COURT FILE NO.: FO224/13

DATE: 2020/02/05

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(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.: FO224/13

DATE: 2020/02/05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of the Niagara Region

Vesna Benic-Mayer, for the Applicant

Applicant

• and -

S.T.

C.T.

Lauren M. Angle, for the Respondent, S.T.

Not present

Respondents

Claude Leduc, for the child, Office of the Children’s Lawyer

HEARD at Welland, Ontario: January 27, 2020

The Honourable Justice N. Gregson

REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION

1The Children’s Aid Society of the Niagara Region (hereinafter referred to as the “Society”) brought a motion for summary judgment against the Respondent mother, Ms. S.T.. She is the biological mother of the child subject to this proceeding, namely C.F.E.T., born on [...], 2013.

2The current court proceeding is a status review application which was brought in February 2019. The Society seeks an order to have C.F.E.T. placed in the custody of his paternal aunt Ch.M. pursuant to section 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) with access to his mother to be arranged through Ms. Ch.M. and supervised in her reasonable discretion.

3The biological father, C.T. has not participated in this current proceeding and has had no access with the child or contact with the Society. A final order was granted on July 30, 2019 to have the service of the status review application dispensed with on the father and all future court documents flowing from the status review application.

4The current final order made pursuant to the protection application by the Ontario Court of Justice is dated September 26, 2018. At that time, preliminary findings were made as well as a protection finding. C.F.E.T. was placed with his aunt for a period of six months subject to Society supervision with terms and conditions including access to the parents as arranged by the Society and supervised in its reasonable discretion.

5It is important to note that although C.F.E.T. has been in the care of his aunt he had been in cumulative foster care without a permanent order for 751 days as the Society and the Children’s Aid Society for the Region of Halton had been previously involved intermittently from April 2013 until the present time.

6The mother filed an answer and plan of care in response to the Society’s status review application seeking the return of her son to her care and custody. Likewise, she has provided affidavit material in response to the Society’s motion for summary judgment. The mother adamantly opposes the motion. Her position is that there are genuine issues for trial and she seeks the return of C.F.E.T. into her care and custody.

7The child is represented by Office of the Children’s Lawyer (“OCL”) counsel, Mr. Claude Leduc. Due to C.F.E.T.’s age and stage of development, Mr. Leduc was unable to ascertain his views and preferences. Mr. Leduc agreed there was no genuine issue pertaining to the issue of custody. He was however concerned about access not being defined for the mother due to past conflict between the mother and Ms. Ch.M..

ISSUES TO BE DETERMINED

1. Has the Society established a prima facie case that it is in the child’s best interests to be placed in the custody of his paternal aunt with access to the mother and as such there is no genuine issue for trial?

2. Has the mother presented any evidence of specific facts showing there is a genuine issue requiring a trial?

SUMMARY OF THE AFFIDAVIT EVIDENCE

8The mother has three older children, J., Ca. and I.. These children reside with their biological father Ch.Ta.. Mr. Ch.Ta. has full custody of these children with supervised access to the mother pursuant to a family court order.

9The Society was involved with the mother on three occasions between the years 2006 and 2009 regarding a number of protection concerns which included the mother’s mental health (this included one three day psychiatric hold following a major depressive episode), alcohol use by the mother and incidents during which the mother left her three oldest children alone and unsupervised.

10The evidence suggests the mother’s relationship with Mr. Ch.Ta. included domestic conflict. The Society closed their file in November 2009 as the parents declined further contact with the Society and there was insufficient evidence to mandate further Society involvement.

11On October 2, 2012 the Society received a referral from the mother’s midwife advising the mother was pregnant and that her partner, Mr. C.T. had been incarcerated since August 30, 2012 for charges of domestic violence against the mother.

12As a result, the Society became involved with the mother for pregnancy planning services in anticipation of a possible child protection investigation when the child was born.

13The mother confirmed Mr. C.T. was the biological father of her unborn child. She advised the child protection worker she was maintaining regular contact with Mr. C.T. and was concerned about his welfare while in custody and the fact he would not have a place to stay upon his release despite having been assaulted by him.

14The mother revealed she began her relationship with Mr. C.T. in June 2012 and it was intense from the start. She noted Mr. C.T. had assaulted her several times prior to his arrest in August 2012 for assault which including slapping and choking her.

15The mother stated that when Mr. C.T. assaulted her in August 2012, she did not believe he was fully responsible for his behaviour as he had taken some of her psychotropic medication in an attempt to harm or kill himself. She indicated Mr. C.T. had hit and choked her as well as cut himself deeply enough to require stitches. Ms. S.T. advised she remained with Mr. C.T. throughout the night to ensure his safety rather than call for help.

16The mother further reported she had been hospitalized multiple times for her mental health during the years 2010 to 2012 as her psychiatrist was unable to stabilize her bi-polar disorder with appropriate medication.

17According to a Niagara Regional Police (“NRP”) Prosecution Summary report dated August 19, 2012, there were a series of assaults perpetrated against the mother by Mr. C.T. from July 22, 2012 to August 19, 2012. Mr. C.T. was charged with three counts of assault, one count of sexual assault, two counts of uttering threats, one count of mischief and two counts of breach of probation.

18The NRP report further indicated that during the assaults, Mr. C.T. injured himself on two occasions, once by smashing a bottle over his own head and once by slicing his hand on a knife. Ms. S.T. attended the hospital with Mr. C.T. and then accompanied him home at which point he assaulted her again. The report further detailed Mr. C.T. threatened to cut the fetus out of the mother’s body.

19Despite the extreme violence, the mother insisted she loved the father and wanted to continue their relationship.

20Mr. C.T. was released from custody on October 30, 2012. There was a no contact order between the two parents. The mother reported to the child protection worker it was her intention to contact Mr. C.T.’s probation officer to sign a revocable consent. She was cautioned against doing so as it would place her at risk of further violence while pregnant.

21Shortly thereafter, on November 12, 2012 the NRP responded to a call of domestic violence as the mother had signed the revocable consent and allowed Mr. C.T. to move back into her home. Mr. C.T. apparently choked the mother. Despite same, she refused to provide a statement to police or allow them to take photos of her injuries. The mother was taken to the hospital and the father was charged with assault and breach of probation. Despite this violence, the mother still wanted the father to be present for their son’s birth.

22The Society received a call from Ms. Sandra Lampman, a domestic violence advocate. Ms. Lampman indicated she was able to reach the mother by telephone to discuss the mother’s situation. Ms. Lampman was concerned as the mother refused an in-person meeting and indicated she did not feel any services from the advocate were necessary. Ms. Lampman therefore did some basic safety planning and provided the mother with information of services available through Nova House.

23On January 30, 2013 the Society learned from the mother’s midwife the mother was continuing her relationship with Mr. C.T.. The mother described the relationship as emotionally supportive and beneficial to her health.

24On February 4, 2013 the Society received an NRP Prosecution Summary Report. It reflected police attended the mother’s home due to domestic violence. The report noted the parents were involved in an argument on January 25, 2013 as Mr. C.T. wanted access to the mother’s bank account. When she refused, Mr. C.T. began repeatedly hitting the mother in the face with full force. On January 26, 2013 Mr. C.T. accused the mother of infidelity and struck her in the head. Mr. C.T. pushed the mother down and rolled up a t-shirt and put it in the mother’s mouth in a gagging fashion and continued to physically assault her. On January 31, 2013 Mr. C.T. was upset the Society was involved for pregnancy planning and pushed her onto a bed and proceeded to burn her on the breast area with a heated knife. On February 3, 2013 the mother was packing up some belongings to go stay with her parents. Mr. C.T. punched the mother in the abdomen and face repeatedly and forced her head into the toilet bowl.

25During this police investigation, Constable Aaron Gross of the NRP advised the Society he learned the parents had been residing together since late December 2012 despite there being a warrant for Mr. C.T.’s arrest regarding his assault on the mother in November 2012.

26Mr. C.T. was charged with spousal robbery, two counts of domestic assault, aggravated domestic assault, two counts of uttering threats and failure to comply with his probation order.

27The mother was admitted to a women’s shelter on February 5, 2013. On February 13, 2013 the mother advised the child protection worker of her desire to visit Mr. C.T. in custody to talk about their plan for the child. The mother stated she was a good influence on Mr. C.T. in helping him reduce his drug use (the mother previously admitted Mr. C.T. was a crack cocaine user) as she would accompany him into drug houses and convince him to leave. The mother was again reminded there was a no contact order between her and Mr. C.T..

28The mother was discharged from the shelter on February 28, 2013. Despite the violent abuse the mother was subjected to, she continued to go visit Mr. C.T. while he was in detention. The mother also admitted to her child protection worker on March 22, 2013 she had stopped taking her bi-polar medication for the prior two months but had resumed her prescription and was feeling better. On April 4, 2013 the child protection worker and mother met with the mother’s psychiatrist. He confirmed the mother’s diagnosis of bi-polar and encouraged the mother to engage in therapeutic counselling and programs. He also encouraged the mother to accept she may have some limitations in her ability to parent and she might consider the benefits of ongoing contact with her child as opposed to custody.

29The Society advised the mother of their intention to apprehend her son at birth given the pervasive nature of the domestic violence and the mother’s inability or unwillingness to protect herself and her unborn child. A comprehensive kinship assessment was arranged on the paternal aunt, Ms. Ch.M. as an alternative to foster care. At that time, the aunt was living with her husband Ca.M. and their children.

30Upon C.F.E.T.’s birth on [...], 2013 he was placed in Ms. Ch.M.’s temporary care and the Society brought the necessary protection application.

31The child protection worker observed a visit between the mother and her newborn son on April 23, 2013 and within moments of the visit the mother accepted a call from Mr. C.T. and spoke with him for 20 minutes. Thereafter, the Society learned on April 25, 2013 from the Victim Witness Assistance Program the mother had sent a letter to the Crown Attorney attempting to recant her statements made to police and professing her love for the father. During this same time frame, Mr. and Ms. Ch.M. indicated they were getting calls non-stop from Mr. C.T. and were becoming increasingly concerned for their safety should he be released from custody. The M.’s indicated they were planning to separate temporarily as Mr. Ca.M. was struggling with his own sobriety as a result of stress and would be seeking professional help. Ms. Ch.M. assured the Society she would have the assistance of other family members to care for C.F.E.T. and it was agreed he would remain in her care. By mid-May 2013 Ms. Ch.M. took a leave from work to stay home full-time.

32On May 4, 2013 the mother and Mr. C.T. were each charged with failure to comply as a result of their ongoing contact with one another while Mr. C.T. was in custody despite a no contact order.

33By summer 2013 the mother was finally actively engaging with counselling services for domestic violence, seeing her psychiatrist regularly and consistently taking her medication. It was reported to the Society in August 2013 the mother was beginning to recognize domestic violence and the mother had realized she could not be in a family unit with Mr. C.T.. Despite same, the mother acknowledged to her child protection worker on August 26, 2013 that she had been visiting Mr. C.T. in jail as she wanted him to believe she wanted to continue the relationship as Mr. C.T. knew a lot of people and she was afraid she could be harmed by them.

34The mother was not supportive of C.F.E.T.’s placement with Ms. Ch.M. and made a number of allegations about her which were not confirmed by the Society. This led to the breakdown of the placement. Due to the negative dynamics, Ms. Ch.M. no longer wished to offer care for C.F.E.T. and as a result, he was placed into foster care on September 27, 2013.

35On February 28, 2014 Mr. C.T. was released from jail and was on probation until 2016 which included a no contact order with the mother. There was no evidence suggesting the mother had thereafter resumed her relationship with Mr. C.T..

36The evidence suggested the mother attended all of her scheduled visits with C.F.E.T. and no concerns were raised during her visitation.

37C.F.E.T. was eventually placed into his mother’s care and a final supervision order was granted on November 4, 2014 for a period of six months. The Society’s court involvement was eventually terminated on April 21, 2015 as there were no reported concerns.

38On April 6, 2017 the Society received a referral from Dr. Sarah Baker, a psychologist who indicated the mother and Mr. C.T. may have reunited. The Society attended the mother’s home with police. The mother denied Mr. C.T. was in the home and stated she had not been involved with him in for over one year. Mr. C.T. was not located in the home after a thorough search of the premises; therefore, C.F.E.T. was not removed from the mother’s care.

39In fact, the mother advised the Society that her ex-boyfriend Mr. J.C. had been causing her issues and she had to file two reports with the police. She reported Mr. J.C. was on parole and had been in jail for robberies. He had lived with her for six weeks. The mother subsequently helped police locate Mr. J.C.. The mother reported Mr. J.C. threatened that if he ever saw Mr. C.T. he would shoot him in the face and he had a piece to do it.

40On April 24, 2017 the Society learned from the mother’s church pastor that several months previously a church member confirmed seeing the mother and Mr. C.T. together. The pastor however had not seen them together. The pastor felt the mother appeared to be stable and taking good care of her son.

41In September 2017, the mother became involved with the Halton Children’s Aid Society (“Halton Society”) and her file was subsequently transferred to the Niagara Society in October 2017. C.F.E.T. was apprehended by the Halton Society on September 13, 2017. The child had been located by police with his mother and a male person sleeping in a parked truck around 3:00 a.m. C.F.E.T. was sleeping in the cab of the truck while the adults slept on a mattress in the back of the truck. It appeared to Halton Regional Police Service Sergeant John Todd they had been living in the truck, due to the contents he observed in the truck. The mother could not provide an address and C.F.E.T. reported he had been in the truck for a long time. Sergeant Todd apprehended C.F.E.T. and took him to the police station.

42The mother was interviewed by a child protection worker at the police station. She stated she had left her home in July 2017 and had been staying with various friends and relatives out West. They were driving back and sometimes slept in the truck to take a break. The mother stated she was at a friend’s that evening but left due to conflict taking place with others in the home. She had nowhere else to go. The mother stated she was speaking with an old friend on Facebook and he suggested meeting up with her therefore she picked him up. She identified him as J.M.. Police ran the name into their system and learned this was an alias for the father’s name C.T.. The mother confirmed she had no income and no residence and was unsure where she would be going next.

43Throughout the proceedings thereafter, the mother claimed Mr. J.M. was in fact Mr. C.T.’s cousin and continues to refute the claim Mr. J.M. was Mr. C.T.. The mother was advised to have Mr. J.M. attend at the Society’s office as proof of same however this has never transpired. The mother is adamant she had no contact with Mr. C.T. save and except for messages from him which she never responded to.

44During their investigation, the Halton Society also learned the mother had been briefly involved with the Vancouver Aboriginal Child and Family Services. That agency received a report on July 14, 2017 that C.F.E.T. had been taken to the hospital for a broken arm. The mother had indicated she had just arrived to the area and they were staying in her vehicle. The hospital made arrangements for the mother to stay at a shelter in Vancouver.

45In her responding material the mother agreed the child protection services in British Columbia became involved as she did not have a permanent address but disagreed, they were living in a vehicle. She agreed there was only brief involvement with that agency as she began to reside in a shelter.

46A child protection worker with Vancouver Aboriginal Child and Family Services spoke to the mother on July 17, 2017 by telephone while the mother was at a shelter. The mother reported she had reconnected with a male named B.C. who used to live in Niagara a few months ago and when he left Niagara she decided to come to BC to be with him. B.C. worked fulltime at a recovery home in Surry, BC. He was sneaking her in and out of the homes at night so she had somewhere to sleep with the child.

47On November 3, 2017 the mother advised her child protection worker she was in a new relationship with B.C. and they would be working together to have C.F.E.T. returned to the mother’s care. They were residing with a friend in Niagara Falls until they could secure permanent housing.

48On December 11, 2017 the mother indicated to her child protection worker she was no longer in a relationship with Mr. B.C. due to his controlling behaviours which included punching a hole in the wall. The NRP was involved to remove Mr. B.C.. The mother did not have permanent housing and lived with a friend from church.

49In December 2017 Ms. Ch.M. came forward again to present a kin plan for C.F.E.T.. The Society did not immediately place C.F.E.T. with Ms. Ch.M. and waited until September 2018. They conducted a further assessment of her plan to thoroughly assess her due to prior concerns raised by the mother.

50On January 12, 2018 Ms. Ch.M. reported to the Society the day after C.F.E.T. was apprehended the mother and Mr. C.T. attended at her place of work and appeared to be high and asked her for money. Ms. Ch.M. reported the mother and Mr. C.T. had been in an on and off relationship for the past year.

51On February 13, 2018 the father was released from jail. At that time, the mother was still refusing to attend any programming and services with the domestic violence advocate; however, she had connected with the Niagara Falls Community Health Centre. The mother was residing with her friend J.S. who was a support for her.

52On April 16, 2018 Ms. J.C. reported to the Society she had to call the NRP to have the mother removed from her home as she and the mother had an argument and the mother escalated and began to yell, swear and make threats. Ms. J.C. believed the mother went to reside with a friend named L.W. and his brother.

53Ms. J.C. also reported to the Society that during the mother’s short stay with her from November 2017 to April 2018 the mother had four adult males come to stay at the home. This included Mr. B.C. who was removed by police after he engaged in conflict with the mother and punched a hole in Ms. J.C.’s wall; a male from Mississauga who engaged in conflict with the mother; a 19-year old male whom the mother treated as a son who was now incarcerated and L.W. who was 22 years old and the alleged current partner of the mother’s who began living with the mother in Ms. J.C.’s home. L.W. left Ms. J.C.’s residence at the same time as the mother.

54When these allegations were reviewed with the mother by the child protection worker on April 18, 2018 the mother denied them and stated L.W. was simply a friend. The mother also stated the 19-year old’s name was Rob and she viewed him as her adopted son and that he was not incarcerated. The mother confirmed a few days later she was living with her friend L.W. and his brother. The mother also acquired new employment and this unfortunately affected some of her access times. When the child protection worker observed work boots at the mother’s residence on May 24, 2018, the mother alleged they had been left by the prior tenant.

55In the mother’s affidavit evidence she adamantly denied any escalation in her behaviour with Ms. J.C. and denied the further allegations that she had broken or stolen items from Ms. J.C. or that she had marijuana in the home. It was the mother’s belief Ms. J.C. was upset the mother no longer required as much assistance from her. According to the mother, she left Ms. J.C.’s home peacefully when police attended and she has had no contact since with Ms. J.C..

56On July 1, 2018 the Society received an NRP report detailing an incident between the mother and L.W.. The report stated the two had been in a relationship since March 2018 (contrary to what she told the Society) and had been living together since April 2018. The parties engaged in an argument and the mother violently struck Mr. L.W. in the forehead with a glass bong. Mr. L.W. required numerous stitches. The mother was charged with domestic assault with a weapon and arrested. The mother indicated to her child protection worker she had accidently hit Mr. L.W. after he returned home. Mr. L.W. was being hostile calling her horrible names and she felt threatened. Although Mr. L.W. was on the lease and despite the fact the police had documented the parties had been in an intimate relationship for some months, the mother reported they were just roommates.

57In the mother’s affidavit material, she adamantly denied she and Mr. L.W. were in a relationship. She noted that Mr. L.W. began living with her after she was terminated from her employment with Citel as she was concerned about making her rent payments. Mr. L.W. was added to her lease so there would be no ramifications from the landlord. Mr. L.W. slept on the couch and helped with the rent. The mother also noted she did not move into the apartment until mid-May 2018 and not April 2018 as suggested in the police report. Despite the mother’s comments it appears the couple lived together at Ms. J.C.’s home and thereafter somewhere else with Mr. L.W.’s brother prior to renting an apartment together in joint names.

58On January 9, 2019 the Society learned the mother had six sessions of counselling at the Family Counselling Centre. According to the mother’s counsellor, there had been no work done yet about trauma, partner violence or PTSD during the sessions. The mother had also attended the Niagara Falls Community Health Centre twice in 2018.

59By May 2019 the Society increased the mother’s access to permit home access as long as the approved supervisors were available. Shortly thereafter the Society approved unsupervised access in the community. The mother began to enjoy visits Mondays 3:30 p.m. to 6:30 p.m. at the YMCA, Fridays from 3:30 p.m. to 7:00 p.m. at the YMCA and Sundays 9:45 a.m. until 6:00 p.m. at church or in the community. If she went to her home, she had to have an approved supervisor present.

60Since that time the mother’s access has been transitioned to being unsupervised in her home but these visits do not include overnights. There have been no recent concerns.

61During an all parties meeting on June 17, 2019 Ms. Ch.M. stated she was proposing the mother exercise access on alternate weekends and Wednesdays for a few hours during the week. She was content to share the holidays and was open to having the mother enjoy P.D. days.

62In July 2019 the Society learned the mother was not following up with her counselling with the Family Counselling Centre (“FCC”). The mother was however compliant with her monthly probation meetings. Her only probation term was to attend for counselling at FCC.

63During September and October 2019, the mother did not engage with the Society. The child protection worker left a number of voicemails to advise the mother C.F.E.T. had disclosed that an unknown man was present during his access visits. The mother denied an unknown male was present during visits.

64On November 14, 2019 the Society made a referral for C.F.E.T. to have counselling at FCC due to some aggressive behaviours at school. It was noted by the child protection worker, C.F.E.T. appeared to like living with his aunt and having access with his mother. The child protection worker cautioned the mother not to be making false promises to C.F.E.T.. C.F.E.T. had disclosed he was returning to his mother’s care as she only had one thing left to do.

65During access, the Society has observed a positive and close relationship between mother and son. According to the Society, the mother speaks negatively to C.F.E.T. about his caregivers including Ms. Ch.M.. On the other hand, there was some evidence Ms. Ch.M. had also done the same in the past.

66The evidence suggested Ms. Ch.M. has been meeting all of C.F.E.T.’s needs since his placement with her. Positive interactions between Ms. Ch.M. and C.F.E.T. have been observed. There have been no reported concerns although in April 2019 Ms. Ch.M. was cautioned on how she spoke to C.F.E.T. on one occasion when he was being disciplined. Ms. Ch.M. had also been in a relationship with a new partner which ended and did not inform anyone. The separation of the couple coincided with some of C.F.E.T.’s escalated behaviour. Ms. Ch.M. had intimated it may be as a result of the mother’s access. As such she had not been transparent with the Society nor the mother. Despite same, it was noted the child protection worker had spoken to C.F.E.T.’s teacher who stated that his escalated behaviours were a complete disaster on Mondays and Fridays which coincided with the mother’s access.

67As of the fall of 2019, the mother and Ms. Ch.M. came to their own mutual agreement to remove access for Ms. S.T. on Mondays and Fridays permitting C.F.E.T. to focus on school and to visit his mother each Saturday and Sunday from 9:00 a.m. to 6:00 p.m. Ms. Ch.M. has also offered extra access during times when C.F.E.T. is available when she is working.

68The mother argued she had taken all necessary steps to address the issues raised by the Society and attended all programming as suggested by the Society. She has attended counselling at the FCC since August 15, 2018 and made significant progress to the point she is no longer required to attend. (There was no evidence to support this statement.) She also attends the Niagara Falls Community Health Centre regularly to discuss her medication and mental health.

69The mother noted she has been consistently employed since July 2018 when she began working for Antipastos restaurant and transferred to Harvest Barn in August 2019 where she remains employed. I did note the mother indicated she had to leave Antipastos due to conflict with management which was affecting her mental health.

70The mother stated she has maintained a residence since September 29, 2018. She has stabilized her life this past year and sees no reason why C.F.E.T. is not returned to her care and custody.

71The mother contends she has not been in a relationship with Mr. C.T. since February 2013 and only had one minor issue with individuals previously in her life and has had no incidents since June 2018.

72The mother also submits there was evidence Ms. Ch.M. has interfered with her access and used access with C.F.E.T. as a weapon. She stated the Society was previously concerned that if she was not provided specific access to C.F.E.T., they feared Ms. Ch.M. would push her out of C.F.E.T.’s life. The mother also noted Ms. Ch.M. had not been forthcoming with her and the Society regarding her relationships which directly impact C.F.E.T.. The mother further feared Ms. Ch.M. may permit access between C.F.E.T. and Mr. C.T. since she and her brother remain in contact with one another.

73According to the mother, C.F.E.T. has told her he wants to live with her and has expressed that he is unhappy living with Ms. Ch.M.. The mother seeks to have C.F.E.T. returned to her full-time care and will continue to facilitate a relationship between her son and Ms. Ch.M..

LAW

Rule 16

74Summary judgment motions are governed by Rule 16 of the Family Law Rules. The court has the ability pursuant to subrules 16(6.1) and (6.2) to weigh evidence, evaluate credibility of the deponent, draw any reasonable inference from the evidence and to order oral evidence on the motion unless it is in the interest of justice for such powers to be only exercised at trial.

75The burden of proof is on the party moving for summary judgment to set out specific facts in their evidence to show there is no genuine issue requiring a trial.

76The responding party to the motion may not rest on mere allegations or denials but must set out in their evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. This obligation by the Respondent 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. See Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, sub paragraph 2 of paragraph 80.

77Subrule 16(6) of the Family Law Rules provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

78In 2014, the law regarding summary judgment significantly changed as a result of the Supreme Court of Canada’s decision of Hyrniak v. Mauldin, 2014 SCC 7 (S.C.C.)

79The Supreme Court of Canada confirmed there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of a motion for summary judgment. This will be the case when the motion permits the judge to make necessary findings of fact and allows the judge to apply the law to the facts and is a proportionate and more expeditious and less expensive means to achieve a just result.

80Hyrniak outlined a two-step process for determining whether summary judgement should be granted. 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 subrule 16 (6.1) and (6.2).

81If, 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, provided that it is not against the interest of justice to do so.

82The principles in Hyrniak were confirmed to apply to child protection cases in Kawartha-Haliburton Children’s Aid Society v. M. W., supra. The court confirmed at paragraphs 45 and 46 of their decision that neither party has the onus of establishing who will be successful at trial but rather whether it is in the interest of justice for the court to resolve the case summarily. Does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable and proportionate procedure?

83In Hyrniak the court made it clear that evidence on a motion for summary judgment need not be equivalent to that at trial but must be such that the judge is confident they can fairly resolve the dispute.

84Rule 16(5) of the Family Law Rules provides discretion to the court as to whether or not to admit hearsay evidence and attach whatever weight to it, if any, that the court deems appropriate. A number of cases including Children’s Aid Society of Toronto v. S.M.T., [2018] ONCH noted that given the high stakes for parents and children in these cases, only trial worthy evidence should apply.

Status Review Application

85In a status review hearing, the original order being reviewed is presumed to be correct. The examination to be undertaken involves two stages as set out by the Ontario Court of Appeal in Children’s Aid Society v. Oxford v. W.T.C. 2013 ONCA 491 which states:

a. First, determine whether the child continues to be in need of protection and as a consequence, requires a court order for his or her protection; and

b. If it has been determined that the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the child.

86In determining what order is required to meet the child’s best interests, the court must consider the degree to which the risk concerns that prompted the original order still exists. This must be examined from the child’s perspective. See Catholic Children’s Aid Society v. M. (C.) 1994 CanLii 83 (SCC).

87The Society having care, custody or supervision of a child pursuant to section 113 of the CYFSA may apply to the court any time for a review of the child’s status and prior to the expiry of the final order.

88Section 114 of the CYFSA prescribes that where an application for review of a child’s status is made 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.

89Subsection 100 of the Act requires the court to consider the Society’s plan for the care of the child before making an order under s. 114.

90Pursuant to section 101 (1) of the CYFSA, where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

101(1)

Supervision order

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

Interim Society care

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

Extended Society Care

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

Consecutive orders or interim society care and supervision

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

91Pursuant to subsection 102 (1) and (2) of the CYFSA, if the court finds that an order under section 102 instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

92An order made under section 102 and any access order made under section 104 that is made at the same time as the custody order is deemed to be made under section 28 of the Children’s Law Reform Act (“CLRA”) and the court,

(a) May make any order under section 102 that the court may make under section 28 of the CLRA; and

(b) May give any directions that it may give under section 34 of the CLRA.

93Subsection 101(3) of the CYFSA requires the court to look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Subsection 101(4) of the CYFSA requires the court to look at community placements, including family members, before deciding to place a child in care.

94Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

95In determining the appropriate disposition, the court must decide what is in the child’s best interests. The court is to consider the criteria set out in subsection 74(3) of the CYFSA in making this determination. The views of a child must be considered if they can be reasonably ascertained.

96Subsection 93(1) of the CYFSA stipulates despite anything in the Evidence Act, in any proceeding under Part V of the CYFSA, the court may consider the past conduct of a person toward any child of that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

ANALYSIS

97I have considered all the evidence and the submissions of the Society, mother and counsel for the Office of the Children’s Lawyer on this motion for summary judgment.

98I feel I am able to make the necessary findings of fact and apply the law to the facts regarding the issue of custody. I am able to base my decision on the evidentiary record before me without the use of expanded powers to weigh the evidence or assess credibility. The evidence is sufficiently comprehensive to allow me to make a fair and just determination on the issue of custody on the merits without the need for a trial. This approach, in my view, is proportionate, more expeditious and a less expensive means to achieve a just and correct result.

99I find the Society has met its onus and established, on a balance of probabilities, that there is no genuine issue requiring a trial to determine the issue of placement (custody as requested) in this matter.

100Unfortunately, I do not feel the same way in regard to the issue of access. I do not feel I am in a position to make the necessary findings of fact and to apply the law to the facts. I believe it will be necessary that a focused trial be ordered to weigh the evidence to determine what access the mother should enjoy with her son. As such, I do not feel the Society has met its onus and established, on a balance of probabilities that there is no genuine issue requiring a trial on the issue of access.

Custody in favour of Ch.M.

101I agree with the Society of the available dispositions, the least intrusive one that would provide C.F.E.T. with safe care on a sustainable permanent basis is a custody order in favour of his paternal aunt as per section 102 of the CYFSA.

102The father has not participated in these proceedings and has proffered no plan of care. Regardless, this court would never place C.F.E.T. in Mr. C.T.’s care due to his violent behaviours and lengthy criminal history.

103Unfortunately, some of the protection concerns which existed at the time the original order was made continue to exist vis-à-vis the mother despite some progress she has made since the summer of 2018.

104The mother has had child welfare involvement dating back to 2006. She does not have custody of her other three children and does not have ongoing consistent unsupervised access to them.

105The mother was again involved with the Society upon C.F.E.T.’s birth in April 2013 as a result of child protection issues. C.F.E.T. was returned to the care of his mother from mid-2015 to early 2017 when he was again removed from the mother’s care.

106As of January 2020, C.F.E.T. is approximately six years and nine months old and has spent three years and nine and one-half months of his life out of his mother’s care. He has spent approximately two years and one month cumulatively in foster care and approximately one year and eight and one-half months cumulatively with Ms. Ch.M..

107C.F.E.T. has experienced instability in his placements since his birth. He has not benefited from permanency in his caregiving in order to thrive in the future.

108During the Society’s involvement there were the following child protection concerns identified which cause me concern:

Housing instability

109The mother has had ongoing instability in securing housing over the years. She has lived with various individuals including Ms. J.C., various male partners, friends, shelters and members of her church. Despite the fact the mother claims she has never lived out of her vehicle, I believe there were periods of time when she did so, in particular travelling to and from British Columbia.

110The mother left the Niagara Region with C.F.E.T. to relocate or visit British Columbia. She had no appropriate plan secured for shelter which showed a lack of insight and lapse of judgment.

Patterns of contentious relationships

111The mother was advised she was placing her unborn child and herself at risk of harm by continuing her relationship with Mr. C.T.. Despite same the mother continued her relationship with Mr. C.T. which included breaching court ordered conditions which led to a criminal charge against her.

112Although the mother claims she has not had personal contact with Mr. C.T. since 2013, the evidence strongly suggests she was with Mr. C.T. in 2017 when police located them considering:

• The police confirmed Mr. C.T. had an alias known as “J.M.”.

• The mother initially stated it was a friend of hers with whom she had reconnected with on Facebook and then claimed it was Mr. C.T.’s cousin.

• J.M. has never presented himself to the Society as suggested by them.

• Dr. Sarah Barker had contacted the Society in April 2017 to state she believed the mother and Mr. C.T. may be living together.

• A church member stated they observed the mother and Mr. C.T. together in the spring of 2017.

• Ms. Ch.M. indicated that after C.F.E.T.’s removal, the mother and Mr. C.T. attended together at her place of work. She believed the parents had been seeing one another on and off for one year prior to C.F.E.T.’s removal.

113I believe the mother was with Mr. C.T. in 2017. There are too many reports from collaterals which suggests contrary to what the mother claimed.

114The mother has had a series of partners which involved either domestic violence or conflict which necessitated the involvement of police. These included, Mr. Ch.Ta., Mr. C.T., Mr. J.C., Mr. B.C. and L.W..

115Despite the fact most of the mother’s counselling and domestic abuse counselling took place from 2013 to 2014, the mother continued to have unhealthy relationships. For example, despite the fact the mother had presumably ended her relationship with Mr. C.T. and attended counselling, she permitted Mr. J.C. to reside with her and C.F.E.T. for six weeks despite the fact he was on parole for robbery.

Exposing the child to risk of partner violence

116The mother has had a series of conflictual and dysfunctional relationships some of which have included partner violence. The mother has been resistant to domestic violence counselling since C.F.E.T.’s apprehension in 2017. Had C.F.E.T. been in the mother’s care, he would have potentially been exposed to Mr. B.C. and Mr. L.W.’s aggressive behaviours.

Mental health concerns

117The mother is bi-polar for which she receives medication. There was no evidence that she was engaged in any therapeutic treatment programs or meeting regularly with a psychiatrist to ensure her optimum mental health.

118The mother does struggle with anger and aggression management. This was evidenced through some of her dealings with child protection workers, her contact with Ms. J.C. which involved the NRP and a criminal charge for assault with a weapon against Mr. L.W.. The mother has never engaged in anger management.

Lack of communication and cooperation with the Society to assess risk and/or progress made

119Although there were times when the mother cooperated with the Society and executed consents for information, there were times when the mother was evasive with the Society and did not engage with them by not responding to messages and attending appointments.

120The mother was also often not forthcoming regarding her partners or revealing where she was living or who she was living with.

CONCLUSION

121In my view, the mother has not made sustainable improvements in her circumstances. The mother previously had the opportunity to have C.F.E.T. in her care from 2015 to 2017 at which point he was deemed to be a child in need of protection. Obviously, time will tell if the mother can maintain her recent gains; however, C.F.E.T. cannot wait for this to occur. Children need their parents/guardians to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take steps to address years’ worth of protection issues. At this point in time, the mother has not established that she can safely provide on a day to day basis, the needs of her son. Terms of a supervision order would be inadequate to protect C.F.E.T.. A permanent plan as offered by Ms. Ch.M. provides C.F.E.T. with stability and is in his best interests.

122The evidence suggested Ms. Ch.M. has met C.F.E.T.’s needs. This has included housing, medical, dental and educational. Considering C.F.E.T.’s best interests, I see no reason to displace his placement with Ms. Ch.M.. In fact, the placement should be finalized to provide C.F.E.T. with permanency as there are no child protection issues in regard to Ms. Ch.M.’s parenting. I would hope that once custody is finalized, Ms. Ch.M. and the mother will be able to work out a schedule of access.

123Moreover, if C.F.E.T. were returned to his mother and was apprehended from her care, the Society would have no choice but to seek an order for Extended Society Care due to the timelines under the CYFSA. C.F.E.T. would be again placed into foster care until a final determination was made by the court unless a kin placement was an option.

124Considering the mother’s lengthy child protection history, lack of insight and lapse of judgment over the years, I am not prepared to risk C.F.E.T.’s placement with his aunt where he has found some stability. I commend the mother for her recent efforts in mitigating the child protection concerns; however, I feel at this point it is premature to return C.F.E.T. to her full-time care. I do not discount the love and bond she and C.F.E.T. have and as a result I am supportive of the mother having ongoing consistent and structured visitation to her son.

Access

125Originally when the motion for summary judgment was brought the Society suggested access to the mother be supervised in the reasonable discretion of Ms. Ch.M.. It appears the Society realized the mother and Ms. Ch.M. do not get along very well and a structured access schedule would be more feasible and in C.F.E.T.’s best interests.

126Counsel for the Society provided me with a “draft” proposal for the mother’s access during her submissions. This proposal was not included in the Society’s evidence. As such, I am not aware whether either Ms. Ch.M. or the mother consented to this draft proposal or whether they had an opportunity to consider it.

127I found it rather puzzling the Society was suggesting the mother enjoy three weekends of access per month as well as a sharing of all holidays which included overnights when the Society has yet to grant overnight visits.

128Ms. Ch.M. is not a party to these proceedings and as such I have very minimal information as to what she feels is best for her family unit. I am aware Ms. Ch.M. had previously suggested the mother enjoy access on alternate weekends and for a mid-week visit and during holidays.

129The mother’s material made no mention whatsoever of the access she was seeking if the Society was successful on the issue of custody in favour of Ms. Ch.M..

130I cannot summarily decide the issue of access without the appropriate facts to apply the law and make an order in C.F.E.T.’s best interests. For this reason, there is a genuine issue regarding access, to be determined at trial.

ORDER:

1. C.F.E.T. shall be placed in the custody of his paternal aunt Ch.M. pursuant to section 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). This shall be deemed as a final order under s. 28 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12.

2. An expedited Trial Scheduling Conference shall be arranged with the view of having a trial to determine access during the June 2020 trial sittings commencing the week of June 15, 2020. In the meantime, the current temporary order of access shall continue.

3. This matter shall be placed on the CAS list February 11, 2020 at 10:00 a.m. to set a Trial Scheduling Conference.

Gregson, J.