis for concluding that the motion for summary judgment on the issue of access should be granted. The record, however, contains considerable evidence to which I now turn.

[77] As indicated above, the Appellant’s evidence was that the children wanted more access and she referred to the behaviour of the children as the basis on which she took that position. The affidavit of the clinical investigator indicates that the children enjoy the access visits but think the visits are too short. In her affidavit, N.S. indicated that she supported access but that it was important that the contact be consistent. She spoke of disappointments and the impact on the children that appear to have occurred in 2018. Her comment about more recent phone calls was that “O.P. takes her time with the children showing interest in what they have experienced of the week and she assures them when they are down, often laughing with them and expressing love”.

[78] It is conceded by the Appellant that she disappeared from the lives of the children from the spring of 2016 and, after she initiated contact in early 2017, she did not see the children until June 2017. In paragraphs 18 to 33 of her February 26, 2019 affidavit, Tara Patterson described the lack of consistency in the years after the children were apprehended. Patterson said however that since the consent order in January 2019, the parents have been consistent and arrived on time, in fact, early on two occasions. They have been bringing snacks as well as presents and activities including a television. She said that during telephone access and in-person access, she had observed the Appellant being affectionate and engaging with the children. She said the Appellant asks them questions about their lives and day-to-day activities, is encouraging and positive, and is physically affectionate and emotionally present towards the children.

[79] It was, in effect, conceded that the relationships between the Appellant and the children are beneficial and meaningful. It was not necessary for the motion judge to undertake that analysis.

[80] The status quo was reflected in the consent order dated January 17, 2019 that the children see their parents once each week for two hours. The evidence indicates there were telephone calls, and while not specified in the order, I consider that part of the status quo. The issue before the motion judge was whether it was in the best interests of the children that that access order be varied.

[81] In addition to paragraph 20 of the decision referred to above, the following excerpt from the decision is relevant:

31. The parents have access to the children that was previously every other week, but has recently been increased to once a week for two hours supervised at the Catholic Children’s Aid Society office. The access shows some good things. The children have a strong bond with the mom. They express a desire to spend greater time with the mom. But there is concern about the parent’s ongoing blame of N.S. for the children not being with them.

32. There is concern that the parents even expressed this to the children in a supervised access setting when they know they are being observed. That kind of attitude and approach has the potential to destabilize the placement with N.S., if access to the parents is ordered if the children are not returned to them.

[82] There is considerable evidence by the Appellant in her affidavit as to the animosity between her and N.S. Paragraph 16 was telling:

The Respondent Parents would like to have their Children in their Custody. The Parents are willing to work with the Society and get support from willing family members, as long as it is to promote uniting the parents and Children. The Parents believe that the present quests towards Extended Supervision Order geared towards Adoption, would not be the least intrusive, and would definitely not be in the Best Interests of the Children. An arrangement whereby the Kinship Caregiver would be in absolute control of the Children, to the detriment of the Parents, would not be in the best interests of the Children now, and especially in the future. THERE IS THE NEED TO RE-UNITE THE CHILDREN BACK WITH THEIR PARENTS. [Emphasis in original.]

[83] The evidence before the motion judge included an affidavit of Child Protection Worker Nandie Myers who is a Kinship Services Worker. She described the efforts made in 2018 to improve the relationship between the Appellant and N.S. that were not successful. It also included the evidence of Bridget Anene who has been involved in adoption planning and who supports the adoption of the children by N.S.

[84] In other words, the concern to which the motion judge made reference was that, once the extended Society care was formalized and the Society moved on to adoption, the relationship between the Appellant and her sister would worsen. That is an inference readily drawn from the evidence, including from the Appellant. Having established an environment in which the children were thriving, there was a real prospect that the Appellant would destabilize the relationships between the children and their aunt and undermine the significant progress that had been made since the children were apprehended. The Society had consistently encouraged the Appellant to maintain her relationship with the children and had consented to expanding it in orders dated September 17, 2018 and January 17, 2019. The issue was not whether the Society would oppose or restrict her seeing the children. The issue was how to do that in the best interests of the children so that the enormous gains that had been achieved would not be lost. It was a proper exercise of her discretion for the motion judge to authorize the Society to take steps to ensure that that did not happen. I am not persuaded that the decision to order supervised access constituted a palpable and overriding error.

[85] As explained in paragraph 71 above, taking a highly cautionary approach, on this record, the court is able to reach a fair and just determination consistent with the purposes of the CYFSA and consistent with the best interest, protection and well-being of the children. The CCAST has proven on a balance of probabilities that there is no genuine issue as to access requiring a trial.

ORDER TO GO AS FOLLOWS:

[86] The appeal is dismissed.

[87] Counsel will take steps to have this order signed and entered. In the circumstances involving the suspension of regular court operations, that step may take time. In any event, this order takes effect immediately and without being signed and entered.

Kiteley J.

Date: May 2020

Schedule “A”

CURTIS, C. (Orally)

[1] The parents are O.P. and R.W.. There are three children. JP-1, who is 11 who will be 12 soon on the 25th of April, born the [], 2007. JP-2, who is also 11 and will be 12 soon, born on the [], 2007. And JP-3, who is seven and was born on [], 2011.

[2] The children were brought into care on the 29th of March, 2016; that is three years ago. That is a very long time in the life of young children, and a very long time in the life of a child protection court case. They stayed in care about nine months and then they were placed with the mother’s cousin, N.S. (ph), who is 44-years-old. Now, the children have been with N.S. since they were placed with her – and I am just trying to get the exact date of their placement. I am sorry.

[3] MS. DOWNEY: January 6th, 2017 and formally on January 11th - sorry, 17, 2017.

[4] THE COURT: Thank you. They were physically placed with her on January 6th, 2017. This is – the summary judgment motion is brought in the context of an amended status review application brought by the Catholic Children’s Aid Society, in which they originally were seeking a supervision order with N.S., but has been amended and they now seeking an extended society care order for adoption by the caregiver, N.S..

[5] The agency put forward a list of issues that they identified as the protection concerns in this case. These are some of those issues: The parents were transients – transient. Excuse me. The children had not been to school, had never been to school. There was neglect of their medical issues. There as neglect of their dental issues. There was some suggestion of perhaps of mental health concerns about the mother. Both parents disappeared during the court case from the children’s lives. There was an ongoing lack of insight into the protection concerns and a minimization of the protection concerns. The parents blamed N.S. for the children not being in their own care. And there was a lack of follow through by the parents in addressing the protection concerns, other than the housing which appears to have been handled.

[6] This litigation has been going for three years. I want to be clear with everyone, this is quite extraordinary. Children are entitled to much faster attention than this. They are entitled to know what their future is way sooner than three years. The parents sometimes in the court case did not file answers to the applications brought and they missed court appearances. There was a protection finding made by Zisman J., the case management judge, in September of 2016, which is also a very long time ago. Almost two and a half years ago. She made protection findings under s.37(2)(b)(2) and s.37(2)(g) and s.37(2)(g.1). And she made findings that the evidence in support of those protection findings was “Absolutely overwhelming.”

[7] On the motion for summary judgment, the parties filed extensive material. There was seven affidavits filed by the Catholic Children’s Aid Society, two by the parents, and the office of the children’s lawyer acting on behalf of the children filed an affidavit. There was factum of law filed by the Children’s Aid Society and by the parents.

[8] So I want to start by talking about the test for summary judgment because that is the umbrella piece that we have here today. The summary judgment processes set out in rule 16 of the Family Law Rules, and I am not going to read all the provisions, but I will just read rule 16(6) which says, “If there is no genuine issue requiring a trial of a defence, the Court shall make a final order accordingly.” The summary judgment – the Supreme Court of Canada has dealt with the issue of summary judgment recently in 2014 in the decision of Hryniak and Mauldin. And some of these are quotes from the Hryniak and Mauldin case. “The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial,” at paragraph 34.

[9] “The Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a genuine issue for trial to asking whether there is a genuine issue requiring a trial.” And that is in paragraph 43.

[10] But perhaps the most important case for our purposes is the case in Kawartha Haliburton Children’s Aid Society and M.W, a case of 2018 in the divisional court that really set out a new test for summary judgment. These are some of the things that that case said. First that, “The law that existed before the Hryniak and Mauldin case in the Supreme Court of Canada where the Court examined whether a party has any reasonable chance of success, that law no longer applies on motions for summary judgment,” paragraph 45.

[11] “The key question is whether it is in the interests of justice for the Court to resolve the case summarily; summarily meaning without a trial. To do so, the Court is required to consider whether this process allows it to make the necessary findings of fact based on the facts pleaded to apply the law to the facts and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Or in other words, does this process allow the Court to fairly and justly determine the dispute? And is it a timely, affordable and proportionate process?” That is paragraph 46 of the Kawartha Haliburton case.

[12] The burden of proof is on the party who asks for summary judgment, so in this case it is on the Catholic Children’s Aid Society. That party must satisfy the Court that it is in the interests of justice that the case be decided summarily without a trial. The judge is entitled to assume on a motion for summary judgment that the parties have put before her all of the evidence that they would be able to adduce at a trial; that they will be able to call at a trial. And the test is no longer whether or not that party will succeed. Summary judgment is no longer limited to the clearest of cases. The 2015 amendments to rule 16 require the summary judgment motion judge to consider whether it is the interests of justice for her to resolve the case summarily.

[13] Now I want to turn to the protection concerns and some of the evidence about those protection concerns. The parents were unable to provide for the children’s basic needs. The mother acknowledges that sometimes there was no adequate provision of food in the home, and she admitted that the children desired and required more than the available food, clothing, and general resources. And she admitted that she had challenges providing for them adequately at a particular point in time. The children also told N.S. some of this information.

[14] Next, medical neglect: The OHIP records provided showed that there was no medical attendances between 2011 and 2016. That is a five-year period. That is actually quite a shocking statement.

[15] Dental neglect: All three children required extensive dental work when they were admitted to foster care. And this dental work and the requirement for it is ongoing.

[16] Transience: The mother in particular had a long history of transience. The parents currently have suitable accommodation and have been there for about a year, but the issue for the Court to look at really is what they had when they had the children.

[17] School: At the age of nine-years-old, the twins had never been to school. The twins are the two oldest boys, JP-1 and JP-2. That is an astonishing statement that nine-year-olds had never been to school. They were significantly behind academically, they had speech issues, and they required significant speech and language therapy. The mother alleged that she was home schooling the children, but has not produced any documents to prove this and no registration for home schooling.

[18] The mother at the time was dealing with transience and was actually struggling just to meet the children’s basic needs and was not meeting the children’s basic needs. The mother had no insight into the fact that she was in no position to be home schooling the children, and that whatever instruction she did provide for them was wholly inadequate.

[19] Mental health: The mother suffered from depression at the age of 15, which is a long time ago, while in the care of the Catholic Children’s Aid Society, and she admits to anxiety and to using marijuana for it. She has not seen any professional to deal with this, and she produced no evidence on the summary judgment motion suggesting that these concerns of the agency were unfounded.

[20] Next, the parents disappeared from the children’s lives. Two months after the children came into care, the mother stopped attending access. And I want to point out that at that point the children were in care, they were not placed with N.S.. The mother disappeared for eight months. The mother told the worker that she had been in a bad place that year and had been homeless for periods of time, and that she was experiencing periods of instability. She also stopped attending court at that point. She dropped out of contact with the Catholic Children’s Aid Society for a six month period from July, 2016 to January, 2017. When the mother resurfaced and wanted to see the children, the agency wanted her to write a letter for the children about why there had been no contact. But it took the mother over two months to do so. Visits did not resume until 26 June, 2017, so the mother missed a full year of access to the children. That is quite astonishing. It is very significant to the Court, and it is a statement about the mother’s interest in the children.

[21] The father did not attend any visits until the children had been in care for 15 months or had been out of their care for 15 months. He didn’t attend any visits until 26 June, 2017. He did not even ask for access to the children in that period. That is also very significant to the Court.

[22] When the parents were having visits, they were cancelling visits and arriving late. Cancelling visits and arriving late has direct consequences for the children, and the parents were told about this. When the visits were cancelled, the boys tended to act out all week. When the parents were late, the boys displayed anxious behaviour, including asking the supervisors to call their parents and needing reassurance. Since the last court date, however, the parents have arrived on time for visits and have not missed visits.

[23] The parents have not followed through with recommendations or expectations. The agency made their expectations clear to the parents from the outset of their involvement three years ago. For the mother, the agency recommended counselling, a mental health assessment, and attending for a substance use assessment. These recommendations were conveyed several times to the mother and were conveyed in writing. The mother did attend her family doctor for a referral and attended two or three therapy sessions. The mother said she completed programs at Pinewood, but provided no proof of this before today, in the three-year period. And the mother is now disputing the need for a mental health evaluation, and in her evidence and in her submissions minimized this issue. Today, the mother filed material regarding program sessions that she recently attended through Lakeridge Health and Pinewood Centre in Oshawa. The mother started these programs seven weeks ago. From the letter provided, it is clear that the attendance was for programs as opposed to counselling.

[24] The programs listed are auricular acupuncture, A-UR-I-C-U-L-A-R; auricular acupuncture, early recovery group, and life skills group. The mother started these programs only seven weeks ago. The case has been in court for three years. The mother have not – the children have not been in the mother’s care for three years.

[25] There was an unfortunate episode with a cell phone. In December of 2018, very recently, the mother gave the children a gift of a cell phone. But the cell phone contained very explicit sexual material. The children were then 11, 11, and seven-years-old. Fortunately the caregiver checked the phone before letting the children see it.

[26] One of the most significant protection concerns to the Court is the lack of insight of the parents into what has happened, and the blaming of the caregiver, N.S.. The mother still does not understand why the children were removed from her care. The parents in their material think that it was due to a temporary lack of accommodation. They have no insight or minimal insight into all the protection concerns and the depth of those concerns and the breadth of those concerns. And they make no acknowledgement of how the children were impacted by their parenting. Instead, the parents continued to blame N.S. and the mother’s sister, portraying the entire situation as malicious, and referring to ulterior motives on the part of family members. They lack – the parents lack any insight into the many valid concerns the family had about the – about the mother’s care of the children. The parents are unable to accept their role in the fact that the children are not in their care. They are unable to accept responsibility for this situation. It is easier for them to simply blame others.

[27] The parents put forward a plan, but very little detail was offered. Their plan included very little indication that they understood that the children had significant needs and what kind of parenting would be needed to address them. Little detail was offered regarding services or professionals that the parents would access to help the children.

[28] Very few supports were identified. The primary support identified was the maternal grandmother, but the mother was in the care of the Catholic Children’s Aid Society as a child and was a Crown ward due to the maternal grandmother’s neglect and mental health. No details were offered, for example regarding what services they would access for the children like what daycare, what doctor, what dentist.

[29] The agency’s plan: The agency’s claim is for a summary judgment decision granting summary judgment for their claim for extended society care. The children have been with N.S. for more than two years since 6 January, 2017. N.S. had two different assessments and was approved both times. She has worked consistently and cooperatively with the Children’s Aid Society, the school, and other service providers. She has shown insight into the children’s needs and has appropriately sought out supports for them. Her home has routine and structure. The children are engaged in programs and activities. And she facilitates contact with the extended family. The children have a good bond with N.S. They consistently say that they are fine with N.S. taking care of them and have no concerns about living in her home. They express comfort with her and her family and they feel safe in her home. Originally, the agency had sought a s.102 custody order to be made in favour of N.S. Such an order was made in January, 2018, subject to the filing of a caregiver consent. For a variety of reasons, N.S. did not consent to that order, although she was offering herself as a long-term caregiver for the children. That resulted in the parents – let me back up.

[30] That circumstance resulted in a long delay in the resolution of this case, an additional 16 months. That is shocking and really unacceptable that these children languished another 16 months without certainty about their future. However for the parents it was a good thing because it gave the parents a full extra year to show that they had made the changes in their ability to care for the children and to file answers in the court case.

[31] The parents have access to the children that was previously every other week, but has recently been increased to once a week for two hours supervised at the Catholic Children’s Aid Society office. The access shows some good things. The children have a strong bond with the mom. They express a desire to spend greater time with the mom. But there is concern about the parent’s ongoing blame of N.S. for the children not being with them.

[32] There is concern that the parents even expressed this to the children in a supervised access setting when they know they are being observed. That kind of attitude and approach has the potential to destabilize the placement with N.S., if access to the parents is ordered if the children are not returned to them.

[33] The mother’s claim is that there is sufficient evidence before the Court to support a dismissal of the summary judgment motion and order that the Court should schedule a trial. In the first paragraph of the parent’s factum, they state that the children were removed from their care due to acrimony and disagreement between the mother and her family. After three years, the parents still do not understand why the children were removed from their care or refuse to accept why the children were removed from their care.

[34] I know that the parents love the children, and I know that the parents want to be involved in the children’s lives and that they want to parent the children, but they have not done any of the things needed or recommended to them to show this. And they have not done any of the things needed to improve both their parenting and their circumstances. They have had three years to do this. A very long time to do all of the things that are needed or even some of the things that were needed to be done; either the parents are unwilling to do these things or they are unable to do them.

[35] Children are not expected to wait around while their parents decide whether they will make the changes necessary to have the children returned to them. These children have waited around. I am shocked that they have waited three years and I am distressed that they have waited three years. These parents have had a far longer chance to make changes, and a far longer opportunity than most parents whose children are in the Child Protection System.

[36] This is the issues - these are the issues for the Court to decide today. Is the evidence presented, is the court record adequate and sufficient for the Court to rely on a summary judgment procedure, a summary procedure as I said, a no-trial procedure, to make this important decision? That is the only issue for determination today. If the evidence is sufficient and the process is fair, the Court shall make the order that is being asked. The evidence on the issues for the Court was detailed, it was clear, it was convincing, and it was very strong.

[37] The record presented by the Catholic Children’s Aid Society and by the parents was detailed and helpful. It is, I have to tell you, easy for the Court to determine that this record is a more than adequate basis to make this decision. And the motion for summary judgment is granted under rule 16(6).

[38] This is the endorsement I have made. For the contested motion for summary judgment and for the oral reasons given, the final order will be extended society care and access by the parents, who are access recipients, will be at the agency’s discretion. The case is finished. Thank you.

Released: May 20, 2020 Kiteley, J.

COURT FILE NO.: FS-19-10027 DATE: 20200520

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Catholic Children’s Aid Society of Toronto Applicant/Respondent in the Appeal – and – O.P. Respondent/Appellant R.W. Respondent

REASONS FOR JUDGMENT Kiteley J.

Released: May 20, 2020.

[1] 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA).

[2] R.S.O. 1990, c. C.11 (CFSA).

[3] Schedule A.

[4] The father served his own notice of appeal. CCAST brought a motion to dismiss because he failed to perfect it. He was present during the hearing of the O.P. appeal on April 14, 2020 but did not participate. His appeal was dismissed: 2020 ONSC 3012.

[5] 2019 ONCA 316, 432 D.L.R. (4th) 497; 2019 ONCA 841, 149 O.R. (3d) 18.

[6] 2010 ONSC 143, [2010] O.J. No. 26 (S.C.J.).

[7] One of the issues in the appeal is this finding that the focus is on the circumstances of the parents at the time of the apprehension, not at the time of the hearing of the motion for summary judgment. Based on the reasoning by the motion judge throughout the decision, it does not appear that this assertion of a time focus had an impact. In any event, it has no impact on the decision in this appeal.

[8] R.S.O. 1990, c. C.43; L.M., at paras. 54-55.

[9] CYFSA, s. 101(1), paragraph 3.

[10] L.M., at para. 57.

[11] L.M., at para. 58.

[12] s. 105(6)(b) also requires the court to consider, if relevant, whether the ordered access will impair the child’s future opportunities for adoption. There is nothing in the record before the motion judge and nothing before me that impairing adoption opportunities was a consideration. I infer that, because this is a kin placement, it is not a factor.

[13] At paras 48-49.