Court File and Parties

COURT FILE NO.: FC-18-FO000530-0000 DATE: 2020-12-01

WARNING

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

87 (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

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

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

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

COURT FILE NO.: FC-18-FO000530-0000 DATE: 2020-12-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FAMILY and CHILDREN’S SERVICES OF GUELPH and WELLINGTON COUNTY, Applicant - AND - A.M.P., Respondent - AND - K.D.S., Respondent

BEFORE: Madam Justice D. Piccoli

COUNSEL: Antonio Circelli, Counsel for the Applicant Phaedra Klodner, Counsel for the Respondent, A.M.P. Patrick Brohman, Counsel for the Respondent, K.D.S. Diane L. McInnis Counsel for the children (OCL)

HEARD: October 7, 2020

ENDORSEMENT

Overview

[1] The Applicant, Family and Children’s Services of Guelph and Wellington County (“FACS”), has brought a summary judgment motion (Volume 1 Tab 13, of the Continuing Record) dated September 5, 2019, pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99, seeking a finding that the children, A.K.S., born […], 2006 (age 14) and S.R.S., born [...], 2005 (age 15) are in need of protection pursuant to ss. 74(2)(d), (h) and (k) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Schedule 1 (“CYFSA”). FACS seeks an order that the children be placed in the care and custody of their mother, A.M.P. (“Mother”), subject to a supervision order on terms; and that access by K.D.S. (“Father”), be at the discretion of FACS, supervised as deemed necessary by FACS and in accordance with the reasonable wishes of the children.

[2] FACS started an Application on September 7, 2018 seeking that the children be found in need of protection pursuant to s. 74(2)(d), and (h) of the CYFSA. The disposition it sought was that the children be placed in the care and custody of the Mother, subject to a supervision order, and that the children hold a right of access to the Father, which was to be at the discretion of FACS.

[3] FACS amended its Protection Application on February 27, 2020, adding to the findings it was seeking that the children be found in need of protection pursuant to s. 74(2)(k) of the CYFSA. It amended the disposition it was seeking to an order that the children be placed in the custody of the Mother, pursuant to s. 102 of the CYSFA, and that they shall have access with their Father, on terms determined at the discretion of the Mother.

[4] FACS brought a new motion for Summary Judgment on June 17, 2020, which changed the disposition it was seeking to coincide with the Amended Protection Application.

[5] The Father’s Answer and Plan of Care signed September 13, 2018, seeks a withdrawal of the proceedings and in the alternative, placement of the children with the Mother for eight months of supervision. He further sought unsupervised access if/when the terms of his bail conditions were varied.

[6] The Mother’s Answer and Plan of Care dated October 14, 2018, claims a s. 102 custody order placing the children in her care.

[7] The Father amended his Answer and Plan of Care on or about March 5, 2019, to change his alternative placement to be with his sister, K.S-M. He also sought an order that the Mother and the children’s half-sister, G.S., be prohibited from discussing any issues in this proceeding and the criminal proceeding with the children. Further, he sought a no contact order between G.S. and the children, including contact by email, texts or social media.

[8] The file was transferred to the Guelph FACS on May 30, 2019, because the Father’s sister K.S-M. was an employee of the Waterloo CAS.

[9] The Office of the Children’s Lawyer (“OCL”) agrees with the position of FACS. The OCL has met with the children separately on seven occasions. The OCL states that the evidence the children provided to her was consistent with the evidence as set out in the affidavits sworn by FACS workers. The OCL seeks that access, if any, by the children to the Father, be in accordance with their wishes. The OCL also seeks that the children have access with their half- sister, G.S.

[10] The Mother agrees with the OCL’s position. She seeks costs.

[11] The Father opposes FACS’ motion, vehemently denies the allegations made against him, and seeks his costs. The Father submits that there are genuine issues of credibility requiring a trial and that it would not be just to determine these issues using a summary procedure.

[12] FACS relies on the following affidavits in support of its motion:

D.W. (Child Protection Worker) sworn September 7, 2018;
M.S. (Child Protection Worker) dated September 5, 2019;
G.S. (Father’s daughter) dated September 4, 2019;
K.A. (G.S.’s boyfriend’s mother) dated September 4, 2019; and
M.S. dated April 9, 2020.

[13] FACS also filed a factum dated September 30, 2019, and an amended factum dated May 26, 2020.

[14] The OCL did not file an affidavit. On August 13, 2019, an order was made on consent that the OCL submissions could be made in court without the need for written submissions. The OCL filed a factum dated May 27, 2020.

[15] The Mother filed two affidavits, namely her affidavit dated September 20, 2019, and her affidavit dated May 7, 2020. She also filed a factum dated August 31, 2020.

[16] The Father relies on the following affidavits, namely:

His own affidavits dated March 3, 2020 and August 26, 2020;
K.S-M. (sister) dated February 27, 2020;
S.S. (mother) dated February 24, 2020;
K.M. (husband of K.S-M.) dated February 19, 2020;
T.M.S. (niece) dated February 21, 2020;
P.A.L. (aunt) dated February 21, 2020;
K.L. (co-worker) dated July 27, 2020; and
B.T. (neighbour) dated June 30, 2020.

[17] The Father filed a factum dated September 30, 2020.

Background

[18] The Mother and Father are the parents of S.R.S, age 15, and A.K.S., age 14 (“children”), who are the subject matter of this proceeding.

[19] The Mother and Father were together from June 2002 to May 2008 (married from 2004-2008).

[20] The Father is 51 years of age.

[21] The Mother is 39 years of age.

[22] The Father has three other children, namely, F.S.C. who is an independent adult child (lives in San Diego), D.L.C. who is an independent adult child (lives in Texas) and G.S., age 20.

[23] The Mother remarried, and her husband is a Health and Safety Manager. The Mother is employed on a full-time basis as a registered nurse. They have one child together namely, Q.R.P., born on […], 2009.

[24] The Father was charged with sexual assault in 1991 and the charge was withdrawn. The Father was charged and convicted of sexual assault in 1992 of F.S.C’s mother. The Father was charged with break and enter for the purpose of committing a sexual assault in 1992 and the charge was dismissed. On June 27, 2008, the Father was charged with assaulting the Mother. These last charges were eventually withdrawn.

[25] On August 9, 2018, G.S., the Father’s daughter and the children’s half-sister, was interviewed by the Waterloo Regional Police Service (“WRPS”) and disclosed a series of sexual assaults perpetrated against her. The particulars of those assaults are referenced in the affidavit of D.W., dated September 8, 2018. The Father has been charged with sexual offences against G.S. There is a no contact order between the Father and G.S., and between the Father and the children. The children started living with their Mother on August 9, 2018, and have lived with her exclusively since that time.

[26] The children were apprehended from their Father’s care on September 6, 2018.

[27] The Father has not seen the children since August 9, 2018.

[28] Prior to their apprehension, the children resided primarily with their Father and had generous and liberal access to their Mother, pursuant to the Order of O’Dea J. released October 6, 2010, which was the result of a three-day trial. For the five years preceding this matter, the Father had the children in his care eight out of 14 days and the Mother had the children in her care six out of 14 days.

[29] On September 11, 2018, Neill J. made a temporary without prejudice order placing the children in the custody and care of their Mother subject to the supervision of FACS on terms and conditions. The OCL was appointed. Paragraph 2 of that order, in part, states the following: “On a temporary basis, should [K.D.S.’s] release terms permit access, the children, A.K.S. and S.R.S. (access holders) shall hold a right of access to their Father, K.D.S., access recipient. This access shall be at the discretion of [FACS] and supervised as deemed necessary by [FACS] and in accordance with the reasonable wishes of A.K.S. and S.R.S.”

[30] FACS states that the Father has not complied with the basic terms of the interim supervision order of September 11, 2018. He has not co-operated with the Society. According to M.S., a child protection worker, she approached the Father at court in person to follow up with him regarding his lack of compliance and the Father’s only response was, “What for?” He requested that M.S. only communicate with him through his lawyer.

[31] There are bail conditions in place that currently prohibit any contact between the Father and S.R.S. or A.K.S. The Father has not sought a variation of those bail terms and has provided no explanation as to why he has not done so. As a result, he has not seen the children for over two years.

[32] The Father states that in relation to the criminal charges against him in 2020, the Crown has offered him cascading potential resolutions, those being the following: February 2020 a sentence of six months in jail; March 2020 a sentence of one-year probation; June 15, 2020, a sentence of house arrest; and/or July 3, 2020, withdrawal of charges for a peace bond. He states that he rejected the offer of a peace bond as he would have to admit that his actions caused G.S. unreasonable fear.**

[33] The Father blames the Mother and G.S. as being the cause of his predicament. The Father insists that G.S. have no access with the children.

[34] The Father denies being physically or sexually inappropriate with any of the children. He denies the veracity of G.S.’s disclosure and provides examples of where he submits her statements are untrue. He also takes issue with D.W.’s reporting of what took place during the police interview of G.S.

[35] The Father, his sister and his mother all adopt a similar approach to the situation, which is to steadfastly deny the allegations against him.

** On consent of all counsel, on November 16, 2020 I was provided with a copy of a peace bond the Father entered into on November 12, 2020 whereby he “acknowledged sufficient of the allegations”.

G.S.

[36] G.S. has sworn an affidavit in these proceeding. She made it clear to FACS that she did not want to talk about the details of the sexual assault offences, as it is emotionally too difficult to discuss. Instead, she details what she refers to as the Father’s stalking behaviour. K.A., G.S.’s boyfriend’s mother, was able to corroborate “the bizarre behaviour” of the Father as it pertained to his parking down the street and his conduct at the courthouse.

[37] G.S. states that life with her Father “was not easy”. She details his strict rules and that she was required to take on a care giving role for her younger sisters who are the subject matter of these proceedings, doing the majority of the cooking and cleaning, as well as taking care of various pets. Her Father demanded that she act like “a young lady”.

[38] G.S. stated that in July 2017, the Father became angry that she was “hanging around with a boy” and gave her an ultimatum – follow his rules about not having boys around or leave – she left.

[39] G.S. deposes that the Father’s sister K.S-M. lived with them for about a year and that she did not provide any support to G.S. “around sexual abuse/stalking behavior. She supports dad 100%.”

[40] The Father states that FACS has provided no direct evidence from G.S. on the alleged sexual assault offences and instead relies upon the affidavit of D.W. wherein he describes witnessing a police interview of G.S. on August 9, 2018. The only evidence upon which FACS relies regarding the details of the alleged sexual offences is the report by D.W. of his observations witnessing a police interview of G.S. on August 9, 2018.

[41] The Father, and many of those who swore an affidavit in defence of the Father, state that the Father either could not or did not stalk and/or sexually abuse G.S.

Mother

[42] The Mother confirms that the children have advised her that they do not wish to have contact with the Father. The Mother states that she tries to speak positively of the Father and that she has not influenced the children’s views.

[43] The Mother has asked the children if the Father has touched them and they both replied “NO”.

[44] FACS describes the Mother as “supporting and loving with the children” and “laid back”. Their interactions are described as “natural and comfortable” and the children “speak openly and freely in front of their mother”. The Mother is “cautious about what is shared with the children” and “she tries to stay very positive to help with the impact the situation has had on the girls”.

The Children

[45] The children have made it clear to FACS workers and to the OCL that they wish to remain in the care of the Mother and want to have no contact with the Father.

[46] Both FACS and the OCL have indicated that they do not feel the children are being pressured or influenced around their decision. Both children have indicated that there is less stress living with their Mother and that it is a calmer environment.

[47] The children have both expressed frustration with the delay in finalizing these matters and the fact that they have had to “keep saying the same thing over and over to all of the professionals involved and wonder when it will be done”.

[48] The child, S.R.S., has had some counselling (three or four sessions) but she no longer wishes to participate in that process.

[49] S.R.S. explained to D.W. that between the ages of seven and ten, she saw the Father in their kitchen completely naked. She recalled that he made no effort to cover himself and that he engaged S.R.S. in conversation.

[50] The child, A.K.S., has not seen a counsellor despite this option being offered to her on more than one occasion.

[51] A.K.S. indicated on at least two occasions to M.S. that she is not interested in speaking to a counsellor and that she feels supported by her family. She is confident that her Mother would support her if she wanted counselling and feels that if she was ever stressed or unhappy, she could explore counseling at that time.

[52] On August 10, 2018, S.R.S. was interviewed by an FACS worker, D.W., in the presence of Det/Sgt Sproule and Det/Cst Cooper of the WRPS, and disclosed that she was aware of the conflict between her sister, G.S., and her Father, and that after G.S. moved out, the Father escalated his behaviour relating to G.S. The behaviour included degrading G.S. in front of S.R.S. and her sister A.K.S; referring to their sister G.S. as a “slut,” a “ho,” and a “liar”; intentionally spreading false rumours about G.S.; and engaging S.R.S. in these actions. S.R.S. disclosed increasing emotional distance between her and her Father and indicated a desire to spend more time with her Mother. However, she expressed fear that if her Father were made aware of this desire, he would turn on her the way he did with G.S.

[53] That same day, on August 10, 2018, A.K.S. was also interviewed by D.W., in the presence of Det/Sgt Sproule and Det/Cst Cooper of the WRPS, and told them that her Father had different rules for G.S. than he did for her. She disclosed that her Father did not yell at her but yelled a lot at G.S. She advised of an incident in which her Father involved her in the discipline of her sister, S.R.S., by taking her into the garage to witness him yelling at S.R.S. She expressed that this made her very uncomfortable.

[54] A.K.S. indicated that her Father behaved irrationally, especially in connection to G.S., referring to her as a slut and a whore. A.K.S. said she did not like hearing that, but that she did not want her Father to get mad, and stated that he would record G.S. with his dashcam. She recalled a time when her Father was driving extremely fast and passing cars, and indicated that this made her feel very unsafe.

[55] The children have been doing well in the Mother’s care. They are doing well in school and have a good circle of friends. The children are close and like spending time together, going to the park, and riding their bikes.

[56] Both A.K.S. and S.R.S. have indicated their desire to continue a relationship with their sister, G.S.

[57] The children have advised the Mother and the worker, M.S., that they do not wish to have contact with their Father.

[58] The OCL agrees with FACS’ position and seeks that access, if any, be in accordance with the wishes of the children. The children do not wish to see the Respondent Father.

[59] Only the Father believes that the Mother is coaching or pressuring the children. Both he and his sister believe the information disclosed by A.K.S., S.R.S. and G.S. is untrue and that they were happy in the care of their Father.

Father’s Family

[60] K.S-M.’s evidence is that her family is close. She explains the importance of chores in her family. She focuses on refuting various statements by G.S in defence of the Father. She sets out the reasons why the charges against the Father in relation to stalking cannot be true. She does not put any plans forward to care for the children nor does she set out any information about why the Father’s alternate plan that she care for the children is in their best interests. She does not mention the children other than in passing to say that up until 2017, all three children appeared to have a close and loving relationship with the Father. She further states that in regard to these children “I am not aware of any circumstance in their time with their Father that would lead them not to want to visit with him”.

[61] S.S. (the Father’s mother) deposes that she has been a foster parent for the Children’s Aid Society in Kitchener and Sault Ste. Marie. She states that she “had to initiate three separate grandmothers’ access cases for three of my grandchildren” and that she was successful in each one and that she still has an excellent relationship with those grandchildren. It is clear that S.S. does not like the Mother and in fact she deposes that she did not attend the Father and the Mother’s wedding.

The Father

[62] The Father, in his affidavit of March 2, 2020, details his relationship with G.S. and the efforts he and his family made to make her a member of the family. He talks about G.S. being jealous and states that she lacks self-esteem. He denies G.S.’s description of her life with him. He explains that G.S. was never the same following a concussion she sustained in the spring of 2015. The Father states that in June of 2017, G.S. told him that she thought she had depression.

[63] On July 12, 2017, the Father came home to find a boy in G.S.’s room. The situation deteriorated and G.S. left the home and went to her boyfriend’s home.

[64] The Father admits to making posts about his dissatisfaction of G.S. on social media.

[65] The Father makes statements about G.S.’s inappropriate dressing, use of make-up and hair styles. He admits to posting that G.S.’s bathing suit was “gross” on Instagram and goes on to explain that despite purchasing it for her, “it was quite provocative”.

[66] The majority of his March 2, 2020, affidavit focuses on his relationship with G.S. and his denial of the claims made by her. He goes to great lengths to defend the allegations that he is stalking her, and his affidavit includes Google map photos.

[67] The Father levels a number of criticisms against the Mother, for example, buying a cell phone for S.R.S. and coming to G.S.’s defence, none of which are protection concerns.

[68] The Father’s August 26, 2020, affidavit is essentially a defence of the claims made by the Mother.

The Law

A. The Test for Summary Judgment in Child Protection Cases

[69] The Family Law Rules, O. Reg. 114/99, allow for a matter to be resolved without trial by way of a motion for summary judgment. The moving party (FACS) has the burden of proof and shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: see r. 16(4).

[70] In response to the affidavit or other evidence served by FACS, the responding party may not rest on “mere allegations or denials” but shall set out specific facts showing that there is a “genuine issue for trial”. If the evidence supports that there is no genuine issue for trial, the court is mandated by r. 16(6) to make a final order: see rr. 16(4)-(4.1) and (6). In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada established a new approach to summary judgment motions, the details of which are described further below. In response to Hryniak, new powers were added under rr. 16(6.1) and (6.2) that permit the court to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial.

[71] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80, the Court of Appeal for Ontario provided the following concise summary of the approach that the court should take to summary judgment within the context of child protection litigation, considering the decision in Hryniak:

Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[72] Hyrniak confirmed that the summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make a determination. Hyrniak states that the judge must first determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

[73] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to those facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: see Hryniak, at para. 4.

[74] In child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage the rights of a vulnerable segment of our society under the Canadian Charter of Rights and Freedoms. Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings, which apply the objectives of the CYFSA, including the best interests of the child, and which promotes Hryniak’s principle of reaching a fair and just determination on the merits: see Kawartha-Haliburton Children’s Aid Society v. M.W, at para. 76.

[75] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that the child faces some better prospects than existed at the time of the Society’s removal of the child from their care and that they have developed some new ability as a parent: see Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (Ont. C.J.); Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, at para. 98.

[76] Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care but are unable to take the steps to translate their proposals into a plausible reality: see Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737, at para. 7.

B. Can the Children be Found to be in Need of Protection on this Motion?

[77] In Children’s Aid Society of Toronto v. G.P., 2019 ONCJ 365, Zisman J. lays out the following applicable legal principles with respect to a finding of need of protection at paras. 71-75:

The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.

The risk of harm must be real and likely and not speculative.

Harm caused by neglect or error in judgment can come within a finding of risk of physical harm.

With respect to the timing of the protection finding, I adopt the analysis of Justice Czutrin in the case of Children's Aid Society of Hamilton-Wentworth v. R. (K.) (footnote omitted), wherein he states:

the court should be free to consider whether the child is in need of protection at the commencement of the proceeding or at the hearing date, or for that matter some other date depending on the circumstances. There cannot be an absolute rule as to the relevant date.

In adopting this "flexible approach" Justice Carolyn Horkins recently explained in the case on [sic] Children's Aid Society of Toronto v. RM (footnote omitted):

The type of risk that can lead to a child protection order is set out in s. 74 (2) of the CYFSA. It was also defined in the predecessor Act. It is obvious from the legislation that "risk" can be caused by a variety of different circumstances and conduct.

In many protections matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.

[78] The finding that a child is in need of protection is an essential stage of a child protection proceeding, and if the court finds that the child is not in need of protection that is the end of the matter.

[79] FACS advances three grounds pursuant to which these children are in need of protection. I will deal with each ground in turn.

[80] The Father disputes that the children are in need of protection. He argues that protection findings are a triable issue. He states that FACS has not met its burden of establishing that there is no genuine issue for trial.

Unavailability

[81] Section 74(2)(k) of the CYFSA states that a child is in need of protection where “the child’s parent has died or is unavailable to exercise custodial rights over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody”.

[82] Counsel did not provide any caselaw with respect to this ground.

[83] The analogous provision in the predecessor legislation, the Child and Family Services Act, R.S.O. 1990, c. C. 11 (“CFSA”), was s. 37(2)(i). That provision reads:

(2) A child is in need of protection where,

(i) the child has been abandoned, the child’s parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody.

[84] Notably, s. 74(2)(k) does not include the term “abandoned”, although the rest of the language remains the same. However, despite this change in language, the general thrust of the provision persists, i.e., that a child will be found to be in need of protection where a parent had died or is otherwise unable to exercise custodial rights over the child and has not made adequate provision for the child’s care and custody.

[85] There are numerous cases which have decided that the incarceration of a parent results in a finding pursuant to s. 37(2)(i) of the CFSA, which is almost identical to s. 74(2)(k) of the CYFSA: see Catholic Children’s Aid Society of Toronto v. C.T., 2012 ONCJ 372; and Children’s Aid Society of Halton (Region) v. F. (C.A.L.), 2003 CarswellOnt 6232 (C.J.). Moreover, in the case of Children’s Aid Society of Kingston (City) v. H. (1979), 1979 CanLII 2138 (ON CJ), 24 O.R. (2d) 146 (Ont. Prov. Ct.), decided pursuant to the Child Welfare Act, R.S.O. 1970, c. 64, the court similarly held that the mother’s incarceration caused the child to be deserted and in need of protection under ss. 20(1)(b) of the legislation, which is comparable to both s. 37(2)(i) of the CFSA and s. 74(2)(k) of the CYFSA.

[86] Unavailability of the caregiver (sometimes referred to as desertion) is an objective determination and does not depend on the parent’s subjective intention: see Children’s Aid Society of Kingston (City) v. H.

[87] In Catholic Children’s Aid Society of Toronto v. C.T., the child was found to be in need of protection on various grounds, but specifically pursuant to s. 37(2)(i) because the mother was in jail and was unavailable to care for the child, and the father had no residence for him and no plan for his care. The court considered the relevant evidence, including the following: the fact that the mother was incarcerated and physically unable to care for the child; the fact that at the time of the hearing (approximately one year later), the mother had not seen the child since July 2011; the fact that the father acknowledged that the child could not be returned to his care and that he required more time to prepare for the child; and the fact that the child required a consistent and stable caregiver to prioritize the child’s best interests.

[88] In Family and Children’s Services of Lanark, Leeds and Grenville v. K.A. and M.G., 2016 ONSC 2180, the court found that the father had made no efforts to be a parent to his children and had not attempted to exercise access since their apprehension. While the court acknowledged that his explanation that he was incarcerated for a period of time may have explained some of the lack of access to the children, it in no way gave him a free pass on his failure to step up as a parent.

[89] In this case, although the Father is not incarcerated, at the time of the hearing, he had bail conditions which restrict him from seeing the children. At the time of the hearing of this matter, he had taken no action to vary those bail conditions and has offered no explanation as to why he has not done so. As a consequence, he has not seen the children in over two years. Furthermore, the arrangements made to care for the children were made by FACS. The Father now opposes those arrangements and requests that the children be placed with his sister. The Father does not explain why this proposed arrangement would be in the children’s best interests, nor does he explain why this should be done in the face of clear evidence that the children wish to remain with their Mother. His only explanation is that the Mother and G.S. have been the cause of his problems and that G.S. is a wayward child who has made up a story with the support of the Mother, which has resulted in the children living with the Mother and the Mother no longer having to pay support. I do not accept this explanation. Even if this were true, on the evidence before me, the Father and his family have done little to promote a relationship with the children. The Father is clearly unavailable to exercise his custodial rights over the children and has not made adequate provision for their care and custody.

[90] Accordingly, I make the finding that the children are in need of protection pursuant to s. 74(2)(k) of the CYFSA.

Emotional Harm

[91] Section 74(2)(h) of the CYFSA states that “there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.”

[92] For a court to make a finding under s. 74(2)(h), FACS must establish the following three things:

(a) The Society must show there is a risk that a child will suffer at least one of the emotional harms specified in the subsection (anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development);

(b) Not any degree of these possible future harms is sufficient, and the Society must establish the degree of harm is one that is serious, as opposed to minimal, mild, or moderate;

(c) The Society must establish that the risk of whatever emotional harm it is alleging is causally connected to the parent’s conduct and specifically by the actions, failure to act, or pattern of neglect of the parent.

See Children’s Aid Society of Algoma v. A.B, 2018 ONCJ 831, at paras. 13-15.

[93] FACS’ evidence provides the following examples of the Father’s actions that it argues are likely to result in emotional harm:

(a) A.K.S. disclosed that her Father had recently yelled at S.R.S. for going to McDonald’s, and it made her, A.K.S., feel uncomfortable. S.R.S. disclosed an event where the Father brought her into the garage and berated her in front of A.K.S. The Father describes this discussion as a “stern talk” but admits to compelling A.K.S. to participate as a witness;

(b) A.K.S. disclosed that she was in her Father’s truck when he recorded G.S. on his dash-cam;

(c) A.K.S. stated that she felt unsafe when her Father drove her to their trailer on Father’s Day weekend because of his driving, and that her Father did not speak to them all weekend and subsequently apologized;

(d) S.R.S. stated that on Father’s Day weekend, her Father was in a really bad mood and said that he wanted the Lord to take him away;

(e) A.K.S. stated that she misses her sister G.S., but that she is scared to tell the Father this;

(f) S.R.S. explained that she recalls seeing her Father completely naked in the kitchen at night, and that he would make no effort to cover up, and would instead engage her in idle conversation;

(g) S.R.S. explained that her Father called G.S. a “slut, a ho, a liar, manipulator, and untrustworthy”. S.R.S. said that her Father says things about G.S. that are, “degrading to us,” which shows her own emotional reaction to toxicity aimed at her sister;

(h) S.R.S. said that her Father “stalked” G.S. for months. S.R.S. said her Father would actively look for G.S. on the streets and watch G.S. at her boyfriend’s residence; and

(i) S.R.S. explained that her Father asked her to create an Instagram account so that he could post about G.S. In the Father’s affidavit he notes that he had an Instagram account and posted the comment “gross” on a photo of G.S. in a swimsuit.

[94] As previously stated, the children A.K.S. and S.R.S. were interviewed during the FACS/police investigation involving G.S. Both children were interviewed on August 10, 2018. A.K.S. confirmed that after G.S. left the home, her Father would refer to G.S. as a “slut” or a “whore”. A.K.S. also reported that her Father yelled a lot and explained that he sometimes sees G.S. on the street and exhibits weird behaviour, including obtaining a “dash cam” to record G.S. A.K.S. knew this because she has been in the truck on occasions when he has done this. A.K.S. confirmed G.S.’s evidence, namely that she did the cooking, cleaning, laundry and took care of the dog because the Father worked. A.K.S. stated that her Father would call G.S. “mama.”

[95] On the same day, S.R.S. was interviewed. She reported the following:

(a) S.R.S. confirmed that G.S. did most of the cooking and cleaning;

(b) S.R.S. confirmed that different rules existed for G.S. than they did for her and her sister, including not wearing certain clothes (i.e. short shorts, tank tops);

(d) S.R.S. confirmed one situation where her Father was naked late at night and made no effort to cover himself and instead engaged her in idle conversation while she got food;

(e) S.R.S. confirmed that her Father would scream to the point of incoherency at G.S.;

(f) S.R.S. talked about some of the names her Father called G.S., including “a slut, a ho, a liar, a manipulator, and untrustworthy”;

(g) S.R.S. talked about how her Father would talk negatively to other cashiers about G.S. at G.S.’s place of work;

(h) S.R.S. confirmed how her Father would park on the street and watch G.S.’s boyfriend’s residence;

(i) S.R.S. also created a social media account for her Father so he could post things about G.S. and follow G.S. on social media (to spy on her);

(j) S.R.S. talked about a situation in which her Father took a picture off the internet of a pregnant person and reported to others that G.S. was pregnant;

(k) S.R.S. talked about times her Father would yell and would scare her. S.R.S. reported wanting to be at her Mother’s home during those times of feeling unsafe, but was afraid that the Father would do the same thing to her as he did to G.S. and make her the villain; and

(l) S.R.S. described her Father as more akin to a roommate than a father due to his behaviour and stated that he would either be in “rampage mode” or become withdrawn when he found out about their disclosures to FACS.

[96] The Father provides examples where the video statements made by the children are misquoted. Even if I accept the Father’s evidence, the misquotes do not change the substance of the statements. Further, I am relying on the statements made by S.R.S. and A.K.S., not for the truth of the contents of those statements, but to show their state of mind.

[97] Statements being relied upon as statements to the children’s state of mind is a categorical exception to the hearsay rule. The basic requirements for the state of mind exception are as follows:

(a) A statement asserting a condition or state;

(b) The statement must comprise a contemporaneous physical, mental or emotional state of the declarant;

(d) The mental state can include a person’s present intention to do a future act; and

(e) The statement must not be made under circumstances of suspicion.

See Catholic Children’s Aid Society of Toronto v. N. N., 2019 ONCJ 8.

[98] The statements tendered relate to the following categories:

(a) The children’s views and preferences about where they wish to live and whom they wish to have access to;

(b) The children’s fear of their Father;

(d) The actions the children took in furtherance of their Father’s behavior towards G.S.; and

(e) The statements their Father made about G.S. in their presence.

[99] I find that the statements meet the criteria with respect to depicting the children’s state of mind and that the circumstances under which they were made were not suspicious, despite the Father’s allegations that the children are being coached by their mother and G.S. Each child’s statements have been consistent and are consistent with one another. Their views and preferences have remained consistent.

[100] No professional report was provided with respect to the children suffering emotional harm. However, these children have not seen their Father in over two years year. It is clear that they are scared of their Father. It is also clear that the statements made to them by their Father about G.S. have impacted them.

[101] In order to substantiate a finding of emotional harm, a clinical diagnosis is not necessary, but expert evidence is usually required: see Children's Aid Society of Ottawa v. P.Y., 2007 CanLII 14325 (Ont. S.C.); S.(D.), Re (2001), 2001 CanLII 28177 (ON SC), 14 R.F.L. (5th) 414 (Ont. S.C.); Catholic Children’s Aid Society of Hamilton v. L.(C.), 2002 CanLII 49693 (Ont. S.C.); and N.V.C. v. Catholic Children's Aid Society of Toronto, 2017 ONSC 796.

[102] In Chukwunomso v. Ransome, 2017 ONCJ 121, the court states the following at footnote 5:

“I am aware of the recent decision in the case of N.V.C. v. Catholic Children's Aid Society of Toronto 2017 ONSC 796, [2017] O.J. No. 525. In paragraphs 101 and following of that decision, Wilson, J., seems to suggest that a court is precluded from deciding that a child is at risk of emotional harm without evidence from an expert. If I correctly understand that to be the learned judge’s reasoning, I must respectfully disagree. Courts will often make decisions about emotional harm – or risk of emotional harm – to a child based on panoply of evidence. That panoply may include an expert’s report. But an expert’s report is only one piece of evidence. In my view, the presence or absence of an expert’s report regarding harm, or potential harm to a child, is neither conclusive nor, in many cases, even mandatory in order to permit the court to arrive at a correct conclusion. For example, in Simcoe Muskoka Child, Youth and Family Services v. L.V., 2016 ONSC 7039, Quinlan, J. stated at paragraph 18: “Expert evidence will sometimes [my emphasis] be required to establish a risk of emotional harm, but it is not a necessary prerequisite”. As well, see paragraphs 31 and 32 of the decision of Parfett, J. in Children's Aid Society of Ottawa v. P.Y., 2007 CanLII 14325 (ON SC) for a similar opinion. Furthermore, courts are required to consider not only the available evidence in any case – expert or otherwise - but, as well, judges should employ intelligence and common sense in drawing logical inferences from their general understanding of life itself. This application of intelligence and common sense is often referred to as taking judicial notice. An example of this application of judicial notice in the context of satisfying a court that emotional harm has occurred, can be found in the decision of MacAdam, J. in A.B.C. v. Nova Scotia (Attorney General), 2011 NSSC 475, where the learned judge stated in paragraph 50: “Experts are not required to establish that ABC suffered psychological and emotional harm as a result of the assaults by Lalo. The court is entitled to take judicial notice that such effects can be expected [my emphasis] albeit they may not occur in every case.”

[103] In Children’s Aid Society of Toronto v. S.A.P., 2020 ONCA 208, the Ontario Court of Appeal rejected an argument that the court must have expert evidence and found there was sufficient evidence that the child would suffer emotional harm if removed from a long-time caregiver.

[104] A year long period of not seeing a child is consistent with a pattern of neglect and will likely result in emotional harm: see Children’s Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754 (Ont. S.C.).

[105] Sometimes, the evidence of a child's distressed reactions to parental behaviour is sufficiently clear that a finding can be made without the opinion of an expert: see Children's Aid Society of Ottawa v. P.Y., 2007 CanLII 14325 (Ont. S.C.); Catholic Children’s Aid Society of Toronto v. E.S., 2016 ONCJ 279; and Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447. In Jewish Family and Child Services from Greater Toronto v. Ki. Sl., the court found that all of the mother’s lack of insight and her inability or unwillingness to acknowledge her daughter’s feelings of stress, fear and anxiety, revealed to the court that there was an ongoing risk of emotional harm to the child.

[106] A child who rejects a parent and will not return to their care may be at risk of emotional harm: see Children’s Aid Society of Dufferin County v. R. No., 2014 ONCJ 176.

[107] Based on the record before me, I am able to draw a reasonable inference that if the children are returned to their Father, they will suffer emotional harm including anxiety. Accordingly, I make the finding that the children are in need of protection pursuant to s. 74(2)(h) of the CYFSA.

Sexual Abuse/Exploitation

[108] Section 74(2)(d) of the CYFSA states the following:

A child is in need of protection where (d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c).

[109] Section 74(2)(c) describes two situations in which a child may be found to be in need of protection due to sexual abuse or exploitation — namely (1) when the child is experiencing sexual abuse or exploitation from the person having charge of the child and/or (2) when the child experiences sexual abuse or exploitation from another person “where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child.”

[110] None of the parties pressed the issue of a protection finding on the basis of s. 74(2)(d) of the CYFSA. However, as the request for relief was not withdrawn, I will deal with a finding under this subsection as well.

[111] The Father acknowledges a conviction for sexual assault and a guilty plea for uttering threats.

[112] In the Father’s affidavit, he notes the following: “It is true that I have had on occasion (usually after midnight) to go to the kitchen to get a snack and I would be naked. I did not talk to my daughter, [S.R.S.], naked at any time anywhere”.

[113] Neither of the children have alleged that the Father sexually abused them. In fact, they told their Mother he had not.

[114] The position of FACS in the pleadings is that given the Father’s alleged sexual assault against G.S, the statements he has made about G.S. to the children, his previous history of sexual assault, and his appearing in the kitchen in the presence of S.R.S. completely naked, while making no effort to cover himself and instead engaging S.R.S. in conversation, indicates that there is a risk that these children will be sexually abused or sexually exploited by their father.

[115] The Father denies being sexually inappropriate with any of the children.

[116] The detailed allegations against the Father in the Protection Application as it pertains to the Father’s behavior with G.S. are extremely concerning and should they be found, on a balance of probabilities, to be true, I would have no difficulty making a finding under this subsection. While G.S is not the subject matter of this proceeding, such behaviour would lead me to conclude that these children are also at risk. G.S. refused to address this issue in her affidavit. I make this statement with no criticism to her. D.W. attests to hearing G.S. describe the allegations of sexual abuse during her interview with police. While D.W.’s description of G.S.’ remarks and demeanour is admissible as evidence of his observations, it does not prove the truth of G.S.’ statements. D.W.’s recitation of G.S.’ statements, if tendered for the purpose of proving that the events described by G.S. in fact took place, is hearsay. Setting aside for a moment G.S.’ age as of the date of this hearing, the “principled exception” to the hearsay rule of inadmissibility set out by the Supreme Court of Canada in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, does not apply to save D.W.’s testimony. Without minimizing the distress that G.S. may well feel in having to review her allegations of sexual abuse against her Father, as G.S. has sworn an affidavit in these proceedings it cannot be said that D.W.’s hearsay evidence is “necessary.” There is no need to proceed to the second step of the analysis to determine whether such evidence is “reliable”. Accordingly, this court has been offered no direct evidence from G.S. on the alleged sexual assault offences. The Father, and those persons who have sworn affidavits in support of him, have raised sufficient material facts in dispute that I am unable to make a finding that the children are in need of protection under s. 74(2)(d) of the CYFSA on a summary judgment motion.

Findings

[117] I find that I am able to make the necessary findings of fact and apply the law to the facts, and that such an approach is a proportionate, more expeditious, and less expensive means to achieve a just result.

[118] I find that the evidentiary record is sufficiently comprehensive for me to make a fair and just determination of the issues on the merits without the need for a trial.

[119] The evidence satisfies me, on a balance of probabilities, that (1) intervention is required to protect the children both at the present time and for the foreseeable future; (2) an order placing the children in the custody of their Mother is the least intrusive alternative; and (3) an order placing the children in the care and custody of their Mother would be a foregone conclusion if this matter were to proceed to trial.

[120] Granting summary judgment allows the court to meet the obligations of the CYFSA.

[121] I recognize, and have considered, that in child protection proceedings, there are Charter implications at stake for vulnerable litigants. I find that it is in the interest of justice for the court to determine this matter summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. The summary judgment process allows the court to fairly and justly adjudicate the dispute in a proportionate, expeditious, and less expensive manner.

C. What is the Appropriate Disposition

[122] Having now found that the children are in need of protection, s. 101(1) of the CYFSA requires the court to determine if intervention through a court order is needed. I do find that intervention through a court order is necessary to protect these children in the future. As a result, I have to consider which of the orders under ss. 101 or 102 of the CYFSA should be made in the best interests of the children.

[123] Sections 101(2) to (4) of the CYFSA obligate the court to consider additional factors when determining the issue of placement, including whether there are any less disruptive alternatives, such as community or extended family placements, and to make inquiries with respect to what efforts FACS has made to assist the children before intervention.

[124] Sections 101 and 102 of the CYFSA provide that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders:

That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months;
That the child be placed in interim society care and custody for a specified period not exceeding 12 months;
That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123;
That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months; or,
That one or more persons, other than a foster parent of the child, be granted custody of the child, with the consent of the person or persons.

[125] When considering the above options, the best interests of the children remain the governing principle for determining their placement. In applying the best interest criteria set out in s. 74(3), the court must maintain a child-centred focus, reflecting the paramount purpose of the CYFSA as set out in s. 1: to promote the best interests, protection and well-being of children: see C.A.S v. M.R., S.P., M.P.R., 2019 ONSC 4424 at paras. 63-64.

[126] The factors to be considered in determining the best interests of the children are outlined in s. 74(3) of the CYFSA, which provides as follows:

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

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

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

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

ii. the child’s physical, mental and emotional level of development;

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

iv. the child’s cultural and linguistic heritage;

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

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

vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;

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

ix. the effects on the child of delay in the disposition of the FACSe;

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

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

The Children’s Wishes

[127] Wording of the legislation is mandatory. I shall consider a child’s views and wishes and give them due weight in accordance with the child’s age and maturity, unless they cannot be ascertained. Children are individuals with rights to be respected and voices to be heard. The aim of the CYFSA is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (“CRC”). Canada is a state party to the CRC: see CYFSA, Preamble. Article 12 of the CRC provides the following:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law [emphasis added].

[128] Both the CYFSA and international law mandate that children be given an opportunity to have their views considered in a meaningful way and that their views be given significant weight when decisions are made that affect their lives.

[129] In Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481, the Court of Appeal for Ontario emphasized the importance of the CRC and, in particular, its protection of the best interests of the children and children’s right to be heard. In doing so, it relied on the preamble of the CRC. The Court of Appeal held that children’s rights are entitled to more, not less protection, and as such, the courts must ensure they have a voice, which in turn, serves the court process and promotes their best interests: see paras. 51, 59, 61, 74 and 129.

[130] As noted, through the evidence tendered by FACS from its workers and by means of representation by counsel through the OCL, the children’s views have been ascertained and I have considered them accordingly.

Best Interests

[131] I have considered the best interests factors set out in s. 74(3) and make the following findings:

(a) the children have consistently and independently expressed their views and preferences which are to remain in the care of their Mother and not have access to their Father;

(b) the children are not First Nations, Inuk or Métis children;

i. there is no evidence that either of the children have special needs;

ii. the children have a half-sister G.S to whom they wish to have access; the Mother will promote this access, the Father will not;

iii. there are no specific considerations regarding the children’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression. I have no evidence regarding the children’s cultural and linguistic heritage;

iv. the plan will be beneficial to the children – they are happy and relaxed in the care of their Mother who provides a safe and supportive environment;

v. delay in the disposition of this case will have a negative impact on the children who have been clear about their views and preferences and clear that they want this matter finalized;

vi. there is a real and significant risk that the children may suffer harm if they are returned to the care of their Father, whom they have not seen or spoken to in over two years;

vii. as at the date of the hearing, the Father had made no effort to change his bail terms nor has he offered any evidence of anything he has done to maintain a relationship with the children;

viii. the Mother is a protective factor; and

ix. the children require consistency and stability.

[132] I find that it is in the children’s best interests to be placed with their Mother under a final order pursuant to s. 102 of the CYFSA, as this is reflected in S.R.S. and A.K.S.’ views and wishes, which, as discussed above, should be given considerable weight considering their ages and maturity. S.R.S. and A.K.S. expressed relief that FACS was seeking a permanent placement with their Mother.

Access Order as Between A.K.S., S.R.S. and Father

[133] Where an order is made under s. 102 removing a child from the person who had charge of the child immediately before the intervention, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child’s best interests: see CYFSA, s. 105(2).

[134] The OCL submits that continued contact with the Father is neither possible under his bail conditions, nor in the children’s best interests, especially given their views and wishes. A.K.S. and S.R.S. have stated that they do not wish to have contact with their Father, and that they did not report feeling any pressure or influence around this decision. The OCL submits that access to their Father be at the discretion of the Mother and in accordance with the wishes of A.K.S. and S.R.S.

[135] I am making an order that the Father shall have access with the children in accordance with their wishes. I find that the children should have a right of access to their Father. That access can take many forms (gifts, cards, in person, or by technology). I accept that the Mother has done and will continue to do what she can to promote this relationship. She has been and will continue to be a protective factor. As such, she should have discretion over access.

The Order for Access as Between the Siblings A.K.S., S.R.S. and G.S.

[136] The court may, in the child’s best interests, when making an order under Part V of the CYFSA, make an order respecting a person’s access to the child, or the child’s access to a person: see CYFSA, s. 104(1).

[137] The best interests’ criteria under s. 74(3)(c)(vi) specifically asks the court to consider the child’s views and wishes, as well as the child’s relationships and emotional ties to a sibling.

[138] Both children have stated that they want to continue to have contact with G.S. and to be able to arrange contact whenever they would like. A.K.S., in particular, described being “very close” to G.S. when they lived together. A.K.S. stated that she misses her sister G.S. S.R.S. has indicated she wants to “re-get to know G.S.” and that her relationship with G.S. when they lived together was a healthy one.

[139] FACS has not presented any protection concerns regarding G.S. Given A.K.S. and S.R.S.’s desire to have a relationship with their sister, their emotional ties to G.S., and G.S.’s lack of protection concerns, the OCL submits that it is in the children’s best interests to have access, at their discretion, to G.S. I agree.

Orders Granted

[140] Based on the evidence that has been presented and considering the factors set out in s. 74(3) of the CYFSA, I make the following order:

An order for summary judgment pursuant to Rule 16 for the following:

(a) the name and date birth of the children are: A.K.S., born [...], 2006, and S.R.S., born [...], 2005;

(b) neither child is a First Nations, Inuk or Métis child;

(d) the children are in need of protection pursuant to s. 74 (2)(h) and (k) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1.

The children shall be placed in the care and custody of their Mother pursuant to s. 102 of the CYFSA.
The children shall have access to their Father in accordance with their wishes and at their Mother’s discretion.
The children shall have access with their sister G.S. in accordance with their wishes and at their Mother’s discretion.
If costs are an issue, the parties can arrange a further attendance before me within the next 30 days to make submissions regarding costs.

Justice D. Piccoli

D. Piccoli J.

Date: December 1, 2020

FAMILY and CHILDREN’S SERVICES of GUELPH AND WELLINGTON COUNTY v. A.M.P. AND K.D.S., 2020 ONSC 7418

Case Summary