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 Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87 (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both
COURT FILE NO.: FC-18-FO000203-0000
DATE: 2020-10-15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE CHILDREN’S AID SOCIETY OF THE
REGIONAL MUNICIPALITY OF WATERLOO, Applicant
- AND -
M.A.T., Respondent
- AND -
D.V., Respondent
BEFORE: Madam Justice D. Piccoli
COUNSEL: Jeffrey Boich, Counsel for the Applicant
Walter W. Wintar, Counsel for the Respondent, M.A.T.
Valerie Ruoso, Counsel for the Respondent, D.V.
HEARD: September 16, 2020
ENDORSEMENT
Overview
[1] The Applicant, the Children’s Aid Society of the Regional Municipality of Waterloo (“CAS”), has brought a motion (Volume 4, Tab 1, of the Continuing Record) pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99, seeking a finding that the child, J., born […], 2018, is in need of protection pursuant to ss. 74(2)(b-i) and (g) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Schedule 1 (“CYFSA”). The CAS seeks a disposition that J. be placed in Extended Society Care until the Order is terminated under s. 114 or expires under s. 123. The CAS further seeks a disposition that there shall be no right of access to J. by the Respondent parents (“parents”).
[2] The Respondent, M.A.T. (“Mother”), seeks the placement of the child in the joint care of herself and D.V. (“Father”). She concedes that a supervision order is required.
[3] The Father seeks the same relief as the Mother, namely the placement of J. in the joint care of himself and Mother. He also concedes that a supervision order is required.
[4] The parents submit that there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure. The parents request that if I make the order the CAS seeks, namely extended Society care, that the parents should have a right of access to J.
[5] The parents submit that the CAS relies on a significant amount of information that should be considered hearsay evidence. Specifically, there are a number of other persons from whom the CAS has elicited information, however, there are no affidavits from them. For example, information has been received from C.B. (Father’s sister), Dr. Wang (Father’s doctor), L.J. (support person for the Mother), T.H. (another support person for the Mother) and K.H. (support person for Mother through Extend-A-Family post-September of 2019).
[6] The CAS has served and filed eight affidavits in support of its motion for summary judgment, as well as a document brief and a factum dated August 31, 2020.
[7] The affidavits filed by the CAS in support of its motion are:
Amy Morphet, Child Protection Worker (“CPW”), dated September 23, 2019;
Brian Allison, Children’s Services Resource Worker (“CSRW”), dated September 16, 2019;
Jason Graham, Protection Support Worker (“PSW”), dated September 23, 2019;
K.H., (support person for mother through Extend-A-Family post-September of 2019) – dated September 24, 2019;
Amy Morphet, dated February 13, 2020;
Amy Morphet, dated March 11, 2020;
Amy Morphet, dated July 27, 2020; and
Brian Allison dated July 29, 2020.
[8] The Mother relies on three affidavits sworn by her on August 22, 2018, March 9, 2020 and August 18, 2020, as well as the affidavit of Valerie Johnson, her friend, sworn August 19, 2020. She has also prepared a Factum dated September 11, 2020.
[9] The Father relies on two affidavits sworn by him on March 6, 2020, and August 18, 2020, as well as the affidavit of Ms. Johnson referred to above. He has also provided a Factum dated September 8, 2020.
[10] On September 25, 2020 the assistant trial coordinator received an email that was forwarded to me on September 28, 2020, from Mr. Wintar (sent with the consent of all counsel) advising that due to substantial changes in her personal circumstances, Ms. Johnson was no longer able to provide support for the parents as set out in her affidavit sworn August 19, 2020. Counsel and the parents appeared before me on October 6, 2020. On consent, the affidavit of Valerie Johnson sworn August 19, 2020, as well as any reference to that affidavit was withdrawn.
[11] All parties agree that the child is in need of protection. The issue for me to decide is disposition.
Brief Background
[12] The child, who is the subject matter of these proceedings, is J. (female), born […], 2018.
[13] Mother is 31 years of age.
[14] Father is 37 years of age.
[15] This is a status review application.
[16] The order under review is the Final Order of Rogers J. of December 5, 2018 (“the Order”). The Order is based on an agreed statement of facts dated December 5, 2018, (“SAF”) and on the consent of the parties that (i) the child be placed in the interim care of the CAS for a period of four (4) months; (ii) that there be a right of access to the child by the Mother at the discretion of the CAS and supervised as deemed necessary by the CAS; and (iii) that there be a right of access to the child by the Father at the discretion of the CAS and supervised as deemed necessary by the CAS.
[17] The Status Review application was commenced on February 19, 2019, and was originally returnable April 2, 2019. As a result of the suspension of normal court operations due to COVID-19, the hearing of this matter was delayed.
[18] The child has been out of her parents’ care since April 16, 2018.
[19] The child was placed in her current foster home on May 14, 2018. The foster parents have indicated they are open to formally adopting the child should the CAS be granted an order of Extended Society Care.
[20] The child is of good physical health, is meeting her developmental milestones and demonstrates no behavioural concerns.
[21] The SAF signed by all parties on December 5, 2018, found at Vol 2 Tab 2 of the CR indicates among other things:
Paragraph 4: Mother has a lengthy child protection history as a child and was made a Crown Ward by another CAS at an early age. She has been diagnosed as having Fetal Alcohol Syndrome Disorder, although her exposure to alcohol prenatally has not been confirmed. In late 2015, Mother completed a psychological assessment, which diagnosed her daily living skills as being under the first percentile for her age, as well as having an overall “intellectual disability of mild to moderate severity”. Mother is currently in receipt of ODSP, and on her most recent yearly review documentation, dated May 2018, the Registered Nurse who completed the form stated, “her prognosis is unknown but highly unlikely to improve”. Mother has had significant challenges with emotion management throughout her life, which she has acknowledged while completing various assessments. Mother continues to struggle with her interpersonal relationships, although she is a sociable person who enjoys spending time with other people.
Paragraph 5: Father does not have a history with Child Protection Services. In mid-2002, Father completed a psychological assessment, which diagnosed him as functioning at the first percentile for his age, and as being in the “mild range of mental retardation”. Father has worked in the community for several years, and also has a driver’s license. It appears that he has had a positive connection with various community support services and was very active in community activities. He also has a supportive family. The Society has confirmed with Father’s family doctor, Dr. Wang, that Father’s cognitive delays are a result of an unnamed genetic condition.
Paragraph 6: The CAS became involved with the parents in early 2018, when community members contacted the CAS with concerns about the safety of the unborn child, now known as J. These supports expressed concerns about the state of the home, the treatment of the animals in the home, and the parents’ ability to meet their own needs without significant levels of support. Mother attended prenatal appointments regularly, with assistance from her support team, and her pregnancy appeared to be healthy with no substance abuse. The parents were residing in an apartment with Father’s brother, who has been diagnosed with the same genetic condition as Father. The team advised that they had been trying to encourage the parents to make an adoption plan, however, neither parent was in support of this. The parents’ family, friends, and community supports have been clear that they do not support them parenting, and that they would have significant safety concerns for any child left in their care.
Paragraph 7: Following J.’s birth, J. and Mother resided with a support person under a 24/7 supervision plan; however, this plan only lasted four days before Mother left the home following a verbal altercation. The CAS later learned that Father had fallen asleep with J. in the bed with him, and the parents’ response when asked about this incident was that “no one had told us not to”. J. then moved to another support person’s home, and sometime in April of 2018 she was removed from her parents’ care, when it became increasingly evident that the parents did not understand the protection concerns. J. remained in the supportive care placement and the parents moved into another accommodation. A family meeting was held in early May 2018, and unfortunately no family plans were put forward for J.; however, all family and kin present were in support of J. moving to a foster permanency home as soon as possible.
Paragraph 8: The parents worked cooperatively with the CAS to choose a foster home, approved to be a permanent home if needed; and J. was placed with K. and B. on May 11, 2018. The parents met K. and B. and “gave” them J., and this meeting was very positive. During the meeting the Mother commented that J. “should be eating less now that she was almost 2 months old.” This was not the first time Mother had made such a comment: the CAS was previously advised of a similar comment made by Mother when J. was in the care of community supports.
Paragraph 9: When J. was residing with support people, access appeared to be sporadic and concerns were raised about the parents’ ability to provide care for J. After J. moved to K. and B.’s home, access occurred weekly for one hour. The CAS had offered more access than that, however, the Mother advised she and the Father wanted to visit together. For a period of time the supervising worker remained in the room with the family, at the family’s request. Access was noted to be positive, and the CAS observed Mother to take on a ‘teaching role’ with Father. The CAS submitted a referral for the parents to attend the “Making the Connection” program and they began the weekly group at the end of October.
Paragraph 10: The CAS continues to receive information regarding the parents’ struggles with paying their rent and utility bills which have resulted in cuts to utilities; threats of eviction; and Landlord and Tenant Board litigation.
Paragraph 11: On October 24, 2018, a worker attended the home after Father’s brother moved out of the apartment. The home was observed to be reasonably clean and organized. During this visit Mother advised the worker that she and Father are doing fine financially despite paternal uncle’s departure and Father’s lay-off from work, and further advised that their rent arrears would be paid by December.
Paragraph 12: On November 2, 2018, the worker received an email from Father’s sister, with an attached letter that was sent to Father’s brother and Father. The letter was from the landlord detailing over $4,000 owing in arrears and that if they did not vacate by November 10, 2018, a notice may be filed with Court enforcement to have the eviction enforced by the Sheriff.
Paragraph 14: The CAS continues to try and work with the parents regarding a permanency plan for J. However, both parents have been diagnosed with significant developmental delays and struggle to care for themselves without assistance. The family has a large community support network, both formal and informal, and this support network has been clear with the CAS about the significant safety concerns they would have if a child was in the care of the parents. The Mother, on behalf of the parents, has made it clear that she does not understand why J. cannot be in their care and regularly references the state of their home, which is just one of the CAS’s concerns.
Paragraph 11: J. is currently meeting her milestones, however, given her parents’ developmental delays, her development will be closely monitored.
In the SAF, as now, the parties agreed that J. should be found to be in need of protection pursuant to ss.74(2)(b-i) and (g) of the CYFSA.
Mother’s addendum to the SAF clarified that the letter received regarding outstanding rent, referenced in para. 9 above:
a. was not from the landlord but the building owner;
b. set out the amount of arrears as $5,000;
c. included a schedule put in place to pay back the arrears by the Landlord and Tenant Board; and
d. confirmed their rent for the month of December 2018 had been paid.
Mother confirmed that she was advised by the child service worker that J. appeared to be developing normally and had not exhibited any developmental delays at that time.
The Law
A. The Test for Summary Judgment in Child Protection Cases
[22] The Family Law Rules allow for a matter to be resolved without trial by way of a motion for summary judgment. The moving party (CAS) has the burden of proof and shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: see r. 16(4).
[23] In response to the affidavit or other evidence served by the CAS, the responding party may not rest on “mere allegations or denials”, but shall set out specific facts showing that there is a “genuine issue for trial”. If the evidence supports that there is no genuine issue for trial, the court is mandated by r. 16(6) to make a final order: see rr. 16(4)-(4.1)., and (6). In its decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”), the Supreme Court of Canada established a new approach to summary judgment motions, the details of which are described further below. In response to Hryniak, new powers were added under rr. 16(6.1) and (6.2) that permit the court to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial.
[24] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80, the Court of Appeal for Ontario provided the following concise summary of the approach that the court should take to summary judgment within the context of child protection litigation, considering the decision in Hryniak:
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.
The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
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.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
[25] Hyrniak confirmed that the summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make determination. Hyrniak states that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in r.16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
[26] There will be no genuine issue requiring a trial when the 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; (2) allows the judge to apply the law to those facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: see Hryniak, at para. 4.
[27] In child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage rights for a vulnerable segment of our society under the Canadian Charter of Rights and Freedoms. Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings, which apply the objectives of the CYFSA, including the best interests of the child, and which promotes Hryniak’s principle of reaching a fair and just determination on the merits: see Kawartha-Haliburton Children’s Aid Society v. M.W, at para. 76.
[28] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from 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 prospects than existed at the time of the Society’s removal of the child from their care and that they have developed some new ability as a parent: see Children’s Aid Society of Toronto v. R.H. 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.);Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, at para. 98.
[29] Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care but are unable to take the steps to translate their proposals into a plausible reality: see Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737,at para. 7.
[30] The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interest. There is not to be experimentation with a child’s life with the result that, in giving the parents another chance, the child would have one less chance. There must be some demonstrated basis for a determination that the parents are able to parent without endangering his or her safety: see Children’s Aid Society of Toronto v. C.G., , at para. 103.
B. What is the Test on a Status Review Application?
[31] In C.A.S. v. M.W. and M.S, 2020 ONSC 1847, Madsen J. succinctly summarizes the law on status review applications and the treatment of agreed statement of facts as follows:
On a status review, the task of the court is to assess what, if anything, has changed since the making of the prior final order. A status review hearing is not a re-hearing of the original protection application: see para. 51.
A consent order that ends an action is of the same effect as a judgment of a court following a trial or hearing, for the purpose of the doctrine of res judicata: see para. 52.
Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders: see para. 53.
Section 114 of the CYFSA provides that where an application is made for review of a child’s status under section 113, the court may, in the child’s best interests:
a. vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;
b. order that the original order terminate on a specified future date;
c. make a further order or orders under section 101; or
d. make an order under section 102: see para. 73.
- The test on a status review application is as follows:
a. the original order is presumed to be correct. This is not a rehearing of the previous order that was made;
b. the court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection;
c. the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and
d. secondly, the court must consider the best interests of the child. This analysis must be conducted from the child’s perspective: see para. 74.
Best Interests
[32] The factors to be considered in determining the best interests of a child are contained in s. 74(3) of the Act, which provides as follows:
(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.
[33] Sections 101(2) to (4) of the CYFSA obligate the court to consider additional factors when determining the issue of placement, including whether there are any less disruptive alternatives, such as community or extended family placements, and to make enquiries with respect to what efforts the Society has made to assist the child before intervention.
[34] Sections 101 and 102 of the CYFSA provide that 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:
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;
that the child be placed in interim Society care and custody for a specified period not exceeding 12 months;
that the child be placed in extended Society care until the order is terminated under section 116 or expires under section 123;
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; or,
that one or more persons be granted custody of the child, with the consent of the person or persons.
[35] In determining which disposition is in the child’s best interests, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be placed in the care of the Society. In light of the timelines created by the statutory framework, the court has available to it only two options in this case: that the child be returned to the care of her parents (with or without a supervision order); or that an order be made for Extended Society Care.
[36] Sections 105(5) and (6) of the CYFSA provide that a court shall not make or vary an access order with respect to a child who is in the extended care of the Society unless the court is satisfied that the order or variation is in the child’s best interests. In the recent case of Children's Aid Society of Toronto v. J.G., 2020 ONCA 415, the Court of Appeal reiterated the impact of the legislative changes in the CYFSA and the features of an analysis of access in a child’s best interests at paragraph 37:
[37] Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access and making the child’s “best interests” predominant in determining access. As stated by this court in Kawartha and repeated in Peel, the change was not “just semantics” but represented “a significant shift in the approach to access for children in extended care.” Some of the changes to the test for access include:
• The burden is no longer on the person requesting access to demonstrate that their relationship to the child is beneficial and meaningful and in no way will impair the child’s future adoption opportunities.
• When the court undertakes a best interests’ analysis, it assesses whether the relationship is beneficial and meaningful to the child, and considers the potential impairment to future adoption opportunities, but only as part of this assessment and only where relevant.
• There is no longer a “presumption against access” and it is no longer the case that a parent who puts forward no evidence will not gain access.
• While any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests.
Positions of the Parties and the Evidence
[37] The parents are in a stable relationship and clearly love their child. There is no domestic violence in their relationship. There are no outstanding criminal charges, or substance abuse issues.
[38] The CAS agrees that the parents clearly love the child. CAS states that the parents are blameless in terms of the protection concerns. The parents are victims of circumstances that life has dealt to them. The parents do not have capacity to care for this child – the capacity issues are clear and unchallenged. The parents lack understanding of the issues and do not have the ability to resolve them. The parents have not put anything forward to abrogate the findings of Dr. Pound and Dr. Heimpel in her report dated January 12, 2016. The CAS has been clear with the parents that in order to be considered, they have to come up with a 24/7 plan. The CAS states that the parents have become less rather than more connected with the supports.
[39] The CAS further states that the parents have not put forward one piece of evidence other than their own affidavits or intentions. They have not provided a doctor’s report or any independent evidence that the capacity issues that existed at the time of the Order have changed - there is no evidence that anything has changed since the Order.
[40] The parents submit that they have done everything they can to address the protection concerns. They are able and willing to parent the child. They state that the assessments being relied upon by the CAS, namely the Psychological Assessment of Father dated September 6, 2002, completed by Dr. Garratt and supervised by Christina Gray, and the Psychological Assessment Report with respect to Mother dated January 12, 2016, completed by Dr. Pound and Dr. Heimpel, are dated and do not reflect their current capacity and that despite their request, CAS has refused to pay for a parenting capacity assessment.
[41] Father points out that with respect to the psychological assessment done between June – September 2002 – it is 17 years old and that it does not reflect his current situation and abilities. He points to the fact that he has maintained steady employment and has obtained his driver’s license.
[42] The Parent’s plan is that Mother will remain home on a full- time basis to care for the child. If it was recommended that the child be in daycare, the Parents would agree. The Father would be home in the evenings after work and on weekends to assist the Mother in caring for the child. The Mother will continue to receive ODSP and Father will continue to work full time. They would apply for the Child Tax Benefit and any other assistance available.
[43] The parents state that they have gained strengths since the last order that reduce the capacity concerns. Those strengths are summarized as follows:
The parents have cleaned and decluttered their home.
The parents have a playpen, toys, a stroller and car seat for the child and would be able to buy a bed for her.
The parents have purchased a new cat.
Both cats have been declawed. All three pets have been spayed or neutered.
The parents have applied for subsidized housing.
The parents have been deemed incapable by the Public Guardian and Trustee’s (“PGT”) office to manage their own financial affairs. The PGT now manages their financial affairs. The parents submit that as a result of this their finances are now stable: see Assessment Report completed by Janice Woynarski MSW RN re: Mother dated December 21, 2018, Tab 1 and Letters to parents from the Office of the Public Guardian and Trustee Tab 2 of the Document Brief for Summary Judgment.
The parents have completed an 8-week parenting program called Make the Connection. The child was present during group.
The Mother has resolved her peace bond dispute with her stepmother and father.
Capacity to Parent
[44] The Parents state that they can take care of themselves and provide for their immediate day to day needs, that they function in the community, use transportation systems and attend appointments and meetings with persons such as doctors and other people that they would have to see if the child is placed with them. Mother has also noted that she has the capacity to instruct her lawyer.
[45] The evidence before the court as to the parents’ daily living skills, overall intelligence and overall socialization skills remains unchanged from the date of the Order. The only change is that the parents have been deemed incapable of managing their financial affairs.
[46] Despite the parents’ statements that they have the capacity to parent J., they have not provided any evidence in support of these statements. The only new report before the court since the Order is the Assessment Report completed by the Ministry of the Attorney General regarding Mother and her inability to manage her financial affairs. I am told that the same report was completed for Father with the same result. Although a copy of Father’s report is not before the court, the letters from the Ministry of the Attorney General confirm that the same determination was made regarding Father.
[47] Although the parents may well have been unable to afford a parenting capacity assessment, they have not produced any report or provided any file from their doctor(s) that would allow this court to make a determination other than that their capacity remains unchanged from the date of the Order.
[48] The parents have not put forth any evidence that their capacity to parent has changed. They have had over a year (given the suspension of normal court operations) to do so. They have not produced any independent report from a doctor or anyone in a position to determine capacity. It should be noted that they had an assessment done through the Ministry of the Attorney General for Ontario to assess their capacity to manage property. The document is found at Tab 1 of the document brief. On the face of the document it appears that the Ministry could have been asked to assess personal care issues, but it was not.
[49] Accordingly, the court must examine whether the parents have put in place sufficient supports to negate the protection concerns.
Supports
[50] Mother makes a general statement that by placing the child in the care of the parents, the child will have contact with extended family on both sides and would be raised knowing her heritage, culture and background. No specifics are provided with respect to the child’s heritage, culture or background. Furthermore, the evidence is that neither parent’s extended family has access with the child nor are they prepared to play an active role in assisting the parties. In fact, the evidence, while hearsay, indicates that the extended family does not support the parents’ plan. There is no evidence before me of the extended families’ involvement and there have been efforts to engage kin to no success.
[51] Although Mother’s father and stepmother live in the same building, they have had interpersonal difficulties in the past. Some of those difficulties were resolved by a peace bond. Mother states she has contact with her father, but not at his apartment, and she does not invite him nor her stepmother into her apartment.
[52] Although the SAF indicates that Father’s family is supportive of him, the evidence from Ms. Morphet in her affidavit sworn September 29, 2019 is that the relationship between Father and his family has deteriorated since he started dating Mother. Neither parent disputes this.
[53] Mother states that she is not aware of specific statements made by family, friends or community supports that do not support their parenting.
[54] The parents did not provide any affidavits from the extended family. The parents have not provided anything that indicates the family has changed its position as set out in paragraph 7 of the SAF. If the parents had the support of the extended family, especially given the clear concerns of the Society regarding 24/7 supervision, the Order and the SAF, they should have put this evidence before the court. There is no evidence that extended family would actively participate in supporting these struggling parents to care independently for the child.
[55] The Mother cites supports including:
(a) L.J., a friend who was also involved with the Mother through Extend-A- Family. They see each other during the week and meet for coffee.- L.J. has her own child and they exchange information about raising children – she could provide helpful advice.
(b) J.A. (one-to-one worker through Extend-A-Family) – they meet during the month and J.A. takes her out to do activities in the community;
(c) K.H. (support worker from Extend-a-Family for approximately the last five years), who speaks to the Mother by phone at least once per week to check in.;
[56] Pursuant to the SAF, statement was made about “support persons” and that “these persons do not in fact feel that the parents have the capacity to parent”.
[57] K.H swore an affidavit on September 24, 2019 in these proceedings outlining the type of support she provides to the Mother. The final paragraph of that affidavit states: “As situations arise [Mother] typically reaches out for support. We meet regularly for coffee and check in via phone and email as needed. In summary, my role with [Mother] includes supporting her and offering guidance in her decision-making around daily living as well as more serious things that arise in her life, however decisions that are made are ultimately [Mother]’s choice.” There is no indication in this affidavit that K.H can or will provide the kind of hands-on, day-to-day support required for this challenged family to function independently.
[58] Furthermore, since learning of Mother’s pregnancy, Ms. Morphet spoke with K.H., L.J. and T.H., Mother’s foster mother, all of whom stated they would support Mother throughout her pregnancy, but none of whom approve of or support the parents parenting independently without constant supervision. Ms. Morphet also spoke with L.J. on April 29, 2020, who expressed to Ms. Morphet that she has been clear with Mother that she supports a plan of adoption for the child. Although this too is hearsay, and it would be preferable for CAS to obtain direct affidavits from witnesses upon whose evidence it seeks to rely, I accept Ms. Morphet’s evidence on this point to refute Mother’s contention that any of these persons support her parenting a child.
[59] As noted above, there are no affidavits from any of the other supports that the parents have identified in their own affidavits. In order for the parents to put their best foot forward, they should have obtained affidavits from these persons.
[60] Mother states she is open to receiving outside supports from the CAS and does not have an issue with persons who want to support them coming to their home to assist them or checking up on how things are going. However, Mother does not want support persons living in their home on a full-time basis.
[61] During a Zoom meeting on June 18, 2020, with Ms. Morphet, both parents, L.J. and K.H., the parents advised that Father’s employer’s wife would come stay with them for two weeks and that Father’s employer had previously offered to pay for someone to come stay with them after that two-week period of time.
[62] Ms. Morphet spoke to the Father’s employer on July 14, 2020, who advised that his wife had declined to stay with the couple. He further advised that neither he nor his wife had ever offered this support, nor would they be willing to help by staying with the couple or providing financial assistance.
[63] The parents admit that neither the Father’s employer nor his wife will provide parenting support.
Findings
[64] The parents have developmental delays which affect their reasoning skills and their ability to gain the knowledge required to parent J. through her changing developmental states.
[65] Through no fault of their own, the parents continue to struggle to manage their own day- to-day lives without the assistance from support agencies.
[66] Since the Order was made, there has been no information provided to suggest that the parents’ capacity to parent has changed.
[67] The parents cannot independently parent without supports in place.
[68] The parents’ family members are either unwilling or unable to provide assistance.
[69] There are no external or other appropriate supports in place for the level of supervision that is required to safely parent J. and to mitigate the risk.
[70] Although the parents should be commended for the improvements they have made and the efforts they have taken, they do not address the underlying protection concern, which is fundamentally that the parents to do not have the capacity to care for the child alone, and that they do not have the supports in place to adequately protect the child.
[71] Having considered the evidence before me, I find that it is in the interests of justice that this issue be resolved summarily. In all of the circumstances, I find that the CAS has met its burden of proof and that there is no genuine issue for trial.
[72] I find that I am able to make the necessary findings of fact and apply the law to the facts, and that such an approach is a proportionate, more expeditious, and less expensive means to achieve a just result.
[73] I find that the evidentiary record is sufficiently comprehensive on this aspect of the case for me to make a fair and just determination of the issues on the merits without the need for a trial.
[74] Given the length of time the child has been in Society care, 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.
[75] The evidence satisfies me, on a balance of probabilities, that: (1) intervention is required to protect the child both at the present time and for the foreseeable future; (2) that an order placing the child in the care of her parents could not adequately protect her, even with terms of supervision; and (3) that an order placing the child in the extended care of the Society would be a foregone conclusion if this matter were to proceed to trial.
[76] Despite the love the parents feel for the child, the court cannot put the child’s life on hold.
[77] I have considered the best interests factors set out in s. 74(3) and make the following findings:
(a) the child is too young to ascertain her views and wishes;
(b) the child is not a First Nations, Inuk or Métis child.
(c) Any other relevant circumstances:
i. there is no evidence that the child has special needs - having said that, the Father and at least one sibling suffer from a genetic condition and the evidence does not set out when that genetic condition was diagnosed;
ii. there is a newborn sibling who has been apprehended at birth and there has been no disposition regarding this child. Accordingly, this fact does not bear on my decision;
iii. there are no specific considerations regarding J.’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression. I have no evidence regarding the child’s cultural and linguistic heritage;
iv. the CAS proposes that the child be placed for adoption or adopted. This plan will be beneficial for the child, as she will be able to form bonds (or continue to form bonds) with a family who can provide a safe and nurturing environment;
v. delay in the disposition of this case will have a negative impact on the child. It is in her best interests to be adopted as soon as possible so that she can form bonds (or continue to form bonds) with a family while young;
vi. there is a real and significant risk that the child may suffer harm if she is returned to the care of her parents;
vii. the child is over two years old and has never been in the care of her birth parents but for 16 days or so. She requires stability and the opportunity to bond (or continue to bond) with a family. At her young age, her physical, mental and emotional level of development require stability; and
viii. J. is a young and vulnerable child who has spent most of her life in the care of a child protection agency. She requires a stable, reliable and committed caregiver who can provide her with a safe, secure and permanent home.
[78] There are additional considerations when considering summary judgment motions in the context of child protection cases. These include the nature of the evidence, the mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved and particularly how material the facts in issue are to the case. In addition, the analysis must be undertaken with a view to the paramount purpose of the legislation, which is to promote the best interests, protection and well-being of children. Specifically, summary judgment can be used as a procedural remedy to promote the child’s best interests and to support the time limitations established by the legislation: see: Children’s Aid Society of Waterloo (Regional Municipality) v. C.A.D., 2011 ONCA 684, [LG1] at para. 5; Children’s Aid Society of Algoma v. A.K., 2015 ONSC 6166, at para. 35.
[79] Granting summary judgment allows the court to meet the obligations of the legislation.
[80] I have considered that I should exercise considerable caution before proceeding on a summary basis on a child protection case, particularly with respect to evidentiary issues. In making my decision, it has not been necessary for me to rely on the documents that the parents submit are hearsay. I recognize and have considered that in child protection proceedings, there are Charter implications at stake for vulnerable litigants. I find that it is in the interest of justice for the court to determine this case summarily. This 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 the dispute.
[81] Having determined that intervention is required and that it is not in the child’s best interests to be placed in the care of the parents, and having no other less intrusive options available, I find that the child’s best interests require an order placing her in the extended care of the Society. I must now determine the issue of access.
C. What Considerations Apply in Determining Whether Parents Should Have a Right of Access Following a Determination of Extended Society Care?
[82] As noted previously, when a child is placed into the extended care of the Society, any existing order for access to the child is terminated. The Society is seeking an order that there be no future access between the child and the parents.
[83] The Court of Appeal for Ontario has recently considered the issue in Children’s Aid Society of Toronto v. J. G., 2020 ONCA 415, 41 R.F.L. (8th) 1, which was released on June 25, 2020.
[84] In this decision, Benotto JJ.A. made it clear when the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) was replaced with the CYFSA, one of the legislative aims was to import a broad best interest’ analysis into the determination of access: see para. 18. The previous test was replaced with a holistic consideration of the child’s best interests, as set out in ss. 105(5) and (6) of the CYFSA. Pursuant to s. 74(3) of the CYFSA, “best interests of a child” is a defined term that encompasses a very wide range of considerations. The provision lays out 15 enumerated considerations, and also direct the court to consider “any other circumstance of the case that the person [deciding the case] considers relevant.”
[85] After setting out the new statutory test for access to the child in extended Society care, at para. 37, Benotto JJ.A. refers to her previous decision in in Kawartha Haliburton Children’s Aid Society v. M.W., at para. 49.
The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interest’s analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interest’s analysis is comprehensive.
[86] Writing for a unanimous court, Benotto JJ.A. made it clear that the CYFSA changed the criteria for access by removing the presumption against access and making the child’s best interest paramount. This change was not just semantics but represented a significant shift in the approach to access for children in extended care: (paragraph 37).
[87] She went on to state that the “beneficial and meaningful” test is not a separate precondition. Instead, it is a consideration within the context of the child’s best interests. A child’s best interests are not static, and the possibility of positive future relationships can be considered. As indicated at paras. 50-55, when a child has significant medical issues, the court may consider whether the child could benefit from access to their biological parents. Ultimately, a child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors: see para. 63. The court should consider all factors whether they be past, present or future, and this can include future medical issues.
[88] The Court of Appeal clarifies that access can come in many forms that depart from in-person visits including the exchange of emails, gifts, video chats or phone calls: see para. 64.
Evidence with Respect to Access
[89] All parties asked me to determine the issue of access based on the evidence before me.
[90] The CAS admits that with respect to the issue of access, there is more potential for a grey area, in that access is pleasant and enjoyable for the child. The CAS submits the child is well bonded in her current placement, and admits there is a gap in evidence as to how an access order would impair adoption. It urges me to determine access as part of this motion and requests that I make a no access order.
[91] Both parents seek access to the child.
[92] The CAS did not lead any evidence as to how, if at all, an access order would affect adoption prospects. It led no evidence that the foster parents, who might put forward a plan to adopt J. would be dissuaded from doing so because of an access order.
[93] Between January and June 2019, access visits were in the parents’ home. In addition, there was a Christmas access visit in 2018 and a birthday access visit with the child in 2019. It was noted that during these visits, Father was very affectionate with the child and demonstrated a genuine connection and interest during the time he had her. Mother was described as lacking emotional connection.
[94] From October 2019 to January 2020, the parents visited with the child every Friday from 9:30 a.m. to 11:30 a.m. at the Early Years Centre.
[95] In January 2020, visits changed to alternate weeks on Fridays from 9:30 a.m. to 11:30 a.m.
[96] During the months of March – July 2020, as a result of the pandemic, all face to face visits were put on hold and instead occurred virtually twice per week, namely on Wednesdays and Fridays of each week for approximately 15 minutes. Mother attended both days and Father attended on Friday. The parents participated regularly, with the exception of missing a few calls. These visits were short in duration given the child’s age and attention span.
[97] Beginning July 31, 2020, face-to-face visits between the parents and the child resumed weekly from 9:30 a.m. to 10:45 a.m., with the following two exceptions: the August 7, 2020, visit did not occur because the foster parents were on vacation with the child, and the August 14, 2020, visit did not occur because Father was not feeling well.
[98] The parents had another child in September 2020. That child is the subject matter of a different CAS proceeding.
[99] Access has been positive.
[100] Father states that he and Mother want more visits with the child. Ms. Morphet, in her affidavit of March 11, 2020, states “[a]t no time during this discussion or any other time since then have the parents communicated to me that they want more access or requested to resume weekly visits”. I accept Ms. Morphet’s evidence.
[101] Brian Allison, a Children’s Services Resource Worker, who has been the child’s worker since May 15, 2018, and who has supervised many of the access visits between child and parents, observed the following as set out in his two affidavits:
(i) The child consistently cried when initially separated from her foster mother, but would typically settle within 5 minutes;
(ii) The child would consistently smile when the foster mother returned to pick her up;
(iii) The child did not overtly demonstrate any emotions when separating from the parents;
(iv) There was a visit on February 20, 2019, when Mother elected to end the visit early;
(v) The child seemed content during supported family visits with her parents and she rarely cried;
(vi) He had to assist Mother in focusing on the visit as she would typically want to converse with him;
(vii) The parents were able to provide basic care;
(viii) He had a conversation with Mother on September 6, 2019, that suggested she did not understand child’s physical development changes and her ability to engage in different sitting positions;
(ix) There were missed visits that he was required to supervise on December 13, 2019, and January 3, 2020. He was advised by Ms. Morphet that both visits were cancelled at Mother’s request; and
(x) He had a conversation with Mother about creating a Facebook page about the child and posting pictures on this public social media site. Mother told him Ms. Morphet had given her permission and when he advised Mother that he had spoken to Ms. Morphet who confirmed that this was untrue, Mother responded that her lawyer gave her permission. Mother was upset, and advised him that she would speak to her lawyer and later that day the name of the Facebook page was changed but the images of the child had not yet been removed.
[102] Jason Graham, a Protection Worker who has been assigned to this family since September 11, 2018, and whose stated primary role is to ensure that parents and their child(ren) have safe and positive visits and to ensure that parents are given the opportunity to continue and or build on their parent/child relationship and who, when necessary, assists parents with education, safety and support with their children, deposed as follows:
(i) During the first visit, Mother took the lead and gave Father direction;
(ii) Mother had difficulty in the first visit focusing on the child’s needs for prolonged periods and would often engage Mr. Graham in conversations around the child’s care in the foster home – this theme continued during many of the access visits;
(iii) During a visit with the child and dad alone the child was observed as happy and content and laughed and smiled and spoke a lot to Father;
(iv) The child is content and happy during access – she laughs and interacts with her parents;
(v) The parents’ complete tasks at specific times and get derailed if, for example, the child is not ready to eat or have her diaper changed;
(vi) Direction needed to be provided to the parents with respect to the child’s needs, including her cold, her crawling up and down the hallways of the apartment building, and her hygiene;
(vii) He provided suggestions for changes to the home to make the home more child friendly and remove any safety hazards; and
(viii) He reinforced age and stage of development and noted that the parents’ choice of videos and music was not age appropriate and that applesauce was not an appropriate lunch.
[103] Ms. Morphet, in her affidavits dated September 23, 2019, and her affidavits dated February 13, 2020, states the following based on her supervision of access:
(i) The parents were able to provide instrumental care to the child, e.g. diaper changes and feeding, as per the instructions of the foster parent or supervisor;
(ii) Father is very affectionate towards the child and demonstrated a genuine connection and interest during the time he had with her;
(iii) There appears to be a lack of emotional connection and affection between Mother and the child;
(iv) Mother is more interested in interacting with whomever else is in the room;
(v) The parents were, for the most part, able to provide solid food, but needed reminders about making sure the child had enough to eat;
(vi) The visits were moved to an Early Learning Centre in July 2019 when it became clear that the parents’ home was no longer suitable as it lacked toys and the requisite baby items as the child’s needs developed. The supervisors had to redirect the child away from areas that were not clean enough or when she got near things she should not get into;
(vii) The parents have consistently attended their visits on time;
(viii) The parents have never asked for more visits;
(ix) Father takes the lead in interacting with the child. Mother is focused on conversations with the worker;
(x) An email is attached from the foster mother setting out her concerns regarding access. I have not relied on that email in reaching my decision as it is neither a sworn document nor a business record;
(xi) Between October 2019 and early January 2020, a number of visits were cancelled by the parents (two in October two in November one in December and two in January). The explanation given to Ms. Morphet by Mother is that the parents did not want to attend the Centre when they were ill. They did not request make-up visits;
(xii) The visit scheduled for March 6, 2020, was cancelled by Mother. This led to the parents going a month without seeing the child;
(xiii) On October 25, 2019, Mother requested that visits be every two weeks. Ms. Morphet states that Mother advised her that Father was having to work alternate Fridays and that when offered individual visits, Mother said she did not wish to attend on her own. Mother also told Ms. Morphet that weekly visits is too much for the child because the child experiences the “Friday blues” like Mother. Although Mother disputes the statement it is consistent with paragraph 9 of the SAF;
(xiv) Mother created a Facebook profile for the child, including her first and last name and pictures of her with no privacy settings. Mother’s former foster mother, T.H., confronted Mother about this. Mother told T.H. that Ms. Morphet had provided permission. Ms. Morphet denies this. The Mother did remove the profile;
(xv) The CAS discovered that Mother was pregnant again in early January 2020 as a result of a post on Mother’s public Facebook account. Mother advised the CAS that the post was incorrect and that she had corrected it. Mother repeatedly denied being pregnant and only admitted this on February 10, 2020;
(xvi) Mother is unable to take information given to her or integrate learning from past experiences (e.g. suggesting that Father’s brother return to live with them); and
(xvii) Mother lacks understanding of the protection concerns.
[104] The parents said very little about access.
[105] The Mother stated that the child “appears comfortable in our care”. The Mother denies being inattentive or having struggles during access. She submits that her personality and that of Father are different but complimentary. Mother asserts that access is a real benefit to J. and in her best interests.
[106] The Father provided an explanation for missed visits. In his affidavit sworn March 6, 2020 he advised that he and Mother wanted more visits with the child. This was the first time the parents communicated this to CAS.
[107] The court has considered the best interest factors set out in subsection 74(3) of the CYFSA as follows: (a) the child is too young for the court to be able to ascertain her views and preferences (b) an access order is unlikely to interfere with the child’s physical, mental or emotional needs. Having her parents play a small role in her life may actually help meet her mental or emotional needs – helping her develop a deeper understanding of her identity (c) an access order is unlikely to interfere with the child’s physical, mental or emotional development. In fact, contact with her parents may assist in obtaining her medical and family history, if needed, to aid her development (d) an access order is unlikely to affect the child’s continuity of care and (e) any risk of harm can be met through an order that allows the form of the access to be at the discretion of CAS.
[108] Based on the evidence that has been presented and considering the factors set out in s. 74(3) of the CYFSA, I find that the parents should have a right of access to the child. Access has been positive, and for the most part consistent. The following factors further support an order to this effect: the child is happy to see her parents and is bonded to her Father, the child has had access with her parents since birth, the Father suffers from a medical condition and the child will benefit from understanding it in the future, and there is no evidence before me that in ordering access the child’s adoption prospects will be impaired.
Orders Granted
[109] This court orders the following:
- An order for summary judgment pursuant to Rule 16 for the following:
a. the name and date of the birth child is J. [redacted for publication - counsel to insert name in Order];
b. J. is not a First Nations, Inuk or Métis child;
c. the location from which J. was removed is the Waterloo Region; and
d. J. is in need of protection pursuant to section 74(2)(b-i) and (g) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1.
J., is placed in extended Society care, until the extended Society care is terminated under section 114 or expires under subsection 123, and is placed in the care of the Children’s Aid Society of the Regional Municipality of Waterloo.
There shall be a right of access to the child, J., by Mother in the form and at the discretion of CAS and supervised as deemed necessary by CAS.
There shall be a right of access to the child, J., by Father in the form and at the discretion of CAS and supervised as deemed necessary by CAS.
If costs are an issue, the parties can arrange a further attendance before me within the next 30 days to make submissions regarding costs.
D. Piccoli J.
Date: October 15, 2020
[LG1]The Style Guide notes that you only need a parallel citation if the case was cited in an official/ semi-official reporter.