NEWMARKET COURT FILE NO.: FC-10-035751-05 DATE: 2020-12-03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Children and Family Services for York Region Applicant

– AND –

JB Respondent

– AND –

GM Respondent

Counsel: I. Couto, Counsel for the Applicant C. Adams, Counsel for the Respondent Mother C. Murphy, Counsel for the Respondent Father

HEARD: November 26, 2020

REASONS FOR DECISION

A. Himel J.

Introduction

[1] The Children and Family Services for York Region (“the Society”) has brought a motion for summary judgment pursuant to Rule 16 of the Family Law Rules.[^1] It seeks an Order finding the parents’ two children (“the children”) in need of protection and placing them in the extended care of the Society with no access to their mother (“JB”) or their father (“GM”). The Society seeks an access Order between the two children. Both parents oppose the extended care Orders.

[2] The children involved are RTM born […], 2019 (age 18 months) and CTM born […], 2020 (age two months).

[3] The Society claims that the children are in need of protection pursuant to sections 74(2)(b)(i)(ii) and 74(2)(h) of the Child, Youth and Family Services Act[^2] (“the Act”). Those sections provide as follows,

Child in need of protection

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

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(h) 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.

[4] The following are the pleadings and affidavits filed and relied upon by the Society and the parents:

(a) a Child Protection Application started by the Society on May 28, 2019 and amended on September 23, 2020;

(b) an affidavit of GM sworn November 20, 2020;

(c) an affidavit of JB sworn November 20, 2020;

(d) an affidavit of Gail Mayerlen CSW sworn November 4, 2020;

(e) an affidavit of Jacob Stokl FSW (in training at that time) sworn September 14, 2020;

(f) an affidavit of Kerri Harris FSW sworn November 3, 2020;

(g) an affidavit of Melissa Burtch CSW sworn November 3, 2020;

(h) an affidavit of Asgarali Mandan FV Support Coach sworn September 16, 2020;

(i) an affidavit of Azusa Kijima Family Finding Worker sworn September 16, 2020;

(j) an affidavit of Charity Young Nippissing FSW sworn December 27, 2019;

(k) an affidavit of Adriana Wong FSW sworn November 6, 2020;

(l) an affidavit of Adrienne Wilson FV Support Coach sworn November 4, 2020;

(m) the Answer and Plan of Care by GM dated July 13, 2020;

(n) the Answer and Plan of Care by JB dated March 4, 2020;

(o) parenting capacity assessments by Dr. Oren Amitay dated January 27, 2014; and

(p) the Society’s motion for summary judgment dated November 6, 2020.

Background

[5] The parents have been engaged in a relationship for approximately 11 years. They are the parents to nine children, all of whom were removed from their care shortly after birth and were found to be in need of protection. The children range in age from two months to 10 years.

[6] The eldest two children reside with relatives and have contact with the parents. The next five children were placed in the extended care of the Society (or made crown wards) following summary judgment motions. They have been, or are in the process of, being adopted.

[7] This summary judgment motion relates to the two youngest children. RTM has been in the Society’s care for 18 months which is in excess of the time limitation imposed by the CYFSA for a permanent plan. CTM has been in care for two months.

[8] The Society’s position is that the parents’ ability to care for children has not changed since the parenting capacity assessments dated January 2014, and the first summary judgment decision of McGee J. (the “McGee J. reasons”)[^3] which was rendered on October 10, 2014. The Society relies on past parenting concerns.

[9] The parents’ position is that the Society has never given them a chance to parent, and they are willing and able to do so. They acknowledge that they hid the pregnancies and that JB has declined to seek medical treatment. To date, their only opportunity to parent any of the children has been the time between giving birth and when the Society brings the child to a place of safety. During these brief periods of time they were able to meet each child’s needs. GM believes that the Society has given up on them and during the summary judgment motion JB called the Society “kidnappers”.

[10] Counsel for all of the parties agree that this is a sad and difficult situation. The parents’ desire to raise one or more of their children is very strong. I note that JB is 34 years of age and may give birth to one or more children in the years to come.

[11] As I explained to the parents at the end of the motion, I have reviewed their materials, and I have heard from their lawyers (and briefly from GM and JB).

Decision

[12] I have given careful consideration to each party’s position, to the legislation and the caselaw. The historical child protection concerns are ongoing. The parents have made no changes upon which one could reasonably conclude that the child protection concerns, and risks of harm, can be addressed by a less intrusive Order than extended care. The children require permanency, which in this case amounts to adoption. There is no genuine issue requiring a trial. For that reason, I am granting an Order for the relief sought by the Society.

The Law

Summary Judgment

[13] A summary judgment motion can fulfill two very important objectives in child protection proceedings. It enables the court to make an expeditious, less expensive and a proportionate disposition of a case and provides closure and direction to the children involved and their parents.

[14] The procedure governing a motion for summary judgment is set out in Family Law Rule 16, the relevant provisions of which provide as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (l) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (l).

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6. l) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parents, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[15] As stated by the Supreme Court of Canada in Hyrniak v. Maudlin,[^4]

“To succeed on a summary judgment motion, an applicant must prove that there is no genuine issue for trial on a balance of probabilities. “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”.

[16] In Kawartha-Haliburton Children’s Aid Society and M.W., Curve Lake First Nation and Office of the Children’s Lawyer,[^5] the Ontario Court of Appeal affirmed the longstanding cautious approach to summary judgment in child protection proceedings and summarized its guiding principles,

80. To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

81. 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.

82. 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.

83. 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.

84. 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.

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

[17] A two-step analysis is required. The judge must first determine if there is a genuine issue requiring a trial on the evidence without using the additional fact-finding powers set out in FLR 16(6.1). If, after this initial determination, there remains a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary.

[18] As the McGee J. reasons note, “courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgement deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge.”[^6]

[19] Overarching the court’s assessment of the evidence is the matter of the children’s best interests. Section 74(3) of the Act requires the court to prioritize those interests and mandates that the court shall,

Best interests of child

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

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

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

(c) consider any other circumstance of the case that the person considers relevant, including,

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

(ii) the child’s physical, mental and emotional level of development,

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

(iv) the child’s cultural and linguistic heritage,

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

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

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

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

(ix) the effects on the child of delay in the disposition of the case,

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

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

[20] The children’s best interests must be also be considered in the context of the relief claimed by the Society. The Society has requested an extended care Order.

Extended Care Order

101 (1) 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:

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

Access order

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

Court to specify access holders and access recipients

(7) Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the court shall specify,

(a) every person who has been granted a right of access; and

(b) every person with respect to whom access has been granted.

Discussion and Analysis

1. Is There a Genuine Issue for Trial as to Whether the Children are in Need of Protection?

[21] The uncontradicted facts are as follows: As has been the pattern during previous pregnancies, the parents denied that they were pregnant with RTM and later with CTM. JB declined to obtain medical care during either pregnancy. While pregnant with CTM she stopped taking her prescribed medication without guidance from any professional.

[22] Both children were born at home in an environment that the Society and police have described as unhygienic and filthy. JB gave birth to each child without anyone’s assistance and she clamped the umbilical code herself with items found at her home. The Father was asleep during each child’s birth.

[23] The parents denied the birth of RTM until the police were in their home. Following CTM’s birth, JB attempted to hide the baby at a friend’s home. JB smoked marijuana while pregnant with RTM and CTM.

[24] As a consequence of the lack of pre-natal care and the home births, each child was taken to hospital where they remained for several days and were provided medical treatment and monitoring for withdrawal symptoms.

[25] A finding that a child is in need of protection relates to the circumstances at the time the child was brought to a place of safety. I am satisfied there is a sufficient evidentiary basis for a finding that both of these children are in need protection. As such, there is no genuine issue for trial.

2. Is There a Genuine Issue for Trial as to Whether an Extended Care Order is Warranted and in the Children’s Best Interests?

[26] As per the McGee J. reasons, “the parents must put their best foot forward on a motion for summary judgment. A parent’s case must rest on more than mere denials or a heartfelt desire to resume care of a child. There must be clear evidence that a parent faces better prospects than what existed at the time of apprehension and that the parent has developed some new ability as a parent.”[^7]

[27] The Society submits that there is no triable issue as the same risks of harm that were before McGee J., Bennett J. and Oldham J. (and which resulted in three Orders for crown wardship/extended care no access) have continued since the birth of RTM and CTM.

The Child Protection Concerns

[28] The past and ongoing child protection concerns are set out below, along with a review of each party’s evidence and my analysis.

[29] A useful starting point is the two parenting capacity assessments that were conducted in 2013/2014. I recognize that the assessments are dated and, as such, place little weight on the findings. However, the assessments are helpful as they provide a baseline that can be used to explore whether the parents have appropriately addressed the identified challenges.

[30] The assessments completed by Dr. Oren Amitay in 2014 note that:

(a) the parents are missing key criteria for successful independent parenting. Both parents lack insight, judgement, and the ability to work with service providers;

(b) both parents tested within a borderline and extremely low level of intelligence suggesting it would be extraordinarily difficult for them to learn new skills;

(c) the parents demonstrated low levels of emotional intelligence;

(d) JB has a propensity for lying. Dr. Amitay states that he was unable to conclude whether JB’s pattern of deception indicated an evolving delusional state or a lack of awareness as to how unbelievable her falsehoods appeared to others. The father presented as a full participant to the deceptions. Dr. Amitay noted that the father’s inability to exercise independent judgement guaranteed that child protection concerns would continue;

(e) the parents appeared unable to take responsibility for the dilemmas in which they found themselves and were unable to problem solve modest difficulties or manage social interactions; and

(f) in summary “even if JB abides by all the Society’s expectations and complied perfectly with psychiatric treatment, she does not seem capable of raising one or more children on her own in the foreseeable future. In light of her and the father’s history as a couple there is no reason to believe that they would be able to work together to combine their parenting strengths so that any children in their full-time care and custody would not be at unreasonable risk of harm.”

a) JB’s Mental Health, Threats of Suicide and Self-harm, Erratic Behaviour and Unpredictability

[31] JB submits that her mental health has improved significantly over the years despite the numerous pregnancies. She has had the same family physician, Dr. L., for the past 10 years. In 2016, JB had several appointments with Dr. H., a psychiatrist, and she received updated medication for her anger/temperament as well as counselling.

[32] In JB’s opinion, her mental health issues have been properly addressed and she is stable. She knows when to consult her family doctor and request a review and possible adjustment of her medication (which assists in the management of her bipolar disorder and volatility).

[33] GM states that JB regularly becomes angry and aggressive with him during access visits, but he describes JB’s mental health challenges as minor. GM also attests that JB is medication compliant. When it becomes less effective and no longer seems to assist with her anger, volatile and erratic behaviour, they take steps to adjust the medication. Once the medication is adjusted JB’s condition improves.

[34] The Society submits that JB has a history of serious mental health issues, including voluntary and involuntary hospitalizations, and that various findings in respect of same are described in the previous summary judgment decisions. The Society disagrees that JB’s mental health is stable given her behaviour and the absence of evidence respecting medical oversight.

[35] The Society notes that despite significant mental health issues (bipolar disorder, anger, self-harming behaviour etc.), a diagnosis of cerebral palsy with a history of seizures and two pregnancies, JB has received minimal medical care over the last two years. JB has also been diagnosed with a mild intellectual delay and she struggles with her reading skills.

[36] JB did not connect with a doctor in December 2019 (while pregnant with CTM) when she advised the FSW (AW) that she was experiencing significant pain and bleeding. She failed to attend a follow up appointment at the hospital relating to respiratory concerns. JB did not connect with mental health services when she attempted self-harm by running into a busy road.

[37] JB continues to become very angry when things do not go her way during access visits. She is described by the prior Family Visit Support Coach (AM) and the current Family Visit Support Coach (AW) as emotionally dysregulated, unpredictable, aggressive and volatile. Most of these incidents included yelling at GM. Occasionally, she handled a child in a forceful/rough manner.

[38] The Family Services Worker (AW) attests that in July 2019, JB reported that she had not seen Dr. L. in years. The Society produced evidence that in 2019 JB met with Dr. L. once, in August. There is no evidence of any subsequent appointments in 2020.

[39] While pregnant with CTM, JB ceased taking her seizure medication without medical advice. While this may have been protective of the fetus, the risks to JB to GM (and to RTM during access visits), are concerning.

[40] On August 14, 2020, (while continuing to deny that she was pregnant), JB became highly escalated yelling at GM and smashing a toy on the floor after RTM bumped her head. An access coach intervened and JB was eventually transported to hospital as she reported that she could not breathe.

[41] On October 13, 2020, GM advised that following the removal of CTM, JB was screaming and yelling. She left the hospital and lay down on the highway. GM had to save her. JB does not deny this incident of self-harm.

[42] There is no evidence that JB has received any mental health treatment since August 2019. Whether or not JB has sought treatment, it is clear that JB’s mental health challenges are not being appropriately managed. For so long as they are not properly addressed, any child placed in her care would be at grave risk of harm.

b) The Parents’ Judgement, Parenting Skills, Knowledge of Child Development and Mitigating Risk

[43] The Society identifies concerns respecting JB’s poor judgement, extremely limited parenting skills, poor understanding of child development and GM’s lack of parenting skills.

[44] GM states that the Society has no evidence of the parents’ limited or lack of parenting skills. Both parents object to the Society’s position as the agency has never provided them with the opportunity to parent any of the children and, as such, an opportunity to prove that they have adequate parenting skills.

[45] JB states that she has completed various parenting classes and provides evidence from the Bounce Back & Thrive program in 2017. Furthermore, JB has experience as a babysitter/caregiver. JB has attended access fairly regularly.

[46] GM acknowledges that JB’s parenting capacity assessment indicates that, in theory, she does not have the capacity to parent children – at least not on her own. His own assessment indicated that he does have the ability to parent children. In October 2019, GM considered putting forward a plan on his own, which was upsetting to JB who temporarily stopped attending access visits with RTM. The parents subsequently re-committed to a joint parenting plan as they believe that together they can parent RTM and CTM.

[47] GM advises that the parents have interacted well with the children during access visits – feeding, changing diapers, playing and singing to the children.

[48] The Society submits as follows:

1. there are many examples of poor judgement in respect of medical care issues including: JB’s fear of doctors, her refusal to obtain pre-natal care, lying to the Society about the pregnancy, insisting on giving birth at home and leaving the hospital when she needs medical care;

2. the Family Services Worker (AW) states that the parents’ pre-occupation with blaming an adult daughter of GM for the ongoing child protection case is concerning. The Family Services Worker states that this is without basis and displays a lack of insight;

3. the parents had the opportunity to parent through access visits. In or about 2013 and 2014 they were provided support from the High Risk Infant Nurse, with the goal of educating them about infant care, child development and nutrition. There was also the involvement of the FIT worker who was engaged to provide therapeutic access with a view to improving each parent’s ability to act as a caregiver. The FIT worker found that JB was unable to transfer learning from the programs to her interactions with the children. McGee J. found that the services were terminated as it appeared there were no benefits to the process. The Family Visit Support Coach and access supervisors had consistent experiences. McGee J. also determined that the parents failed to demonstrate any significant improvement in their caregiving skills or level of insight, the parents were unable to work with service providers, and have profound and fundamental parenting challenges[^8];

4. the recent affidavits sworn by the former and current Family Visit Support Coaches (AM and AW) describe positive examples of the parents’ interactions with the children. However, there are many examples where the parents continue to struggle with their understanding of the children’s needs. For example, both parents accused the foster parents of providing expired formula (2020 Oct 01), JB alleged allergies to formula and stated that glass bottles are illegal. JB repeatedly complains that the foster parents place the child at risk by failing to tighten the car-seat straps (JB tightens them to the point of causing marks). JB believes that it is important for children to learn how to deal with the cold (in response to concerns that she was taking the child outside without proper clothing), and blames the foster parents for teaching RTM how to bump her head. JB firmly believes the above based on information she has learned about parenting. She becomes distressed and cannot be reassured that there are no concerns;

5. there are also concerns about JB’s knowledge of child development. She advised that CTM was rolling over at age two weeks. She has repeatedly attempted to put RTM into a booster seat commencing when the child was unable to hold her head steady or sit up because of her belief that three-month old babies can start using that seat;

6. the parents have not completed any further parenting programs, notwithstanding that this service goal was only one of two tasks outlined in the 2019 Plan of Care and Outcome Plans that were completed and reviewed with the parents;

7. during access visits the parents follow a strict routine relating to feeding and changing diapers, rather than responding to the children’s cues. They spend considerable time dressing/undressing and taking the children for walks in the parking lot, to provide opportunities to smoke, with little consideration to the weather and to other activities that would be more engaging;

8. GM does not mitigate the risks or protect the children during access visits. When JB gets angry and yells at GM, he responds by following her directions. While GM remains calm and redirects JB, he does not correct her misinformation (and while not labelled as bullying, the interactions may well fall into that category); and

9. when only one parent attends for access, the Family Visit Support Worker (AW) is present in the room to provide support as neither parent can manage both children alone.

[49] I find that there is a significant disconnect between the parents’ judgement, parenting abilities and the children’s needs. The parents have difficulty attending to the children during two-hour visits at the Society. JB misunderstands parenting advice, becomes angry, yells and and takes positions that are not reasonable.

[50] The parents’ minimization of the parenting concerns, choosing to blame the Society and GM’s daughter for their problems, and their over-reliance on the perceived success of the visits as evidence that they could care for the children is not grounded in reality. GM’s responses (or lack thereof) to JB when she becomes angry and emotionally dysregulated support a finding that his presence is not sufficiently protective. GM cannot form the basis of any safety plan.

c) Domestic Violence and Stability

[51] The Society reports a history of domestic violence between the parents which is evident from the access notes filed in this matter and as was also noted in the McGee J. reasons and Bennett J. (2017) reasons.

[52] JB describes the parents’ 11-year relationship, and their two-year residence (at the motel) as evidence of stability.

[53] GM denies that he has been violent towards JB but acknowledges that during access she regularly becomes angry and aggressive. He submits that the domestic violence is overstated by the Society.

[54] The access visits take place twice per week for two hours. There is no evidence as to the extent of any domestic violence between the parents for the vast majority of the time that the Society is not present.

[55] In the Plan of Care and Outcome Plans reviewed with the parents, the second task was for them to engage in individual and joint counselling.

[56] The parents registered for couples counselling with Family Services of York Region in September 2019. Counselling has not yet commenced due to the wait list and Covid-19 delays (although couples counselling may begin shortly).

[57] There is no evidence that they sought couples counselling elsewhere, or that they have sought individual counselling.

[58] Given the history of the parents and the ongoing conflict, individual and joint counselling are crucial steps. The parents have yet to learn how to interact in a way that prevents JB from becoming enraged, nor have they developed a strategy to enable GM to safely protect a child (as described above).

d) Working with the Society and the Parents’ Plan

[59] GM has previously advised the Society that he is not interested in working with them given the history of the removal of their children, his interactions with difficult and insulting workers. Both parents now state that they will work with the Society if the children are returned.

[60] GM believes that the Society has given up on the parents, and that the workers are no longer interested in working with them. When he has asked what the parents can do to address the concerns, no suggestions are offered (and instead they are told to work on capacity and conflict or are directed to speak with their lawyers).

[61] GM admits that the parents kept the pregnancy and birth of CTM a secret, as they believed that a birth alert would be sent to local hospitals.

[62] JB states that she has tried to work with the Society in an honest and transparent manner over the years, but it has been difficult to trust the Society because they remove their infants at the first possible opportunity.

[63] The parents’ offer to allow Society workers to attend at their home on a daily basis if the children are placed under a supervision Order is not realistic nor would it provide the necessary level of protection unless there was a positive and honest working relationship between the parents.

[64] Moreover, the parents’ plan to enroll the children in daycare (once age appropriate), and to rely on a friend, RW (who the Society has minimally been able to reach) and GM’s daughter BM (who resides in Gravenhurst and is available to call the parents), does not provide the measure of support or oversight that would be required to protect the children.

[65] The breakdown of the relationship between the Society and the parents, and the lack of transparency is highly problematic. Given the young ages of the children, and their vulnerability, anything less than an open and honest working relationship with the Society would put RTM and CTM at great risk of harm.

The Children Cannot Be Returned to the Parents’ Care

[66] I find that the same problems that have plagued the parents in the past, and that have led to three summary judgment motions in favour of crown wardship/extended care, continue to interfere with the parents’ ability to protect and care for the children.

[67] As stated by Spence J. in P.F. v. A.W.:

“Absent evidence of a change in attitude, or therapy to address past bad behaviour, the best way to predict how a person will behave in the future is to examine past conduct. As Justice W.L. MacPherson stated in CAS v. C.T., 2015 ONSC 32: The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents”[^9].

[68] The parents have yet to address the concerns as demonstrated by their failure to engage in counselling and appropriate medical supervision. JB’s mental health is not stable. Her volatile and unpredictable behaviour places the children at risk of emotional and physical harm. The parents do not have the necessary parenting skills or insight to parent children, as evidenced by the challenges they face in the access visits and the statements they make to the workers. Caring for the children by following a schedule respecting feeding and changing diapers, walking and playing is not sufficient evidence that the parents can meet the children’s developmental needs.

[69] The refusal to engage in a working relationship with the Society or to admit when JB is pregnant places the unborn child (and mother) at grave risk of harm, as does the decision to give birth at home (particularly since it is unhygienic, and she gives birth without medical support). GM may have strengths that could mitigate risk but he is not acting in a protective way, such that any potential benefits are lost. The parents have insufficient community and family/friend support networks to provide the degree of assistance that they would require or to provide alternate care as needed.

[70] The decision to blame GM’s adult child and the Society for the problems faced by the parents is evidence of their inability to appreciate the concerns and the risks. An inability to acknowledge challenges continues to present a significant obstacle to the parents’ willingness and ability to address same.

[71] I accept the Society’s submission that the risk of harm to the children continues to be extremely high.

[72] A supervision Order would not adequately protect the children for the reasons set out above, and recognizing that, “the cornerstone of an effective supervision order is trust and clear and accurate communication between the parents.”[^10]

Kin/Kith Placements

[73] The undisputed evidence of the Family Services Worker (AW) and the Family Finders Work (AK) is that the Society attempted to locate kith/kin from February to July 2020. The parents were guarded and not forthcoming with information. Several family members and friends, including RW, either did not respond to the Society or advised that they could not advance a plan for the children.

[74] Neither parent identifies anyone other than themselves as being able provide a plan for the care of the children.

Conclusions Respecting Placement

[75] I find that there is no genuine issue for trial, as the children will be placed in the extended care of the Society. There will be no benefit of cross-examination.

[76] The Society submits that an extended care Order will provide the children with the stability and permanency that they require. It will allow the caregivers to efficiently plan for the children moving forward including in relation to their medical and education needs. The Order will enable the children to develop within a strong and secure family. I agree.

Access

[77] In the alternative to an Order returning the children to their care, the parents seek an Order for access to the children, and sibling access between the children and the two eldest siblings who reside with kin.

[78] JB states that she believes it is in the children’s best interests to have contact with their biological family including parents, siblings and their extended family members.

[79] GM’s affidavit is silent on this issue, but I accept that he shares the same beliefs.

[80] The Society summarizes the recent Ontario Court of Appeal decision that clarifies the interpretation of the phrase beneficial and meaningful which changed significantly when the CYFSA came into force on May 1, 2018.

[81] In Children’s Aid Society of Toronto v. J.G,. section 105(6) of the Act is explained as follows:

a) A rigid approach based on the requirement that access must be “significantly advantageous” for the child is no longer applicable. Access to a child in extended Society care needs to be viewed through a global best interest test;

b) The new access test permits the court to conduct a more holistic and comprehensive analysis of what is best for a child;

c) A child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies; and

d) In considering whether a relationship is beneficial and meaningful the court can consider any factor, whether past, present or future (child’s best interest are not static). This would include the prospect of an openness order. [^11]

[82] RTM is age 18 months and CTM is age two months. RTM has had access to the parents from birth ([…], 2019) to March 2020, from June to August 2020 (daily short calls by video) and from August 2020 to present (two hours per visit, twice per week). CTM has had access from birth to present (two hours per visit, twice per week).

[83] As McGee J. noted in her 2014 reasons, and I reiterate today, the access notes provide that there are some memorable moments between the parents and the children. Generally speaking they attend regularly and on-time. However, the access notes and the evidence provided by the Family Visit Support Coaches (AM and AW) describe many incidents that are best characterized by JB’s verbal outbursts, complaints about the children’s care and some forceful contact.

[84] While the McGee J. reasons review the issue of access pursuant to the Child and Family Services Act[^12] rather than the Act, the findings made on the summary judgment motion respecting the parents’ access visits hold true today.

“The access notes do show that visits are generally enjoyable for the children. But is it not the degree of pleasantry that is to be measured. Children need a secure and positive attachment to a parent who is able to read his or her cues and respond appropriately. Children need a parent who can place his or her interests ahead of any adult concerns, and who can stay focussed on their needs during the periods of access. Only then does the relationship rise to the level of being beneficial and meaningful as defined in the case law.”[^13]

[85] Given the ages of the children and the limited contact between each of them and the parents, I do not find that either child has formed an attachment bond to the parents or that access is meaningful or beneficial to either of them. There is no evidence that an access Order will impede any adoption, but such an Order should not be made unless there is evidence (based on a holistic and comprehensive analysis) that such access is in their best interests.

[86] I find that there is no genuine issue for trial respecting the parents’ request for access.

[87] I also find that there is no genuine issue for trial respecting the parents’ request for sibling access between the children and the two eldest siblings who reside with kin. The children have never met these siblings. Having said that, I would encourage the Society to maintain some form of contact between the children and as many of the siblings as possible. In this era of social media and DNA family finding programs, the children will likely find one another eventually. It seems unnecessary and perhaps cruel to prevent contact between the siblings until they find one another as teenagers or in adulthood.

Conclusion

[88] When considering each aspect of this case individually (the finding, disposition and access), and as a whole, I recognize that:

“Courts have equated that phrase (no genuine issue requiring a trial) with “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed”, and “where there is no realistic possibility of an outcome other than that sought by the applicant”. [^14]

[89] I also consider the ages of the children and that RTM’s time in foster care exceeds that permitted by law. A final decision must be made at this time, and there are only two alternatives: placement with the parents or extended care. While CTM’s time in the Society’s care has yet to exceed the legislated timelines, a final determination is in her best interests.

“In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the Child and Family Services Act and also the best interests of the child. In arriving at such a decision, the court must give paramount consideration to the best interests test which would include, among other factors, as certain a future as possible.”[^15]

[90] I find that the Society has met its obligation of showing there is no genuine issue requiring a trial. The parents present circumstances do not show any lesser risk to the children than those that existed at the time the children were brought to a place of safety.

Order to Go as Follows:

[91] Pursuant to Rule 16 of the Family Law Rules, I make the following Orders:

1. Based on the uncontradicted evidence and pursuant to subsection 90(2) of the CYFSA, I make the following statutory findings. The children’s names and dates of birth are:

(a) RTM, born […], 2019; and

(b) CTM, born […], 2020.

2. The children RTM and CTM are not First Nations, Inuk or Metis.

3. RTM and CTM were removed from the parents’ care in the Regional Municipality of York, Ontario.

4. The children, RTM and CTM shall be be found to be in need of protection pursuant to subsections 74(2)(b)(i), (b)(ii), and (h) of the CYFSA.

5. The children RTM and CTM shall be placed in the extended care of the Society pursuant to section 101(1)(3) of the CYFSA.

6. The parents, JB and GM, shall have no access to the children RTM and CTM pursuant to section 104 and section105(5) and (6) of the CYFSA.

7. The child RTM (access holder) shall have access to CTM (access recipient) at the discretion of the Society as to times, frequency, duration, location and supervision of said access.

8. The child CTM (access holder) shall have access to RTM (access recipient) at the discretion of the Society as to times, frequency, duration, location and supervision of said access.

Justice A. Himel

Date: December 3, 2020

[^1]: All references to Rules are to the Family Law Rules (“FLR”). [^2]: 2017, S.O. c. 14 [^3]: Children and Family Services for York Region v. J.B., 2014 ONSC 5952, “McGee J. Reasons.” [^4]: 2014 SCC 7, [2014] 1 S.C.R. 87, para. 43 [^5]: 2019 ONCA 316, 2019 CarswellOnt 5927, [2014] O.J. No. 2029, 24 R.F.L. (8th) 32, 432 D.L.R. (4th) 497 [^6]: McGee J. reasons, at para. 17, citing C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357. [^7]: McGee J. reasons, at para. 64, citing Children’s Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) [^8]: McGee J. reasons at paras. 43-49 [^9]: [2016] O.J. No. 6321 [^10]: Catholic Children’s Aid Society v. P.N., 2016 O.J. No. 1581 [^11]: Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 [^12]: RSO 1990, c C.11 [^13]: McGee J. reasons at para. 78 [^14]: Children’s Aid Society of Toronto v C.J.W., 2017 ONCJ 212, at paras. 66-67 [^15]: Children’s Aid Society of the Regional Municipality of Waterloo v. R.S., [2000] O.J. 4880 (Ont. S.C.J.) at para. 23