COURT FILE NO.: FC-18-1097-0000
DATE: 20201002
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Simcoe Muskoka Child, Youth and Family Services, Applicant
AND:
T.M., Respondent
BEFORE: The Honourable Madam Justice R.S. Jain
COUNSEL: T. Nazerali, Counsel, for the Applicant
C. Severn, Counsel, for the Respondent
F. McFarlane, (OCL) Counsel, for the child D.M. born […], 2007 (and agent for K. Annand)
K. Annand, (OCL) Counsel, for the child D.H.M. born […], 2005 (not present)
HEARD: September 4, 2020
REASONS FOR Judgment
Introduction & Background
[1] The two subject children are D.H.M born […], 2005 (he is the eldest and is now 15 years old) and D.M. born […], 2007 (at the time of the hearing she was 12 but turned 13 the next day). Their mother (R.E.) tragically died many years ago. The children have resided in the care of their father (the respondent T.M.) and their paternal grandparents until the late spring, early summer of 2018.
[2] In approximately June of 2018, the children moved with their father to his then girlfriend’s home. The Society became involved shortly afterwards in August of 2018, due to multiple concerns regarding substance use and domestic violence. Police were called regarding an alleged violent altercation between the father and his ex-girlfriend for which the father has been charged with assault (these charges are still before the court). The father was also arrested and charged when he was allegedly found to be operating a motor vehicle while under the influence. In August 2018 the child D.H.M. disclosed that he had been assaulted and threatened by his father on numerous occasions. The father was subsequently charged on August 13, 2018 and later convicted of assaulting his son D.H.M.. After the father was charged, the father disclosed to the Society that there was a sexual relationship ongoing between his son D.H.M. (who was 13 at the time) and the father’s girlfriend’s daughter (who was 16 at the time). Because of the assault charges, the children could not reside with the father. A safety plan was put in place for the children to remain at the father’s ex-girlfriend’s home, however, at the request of the father, the children were moved to the paternal grandparent’s home (after the Society performed initial assessments of the paternal grandparents as a potential kin placement). The children expressed reservations about this placement and subsequently ran away from their paternal grandparent’s home. They ran back to their father’s ex-girlfriend’s home. The children were apprehended there and removed the following day by the Society and placed in the care of their maternal aunt (T.E.) and maternal grandmother (N.E.). The children have resided primarily with T.E. since being placed in her care in August 2018 and remain there to this day.
[3] The Simcoe Muskoka Child, Youth and Family Services (the Society) brought a motion for summary judgment regarding the children. The Society is seeking an order finding the children in need of protection under s. 74 (2) (b) (i) and (d) of the Child, Youth and Family Services Act, 2017[^1] (hereinafter the “Act” or the “CYFSA”). In terms of disposition, the Society seeks an order placing the children in the deemed custody of their maternal aunt T.E. pursuant to s. 102 of the CYFSA. Additionally, the Society seeks orders regarding other incidents of custody including: an order that T.E. can enrol the children in programs and services including but not limited to education programs, recreation programs and counselling, without requiring the father’s consent; an order that T.E. is permitted to obtain a passport for the children and travel with the children without the consent of the father. The Society is also seeking an order that the children have access with their father and paternal grandparents in accordance with the children’s wishes and subject to any criminal court conditions.
[4] The respondent father T.M. objects to the Society’s motion. He brought a motion seeking an order dismissing the Society’s motion and requested an order finding the children in need of protection under s. 74 (2) (n) along with an order that the children be placed in interim society care and custody for six months with the children residing in a foster placement under s. 101 (1) 2. In the alternative, he seeks an order that this matter be set down for trial on the issue of disposition. In addition, T.M. seeks various other orders including: an order that the children be tested for use of non-prescription drugs; an order for production of the children’s social media accounts; an order for oral examination of witnesses; and order for disclosure of all assessments conducted by the Society on two persons, specifically the kin providers that the children have been placed with since August 2018.
[5] The children are represented by the Office of the Children’s Lawyer (OCL) and have their own separate counsel. Ms. McFarlane appeared and made submissions on behalf of her client D.M. and as agent for Ms. Annand on behalf of D.H.M. Both counsel for the children agree and consent to the findings and orders sought by the Society.
[6] On consent, one of the statutory findings with respect to the children were made at the outset of the hearing. Specifically, there shall be a finding that the children are not First Nations, Inuit or Metis.
[7] I have read and relied on the following documents:
Society’s Notice of Motion dated March 24, 2020 at Vol. 1, Tab 19;
Affidavit of Child Protection Worker (CPW) Carolyn McKay dated August 20, 2019 at Vol. 1, Tab 15;
Father’s Amended Answer and Plan of Care dated August 23, 2019 at Vol. 1, Tab 16;
Society’s Plan of Care dated December 5, 2019 at Vol. 1, Tab 17;
Affidavit of Carolyn McKay dated March 18, 2020 at Vol. 1, Tab 20;
Father’s Notice of Motion dated July 31, 2020 at Vol. 1, Tab 21;
Affidavit of Father dated July 23, 2020 at Vol. 1, Tab 22;
Affidavit of C.F. dated July 23, 2020 at Vol. 1, Tab 23;
Affidavits of the Paternal Grandmother dated July 30, 2020 at Vol. 1, Tab 24 and 25;
Affidavit of Father dated December 27, 2018 at Vol. 1, Tab 26;
Affidavit of OCL Clinical Social Worker Amy de Munnik dated August 11, 2020;
Affidavit of OCL Clinical Social Worker Sandra Garibotti dated August 14, 2020 at Vol. 1, Tab 28;
Affidavit of CPW Carolyn McKay dated August 22, 2020 at Vol. 2, Tab 1;
Affidavit of Maternal Aunt T.E. dated August 19, 2020 at Vol. 2, Tab 2; and
Affidavit of Maternal Grandmother N.E. dated August 18, 2020 at Vol. 2, Tab 3.
Decision
[8] For reasons set out below, I have determined that there shall be an order granting the Society’s request for an order for Summary Judgment finding the children in need of protection under s. 74 (2) (b) (i) and (d) of the CYFSA. I am further making an order dismissing the Father’s motion and placing the children in the deemed custody of their maternal aunt T.E. pursuant to s. 102 of the CYFSA. This order will be subject to further terms and incidents of custody and access as described below.
Analysis
Summary Judgment
[9] The court should always exercise exceptional caution before proceeding on a summary judgment motion in a child protection case. I have considered this caution and found that it is in the interest of justice for the court to determine this case summarily. The summary judgment process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate this dispute. I find that I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility. I find that the evidentiary record is sufficiently comprehensive on all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a trial.
[10] Although the respondent father has made serious allegations against the kin providers and against the children, these allegations are all either unverified or in dispute. Cross-examination of witnesses would add little, if any value to the court’s analysis.
[11] I find that the material facts of this case support this matter proceeding summarily. These material facts include: the father’s criminal conviction for assaulting D.H.M. and his resulting “no contact order” with both children; the father admitting to substance misuse; the father and paternal grandparents knowledge of an alleged sexual relationship between D.H.M. and the father’s girlfriend’s daughter (and doing nothing about it); the child D.M. having been sexually assaulted while in the care of the paternal grandparents; the strong, independent and consistent views and wishes of the children as expressed through their respective children’s lawyers to remain in the care of their maternal aunt T.E.. I am also satisfied that the maternal aunt T.E. has consented to an order for deemed custody pursuant to s. 101 (4) of the CYFSA. The above material and undisputed facts in this matter and in the summary judgment process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result[^2]. As the Supreme Court stated, at para. 50 of Hryniak, “…the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”[^3]
[12] Although the statutory timelines do not technically apply, I must be cognizant that over two years have passed since the children were removed from the father’s care. But for the kin plan, these children would have been in the care of the Society. Although the children have not been in foster care, they have not been in the care of their father or paternal grandparents for over two years. The children should not have to wait any longer and continue to suffer ongoing uncertainty. They need some finality in this matter. The children have been in the care of the same current kin provider for over two years. Given the length of time the children have been out of the care of their father and in the care of kin, I find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.
[13] I find that the society has established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought. I find there is no genuine issue requiring a trial on any issue. I find that if this matter proceeded to trial there is “no realistic possibility of an outcome other than that sought by the applicant”. After reviewing all the materials and hearing the submissions of counsel, I was confident that I could reach a fair and just determination of the merits of a summary judgment motion. I reach these conclusions for the reasons that follow.
Finding in Need of Protection Pursuant to s. 74 (2) of the CYFSA
[14] Although the parties consented to an order finding the children in need of protection, there was no agreement regarding under which section of the Act this finding would be made. The Society sought a finding under s. 74 (2) (b) (i) and (d), whereas the respondent father T.M. sought a finding under s. 74 (2) (n).
[15] Sections 74 (2) (b) (i), (d) and (n) read as follows:
(2) CHILD IN NEED OF PROTECTION – A child is in need of protection where,
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(c) the child has been sexually abused or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child;
(d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c)
(n) the child’s parent is unable to care for the child and the child is brought before the court with the parent’s consent and, where the child is 12 or older, with the child’s consent, for the matter to be dealt with under this Part;
[16] Ms. McFarlane advised the court that both OCL counsel for the children consent to this matter proceeding by way of summary judgment motion and further consent to the court making an order in accordance with the findings and disposition requested by the Society.
[17] The key difference in the Society and the father’s position is that although the father accepts the fact that the children are in need of protection, he does not acknowledge or agree with “why.” The father sought a finding under s. 74 (2) (n) where essentially, the father is admitting that he is unable to care for the children (due to the criminal conditions) and he consents to the children being brought before the court to be dealt with under Part V of the CYFSA. I do not accept the father’s request for a finding under s. 74 (2) (n). A finding solely under this sub-section basically sweeps all of the Society’s verified protection concerns and the children’s disclosures under the rug and does not address what would happen if the father and/or the children were to retract their consent to the finding in need of protection.
[18] In my view, it is disturbing that the father will not accept or consent to a finding that the children are in need of protection pursuant to s. 74 (2) (b) (i) and (d) of the CYFSA. I find the verified concerns and the admitted and/or undisputed material facts supporting these findings are numerous and extremely concerning. These include:
(a) the father has a history of substance misuse while in a caregiving role;
(b) the children have been exposed to adult conflict;
(c) the child D.H.M. was assaulted and threatened by the father (for which the father was charged and resulted in a “no contact” order between the father and both children from December 19, 2019 until December 3, 2021);
(d) the child D.H.M (who was 13 years old at the time) and the father’s girlfriend’s daughter (who was 16 years old at the time) allegedly engaged in a sexual relationship while in the care of the father and his then girlfriend;
(e) the father acknowledged that he knew about the above alleged sexual relationship – yet he did nothing about it (and/or he was ineffective in acting protectively towards the children);
(f) the paternal grandmother knew about the above alleged sexual relationship and when her concerns were made known, she was ineffective in acting in a protective way towards the children;
(g) the child D.M. was sexually assaulted by a great uncle while in the care of her paternal grandmother. The great uncle was subsequently charged and convicted on these charges. This assault occurred despite the paternal grandmother’s knowledge about that same great uncle sexually groping her own daughter in the past.
(h) the children have been subjected to pressure and guilt designed to get them to “recant” their statements (as the children are not believed by the father or the paternal grandmother).
[19] In this case, the father minimizes the seriousness of the assault/s he perpetrated on his son D.H.M. (he only admits to one instance of hitting him). The child D.H.M. said that his father was “violent when he drank alcohol, which he drank every day to the point of intoxication.”[^4] He also explained that his father had been “physically abusive toward him since he was 10.”[^5] Although he minimized it, the father has acknowledged that he assaulted his son D.H.M. and he was convicted for this assault resulting in a “no contact” order. The father has further acknowledged he had a substance misuse problem and attended at rehabilitation. The father is commended for attending at rehabilitation for his substance misuse problem and for staying sober. However, he should realize and acknowledge that the children suffered while they were in his care when he was under the influence.
[20] The father and paternal grandparents admit that they knew about the alleged sexual relationship between D.H.M. and the father’s girlfriend’s daughter. It is clear from the evidence that the father and paternal grandparents didn’t do anything about it. Therefore, it is an undisputed fact that the father failed to act in a protective manner towards D.H.M. It has also been verified that the child D.M. was sexually assaulted by a relative in a situation where the caregiver (paternal grandmother) knew or should have known of the risk of such harm (because the same relative has sexually assaulted the paternal grandmother’s daughter in the past).
[21] In my view there is more than enough uncontroverted evidence to support a finding as requested by the Society. The children are clearly as risk of physical harm and of being sexually abused or sexually exploited. For the above reasons, it is “plain and obvious” that these children should be found in need of protection. There shall be an order finding the children in need of protection pursuant to s. 74(2)(b)(i) and (d) of the Child Youth and Family Services Act (CYFSA).
Disposition – Deemed Custody Pursuant to s. 102 of the CYFSA
Best Interests of the Children and the Primacy of the Children’s Views and Wishes
[22] The Society seeks an order placing the children in the deemed custody of their maternal aunt T.E. pursuant to s. 102 of the CYFSA. They also seek other terms and incidents of custody and access. The father seeks an order that the children be placed in interim society care and custody for six months with the children residing in a foster placement under s. 101 (1) 2. In the alternative, he seeks an order that this matter be set down for trial on the issue of disposition. In addition, T.M. seeks various other orders including: an order that the children be tested for use of non-prescription drugs; an order for production of the children’s social media accounts; an order for oral examination of witnesses; and order for disclosure of all assessments conducted by the Society on two persons, specifically the kin providers that the children have been placed with since August 2018.
[23] The children have not seen their father since August 2018. Both children have separate OCL’s and Clinical Social Workers who have provided the court with sworn affidavits regarding the children’s views and wishes.
[24] The affidavit of Ms. Amy de Munnik (OCL Clinical Social Worker for D.H.M.) set out the eldest child’s wishes and stated that they were consistent, independent and strong. D.H.M. wishes to remain in the care of his maternal aunt T.E.. He does not want to live with his father or paternal grandparents and he does not want access or contact with his father. D.H.M. said that he does not want to have counselling with his father, but he will consider having a relationship with him if his father would admit to the things he did wrong and if the criminal conditions were lifted. D.H.M. indicated that he would like to have contact and visits with his paternal grandparents, but it would need to be in accordance with his wishes and not according to a specific schedule.
[25] Ms. McFarlane advised the court that D.M. has also been clear and consistent in her views. The affidavit of Ms. Sandra Garibotti (OCL Clinical Social Worker for D.M.) set out D.M.’s wishes and views. D.M. has reported repeatedly that she is comfortable residing in the care of her maternal aunt T.E. and that she wished to remain in her care. She has consistently advised that she does not wish to see her father at this time. D.M. is ambivalent about access with her paternal grandparents, but she has indicated that she is open to access so long as it is on her own terms.
[26] Mr. Severn submitted on behalf of his client that the Society and the OCL were relying too heavily on the views of the children. He said that the position of the Society and OCL in this matter seems to be that the Court should simply give the children “what they want, without further inquiry.” In my view, this is not an accurate or fair interpretation of the Society and OCL position.
[27] In submissions from the Society and the OCL, the court was asked to give the children’s views and wishes “primacy” when determining the best interests of the children. Previously, in the Child and Family Services Act[^6] (hereinafter “CFSA”), “there was discretion to consider a number of factors and the direction was to consider those “that the person considers relevant.” The Society and OCL pointed out that under the CFSA, the children’s views and preferences was “number 9” in the list of factors. They argued that in 2017 the CYFSA deliberately changed the order of the factors considered in the best interests test so that children’s views and wishes were given priority in cases “where to do so would not compromise the paramount purpose of the Act.” They argued that s. 74 (3) of the CYFSA gave the children’s views and wishes “primacy” because it “moved the consideration of the children’s views and wishes to the first position” in the consideration of children’s best interests, and, it made this particular consideration mandatory.
[28] The court agrees that the importance of considering the children’s voice, views and wishes was brought to the forefront and is highlighted in more than one place in the CYFSA. In the preamble it says, “The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard.” Further, (also in the preamble), it says “the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child” – to which Canada is a signatory. In Part 1 – Purposes and Interpretation of the CYFSA, s. 1 (2) 3 vi. says that “Services to children and young persons should be provide in a manner that, includes the participation of a child or young person.” Lastly, the mandatory requirement for the court to consider the children’s views and wishes is found in s. 74 (3) (a) of the CYFSA where it says the court “shall” consider them and give them “due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.”[^7]
[29] The necessity to consider the children’s views and wishes is clearly a very important and mandatory consideration for the court (if they can be reasonably ascertained). However, in each case, it is still up to the court to determine how much weight to give the children’s views and wishes once they have been reasonably ascertained. It is still easy to imagine a situation where depending on their maturity level, a child’s views and wishes may conflict with other considerations that make up the decision of what is in a child’s best interests. In those situations, the children’s views and wishes do not necessarily “take priority” or are “given primacy” over the other factors and circumstances listed in s. 74 (3) just because they are located at the top of the list.
[30] The CYFSA (and the majority of the case law) make it clear that the best interests of the child are to be given “primacy” in any order regarding children. Neither the Society nor the OCL could provide me with any cases that say the children’s views and wishes are to be given “primacy.” It is clear that the CYFSA now makes judicial consideration of the children’s wishes mandatory (if ascertainable); however, the court must only give these wishes “due weight in accordance with the child’s age and maturity.” Children’s Aid Society of Algoma v. L.G., 2020 ONCJ 297 at para. 67 explains:
Any reasonable comparison of the CFSA and the new CYFSA can only lead to the conclusion that the legislators of Ontario have considerably expanded the rights, entitlements and the participation of children to whom services are provided and/or who are in society care. The views and wishes of such children are now mandatory judicial considerations in child protection proceedings, even on a first court appearance.[18] The court is required to give to these views and wishes "due weight in accordance with the child's age and maturity", throughout the proceeding, not only in its final determinations.
[31] One ground of appeal in L.R. v. Children’s Aid Society, 2020 ONSC 4341 was that the trial judge failed to give due weight to the children’s wishes because the trial judge assigned no weight to the children’s wishes in a case of alienation. Justice Horkins held, at para. 57, that s. 74 (3) (a) does not support that argument. Rather, the appeal court said that the trial judge is only required or mandated to “consider” the children’s views and wishes. The appeal court said it was proper for the trial court to determine the amount of weight to be given to the children’s views and wishes.
[32] Ms. McFarlane made submissions to the court that the children’s views and wishes support the orders being requested by the Society. I find that both D.H.M. and D.M. are at an age and level of maturity where their views and wishes should be given significant weight. The order’s sought by the Society will give both children the stability of remaining in the care of their preferred caregiver, (and with whom the children are doing well) being the maternal aunt T.E.. It will also give both children the ability to maintain relationships with other family members on their own terms. Ms. McFarlane advised the court that both the children are desiring some finality and stability. I find that the orders sought by the Society and the OCL will have the effect of giving the children the finality the children desire and the stability that is in their best interests.
[33] In cases with older mature children, (like the one before me) where the views and wishes have been expressed and are found to be strong, consistent and independent, then significant weight should be given to these children’s views and wishes. Giving older children’s expressed views and wishes significant weight is giving them their “due weight in accordance with the child’s age and maturity.” This is not inconsistent with the CYFSA. It is in fact doing exactly what the Act says the court must do.
[34] I find that the father’s plan for the children to go into foster care is not in the children’s best interests. His plan would possibly cause the children to become estranged from more family members. His plan is so upsetting to the children that it is clear it would cause them further emotional harm. I find the father’s plan makes it clear how much he distrusts T.E. and his own children. It further speaks to some short-sightedness on his part as he is trying to control the children no matter what the outcome. It is like he is saying, “If I can’t have them, nobody can.” His plan suggests that he thinks the children would be better off placed in the care of total strangers rather than family who love them and have cared for them for over two years. Despite the children clearly expressing their wish to remain in the care of T.E., the father’s plan does not give any respect or weight to the wishes and views of the children. His plan provides no finality or stability to the children. Lastly, it shows disrespect for the children’s progress and resilience and a lack of appreciation for the family that has stepped up to support and care for his own children.
[35] As expressed through the OCL, the children’s views and wishes have been consistent, strong and independent. They have been residing in the care of their Aunt T.E. for over two years. They are doing well in T.E.’s care and wish to continue residing with her. The children are attending school and accessing services as required. The children have given good reasons for their expressed views and wishes. In addition, there are criminal conditions that make any access with the father impossible. For the reasons stated above, the children’s views and wishes shall be considered pursuant to s. 74 (3) (a) of the CYFSA and the court gave substantial weight to the children’s views and wishes given their ages and level of maturity.
[36] It is clear that the father accepts little responsibility for the part he has played in the children’s reasonable estrangement from him and the paternal grandparents. Although the father pled guilty to the assault charges against D.H.M., he still minimizes the charges and the assault, (despite a lengthy no contact order preventing contact until December 2021). In my view, further estrangement has grown between the children and the father for three main reasons: the father does not accept responsibility for the verified concerns; the father refuses to give any weight or regard to the children’s wishes; the father has continued to make or support negative allegations against the kin providers and against his own children. These allegations include: concerns and allegations about the kin providers and the children using and/or abusing alcohol and/or drugs; an allegation that the child D.H.M. and the maternal aunt are engaging in a sexual or inappropriate relationship; and allegations that the children are liars. The Society has not verified any of the father’s concerns.
[37] Despite the Society advising the father that these concerns were not verified, during the motion, the father continued to rely on an allegation that had been made about the child D.H.M. and the maternal aunt engaging in a sexual or inappropriate relationship. This allegation was investigated and not verified by the Society. I find this allegation was based on speculation from an unreliable source. Despite this, the father wishes to rely on it to discredit and possibly punish the children and the kin providers. I say this is for a couple of reasons. The crux of this allegation stemmed from a person who said he witnessed what he believed to be a “loving look” between D.H.M. and the aunt. In support of this allegation, the father provided what he described as a picture that he says proves this so called “loving look.” In my view, the picture proves nothing and in fact, I gave it no weight as it raised no concern whatsoever. The person who made the allegation is barely even known to the children and has very thin ties to the family. The children and the maternal aunt have clearly and strongly denied the allegations. Despite all of the above, the father does not accept the denials and explanation from his own son and the maternal aunt that anything inappropriate is occurring between them. Secondly, when notified about this allegation, the father saw fit to post a private unredacted letter from the Society on Facebook (the letter included details of the allegation as well as the children’s names). In my view, the actions of the father showed extremely poor judgment and insensitivity. He acted in the complete opposite of a concerned or protective manner towards his children. He used it as an opportunity to re-direct the focus of the Society involvement from him and he caused the children further distress and humiliation. This is not the first or only time the father has shown this type of poor judgment. He also publicly insinuated the children are liars when he posted a comment on Facebook about a picture of the children’s younger brother and said he is the “only one of his children who was not a liar.” Both of these posts were public and could be seen by the children. The court wonders how the father could possibly think these actions would be helpful to him or positive for his children or anyone else?
[38] The only concern the court had about the deemed custody order requested by the Society is that it did not include any specified access and/or reunification counselling for the children and their father or paternal grandparents. Deemed custody to kin may arguably be less intrusive for the children because they are not being placed with strangers. However, each situation is different, (especially when the kin placement is with a “non parent” and when there is no regular access occurring with the actual remaining parent/s whom the children were removed from). Looking in from the outside, the deemed custody order will look and feel a lot like “extended care.”
[39] The children have expressed clear consistent feelings about not wanting to see their father. They have further expressed reluctant and mixed feelings about spending time with their paternal grandparents. In these types of cases, if I thought the children’s wishes on this subject were not in their best interests, I could order that they attend reunification counselling and/or some specified regular access (subject to any criminal court conditions). Unfortunately, in this case, the facts do not support that type of finding or order.
[40] The children have been very clear and consistent about their wish not to see their father. I find that the father has exhibited a lack of insight into why the children feel this way. He has continued to dismiss the wishes of his children and has focused on unfounded allegations against the current kin caregivers, while ignoring the verified concerns about his own behaviour and that of his parents. The father has been very inconsistent regarding his assault against the child D.H.M. In sworn affidavits he repeatedly denied ever hitting the child (and yet he plead guilty to the charge of assaulting him). The father then began minimizing this allegation and the conviction in his subsequent affidavits. In any event, the criminal court conditions make it impossible for the children to have any access with the father until December 2021. The children have already attended some counselling, and the Society and kin providers support further counselling as needed and in accordance with the children’s wishes.
[41] The children have been reluctant and/or expressed mixed feelings regarding access with the paternal grandparents. They have affection for their paternal grandparents, however, they also feel uncomfortable with them. In my view, the children have mixed feelings for very good reason: the sexual assault against D.M. by a relative took place in the paternal grandparents’ home (despite the paternal grandmother having knowledge of the concerns about that same relative); the paternal grandmother’s request that the children recant their statements about their father; the children being made to feel guilty because the paternal grandmother has cried in front of them and tells them how much they have hurt her. The children expressed they felt pressure and guilt from the paternal grandmother to “recant” their statements. The paternal grandmother went to great pains to express in her affidavit that asking the children to “tell the truth” is not the same as telling them to “recant.” Her misplaced focus on the word “recant” is unfortunate, yet it also shows a lack of insight.
[42] When a person is asked to “recant” a statement, they are being asked to “retract” or “take back” what has been said. The paternal grandmother and the father have made it clear to the children, to the Society and to the court that they do not accept or believe the children’s statements and do not give any weight to their wishes. In this context, when the children know they are not believed by their own father and grandmother, any pressure or request by them to “tell the truth” becomes the same as asking and/or telling them to “recant.” They have made it clear that they believe the words of a stranger over the children. They tell them how much they have hurt them by what they have alleged, and then repeatedly tell them to “tell the truth.” It’s not the same as “recant”, but in this context, it is.
[43] In my view, the children’s feelings about access (mixed or not) are valid and should be given significant weight. In this set of circumstances, these children should not be pressured or forced to see and spend time with the same people that have made it quite clear to the children that they think they are liars.
[44] The Society and OCL also satisfied the court regarding many of the other considerations listed in s. 73 (3), specifically, ss. (3) (c) (i), (ii) (v) (vi) (vii) (viii) (ix) (x) and (xi). I find that during the two years the children have resided in the care of the maternal aunt, the children’s physical, mental and emotional needs have and continue to be met. The children have developed positive relationships and strong emotional ties to their family. The children are an important part of the family and are comfortable in their placement with T.E.. Residing with the maternal aunt is the least disruptive plan and promotes continuity of the children’s care with their kin. I agree with the submissions of the Society and OCL that the degree of risk that justified the finding that the child is in need of protection is high. The Society and OCL both advised the court that the children have expressed distress if there was a further delay in reaching a final disposition of this matter.
[45] Although the statutory timelines don’t run in a situation like this, we can’t turn a blind eye to how much time has passed and how that effects the children. The children have been in chaos and flux for over two years and require finality to end the litigation. They need to be allowed to have a childhood (for what remains of it). They have lost their Mother. They have been allegedly sexually abused. They have lived with a father who suffers from addiction to alcohol and plead guilty to assaulting D.H.M.. The father and paternal grandmother who claim to love and care for them, don’t trust them and are calling them liars. The children haven’t had contact with the father for two years and will not until at least December 2021. It will be over three years before they can spend time and/or have contact with him. With the paternal grandparents’ lack of insight into how their attitude has contributed to the anxiety of the children, it’s like the children have lost them too. From the child’s point of view, how much more pain and loss and anxiety must they tolerate?
[46] In my view, the fathers plan is no plan. I find the father’s plan delays the final disposition of the case and would disrupt the children’s life so much that the children would likely suffer harm. I find the Society’s plan is the least disruptive and it gives the children some finality. It seems like the father simply wishes to continue the fight and focus on his horrible and humiliating allegations against the maternal aunt and grandmother and even against the children. By him calling them addicts and insinuating there is a sexual relationship in the face of outright denials means they are continually calling the children “liars.” It is concerning that the father has (to his and his children’s detriment) focused on unsubstantiated, unverified allegations to try and separate the children from their maternal aunt T.E.. He is trying remove the children from the stability and comfort of a home and caregiver with whom the children have repeatedly expressed that they are comfortable and wish to remain. It will be difficult to heal the relationship if the father and paternal grandparents continue on that path.
[47] The maternal aunt and grandmother have tried to support the children’s relationship with the father and paternal grandparents. They have supported counselling for the children. They reached out in a letter and offered an “olive branch” to try and move past this conflict and all the negative allegations. Unfortunately, this offer was rejected. Despite this, the court is hopeful that in time, the children and the father and paternal grandmother will re-evaluate their positions. Therefore, there shall be an order permitting the access to be reviewed in the future.
[48] Based on all the above, I find that it is plain and obvious that there is no other reasonable outcome than the disposition sought by the Society. I find it is in the best interests of both the children to reside in the deemed custody of the maternal aunt and to have access with their father and paternal grandparents in accordance with the children’s wishes (subject to any criminal court conditions).
Order
[49] For all the reasons as set out above and, pursuant to r. 16 of the Family Law Rules, I make the following order:
(a) T.M’s motion is dismissed.
(b) An Order finding that the children are not First Nations, Inuit or Metis;
(c) An Order finding the children, D.H.M born […], 2005 and D.M born […], 2007, in need of protection pursuant to s. 74(2)(b)(i) and (d) of the Child Youth and Family Services Act (CYFSA);
(d) An Order placing D.H.M. born […], 2005 and D.M. born […], 2007 in the deemed custody of their current kin provider T.E., with access to their father T.M and their paternal grandparents (De.M & G.M) in accordance with the children’s wishes and subject to any criminal court conditions.
(e) An order that T.E. can enroll the children in programs and services, including but not limited to education programs, recreational programs and counselling, without requiring the consent of the father;
(f) An order that T.E. is permitted to obtain a passport for D.H.M and/or D.M without requiring the consent of the father.
(g) An order that T.E. is permitted to travel with the children D.H.M. and D.M. both within Canada and internationally without requiring the consent of the father;
(h) An order that the father T.M. shall have a right to bring a motion to review the access issues once the criminal court restrictions (no-contact order) has ended.
(i) An order that once the no-contact order has ended, T.E. and the father T.M. shall cooperate to arrange reconciliation counselling and/or other therapies to assist with future access and/or reunification. Participation and/or attendance at counselling and/or future access shall be subject to the children’s wishes and views.
(j) An order that the maternal aunt T.E. and the father T.M. shall keep each other informed of their address and telephone number and email address and shall inform each other of any changes regarding same (in writing).
R.S. Jain
Date: October 2, 2020
[^1]: Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 [^2]: Hyrniak v. Mauldin 2014 SCC 7 at para. 49 [^3]: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at para. 63 [^4]: Affidavit of Amy de Munnik para. 6 [^5]: Affidabit of Amy de Munnik, para 5 [^6]: Child and Family Services Act, R.S.O. 1990, c. C.11 [^7]: s. 74 (3) (a) of the CYFSA