Court File and Parties

COURT FILE NO.: FC-17-FO000197-0000 DATE: January 9, 2020

ONTARIO SUPERIOR COURT OF JUSTICE, FAMILY BRANCH

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF B.B. ([…], 2016)

BETWEEN: Highland Shores Children’s Aid Society Applicant Ms. Cynthia Law, for the Applicant

– and –

J.B. Respondent Mr. Shannon Crawford, for the Respondent mother

C.G. Respondent Respondent father, Noted in Default April 23, 2019

– and –

R.G. and P.G. Respondents Ms. Cheryl Lean for the Respondent paternal grandparents

– and –

C.B. and K.B. Respondents Mr. Jeff Van de Kleut for the Respondent maternal grandparents

HEARD: September 30, 2019

Reasons for Judgment

NICOLE TELLIER J.

Overview and Parties’ Positions

[1] This is a Status Review Application in which the Highland Shores Children’s Aid Society (“the Society”) seeks a final order on a summary basis pursuant to Rule 16 of the Family Law Rules, O. Reg. 439/07, s. 1 as follows:

(1) that sole custody of the child B.B., born [...], 2016, be granted to his paternal grandparents, P.G. and R.G. pursuant to sections 102 and 114 of the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 as amended.;

(2) that the respondent mother, J.B., have access to B.B., to be supervised by the maternal grandparents C. B. and K.B., or an agreed-upon third-party, as arranged between the maternal grandparents and the paternal grandparents;

(3) that the respondent father, C.G. have access to B. B., to be supervised by the paternal grandparents or an agreed-upon third-party, at their discretion; and

(4) that the maternal grandparents have access to B.B. every other Saturday from 9:00 a.m. to 6:00 p.m. and, further, that such access may expand as agreed between the maternal and paternal grandparents.

[2] The respondent father, C.G., was noted in default on April 23, 2019. He did not participate or advance any position in the summary judgment motion.

[3] The respondent mother, J.B., submits that there are genuine issues for trial and therefore the Society’s motion should be dismissed. She ultimately seeks an order that B. B. be returned to her care or, alternatively, that he be placed in the care of her mother and step-father, where his younger sister E-L.B. resides. In the interim, she seeks an order appointing the Children’s Lawyer and for a Parenting Capacity Assessment pursuant to section 98 of the CYFSA.

[4] The maternal grandparents, who have custody of B.B.’s younger sister E-L.B., support the Society’s position regarding B.B.’s custodial placement with the paternal grandparents but seek an order that their access to B.B. be specified to include a minimum of alternate Saturdays from 9:00 a.m. to 6:00 p.m..

[5] The paternal grandparents are aligned with the Society. They seek custody of B.B. with access to the father, in their discretion, and access to mother to be arranged in co-ordination with the maternal grandparents. They also seek an order permitting them to obtain the child’s birth certificate and a passport.

[6] The court is required to determine whether the Society has discharged its onus to prove that there are no genuine issues requiring a trial because the court is able to reach a fair and just determination on the merits by making the necessary findings of fact, applying the law to those facts and the motion is a proportionate, more expeditious and less expensive means to achieve a just result.

[7] For reasons elaborated below, I find that the summary judgment motion record is sufficient for me to make a finding that B.B. remains in need of protection and to decide that he be placed in the custody of his paternal grandparents. There is insufficient and conflicting evidence on the questions of both parents’ access, particularly mother’s, and whether supervision remains necessary, the sibling access, the grandparents’ access to the child not in their care and, importantly, the basis for future reviews or variations under the Children’s Law Reform Act, R.S.O. 1990, c. C.12. A focused hearing is necessary for the court to address these remaining dispositional issues.

The Facts

[8] The parents executed two Agreed Statements of Facts: one on October 4, 2017 and one on February 20, 2018. The prior endorsements and orders also contain findings of fact. I rely on these.

[9] The summary judgment motion record also consists of the following evidence:

(1) the affidavit of Christa Gebrowski, child protection worker, sworn July 12, 2018;

(2) the affidavits of Alyssa Baldwin, child protection worker, sworn April 1, 2019, June 5, 2019 and September 3, 2019;

(3) the affidavits of Tahra Treverton, kinship worker, sworn November 13, 2018, 23 June 5, 2019 and September 4, 2019;

(4) the affidavit of Teri-Ann MacDonald, managed access worker, sworn June 5, 2019;

(5) the affidavit of Suzanne Carr, child protection worker, sworn August 30, 2019;

(6) the affidavits of J.B., mother, sworn April 15, 2019, June 28, 2019 and September 13, 2019;

(7) the affidavit of C.B., maternal grandmother, sworn September 9, 2019;

(8) the affidavit of K.B., the maternal grandfather, sworn September 9, 2019

(9) the affidavit of R.G., paternal grandfather sworn June 24, 2019; and

(10) the affidavit of P.G., paternal grandmother sworn September 12, 2019.

[10] Most of the evidence in the affidavits produced by the Society, is not disputed by mother. She does briefly explain and contextualize her conflict with Ms. Treverton. She states in her affidavit that “Miss Alyssa Baldwin spends a lot of time in her affidavit making allegations about what I have said to her. I think the best way for the court to hear what I have said is to hear me say it in testimony, on the stand at a fair Trial.” Likewise, her affidavit urges the court to conduct a trial at which all text messages between herself and J.C. are available rather than only those produced by the Society. She also states a fair trial would allow her to testify about the home visits and J.C. In light of the court’s concern about her poor choice in partners, and her insistence on having them present during her parenting time, contrary to criminal prohibitions and this court’s orders, I heard oral evidence from mother on the motion.

[11] The Society became involved with this family prior to B.B.’s birth. His maternal grandmother contacted the Society when J.B. was pregnant, expressing concern that J.B. was only 18 years old, had an impending birth and she was very worried about her ability to care for an infant. The Society began working with the family to develop a safety plan around the birth, and J.B.’s prenatal education. B.B. was born on [...], 2016.

[12] The Society and the parents’ safety plan was for them and B.B. to reside with the maternal grandparents. This plan broke down due to conflict between the adults. As a result, the parents and B.B. moved in with the paternal grandparents. This plan also broke down due to conflict between the adults.

[13] When B.B. was just over two months old, his parents moved to emergency housing. Less than a month later, the parents got into an argument at Tim Horton’s and left B.B. in the care of inappropriate caregivers. Someone from Tim Horton’s called the police and B.B. was brought to the home of his maternal grandparents. Mother returned to Tim Horton’s after hours demanding the return of her son.

[14] The next day, on April 3, 2017, the Society met with the parents and explained their position that B.B. could not safely be returned to their care. He had been subjected to a great deal of adult conflict since birth, his housing and caregiving arrangements were unstable and he had been abruptly left in the care of others by his parents, in the heat of an argument. The parents consented to B.B. remaining in the care of his maternal grandparents while a new service plan could be developed.

[15] Initially, the parents remained a couple. They both struggled to attend for services, meetings, and even access, despite being provided with transportation. In April, after several reports of domestic conflict between the parents, C.G. was charged with assaulting J.B. and a no contact order was made between them. On April 25, 2017, J.B. advised that she was pregnant again. The couple continued to have contact, resulting in C.G.’s breach of these conditions.

[16] During May 2017, both parents attended separately for scheduled case planning meetings. Their access was reinstated, they attended regularly and were engaged. Both parents completed the Parenting Enrichment Program.

[17] Father followed the Society’s service recommendations and began taking parenting classes with the Pregnancy and Family Care Centre. He was able to complete infant CPR. He also took anger management classes, attended a father’s group, as well as individual counselling at Trenton Memorial Hospital. He was able to complete his community service hours from a previous probation order.

[18] By contrast, J.B. struggled to follow through with recommended services, including counselling. By mid-June 2017, J.B. regularly cancelled access.

[19] It was in this context that the Society convened a meeting in late August 2017 to discuss a plan for transitioning B.B. from his kin service placement with his maternal grandparents into father’s primary care, in the home of the paternal grandparents, with terms and conditions. Initially mother did not consent to this plan, so the Society brought a motion. The motion ultimately resolved on consent on October 2, 2017 with an order that placed B.B. in his father’s care, in the home of the paternal grandparents, subject to Society supervision for a period of six months, as well as other terms and conditions.

[20] These terms included the requirement that both parents refrain from any form of communication with each other and have no contact with each other while B.B. is present or in their care. They also agreed to participate in a Parenting Capacity Assessment or individual mental health assessment, if requested to do so. They further agreed to seek counselling for issues relating to healthy relationships, domestic violence and anger management as part of the consent order. They consented to following the recommendations of mental health professionals. B.B.’s access with his mother remained supervised, at the discretion of the Society, with a view to expanding it to the community or on an unsupervised basis. Access was to occur a minimum of twice per week for not less than three hours.

[21] Following this temporary consent order, the Society grew concerned that the father may be using drugs, although this was denied by him. They were also concerned that mother was involved with a man who was under house arrest for violent crimes. By mid-December, the paternal grandparents reported to the Society that father had been without contact with them and the child for many days, leaving him in their care.

[22] On December 20, 2017, a Society worker went to assess the risk and spoke with father. According to the Agreed Statement of Facts executed on February 20, 2018, he did not appear well: he was gaunt, with dark and sunken eyes. When questioned about possible drug use, he grew very agitated and struck the wall. Father agreed that B.B. should be placed with his paternal grandparents.

[23] In January 2018, child protection worker Christa Gebrowski, met with father to discuss and implement an access schedule at the Society offices twice weekly. On January 30, 2018, Ms. Gebrowski met with father again. He had not been exercising any access to B.B. By this time, E-L.B was born. Based on her conversation with him, wherein father described things about his children, Ms. Gebrowski formed the impression that the parents were living together, contrary to the no contact order arising from the criminal proceedings, and contrary to the consent order in this proceeding.

[24] Following this meeting, Ms. Gebrowski contacted the Quinte West Provincial Police, to inform them C.G. had just left and was likely on his way to J.B.’s home. An officer attended there, and C.G. admitted to living with J.B. in breach of his release conditions.

[25] On January 31, 2018, J.B. contacted Ms. Gebrowski to ask why police had been at her home the previous day. Ms. Gebrowski explained that she had warned both her and C.G. that she had a duty to report to the police if they were not complying with the no contact prohibition. Mother at first denied he was living there, then stated that he was just staying there, that they had just broken up and that she was in a relationship with another man. Ms. Gebrowski expressed concern to mother about this man as she had just been charged with armed robbery and he was currently incarcerated as a result of breaching his release conditions. In Ms. Gebrowski’s affidavit, she described mother’s response; mother laughed and said he would get off on the charges.

[26] On February 13, 2018, Ms. Gebrowski spoke to mother as she remained unclear about why the Society was concerned. Ms. Gabrowski explained the concerns related to her parenting, partner choices, and her inability to focus her attention on the needs of her children as opposed to a single young adult lifestyle. The Society worker reiterated that an important aspect of proving her ability to parent was ensuring that she maintained consistent access and used that time to grow closer to her children and demonstrate her ability to care for them and meet their needs. That same night, J.B. cancelled her access for the next day.

[27] On February 16, 2018, mother called Ms. Gebrowski asking again what is required of her to get B.B. back into her care. She offered an apology for her rude behavior. She was referred to the LEAP group, (learning about healthy relationships). She was informed it would start the following Thursday and the Society would provide her with transportation. Mother did not follow through on this referral.

[28] On February 20, 2018, the parties consented to a final order confirming that B.B. remained in need of protection, that he be placed in the care and custody of his paternal grandparents, subject to Society supervision for six months.

[29] On February 23, 2018, when a worker attended at mother’s home for supervised access, she refused her entry and cancelled the visit.

[30] During March 2018, father failed to confirm or exercises his access. His parents reported to Ms. Gebrowski that they remained concerned about their son as he appeared unwell. They thought he was taking drugs and they expressed concerns that he was in conflict with people in the community and the police.

[31] At the paternal grandparents’ urging, Ms. Gebrowski met with father on June 7, 2018 for the first time in many months. It was her assessment that he was in a better state and, accordingly, the Society approved access to be supervised by the paternal grandfather. When Ms. Gebrowski followed up with them at the end of June 2018, she learned that father had missed 4 access visits. Her solution was to suggest that if the grandfather and child had a plan to go to the park, he could inform his son, who could then show up, if he wanted. This suggestion was aimed at avoiding B.B.’s disappointment, arising from scheduled visits being missed.

[32] On March 16, 2018, mother was charged with breaching her undertaking and public mischief arising from her contact with C.G. and making a false report to the police. The previous night the parents got into an argument and mother called the police stating that father had broken into her house and punched some walls. Upon questioning, she admitted that the holes in her walls were from three weeks ago. According to Ms. Gebrowski, mother initially explained that father had come to her home, was being aggressive with her and would not leave. When they met in person to discuss this incident, mother confirmed father was living with her, that he was aggressive, that she feared him, and that he had punched holes in the walls only days before she called the police. She shared that when she tells him she is going to leave him, he threatens to harm himself, so she does not follow through. None of this account is denied by mother in her responding affidavits.

[33] For the remainder of March, mother cancelled access. The March 21st access was cancelled because she was incarcerated. On March 28, 2018, access was moved from the community back to the Society office out of concern that father was living in her basement and would hide there when CAS workers were present.

[34] An access mapping meeting was scheduled for April 3, 2018. Mother failed to attend. On April 11, 2018, there was an access mapping meeting with mother, access workers and their supervisors and Ms. Gebrowski. When confronted about her many cancelled visits, mother became upset and left the meeting. She needed the assistance of her Helping Hands worker to calm her down so she could return to the meeting. It was suggested that her access actually increase so that the Society could tell if she was ready to be a fulltime parent as she said she wanted to be. Accordingly, it was decided to have access in the community three times a week at the Early Years Centre and once in the office for a total of four times weekly. At this meeting mother disclosed that she was in a new relationship with J.C., who was 18 years old at the time.

[35] Mother continued to cancel access rather than availing herself of the opportunity to see her son more. On one occasion she stated the reason for her cancellation was due to a miscarriage. In mid-May, 2018 the Society discovered that J.C. was charged with possession of a weapon for a dangerous purpose, following an incident in downtown Trenton. This information was communicated to the kinship worker, Ms. Bailey, to ensure he did not have any contact with E-L.B.

[36] During a meeting between Ms. Gebrowski, mother and J.C., the couple explained the incident by stating that father and his friends had been following them around and even tried to force them off the road. J.C. decided to get a machete out of his car to defend himself and someone called the police.

[37] Ms. Gebrowski had been informed by a co-worker, prior to their meeting, that mother revealed that she was four months pregnant with J.C.’s child and they were planning to be a family. When confronted by Ms. Gabrowski about her miscarriage which caused her to cancel access, she admitted she did not have a miscarriage but had gone to the hospital. When asked whether she was pregnant now, she said possibly but she had not yet taken a test to confirm it.

[38] By mid-June, 2018, the managed access workers reported that mother had been disengaged during the access and was ready to leave early at each visit. She spent a good deal of time on her phone and appeared distracted and uninterested. When this was raised with mother, she responded that she felt B.B. wanted to go home. It was agreed the access would end sooner so B.B. could leave before his lunch time.

[39] There is small gap in the evidentiary narrative between June 2018, when events are described by Ms. Gebrowski, and August 2018 when the Status Review Application was commenced. The affidavit of Teri-Ann MacDonald, managed access worker, sworn June 5, 2019, reveals that mother attended access regularly from August 22, 2018 to the end of February 2019, with only a few missed visits.

[40] In this affidavit, J.B. is described as a loving and caring mother. She was receptive to feedback when offered. Both E-L.B and B.B. were observed to go to their mother often for affection. As access was going well in the community, a plan was developed to expand mother’s access to semi-supervised and unsupervised in her home. It was understood that she would not allow anyone to be present at the access, particularly J.C.

[41] The affidavit of Alyssa Baldwin sworn September 3, 2019 summarizes mother’s access from the end of January, when she assumed carriage of the matter from Ms. Catherine Weddell, a child protection worker who did not provide evidence. Ms. Baldwin observed a scheduled visit between mother and the two children on February 6, 2019 and reports in her affidavit that mother played well with the children and appeared to have a good routine with them.

[42] On February 13, 2019, a risk assessment mapping was completed and discussed with mother. It notes that both the Society and mother are worried about conflict between her, the father and her boyfriend J.C. and that the children may hear or see this conflict and be frightened. This document expresses the Society’s concern that mother will focus more on these two men and the conflict rather than her children. The risk assessment mapping also expressed concern about J.C.’s anger; they reviewed text messages between the two men which were threatening. It was noted that the father showed up at mother’s home prepared to fight J.C..

[43] As noted in the mapping, it was agreed mother’s access in her home would be expanded with drop-in supervision from the Society. The terms of mother’s expanded access were clear; no one else was to be present. On February 21, 2019, Ms. Baldwin attended at mother’s home and met with both her and J.C., both of whom agreed J.C. would not be in the home when the children were there.

[44] Access began in mother’s home on March 4, 2019 with drop-ins by Ms. Baldwin and members of the managed access team. Shortly after access was moved to her home, it was discovered that mother was allowing J.C. to be there while the children were in her care, contrary to their agreement. Ms. Baldwin met with mother and J.C. on March 18, 2019, to confirm the information she had received that J.C. was present during access visits. Initially they denied his presence during access but later admitted it.

[45] Ms. Baldwin describes mother as giggling and questioning why J.C. cannot be present. Ms. Baldwin reiterated the Society needed time to assess whether J.C. should be part of the access. It was further explained that parents should refrain from introducing new partners to their children until the relationship is solid.

[46] During this discussion J.C. admitted he had a debt to a known criminal but denied that he was at risk of being assaulted by the creditor. During this same meeting Ms. Baldwin noticed that mother’s door had been broken from force. She asked whether it related to the debt situation. J.C. replied that he broke mother’s door a few weeks prior when he came home drunk and kicked it in.

[47] Ms. Baldwin spoke with mother privately and during that discussion, mother acknowledged that her relationship with J.C. is unhealthy but that she does not know how to leave it. She expressed feeling unsafe in her home. Ms. Baldwin encouraged mother to go to Three Oaks, both as a safe place to live temporarily and also to be plugged in to other service referrals appropriate to her circumstances.

[48] According to Ms. Baldwin, mother spoke openly about feeling depressed and lacking energy. She confirmed her pregnancy. Ms. Baldwin encouraged her to see a doctor, reiterated her offer of help to assist with getting counselling, or driving her to Three Oaks.

[49] Ms. Baldwin deposes that during that March 18th meeting, mother asked that her access take place in the home of her mother, because her own home had nothing in it. This was agreed. In her affidavit, she also states mother acknowledged she was not ready to parent her children at this time and that she was seeking an arrangement whereby she could see her children in the home of her mother and stepfather, on a flexible basis. Mother also shared that she thought that B.B. would be better off living with his sister at her mother’s residence, in part, because she perceives the paternal grandparents as being hostile towards her. They had not allowed telephone access between her and B.B.

[50] Mother cancelled her access scheduled for March 20 and 21, 2019. Based on these events and those discussions, Ms. Baldwin concluded that the access as stipulated in the February 25, 2019 order was no longer in the best interests of both children or consistent with mother’s expressed wishes. She concluded that the best plan was to have access supported and supervised by the maternal grandmother. She also asked the paternal grandparents if they would accept mother’s calls to B.B. in their home and they agreed.

[51] It was arranged for mother to attend at the maternal grandmother’s home for access during the weeks of March 25 to March 29 with E-L.B. Mother conveyed her desire to move in with the maternal grandmother. Based on the recent challenges in the relationship between them, Ms. Baldwin suggested that the shelter was a more appropriate place for her housing and it could provide the best resources for helping her with her relationship with J.C. Mother reacted poorly, yelling profanities at the CAS workers. She also yelled at her mother.

[52] On March 26, 2019 mother advised Ms. Baldwin she was currently at the Marriott Hotel in Belleville that she would be leaving the following day for Québec. She refused to provide any further details. On March 28, 2019, Ms. Baldwin received another telephone call from mother during which she asked about her transportation to see B.B. in the maternal grandmother’s home. Ms. Baldwin indicated she would arrange for a taxi for March 29, 2019 as well as one for April 1, 2019 for her appointment with Ms. Patricia Gray, at Counselling Services of Belleville and District regarding a Parenting Capacity Assessment. Mother failed to attend.

[53] Around March 28, 2018 mother informed the Society, after hours that there had been a serious domestic incident between herself and J.C. During the month of April, mother continued to express worry about her housing situation. Although J.C. had not attended at her residence, she no longer felt safe staying there. On April 25, 2019 the matter was again in court and it was agreed mother would attend access at the home of the maternal grandparents who would supervise her contact with both her children. On that date mother indicated she was comfortable arranging this directly with her mother.

[54] From the schedule that had been arranged and volunteer drivers or taxis the Society had organized, Ms. Baldwin noted that from May 8, 2019 to May 20, 2019 mother had cancelled 2 out of 6 visits.

[55] Ms. Baldwin met with mother on May 14, 2019 in her home. During this meeting Ms. Tammie Timmers, from Helping Hands, was also present. Mother had not actively engaged in the support of this program. Mother indicated that she was unsure how far along in her pregnancy she was despite having numerous tests. Since she was unsure of the test results, she gave Ms. Baldwin permission to speak to her obstetrician to gather information. Mother indicated she would like to parent the child and was willing to engage with the Society in order to do so. Lastly, she informed the Society that she had been convicted of the mischief charge and was awaiting the completion of a pre-sentence report.

[56] Suzanne Carr, child protection worker, assumed carriage of this matter on June 3, 2019. In her affidavit sworn August 30, 2019, Ms. Carr states that on July 27, 2019 she received a call from Ms. Jillian Mumby, the probation officer for J.C.. Ms. Mundy informed Ms. Carr that on June 12, 2019, mother provided her written consent to revoke the no association condition that was in place between herself and J.C.. They both attended his probation appointment on July 3 and informed his probation officer that they were back in a relationship.

[57] On August 1, 2019 Ms. Carr met with mother to discuss this information. She confirmed that she consented to the revocation of the non-association condition. She disclosed that she was approximately 10 weeks pregnant and J.C. was the father. She admitted she conceived this pregnancy while this non-association condition was in place. Ms. Carr’s affidavit explains that on August 14, 2019, she received another call from Ms. Mumby to report that J.C. had called her two days earlier to update his address as the mother’s address, since he was now residing with her.

[58] On August 29, 2019, Ms. Carr met with mother and J.C. Mother confirmed they were living together. When Ms. Carr reminded her about her disclosures to the previous worker that he was abusive and controlling and she did not feel safe in her own home she replied that J.C. no longer does this and she is able to do what she wants. She acknowledged things between her and J.C. were “really bad” in March 2019. She told Ms. Carr that J.C. was required to participate in a PARS course as a consequence of his assault on her but he had not started yet. Lastly, mother disclosed that she had a miscarriage on August 15, 2019. The motion was heard on September 30, 2019, so the narrative in the evidence ends here.

[59] Section 90(b) of the CYFSA directs the court to make a finding about whether a child in a protection proceeding, is a member of a First Nation, is Inuk or Métis. The previous endorsements do not identify B.B. as FNIM. The affidavit of Ms. Baldwin dated April 1, 2019 states that “The children have Mohawks of the Bay of Quinte heritage through the paternal grandparents. Mother does not dispute this statement; nor do the paternal grandparents. Accordingly, I find that B.B. is FNIM, within the meaning of the Act.

Analysis

Is B.B. Still in Need of Protection?

[60] The first issue to be determined is whether B.B. continues to be in need of protection. One of the Society’s main concerns from the outset was that mother lacked the maturity to meet the needs of an infant because of her age. While she did complete the Parenting Enrichment Program in May 2017, and the evidence on the motion includes some positive observations during her very limited parenting time with B.B., mother’s inconsistent pattern of access over the 2 years B.B. has been in the care of his paternal grandparents, demonstrates she is still unable to focus primarily on her child’s needs and place them before her own.

[61] Her affidavits sworn April 15, June 28, and September 13, 2019 do not address or challenge the extensive sworn evidence from several Society workers and others regarding her decision not to exercise the full amount of access, to which she was entitled under various operative orders. Nor did she show any insight into how this lack of consistency might adversely affect B.B. either in her written or her oral evidence on the motion.

[62] Parenting is not a part-time endeavor; it is truly a ‘24/7’ responsibility. Based on J.B.’s lack of effort to see B.B. more, on a consistent basis, I conclude she is currently not ready or able to parent B.B. full-time. In light of the detailed evidence regarding the frequency, consistency and nature of the mother’s access from the spring of 2017 to the present, it is not necessary for the court to receive additional, oral evidence on this point at a trial to reach this conclusion.

[63] Mother is the victim of intimate partner violence at the hands of her children’s father and her subsequent boyfriend, J.C. The persistent presence of conflict between mother and father and the other adults led to the breakdown of two safety plans developed immediately following B.B.’s birth, one with each of set of grandparents. What troubles the Society, and indeed the court, is that mother continued in a relationship with father and then her subsequent boyfriend in the face of ‘no contact’ orders arising from criminal proceedings and companion orders in these proceedings prohibiting their presence at access.

[64] While it is true that the assaults which led to criminal charges against both her partners did not occur when B. B. was present, mother does not appear to appreciate that in having her boyfriend J.C. present, she runs the risk that significant conflict might ensue in the child’s presence. In so doing, she places the child at risk of emotional and perhaps even physical harm.

[65] The evidence about mother and J.C. reveals she had real fear about her safety. According to Ms. Baldwin’s affidavit of September 3, 2019, mother described J.C. to her as being verbally abusive and very controlling; he attempted to control who she spoke to and where she went.

[66] Following J.C.’s criminal charge in March 2019, and the discovery that he was present during access, supervision of mother’s access was reinstated. Mother’s Plan of Care initially included him; then it did not. In July 2019, only four months after the assault which led to charges, mother attended with him to meet his probation officer and ask that the no contact provision be revoked. Mother has engaged in self-sabotaging behavior. Just as her access was being expanded to occur in various locations, on an unsupervised basis, she breached the terms of the order. By August 2019, they were living together, and mother was pregnant again. The mother subsequently miscarried. She rejected the Society’s suggestion that she might benefit from birth control advice as this was her third pregnancy in the same number of years.

[67] During her oral evidence on the motion, mother defended her decision to have her boyfriend present during access. She testified that he has changed. While it is understandable that it is emotionally difficult for her to break ties with J.C., she must now realize that her insistence on maintaining this unhealthy relationship is not furthering her goals in these proceedings.

[68] From the Society’s perspective, mother’s poor choice of partners relates to her own poor self-esteem. The Society has attempted, without success, to refer mother to services to help her gain confidence and insight so that she can make healthier and safer partner choices for the sake of both herself and her children.

[69] In February 2019, Ms. Baldwin completed an agency referral for the Parent Enrichment Program, as agreed in the risk assessment mapping. Mother was also connected with Helping Hands for prenatal services. She did not pursue individual ongoing counselling to address her cycle of victimization, as recommended by the Society and consented to in the October 2017 order. Mother’s failure to seek professional help in addressing her victimization, continues to put B.B. at risk.

Does the Court Require the Appointment of the Children’s Lawyer or a Parenting Capacity Assessment to Assist in Determining Disposition?

The Children’s Lawyer

[70] Section 78 of the CYFSA sets out the scheme for legal representation of a child. B.B. has just turned 3. His speech is delayed and, at the time the motion materials were filed, he was on a waiting list for speech therapy. Given his age, and his communication challenges, he is not able to express his views or preferences regarding his custodial and residential arrangement. The appointment of the OCL will serve to delay matters, in a case that has already exceeded the time frames permitted under the Act, for making the final order. On these facts, I cannot conclude that legal representation is desirable to protect the child’s interests.

Parenting Capacity Assessment

[71] At paragraph 2(q) of the consent order dated October 2, 2017, the parents consented to participate in a Parenting Capacity Assessment (“PCA”), if required. In 2019, there were discussions about getting it underway. The Society argues that mother refused to co-operate and failed to attend the initial intake appointment. Mother argues that she agreed to participate but was concerned about terms. She wanted to know who would be conducting the assessment and who it would include. The Society brought a motion to procure a PCA. On April 23, 2019, the Society sought to withdraw this request. Justice Kerrigen-Brownridge granted an order permitting the withdrawal of the motion on a no costs basis.

[72] Mother now seeks to participate in a PCA and asks that I order one. Her counsel provided me with case law supporting the proposition that this issue is not res judicata, as the motion was withdrawn rather than dismissed after a hearing on the merits. It is not necessary for me to address that argument, because I find a PCA would unduly delay these proceedings and is not required for the court to determine the order that serves B.B.’s best interests.

[73] One might describe mother’s presentation as being emotionally labile. She has conflict in her relationships, including with her mother. She has been distraught and angry in the presence of the Society workers. She has admitted to feeling depressed and overwhelmed at times but none of the evidence suggests that she is suffering from any major mood or personality disorder. While a PCA does more than assess her mental health status, there is ample evidence before me regarding her current parenting skills and her current commitment to parenting on a full-time basis to make the necessary determinations.

[74] To the extent that the court requires more evidence to determine a comprehensive custody and access arrangement, involving all members of this family, including both parents and both sets of grandparents, this can be received at a focused hearing.

Is it in B.B.’s Best Interests to be Placed in the Custody of his Paternal Grandparents?

[75] B.B. has lived with his grandparents since he was 9 months old. He has been in their continuous care for over two years. According to the affidavit of Tahra Treverton sworn June 5, 2019, B.B.’s paternal grandparents are able and willing to provide a permanent home for him. At the time of this affidavit, she had been the kinship worker for approximately six months and reported meeting with the grandparents on a monthly basis.

[76] Based on her observations of B.B. and his interactions with his paternal grandparents, Ms. Treverton concluded that he is very settled and comfortable in his home. She describes the home as clean, neat and appropriate for a child of B.B.’s age. She notes that despite his speech delay, both maternal grandparents can understand what he is trying to communicate and they are able to meet his needs.

[77] She testified that she observed the paternal grandparents to be warm, affectionate, gentle and patient with B.B. They are attentive and responsive to his needs, while allowing him to develop independence. He seeks comfort from both of them. He is described as particularly bonded to his paternal grandfather.

[78] Mother has raised legitimate concerns regarding the paternal grandparents’ care of their grandson and their willingness to foster a positive relationship between him and his mother. First, she questions why it has taken so long for B.B.’s speech delays to be addressed in a therapeutic context. Her affidavit sworn June 28, 2019 notes that she was the first person to identify and advocate for B.B. to receive speech therapy. While the Society’s affidavit materials reveal that B.B. is now on the waiting list for speech therapy, they do not inform the court as to when this happened or whether the initiative to seek professional help only arose after mother or the Society raised the issue with the grandparents, as alleged by mother.

[79] Mother also raised concerns about B.B.’s aggressive behaviour towards others. She noted that he was delayed in being fully toilet trained. The affidavits of the grandparents shed little light on these concerns.

[80] The initial kin assessment was conducted by Tahra Treverton. There is no specific mention that a criminal check on the paternal grandparents was negative. Mother’s affidavit sworn June 20, 2019, appends three Ontario Provincial Police Occurrence Summaries. These include an undated notation that the paternal grandfather was stopped to check his ten-day permit and found to be operating a motor vehicle without insurance and charged accordingly. In September 2010, the paternal grandfather was again charged for driving while under suspension. His vehicle was towed back to his residence. The third Occurrence Summary dated September 25, 2011, is the most troubling. This summary states that on that day the paternal grandfather and another male showed up with a metal pipe threatening to beat the complainant. Following this threat, they reportedly left in a pickup truck. The notation indicates that PC Wright knows these males and the caller was very worked up. The maternal grandfather’s affidavit fails to elucidate any details.

[81] While these events are historical, they remain troubling. The driving infractions demonstrate irresponsibility both in terms of being properly insured and failing to comply with the Highway Traffic Act or other legislation and regulations aimed at ensuring drivers behave in a safe and responsible manner. It is not clear why the paternal grandfather’s license was under suspension. I have considered the evidence of Ms. Treverton in response to the inclusion of information in the record and its lack of significance in relation to custody. Nonetheless, I require him to produce a full summary from the Ministry of Transportation of Ontario and from his insurer in relation to his driving and insurance history. This information may give rise to the need to impose terms and conditions as part of the remaining Final Order.

[82] It is abundantly clear from the affidavit material that the paternal grandparents harbour animosity towards mother. The paternal grandfather’s affidavit sworn June 24, 2019, states: “B.B. does not appear to benefit particularly from access with his mother.” Until asked by the Society to facilitate telephone access between mother and B.B., the paternal grandparents refused to do so. The evidence also suggests they were not forthcoming in ensuring the maternal grandparents had access to B.B., although this situation has improved.

[83] In her submissions on behalf of the paternal grandparents, their counsel acknowledged that any order made now would be reviewable if mother’s circumstances and commitment stabilize. This would constitute a material change in circumstances. If B.B. is to be placed in the custody of his paternal grandparents, a plan must be developed to explain to him why he is not being raised by one or both of his parents. This needs to be done in a coordinated, thoughtful way, when it is age-appropriate.

[84] It is critical to B.B.’s well-being that both his parents are as much a part of his life, including in a caregiving role, as they are able, and in keeping with his best interests. Much like the requirement under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) that each separated parent promote maximum contact with the other parent, in keeping with the child’s best interest, it is important that both sets of grandparents facilitate and promote access with B.B.’s parents. It is essential that they do not speak ill of the parents or act as if they do not matter. It is also essential that the siblings have frequent and regular contact with each other.

[85] The evidence reveals that initially the relationship between the two sets of grandparents was strained. It was necessary for the maternal grandmother to ask for specified access to B.B. to ensure this formed part of any permanent plan. To their credit they attended mediation and their relationship and ability to co-ordinate contact with both grandchildren has improved.

[86] Mother’s alternative proposal is to place B.B. in her parents’ care. This has the obvious benefit of placing the siblings together, rather than perpetuating the fractured arrangement that is currently in place. But this proposal is problematic in two ways. First, B.B. is settled in his current home and bonded to his paternal grandparents. Second, the maternal grandmother has made it clear that she is unwilling to be the custodian of both of her grandchildren. She supports the Society’s position regarding B.B.’s placement with the paternal grandparents. From this stance, the court can infer that she is of the view her daughter is not ready or able to assume full-time care of B.B., at the moment.

[87] Mother has attended several meetings with Society workers at which goals and expectations from her have been explained both orally and in writing. She has had months to demonstrate a commitment to expanding her caregiving role of her son with action rather than words. She has had months to pursue referrals to enhance her ability to look after herself first and then look after her son. She has not followed through. She had months to cooperate in participating in the PCA, if she believes such an assessment would demonstrate her abilities and provide the court with useful information.

[88] Throughout B.B.’s short life, mother has been in unhealthy, unstable and abusive relationships with her male partners, both of whom have criminal histories and who associate with unsavory peers. In her affidavit of June 28, 2019, she identifies herself as a victim of domestic violence. It is important that she name this problem. But on the evidence before me, including her oral evidence on the motion regarding J.C., I conclude that she lacks insight into her pattern of being in relationships which place her at emotional and physical risk. She does not have the emotional wherewithal to remove herself from these unsafe and unhealthy relationships. This is not unusual for people in abusive relationships, whose victimization often renders them powerless and despondent.

[89] Mother also lacks insight into how her choice of partners poses real risks to her children, not only in terms of possible exposure to excessive conflict, but in terms of how these relationships distract and destabilize her life circumstances. While the court understands the context within which she falsely reported the timing and nature of J.C.’s aggression towards her to the police, the consequence was that she was incarcerated, convicted of a criminal offence and her life was destabilized. It adversely impacted her ability to maintain consistency in her access to her son. It adversely impacted her relationship with the paternal grandparents.

[90] Mother’s Plan of Care proposes that B.B. live with her at the same residence where she says she feels unsafe and wishes to leave. It is her evidence that B.B. would have his own room and that she has painted it and made it ready for his return. The Society expresses concern about the neighbourhood where she resides. The court would benefit from more evidence about this residence and its location, in its consideration of mother’s future access.

[91] Counsel for mother argues that the court requires a trial in order to make a fair and just determination of the issues. He relies on Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, a decision which directs courts of first instance to proceed with caution when entertaining a motion for summary judgment in a child protection matter, having regard to the fact that child protection litigation engages the Charter rights of both parents and the children. (See para 65).

[92] In summarizing and clarifying the approach that courts should take to summary judgment in child protection proceedings Benotto J.A. sets out the following at paragraph 80;

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.

[93] In Kawartha, one of the issues was whether and when the court may order access to a child in extended society care, under the newly formulated provisions in the CYFSA. The court concluded that the change in the legislation was not just about semantics but represents a significant shift in the approach to access in extended care. In elaborating on the change in relation to the burden of proof in such an inquiry, the court clarifies that 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. The court concludes that it is no longer the case that a parent who puts forward no evidence will not gain access. I do not take this interpretation to mean that in other contexts, under this legislative scheme, a responding parent need not put forward any evidence in support of their position.

[94] The burden of proof rests with the party who moves for summary judgment. (See Sanzone v. Schechter, 2016 ONCA 566 at para.30.) Under Rule 16(4) of the Family Law Rules the moving party must “set out specific facts showing that there is no genuine issue requiring a trial.” The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions. (See Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para.48.)

[95] Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:

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.

[96] In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, 242 A.C.W.S. (3d) 794, affirmed 2014 ONCA 878, Corbett J. confirmed the continued applicability of the rules requiring the responding party to “put its best foot forward” or “lead trumps or risk losing”. Combined Air Mechanical Services v. Flesch, 2011 ONCA 764 at para 56; Bhakhri v. Valentin, 2012 ONSC 3700, para. 7; Pizza v. Gillespie (1990). The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 at para. 30.

[97] Here, mother has failed to do that. Her responding affidavit material is short and fails to respond to the numerous issues, including the many statements attributed to her that are highly relevant to this court’s determination, at this juncture, by simply saying she should be given the opportunity to submit this evidence at a trial.

[98] I conclude that the record before me is sufficient to make a finding that B.B. continues to be a child in need of protection. I also conclude that the issue of B.B.’s current placement can also be determined on the record before me. There is considerable, undisputed sworn testimony from several deponents, as summarized above, setting out the reasons why mother is not now in a position to assume full-time responsibility of her son. A trial is not necessary and would not change the outcome on these findings.

[99] I have considered the factors delineated in Section 74(3) of the CYFSA. B.B., now 3 years old is entitled to a more permanent plan. I find that a disruption to his current care by changing his placement with his paternal extended family, would be contrary to his best interests. His paternal grandparents have been a consistent and loving presence in his life, since soon after his birth.

[100] Given that he has spent his entire life in Society care, I also find that a delay in the disposition on custody is also contrary to his best interests. He deserves the security of continuity of care, albeit in the context of an overall parenting plan which provides greater inclusion in relation to both decision-making and access by his mother. Lastly, I conclude that mother’s lack of stability in relation to her plan of care, her living situation and her intimate partner relationships pose a risk to be B.B., if he were to be returned to her care, at this time.

Evidentiary Issues Raised on the Motion

[101] This motion was originally before me in the summer. After reading the motion record on the eve of the hearing date, I concluded that the materials filed were replete with inadmissible hearsay evidence. While it is ultimately the court’s role to act as a gatekeeper and reject inadmissible evidence, the court should not be put in the position of having to read extensive obviously inadmissible evidence, such as double hearsay or statements not properly attributed to a person at a point in time and then sort out in its reasons what evidence it relied upon or rejected and why.

[102] I made an endorsement reminding the parties that evidence must be reliable and adhere to the well-established principles on the admissibility of various kinds of evidence. In that endorsement I specifically noted that any hearsay evidence from the father would be inadmissible, because he would not be participating on the motion. This direction was ignored. I do accept statements attributed to him as part of the narrative which prompted action by others, rather than for the proof of their contents.

[103] The factum for the respondent mother provides numerous examples of evidentiary problems in the record. I also note that in some instances child protection workers referred to hearsay from other child protection workers who could and should have provided their own evidence. It is also unhelpful for a Society worker who swears an affidavit to state that her or she relies on all previously sworn affidavits, thereby requiring the court to dive into the Continuing Record to read this “adopted” testimony. Parties should provide the court with all the evidence upon which they intend to rely in the summary judgment motion record itself. Despite these deficiencies, overall the record contains sufficient admissible evidence to permit the court to make part of its determination in a summary manner, without depriving mother of a fair process.

Next Steps

[104] The court requires a two-day focused hearing to receive oral evidence to assist in developing a comprehensive plan of care with much greater detail regarding each family members’ rights and responsibilities in relation to decision-making and contact with B.B. I direct the parties to contact trial coordination to obtain a half-hour appearance before me to conduct a trial management conference to devise the conduct of that hearing. I want to hear from all members of the family including both sets of grandparents and mother. If mother’s proposed access includes J.C., I will need to hear from him. I also need to hear from Tehra Treverton and Alyssa Baldwin.

[105] I note that in Justice Malcom’s endorsement of October 2, 2017, she recommended family group decision-making for this family. It is in B.B.’s best interests that all family members work cooperatively in devising a more detailed plan for this care now and into the future. Many of mother’s shortcomings can be attributed to her age and lack of maturity. Given that she is the child’s biological mother, her relationship to B.B. is important to his well-being. As she matures and her situation stabilizes, she will have the right to seek a variation under the CLRA. I would hope that the parties might work together to draft provisions for inclusion in the balance of this final order which provides a roadmap for future dispute resolution both in and outside of court.

Conclusion

[106] Based on the foregoing I make the following ruling:

(1) I find that B.B. continues to be a child in need of protection.

(2) B.B. shall be placed in the custody of his paternal grandparents pursuant to section 102 and 114 is the CYFSA. This does not mean that they are being granted exclusive decision-making authority, until I hear further evidence on that point.

(3) The question of the decision-making model for this family and all issues relating to the contact each family member has with each child, and in particular mother’s contact, shall be addressed at a focused hearing at which the court will receive oral evidence from the parties and witnesses listed above.

(4) The parties shall contact trial coordination to arrange for a prompt trial management conference before me at which a two-day focused hearing will be scheduled as soon as the court is available. I will make this a priority.

(5) Costs are reserved until the final disposition on all issues.

Nicole Tellier J.

Released: January 9, 2020