2020 ONSC 7953

COURT FILE NO.: FC-18-428-01

DATE: 20201218

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simcoe Muskoka Child, Youth and Family Services, Applicant

AND:

A.M.B. and N.M., Respondents

BEFORE: McDermot J.

COUNSEL: Carolyn Gilchrist, for the Applicant

Dale Lediard, for the Respondents

HEARD: October 9 and 26, November 26 and December 4, 2020

ENDORSEMENT

BACKGROUND

[1] A.M.B. and N.M., the Respondent mother and father in this status review proceeding, are the parents of three boys, Li., D. and Lu. who are 8, 6 and 3 years of age respectively. It is unquestioned that they love their children; their love and affection for their children have been noted by the Society worker and they have consistently exercised their access to their children ever since the children were ordered into care in February, 2019.

[2] The Applicant Society says however that love is not enough. The affidavits filed on this summary judgment motion by both the Protection Worker and the Family Support Worker are replete with specific examples of the Respondents failings as parents. Society workers say that there has been little improvement notwithstanding their efforts, and that it is in the children’s best interests that they be placed in extended Society care without access to either parent.

[3] They speak from long experience with these parents. The Applicant Society has been involved with this family since 2012 when Li. was born. For four years after Li’s birth, the parties lived with N.M.’s parents but that broke down. The children were in the care of the Respondent parents from 2016 on, and as part of a supervision order in previous proceedings, the children were found to be in need of protection under s. 37(2)(b)(i) and (ii) under the Child and Family Services Act[^1] pursuant to an order made in April 2018. During argument, counsel agreed on the record that no new finding need be made that the children remained in need of protection; therefore, the only issue in this summary judgment motion was disposition and, if necessary, access.

[4] These proceedings were commenced as status review proceedings, with the Applicant Society originally requesting a further supervision order. As this matter progressed, the Society’s Application was amended from time to time until the Society eventually requested an order for extended care without access. The children continued to live with the parents subject to Society supervision until the children were taken into Society temporary care in February, 2019 by way of order of Eberhard J. of this court. She found that there was “a pattern of parenting amounting to neglect” and that the parents had “not demonstrated insight or ability to meet the urgent needs of the children.” She found risk of harm and ordered the children into Society care on February 21, 2019.

[5] Eberhard J. also said in her endorsement that “it has been apparent that if I make a removal order it will be difficult for the parents to demonstrate improvement in the areas of concern while the children are not in their care.” In hindsight, that statement appeared to be prescient. Both A.M.B. and N.M. have had ongoing and consistent clinically managed access since the children went into care. The Society workers say that they have observed little improvement since February, 2019 and the parents’ access has actually been increasingly restricted since then. Ms. Gilchrist on the part of the Society says that summary judgement should go for an order that the children should be placed into the extended care of the Society without access to the parents because it is a foregone conclusion on the evidence filed at the motion that this would be the result at trial. She also says that continued access to the children by the Respondent Parents is not in the children’s best interests.

PROCEDURAL ISSUES

[6] This motion was initially argued in October, 2020 over two days; technical issues prevented the argument being completed on the first return of the motion. As I was working on the decision, I discovered that the Society had failed to file a Plan of Care as required under s. 100 of the Child, Youth and Family Services Act[^2] (the “CYFSA”). It was also determined that the parents had not filed an Answer or Plan of Care either. We had to appear a third time to set a timetable for the filing of the Society Plan of Care and the Respondents’ Answer and Plan of Care. We also had to set a further date for submissions on the Plans of Care once filed; all of this delayed release of this endorsement.

[7] When the parties attended to address the respective Plans of Care filed by both Applicant and Respondents, I noted to them that the statutory findings made in April, 2018, when the original supervision order was made, were not on the continuing record and the Statement of Agreed Facts on which the statutory findings were based was also not on the continuing record.[^3] This was of concern, because those findings were made 13 days prior to the CYFSA coming into force, which included Métis people as indigenous persons, while they were not previously so included in the legislation that the CYFSA replaced. Those findings remain unlocated, and it was therefore necessary to make new statutory findings at this motion.

[8] These findings are mostly uncontroversial. However, one necessary finding caused me concern as the parties have all agreed that these children are of Métis heritage. There was no evidence of service on either a band or the Métis Nation of Ontario, an agency which has been providing assistance to A.M.B. according to her affidavit. In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, Benotto J.A. noted that the CYFSA requires “a finding as to the children’s First Nations status” [para. 59] prior to making a finding that the children are in need of protection, and stated that it was an appealable error to fail to make that finding as the divisional court in that matter had therefore “failed to address the significance of these children’s connection to their Indigenous culture, community and heritage” [para. 61].

[9] In the present case, the parties all agreed that the previous finding made of the children being in protection from April, 2018 could stand and that no new finding needed to be made. Therefore, no finding of the children being Métis needed to be made prior to making a finding that the children were in need of protection because the court did not need to make that finding in this motion for summary judgment. However, I remained concerned about service as the Métis community may have had something to say regarding the interests of these children, who were agreed to be Métis. My question to the parties was whether disposition of this motion ought to be delayed until service was effected on the Métis Nation of Ontario, and that community be given an opportunity to come into this litigation to make submissions as to the best interests of the children.

[10] All of the parties agree that these children are Métis. However, the fact that they are Métis, and a corresponding finding will be made that they are Métis does not necessarily mean that service is on a band or the Métis Nation of Ontario is necessary. As pointed out by Ms. Gilchrist, s. 79(1)4 of the CYFSA provides that a “person chosen by each of the child’s bands and First Nations, Inuit or Métis communities” are necessary parties entitled to service of the application. However, she notes that, under the regulation identifying first nations communities,[^4] the only identified First Nations Community is the Inuit Tapariit Kanatami; there is no Métis community identified in that regulation or in any other regulation made under s. 68(1) of the CYFSA identifying indigenous communities under the legislation.

[11] Because of this, there is no Métis community which can be served with process in child protection litigation in Ontario under the CYFSA. As pointed out by Sherr J. in Catholic Children’s Aid Society of Toronto v. S.T., 2019 ONCJ 207, [2019] O.J. No. 1783 (C.J.) at para. 49, where a Métis or other First Nations community cannot be identified under the CYFSA, that community’s statutory rights under the act, including the right to “notice and participation in a protection proceeding” are not activated. Although certain other considerations are activated by a finding of Métis heritage, including a right to placement in a Métis home where possible and customary care, there is no necessity to serve a Métis community with notice of proceedings as no Métis community is identified under the CYFSA or its regulations.

[12] I therefore found that there is no need for service on the Métis Nation of Ontario or any other Métis community as they presently remain unidentified under the CYFSA.

[13] However, as noted above, the last finding of the children to be in need of protection was made under the former legislation. The record concerning that finding is defective, as it is lacking the Statement of Agreed Facts under which the findings were made. New statutory findings will need to be made. Because of this, I will also be making a new finding that the children are in need of protection under the successor provisions of the new legislation, which, based upon the submissions of all of the parties, will be noted as being unopposed.

SUBSTANTIVE ISSUES

[14] The substantive issues to be addressed in this matter are as follows:

a. Has the Applicant demonstrated that there is no genuine issue for trial that the children should be placed in Society extended care?

b. If extended care is granted, is there a genuine issue for trial that there be no access to either Respondent?

Result

[15] For the reasons set out below, I have made the following determinations:

a. There shall be an order for extended care of the three children in this matter pursuant to s. 101(1) of the CYFSA;

b. There shall be a focused trial on the issue of access to the parents. Pending that trial status quo (access at the discretion of the Society) to continue.

ANALYSIS

[16] In light of the determination made on consent in April ,2018 that these children were in need of protection, counsel have agreed that there was no further need to address the issue of whether these are children in need of protection.[^5] Argument was concentrated on the issue of disposition in light of that finding.

[17] This is a motion for summary judgment under Rule 16 of the Family Law Rules.[^6] I will firstly address the requirements for a summary judgment determination, after which I will address the specific issues of extended care and access.

Summary Judgment

[18] Rule 16 of the Family Law Rules provides the court with jurisdiction concerning an order for summary judgment, which effectively dispenses with the requirement of a trial prior to making a final order. The Rule provides as follows:

a. The moving party must provide affidavit evidence that “sets out specific facts showing there is no genuine issue requiring a trial”: Rule 16(4);

b. The responding party must provide factual evidence showing a genuine issue for trial and not “mere allegations or denials”: Rule 16(4.1);

c. A party relying on hearsay evidence runs the risk of “conclusions unfavorable” to that party: Rule 16(5);

d. The court has the power to weigh evidence, evaluate credibility of a deponent or to draw any reasonable inference from the evidence: Rule 16(6.1); and

e. If there is an issue, the court may make an order for summary judgment on some issues, and to direct a focused trial or “mini-trial” respecting specific issues where a genuine issue has been raised on the evidence: Rule 16(6.2).

[19] Much of the case law respecting summary judgment in family matters draws on child protection claims. This is because the trend in recent years is to resolve child protection matters through summary judgment motions. In earlier years, Societies were forced to undergo expensive and lengthy trials in protection claims, but increasingly these cases are managed through Rule 16 motions for summary judgment. Because of the nature of these cases, in which Societies can present overwhelming evidence concerning parenting issues of often marginal or economically disadvantaged individuals, most contested children’s aid proceedings are initially submitted to the courts by Societies by way of summary judgment requests.

[20] This is most often done in cases where resolution is impossible because the Society in question is requesting extended care: described as the “capital punishment” of child protection matters,[^7] these cases are difficult to settle largely because of the result which removes the respondents from their parenting role, removes the children from their care and inevitably come along with a request to terminate all access to the children. And the much greater resources of Societies over those of parents highlight the needs of the court to exercise extreme caution in coming to a conclusion in summary judgment motions for extended care.[^8]

[21] The leading case concerning summary judgment is, of course, Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87. In that case, the Supreme Court dictated a two stage process:

a. Firstly, the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1);

b. If, after that analysis, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers (weighing evidence; making credibility findings, etc.) to determine whether a trial is required.

[22] The test of “no genuine for trial” has been referred to in a number of ways. It is been equated with “no chance of success” and “plain and obvious that the action cannot succeed”: Children’s Aid Society of Oxford (County) v. J(J), 2003 CanLII 2388 (Ont. S.C.J.) at para. 8. The test has also been enunciated as being when “the outcome is foregone conclusion” or when there is “no realistic possibility of an outcome other than that sought by the applicant”: Catholic Children’s Aid Society of Metropolitan Toronto v. O(L.M.), 1996 CanLII 7271 (Ont. S.C.J.) at para. 80 and Children’s Aid Society of the County of Lanark and Town of Smiths Falls v. S.M., [2010] W.D.F.L. 2361 (Ont. S.C.J.) at para. 21.

[23] Rule 16(4.1) provides that the responding party has a duty to provide a narrative of the facts upon which he or she relies. This requirement has often been referred to as a party putting his or her “best foot forward” in response to a motion for summary judgment: see Children’s Aid Society of Toronto v. E.L.L. (2000), 2000 CanLII 11422 (ON CJ), 134 A.C.W.S. (3d) 263 (Ont. C.J.) and Rogers Cable TV v. 373041 Ontario Ltd., 1994 CanLII 7367 (ON SC), 1994 CarswellOnt 166 (Gen. Div.). In assessing their evidence, it is assumed that all of the evidence that those respondents would present at trial are contained in their affidavits: see Children’s Aid Society of Toronto v. E.L.L. (supra) and Children’s Aid Society of Simcoe (County) v. R.(D.), 2010 ONSC 2092 at para. 6.

[24] This does not, however, change the fact that it is the onus of the Society to prove that there is no genuine issue for trial and that onus does not change. Whatever evidence is provided by the parents, the Society always has the burden to prove that there is no genuine issue for trial.

[25] This was confirmed in Kawartha-Haliburton Children’s Aid Society v. M.W, supra. In that case, the Court of Appeal confirmed that the court must approach summary judgment matters with extreme caution and, at para. 80, adopted five principles from which Ontario courts must approach summary judgment matters. These are as follows:

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

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

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

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

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

[26] Other than consideration no. 4 (these Respondents were fully represented by counsel), all of these factors are applicable to the present case as the parents have advised that the children are of Métis heritage through both sides of the family and that is confirmed by the Society evidence.

[27] One of the issues for the Applicant Society is whether there has been improvement on the part of the parents considering the resources which have been devoted to them. This is important because one of the tests for summary judgment is whether there has been an improvement in the parenting abilities of the responding party. Do the “risk concerns that existed at the time of the apprehension still exist today?” See Children’s Aid Society of Toronto v. T.T., [2012] O.J. No. 1649 (Ont. C.J.) at para. 32. If it is uncontested on the evidence that the same risk factors continue as before, then summary judgment in favour of the Society should go.

[28] T.T. also confirms that the statutory time lines are extremely important in determining disposition. In the present case, the children have been in care since February 21, 2019. Although the time lines were interrupted by the Provincial order in counsel extending statutory time lines because of COVID, the children have still been in care for more than a year, even excluding the period of time between March and September, 2020. For the two youngest children, the time lines have expired. The legal process cannot be used as a means of “buying time” to permit the parents to improve and permanency planning must be addressed within a reasonable time especially when the time lines have expired: see Children’s Aid Society of Ottawa v. C.(S.), 2003 CanLII 67754 (ON SC), 2003 CarswellOnt 9373 (S.C.J.) at para. 31.

Extended Care

[29] These children were found to be in need of protection in April 17, 2018 based upon what is now s. 74(2)(b)(i) and (ii) of the CYFSA. This subsection provides for a finding that a child is need of protection based upon the child being “likely to suffer physical harm inflicted by the person having charge of the child” because that person’s “failure to adequately care for, provide for, supervise or protect the child” or that person’s “pattern of neglect in caring for, providing for, supervising or protecting the child.”

[30] As the parties have agreed that no further finding need be considered for the purposes of this motion, I consider this original finding as the basis for the claim for extended care by the Society.

[31] The Society requests an order without a trial for extended care of the children at issue in this matter. The order is requested under s. 101(1)3 of the CYFSA. That order must be made in accordance with the child’s best interests.

[32] Best interests are defined in s. 74(3) of the CYFSA. That section requires the court to give weight to the child’s “views and preferences” where possible, as well as a child’s “Métis culture”. It is acknowledged that these children are of Métis heritage, even though the parents are not recognized as members of the Métis nation.

[33] In addition, s. 74(3)(c) requires the court to consider a number of criteria in determining best interests:

(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.

[34] The criteria under s. 74(3)(c)(i) and (ii) can be classified as relating to the particular needs of the child; s. 74(3)(c)(iii) and (iv) as cultural factors and s. 74(3)(c)(v), (vi), (vii) and (x) as the child’s connection with his family and parents, obviously of concern in a claim for extended care without access. The final three clauses of the subsection, s. 74(3)(c)(vii), (ix), (x) and (xi) can be classified as issues arising out of the findings that the child was in need of protection.

[35] The court must always bear in mind the fact that all of these are being considered in light of Rule 16 of the Family Law Rules insofar as the Society posits that these findings may be made without a trial, and that there is no genuine issue for trial that these children can be placed into the care of the parents within a reasonable time. Again, the Society bears the onus of proving that there are no triable issues concerning extended care.

[36] Mr. Lediard, counsel for the Respondent, in argument, said that the Society’s arguments fail in five different areas:

a. Whether the parents met the conditions imposed by the Society;

b. Whether proper services have been provided to the parents by the Society workers;

c. Whether the Society properly attempted to address family reunification;

d. Whether the Society have adequately considered whether the parents can care for one or two of the children rather than all of them; and

e. Whether access remains in the children’s best interests.

[37] The first four issues are in respect of the extended care claim while the last is respecting access. Of the first four issues, a. and b., are related to whether the parents were able to meet the needs of the children or whether the Society provided proper resources to do so. The third and fourth issues, c. and d., concern maintenance of the children’s connection between family and their culture. I will consider Mr. Lediard’s arguments in light of the best interests criteria set out above.

Needs of Children / Protection Issues

[38] The Society has provided substantial evidence that these parents have never been able to successfully parent the children on their own. The Society has been involved with these family since Li.’s birth in 2012. After the birth of Li., the parents moved in with the paternal grandparents and stayed with them for four years. After that living arrangement broke down in 2016, the parents obtained their own residence, but there were continued problems. The worker observed that the parents had difficulty keeping order in the household or in providing proper feeding or care of the children. The children’s health issues and vaccinations were unaddressed. The neighbours observed angry outbursts by the parents against their children. Those outbursts continued during access visits after the children were removed from the parents’ care in February, 2019.

[39] As well, the parents were unable to follow through with resources which would assist them with the raising of their children. These children all had special needs and would have been a challenge for even the most competent parents. However, there was evidence that there were solutions for the children’s needs which the parents were unable to implement. When the children were removed from their parents’ care in February, 2019, none of the children, then 6, 4 and 1½, were toilet trained and they remained in diapers; within weeks of going into foster care, the two older children were toilet trained. On coming into care, D., the middle child, did not communicate with words but only by babbling and Li., the oldest child, communicated through grunts. Both of those children have now found a means of communicating, Li. through a speech talk device and D. through delayed speech. It took removal from the parents’ care to permit these improvements taking place. The children’s marked improvement after going into foster care is indicative of the failure of the parents in obtaining necessary services for the children.

[40] This may be because of the parents’ own limitations. On October 16, 2019, A.M.B. obtained a psychological assessment of herself; that assessment indicated a “major depressive disorder”, “generalized anxiety disorder” and “borderline to mild intellectual disability”.[^9] There was also evidence that A.M.B. failed to follow up on resources to assist her with these problems which would obviously affect her ability to parent the children. It was clear from the affidavits that A.M.B. had to obtain assistance from her partner, N.M. to assist her in parenting the children; however, he was often unavailable because he spends much of his time on videogames. When she became frustrated during access visits, she often turned to N.M. who also largely became the person responsible for meeting the Family Resource Worker at the beginning of access visits, with A.M.B. being absent. In the psychological report obtained by A.M.B., she confirmed to the psychologist that “she has little to do with the children at home” because of fatigue and depression.[^10]

[41] Notwithstanding this, there were real concerns as to whether A.M.B. and N.M. were able to seek out or continue on a consistent basis with resources provided by the Society to assist them in parenting their children. N.M. has failed to provide a psychological assessment similar to that provided by A.M.B. The mother’s physician was unable to refer A.M.B. to a professional for PTSD therapy: she failed to show for a follow-up appointment to make that referral. In July 2020, the parents failed to follow up with Catulpa Community Support Services for the Wrap Around program, which would have provided a comprehensive resource plan for these parents. These are only a few of the examples of the parents failing to obtain or continue with therapy designed to assist them in parenting their children or to plan for a return of the children to their care.

[42] These problems have been confirmed by several of the resource workers involved with this family. Sandy Parks, who was A.M.B.’s primary nurse practitioner at Chigamik Community Health Care Centre in Midland, worked with A.M.B. from October 6, 2017 to July 25, 2018. She is a nurse practitioner with Chigamik.

[43] Ms. Parks provided a letter dated March 16, 2018[^11] which opens a window on how the Respondent Mother and Father were parenting the children when in their care. The contents of that letter were confirmed by an affidavit sworn by Ms. Parks on October 8, 2020 and the letter is therefore not hearsay evidence, now largely unusable in child protection summary judgment motions: see Kawartha-Haliburton Children’s Aid Society v. M.W., supra, at para. 78 where Benotto J.A. adopts a statement from Children's Aid Society of Toronto v. B. (B.), 2012 ONCJ 646 that evidence which is inadmissible at trial should not be used in summary judgment motions.

[44] The correspondence from Ms. Parks confirms her concerns for the welfare of the children while in the care of these parents. She confirms the two older children’s special needs, although she mentions that D.’s “quiet demeanor is a symptom where he is not being appropriately stimulated to learn in a health (sic.) way.” Ms. Parks attributes this to both parents’ suspected developmental delays and their inability “to critically think what is healthy or not healthy behavior” or “to read cues for basic needs”.

[45] Regarding Li., the oldest child, Ms. Parks confirmed that this child, because of his special needs, “requires continuity of care, consistency and routine, which is not provided in his current home.” She confirms that the parents have very poor control over Li. and cites an incident when A.M.B. brought him into the clinic when “she yelled at him in the waiting room the entire time.” She describes a situation where the child’s behavior is “completely out of control” and parents who are unable to manage that behavior other than putting him in front of the television to distract him.

[46] Regarding the youngest child, Lu., five months old at that point, Ms. Parks cites A.M.B.’s missing a two-month immunization appointment resulting in a “viral infection” which “couldn’t exclude pneumonia.” Ms. Parks had difficulty in having A.M.B. or her mother attend a follow up appointment for Lu. and left many unanswered messages on A.M.B.’s and her mother’s phone. It took a month for A.M.B. to follow up with that phone call.

[47] Finally, it is concerning that Ms. Parks conveyed that A.M.B. says that N.M., who seems to be the nominee for parenting the children on access visits, is not much help as he is on the internet watching videos or gaming much of the time. Ms. Parks concludes that these parents have no capacity to parent “a globally delayed boy, and 2 other siblings in a high functioning manner.” She says, “you can wrap as many services around this family as you wish, but until you are prepared to provide a live in adult who has the capacity to parent [A.M.B.] and [N.M.] and their children” there is little hope for a “healthy future” for the children. In other words, she concludes that this is a situation of “children having children” with the parents requiring full time supervision in order to parent these children. Although there is a debate about services for these parents, she concludes that, in 2018 at least, the parents require a full-time caregiver, which is a resource simply not available from the public health authorities.

[48] The Public Health Nurse for County of Simcoe Muskoka, Mary Lynn Brodeur, has also provided a letter dated January 30, 2020,[^12] again confirmed by affidavit.[^13] The letter confirms A.M.B.’s involvement in the Healthy Babies Healthy Children program (“HBHC”) as well as Ms. Brodeur’s involvement with the parents up to the date of the letter.

[49] That letter confirms that the parents had difficulty in engaging in HBHC. Three areas were identified, being Healthy Attachment issues concerning the children, Nutritional Challenges and Child Growth and Development. On at least two of three of these concerns, the parents were unable to follow up with HBHC to address the issues.

[50] Regarding Healthy Attachment issues, described as “concerns about caregiver social emotional grown fostering and response to child’s distress”, Ms. Brodeur said that she was “[u]nable to work on this goal due to the challenges with a number of cancelled visits and lack of engagement from the family”. Regarding healthy nutrition, largely dealing with the failure to provide Lu. M., again family engagement was a problem: Ms. Brodeur said that “[t]he family was unprepared for visit to move forward on goal accomplishment and [A.M.B.] declined to participate.” It was not until the children went into foster care that Lu. began to eat textured foods and learned to chew food; by then he was 17 months of age.

[51] Another issue that the children had before coming into care was that they expressed frustration through headbanging. The parents were unable to stop this behavior. It cleared up in foster care and the evidence of the Society is that there is no further headbanging by the children in foster care.

[52] These letters indicate that, prior to the children going into foster care, the parents were not meeting the children’s basic needs. This situation appears to have continued to the present day. Since coming into care, the parents have received clinically managed access with a Family Support Worker, Alexandra Knox, supervising access in the parents’ home. She notes in her affidavit[^14] that, in some areas, there is little improvement. In her report which covers access from December 23, 2019 to March 23, 2020 (after which COVID put a stop to supervised access for a significant period of time), the worker notes that A.M.B. continued to yell at the children when they misbehave and noted inconsistent parenting by both parents. She said that A.M.B. continued to fail in consistently enforcing rules concerning the children’s mealtimes. The notes confirm a continuing need to provide the Respondents with rules and guidance regarding basic parenting rules in order to meet their children’s needs. Headbanging continued to be a problem in the parents’ home during the supervised access visits; in her December 2019 report, Alexandra Knox noted that on January 6, 2020, Lu. was getting ready to headbang and N.M. failed to intervene. Finally, A.M.B. did get up to stop the event from taking place, but the worker indicated that the parents were late in picking up the cue that Lu. was getting ready to headbang.

[53] There is little indication of how the parents were doing after that date as COVID interfered with supervised access and the C.A.S. office was closed for a period of time because of the pandemic. Although visits have now resumed, the visits are now limited to one child visit per week, plus a visit with all three children weekly.[^15]

[54] The Society evidence confirms that the parents were not meeting the children’s basic needs, and that there has been little improvement in that area. How did the parents respond to the Society affidavits?

[55] A.M.B. filed a lengthy affidavit in opposition to the material filed by the Society in this proceeding. Unfortunately, it is long on assertions, and short on evidence in support of the position of the Respondents. She begins numerous paragraphs in her affidavit by the words “I believe” or “we believe” but fails to provide evidence upon which to base that belief. The beliefs of the Respondents are not evidence; they are simply what the parties believe. The affidavit is, in the words of Professor James MacLeod,[^16] numerous “conclusions dressed up as facts” and does not meet the requirements of Rule 16(4.1) which states that a party responding to a summary judgment motion cannot rely “on mere allegations or denials” and must provide evidence of “specific facts showing that there is a genuine issue for trial.”

[56] For example, one of the major assertions of A.M.B. is that it was the fault of the Society workers if there were any parental failures on the part of A.M.B. She says that she and her mother were both crown wards and that she believes that “this has caused me to have a deep resentment and distrust towards the Society and its workers.”[^17] She complains that the Society workers were “generally” giving A.M.B. and N.M. “positive feedback” yet writing negative comments in their notes.[^18] Later, she inconsistently states that “[t]he Society and service providers were confrontational and threatening in their approach, always telling us they were going to take our children away.”[^19] Her evidence is inconsistent, and there is no specific evidence or examples as to either assertion contained in her affidavit. It is difficult for me to draw any sort of conclusion from her affidavit as to her assertion that it was the fault of Society workers that she and N.M. were unable to improve their parenting skills or whether the workers were either “positive” in their feedback or “confrontational and threatening.”

[57] Regarding parental outbursts, noted as a concern by neighbours, the C.A.S. worker as well as Mary Parks, A.M.B. says that she is working on those outbursts through marriage counselling. She acknowledges that the first attempt at marriage counselling failed, but that she is trying again through counselling from the Métis Nation of Ontario. She does not address the fact that many of these outbursts were observed to be against the children or at the family pet rather than each other. She does not address the specific incidents spoken of in the Society evidence, such as the incident observed by Ms. Parks of A.M.B. yelling at her child in the waiting area. Specifically, the concern is not necessarily the state of the relationship between A.M.B. and N.M., but rather A.M.B.’s inability to parent the children without yelling at them in order to control their behavior which is acknowledged to be difficult to manage.

[58] Paragraphs 20 to 25 of the Respondent Mother’s affidavit were intended to address the failure of the parents to follow through with resources provided to them by various agencies, including the C.A.S. Although A.M.B. says that she is on a waiting list to obtain an adult support worker, she does not answer the concerns of cancelled visits with HBHC raised by Ms. Brodeur in her report. She also did not specifically address her failure to follow through on nutritional education that Ms. Brodeur wished to follow through on with the parents. She does not specifically address the failure to provide the DNA which was requested in order to confirm the reasons for the children’s developmental delays although she seems to be aware of the genetic testing showing that the children were missing a chromosome associated with developmental delay.[^20]

[59] Although A.M.B. says that many of the issues leading the children to being brought into care “have been resolved”, they were resolved specifically by the children being brought into care, where the toilet training issues, headbanging and textured foods concerns for Lu. were successfully addressed in fairly short order by the foster parents. She does nothing in her affidavit other than blame the Society workers for the lack of progress and follow through without acknowledging her own role in all of that.

[60] Although A.M.B. says that the Society failed to assist her in obtaining an adult support worker, that was incorrect. As early as 2014, A.M.B. was asked to follow up with Developmental Services Ontario to obtain an adult support worker.[^21] In 2017, Marg Scheurs, Social Worker at Orillia Soldiers Memorial Hospital was referred to the parents, in part to assist them in completing an intake for an adult support worker.[^22] As recently as November, 2019, the parents were referred to Catulpa Community Support Services for the Wrap Around program;[^23] although there is hearsay evidence in the affidavit that they did not follow through on the Wrap Around Program, that is not the issue; the real concern for this court is that A.M.B. is incorrect when she says that she received no assistance in obtaining adult support services.

[61] There is also evidence that there were certain expectations of the parents in their clinically managed access which began after the children went into care. The goals for access were supplied to the parents on July 22, 2019. They include the parents being prepared for access at 8:00 a.m.; removing hazards from around the home; keeping the television off; no physical discipline and refraining from outbursts and arguing.

[62] From the affidavit of the family support worker, it appears that the parents have had partial success in meeting these goals; N.M. is usually outside ready to welcome the children although A.M.B. is often not ready. There are no hazards around the home; however, the worker noted in her notes that as late as December, 2019, the parents “struggle to adequately supervise the boys and ensure their safety when outside and inside the home.”[^24] The parents still sometimes rely upon electronics to occupy the children but there has been no physical discipline. Outbursts and yelling at the children continue; Ms. Knox concludes that “the parents have difficulty implementing the interventions, following the access expectations and following through with consequences.” She notes that “[t]he same concerns observed now, are the same concerns noted by previous and current workers.”[^25] In other words, she concludes that there has been little improvement since the children were brought into care.

[63] Access in the community has been unsuccessful. When the parties attempted a church visit in August, 2019, the children’s behavior became difficult for the parents to handle, and A.M.B. was disruptive. The church has requested that there be no further access visits at the church.

[64] In sum, the Society has provided consistent evidence as to the parents’ inability to properly parent or care for their children. This largely results from their own developmental delays, acknowledged in A.M.B.’s affidavit. It may not be their fault, but the court is not intent upon finding fault; the determination that must be made is whether the parents’ inability to care for their children, and their failure to follow up and improve in this area means that it is impossible for the children to be returned to their care in the foreseeable future. The parents have done little to respond to the Society evidence, as there are many assertions in their affidavits without much in the way of coherent evidence to back up those assertions. Because of this, the Society concerns about the Respondents’ parenting issues remain unanswered. The Society has therefore proven on the balance of probabilities that there is little prospect for A.M.B. or N.M. improving on their care of the children sufficiently to permit the return of the children to them in the near future and that the children would be at risk if they were returned. Based upon the lack of progress and the expiry of the timelines, the lengthy and indefinite delay in waiting until the parents are ready for these children is also unacceptable.

Cultural Factors

[65] These children are of Métis heritage although they are not registered members of the Métis Nation of Ontario. If the parents have had success in therapy or assistance, it has been, according to A.M.B.’s affidavit, through the Métis Nation of Ontario which continues to provide them with counselling services.

[66] There is little evidence as to the children’s heritage in the Society affidavits. The children are presently in two different foster homes, Li. and D. in one home and Lu. in a second home. Neither of these homes, as far as the evidence goes, are Métis homes or constitute customary care.

[67] The Society’s Plan of Care states that the children “may” be of Aboriginal Heritage; the Society says that this is “being explored” by the Family Finding Department of the Applicant. This is contrary to the statements in the worker’s affidavits which state unequivocally that the children “are” of Métis heritage. It is significant that the children have been in care since February, 2019 without the children’s aboriginal heritage having been resolved or addressed by the Society after all of this time.

[68] However, nowhere do either of the Respondents address cultural factors. They do not suggest this to be a triable issue in A.M.B.’s affidavit. They have not filed a Plan of Care which addresses the culture and heritage of the children; all that it says is that the parents will continue to obtain counselling assistance through the Métis Nation of Ontario.[^26] They do not suggest how they would address the cultural issues for these children or how they would maintain the children’s Métis heritage if the children were placed in their care.

[69] Neither party has addressed this issue to any great extent. Based upon the evidence, the cultural factors do not appear to have played a large role in the issues between these parties; nor do they appear to carry any great deal of weight for either party. There is little or no evidence on the record as to whether the children’s aboriginal heritage is a factor concerning best interests of the children. The issues surrounding the children’s aboriginal heritage are certainly not sufficient to override the parents’ inability to parent these children or to provide a safe and secure home for the children in the foreseeable future.

Family Reunification

[70] As noted above, the Respondent Parents love their children; that is unquestioned by all parties. Their plan as expressed by A.M.B.’s affidavit and their lawyer in argument[^27] is to have two children returned to them, Li. and D.; the suggestion is that the youngest child, Lu. be placed in the care of N.M.’s parents who now live in Chatham.[^28] As noted in A.M.B.’s affidavit, that reflects the present foster care situation as the children are presently split between two foster homes as noted above.

[71] The parents’ plan obviously meets the needs of the children to have continued connection with their family. It would remove the children from foster care and place the children with family members, meeting the best interests criteria contained in s. 74(3)(v) and (vi) of the CYFSA.

[72] Mr. Lediard on behalf of the parents suggests that the Society has failed to adequately address this plan and the importance of family reunification in its materials. A.M.B. also notes that the fact that two children are in one foster home and one in another goes to prove that no one could easily parent the three children together, which he says would support the parents’ plan that they receive care of two children and his parents the third.

[73] The first difficulty with this plan is that the Respondent Father’s parents are not willing to cooperate in the kin assessment being performed by the Society in Chatham. In reply to a Social History Questionnaire sent to the grandparents by the Chatham Kent Children’s Aid Society in furtherance of its kin assessment, the paternal grandfather, J-P. M. sent the kin investigator a rambling and somewhat disjointed email dated June 29, 2020 which stated:

I find it very hard not to hate or resent the Government’s Children Aid and their questionnaire. Thinking themselves to be very clever and truly believing that they are gods looking and trying very hard to dig up some dirt from our pass (sic.). The examiner can’t be both. The specimen and the examiner. Human beings are full of flaws and errors and the examination of me and my wife from the Government’s Children Air (sic.) is tainted blood.

[74] After providing an internet definition of “taint”, he goes on to say:

What could possibly be more corrupt than corruption itself, painting themselves pretty as a picture? A bunch of unholy, ungodly people that think that we as humans suck. That we need to do as they say and not do as they do. Yes Sara, you are reading the truth behind my heart, and how I see the ugliness behind the mask of their discussing (sic.) disguise. I can’t believe that Jesus what (sic.) me to be submissive to these so-called authorities. People that are not even fit to untie His sandals are looking at me under a microscope with logs in their eyes. What is irony?[^29]

[75] The conclusion to be drawn appears to be that the paternal grandparents would not be completing the questionnaire or cooperating in the kin assessment.

[76] I note that, under Kawartha-Haliburton, I cannot rely upon hearsay evidence in addressing a summary judgment motion as presently before the court. However, this email is not hearsay evidence; it does not go the truth of the statements made by the third party (the character of the Chatham Kent kin assessment workers compared to his own character) but goes to show the paternal grandfather’s attitude towards the Society workers.

[77] It is obvious that J-P M. has a dim view of the Society and its workers. Although J-P M. has religious views that must be respected, there is animosity and hostility expressed in the email that goes beyond inquiring as to the need for the completion of the questionnaire. As a result, the paternal grandparents apparently are refusing to complete certain documents and paperwork requested by Chatham Kent. They are unlikely to be approved as kin for placement of one or more of the children and they are also unlikely to comply with any supervision order issued by this court.

[78] This is also apparent from the paternal grandparents’ inconsistent behavior. The Respondent parents lived with them for the four years after Li.’s birth; the paternal grandparents brought that arrangement to an end. They originally said that they were willing to be assessed as kin for one child, D., in February, 2019; they then withdrew in March, 2019 and then returned to the kin assessment process in February, 2020. It is unclear as to whether they are now willing to take on Lu. as suggested by the Respondents.[^30] They have not been consistent in their access and have not seen these children since December 14, 2019.[^31] They now live in Chatham, a lengthy distance from the parents who do not drive; there would be little contact between siblings if Lu. was placed with them. They are not a viable option for the placement of Lu. as suggested by A.M.B.’s affidavit.

[79] A.M.B. does not address these problems in her affidavit. She only says that she believes that N.M.’s “parents,… can provide a loving, stable and safe-home for [Lu.] and provide for all his needs, including health and education.”[^32] She does not address the issue of the kin placement. No evidence was provided on the motion from either of the paternal grandparents.

[80] Mr. Lediard has suggested that the Society has not given adequate consideration to the suggestion that the Respondents only care for two children rather than three. However, if the paternal grandparents are not an option for care of the children, it is difficult to imagine one child remaining in foster care (and there are problems with the time lines for Lu., the child that the parents wish to exclude from their care) while the other children are placed in the care of the parents. That is certainly not part of the plan in either the parents’ Plan of Care or in the submissions made on the motion.

[81] That being said, if the parents are acknowledging that they cannot care for all three children, and if the paternal grandparents will not cooperate in the kin placement, then the plan which would split the children and maintain contact with the parents and siblings is not viable. And the children cannot be left in the temporary care of the Society indefinitely; the children obviously need permanency and the time lines have now expired for the younger two children, even taking into account the Covid suspension of the timelines.

[82] In considering the Society’s request to dispense with a trial concerning the issue of extended care, the parents’ plan for retention of contact with family is not workable. The only other place to consider retention of familial ties is through access to the children, which will be considered below.

Conclusion: Extended Care

[83] I have found that the parents are unable to adequately care for the children. Although the parents had a plan to care for two children and to place one child, the youngest with N.M.’s parents, that plan is not viable due to the paternal grandparents’ inconsistent behavior and their non-cooperation with the kinship process.

[84] The evidence provided by A.M.B. was lengthy but short on facts. The affidavit contained many statements of belief without providing evidence behind those beliefs. There was no coherent response to the Society’s affidavits in support of its motion.

[85] The affidavits provided by the Society, largely unanswered, have met the onus of proving that there is no genuine issue for trial in determining that the best interests of the children are only met through an order for Society extended care. Although the Respondents have made some progress in addressing the initial goals of supervised access, their parenting abilities are still inadequate to permit the children being placed in their care, and they acknowledge this in their plan for caring for only two of the children. The parents have historically been unable to consistently follow through with services made available either through the Society or other agencies. To blame Society workers for the parents’ failure to follow through with those services or in cooperating with those workers, without providing specific evidence of mistreatment by Society workers, is not an effective response to the position of the Society as to extended care.

[86] Therefore, I find that it is in the best interests of the children to offer permanency for the children through an order for extended care. There shall be an order for extended care in favour of the Society as requested.

Access

[87] The Society requests an order that there be no access to the Respondent Parents and that there is no triable issue concerning the parents’ request for access.

[88] The CYFSA contains new provisions in respect of access to children in extended care. Under the old legislation, the onus was on the parents to show that access was “meaningful and beneficial”, a high standard often impossible to meet. That has now changed, as set out in s. 105(5) of the CYFSA which provides that the best interests test applies to access to the children when an order for extended care is made. That section provides that, where a court makes an order for extended care, access is not to be ordered “unless the court is satisfied that the order or variation would be in the child’s best interests.”

[89] Under s. 105(6), further considerations apply:

(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.

[90] As discussed by Benotto J.A. in Kawartha-Haliburton at para. 49, the adoption of the CYFSA had a profound change on the criteria for access to a child in extended care of the Society:

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child's future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests.

[91] Ms. Gilchrist suggested that, although the onus was no longer on the parent to show access to be meaningful and beneficial, there was still a presumption against access once a child was placed in extended care. Again, the Court of Appeal disagrees with that assertion in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415. Although the court appears to say that the issue of onus is “nuanced” and that it is unproductive to concentrate on who has to prove what, Benotto J.A. is clear when she says, at para. 58 that “There is no longer a presumption against access.”

[92] In that case, Benotto J.A. also places the criteria set out in s. 105(6) into the context of best interests. She states at para. 46 and 47 of the case as follows:

46 The new access test is no longer a "beneficial and meaningful" test. It is now a best interests test with a statutory requirement to consider whether the relationship is beneficial and meaningful for the child as one aspect of that analysis. When a court considers a child's best interests it should consider all relevant factors, including — as I discuss below — whether past, present or future. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.

47 By adopting a best interests test to determine access, the legislature changed the previous highly restrictive test that had tended towards termination of access between children and those important to them. Access can be now be ordered for a child in extended care if it truly is in the overall best interests of the child. The overall best interests involve a consideration of the 15 articulated factors plus "any other circumstance of the case that the person [deciding the case] considers relevant": s. 74(3)(c). Under s.105(6), whether the relationship is "beneficial and meaningful to the child" and only if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption remain relevant, but only as viewed through a global best interests lens. (emphasis hers)

[93] Benotto J.A. appears to be saying that the issue of access being “meaningful and beneficial” to the child is nothing more than an additional consideration in determining whether access to children in extended care is in those children’s best interests.

[94] I must also bear in mind that this is a motion for summary judgment. The real issue in this motion is whether the Society has provided sufficient evidence to make an order that there be no access to the parents, or whether there should be a trial on that issue.

[95] Access is the issue where both cultural and family connection issues become increasingly important. These issues are major considerations concerning access because maintaining a child’s connections with his or her family and culture is one of the major reasons why access may be found to be in a child’s best interests. To lose those connections are obviously a negative factor when considering whether to order access: for example, in Kawartha-Haliburton, Benotto J. notes at para. 56 that, “The new legislation reflects a commitment to ensuring that [indigenous] children are connected to their culture.”

[96] That is important in the present case as there is uncontradicted evidence that these children are of Métis heritage. As I noted above, there was little evidence from either the Society or the parents as to how either would maintain the children’s connection with their culture. However, the Society is seeking an order for both extended care and for no access; as part of their evidence in support of that relief, they were obliged to provide evidence of how the children would maintain a connection with their culture. Notwithstanding the lengthy time these children have been in care, the Society has not demonstrated that it has taken any concrete steps to this end. Again, in the words of Benotto J.A. from Kawartha-Haliburton at para. 49, “it is no longer the case that a parent who puts forward no evidence will not gain access.” If I interpret that case correctly, the record of a Society requesting an order for no family access must address the maintenance of indigenous cultural connections in the record. At the moment, the Society is only committing to exploring that issue as part of the family finding process, and has not resolved the aboriginal issues at the date of the argument of this motion.

[97] The Society acknowledges that these parties love their children. However, the worker also suggests that the visits between A.M.B. and N.M. and their children are not beneficial to the children, and that the children do not want to visit their parents. They cite an incident where D. refused cooperate in driving to access on December 11, 2019 to show that the children did not want to visit. They also cite that the parents’ behavior during access, yelling at the children, failing to plan for visits or activities and distracted behavior during visits, as evidence that the access is not meaningful and beneficial to the children and as evidence of the unimportance of the children’s connections to their immediate family. They note that visits to the children have been continuously reduced because the parents cannot handle all of the children together. Their point is that, if access is difficult for the children in the clinically managed context, how would it look where that component is removed for ongoing access post extended care?

[98] As I have found above, the access visits are evidence that these Respondents are not able to adequately care for their children. It is not practical for the children to be returned to their care. However, access is a different calculation. People who cannot parent children often have access to their children because it is presumed to be in the children’s best interests that those parental relationships are maintained. Access is the right of a child to those relationships and not the right of the parent, and the court is being asked to determine whether the children will lose all connection with their birth family because of the inability of these parties to parent the children on a full time basis.

[99] This I am unable to do on the record before the Court in argument of this motion. I note that there is little up to date information on access as the in person access reports end in March, 2020 with Covid, and since then access was on a virtual basis; there is little evidence as to the success of that access. There is also little or no evidence on the resumption of in person access in August, 2020 and the success of that access resumption. The parents have consistently exercised their access and are committed to seeing their children. It is common ground that these parents do love their children, and that love cannot be discounted on the basis of affidavit evidence as to the behavior of the parents. There was evidence that the children have a connection with their parents, and that the parents can express love for their children;[^33] it is unclear to me that it is in the best interests of the children that this connection be severed.

[100] The Society says that, based on the behavior of the parents, access would impair the adoption possibilities respecting these children. I note that this is a consideration which is to be taken into account “only if the court considers it relevant”[^34]; in the present case, there is no evidence as to whether there is any adoption contemplated for these children or as to whether there are any adoptive parents waiting in the wings. At this point, adoption is not relevant to access as there is no evidence on adoption possibilities for these children.

[101] I am not able to find, on the record, sufficient evidence to determine that there is no genuine issue for trial concerning the Society’s request that there be no access to the Respondent Parents. There shall be a trial on the issue of access to be scheduled during the May, 2021 trial sittings or earlier if it can be arranged through the trial coordinator. That trial shall be before me in accordance with the suggestion by Karakatsanis J. in Hyrniak that I remain seized of the matter if possible. It is to be scheduled through the trial coordinator. I will also set a date, if necessary, to conference trial scheduling issues, including trial disclosure, the number of witnesses, evidence in chief and the time necessary for trial.

ORDER

[102] As noted above, because of defects on the continuing record, and because the final order made in April 2018 was made just prior to the CYFSA coming into force, I must make new statutory findings under s. 90 of the CYFSA in this matter as well as a new finding that the children are in need of protection.

[103] The Society’s motion for summary judgment is allowed in part and there will therefore be a final order to go as follows:

a. The children are as set out in paragraph 3 of the affidavit of Erica MacArthur sworn August 26, 2020 and found at T. 11 of Volume 2 of the Continuing Record.

b. The mother of the children is A.M.B.

c. The natural father of the children, Li. and Lu. is N.M. and he has shown a settled intention to treat all three children as his own.

d. The natural father of D. is unknown.

e. The children are found to have Métis aboriginal heritage;

f. On an unopposed basis, the children are found to be in need of protection under s. 74(2)(b)(i) and (ii) of the CYFSA;

g. There shall be an order that the children be placed in the extended care of the Society;

h. The motion for summary judgment for an order for no access to the children is dismissed and there shall be a trial on the issue of access to the children before me.

i. The matter to be adjourned to a trial scheduling conference before me on a date to be set before the trial coordinator.

j. Pending the hearing of the focused trial, status quo on access to continue with access at the discretion of the Society as to frequency, duration and need for supervision, but at a minimum two supervised visits per week in the parents’ home as is presently taking place.

[104] The parties shall set a date for a trial scheduling conference for a trial on the issue access with the goal of setting this down for the May, 2021 sittings.

Justice J.P.L.M McDermot

Date: December 18, 2020

[^1]: R.S.O. 1990, c. C.11 (rep. April 30, 2018); These provisions are now s. 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14

[^2]: S.O. 2017, c. 14

[^3]: The April 17, 2018 endorsement states that the statutory findings were “as in SAF” but no statement of agreed facts could be found either on the endorsement record or on the continuing record. After allowing counsel a break to locate the SAF, Ms. Gilchrist acknowledged that she could not locate the SAF.

[^4]: Child, Youth and Family Services Act, 2017, List of First Nations, Inuit and Métis Communities, O. Reg. 159/18, s. 1(2)

[^5]: However, it is clear on the record that the children continue to be in need of protection on the grounds set out in April, 2018 and Eberhard J.’s February, 2019 finding that the children needed to go into care confirms this as does the Society evidence on this summary judgment motion. The evidence that I have relied upon for a finding that the children should be placed in the Society’s extended care make it clear that the children remain in need of protection.

[^6]: O. Reg. 114/99

[^7]: See C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357 and Children’s Aid Society of Toronto v. R.C., 2016 ONCJ 335 at para. 90.

[^8]: As discussed below and in Kawartha-Haliburton Children’s Aid Society v. M.W, supra.

[^9]: Ex. C to the affidavit of A.M.B. sworn September 17, 2020. As this evidence was provided by A.M.B. without objection, there was no need for a voir dire or examination of the expert.

[^10]: Ibid., p. 1.

[^11]: Ex. C to the affidavit of Erica McArthur sworn August 26, 2020.

[^12]: Ex. D to the affidavit of Erica MacArthur sworn August 16, 2020.

[^13]: Affidavit of Mary Lynn Brodeur sworn October 5, 2020, found at Tab 15 of the Continuing Record.

[^14]: Sworn on September 18, 2020 at T. 12 of the Continuing Record.

[^15]: There was nothing in the affidavits about what the visits consist of at present. According to para. 131 of the affidavit of Erica MacArthur sworn August 26, 2020, in October, 2019 the access was reduced to one visit per week with one child on a rotating schedule and one visit per week with all three children.

[^16]: In numerous case annotations contained in the Reports of Family Law.

[^17]: Affidavit of A.M.B. sworn September 17, 2020 found at Tab 13 of the Continuing Record, para. 4.

[^18]: Ibid., para. 6.

[^19]: Ibid., para. 8

[^20]: See Ibid., para. 44.

[^21]: Affidavit of Erica MacArthur sworn August 26, 2020, para. 26.

[^22]: Ibid., para. 46.

[^23]: Ibid., para. 157.

[^24]: Affidavit of Alexandra Knox sworn August 31, 2020, Ex. C

[^25]: Ibid., para. 69.

[^26]: Indeed, the parents only recently, after my request, filed an Answer in this proceeding. They could have been noted in default, but that would obviously have been inappropriate under the circumstances and considering that the parents have been otherwise engaged in this protection case.

[^27]: But not in the Respondents’ Answer and Plan of Care filed after argument: that Plan of Care states that the plan is for both D. and Lu. to live with the paternal grandparents and that only Li., the oldest child, live with the Respondents.

[^28]: According to the affidavit of Erica MacArthur sworn October 6, 2020, the Society was advised of the move to Chatham, 4 to 5 hours away, on September 23, 2020.

[^29]: Email from the paternal grandfather dated June 29, 2020, filed as Ex. G to the affidavit of Erica MacArthur sworn August 26, 2020.

[^30]: Or perhaps D. and Lu. according the Respondents’ Answer and Plan of Care.

[^31]: Largely because of Covid: see the Affidavit of Erica MacArthur sworn October 6, 2020, para. 48. It was unclear as to whether visits to the paternal grandparents have resumed post-Covid although on December 4, 2020, when the parties spoke to the issue of their respective Plans of Care, counsel in submissions mentioned that another visit had taken place.

[^32]: Affidavit of A.M.B. sworn September 17, 2020, para. 84.

[^33]: See para. 58 and 61 of the affidavit of Alexandra Knox sworn August 31, 2020.

[^34]: Children’s Aid Society of Toronto v. J.G., supra at para. 47, emphasis that of the Court of Appeal.