CCAS v. I.B. et al., 2020 ONSC 5498

COURT FILE NO.: 785/16

DATE: 2020-09-15

WARNING

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

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

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

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

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Catholic Children’s Aid Society of Hamilton

Applicant

– and –

I.B., R.C., and K.K.

Respondents

I. Kamal, Counsel, for the Applicant

A. Williams, Counsel, for the Respondent, I.B.

N. Williams and R. Petgrave, Counsel for the Respondent, K.K.

M. Vamos, Counsel for the Respondent, R.C.

HEARD: June 29, June 30, July 2, and July 3, 2020.

JUDGMENT

THE HONOURABLE MADAM JUSTICE L. BALE

INTRODUCTION

1This a Motion for Summary Judgment brought by the Catholic Children’s Aid Society of Hamilton seeking an Order that:

1. The children, H.R-M., born […], 2012, K.K.J. born […], 2017, and I.K., born […], 2018, shall be placed in the extended society care of the Catholic Children’s Aid Society of Hamilton; and

2. There shall be no access.

THE PARTIES

2The Catholic Children’s Aid Society of Hamilton (“the Society”) has been involved with this family on a continuous basis since January 2016.

3The subject-children are:

a. H.R-M, born […], 2012 (age 8);

b. K.K.J., born […], 2017 (age 2); and

c. I.K., born […], 2018 (age 1).

4The Respondent I.B. is the mother of all three children.

5The Respondent R.C. is the biological father of the child H.R-M.

6The Respondent K.K. is the biological father of the children K.K.J., and I.K.

MATERIALS FILED

7The Following materials were filed by the Society in support of this Summary Judgment Motion:

1. Notice of Motion for Summary Judgment dated December 16, 2019;

2. Notice of Motion for Summary Judgment dated May 19, 2019;

3. Affidavit of Jessica Wright dated December 12, 2019. I note that the Affidavit of Ms. Wright consists of 223 pages of materials and is 682 paragraphs in length;

4. Affidavit of Alberta Abbiw dated December 16, 2019. I note that this Affidavit of Ms. Abbiw (1 of 5) consists of 83 pages of materials and is 356 paragraphs in length;

5. Affidavit of Sabrina Sayegh dated December 10, 2019;

6. Affidavit of Sara Townsend dated November 13, 2019;

7. Affidavit of Veronica Vincze dated November 14, 2019;

8. Affidavit of Leianne Cockerill dated November 11, 2019;

9. Affidavit of Theresa Michell dated September 25, 2019;

10. Affidavit of Beata Filc dated December 16, 2019;

11. Offence Record Report of R.C.;

12. Offence Record Report of I.B.;

13. Offence Record Report of K.K.;

14. Occurrence Reports re: R.C., I.B., and K.K. from 2007 to February 14, 2020.

15. Notice of Intention to File Business Record pursuant to s. 35 Evidence, dated February 14, 2020;

16. Affidavit of Sabrina Sayegh dated January 28, 2020;

17. Affidavit of Leianne Cockerill dated January 28, 2020;

18. Affidavit of Alberta Abbiw dated January 29, 2020;

19. Affidavit of Jessica Wright dated January 29, 2020;

20. Affidavit of Beata Filc dated January 28, 2020;

21. Affidavit of P.B. dated February 7, 2020;

22. Affidavit of Alberta Abbiw dated February 12, 2020;

23. Affidavit of Alberta Abbiw dated April 29, 2020;

24. Affidavit of Dr. Anne Neic dated February 26, 2020;

25. Affidavit of Alberta Abbiw dated March 26, 2020;

26. Affidavit of Leianne Cockerill dated March 26, 2020;

27. Affidavit of Jennifer Veenstra dated March 24, 2020;

28. Affidavit of Alberta Abbiw dated May 19, 2020;

29. Notice of Intention to File Expert Report of the Child Advocacy and Assessment Program Clinic;

30. Child Advocacy and Assessment Program Clinic Assessment of the child H.R-M. dated August 8, 2019;

31. Curriculum Vitae of Dr. Anne Niec;

32. Applicant’s Factum.

8I note that the materials filed by the Society in support of this Summary Judgment Motion totalled approximately 1,000 pages.

9The Respondent mother filed the following materials:

a. Affidavit of I.B. January 24,2020;

b. Affidavit of I.B. sworn March 10, 2020;

c. Affidavit of I.B. sworn May 15, 2020; and

d. Respondent’s Factum.

10The Respondent K.K. did not file any materials but is supportive of the mother’s position and generally adopts the content of her materials.

11The Respondent R.C. filed the following materials:

a. Affidavit of R.C. dated March 31, 2020;

b. Affidavit of F.B. dated May 5, 2020;

c. Affidavit of C.M. dated May 5, 2020;

d. Affidavit of J.C. dated May 5, 2020;

e. Affidavit of R.C. dated April 24, 2020; and

f. Respondent’s Factum.

CHRONOLOGY OF LEGAL PROCEEDINGS

12Prior to January 2016, I.B. had involvement with the Society as a child and as a parent on a voluntary basis.

13The Society commenced a Child Protection Application regarding the child H.R-M. on May 26, 2016. H.R-M. was brought into care on May 21, 2016.

14On September 7, 2016, Brown J. made a Final Order, pursuant to Minutes of Settlement filed, making H.R-M. a Society Ward for a period of four months.

15A Status Review Application was commenced on January 4, 2017.

16On May 11, 2017 Brown J. granted a Temporary Order placing H.R-M. in the care of I.B. and K.K., subject to terms of supervision.

17On June 6, 2017 Pazaratz J. granted a Final Order placing H.R-M. in the care of I.B. and K.K., subject to terms of supervision for a period of eight months.

18A Status Review Application regarding H.R-M. was commenced on February 7, 2018.

19On May 30, 2018 a Child Protection Application was commenced in relation to the child K.K.

20On November 17, 2018 the children H.R-M., K.K.J. and I.K. were brought to a place of safety and an Amended Application regarding H.R-M. and K.K.J.., and Child Protection Application regarding I.K. was commenced.

21On May 7, 2017 Brown J. granted a Final Order, pursuant to Final Minutes of Settlement filed, continuing the interim Society care and custody of the children for a further period of four months. Additionally:

a. Statutory findings for all three children were made on that date, including that they are not First Nations, Inuk or Métis children; and

b. All three children were found to be in need of protection pursuant to s. 74(2)(b)(i) of the Child, Youth and Family Services Act, 2017.

22On August 28, 2019 the Society commenced a Status Review Application seeking an Order that all three children be placed in Extended Society Care.

23The matter was scheduled for a summary judgment hearing in February 2020.

24On February 18, 2020 the Summary Judgment Motion was adjourned to permit R.C. and K.K. to file an Answer and Plan of Care and materials to be relied upon for the summary judgment motion.

25The summary judgment motion was adjourned to the trial sittings of March 30, 2020. The motion was not heard on the March 30, 2020 sittings as a result of the suspension of court operations arising from COVID-19.

26This summary judgment motion was commenced on June 29, 2020 (adjourned briefly due to a medical issue), and thereafter heard over the course of June 30, 2020, July 2, 2020, and July 3, 2020.

BACKGROUND

27I.B. and R.C. are the biological parents of the child H.R-M. The length of that relationship is unknown to the court, but it appears that the relationship ended for the final time in or around July 2014. The child H.R-M. remained in the care of I.B. following their separation.

28I.B. and K.K. are the biological parents of the children K.K.J. and I.K. They have been in a relationship together since approximately March 2015 and continue to cohabit to date.

29The Society has had an open file in relation to this family continuously since January 2016.

30H.R-M. was first apprehended from the care of I.B. (and K.K.) on May 21, 2016. He was reintegrated into their care in April/May of 2017.

31K.K.J. was born on […], 2017.

32I.K. was born on […], 2018.

33All three children were brought into care on November 17, 2018. The three children were initially placed in separate foster homes. In January 2019 K.K.J. was moved into the same foster home as H.R-M. In July 2019 H.R-M. was moved out of that foster home into a specialized foster home. The children all remain in separate foster homes at this time.

TIME IN CARE

34The child H.R-M. was previously in care for a period of twelve months, from May 2016 to May 2017. All three children have remained in care continuously since November 2018.

35The total time the children have therefore been in care to date is as follows:

a. H.R-M. – thirty-two months;

b. K.K.J.– twenty months; and

c. I.K. – twenty months.

EVIDENCE OF THE SOCIETY

Theresa Mitchell

36Ms. Mitchell was the first child protection worker with the Society assigned to the family during this file opening. She provided an Affidavit in which she recalled specific discussions she had with I.B. Specifically, I.B. advised that:

a. She and K.K. have been in a relationship since March 2015;

b. They had their first argument in January 2016, but it was not physical;

c. Repeated attendances by the Hamilton Police Service to their residence were as a result of neighbour conflict and not domestic violence;

d. H.R-M.’s behaviour had been difficult to manage lately – he had broken his foot, needed his tonsils and adenoids out, and was struggling with the transition into a new apartment.

37H.R-M. was observed to be comfortable in the care of I.B. and K.K.

38Ms. Mitchell wrote letters at the request of I.B. in support of an extension of time to complete community service and alternate housing. The file was thereafter transferred to Ms. Wright.

Jessica Wright

39Ms. Wright was the second child protection worker assigned to this family during the current file opening. Her role with this family commenced in or around April 2016 and ended in or around May 2018.

40At the outset I would note that a large body of the information contained within the Affidavit of Ms. Wright contains inadmissible hearsay (including at times, double hearsay and triple hearsay). While I recognize that, at times, hearsay evidence is permitted and even helpful in giving background narrative, for the most part the hearsay evidence contained within this Affidavit appeared to be intended for consideration of the truth of its content. It was offensive to the rules of evidence and far from reliable. Further, the amount of information in this Affidavit was excessive: much of it was not relevant or probative to the issues before the court. Evidence on summary judgment must be trial-worthy evidence. Summary Judgment motions are meant to be a streamlined, more efficient use of court resources. By submitting a 223-page (682 paragraph) Affidavit which contains evidence that would never be tendered in a witness box, this affiant has unfairly downloaded the responsibility of sifting through the irrelevant and inadmissible evidence to the Responding parties and the court. I have placed no weight on the paragraphs within Ms. Wright’s Affidavit which offend the basic rules of evidence. Far greater effort on the part of the Society is necessary in future in vetting and editing Affidavits of this nature filed on summary judgment motion.

41The background narrative contained within Ms. Wright’s Affidavit which is relevant to this matter can be summarized as follows:

a. Following the birth of the child H.R-M. on September 5, 2012 I.B. and R.C. worked voluntarily with the Society and engaged in community programming. No concerns were noted and the family was observed to be doing well in parenting the child. At times I.B. and R.C. contacted the Society and accessed their services and support.

b. In June 2014 the Society was contacted by police with respect to a domestic occurrence between I.B. and R.C. Rather than relying upon Ms. Wright’s summary of this event (or any subsequent reiteration of police occurrences by other Society witnesses) I will make specific reference below to the corresponding admissible evidence, as contained within the volume of Hamilton Police Service occurrence report records produced by the Society in this proceeding.

c. As a result of this incident the Society verified concerns of emotional harm to H.R-M. by reason of exposure to domestic partner conflict.

d. The Society file was closed in April 2015 as there were no outstanding child protection concerns and I.B. was appropriately accessing services for herself and H.R-M.

42As noted above, Ms. Wright’s own professional involvement with this family commenced in April 2016. By that time R.C. had no contact with H.R-M., and I.B. and K.K. were residing together. In April 2016 it appears from Ms. Wright’s Affidavit materials that H.R-M. was well cared for and his medical needs were being met. The parties had conflict with neighbours and were looking for alternate housing but appeared to be generally functioning well.

43In May 2016 the Society was contacted by the maternal grandmother, K.B. Multiple allegations were made by the maternal grandmother to the society with respect to I.B. and K.K. The court places no weight on the assertions made by the maternal grandmother, as reproduced in Ms. Wright’s Affidavit, as there is no first-hand Affidavit before the court in relation to the substance of the allegations. Likewise, multiple paragraphs of allegations made by J.R. (mother of the maternal uncle’s girlfriend), and E.R. (girlfriend of the maternal uncle) are reiterated in the Affidavit of Ms. Wright. There are no Affidavits before the court on behalf of either J.R. or E.R. and again no weight is placed on the information contained within these paragraphs.

44As a result of the Society’s investigation, H.R-M. was apprehended from the care of I.B. The concerns of the Society at the time pertained to exposure to adult conflict, homelessness and drug use. Ms. Wright observed that, although upset at the time of apprehension, I.B. was cooperative and helpful in packing items for the child and providing information as to the child’s likes, health needs and upcoming tonsil and adenoid surgery.

45During the period that H.R-M. was in care, I.B. and K.K. enjoyed frequent and regular access to him at the Society, in the community, and later in their home. Both I.B. and K.K. signed consents permitting the Society to obtain urine screen test results from the methadone clinics they attended, hospital records and police records. The parties appear to have engaged in programming and counselling as suggested by the Society.

46It also appears that during H.R-M.’s first period in care, I.B. and K.K. had a positive relationship with H.R-M.’s foster family. For example, Ms. Wright’s Affidavit identifies that they cooperated in providing consent for H.R-M.’s foster family to take him on vacation, on occasion they met with the foster mother in the community, and I.B. and the foster mother coordinated H.R-M.’s back to school shopping and dental appointments. I.B. and the foster mother had direct communications and shared important information pertaining to H.R-M., including both health care and education issues. Both K.K. and I.B. attended H.R-M.’s pre-op appointments and surgery dates with the foster mother while he was in care.

47The Society assisted I.B. and K.K. by providing bus tickets when required and providing a letter to Ontario Works to assist with obtaining housing. By August 2016 I.B. and K.K. had secured a new residence. The home was observed by Ms. Wright to be clean and appropriate and had a bedroom designated for H.R-M. The kitchen was stocked with food. There were no safety hazards. Urine screens obtained from the methadone clinic tested negative for illicit or inappropriate drug use.

48Ms. Wright’s Affidavit outlines that H.R-M. was demonstrating some concerning aggressive behaviours in school and within the foster home. These behaviours were discussed with I.B. and K.K. A consultation with a developmental paediatrician was discussed regarding what services and supports would be useful for H.R-M. and what else could assist the foster parents, the school staff and the parents in managing H.R-M.’s behaviour. It is unknown to the court as to whether this consultation occurred. I.B. and K.K. expressed agreement in meeting with Dr. Klein to discuss school supports that might be put in place. H.R-M.’s speech continued to appear somewhat delayed however his report card showed that he had made good progress that year. His attendance at school was not an issue. A speech pathologist assessment was contemplated, and speech exercises were sent home from school for the summer months.

49In January 2017 K.K. commenced counselling with a Men’s Anti-Violence Counsellor (through Catholic Family Services). It was agreed that the counselling would begin with six sessions focused on conflict within past relationships, how adult conflict can impact parenting, what would need to change to ensure that H.R-M. would not be exposed to adult conflict, and how to parent a child that had previously been exposed to adult conflict. K.K. struggled to complete this counselling in a timely manner. Both parties did complete Anger Management, Parenting with Love, Life Lessons Parenting Program, the Incredible Years Program, and the Coping with Toddler Behaviour Program. I.B. also completed the Crossing Paths program and both parties enrolled in ADGS counselling.

50A plan for the return of H.R-M. into I.B. and K.K.’s care was made. Overnight access was commenced and H.R-M. was reintegrated into the care of I.B. and K.K. in April/May 2017. Ms. Wright observed H.R-M. to be comfortable in his new bedroom and in the home. He expressed happiness with his return and reportedly maintained an age appropriate routine in I.B. and K.K.’s home (e.g. attending school, continuing extracurricular activities, eating meals together as a family, and proper sleep routines). Scheduled and unscheduled meetings in the family’s home were uneventful. I.B. researched and enrolled H.R-M. in Kiwanis camp and the Society assisted with the cost of same.

51In April 2017 I.B. advised the Society that she was expecting a second child. She received proper medical care and accepted a referral to Public Health. The Society assisted I.B. in obtaining government benefits and completing another subsidized housing application (as the family would need a larger home upon the birth of their unborn child). The Society also provided gift cards to assist with the cost of moving. K.K. was employed and the family was moving towards removing themselves from Ontario Works.

52In June 2017 a concern was brought to the attention of Ms. Wright from Ms. Paulin-Young, an Early Childhood Educator at H.R-M.’s school. No Affidavit has been prepared on behalf of Ms. Paulin-Young in this proceeding. Ms. Wright conducted an interview of H.R-M. who advised Ms. Wright that the police had come to his house but he didn’t know why. He reported that he told his teacher that “Daddy punched Mommy in the tummy” and that it was “a little hard”. He further reported that his parents sometimes yelled, and that I.B. would instruct him to go to his room when this happened. He denied ever being scared in the home, even when K.K. would yell. I.B. denied the allegations of domestic violence and conflict in the home. K.K. acknowledged that there were times when the parties shouted at each other but denied that it ever became physical. He also advised that he and I.B. both tried to keep this away from H.R-M. The Society reviewed with the parties the continued need to keep any level of conflict away from H.R-M.

53The mother had regular and appropriate prenatal care during her pregnancy with K.K.J. there were no concerns with the state of the family’s home, and they were organized and prepared for the birth of a baby. H.R-M. was in good health and his medical and dental needs were being met. At times, H.R-M. was still aggressive in school and having some wetting accidents, but these issues had improved somewhat. On […], 2017, K.K.J. was born. He was discharged from hospital into the care of I.B. and K.K. on November 22, 2017.

54K.K.J. and H.R-M. continued to receive proper medical treatment, immunizations, etc. Both parents were observed to be calm, gentle, and responsive in their care of the infant. The mother engaged with Public Health, and Welcome Baby community programs, and both parties continued with proper methadone treatment and abstinence from drugs. K.K.J. was followed by the Neonatal Abstinence Syndrome Clinic.

55I.B. and K.K. were agreeable to entering into a Voluntary Service Agreement which was prepared in early 2018. It does not appear that the Voluntary Service Agreement was acted upon by the Society (an unsigned copy was attached to the Affidavit materials).

56On April 2, 2018 the Society received a report from Hamilton Police service regarding verbal domestic incident at the family’s home. Ms. Wright followed up with the family. Her Affidavit describes a period of stress in the parties’ relationship, their housing, conflict with neighbours and another pregnancy. The parties were warned about parental conflict, and when interviewed H.R-M. advised that he gets sad when his mom and dad fight. He reported that the police had been there to make sure his parents were not fighting, and that the would stay in his room if they did. The mother continued to reach out to the Society for help – both financially and in navigating housing, OW and legal aid issues. Both parents continued to maintain their sobriety and the mother continued to receive proper medical care for her third pregnancy.

57It appears that Ms. Wright’s involvement with the family ended in May 2018 after the file was transitioned to Ms. Alberta Abbiw.

Alberta Abbiw

58Alberta Abbiw has been the worker assigned to this family since April 24, 2018.

59On May 27, 2018 the Society received an After-Hours call from the Hamilton Police Service reporting a domestic incident. Ms. Abbiw attended the family home one week later and noted no concerns.

60On June 17, 2018 and June 20, 2019, the Society received further After-Hours calls from the Hamilton Police Service reporting a (verbal) domestic incidents.

61On July 4, 2020 Ms. Abbiw discussed the above incidents with the Respondent parents. The parties advised that they were having neighbour conflict, which resulted in malicious and unwarranted calls to the police. They denied conflict between themselves. No concerns were noted with respect to the state of their home or their parenting of the children. H.R-M. was interviewed and made no concerning disclosures.

62On August 14, 2018 the Society received a call from the Hamilton Police Service regarding a public incident of conflict on the street between I.B. and K.K. During an interview with the mother, Ms. Abbiw was advised that K.K. did not spit on I.B., and when police intervention occurred, she turned H.R-M.’s stroller around so that he would not observe the commotion. H.R-M. did not report witnessing the event and described appropriate discipline techniques in the home to Ms. Abbiw.

63The mother continued to receive appropriate prenatal treatment during her third pregnancy and continued to engage in community supports. The Society discussed their concerns regarding H.R-M.’s exposure to verbal conflict with the parents. The parents advised that they were aware of H.R-M.’s limited impulse control and that they were mindful not to yell in front of him.

64On […], 2018 the child I.K. was born.

65On October 5, 2018 and October 28, 2019, the Society received further After-Hours calls from the Hamilton Police Service reporting a domestic incident. On follow-up, the parties advised Ms. Abbiw that the incident was yet another incident of neighbour conflict. They continued to deny any domestic conflict between them. H.R-M. advised Ms. Abbiw that he was scared by a flashlight at his door. He denied any yelling or arguing and advised he was not fearful in his home.

66On November 17, 2018 I.B. and K.K. were arrested for shoplifting. The Children’s Aid Society was notified that the Respondent parents were going to be arrested and held in custody over the weekend. No persons were identified who could provide temporary care for the children and, as a result, they were brought to a place of the Society.

67Shortly after the removal of the children to a place of safety the Respondent parents reported to Ms. Abbiw struggles with finances, housing (bed bugs), and neighbour conflict. Both continued to deny any interpersonal physical conflict between them and were agreeable to counselling for relationship and budgeting issues.

68Access visits were arranged. The children were observed to be excited to attend visits with the parents.

69Ms. Abbiw explained to I.B. and K.K. that to get their children back the parents would have to demonstrate a period of stability in their relationship, demonstrate that they are able to manage their anger and emotions and continue to stay clean. The Respondent were warned to be mindful of their behaviours in front of the children, ensuring that they are not exposed to conflict, anger, and escalating behaviours. The parties were advised to engage in couples counselling and attend Parenting with Love (again). K.K. was requested to attend Men’s antiviolence counselling with Catholic Family Services and I.B. was encouraged to attending individual counselling.

70A period of time followed in 2019 which the Respondent parents were not diligent in meeting with Ms. Abbiw as requested. The parents missed or were late for multiple visits and were frequently and demonstrably angry with Ms. Abbiw.

71On April 29, 2019 a CAAP consult was held with Dr. Jean Clinton, Dr. Niec, Angela Mcholm (Psychologist), Hanan Almahruigu (Pediatric Resident), a medical student, and Society Staff. The court is advised that H.R-M.’s development, behaviour and history were discussed. No further information or opinion was provided to the court about this meeting.

72On May 21, 2019 the parents’ visits were moved to the Society office rather than in the community. The Respondent parents did not agree with this decision. K.K. became angry at Society staff and the parties’ visit was cancelled. The Respondents became escalated and were yelling and using profanity in the presence of baby I.K.

73On June 11, 2019 I.B. left a voice mail for Ms. Abbiw requesting help with arranging a shelter. On June 12, 2019 Ms. Abbiw received a telephone call from an officer with the Hamilton Police Service reporting further information. I.B. thereafter reported to Ms. Abbiw that she and K.K. had been in an argument that resulted in K.K. cutting up her clothing. She advised that they were no longer in a relationship but she did not want to leave the apartment and was not fearful for her safety. Ms. Abbiw advised I.B. that she had to make a decision to either be on her own or, if she and K.K. were planning on parenting together, they needed to address their conflict and anger issues.

74On June 14, 2019 the Society received another After-Hours call from the Hamilton Police Service reporting a domestic incident. A large volume of information is thereafter provided in Ms. Abbiw’s Affidavit pertaining to statements made by a neighbour/cousin and that individual’s mother. This hearsay evidence is not admissible for the truth of its content and there is no Affidavit sworn by these two individuals before the court.

75On June 24, 2019 Ms. Abbiw met with I.B. and observed a bruise on I.B.’s cheek. I.B. reported that on June 19, 2019 K.K. punched her. Police were called and K.K. was reported to be residing temporarily with his mother. I.B. reported being fearful that K.K. would hit the children. Mr. Abbiw pointed out that I.B.’s behaviour was also very concerning: yelling and instigating conflict in the presence of the children. I.B. acknowledged struggling with the stress of the situation and in managing her mental health (depression, anxiety, eating disorder). She acknowledged the need to remove herself from the abusive relationship with K.K. She indicated that she is receptive to getting help.

76K.K. thereafter became more defensive and resistant to working cooperatively with the Society. The status of the parties’ relationship became somewhat unclear, although I.B. and K.K. appear to have continued to reside in the same residence.

77In August 2019 access visits between the children and Respondent parents were suspended due to two missed visits in a row and the corresponding distress this caused H.R-M. On August 22, 2019 I.B. advised Ms. Abbiw that K.K. had gone to Alberta for employment. Her visits were reinstated shortly thereafter.

78In September 2019 the Society became aware that K.K. had returned to Hamilton and was in custody at the Hamilton Wentworth Detention Centre. It became apparent that K.K. was in custody, in part, for an assault committed upon I.B. During the period of K.K.’s incarceration I.B. advised Ms. Abbiw that they had signed up for couples counselling to commence in November 2019. I.B. advised Victim Services that she did not want a ‘no contact’ order in place and reiterated her commitment to jointly parenting the children with K.K.

79K.K. remained in custody until December 18, 2019. On December 19, 2019 I.B. and K.K. attended at the Society to meet with Ms. Abbiw. They advised of their intention to engage in couples counselling and K.K.’s further enrolment in anger management. K.K.’s visits with the children were reinstated, together with I.B. K.K. and I.B. subsequently missed two scheduled meetings with Ms. Abbiw.

80In February 2020, H.R-M. made disclosures to his foster mother regarding an incident at an access visit, and historic disclosures. These disclosures are addressed below as contained within the foster mother’s sworn Affidavit. When Ms. Abbiw met with I.B. to discuss the disclosures and was told that her visits would be suspended, I.B. became angry, yelled at Society workers and left the meeting abruptly. Ms. Abbiw later participated in a meeting with H.R-M. wherein H.R-M. reiterated to Society staff that “dad grabbed me and threw me on the wall” and “he pushed my stomach and put me on the wall” during the access visit in question. He further recalled occasions wherein his parents had been throwing pizza at one another and that on another occasion he was scared when a police officer came into his bedroom. H.R-M. appeared worried that his parents would be mad at him for telling the Society of these incidents. When interviewed about these incidents I.B. and K.K. denied harming H.R-M.; they acknowledged that H.R-M. was having an ‘off’ day at the access visit, and was making hurtful statements such as “I hate you”. He was upset that he was not gifted a toy (‘beyblades’) at the visit.

81On February 13, 2020 Ms. Abbiw received a call from the Hamilton Police Service. The details of this occurrence are as reiterated below in the occurrence reports.

82Since the commencement of the COVID-19 health crisis I.B. and K.K. have been able to continue telephone and video access with H.R-M. and K.K.J.as arranged through the Society and directly with the foster parents. It is unclear to the court as to whether this is occurring with I.K. due to her age.

Summary of Evidence Specific to R.C.

83With respect to R.C., the Society’s materials explain that R.C. has never had H.R-M. in his care. H.R-M. has little to no memory of R.C. and refers to K.K. as his father.

84The relationship between R.C. and I.B. has not been positive. Their period of cohabitation was conflictual, as confirmed by both parties and as evidenced by the Hamilton Police Service Records referenced below. R.C. advises that the conflict between them was not physical save and except that I.B. once struck him on the head. They appear to have separated in or around July 2014. R.C.’s access to H.R-M. post-separation was very limited.

85On the first occasion that H.R-M. was brought into care, R.C. was granted supervised access to him (commencing in June 2016) by the Society. On his first visit H.R-M. was observed by society worker, Ms. Wright, to look “shocked” upon entry into the room; he queried where “mommy and daddy were”. R.C. responded in telling H.R-M. that he only had one daddy and that it was him. R.C. had to be told not to engage in such discussion with the child. However, other positive interactions were noted between R.C. and the child during the visit. R.C. thereafter missed multiple meetings with Ms. Wright and was late for and/or cancelled multiple access visits with H.R-M. The Society’s efforts to contact R.C. became difficult.

86In October 2017 R.C.’s access visits with H.R-M. were formally suspended as he had not completed any programming, had not met with the society, and was missing numerous visits. R.C. thereafter refused to engage with Society and had no contact with the Society until February 2020. Motions requesting to dispense with service of status review materials upon R.C. were granted by the court in March 2018, April 2018, and September 2019. On occasions wherein R.C.’s whereabouts could be ascertained, he was served and thereafter noted in default (November 2018 and May 2019).

87On February 4, 2020 R.C. met with Ms. Abbiw at the Society office. It was explained to him that the Society was pursuing a Summary Judgment Motion. He picked up the summary judgment materials the following day as requested. On February 10, 2020 R.C. and his sister met with Society workers at the Society office. He expressed a desire to parent H.R-M. It was unclear to Society workers whether R.C. fully understood the complexity of H.R-M.’s special needs.

88The paternal grandmother declined to put forward her name as a potential kin placement for H.R-M., however asserted she would be a support to R.C. R.C. and the paternal grandmother both agreed to read the CAAP report and court materials in an effort to understand H.R-M.’s complex needs. They both also agreed to attend a meeting scheduled between H.R-M.’s teacher and foster mother. They did not attend. R.C. thereafter (again) became difficult to contact, missed multiple meetings with Society workers, did not sign necessary consents to speak to collateral sources and obtain documents, did not engage in programming, and did not return their calls in a timely manner. Due to his lack of engagement the Society was unable to assess R.C.’s plan in any meaningful way.

89The matter was scheduled for Summary Judgment Motion on February 18, 2020. A verbal altercation took place outside the courtroom between R.C., I.B. and K.K. Adjournments of the action were granted to March 4, 2020, and then again to April 24, 2020 to permit R.C. to serve and file an Answer and Plan of Care. Eventually an Answer and Plan of Care dated March 31, 2020, was filed electronically (after the suspension of regular court operations).

Sarah Townsend

90Ms. Townsend is a Society worker. She provided a brief Affidavit in which she describes observing I.B.’s attendance at the Society office with a black eye on August 19, 2019.

Sabrina Sayegh & Veronica Vincze

91Affidavits were filed by Family Resource Workers of the Society who had occasion to observe access visits for this family. The Society concedes that access visits have generally been positive, however there have been instances wherein I.B. and K.K. have been agitated, argumentative and confrontational with staff, sometimes in the presence of the children.

92It is the court’s understanding that, absent COVID-19 restrictions, access has generally occurred between the children, I.B., and K.K. on Tuesdays and Thursdays, semi-supervised by the Society. H.R-M. and K.K.J. have also had occasion to speak to the parents on the telephone. The Society does not dispute that H.R-M. has a bond with his siblings, and I.B. and K.K.

93The Affidavits reveal a significant but not overwhelming number of late or missed visits between the children and I.B. and/or K.K.

94Society Worker Veronica Vince’s Affidavit describes an incident which she observed at an access visit in a park on June 17, 2019 wherein the Respondent parents became involved in a verbal altercation with a third party in the park. The argument escalated to the parents yelling obscenities and threatening to kill the third-party. The children were present and observed the altercation.

Leianne Cockerill

95Ms. Cockerill has been the Children’s Service Worker for all three children since November 17, 2018.

96Within the introduction to Ms. Cockerill’s Affidavit material she states that “any hearsay contained herein is intended to provide background to explain the basis for actions taken and it is understood that such evidence may be given less weight if the sources of the hearsay do not testify at trial. It is intended that all sources of such hearsay evidence will be called to testify if required at trial”. Yet, her Affidavit was “sworn in support of the Society’s Summary Judgment Motion”, in which the court may only rely upon trial-worthy evidence. As such, a large majority of the information contained within Ms. Cockerill’s Affidavits (in particular the Affidavit of March 26, 2020) is inadmissible for the truth of its content.

97It is unfortunate that a significant body of information that may have been very probative to the issues before the court, particularly as it pertains to the concerning observations of H.R-M.’s foster mothers, was not presented in admissible form. No Affidavit was produced on behalf of H.R-M.’s previous foster mother, and the information provided to and by Ms. Cockerill far exceeds the scope of information contained within the Affidavit of H.R-M.’s current foster mother as summarized below.

98Ms. Cockerill has been the assigned Children’s Services Worker for all three children since November 17, 2018. She advised the court that:

a. The children are happy, settled, growing, and developing well in foster care;

b. Their medical, social, and emotional needs are being met;

c. The children have sibling access from time to time as arranged between their respective foster mothers;

d. A lengthy description of H.R-M.’s behaviours are provided in the Affidavits of Ms. Cockerill, none of which apparently came from first hand observation. From the admissible information filed, this court is aware that:

1. In June 2019 H.R-M. was moved into a special treatment foster home due to his behaviours;

2. A referral for H.R-M. to be seen for a Developmental Pediatric Consultation at the Ron Joyce Children’s Health Centre has been accepted, with an anticipated wait time of one year;

3. A hearing test was completed in which H.R-M. had a normal result, with sensitivity to background noise. He was found to have difficulties related to auditory memory and auditory decoding. Recommendations have been made in relation to visual cues, verbal directions and learning environment for his caregivers and educators;

4. H.R-M. has made the following disclosures to Ms. Cockerill:

i. He recalls his parents fighting with neighbours. It happened a lot and one time his mother had a bloody lip;

ii. He recalls his mother and father getting mad and fighting with each other almost every day. They would yell at each other about money. They would hit each other but his dad would hit his mom first;

iii. His dad hit him with his hand. He did not know how often this happened. His dad also pushed K.K.J. into the front door which made K.K.J. cry;

iv. His parents stole gum and candy during access visits;

v. He is not sure if he would like to go back home and live with his mom and dad. He would like to stay living with his current foster mother and visit with his family as he does now;

vi. He suggested that if they were to go home, that he and K.K.J. could live with his mother and I.K. could live with his father. He would maybe be safe with his mother but his dad was not nice to his mom;

vii. H.R-M. initially noted no interest in seeing R.C. as he had been told he was bad;

viii. Sometimes he is scared of his foster sister as she will get mad at him;

ix. It makes H.R-M. sad when his parents don’t attend visits.

5. H.R-M.’s genetic testing came back negative for abnormalities;

6. H.R-M. has recently been diagnosed with ADHD and has started medication;

7. H.R-M. experiences struggles in school. Ms. Cockerill attaches correspondence of the principal at the child’s school dated April 29, 2019 as an Exhibit to her Affidavit. I have reviewed the correspondence but can place only limited weight upon it, as the information is not in Affidavit form and appears to contain a collection of information from other individuals, who are also not Affiants in this proceeding. I do not rely upon the letter for the truth of its contents but rather for the limited purpose of supporting the Society’s actions in requesting a developmental pediatric assessment for H.R-M.

e. K.K.J.is meeting all developmental milestones, save and except that his speech is delayed. He is on a waitlist for services at Early Words and Therapeutic daycare. K.K.J. enjoys a strong bond with his foster family and also enjoys his access visits with his parents and siblings;

f. I.K. is meeting her developmental milestones and is observed to be a healthy, active, and engaging child.

99The Affidavit of Ms. Cockerill and Society case notes (attached to I.B.’s Affidavit) confirm that the foster parents and I.B. communicate information in a communication book. For example, H.R-M. lost a tooth at a visit, and this was communicated to the foster home so that the tooth fairy would be aware. They appear to respond appropriately when issues of concern are raised (e.g. H.R-M.’s theft of beyblades from school), and concur and cooperate with methods of discipline. I.B. is in direct contact with the foster families by text messaging and I.B. has been accepting of the rescheduling of visits so as to permit the children to attend special events or activities (e.g. I.K.’s trip to the aquarium). I.B. has attended medical appointments with the foster mothers when invited (e.g. K.K.J.’s eye appointment). During COVID-19 I.B. was also able to arrange additional telephone and Facetime visits with the children through the foster parents. Supervision case notes reflect that I.B. was understanding of explanations for incidental injuries caused to the children in the foster home and has not unduly interfered with happenings in the children’s respective foster homes. She responded appropriately to difficult questions posed by H.R-M. – for example when H.R-M. asked when he would be coming home I.B. “appropriately explained that they need to work on a few things”. Both mom and dad were noted to be comforting and reassuring to him.

100The Society’s plan, if Extended Society care is ordered, is to find permanent adoptive families for each of the children.

P.B.

101P.B. is H.R-M.’s current foster parent. He has been in her care since July 15, 2019. P.B.’s foster home is an Outside Paid Resource Foster Home. She is designated as a specialized treatment foster parent. P.B.’s Affidavit describes that on February 4, 2020 H.R-M. yelled at the foster mother and punched himself in the face. Later that day he divulged that he remembers his parents fighting and that he remembers K.K. hurting his mom. He also stated that K.K. would sometimes throw things at him and push him against the wall. His mom would be present on these occasions.

102On February 6, 2020, after an access visit, H.R-M. advised P.B. that his mom and dad were fighting again, and nobody came into the room. Further, K.K. grabbed his stomach hard and pushed him against the door during the visit. He hoped his parents went to different houses afterwards. H.R-M. also stated that K.K. (on previous occasion) threw things at him (e.g. a basketball) and that he was forced to eat pizza off the ground because he was grounded. His parents had been throwing pizza at each other and his mom was rude and yelled.

103P.B. advises that these are the only disclosures that have been made by H.R-M. during his time in her care (to February 2020). She describes that he was calm when making these statements and that they were not provoked by P.B. or anyone else. She did not ask many questions, and just let H.R-M. tell her how he was feeling.

104P.B. advised that at the time of her Affidavit (February 2020) H.R-M. had appeared angrier and was having increased outbursts at school and at home. On one occasion (February 2, 2020) H.R-M. punched P.B. and told her that that he was going to kill her and her daughter, and also told them to kill themselves.

Beata Filc

105Ms. Filc is an experienced Adoption Worker with the Society. In past she has been qualified as an expert witness in the area of adoption, but she is not being advanced as an expert witness on this summary judgment motion. Ms. Filc advises that an access Order would be a significant barrier to the child H.R-M.’s potential adoption, when considered in the context of his complex needs. Ms. Filc believes that a specialized placement for H.R-M. is necessary due to his behaviours. She advises that preliminary search results for an adoptive family within the Society’s local database for H.R-M. are not promising. She further advises that, in her experience, there is a greater pool of prospective adoptive families willing to consider an openness agreement rather than an openness order.

106Ms. Filc advises that the Society will endeavour to seek adoptive families for the children who understand the importance of sibling contact. She further advises that once adoptive families are identified the Society will assess whether a level of openness would be appropriate.

Dr. Anne Niec: Child Advocacy and Assessment Program Clinic Assessment

107The child H.R-M. was assessed by Dr. Anne Niec, Pediatrician at Hamilton Health Sciences McMaster Children’s Hospital, on July 10, 2019.

108The background history relied upon by Dr. Niec in conducting her assessment of H.R-M. was gathered from an interview with chid protection worker Ms. Cockerill, and “a consultation with the agency a few months ago”. An Affidavit of Ms. Abbiw confirms that a CAAP consult was held on April 29, 2019. There is no elaboration as to what information was shared at the meeting. I.B. advises the court that she was not invited to this consult meeting or the assessment and that she would have been interested in participating.

109The child was interviewed by a child life specialist and a pediatric resident (not Dr. Niec). H.R-M. shared, inter alia, the following:

a. He is unsure why he lives in a foster home;

b. He feels that no one in the foster home really cares for him;

c. His real parents (I.B. and K.K.) care for him;

d. He is close to K.K.;

e. He does not have many friends. They are “rude” and say “bad words”. When he gets angry, he will punch people. He is good at “kicking people’s butts”;

f. “getting to do what [he] wants to do” makes him happy;

g. “nothing” makes him angry or sad.

110The Assessors made the following additional observations of six-year old H.R-M.:

a. During the interview H.R-M. was actively simulating violence with his toys and making loud noises;

b. H.R-M.’s expressive speech is delayed for his age and he has difficulties with articulation and pronunciation, sounding ‘garbled’ at times;

c. He can hold a pencil and print his name;

d. He can identify colours;

e. He had no obvious gross motor skill deficiencies;

f. He ‘scribbled’ more than coloured;

g. He could not identify the difference between ‘left’ and ‘right’;

h. He had difficulty differentiating and understanding time;

i. He was easily able to identify a “happy” face but not a sad or angry one;

j. He sucked his fingers and chewed on a toy ball;

k. He was very aware of sounds and noises outside the room.

111Areas of concern noted by the Assessor included:

a. Pronunciation, enunciation of words and basic vocabulary;

b. Significant concern regarding his attitudes and behaviours with violence:

c. Emotional dysregulation;

d. Lack of sympathy and remorse;

e. Violent tendencies.

112Recommendations made included:

a. Referral to a Speech and Language Therapist and a hearing test;

b. Referral to an Occupational Therapist (re: fine motor skills and daily living skills);

c. Assessment for Fragile X Syndrome (the court is advised that this genetic test occurred, and the result was negative);

d. Psychoeducational testing and academic supports.

113Dr. Niec concluded that H.R-M.’s presentation supports a conclusion of exposure to complex trauma. That is, exposure to and experiences of maltreatment have negatively impacted his developmental functioning. His capacity to develop emotional regulation has been compromised by deficiencies in his early parenting. As a result of these findings, Dr. Niec opines that H.R-M. requires:

a. A stable, safe, parenting environment;

b. Caregivers that are attuned to his complex needs and who can alter their responses to best fit these needs;

c. A home where he is the only child, or where there are older children such that he will receive an increased level of attention and support;

d. Clear structure and routine in his home;

e. Participation in social/recreational activities (e.g. sports) whereby he can develop individual skills and talents.

POLICE RECORDS

114The Society has filed the proper Evidence Act notices and relies upon the criminal records and police occurrence reports, as filed. It is helpful at this point to clarify the information that this court will consider in relation to the police records before the court. I am guided by the helpful commentary of Sherr J. in Children’s Aid Society of Toronto v. L.(L.) 2010 ONCJ 48. in relation to the admissibility and use of police records in child protection proceedings. Further, I am mindful that on a summary judgment motion that this court must conduct a careful screening of the evidence to eliminate inadmissible evidence. In doing so, I rely upon the following principles:

a. Police records, including both criminal offence records and occurrence reports, are generally admissible as business records under s. 35 of the Evidence Act, as a record of the act, transaction, occurrence or event;

b. Police records, including both criminal offence records and occurrence reports are presumed to be reliable as they are:

i. typically made in usual and ordinary course of policing and/or the administration of criminal justice; and

ii. typically recorded at the time of the event or within a reasonable time thereafter;

c. The first-hand observations of police officers, as recorded within the police records and reports, are generally admissible;

d. The comments of the parties, as recorded in police records may be admitted as statements against interest;

e. Section 35 of the Evidence Act is not intended to permit the admission of otherwise inadmissible evidence: Catholic Children’s Aid Society of Toronto v. Jen L. and Willard R. (No. 3), 2003 CanLII 57514 (ONCJ) at para. 11;

f. Third-party statements recorded within the police records are not admissible for the truth of their contents;

g. Opinion evidence recorded within the police records or occurrence reports is not admissible;

h. Information that is not relevant to the issues for determination is not admissible. The probative value of the evidence must outweigh any prejudice to its introduction: CAS of Toronto v. L.(L.), at para. 6;

i. The presumption of reliability of police records may be rebutted.

115The following summary reflects the content of the police records filed that I have considered in my decision.

Criminal Records

116I.B. has a criminal record for property offences. Specifically, she has two recent convictions for theft under $5,000.00. Convictions were registered on May 17, 2019. I.B. received concurrent suspended sentences and 18 months probation. The offences occurred on June 15, 2018 and November 17, 2018. The children were in her care during these time periods.

117R.C.’s criminal record is dated and pertains primarily to drug-related offences. He has had no convictions registered since July 2011.

118K.K. has an extensive criminal record. Over the past 10 years he has been convicted of multiple charges of assault, assault with a weapon, assault a peace officer, obstruct peace officer, and failure to comply with court-ordered terms. K.K.’s convictions for assault with a weapon (i.e. a television remote) on September 13, 2011, and Assault Level 1 on March 19, 2014 were both in relation to his former domestic partner. On December 18, 2019 K.K. was convicted of assaulting I.B. on two occasions: July 31, 2019 and August 17, 2019. K.K. has been incarcerated multiple times.

Occurrence Reports

119Voluminous police occurrence reports dating back to 2007, pertaining to all Respondent parties, were filed by the Society. Save and except to note the large volume (frequency) of police contact had by all of the Respondent parties, and the large number of responses to calls pertaining to domestic conflict between K.K. and his former partner, reiteration of the content of the occurrence reports for the period of 2007 through 2012 is not necessary for the determination of this matter. The following, more current, occurrences are relevant:

A. January 2013 to December 2014:

120During this period of time, the child H.R-M. was an infant and in the care of I.B. and R.C. (until their separation). K.K. and I.B. were not in a relationship.

121With respect to I.B. and R.C., during this time period there are multiple instances of I.B. and R.C. being involved with police due to conflict with neighbours and others. Further, during this time period there are three instances of the police being called to the home of I.B. and R.C. regarding domestic conflict between them. The child H.R-M. was observed to be present on three of these occasions. The following information regarding these domestic incidents is admissible:

1. Occurrence #13507080 – January 1, 2013: I.B. reports a threat made by a third party against the life of R.C. The third-party exposed his gun to her. H.R-M., an infant, was present during this confrontation.

2. Occurrence #13521173 – January 29, 2013: Police were dispatched to the residence of I.B. and R.C. regarding a domestic verbal dispute. The parties advised police that the dispute was verbal only. Police noted apartment to be tidy with no signs of disturbance. The child H.R-M. was in home and observed by police to seem “very content”. H.R-M. was 5 months old.

3. Occurrence #13758387 – November 23, 2013: Police were called to a verbal domestic disturbance regarding I.B. and R.C. No allegations of criminal offences were made. It does not appear H.R-M. was present.

4. Occurrence #14707191 – June 25, 2014: Police were called to the parties’ home regarding a domestic dispute between I.B. and R.C. At the door police heard a female voice shout, “I have a black eye” and “everyone is going to know you hit me again”. On entry, I.B. was observed by police to have a red mark and small bruise above her right eye. I.B. thereafter denied that R.C. caused the injury and became resistant and disrespectful towards police. H.R-M. was present in the home during this incident. The police noted him to seem “unfazed” by the event. The police noted that the apartment was tidy with food in fridge. No charges were laid.

122With respect to K.K., during this same time period there are various instances of K.K. coming into contact with police for a variety of reasons. On many of these occasions K.K. is noted as being very belligerent towards the police. The following information regarding incidents of a domestic nature is probative and admissible:

1. Occurrence #13529988 – February 9, 2013: Police responded to a domestic dispute between K.K. and his former partner at an access exchange. No allegations of violence or threats of violence were made however the argument occurred in the presence of their 6-month old and 3-year old children.

2. Occurrence #13631806 – June 18, 2013: Police responded to a call from K.K.’s former partner. He was agitated and belligerent towards police and his former partner and was swearing and aggressive in presence of his young children. No threats or assaults were alleged.

3. Occurrence #13761301 – November 27, 2013: Police were called to the home of K.K.’s former partner. K.K. was aggressive and uncooperative with police. He was removed from the home. The children were not present.

4. Occurrence #13783744 – December 28, 2013: Police were again called to the home of K.K.’s former partner to assist with his removal. No criminal allegations were made. The children were not present. K.K. eventually left without incident.

5. Occurrence #14527579 – February 7, 2014: Police were again called to the home of K.K.’s former partner to assist with his removal. K.K. aggressive, belligerent, and uncooperative with police. He was handcuffed and removed from the home. The children were not present. No allegations of criminal behaviour were made.

6. Occurrence #14541812 – February 26, 2014: Police were called to the home of K.K. and his former partner regarding a report of a domestic in progress. He resisted arrest and engaged in a tirade of verbal abuse and profanity directed at police officers. K.K. was forcibly removed from the home and was arrested for domestic assault and assaulting police officer. His young children were present in home. K.K. was convicted of both offences. He received a sentence of 38 days in custody and 18 months probation.

B. January 2015 to May 2016:

123During this period of time the child H.R-M. was in the care of I.B. and K.K., who resided together. The following information contained within the police incident reports filed, is admissible and probative to the issues before the court:

1. Occurrence #16502159 – January 4, 2016: Police were called to I.B. and K.K.’s home by a third party regarding a domestic disturbance. No criminal complaints were made by I.B. and police did not identify any signs of abuse. K.K. was noted to be belligerent towards the police. H.R-M. was not present.

2. Occurrence #16510286 – January 15, 2016: Police responded to a call involving conflict between I.B. and neighbours. H.R-M. was not noted as present.

3. Occurrence #16512501 – January 17, 2016: Police were called to I.B. and K.K.’s home by a third party regarding a domestic dispute. Police could hear yelling on arrival. Both parties advised that the dispute was verbal only. H.R-M. was noted to be present in the apartment (in his bedroom). Police observed him to be happy and unaffected by the incident. The apartment was orderly and there was food in the kitchen. No safety concerns were noted and both parties appeared calm.

4. Occurrence #16517011 – January 24, 2016: Police responded to a call involving conflict between I.B. and neighbours. H.R-M. was not noted as present.

5. Occurrence #16520873 – January 28, 2016: Police responded to a call regarding a neighbour dispute. On attendance police observed H.R-M. to be playing happily in his bedroom; the residence was clean, and the police had no concerns for H.R-M.’s safety. The neighbour was not cooperative with police.

6. Occurrence #16531681 – February 11, 2016: Police respond to a call regarding conflict between I.B. and her landlord.

7. Occurrence #16566693 – March 26, 2016: Police respond to a call from I.B. regarding conflict with neighbours.

8. Occurrence #1656720 – March 26, 2016: Police conduct wellness check at request of Society (it appears an anonymous complaint was made to the Society). Police observe H.R-M. in front of the TV in the living room eating pizza. Only the sound of a children’s movie could be heard form the outside of the apartment on approach. I.B. advised that they were having a family movie night. A check of the apartment showed that H.R-M. was well taken care of with plenty of food and snacks in the kitchen, toys throughout the apartment, and plenty of suitable clothing.

9. Occurrence #16568621 – March 28, 2016: Police respond to a call from a neighbour stemming from conflict between the neighbour and I.B. On attendance I.B. was disrespectful police – showing insults into the officer’s face and refusing to follow direction.

10. Occurrence #16613257 – May 20, 2016: Police respond to a domestic incident between I.B. and her mother. Both parties were observed to be irate and yelling at one another by police. I.B. calmed down, however he mother continued to be belligerent with police and continued yelling profanities at I.B. in the presence of H.R-M. H.R-M. appeared to be happy and in good health.

C. June 2016 to April 2017

124During this period of time I.B. and K.K. resided together, but the child H.R-M. was in the care of the Society. The following information contained within the police incident reports filed, is admissible and probative to the issues before the court:

1. Occurrence #16658735 – July 10, 2016: Police respond to a call regarding conflict in a Pharmacy. K.K. admitted “losing his cool” to police. No charges were laid.

2. Occurrence #16766345 – November 13, 2016: Police responded to a call from a neighbour regarding a verbal dispute in the home of I.B. and K.K. There were no physical signs of altercation and the parties denied any physical violence.

D. May 2017 to November 2018

125During this period of time, H.R-M. was again residing in the care of I.B. and K.K. Further, K.K.J. was born on […], 2017, and I.K. was born on […], 2018. The following information contained within the police incident reports filed, is admissible and probative to the issues before the court:

1. Occurrence #17620240 – May 23, 2017: I.B. and K.K. were arrested for theft of three boxes of Coca-Cola. They admitted to the theft and the items were returned to the store. The store declined to press charges. There is no indication that H.R-M. was present.

2. Occurrence #17647847 – Police responded to a call from a neighbour regarding a verbal domestic dispute in the home of I.B. and K.K. The parties denied any dispute. H.R-M. was at the home and appeared to be “in good spirits”. H.R-M. talked to the officer about school, was fully clothed and eating at the time. There were no signs of a physical altercation or struggle.

3. Occurrence #18508840 – January 12, 2018: Police responded to a domestic dispute called in by a neighbour. I.B. and K.K. denied any altercation. There were no signs of disturbance or injury. H.R-M. and K.K.J. were in the apartment and remained sleeping during the police attendance. Police later learned that K.K. had provided a false identity. Police reattended the home on February 15, 2018 with a warrant to arrest K.K. It is unknown whether H.R-M. and K.K.J. were present for his arrest. K.K. was later convicted of obstructing a peace officer for this act.

4. Occurrence #18578121 – April 2, 2018: Police responded to a call placed by I.B. regarding a verbal dispute. H.R-M. and K.K.J. were present in the home. The parties were noted as “extremely hostile with one another”. K.K. was disrespectful and uncooperative with police. I.B. thereafter became hostile with police for not arresting K.K. The children were noted to be healthy and well-dressed for the weather. I.B. was also noted to pack baby supplies for K.K.J.in anticipation of her departure from the home.

5. Occurrence #18602859 – May 1, 2018: Police responded to a verbal altercation between I.B., K.K., and neighbours in the building. K.K. and I.B. were both noted agitated and belligerent, yelling at the police. I.B. was noted to be pregnant. No person reported any injury and no charges were laid.

6. Occurrence #18627044 – May 27, 2018: Police responded to a domestic dispute called in by neighbours. I.B. and K.K. were uncooperative with police. K.K. was agitated and yelling at the officers. I.B. was observed to be holding an infant. The door was slammed, denying the police entry to the home.

7. Occurrence #18644358 – June 15, 2018: Police responded to a shoplifting incident regarding I.B. Seven-month old K.K.J. was present for the incident. I.B. was charged and subsequently convicted of theft under $5,000.00. I.B. was noted as remorseful and apologetic for her actions.

8. Occurrence #186465980 – June 17, 2018: Police responded to a domestic dispute between K.K. and I.B. Both parties were observed by police to be yelling and swearing at each other in presence of H.R-M. and K.K.J. Neither made allegations of physical violence against the other.

9. Occurrence #18647415 – June 18, 2018: Police responded to domestic dispute at the request of I.B. I.B. was not in the home (nor were the children) on police arrival. I.B. and the children thereafter returned to the home. I.B. denied any physical abuse. K.K. was not cooperative with police. No signs of injury were noted, and no charges laid.

10. Occurrence #18657686 – June 26, 2018: Police responded to a domestic dispute called in by a neighbour. I.B. and K.K.’s apartment was quiet upon arrival of the police, however upon entry K.K. was extremely belligerent to police, screaming at them in an extremely agitated state. H.R-M. and K.K.J. were noted to be present. Police waited while I.B. packed some things to leave the home.

11. Occurrence #18699539 – August 14, 2018: A police officer on patrol observed a verbal altercation in public between K.K. and I.B. while walking down the street with H.R-M. and K.K.J. (in a baby stroller). The officer believed he saw K.K. spit in the face of I.B. (8 ½ months pregnant at the time). A struggle between the police and K.K. ensued. K.K. was screaming and resisting arrest. I.B. denied that K.K. spit on her and denied any assault. A crowd of observers were present and expressing an opinion of excessive police force. No charges were laid.

E. November 2018 to present

126During this time period I.B. and K.K. continued to cohabit, save and except during for the period of time between August 2019 and December 18, 2019 during which time K.K. was incarcerated. The children were in the care of the Society throughout this time period. The following information contained within the police incident reports filed, is admissible and probative to the issues before the court:

1. Occurrence #19651870 – June 19, 2019: Police respond to domestic dispute called in by a neighbour. Both parties were resistant to police intervention, denying entry to the home, and made derogatory comments to the police. K.K. was observed to yell, scream, and repeatedly slam the door. K.K. thereafter exited the residence and charged towards the police officers in an aggressive manner. K.K. was charged with and subsequently convicted of assaulting a police officer. The police did not observe any injuries to I.B. or K.K. and no charges pertaining to domestic abuse were laid.

2. Occurrence #19692708 – July 31, 2019: Police respond to a domestic dispute called placed by I.B. I.B. alleged that K.K. spat on her multiple times and threw a cup of hot coffee at her. These allegations were supported by physical evidence observed by police, however police could not locate K.K. On August 1, 2019 I.B. called the investigating officer and recanted these statements. On August 3, 2020 I.B. gave a further statement to police indicating that she was the aggressor, chasing K.K. and throwing a cup of tea at him, and fabricating evidence by spitting on her own shirt. She advised that she did not know K.K.’s location. K.K. was eventually located and brought into custody. He acknowledged a verbal altercation but denied the original allegations to police. K.K. was ultimately charged with domestic assault in relation to this incident and later convicted.

3. Occurrence #19708543 – August 17, 2019: Police responded to a call from a third-party regarding a dispute outside her residence. I.B. was located on scene and K.K. was determined to have fled. I.B. was observed by police to have swelling in the area of her forehead and below her left eye. I.B. disclosed that K.K. had struck her in the face with an open hand. K.K. was eventually located, charged with, and convicted of this assault and spent significant time in custody.

4. Occurrence #20533992 – February 8, 2020: Police were dispatched to the home of I.B. and K.K. at the request of I.B.’s mother. I.B. was irate and not cooperative with police. I.B. refused to provide a statement but did eventually acknowledge a verbal altercation only. Eventually I.B. and K.K. acknowledged a verbal dispute only. Police did not observe signs of injury.

5. Occurrence #20538815 – February 13, 2020: Police responded to a call from I.B. to the residence of her mother. She denied any assaults or threats but wanted K.K. removed from the residence. During the police attendance I.B. and K.K. were observed to be screaming at one another. I.B. continued to place calls to 911 despite police being on the scene. K.K.’s departure was physically assisted by police, at which time I.B. began screaming at police to stop touching him. She thereafter changed her mind and did not want him removed. I.B. became more agitated and began to interfere with police. K.K. left the scene and I.B. started screaming at police “I’m going to kill myself right now and take all my pills”. She began attempting to consume medication and was stopped by police. She was subsequently apprehended by police under s. 17 of the Mental Health Act and taken to St. Joseph’s Hospital for assessment. Throughout the exchange, when not screaming at each other, K.K. and I.B. were directing derogatory and insulting remarks to the police officers.

127It is unknown as to whether further police involvement has occurred since February 2020, as this is where the records end.

EVIDENCE OF THE RESPONDENT PARENTS

I.B.

128There are a number of general themes to the Affidavit of I.B.:

a. Much of the information contained within the Society’s Affidavit materials is not within the first-hand knowledge of the Affiants, but rather reiterates and relies upon hearsay evidence of third-parties, and conclusions and opinions reached by other Society workers and thereafter relayed to the Affiant;

b. The mother denies that the children have ever been exposed to family violence. The mother admits that she and K.K. argue, but major arguments never occur in the presence of the children. The mother maintains that the conflict between K.K. and herself rarely, if ever, escalates to physical violence;

c. The mother denies that the children been negatively impacted by the care provided by herself and K.K. All of the children’s needs were being met while in their care. H.R-M.’s behavioural issues have intensified since being removed from their home;

d. I.B. and K.K. maintain a safe, clean, and organized home. The Society has not had concerns with the physical state of their home at any time. Their housing situation remains stable.

129The Society asserts that H.R-M. has had multiple primary caregivers and he requires stability in care. The mother clarifies that when H.R-M. has not been in care, she has been his only primary caregiver. Changes in caregivers while under the protection of the Society are not within her control. I.B. opines that H.R-M.’s negative behaviours increased (became more extreme) upon being removed from his primary caregiver and brought into care, a stressful and traumatic event in child’s life.

130I.B. has never observed H.R-M. to be afraid of loud voices or to shake. He is caring towards his siblings. I.B. advises that in the spring of 2019 H.R-M. reported feeling bullied in his (former) foster home. H.R-M. reported (which is supported by the Affidavits of the Society) that he did not feel loved and was put to bed without food as discipline. I.B. asserts that although he did have accidents from time to time, he was fully potty-trained while in her care.

131I.B. advises that the children’s medical, social, and emotional needs were being met while in her care.

a. Immunizations were up to date and medical attention was sought when appropriate.

b. I.B. worked with H.R-M.’s school resource teacher when he was returned to her care. She worked on H.R-M.’s schoolwork with him: his spelling and numbers were at an acceptable level, but he needed special help with reading. I.B. believes he regressed when brought back into care.

c. I.B. engaged in appropriate stimulation of the children, including arranging play dates for H.R-M., reading to the children, supplying age-appropriate toys and interacting with them regularly. She participated in the Healthy Babies program with each child until they were removed from her care. I.B. asserts that her positive interactions and parenting abilities are well-documented by the supervised access visit case notes, which support her position that she engages well with the children and is able to meet their age-appropriate needs.

132I.B. has voluntarily participated in a large number of courses offered to her, including but not limited to Parenting with Love, Incredible Years Parenting, COPEing with Toddler Behaviour, Urban Core’s Life Lessons Parenting, Anger Management, ADGS Counselling, ADGS Choices Program, Welcome Baby Program (2012, 2017, and 2018), Parenting with Love, Managing Meltdowns, Learn How to Validate Your Child, Ages Stages: What Happens When, Building Your Parenting Toolbox, Help Your Child/Feel Stress Less, and Bridge to Recovery. She also advises that she has registered for couples counselling, anger management, and ADHD Parenting Workshop, and wishes to take further courses which at present she cannot without the children’s health cards. I.B. advises that her interactions in the programs was impeccable and that this is supported within the case notes of the Society. Specifically, her attendance was regular, she was appropriate, engaged in discussions, and interacted well (and without conflict) with the group.

133I.B. advises that she remains willing to participate in counselling with K.K. She advises that they are “registered” to attend anger management and counselling programs to reduce the conflict between them as they recognize that it is inappropriate.

134I.B. advises that she has not used drugs since May 2016, when H.R-M. was removed from her care on the first occasion. She no longer attends the methadone program and has been clean for almost five years. She had K.K. have also enjoyed stable housing for five years but she is open to moving in future if a better opportunity arises.

135The mother asserts that H.R-M. did not have a high level of behavioural issues while he was in her primary care. In support of this position the mother attaches the following Report Cards to her Affidavit:

a. June 6, 2017 (Junior Kindergarten): H.R-M. was in Society care for the majority of his Junior Kindergarten year. He was returned into the care of I.B. and K.K. in May 2017. His report card is primarily positive. With respect to self-regulation, the report card indicates that “H.R-M. is able to self-reflect upon inappropriate behaviour. At the end of the day, he will ask educators, “did I have a good day?”. While H.R-M. tends to react physically towards peers and adults, recently he has been going to his cubby when he is upset or frustrated. We will continue to intervene as much as possible to give him opportunities to stop and think before he acts. We will further encourage H.R-M. to self-regulate his emotions and behaviours, using familiar strategies to calm down (e.g. take a break, count to 10 or get a drink)”. He made “excellent progress” in letter recognition and enjoyed learning how to write. He demonstrated growth in solving problems.

b. November 14, 2017 (Senior Kindergarten – interim report): H.R-M. was in I.B. and K.K.’s care for the entire school year. No specific behavioural concerns were noted in his interim report card.

c. February 13, 2018 (Senior Kindergarten – interim report): H.R-M. is noted as a happy and friendly student who “greets everyone with a warm welcome” and “always goes around tucking in chairs during clean up and is often the last one to the carpet because he is sweeping or wiping down tables with great care”. H.R-M. demonstrated “growth in being able to use words rather than actions when he is feeling frustrated or does not get his way. H.R-M. is less physical with others compared to earlier in the year. He has made progress in recognizing his emotions and how he is feeling… We will encourage H.R-M. to use strategies to regulate his emotions, in particular his anger and frustration, including deep breathing, counting backwards from 10, and retreating to a quiet place to reset”. “Earlier in the year, H.R-M. would often raise his voice or hit in times of disagreement or frustration. Now, H.R-M. is utilizing such strategies as walking away, using his words and seeking out an adult to help”.

d. June 26, 2018 (Senior Kindergarten – Final Report): The Report notes that “H.R-M. should also continue to focus on developing healthy relationships with his peers by treating people with respect, keeping his hands to himself and using kind words. H.R-M. has learned how to make and keep friends. He has learned that keeping his hands to himself will help him to develop better relationships with his peers. He has made many gains in terms of his self-regulation this year and we are proud of his growth in identifying and regulating his emotions. Earlier in the year, he would sulk, yell or cry when he didn’t get his way or during conflict. These behaviours are occurring less. Now H.R-M. is articulating how he is feeling to others. He is better implementing strategies to control his emotions. For instance, he said “I’m going to settle down”, illustrating his ability to use a self-talk strategy to calm down. In another instance, H.R-M. walked away from a situation and went and stood against the wall without an educator prompt. When asked about this he said, “I know I did something wrong so I’m going to take a break for a bit.”. H.R-M. is beginning to see the value in removing himself and reflect on his actions while giving himself time to deescalate”. He made progress in reading, print, and math over the year.

e. November 13, 2018 (Grade 1 – Interim Report): It is important to note that H.R-M. was removed from the care of I.B. and K.K. on November 17, 2018, following the release of this interim report card. He received a “satisfactory” evaluation for his self-regulation. He was noted as “learning to demonstrate respect towards other in the classroom community”. His report noted that he was “progressing with difficulty” in language but “progressing well” in other academic areas.

f. June 25, 2019 (Grade 1 – Final Report): H.R-M. was not in the care of the Respondent parents. His self-regulation was now noted as “needs improvement” but he was noted as having “developed some positive friendships” and was noted as having “been a pleasure to teach!”. It is evident that H.R-M. continued to struggle with Language from this report.

136The mother requested to participate in a Parent Capacity Assessment. This was declined by the Society.

137I.B. and K.K. did struggle with neighbour issues, and the police were called in relation to this conflict, and false allegations were made until the neighbours moved out. I.B. does not provide the court with a timeline of her various addresses. I.B. advises that there have been no incidents since the neighbours moved out, but statement does not appear to be supported by the incident statements referenced below.

138The mother admits that K.K. was physically violent with her on June 19, 2019, having punched her in the face. The children were not in their care at the time. I.B. asserts that this is the only occasion upon which K.K. has been physically inappropriate with her and that he will be taking further anger management courses.

139The mother asserts that severing the connection between the children and I.B. and K.K. would be devastating to them given their strong connection. In particular, she asserts that this would be very detrimental to H.R-M.’s mental and emotional health.

140The mother attaches case notes of her supervised access which demonstrate that the access visits are primarily extremely positive. For example, she notes from the case notes that:

a. She is noted to hug and engage the children. She is child-focused and interactive;

b. She comforts the children if they are feeling ill;

c. The parents divide their attention appropriately between the three children;

d. The parents have come to visits prepared with snacks, drinks, toys, and presents where appropriate (e.g. Christmas);

e. She surprised H.R-M. with a birthday party in […] 2019;

f. She treated injuries which occurred during visits appropriately;

g. They demonstrated appropriate discipline and redirection (e.g. discussions with H.R-M. about swearing, hitting, and rough play);

h. The parents demonstrate praise and encouragement.

141I.B. admits that she stole Makeup from Shoppers Drug Mart in June 2018. She admits it was a stupid thing to do. I.B. advises that she has not stolen anything since the children were brought into care. She unequivocally denies that she stole anything during an access visit, and suggests that the workers were unfairly leading H.R-M. in these situations. She wishes to cross-examine Society workers on this point.

142I.B. advises that the incident pertaining to the dog was inaccurately reported. She asserts that she repeated a statement made by the other party (a young girl) and questioned “are you threatening to kill me and my children?”.

143I am advised that the Society file, as disclosed to the mother, was in excess of 10,000 pages. I.B. was not able to do a line by line analysis of each access note, but explains to the court that some of the visits missed were due to court appearances, weather, and illness on the part of the mother, K.K. or the children. I.B. further notes that, although the Society keeps record of the parents’ tardiness, they neglect to mention that the children are between 5 and 10 minutes late for every visit. This information appears to be undisputed. I.B. relies on public transportation and does not enjoy the luxury of a volunteer driver and asserts that her absences, etc. were reasonable in the circumstances.

K.K.

144K.K. filed no Affidavit in relation to the summary judgment motion, but presents a joint plan with I.B.

R.C.

145R.C.’s responding Affidavits assert that:

a. He worked in British Columbia for a period of time (he does not specify the time frame);

b. He is involved as a volunteer with Liberty for Youth (a community group in the City of Hamilton

c. He resides in a smoke-free 2 bedroom apartment;

d. H.R-M. would have his own bedroom and furniture;

e. He would have the support of his mother and sisters;

f. H.R-M. would play with his cousin of like-age;

g. His family doctor would accept H.R-M. as a patient;

h. He will meet H.R-M.’s medical and dental needs;

i. He will enroll H.R-M. at St. Patrick’s Roman Catholic school;

j. He was unable to attend the appointment at H.R-M.’s school with his foster mother due to work commitments;

k. He has had no involvement with the law for approximately 12 years.

146R.C. provides little specific information as to his absence from H.R-M.’s life and his recent lack of diligence in taking the necessary steps to be assessed as a placement option for H.R-M. In submissions, R.C. took the position that he was supportive of the return of H.R-M. into I.B.’s care.

147R.C. also provided a series of Affidavits from family members and friends. These materials are attestations of R.C.’s good character and a general willingness to provide support to R.C. in parenting by way of transportation, time, and financial assistance.

THE LAW

148A court should be mindful of the following distinctive features of child protection matters generally:

1. The best interests, protection, and well-being of children takes precedence over all other considerations: Child Youth and Family Services Act, S.O. 2017, c.14, Sched. 1, s. 1.(1);

2. The interests at stake in child protection proceedings are of the highest order – few state actions can have a more profound effect on the lives of both parent and child: New Brunswick (Minister of Health and Community Services) v. J.(J.), [1993] 3 S.C.R. 46 at para. 76;

3. Fairness demands recognition of the unique dynamics of the child protection litigant: women, particularly single mothers are disproportionately and particularly affected by child protection proceedings; parents are often poor, uneducated, or members of minority groups; and even when parents are represented by counsel, a power imbalance often exits: Kawartha-Haliburton Children’s Aid Society v. W.(M.) at paras. 68-69.

4. The decisions made in child protection courts have life changing consequences for parents, families, and children. The court is conferred with the awesome power to permanently separate parents and children. Children are set on courses that potentially lead them to estrangement from their biological family. Parents are forever left grieving the loss of their offspring: Brant Family and Children’s Services v. A.H. and C.T., 2019 ONCJ 540 at para. 7.

Summary Judgment

149If there is no genuine issue requiring a trial on all or part of any Application, on motion for summary judgment by a party the court shall make a final order accordingly. The party making the motion shall set out specific evidence demonstrating that there is no genuine issue requiring a trial. Likewise, a party responding to a summary judgment motion may not rest on mere allegations or denials but shall set out specific facts in evidence showing that there is a genuine issue for trial: Family Law Rules, O. Reg. 114/99, as am., Rule 16.

150The leading case regarding summary judgment principles, generally, is the Supreme Court of Canada decision in Hyrniak v. Mauldin: 2014 SCC 7, [2014] 1 S.C.R. 87. In short, there will be no genuine issue requiring a trial when a judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process:

(1) allows the judge to make the necessary findings of fact on the record before him;

(2) allows the judge to apply the law to the facts; and

(3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hyrniak at para. 49.

151However, summary judgment jurisprudence in child protection proceedings adopts a highly cautionary approach: Kawartha-Haliburton Children’s Aid Society v. W.(M.), 2019 ONCA 316, [2019] O.J. No. 2029 (ONCA). The court in Kawartha summarized and clarified the approach that the Courts should take to summary judgment in child protection matters:

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 Rule 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.

5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children: para. 80.

152The Court of Appeal in Kawartha endorsed the comments and cautionary approaches of Zisman J. in Children’s Aid Society of Toronto v. C.J.W., and McDermot J. in F. v. Simcoe Muskoka Child, Youth & Family Services with respect to the ‘no genuine issue for trial’ threshold:

In assessing whether or not a society has met its obligation of showing there is no genuine issue requiring a trial, courts have equated that phrase with “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed”, and “where there is no realistic possibility of an outcome other than that sought by the applicant”: 2017 ONCJ 212 at paras. 66-67; and

The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is forgone conclusion” or “where there is no realistic possibility of an outcome other than that sought by the applicant”: 2017 ONSC 5402, at paras. 21-23.

153However, the genuineness of an issue must arise form something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that the child faces some better prospect than what existed at the time of the Society’s removal of the child from the parent, and that the parent has developed some new ability as a parent: CAS of London & Middlesex v. A.(L.), 1999 CanLII 20470 (Ont. Gen. Div.), CAS of Toronto v. H.(R.), 2000 CanLII 3158 (ONCJ), Catholic Children’s Aid Society of Hamilton v. V.C. et al, 2017 ONSC 5557 at para. 61.

154The burden of proof remains on the party moving for summary judgment. Even if the Respondent’s evidence does not raise a genuine issue for trial, the court must be satisfied that the moving party has established that there is no genuine issue requiring a trial: Kawartha, above, at para. 80.

155There is a two-step process on a summary judgment motion:

1. If there is no genuine issue for trial, summary judgment must be granted;

2. If there is a genuine issue for trial, the court must determine whether a trial can be avoided by using the expanded powers available under Rule 16(6.2): C.A.S. v. R. F. and V.C., 2019 ONSC 5224 at para. 30.

156The legal test is not whether the parent will have an uphill struggle achieving success at trial, but whether or not there is a genuine issue for trial: CAS of Toronto v. S.A., 2013 ONCJ 367 at para. 54.

Extended Society Care

157Where a court finds that a child is in need of protection, the appropriate disposition must be determined in accordance with s. 101 of the Child, Youth and Family Services Act:

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Interim society care

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

Extended society care

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

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

Court to inquire

(2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

First Nations, Inuk or Métis child

(5) Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible or, if it is not possible,

(a) in the case of a First Nations child, another First Nations family;

(b) in the case of an Inuk child, another Inuit family; or

(c) in the case of a Métis child, another Métis family.

Further hearing with notice for orders for interim or extended society care

(6) When the court has dispensed with notice to a person under subsection 79 (7), the court shall not make an order for interim society care under paragraph 2 of subsection (1) for a period exceeding 30 days or an order for extended society care under paragraph 3 of subsection (1) until a further hearing under subsection 90 (1) has been held upon notice to that person.

Terms and conditions of supervision order

(7) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision;

(b) reasonable terms and conditions on,

(i) the child’s parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

Order for child to remain or return to person who had charge before intervention

(8) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

No order where child not subject to parental control

(9) Where the court finds that a child who was not subject to parental control immediately before intervention under this Part by virtue of having withdrawn from parental control or who withdraws from parental control after intervention under this Part is in need of protection, but is not satisfied that a court order is necessary to protect the child in the future, the court shall make no order in respect of the child.

Best Interests of a Child

158The matters to be considered in determining the “best interests of a child”, including both disposition (above) and access (below) are set out in s. 74(3) of the CYFSA:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

159The appropriate standard of parenting is not perfection: Catholic Children’s Aid Society of Hamilton-Wentworth v. L.G., [2002] O.J. No. 2577 (ONSC). Care must be taken so as to avoid reliance on middle class standards: Children’s Aid Society of Hamilton v. E.O., 2009 CanLII 72087 (ONSC).

Timelines

160The Court shall not make an Order that results in a child being in the interim care of a Society for a period exceeding twelve months if the child is younger than six on the day the Court makes the Order or twenty-four months if the child six or older on the day the Court makes the Order. These timelines may be extended by up to six months if the Court determines that it is in the child’s best interests to do so: Child Youth and Family Services Act, S.O. 2017, c. 14, s. 112(1), s. 112(5).

161However, the passing of the statutory timelines is not a sufficient basis upon which to grant summary judgment; delay cannot be the basis for diluting the evidentiary requirements on a motion for summary judgment or glossing over genuine triable issues: C.A.S. v. R. F. and V.C., 2019 ONSC 5224 at para. 58.

Domestic Violence

162The Ontario Legislature has recognized that domestic violence is a significant factor in determining the best interests of children, as reflected in paragraph 24(4) of the Children’s Law Reform Act. While the Child, Youth, and Family Services Act, specifically references violence against a child or spouse only in relation to the supervision of access, it is abundantly clear that consideration of whether a person has at any time committed violence or abuse against their spouse is a relevant consideration in child protection proceedings: Children’s Aid Society of Ottawa v. L.J., 2014 ONSC 1675 at para. 17.

163Children of parents in abusive relationships have been found to be in need of protection by many courts, and the negative impact of children’s exposure to domestic violence is well-documented, including for example: insecure attachments, aggressive and antisocial behavior, poor academic performance, propensity for delinquency, peer violence, conflict and suicidality: Children’s Aid Society of Hamilton v. C.G. and S.B. 2013 ONSC 4972 at para. 157.

164Domestic violence is not limited to physical assault: it embraces a range of behavior which includes mental and emotional abuse, with implications that spill-over to children. The environment in such households is frequently chaotic, volatile, escalating, charged and degrading and the exposure of children to such an environment on a pattern basis is devastating to their development: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. T.S., 2009 ONCJ 70 at para. 75.

165In order to militate against such a finding the court may require evidence demonstrating that the abused parent understands the cycle of abuse and has broken the pattern, for example by seeking counselling, leaving the relationship and moving to a safe location. An abused parent’s continuing failure to leave an abusive relationship may well be a reason for placing the children in extended society care: Children’s Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 at para. 100, Children’s Aid Society of Ottawa v. E.L., 2019 ONSC 3724 at para. 94. The child’s opportunities for a permanent and stable placement should not await the time that might be required to establish that the risk to the child has been satisfactorily addressed: Children’s Aid Society of Toronto v. S.A.C., supra.

Access

166On April 30, 2018 the Child and Family Services Act was replaced with the new Child Youth and Family Services Act. The new Act represented “a significant shift in the approach to access for children in extended care”: Kawartha-Haliburton Children’s Aid Society v. W.(M.), 2019 ONCA 316, [2019] O.J. No. 2029 (ONCA) at para. 48.

167Among many other significant changes, the two-part test for access to children placed in extended society care (formerly known as crown wardship) under the old act was replaced with a broadly-based, holistic consideration of the child’s best interests: Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 at para. 20.

168This is now set out in s. 105(5) and s. 105(6) of the Child Youth and Family Services Act:

When court may order access to child in extended society care

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

Additional considerations for best interests test

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

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

169The new trilogy of cases recently decided by the Ontario Court of Appeal have stressed and articulated these important changes to the access regime under the new legislation: Kawartha-Haliburton Children’s Aid Society v. W.(M.), 2019 ONCA 316, [2019] O.J. No. 2029, L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, and Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415. Specifically:

a. There is no longer a presumption against access for children in extended society care;

b. There is no burden on the person seeking access to demonstrate that their relationship to the child is beneficial and meaningful and that their access to the child will not impair a child’s future adoption opportunities;

c. 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 the assessment and only where relevant;

d. Children are individuals with rights to be respected and voices to be heard in such proceedings;

e. Specific consideration of sibling access should be promoted;

f. The special considerations that apply to Indigenous children must be part of every access decision involving Indigenous children;

g. The court must delicately weigh and balance a number of factors: past, present, and future in determining access.

170Characteristics or features of potential access parents which may be found to impair a child’s future opportunities include:

a. Parents who demonstrate confrontational attributes, including difficulty with aggression, anger or impulse control, as this may threaten the physical or emotional security of adoptive parents and their family;

b. Parents who demonstrate lack of support for an alternate caregiver, including relentless criticism, as they may undermine an adoptive placement and the child’s sense of security in the adoptive family;

c. Parents who demonstrate dishonesty and secrecy or who otherwise cannot be trusted to comply with the terms of court orders or accurately report important issues about the child;

d. Parents who demonstrate a propensity to be litigious or an inability to accept a reduced role in a child’s life may complicate adoption proceedings by engaging in openness litigation: Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678 (at paras 166-169); and

e. Parents with mental health conditions, substance abuse issues, transience or chaotic lifestyle may be difficult to deal with and may complicate arrangements for access or contact: Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631 at para. 132.

ANALYSIS

171At the outset, it is important to acknowledge what this case is not about:

A. Educational, Medical and Basic Needs of the Children:

172On the materials before me, I do not accept that there is sufficient evidence to accept that I.B. and K.K. were negligent in addressing the medical, educational, or basic daily needs of the children while they were in their care. To the contrary, most of the materials filed by the Society confirm that I.B. received proper and regular prenatal care, the children were attending medical and dental appointments as necessary, their immunizations were up to date, H.R-M. was regularly attending school, the family was eating proper meals, and appropriate routines were observed in the home. Home visits by the Society noted that the parties were organized and well-prepared for the birth of their children and that the home was well-stocked with food.

B. Substance Abuse:

173I do not accept the Society’s argument that both I.B. and K.K. have significant histories of substance abuse and that this is a contributing factor to ongoing child protection concerns in this matter. While there appears to have been a historic concern regarding substance abuse by I.B. and K.K. in or around May 2016, the Society has confirmed through negative urine screens and access to third-party (Methadone Clinic) records that I.B. has not abused drugs since that time (a period of over four years). Although the Society advises that K.K. has more recently refused to sign consents to third-party records, there is no evidence in the materials before the court to suggest that K.K. is abusing alcohol or illicit substances (e.g. police occurrence reports, observations of society workers, case notes, etc.). I.B. and K.K. are to be commended for seeking appropriate treatment for these issues and remaining committed to their sobriety.

C. Housing:

174I do not accept the Society’s argument that “unstable housing” is a contributing factor to ongoing child protection concerns in this matter. I.B. and K.K. have resided in the same residence since at least July 2017. There is little evidence of any transiency predating that time, and there is no admissible evidence before the court which would suggest that their housing since that time has been unstable.

175Scheduled and unscheduled visits of the Society, and observations of police officers as noted in occurrence report records confirm that their home is regularly tidy, clean, and organized. There is no indication within the materials before me that their housing is inappropriate or that safety hazards have ever been observed.

D. Emotional Bond with the Children:

176The Society does not dispute that this family has a strong connection to one another. Both I.B. and K.K. have been observed to be calm, gentle, and responsive in the care of their young children. The children are observed to be happy to attend visits with their parents, and interactions between them have been observed to be almost entirely positive.

E. Services and Programing

177Both parents have attended a multitude of parenting, anger-management, and other community courses, programming and support services over the years of the Society’s involvement. The Society has offered appropriate levels of help and services to this family and I.B., in particular, has been an active and willing participant. She has signed all consents requested by the Society to confirm her participation, without issue. The willingness of I.B., and to a lesser degree K.K., to participate in a significant amount of programming is a positive feature of their parenting.

178There are however two major issues with this otherwise positive attribute:

a. Despite being recommended as early as November 2018, I.B. and K.K. have not participated in relationship counselling to address their very significant domestic issues of conflict and violence, as discussed below; and

b. Notwithstanding multiple attendances at anger-management courses of various forms, the parties have not been able to implement significant positive change in their ability to manage conflict. I concur with counsel for the Society in his submission that “it is not about checking boxes – it is about effecting change”. Anger management courses taken by the parties do not appear to have translated into any obvious improvement in behaviour.

Continued Need of Protection

179Notwithstanding all of the positive features of I.B. and K.K.’s parenting, I do not hesitate in concluding that H.R-M., K.K.J.., and I.K. are in continued need of protection and that intervention through a court order is necessary to protect them in the future. I reach this conclusion on the strength of the summary judgment motion materials before me and I am confident that there is no realistic possibility of any other result at trial.

180At the heart of this matter is domestic violence, conflict, and anger-management. To a lesser extent, the mental health of I.B. is also a concern. The primary shortfalls in I.B. and K.K.’s parenting of these children is their failure to shield the children from exposure to domestic violence and conflict, and their lack of insight and understanding into the risk of physical and emotional harm to the children which arises therefrom.

181The Society has maintained that the most significant risk factor to these children is their chronic exposure to domestic violence and conflict. I.B. and K.K. were warned by the Society, very early on during their involvement, that if they intended to jointly parent the children that they would need to enroll in relationship counselling, address their conflict and anger issues, and demonstrate a period of stability in their relationship. Notwithstanding the Society’s identification of this issue at the earliest stages of this proceeding, and repeated warnings to I.B. and K.K. on this topic, I cannot find that the children’s exposure to this risk has subsided in any meaningful way over the course of the entire history of this file.

Conflict and Violence in the Home

182At the outset, it is important for the court to unequivocally state the following: I do not accept I.B.’s sworn statement that June 19, 2019 was the only time that K.K. has been “physically inappropriate” with her. On the basis of all of the evidence before me, I find that I.B.’s evidence is not truthful and not credible as it pertains to the issue of domestic violence and conflict in her home. Unfortunately, it is not uncommon for victims of abuse to cover up or hide the abuse from others, including the police. I find that this is precisely what has been happening in the relationship between I.B. and K.K. for a very substantial period of time.

183I am confident that I am able to make this finding of credibility on the Affidavit material before me. In reaching this conclusion, I have considered the following:

a. On June 24, 2019 Ms. Abbiw observed I.B. to have a bruise on her cheek. I.B. disclosed to Ms. Abbiw that on June 19, 2019 K.K. had punched her and that she feared for the safety of the children. However, a review of the Hamilton Police Service Incident Report (#19651870) reveals that I.B. denied police entry to the home on that occasion and was not cooperative with their investigation. No charges of domestic assault were laid against K.K. because I.B. did not report the abuse.

b. On December 18, 2019 K.K. was convicted of assaulting I.B. on two other occasions:

i. July 31, 2019 (#19692708) for repeatedly spitting on I.B. and throwing a cup of hot coffee at her; and

ii. August 17, 2019 (#19708543) for striking her in the face, causing swelling to her forehead and left eye which were observed and noted by police.

c. On August 3, 2020 I.B. recanted her statements to police about the July 31, 2019 incident, claiming that she was the aggressor and had fabricated evidence.

d. On August 19, 2019 Society Worker Ms. Townsend observed I.B. with a black eye (as observed two days prior by police). When questioned about this injury by Ms. Abbiw, I.B. advised her worker that it was not a black eye, that she had overslept and had got a mark. In her sworn Affidavit of January 24, 2020 I.B. denies that this injury was caused by K.K. because he was in Alberta. This information is quite simply untrue when compared to police records.

e. K.K. has a documented propensity for violence. He has two prior convictions for domestic abuse against a previous partner, including assault and assault with a weapon, and also has convictions for assaulting police officers.

f. During historic police incidents involving R.C. and I.B., I.B. denied any physical abuse to the Society and the police. However:

i. in her Affidavit of May 15, 2020, I.B. alleges that during the incident of June 25, 2014 (Occurrence #14707191) during which H.R-M. was present, that R.C. punched her in the face which caused her eye to blacken.; and

ii. in her Affidavit of May 15, 2020, I.B. now asserts that she never used violence or force with R.C. unless she was “defending herself” and “even then I would end up with broken noses, black eyes, broken cheekbones, bruises, etc.”. None of this abuse was ever reported to police or the Society.

184I find that I.B. has not been truthful with police in relation to her experiences with domestic violence; she has not been truthful to Society workers in relation to her experiences with domestic violence; and she is not being truthful to the court in relation to her experiences with domestic violence. This critical analysis of I.B.’s credibility on the issue of domestic violence is not intended to vilify her for her situation: it is an all too common response by victims of domestic violence. Regrettably however, the focus of this court’s analysis in this proceeding must remain on the best interests and safety of H.R-M., K.K.J., and I.K., rather than their mother.

Conflict Generally

185Conflict is a reality of daily life. Conflict which rises to the level of requiring police intervention is not. The mass number of police incident reports on file pertaining to these parties (exceeding 300 pages) is a general reflection of the Respondent parties’ inability to manage conflict within their homes, with their neighbours, with their extended families, and within the community. The behavioural reactions of I.B. and K.K. in the presence of police officers, as described above, are frequently extreme to say the least.

186Given their propensity for conflict, it is unsurprising that I.B. and K.K. are often reported to be confrontational, agitated, and argumentative with Society staff, sometimes in the presence of the children. The lives of their children are undoubtedly of utmost importance them both, and it is understandable that they would feel passionately about the care and treatment of their family. However, their anger, and inability to manage that anger has crossed the line too many times. It is not acceptable to yell profanities at Society workers while holding an infant child. It is inexcusable that a conflict over a dog at a park quickly escalated into threats of death being exchanged in the presence of the children.

187Even with the eyes of the court squarely upon them, on the eve of the hearing of this summary judgment motion in February 2020:

a. the police were called to two separate incidents of conflict involving I.B. and K.K., (and extended family on one occasion), in which I.B. was “irate” and not cooperative with police, and K.K. and I.B. were observed to be “screaming at one another”, and derogatory and insulting towards the police; and

b. An altercation took place at the courthouse between all of the Respondent parties, including R.C., on the date this matter was originally to be dealt with on Summary Judgment requiring physical intervention by third parties.

Exposure of the Children to Domestic Violence and Conflict

188I find that as I.B. has minimized the domestic violence that occurs in her home, she has minimized the effects of domestic violence upon the children.

189Police occurrence reports reveal that H.R-M. was noted to be present on at least thirteen separate occasions of conflict involving his caregivers which resulted in police intervention. K.K.J. was also noted as present on at least seven separate occasions, notwithstanding that he was only in the care of the Respondents I.B. and K.K. for one year of his life. These incidents of conflict are only a reflection of the occasions on which the conflict in or around the home was reported to and documented by police. It is highly unlikely that these incident reports are a true reflection of the frequency of the children’s exposure to harmful conflict in the home: the likelihood is that it was commonplace.

190I do not accept that because H.R-M. was in bed, or because K.K.J.’s stroller was turned, that they were not impacted by the conflict. I find that the children were exposed to significant levels of domestic violence and conflict in their home while living in the care of I.B. and K.K.

Disclosures of H.R-M.

191I accept that the general tenor of disclosures made by H.R-M. are an accurate reflection of his early childhood. His disclosures are, in my view, consistent with the conclusions I have drawn about the level of domestic violence and conflict in I.B. and K.K.’s home. I believe that H.R-M. does recall frequent fighting between his parents: that they would often yell at each other and hit each other in his presence. I believe that he recalls K.K. “hurting [his] mom”, hitting, pushing, and throwing things. I accept that H.R-M. views his father as the aggressor, and believes that his dad is not always nice to his mom. This conflict makes him sad. H.R-M.’s disclosures were made to several independent sources and are consistent with the other evidence before the court.

192However, I stop short of making any findings that:

a. K.K. has been physically violent with either H.R-M. or K.K.J.; and/or

b. That K.K. and I.B. engaged in shoplifting during an access visit with the children.

193Should determination of these specific issues be required in relation to the issue of access, cross-examination of the persons to whom these specific disclosures were made, and cross-examination of the Society supervisors of access on the relevant dates would, in my view, be necessary.

I.B.’s Mental Health

194I.B. has not had an easy life. She has fought hard to be resilient in the face of a difficult childhood, poverty, addiction issues and chronic physical abuse by her domestic partners. It is not surprising that she is vulnerable to anxiety, depression and an eating disorder, and that she experienced a mental health crisis in February 2020. I.B. appears to be a victim caught in the cycle of abuse. She does not appear to be receiving appropriate treatment. I.B. is mentally and emotionally fragile and has not taken adequate steps to protect herself. She is not in a position to protect her children due to the combination of these complex issues.

Lesser Disruptive Alternatives

195This court must consider whether lesser disruptive alternatives might be available to these children than an Order placing them in Extended Society Care.

A. Supervision Order:

Option 1

196The Respondents assert that the children could be returned to the care of I.B. and K.K. subject to the terms of a supervision order.

197In November 2018, when the children were removed from the care of I.B. and K.K., they were warned that they would need to address their issues of conflict and demonstrate a period of stability in their relationship before the children would be returned to their care. It is obvious that this has not occurred. Notwithstanding this clear caution, the highly volatile nature of I.B. and K.K.’s relationship and abusive conduct towards one another has continued unabated.

198These are long-standing issues. K.K.’s documented convictions for domestic abuse date back to 2011. I.B.’s history of involvement in abusive relationships is equally dated. They both require extensive therapy. The suggestion that I.B. and K.K. are now willing to enroll in couples counselling is quite simply too little too late. The children require security and permanency and they need it now. They cannot wait to see if K.K. and I.B. are capable of change – they have not demonstrated any ability to do so since the children were taken into care. If I.B. and K.K. continue in their relationship without significant therapy and ongoing commitment to change, I expect that I.B. will continue to deny the conflict and violence in their relationship and the abuse will repeat and escalate.

199To date, I.B. and K.K. have not acknowledged the problem of their domestic abuse and chronic conflict between themselves and with others. They have not acknowledged that their interactions have had a negative impact upon H.R-M., and to a lesser extent K.K.J. and I.K. Without this willingness or ability to recognize the effect of their conflict upon the children, they are unable to make the change necessary to protect them from risk of further harm. I.B.’s propensity for conflict with others and vulnerable mental health, and K.K.’s inability to control his anger and propensity for violence are a deadly combination. I have no doubt that the children will remain at risk of emotional and physical harm if placed in their joint care. There is simply no change of success in this position at trial.

Option 2

200In the alternative, I.B. submits that she could establish a separate residence and parent independently from K.K., with the children in her primary care until a period of demonstrated stability was achieved.

201In some situations of domestic violence, a potential alternative is the placement of the children with one parent with court-imposed conditions of separate housing and terms of non-contact (see for example Family & Children’s Services of St. Thomas and Elgin v. A.C., 2013 ONCJ 453. However, after consideration of the voluminous materials in this matter, I conclude that there is no reasonable possibility of this outcome. I am strongly influenced by the following factors in reaching this conclusion:

a. There is no indication that I.B. and K.K. have ever seriously contemplated residing separately and/or caring for the children independently. They have presented a joint plan of caring for the children continuously since the commencement of these proceedings. If they were prepared to take this step, they would have taken action long before this stage of the proceedings. The opportune time to commence this transition may have been during the significant period of K.K.’s incarceration in 2019. Instead, K.K. moved back in with I.B. on the first day of his release from custody.

b. K.K.’s criminal record contains no less than ten recorded convictions for failure to comply with terms of a recognizance, failure to attend court as ordered, and/or breaches of his terms of probation. The court has little faith that K.K. would abide by court-ordered terms with respect to contact with I.B.

c. The occurrence reports pertaining to K.K. and his former domestic partner reflect multiple instances of police intervention being required to physically remove him from her premises – where he was not wanted.

d. I.B. has not been honest with the Society, the police, or the court in relation to the frequency and severity of domestic abuse in her home. The court has little faith that she would abide by court-ordered terms of contact.

e. I.B. and K.K. do not appreciate the inherent danger to the children of ongoing exposure to their conflict. They will not respect court-ordered terms which seek to protect the children from risk that they do not accept.

f. Despite that both I.B. and K.K. impressed this court with their patience and quiet, respectful participation in the summary judgment proceedings, the police incident reports filed indicate a general lack of respect for authority and for following societal rules in a peaceful and productive way.

Option 3

202With respect to H.R-M., a third option – to place him in the care of R.C., was advanced in written materials but not strenuously argued on motion. I.B. and K.K. are not supportive of this option.

203H.R-M. had no contact with R.C. from 2014 to 2016. He was reintroduced to R.C. in 2016 in a supervised access setting and did not appear to know him. Despite the privilege of these visits with H.R-M., R.C. lost interest and disappeared again, without explanation, only resurfacing in 2020 during the final stages of this proceeding.

204In an effort to assess R.C. as a suitable placement option for H.R-M. with expediency, the Society assigned two workers to this investigation. In turn, R.C. demonstrated lack-lustre commitment to his plan; he missed or was late for multiple meetings, failed to return telephone calls, and was absent without explanation for a very important meeting involving H.R-M.’s foster mother and educators. The Society was unable to assess his accommodations, and his support network appeared to know very little about his life.

205R.C. has made little to no effort to be a stable presence in H.R-M.’s life; he has been absent for the majority. H.R-M. does not view R.C. as his father and looks to K.K. to fill this role. The Society made significant effort to engage R.C. and to assess the prospect of placing H.R-M. in his care, but R.C. has simply not demonstrated sufficient interest or commitment to fulfilling this role. He is irresponsible in his concern for H.R-M. and has provided no information to the court which would suggest that he is now in a position to parent. Placement of H.R-M. with R.C. would be a blind experiment at best and cannot be justified.

206There is no likelihood of H.R-M. being placed with R.C. at trial.

B. Interim Society Care:

207As a result of the very significant length of time that all three children have now been in care, Interim Society Care is not an available option. It is not in the best interests of the children to extend these timelines and further delay their permanency planning.

C. Community Placement:

208No relative, neighbour or other member of the children’s community or extended family have come forward as available placement options.

209In considering the children’s best interests as to disposition, I have also considered the following:

a. K.K.J. and I.K. are too young to express views and preferences. The evidence before me would not support the assumption that H.R-M. wishes to return to the care of I.B. and K.K. H.R-M. has no recollection of R.C. and no connection with R.C.’s extended family and has expressed no real desire to explore this relationship;

b. The children are not First Nations, Inuk or Métis children and there are no special considerations with respect to race, ancestry, origin, cultural or linguistic heritage raised by the parties;

c. K.K.J. and I.K. do not demonstrate any unique physical, mental or emotional needs or developmental issues. I accept that H.R-M.’s presentation, like his parents, reflects an inner struggle with managing his emotions and regulating behaviour. I need not decide whether this is innate or a product of his early environment or a combination of the two, but as H.R-M. grows, I question I.B. and K.K.’s ability to deal with the conflict that will inevitably arise in a safe and acceptable manner given their own limitations in this area. I concur with the society that R.C. has demonstrated insufficient interest in understanding H.R-M.’s unique behaviours and needs;

d. K.K.J. and I.K. have spent the majority of their respective lives in Society care;

e. All of the children require stability and permanency. They require an opportunity to develop positive and secure attachments with a family. Further risk of disruption to their continuity of care would not be in their best interests;

f. Delay in the disposition of this matter is not acceptable. Permanency planning must begin now;

g. The degree of risk of both physical and emotional harm in placing the children with any of the Respondents is severe and cannot be justified.

Child Advocacy and Assessment Program Clinic Assessment

210I have placed no weight upon the CAAP Assessment of Dr. Niec in formulating my conclusion in this matter.

211The Report of the Motherisk Commission stressed the importance of the gatekeeping function of the judiciary in child protection summary judgment proceedings, especially in relation to admissibility of expert reports: Harmful Impacts: The Reliance on Hair Testing in Child Protection: Report of the Motherisk Commission (Toronto: Ministry of the Attorney General, 2018) (Hon. Judith C. Beaman).

212I have a number of preliminary concerns with the CAAP Assessment:

1. Expert witness reports must include a description of the factual assumptions upon which the opinion is based. The basis for this requirement is obvious: without a proper factual foundation, an expert opinion cannot be reliable. I am concerned that some of the background history relied upon in Dr. Niec’s Report was not established in evidence on this summary judgment motion. For example:

a. Dr. Niec’s Assessment Report summarizes that in May 2016 H.R-M. was apprehended secondary to “parental use of cocaine, domestic violence and lack of health care sought for the children”. Dr. Niec also reiterates that “the parents did not follow through with any recommendations to address the emotional behavioural concerns identified at the time while H.R-M. was in foster care”. This foundation is concerning. For example, in the +1000 pages of materials filed by the Society:

i. There is no evidence before the court of “lack of health care sought for the children”. I would note that in 2016 there was only one child, H.R-M., and the information before the court would suggest that his medical needs were being met, his immunizations were up to date, etc.;

ii. There is no mention of recommendations made by the Society within the Affidavit materials regarding H.R-M.’s emotional and behavioural concerns which were not complied with by the parents following his return to their care in 2017;

iii. It is unclear as to whether the Assessor was advised that there have been no concerns of parental drug use since May 2016.

b. It is of particular concern to the court that H.R-M.’s former foster mother’s evidence, upon which a large portion of the child’s “History” in the report is based, is not before the court in any admissible form. This gap in evidence is compounded by the dramatic observations made by the foster mother to the Assessor. For example, that H.R-M. is the most “disturbed” child she has seen in 30 years of fostering, is not particularly compatible with the other evidence before the court (e.g. H.R-M.’s report cards, Plan of Care Reports at his subsequent placement, and observations of other persons, etc.).

c. The Respondent parents were not invited to provide any background information in relation to H.R-M.’s early care, which may have been valuable to the Assessment (e.g. queries regarding possible genetic abnormalities and other alternate theories).

2. In the Assessment before the court on this summary judgment motion, Dr. Niec explains that, in part, the background history relied upon in her report included information shared during a consultation with the agency “a few months ago”. Society Affidavits confirm that what appears to have been a preliminary consultation did occur on April 29, 2019 (a few months before the assessment) with Society workers and another eminently qualified children’s mental health professional. The parents were not invited to attend this consultation session. The Society Affidavits do not outline for the court what information was shared at that consultation, or whether any opinion was offered by the other third-party professional engaged in the consult. It is unknown whether the notes of this meeting, as recorded by either of the professionals (if recorded by the professionals) were produced to the Respondent parents or relied upon for the Assessment. I recognize that there are times when the competing roles of the Society may create somewhat of a conflict of interest situation – the dual purpose of protecting children and supporting families “often results in Society workers collecting evidence for the former while attending to the latter”, as noted by Gordon J. in Children’s Aid Society of Hamilton v. E.O.: 2009 CanLII 72087 (ONSC) at para. 164. However, as the Society is an agent of the state, and not an ordinary litigant, this practice of engaging in preliminary consultations with experts as to the needs of a child prior to formal engagement is, in my view, questionable.

213I cannot with confidence rely upon the conclusions reached by Dr. Niec in this Assessment report as a result of these concerns. Should the Society wish to rely upon the CAAP Report in support of its ongoing position on access, I accept the submission made by counsel for the Respondent mother that cross-examination of Dr. Niec is necessary. Further, it is open to counsel for the mother to request opportunity to hear evidence from and cross-examine H.R-M.’s former foster mother, Dr. Clinton, Ms. Cockerill, and any others consulted with or involved in the preparation of the report.

Conclusion

214Regrettably, after thorough consideration of all of the Affidavit materials before me, and without placing any weight upon the CAAP report of Dr. Niec in this matter, I am satisfied that H.R-M., K.K.J., and I.K. are all in continued need of protection. They are at continued risk of physical and emotional harm. The children cannot safely be returned to the care of any of the Respondent parents, even under stringent terms of supervision. I am satisfied that there is no genuine issue for trial as to their need for protection and the ultimate disposition at trial.

215The Society’s request that H.R-M., born […], 2012, K.K.J. born […], 2017, and I.K., born […], 2018, shall be placed in the extended society care of the Catholic Children’s Aid Society of Hamilton is granted. There could be no other realistic outcome in these proceedings at trial.

ACCESS

216With respect to R.C., this court is satisfied that he should have no access to the child H.R-M. It is plain and obvious to the court that an order for access to H.R-M. by R.C. is not in H.R-M.’s best interests and summary judgment should be granted.

217With respect to I.B. and K.K., this court is not satisfied that that there is no genuine issue for trial. It is simply not possible on the evidence before me to conclude that an access order is an impossible outcome in this matter.

R.C.

218There is no evidence of any existing relationship between H.R-M. and R.C. Now is not the time to explore whether such a relationship could be established.

219It is evident to the court that:

a. H.R-M. has no real understanding of his relationship with R.C. and no real desire to pursue a relationship with R.C.;

b. R.C. has only limited understanding of H.R-M. as a human being – his likes and dislikes, his needs and level of development are generally unknown to R.C.;

c. R.C.’s role is confusing to H.R-M., who has an attachment to K.K. as his father in loco parentis;

d. H.R-M. is secure in his belief that K.K. loves him as a father loves a son;

e. There is no emotional tie or connection between H.R-M. and R.C.;

f. Another introduction of R.C. to H.R-M. could be disruptive to his sense of attachment to others, especially in light of R.C.’s previous lack of diligence in maintaining a connection and relationship with H.R-M. during his previous placement in care;

g. R.C.’s commitment to parenting has been inconsistent at best. Exposure to such inconsistency could cause further emotional harm to H.R-M.;

h. There is no beneficial and meaningful relationship in existence between H.R-M. and R.C. A future relationship is speculative at best;

i. Adding a further element of access would further limit H.R-M.’s pool of prospective adoptive parents, further jeopardizing his opportunity to achieve stability and permanency.

220R.C. will have no right of access to H.R-M.

I.B. and K.K.

221There is overwhelming evidence before the court that H.R-M.’s relationship with I.B. and K.K. is beneficial and meaningful to him. All of the children seem to enjoy their time with I.B. and K.K. (and each other) and look forward to their visits. The access visits are primarily positive experiences for all. H.R-M. has expressed a desire to continue to visit with his parents. He views them as a part of his support network. The court acknowledges his voice, and his stake in the outcome.

222The Society places great emphasis upon H.R-M.’s special behavioural needs as a barrier to adoption. This is not a paramount or over-riding concern but is only one of many factors which must be considered in the broadly-based, holistic consideration of the children’s best interests.

223Likewise, the Society argues that I.B. and K.K. display too many of the personal attributes that would impair a child’s future opportunities for adoption. However, this too must be considered in the context of the significant body of evidence which suggests that I.B. has engaged with and/or supported the children’s foster parents in a mature and positive way.

224This is not an appropriate case for summary judgment on the issue of access. There are far too many considerations which could militate in favour of a finding that access is in the best interests of the children to determine this matter on a summary basis. There is a genuine issue for trial as it pertains to I.B. and K.K.’s access to the children. I understand that the Society is agreeable to an Order for sibling access, however if that is not the case, that too is an issue which requires further exploration.

225This is a matter which calls for the use of the expanded powers available to the court under rule 16(6.2) of the Family Law Rules. A focused hearing on the issue of access to the children by I.B. and K.K. is necessary. I am seized of this matter.

ORDER

226On the basis of the above, there shall be a Final Order to go as follows:

1. The children, H.R-M., born […], 2012, K.K.J.., born […], 2017, and I.K. born […], 2018, shall be placed in the extended society care of the Catholic Children’s Aid Society of Hamilton;

2. The Respondent R.C. shall have no access;

3. The issue of access to the children by I.B. and K.K. shall be heard at a focused hearing with an anticipated length of 3-5 days;

4. The parties shall work cooperatively in canvassing available dates for the focused hearing and a Trial Scheduling Conference through the Office of the Trial Coordinator. This matter shall return before me to be spoken to on September 24, 2020 at 9:30 a.m. to formalize those dates. I anticipate that counsel may require agents to appear on their behalf at that time due to the short notice of this attendance.