Statutory Warning
WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
COURT FILE NO.: FC-19-CP77 DATE: 2021/02/19
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF K.C.E.F. (DOB: […], 2019)
BETWEEN:
Children’s Aid Society of Ottawa Applicant – and – L.L. (Mother) J.B. (Father in Default) Respondents
Counsel: Ben-David Ulster, for the Applicant Self-represented Respondents
HEARD: February 18, 2021
Endorsement
Engelking J.
[1]
Overview
This is a Summary Judgment Motion brought by The Children’s Aid Society of Ottawa (“Society”) seeking a finding that the child, K.C.E.F., born […], 2019, is a child in need of protection and an order placing her in Extended Society Care for the purposes of adoption by her kin caregivers, Joell Clark and her partner, Tracey Hill. K.C.E.F. has been in Ms. Clark and Ms. Hill's care since December 14, 2019.
2The Society is represented by Mr. Ulster. The CPW, Ms. Naomi Parington was also present.
3The mother, Ms. L.L., who now goes by her married name of L.F., was not present.
4The father, Mr. J.B., was noted in default by order of myself dated July 13, 2020 and was not present.
5The child’s kin care providers, Ms. Clark and Ms. Hill were present.
6This matter was before the court on January 20, 2021, at which time Ms. L.F.’s counsel brought a motion to be removed as her counsel of record. Ms. L.F. was present in court and sought an adjournment to respond to her counsel's motion, which adjournment was granted. Ms. L.F. was given until January 22, 2021 to file her responding materials. In her January 20, 2021 endorsement, Justice Doyle indicated: "Next court appearance is a motion by the Society for summary judgment on February 18, 2021 at 2:00 pm."
7At a court appearance on January 27, 2021, at which Ms. L.F. was also present, Justice Blishen noted that Ms. L.F. had not filed her responding materials to the motion by January 22, 2021 and she granted an order removing Ms. Rosenstock as Ms. L.F.’s counsel of record. At that appearance, Ms. L.F. insisted that she was told by her lawyer that February 28, 2021 was the date scheduled for the Summary Judgment Motion and that she, Ms. L.F., was not available for February 18, 2021. Justice Blishen noted that Ms. L.F. was present in court when the Summary Judgment date had been set, and she adjourned the matter to February 4, 2021 for Ms. L.F. to bring a motion to adjourn the Summary Judgment Motion.
8On February 4, 2021, Justice Summers noted: "This date was scheduled for the mother to bring a motion to adjourn the SJM scheduled for Feb 18/21. The mother did not file any materials nor did she appear today. The motion shall proceed as scheduled."
9The mother did not attend court on February 18, 2021, nor has she taken any steps to seek to adjourn the motion between February 4, 2021 and February 18, 2021. I, therefore, heard the motion.
[10]
Background
Ms. L.F. is the mother of two other children, her son L. (10) and daughter K. (nearly 6), neither of whom have been in her care since birth. L. resides with his maternal great-grandmother, S.G. and K. resides with her paternal grandmother, L.K.
11The Society relies on the following affidavits in support of the Summary Judgment Motion:
a. Affidavit of the CPW Naomi Partington sworn on December 12, 2019; b. Affidavit of the CPW Naomi Partington sworn on February 9, 2021; c. Affidavit of Joell Clarke sworn on February 8, 2021; d. Affidavit of Tracey Hill sworn on February 8, 2021; e. Affidavit of S.G. sworn on February 9, 2021; and, f. Affidavit of L.K. sworn on February 8, 2021.
12Ms. L.F. has not filed any materials in response, nor, as I have indicated above, did she attend the February 18, 2021 court appearance.
13The presenting issues with respect to Ms. L.F. are many, and include historic and on-going mental health concerns, parenting capacity concerns, cognitive capacity, transiency, interpersonal conflict (including with her current partner), consistency in maintaining contact with her children, consistency in maintaining contact with her own support services, and aggressive and/or misleading communications with the Society and/or the kin care providers.
14As I have indicated above, K.C.E.F. was placed with Ms. Clarke and Ms. Hill shortly after her birth, at the request of Ms. L.F., and the latter has not taken any concrete steps to address any of the protection concerns identified at the time of the Society’s initial intervention.
15In the interim, K.C.E.F. has been very well cared for by Ms. Clarke and Ms. Hill, and has had all of her needs met. The Society’s plan is for Ms. Clarke and Ms. Hill to become K.C.E.F.’s adoptive parents and the request for an order of Extended Society Care is for that purpose.
[16]
Analysis
I am satisfied based on the voluminous evidence before me that the Society has met the onus of establishing that there is no genuine issue requiring a trial.
[17]
Indigenous Heritage
The special considerations that apply to Indigenous children forms part of my decision in coming to this conclusion. Ms. L.F. identifies as Ojibway, but she is not a member of a recognized Band or community. She has also referred to one of her paternal descendants possibly being from the Mattawa North Bay Algonquin community, however, she is not a member, nor does she identify with that community. The child, K.C.E.F., therefore, is found to identify as First Nations, but not to be a member of or identify with a particular community. Ms. L.F. has identified no family or community plan, nor has the Society, despite Ms. Partington’s efforts as set out in her affidavit sworn on February 9, 2021, been able to identify a family or community plan which would meet the requirements of Section 101(5) of the Child, Youth and Family Services Act (“CYFSA”) to place the child within a First Nations family or community prior to making an order for Extended Society Care.
18Having said that, Ms. Hill too identifies as Indigenous on her paternal side, but is also not a member of a particular community. Ms. Hill and Ms. Clarke were originally identified as Ms. L.F.’s choice of placement; they have been working with Dnaagdawenmag Binnoojiiyag Child and Family Services as a result of K.C.E.F.’s placement with them, and are, moreover, prepared to participate in Indigenous teachings which respect K.C.E.F.’s heritage.
19K.C.E.F. has known no other “parent” since her birth. Ms. Hill and Ms. Clarke are at this point her psychological parents. The Society’s explicit plan is for Ms. Hill and Ms. Clarke to become K.C.E.F.’s adoptive parents. They have to date maintained contact between K.C.E.F. and L. and K. through Ms. G. and Ms. K. respectively, and are prepared to continue to provide some form of post-adoption contact with them as well as with Ms. L.F. Taking into consideration all of the factors outlined in Section 74(3) of the CYFSA, I find that it is in K.C.E.F.’s best interests to be placed in Extended Society Care.
[20]
Access
With respect to the issue of access, the Society seeks an order that “access to the parents shall be at the discretion of Ms. Clarke and Ms. Hill, at a frequency and level of supervision appropriate with K.’s age, schedule, and the parents’ place of residence, and in keeping with K.’s wishes and best interests.” I am, however, mindful of the recent decision of the Ontario Divisional Court in the case of J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630, wherein it found at paragraph 49:
49Section 104 of the CYFSA makes it clear that it is the court’s obligation to impose the terms and conditions of an access order. This is a discretionary decision. Nothing in the language of sections 104 and 105 of the CYFSA either explicitly or implicitly includes the power to sub-delegate the decision as to terms or conditions of access to a nonjudicial actor such as a Society.
21In paragraph 46 of its’ decision, the Divisional Court referred to the Ontario Court of Appeal decision in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, wherein Benotto J.A. noted at paragraph 64 that “access can come in many forms that depart from in-person visits. The exchange of gifts, emails video chats or phone calls are all forms of access.” At paragraph 55 of J.S.R., supra, the Divisional Court reasserted that: “the minimum rights of access must be established by the court.”
22In this case, K.C.E.F. lives with the kin care providers in Oshawa, Ontario. Ms. L.F. has recently moved to the North Bay, Ontario area. Although she has been inconsistent with telephone or virtual access, Ms. Clarke and Ms. Hill have offered that she may phone K.C.E.F. anytime. Additionally, arrangements have been made for a video visit weekly on Saturday mornings, though, as I have indicated, Ms. L.F. has not been consistent in engaging in either. Ms. L.F. has refused to attend any in-person access in Oshawa.
23I find that access by K.C.E.F. to her mother would be in her best interests. In part, it will permit K.C.E.F. to know and participate in her mother’s (and her own) Indigenous heritage where possible. Given the above, I am prepared to make an order for a virtual visit between K.C.E.F. and Ms. L.F. one time per week. Additionally, I order that there shall be in person visits between Ms. L.F. and K.C.E.F. a minimum of six times per year, supervised by K.C.E.F.’s kin care providers, or some other person acceptable to them, and to be exercised in Oshawa. K.C.E.F. and Ms. L.F. shall both be access holders.
24K.C.E.F.’s father, Mr. J.B. has not been involved with her and is in default of these proceedings. I received no evidence in relation to whether some form of contact with him would be in K.C.E.F.’s best interests, and I make no order of access in this regard.
[25]
Order
There shall be a final order as follows:
a. There is no genuine issue for trial in this matter, and this Amended Protection Application can be adjudicated by means of a Summary Judgment Motion;
b. The child, K.C.E.F., was born on […], 2019. K.C.E.F.’s parents are L.F. and J.B. K.C.E.F. is First Nations, but is not affiliated with a Band or Community. At the time of the commencement of these proceedings, K.C.E.F. ordinarily resided in the City of Ottawa, in the Province of Ontario;
c. The child, K.C.E.F., is found to be child in need of protection pursuant to subsections 74(2)(b)(i) and (ii) of the CYFSA;
d. The child, K.C.E.F., born on […], 2019, shall be placed in the Extended Society Care of the Children's Aid Society of Ottawa for the purpose of adoption pursuant to subsection 101(1) of the CYFSA;
e. The mother, L.F., shall have virtual access to K.C.E.F. one time per week, and shall have a minimum of six in-person visits with K.C.E.F. per year, to be supervised by Ms. Clarke and/or Ms. Hill, or some other person approved by them, and to be exercised in Oshawa, Ontario. K.C.E.F. and Ms. L.F. are both access holders.
Engelking J. Released: February 19, 2021