COURT FILE NO.: FC-20-CP32

DATE: 2020/10/19

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF I.R.B., born [...], 2006

Pamela Barron, for the Child, I.R.B.

BETWEEN:

The Children’s Aid Society of Ottawa Applicant

– and –

K.B., and M.B. Respondents

Ben-David Ulster, for the Applicant

Cheryl Hess, for the Respondent Mother, K.B.

Respondent Father, M.B., Self-represented

HEARD: October 16, 2020

REASONS FOR JUDGMENT

Justice Engelking

[1] The Children’s Aid Society of Ottawa (hereinafter referred to as “the Society” or “the CAS”) has brought a Summary Judgment Motion pursuant to Rule 16 of the Family Law Rules[^1] seeking a finding that the child I.R.B., born [...], 2006, is in need of protection and placing her in the custody of her maternal aunt, K.C., pursuant to Section 102(2) of the Child, Youth and Family Services Act[^2] (hereinafter referred to as the “CYFSA” or “the Act”).

[2] The child’s mother, K.B. opposes the motion. The child’s father, M.B. is in support of the Society’s motion and consents to the order being requested. The child, I.R.B. is in support of the Society’s motion and consents to the order. The maternal aunt, K.C., through her affidavit filed in the proceeding, agrees with the order being sought.

[3] In support of its motion, the Society relies upon the following materials:

1. The Amended Protection Application for I.R.B. dated August 31, 2020;
2. Affidavit of Grace Graves sworn June 9, 2020;
3. Affidavit of Grace Graves sworn August 31, 2020;
4. Affidavit of Grace Graves sworn October 2, 2020; and,
5. Affidavit of K.C. sworn October 2, 2020.

[4] In defence of the motion, Ms. B. relies upon her affidavit sworn on October 8, 2020.

[5] Mr. B. did not file any materials for the motion but relies on those filed by the Society.

Background Facts

[6] I.R.B. had been in the care of her mother from her birth until on or about March 12/13, 2020 when Ms. B. appears to have suffered a mental health breakdown. Ms. B.’s evidence is that she was the primary parent to I.R.B. during her relationship with Mr. B. and has been her sole custodial parent since the parties entered into a separation agreement in or about 2015. When the CAS became involved with the family in March of 2020, I.R.B. had not been having contact with her father, Mr. B. for some time. It is unclear from the materials as to the reason for that. The mother alleges that Mr. B. was not interested in seeing I.R.B.; the Society’s materials seem to suggest that I.R.B. may have been negatively influenced by Ms. B. in relation to her father.

[7] The Society had three file openings with the family prior to March 2020. One was a community link and two were protection involvements. The first protection involvement was in 2014/2015 at the time of the parties’ separation regarding concerns of adult conflict, Ms. B.’s use of inappropriate discipline and reports of Mr. B.’s anger. The file remained open in ongoing services for some time. The second protection involvement was in November of 2018 when Ms. B. experienced mental health issues, including a brief period of hospitalization. Ms. B’s evidence is that this occurred in November of 2017, not 2018 as stated by the Society.

[8] Regardless, on March 12, 2020, the Society received a referral from the Ottawa Police Service (“OPS”), who had been called by I.R.B., regarding Ms. B.’s presentation, and a secondary call from a Dr. Wheatherhead of the Queensway Carleton Hospital Emergency Department, who reported that Ms. B. was brought to the hospital under a Form 1 under the Mental Health Act[^3]. Ms. B. was released on the same day and returned home.

[9] On March 13, 2020, I.R.B., Child Protection Worker (hereinafter referred to a “CPW”) Grace Graves and a male neighbour of Ms. B. encountered her in at her home. Ms. Graves described the encounter at paragraph 26 of her affidavit sworn on June 9, 2020 as follows:

26. On March 13, 2020, I., this Society worker and a male neighbour found Ms. B. in a state of complete undress in the living room. Ms. B. was unconcerned about her state and was not coherent. She made statements such as “I’m blind” and “I can only see blue eyes”. She described a man with a patch over his eye stating that he was also in the room. She repeatedly pointed at sections of the wall and said that man she was describing was standing there. It was evident that her mental health had declined and [she] was transported by paramedics back to the Queensway Carleton Hospital.

[10] Both on March 12 and March 13, 2020, I.R.B. was receiving care from two different neighbours of Ms. B., the Ross and the Herman families. Ms. Herman, however, was in touch with Ms. B.’ sister, Ms. K.C., who resides in Montana, USA. In fact, upon witnessing Ms. B.’s state on March 12, 2020, I.R.B. had first called Ms. K.C., who instructed her to go to a neighbour’s home and call the police. Ms. K.C. travelled to Canada on an urgent basis on March 14, 2020 to provide care to I.R.B. Ms. K.C. committed to staying and caring for I.R.B. as long as was required, or as long as her employment in the United States and her status as a visitor to Canada permitted.

[11] Ms. K.C. commenced caring for I.R.B. on March 14, 2020 in the home of Ms. B. According to her affidavit sworn on October 2, 2020, Ms. K.C. observed the home to be extremely cluttered. It was apparent to her that “Ms. B. had engaged in extreme hoarding.”[^4] Ms. K.C., I.R.B. and Ms. Herman worked on decluttering the home in an effort to reduce I.R.B.’s expressed anxiety over it. Ms. K.C. could only do so much in this regard, however, without the consent of Ms. B. to remove or donate the accumulated items.

[12] Ms. K.C. encouraged I.R.B. to openly discuss the issues that were distressing her, and I.R.B. shared her feelings and her perspective of what had happened or was happening between her and her mother with Ms. K.C. According to Ms. K.C., I.R.B. “expressed a lot of anger and fear towards her mother.”[^5] I.R.B. shared numerous things with Ms. K.C., which included: 1) Ms. B. yelling at her and not permitting her to walk away from an argument[^6]; 2) Ms. B. accusing her of losing items or not putting them in the correct location[^7]; 3) Ms. B. hoarding and spending money on unworn new clothes for herself while not providing for her basic needs or interests[^8]; 4) Ms. B. not getting out of bed to care for her for approximately one year[^9]; 5) Ms. B. treating her like a child much younger than 13[^10]; and 6) Ms. B. not affording her any privacy in her own bedroom or the bathroom[^11]. I.R.B. reported many of these same concerns (and others) to CPW Graves in a private virtual visit with her on April 16, 2020.[^12]

[13] Upon her arrival in Ottawa, Ms. K.C. connected with staff at I.R.B.’s school, Sacred Heart High School, particularly her resource counselor, David Hannah and her Vice-Principal, Alanna Vanderwint, and she assisted I.R.B. with her homework. In May of 2020, Ms. K.C. also identified an appropriate counsellor for I.R.B., Ms. Barb Juett, who has been providing I.R.B. with counseling and therapeutic support ever since.

[14] On April 28, 2020, CPW Graves took I.R.B. for a “supported visit” with Ms. B. at the hospital. According to Ms. Graves, I.R.B. left the meeting after challenging her mother for not being truthful about what happened on March 13, 2020.[^13] At this visit, Ms. B. informed Ms. Graves that she would not leave the hospital prematurely, which was an expressed concern of I.R.B.[^14]

[15] On April 30, 2020, Ms. Graves received a letter that I.R.B. wrote to Ms. B., ostensibly at the suggestion of the Queensway Carleton Hospital Social Worker, Ms. Lisa Tareen, outlining her experiences, worries and concerns.[^15] A copy of the letter is attached as Exhibit “A” to the affidavit of Ms. Graves sworn on June 9, 2020; in it, I.R.B. expresses directly to Ms. B., in a very heartfelt way, the same concerns she had shared with her aunt and with Ms. Graves previously. In the first paragraph of the letter, I.R.B. expresses particular concern about Ms. B. leaving the hospital before she is ready, by saying:

When you want to get out of the hospital before you’re ready to be with me, you wants [sic] to help but it doesn’t it makes me feel worse and disappointed. I feel very nervous and anxious about you coming home too early. I am really worried you are going to not be yourself and that you’re going to get worse again and we will have to call 911 again to take you to hospital. You sounded weird and not yourself again on the phone the other day and I don’t think you are all the way better. You have been very confused for about a year now and it makes me very upset and anxious…

[16] On May 26, 2020, Ms. Graves, I.R.B. and Ms. K.C. met with Ms. B. along with an unidentified hospital staff person. At this meeting, Ms. B. was expressing thoughts about leaving the hospital and Ms. Graves indicated to her that being well enough to leave the hospital did not necessarily mean she would be well enough to resume parenting I.R.B.

[17] On June 1, 2020, Ms. B. was transferred to the Royal Ottawa Hospital (hereinafter referred to as the “ROH”). On June 2, 2020, Ms. B. left the ROH. The Society contends that Ms. B. signed herself out of the ROH contrary to medical advice and referred to her departure as “premature”. However, no medical evidence was proffered to support this assertion. Ms. B. deposes that she did not discharge herself against medical advice; rather, her understanding was that she was discharged and able to leave. Like much of the Society’s evidence in this motion, the hearsay upon which it seeks to rely in this regard is not trial worthy, and I do not admit it for the truth of its contents.

[18] Upon hearing of Ms. B.’s discharge from hospital (medically sanctioned or not), Ms. K.C. sent I.R.B. to the home of a neighbour as she was exhibiting distress about Ms. B.’s unexpected return to the home. Ms. K.C. describes Ms. B.’s behaviour as “argumentative, irrational, and delusional” upon her arrival at the home. Ms. K.C. and I.R.B. relocated to a hotel, as according to Ms. K.C., Ms. B. did not want Ms. K.C. in her home. Ms. B. denied that she forced Ms. K.C. to leave the home, although the references in her affidavit sworn on October 8, 2020 to her going to hotels and Airbnb’s appear to be after her second release from hospital on June 29, 2020, not between June 2 and June 11, 2020. Regardless, I.R.B. remained in the care of Ms. K.C. In Ms. K.C.’s view, I.R.B. was profoundly affected by these events (Ms. B. leaving the hospital before she was well, not permitting Ms. K.C. to remain in her home and requesting that I.R.B. be placed with a neighbour rather than remain with her aunt), and that her trust in Ms. B’s ability to provide her a safe and loving home was also affected.[^16]

[19] On June 5, 2020, I.R.B. confirmed to Ms. Graves that she preferred to remain in the care of Ms. K.C. (rather than being placed with a neighbour as her mother was suggesting) and the Society removed her to a Place of Safety, placed her in the care of her aunt and brought a Protection Application seeking an order placing I.R.B. in the care and custody of Ms. K.C. for a period of six months subject to the supervision of the Society on certain terms and conditions. On June 10, 2020, Justice Audet granted a temporary without prejudice order placing I.R.B. with Ms. K.C. subject to the supervision of the Society, which order was confirmed on June 12, 2020 after Ms. B. was able to obtain legal advice.

[20] On June 11, 2020, Ms. B. was returned to the Queensway Carleton Hospital under a Form 2, after which Ms. K.C. and I.R.B. were able to return home. Ms. B. remained in the hospital until her discharge on June 29, 2020. Upon her discharge, Ms. B. lived elsewhere while Ms. K.C. and I.R.B. remained in the family home. During this second period of hospitalization of Ms. B., I.R.B. continued to exhibit anxiety and distress and made the decision to cease all contact with Ms. B., a decision to which she has steadfastly adhered ever since.

[21] In the interim, on June 3, 2020, Mr. B. contacted Ms. Graves to discuss re-establishing contact with I.R.B. He was supportive of the reintegration of I.R.B. into his life being gradual and with the support of Ms. K.C. and a counsellor, if necessary. Mr. B. was supportive of I.R.B. remaining in Ms. K.C.’s care for the foreseeable future. Some contact commenced between Mr. B and I.R.C.

[22] Ms. K.C. is employed as a contract writer/editor for the United States Land Management Bureau, through the Sanborn Map Company. She was working remotely from Canada while caring for I.R.B. but was becoming at risk of losing her employment contract in the United States if she did not return to American soil. Ms. K.C. was required to return to the United States for a brief period and a plan was developed for I.R.B. to be placed temporarily with Mr. B. while Ms. K.C. travelled back to the United States for 10 days. On July 23, 2020, Justice Audet granted a temporary without prejudice order placing I.R.B. in the care and custody of her father. Ms. B. agreed not to be in contact with I.R.B. during this period unless requested by the child, and not to attend her home.

[23] Unfortunately, the placement with Mr. B. did not last beyond a few days, and I.R.B. went to stay with friends pending the return of Ms. K.C. at the end of August. Ms. K.C. resumed care of I.R.B. but was only permitted to stay in Canada for a further two weeks without facing termination of her position in the United States. The matter was back in court on August 31, 2020. On that same date, the CAS of Ottawa amended its Protection Application to one seeking an order of custody to Ms. K.C. of I.R.B. as the plan had evolved to one of I.R.B., who is a dual Canadian/American citizen, living with Ms. K.C. in the United States. Ms. K.C. was hoping that the matter would be resolved on August 31, 2020 as she was going to be required to return to the United States forthwith and wanted I.R.B. to return with her. Mr. B. was agreeable to that plan, but Ms. B. was not. The matter was, therefore, scheduled to this hearing. Unfortunately, Ms. K.C. was required to return to the United States on September 13, 2020 and I.R.B. was placed in a foster home in Ottawa pending the outcome of this hearing. Ms. K.C. and I.R.B. have maintained daily contact since Ms. K.C. returned to Montana.

Ms. K.C.’s Plan for I.R.B.

[24] As has been indicated, Ms. K.C. cared for I.R.B. continuously for approximately five months, from March 14, 2020 to August 3, 2020, and again for two weeks in late August, early September.

[25] Ms. K.C. currently resides in Helena, Montana. She is employed as set out in paragraph 22 above. Ms. K.C. and her husband live in a two-bedroom mobile home they purchased with the intent to save money, purchase land and build a home. They are, however, considering renting a larger, three-bedroom home in a neighbourhood closer to the school where I.R.B. will eventually attend.

[26] Ms. K.C. intends for I.R.B. to continue to attend Sacred Heart High School virtually until she can transition to a school in Helena. Ms. K.C. has confirmed that the state of Montana acknowledges Ontario’s educational accreditations and that I.R.B. will be able to continue her IEP in Montana. Ms. K. C. has also located an online Quebecois-French program based out of Ottawa to study French. Ms. K.C. has ensured that I.R.B.’s education in Montana will equip her for a Canadian university or to return to Sacred Heart High School, if appropriate.

[27] Ms. K.C. is prepared to provide care to I.R.B. and to promote reasonable contact by her with Ms. B. and Mr. B. in keeping with her best interests and expressed views and preferences. She is prepared to have I.R.B. return to Canada to the care of one of her parents if that is later deemed to be in her best interests or her stated wishes.

[28] Ms. K.C. wishes for I.R.B. to be removed from foster care and placed in her custody as soon as possible. She is prepared to care for and meet all of I.R.B.’s needs, including potentially to engage in counselling with Ms. B. to address their issues at an appropriate time. In short, it causes Ms. K.C. great pain to see I.R.B. in limbo in foster care when she has a warm and loving home awaiting her.

Position of the Parents

[29] Mr. B. very much supports I.R.B. being in the custody of Ms. K.C. for the foreseeable future. He sees Ms. K.C. as “an excellent role model” for I.R.B. While he would like to continue to pursue his relationship with I.R.B., he recognizes that it may take a very long time for that to happen, and he is content that I.R.B.’s needs will be appropriately met by living with her aunt.

[30] Ms. B. opposes the Society’s motion. Her position is that both the issue of whether I.R.B. is a child in need of protection and that of the appropriate disposition are ones which require a trial. She does not believe that the court can grant the relief sought by way of Summary Judgment.

The Law of Summary Judgment

[31] Justice Corthorn recently canvassed the post-Kawartha[^17] approach to Summary Judgment in child protection matters at paragraphs 29 through 35 of The Children’s Aid Society v. S.P. and K.L., 2019 ONSC 5624 as follows:

Summary Judgment

a) General Principles

[29] It is well-established that a summary judgment motion may be brought in a proceeding under the Act. The governing two-part test was articulated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. First, the judge must determine, based only on the evidence in the record, if there is a genuine issue requiring a trial. Resort to additional fact-finding powers is not permitted at this first stage. If there is no genuine issue requiring a trial, then the matter may be summarily determined.

[30] If there appears to be a genuine issue requiring a trial, then the second step requires the judge to look beyond the evidence in the record. At this stage, the judge determines whether the need for a trial can be avoided by utilizing the additional fact-finding powers available to the judge under the relevant procedural rules. If it can, then the matter may, at the discretion of the judge, be summarily determined. If not, then summary judgment is not granted (Hryniak, at para. 67).

[31] Rule 16 of the FLR governs motions for summary judgment. The additional fact-finding powers are set out in r. 16(6.1). Those powers permit the judge hearing a motion for summary judgment to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interests of justice that such powers be exercised only at trial.

[32] Pursuant to r. 16(4), the burden of proof rests with the moving party to set out “specific facts showing there is no genuine issue requiring a trial.” A party responding to a motion for summary judgment is not entitled to “rest on mere allegations or denials” (r. 16(4.1)). A responding party is required, through affidavit or other evidence, to set out specific facts that demonstrate there is a genuine issue requiring a trial. In summary, each party on a motion for summary judgment is required to put their best foot forward.

b) Child Protection Matters

[33] In its recent decision in Kawartha-Haliburton Children’s Aid Society v. M.W., the Ontario Court of Appeal set out “the proper approach to summary judgment in child protection matters” (2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 1). Coincidentally, that case involved a motion for summary judgment in which the mother consented to an extended society care order but sought access.

[34] The Ontario Court of Appeal identified a number of principles to be applied on motions for summary judgment in child protection cases. Those principles are summarized at para. 80 of the decision:

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

2. The burden of proof is on the party moving for summary judgment. Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.

3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.

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

[35] In Kawartha-Haliburton, the Court of Appeal directs that judges on motions for summary judgment in child protection proceedings undertake a best interests analysis (paras. 31 and 49). Above all, a cautious approach should be taken on motions for summary judgment in child protection proceedings (paras. 63 and 70-79). The Court of Appeal described the requisite approach as “highly cautionary” (para. 74).

Analysis

[32] Is there a triable issue as to whether I.R.B. is a child in need of protection? If not, is there a triable issue as to the appropriate disposition in this matter.

[33] With respect to the first issue, Ms. B. is of that view that there is not sufficient admissible evidence before the court for it to come to a “fair and just determination”[^18]. Ms. B. submits that the Society’s evidence is replete with hearsay, sometimes second and third hand, and that it is not trial worthy. I agree that much of the Society’s evidence is hearsay and inadmissible. Although the Society has referred in Ms. Graves’ June 9, 2020 to all kinds of information provided by the OPS on March 12, 2020, they have failed to provide, in the very least, a copy of the OPS Occurrence Report from that date, parts of which would likely be admissible as a business record. Although the Society has repeatedly stated that Ms. B. left the ROH on June 2, 2020 “prematurely” or “against medical advice”, they have provided no medical records (also admissible as a business record, in whole or in part) or doctor’s report reflecting that to be the case. This is equally true of Ms. B.’s departure from the hospital in June. Although Ms. Graves refers in paragraph 8 of her August 31, 2020 affidavit to the contents of a conversation she had with Ms. B.’s physician, Dr. Riva Levitan on June 11, 2020, unlike Ms. B., who provided letters from both Dr. Levitan and her psychiatrist, Dr. Zannelli as exhibits to her October 8, 2020 affidavit, Ms. Graves did not provide any report from Dr. Levitan. Although Ms. Graves refers in paragraph 16 of that same affidavit to information provided to her by I.R.B.’s counsellor, Ms. Barb Juett, by email, she fails to attach a copy of the mail. Similarly, although Ms. Grace refers to email exchanges between Ms. B, Ms. K.C. and I.R.B. in paragraphs 10 and 13 of the August 31, 2020 affidavit, she attaches none of them. The most egregious example of the Society’s hearsay evidence is contained in paragraph 20 of Ms. Graves affidavit of August 31, 2020, where information is provided to the court which came to Ms. Graves via Ms. K.C. via a neighbour of Ms. B. via an employee of the Brookstreet Hotel. This kind of evidence has no business being in an affidavit that is in support of a Summary Judgment Motion.

[34] It is for this reason that I have outlined the background facts above as I understand them having carefully screened the Society’s evidence and eliminated what is inadmissible. Having done so, however, I am still satisfied on the evidence before me that the Society has established that issue of whether I.R.B. is a child in need of protection is one that does not require a trial.

[35] I base this finding on the fact that Ms. B. clearly had a mental health breakdown on March 12/13, 2020 which required hospitalization from March 13 to June 2, 2020 and again from June 11 to 29, 2020. The direct evidence and observations of Ms. Graves and Ms. K.C. in respect of their dealings with Ms. B. and I.R.B. support not only this fact, but also the fact that I.R.B. has been severely affected by Ms. B.s behaviors and attitudes towards her. Moreover, I.R.B.’s letter to Ms. B. at the end of April 2020, which I do consider admissible on the basis that it meets the tests of both necessity and reliability and/or falls within the exception of I.R.B.’s state of mind, is exceptionally telling as to the psychological/emotional impact Ms. B’s situation was and is having on I.R.B. Finally, the letters Ms. B. provided from Doctors Levitan and Zannelli support that Ms. B.’s mental health is not yet stable and may be impacting I.R.B.

[36] Dr. Levitan’s letter dated October 3, 2020 provides:

This unfortunate woman has had an extensive psychiatric admission at the Queensway Carleton Hospital from March 13, 2020 to June 2, 2020 and again from June 12 – 29, 2020, including a brief transfer to the Royal Ottawa Hospital on June 1, 2020. It has been clarified through her admission and subsequent care that she suffers with an as yet unspecified psychotic disorder, possible delusional disorder.

[37] While Dr. Levitan reassessed Ms. B. on September 25, 2020 and found her status to have been improved with psychiatric treatment, her ultimate recommendation was that I.R.B. “be encouraged to have some form of supervised contact with Ms. B. going forward.”[^19] (Emphasis added.)

[38] Dr. Zannelli, who became Ms. B.’s treating psychiatrist as of July 2020, stated in her letter dated September 10, 2020:

I have been following Ms. B. since July 2020. She saw multiple psychiatrists in the past who diagnosed her with complex post traumatic stress disorder, along with recurrent episodes of major depression. She was hospitalized on two occasions (2017 and June 2020) in the last few years, which appear to be in the context of a brief psychotic episode (lasting less than 30 days at a time). I suspect that these episodes are what led to CAS involvement, as she was very disorganized and couldn’t care for her daughter in those moments. These episodes now appear to be resolved.

I also suspect she has underlying delusional disorder, that hasn’t been treated. Most people function relatively well with a delusional disorder, except for the impact of their particular delusion. In her case, her delusion doesn’t appear to be related to her daughter and I therefore don’t believe it has a major impact. However, this diagnosis, along with mood disorders/anxiety can certainly cause tension with family members. I feel this is what is happening with her daughter.

[39] Dr. Zannelli’s letter goes on to describe medication changes she has made and states that Ms. B. has also been referred to psychotherapy. Dr. Zannelli states at the end of that paragraph: “It is too early to determine if there are any improvements yet.”[^20]

[40] It is difficult to understand why Dr. Zannelli’s letter would indicate that Ms. B.’s psychotic episode in 2020 lasted less than 30 days when it clearly began on March 12 and she was hospitalized from March 13 to June 2 (two and a half months) and again from June 11 to 29, 2020. It is also difficult to understand why Dr. Zannelli would conclude that Ms. B.’s delusional disorder would not have a major impact on I.R.B. without ever having seen or spoken to I.R.B. Nevertheless, Dr. Zannelli’s letter supports that Ms. B. is not yet well.

[41] Additionally, although the burden of proof is on the moving party, in this case the Society, to establish there is no genuine issue for trial (which I am of the view it has done), contrary to Rule. 16(4.1), Ms. B.’s affidavit has not set out “specific facts showing that there is a genuine issue for trial”. Indeed, she does, for the most part, “rest on mere allegations or denials” in her affidavit evidence.

[42] The evidence before me supports that I.R.B. has not only been affected by Ms. B.’s very unfortunate circumstances, but profoundly affected. I.R.B. has been in weekly counselling since May of 2020 to try and address those impacts. She has, moreover, been steadfast in her decision that she does not even want contact with Ms. B. until she has stabilized and taken steps to get better. I have little difficulty finding that the determination of whether I.R.B. is a child in need of protection can be made without the necessity of a trial. Accordingly, I find I.R.B. to be a child in need of protection pursuant to Sections 74(2)(b)(ii) and 74(2)(h) of the CYFSA.

[43] Similarly, I am of the view that there is no genuine issue requiring a trial with respect to the issue of disposition. My reasons for this are that a best interest analysis must, first and foremost, strongly consider I.R.B.’s express view and preference to be in the custody of her maternal aunt, K.C. Second, there is no evidence before me which supports that Ms. B. would be able to resume caring for I.R.B. any time in the near future. Finally, I must account for the impact of delay on I.R.B.

[44] I.R.B. is 13 years of age. She will be 14 in approximately three weeks. I.R.B. has been adamant since Ms. K.C. came to care for her in March 2020 that she wants to remain in Ms. K.C.’s care. This was, of course, initially under the Society’s original application for a supervision order to Ms. K.C. but it has remained the case under the amended application for custody to Ms. K.C. Indeed, while it is Ms. K.C.’s employment situation which has affected the timing of the amendment, it is I.R.B.’s steadfast position that has driven it. From at least mid-July, I.R.B. has been consistent in expressing her wish to live with her aunt and uncle, be it in Ottawa or in Helena, Montana, to Ms. K.C., to Ms. Graves and to her own counsel, Ms. Barron. She has refused, moreover, notwithstanding Ms. K.C.’s or Ms. Graves’ prompting, to have any contact with Ms. B. since approximately mid-June.

[45] In 2017, the new Child, Youth and Family Services Act was proclaimed. One of the changes to the Act from the previous Child and Family Services Act[^21], was to the factors to be considered where a determination was being made in the best interests of a child. The new section 74(3) factors are structured in two parts; the court is first directed that it shall consider two things, the child’s views and wishes and in the case of a First Nations, Inuk or Metis child, preservation of the child’s cultural identity and connection to community. The court is then directed to consider any of eleven other circumstances of the case that it considers relevant. Specifically, section 74(3)(a) provides:

74 (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;

[46] Ms. B. argues that I.R.B.’s views and wishes should be given little weight, based on her having expressed unrealistic views and wishes, such as living with her father, Mr. B., from whom she had been estranged for approximately seven years, or having her aunt and uncle move to Ottawa, Ontario so she could live with them here. Ms. B. suggests that these unrealistic expectations depict a lack of maturity on the part of I.R.B. On the contrary, in my view, they depict an effort on I.R.B.’s part to find a solution to her situation which would not entail her having to live with her mother. While it is feasible, moreover, that I.R.B. might prefer to live in Ottawa with her aunt and uncle, when it was explained to her that this was not possible due to Ms. K.C.’s employment and immigration status, I.R.B. became equally adamant that she wished to live with Ms. K.C., whom she describes as “nurturing”, even if it means moving to the United States to do so. She has remained steadfast in this position. I.R.B. has described her mother’s situation being unwell for more than a year, and that she has essentially been caring for herself for most of that time. She has clearly felt the benefits of Ms. K.C.’s dedicated care and attention from March 14 onwards, and she has a strongly expressed wish to continue to do so. Pursuant to section 74(3)(a) of the CYFSA, that strongly expressed wish cannot be ignored in considering what disposition is in I.R.B.’s best interests.

[47] Second, the only other option for I.R.B. at this time would be to be placed in the care and custody of the Children’s Aid Society of Ottawa and remain in a foster care placement. Neither Dr. Levitan’s nor Dr. Zannelli’s letters provided support for the notion that Ms. B. could resume parenting I.R.B. at this time. Dr. Levitan’s letter recommended only that I.R.B. should be encouraged to have some form of supervised contact with Ms. B. and Dr. Zannelli declined to comment on Ms. B.’s capacity to take care of I.R.B., having never seen them interact. Dr. Zannelli’s letter, more significantly, stated that it was too early to determine if there were any improvements in Ms. B.’s delusion disorder. The only point, it would seem, of not granting custody to Ms. K.C. summarily would be to see: a) if Ms. B.’s condition does improve sufficiently to at some point contemplate her resuming care of I.R.B., and b) to see if I.R.B. changes her stance to, also at some point, at least have contact with Ms. B., neither of which, in my view, are in the best interests of I.R.B.

[48] Pursuant to Section 74(3)(c)(viii) of the Act, the court is to consider the merits of a plan for the child’s care proposed by the Society compared with the merits of the child remaining with or returning to a parent. Although Ms. B. obviously loves I.R.B. and would want to provide care for her, there is actually no realistic plan put forward for her to do so right now. Ms. B. remains under treatment, and I.R.B. continues to not want to have any contact with her whatsoever. Ms. Barron submits that even if Ms. B.’s mental health issue was completely resolved, and she was declared capable of parenting I.R.B., which is not the case, unless I.R.B. expresses a wish to resume living with her, such an outcome cannot or should not be forced upon her. I agree. Given the merits of the Society’s plan, a loving, capable and proven maternal aunt, versus the lack of a current realistic plan from Ms. B., I can only find that the former is in I.R.B.’s best interests.

[49] Finally, Section 74(3)(c) (ix), provides that when making a determination in a child’s best interests, the court is to consider the effects on the child of delay in the disposition of the case. Delaying this matter to trial would, in my view, be delaying the inevitable, unless Ms. B.’s mental health status and the relationship between her and I.R.B. were to dramatically change between now and the anticipated trial dates. In the interim, I.R.B. would remain in foster care, either pursuant to a temporary care and custody order or an order for a period of Interim Society Care, neither of which are the least intrusive measure. Although Ms. B.’s counsel argues that there are other dispositions available under Section 101 of the CYFSA, before contemplating Society care, the court would have to consider whether it is possible to place a child with a relative, neighbour or other member of the child’s community or extended family.[^22] In this case, it is possible; there is a very good, solid and tested plan for I.R.B. to be in the care of her maternal aunt, with whom she shares a close and loving bond. The complicating factor here is that Ms. K.C. resides in another jurisdiction, one which makes an order under Section 101 of the Act not feasible. An order under Section 102, however, is feasible, particularly given that I.R.B. has dual Canadian/American citizenship. Section 102(1) of the CYFSA provides: “Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in the child’s best interests, the court may make an order granting custody to one or more persons, other than a foster parent, with the consent of the person or persons.” Although the Society’s involvement is not long in this case, which is one of the things with which Ms. B. takes issue in respect of the Society’s request today, once a child has been found in need of protection, the only criteria to be applied to the appropriate disposition is the best interests of the child. Based on all of the evidence before me and for the reasons outlined above, I find that it is in I.R.B.’s best interests to be placed in the custody of Ms. K.C.

[50] Ms. K.C. has made it clear in the presentation of her plan that she would promote contact between I.R.B. and each of her parents, be that virtual or in-person, and facilitate any request I.R.B. makes for same. Ms. K.C. indicates that she will readily “encourage I. to participate in regular video chats with her parents and to engage in counselling with Ms. B. to address their issues at an appropriate time.”[^23] Contact with Mr. B. appears to have commenced in June of 2020 and has continued in accordance with I.R.B.’s wishes. It may take some time for access between Ms. B. and I.R.B. to resume based on all that I.R.B. has experienced and on her steadfast position that she does not want contact with Ms. B. until her mental health status has stabilized. Given that this is the case, an order for access by I.R.B. to her parents at the discretion of Ms. K.C. in keeping with I.R.B.’s wishes and best interests is the appropriate at this time.

Order

[51] There shall be a final order on Summary Judgment as follows:

(1) There is no genuine issue requiring a trial in relation to the Society’s Amended Protection Application dated August 31, 2020;

(2) The child. I.R.B., was born [...], 2006. I.R.B.’s parents are K.B. and M.B. I.R.B. is not First Nations Inuk or Metis. At the time of the commencement of these proceedings, I.R.B. ordinarily resided in the City of Ottawa, Province of Ontario;

(3) The child, I.R.B. is found to be a child in need of protection pursuant to Sections 74(2)(b)(ii) and 74(2)(h) of the CYFSA;

(4) The child, I.R.B. shall be placed in the custody of her maternal aunt, K.C., pursuant to Section 102(1) of the CYFSA;

(5) Access to the parents shall be at the discretion of Ms. K.C., in keeping with I.R.B.’s wishes and best interests; and,

(6) As legal guardian for the child, I.R.B., Ms. K.C. shall have the full authority to apply for and retain a passport for I.R.B., without any requirement for other consents or authorizations. Ms. K.C. shall also be entitled to travel domestically and internationally with I.R.B. without restriction or the requirement for any other consents or authorizations.

Justice Engelking

Released: October 19, 2020

COURT FILE NO.: FC-20-CP32

DATE: 2020/10/19

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF I.R.B., born [...], 2006

BETWEEN:

The Children’s Aid Society of Ottawa Applicant

– and –

K.B., and M.B. Respondents

REASONS FOR JUDGMENT

Engelking J.

Released: October 19, 2020

[^1]: O. Reg. 114/99, as am. [^2]: S.O. 2017, C.14 Schedule 1 [^3]: R.S.O. 1990, c. M. 7 [^4]: Affidavit of K.C. sworn on October 2, 2020, paragraph 17 [^5]: Ibid., paragraph 22 [^6]: Ibid., paragraph 20 [^7]: Ibid., paragraph 21 [^8]: Ibid., paragraph 22 [^9]: Ibid., paragraph 23 [^10]: Ibid., paragraph 24 [^11]: Ibid. [^12]: Affidavit of G. Graves sworn on June 9, 2020, paragraph 38 [^13]: Ibid., paragraph 42 [^14]: Ibid., paragraph 43 [^15]: Ibid., paragraph 47 and Exhibit “A” [^16]: Affidavit of K.C. sworn on October 2, 2020, paragraph 32 [^17]: Kawartha-Haliburton Children’s Aid Society v. M.W., (2019 ONCA 316, 432 D.L.R. (4th) 497 [^18]: “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.” Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, paragraph 49 [^19]: Exhibit “A” of the Affidavit of K.B. sworn on October 8, 2020 [^20]: Exhibit “B” of the Affidavit of K.B. sworn on October 8, 2020 [^21]: R.S.O. 1990, c. C11 [^22]: CYFSA, Section 101(4) [^23]: Affidavit of K.C. sworn on October 2, 2020, paragraph 57