COURT FILE NO.: FC-18-472-0000
DATE: 20210317
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Simcoe Muskoka Child, Youth and Family Services
Applicant
– and –
D.D. and T.T.
Respondents
L. Gibson, for the Applicant
P. File, for the Respondent D.D.
HEARD via videoconference: February 19, 2021
REASONS FOR JUDGMENT
Jain j.
Introduction
[1] The Simcoe Muskoka Child, Youth and Family Services (“the Society”) brings this summary judgment motion (“SJM”) pursuant to r. 16 of the Family Law Rules[^1] (“the Rules”) seeking a finding that the child, BJ born December 1, 2017 is in need of protection pursuant to ss. 74(2)(b)(i), (ii) and (h) of the Child Youth and Family Services Act,[^2] (“the CYFSA”). The disposition the Society seeks is a final order placing the child in the custody of his paternal uncle and aunt pursuant to s. 102 of the CYFSA with access to the child for the respondent mother and father at the discretion of the paternal uncle and aunt with respect to location, duration, frequency and the requirement for supervision.
[2] The respondent mother opposes a finding based on risk of physical harm pursuant to ss. 74(2)(b)(i) or (ii) and opposed the disposition sought by the Society at the motion. She consents to the statutory findings and the protection finding pursuant to s. 74(2)(h). In her materials filed December 4, 2020 and her counsel’s submissions, her primary objections are with respect to some parts of an earlier Society worker’s affidavit evidence containing hearsay and with respect to the disposition sought by the Society.
[3] This matter originally came before me on December 4, 2020. On that day, the respondent mother requested an adjournment of the SJM and the removal of certain paragraphs and pictures from the Society’s affidavit. Ms. File had recently been retained in or around October 2020, and the respondent mother requested time to file additional responding materials for the SJM. I granted the request for an adjournment and set the matter down to be heard during the February 2021 trial sittings, peremptory on all parties. The parties and counsel negotiated filing deadlines for the mother to file her response and for the Society to file a reply (if any). On consent, the Society agreed to “host a Family Centred Conference as soon as possible and prior to the next court date to explore possible alternative access arrangements for the mother”. On December 4, 2020, the court ruled that the Society did not have to remove any part of their affidavits.
[4] On consent, the statutory findings with respect to the child were made on December 4, 2020 and at the outset of the hearing on February 19, 2021, as well as a protection finding that the child is in need of protection pursuant to s. 74(2)(h) of the CYFSA.
[5] I have read and relied on the following documents:
Affidavit of Child Protection Worker (CPW) T. Menzies dated November 28, 2019;
Affidavit of CPW T. Menzies dated October 22, 2020;
Affidavit of paternal aunt (A.M.) dated October 22, 2020;
Affidavit of CPW T. Menzies dated December 1, 2020;
Affidavit of respondent mother D.D. dated December 20, 2019;
Affidavit of D.D.’s mother W.P. dated December 17, 2019;
Affidavit of D.D. dated December 4, 2020;
Affidavit of CPW T. Menzies dated February 8, 2021.
[6] The issues for the court to determine are as follows:
Has the Society demonstrated a prima facie case that there is no genuine issue requiring trial with respect to a finding that the child is a child in need of protection pursuant to ss. 74(2)(b)(i), (ii) and (h) of the CYFSA?
Has the Society demonstrated a prima facie case that there is no genuine issue requiring trial with respect to an order placing the child, BJ, in the custody of his paternal uncle and aunt pursuant to s. 102 of the CYFSA, with access to the mother and father at the discretion of the paternal uncle and aunt?
Decision
[7] The court finds that the Society has demonstrated a prima facie case that there is no genuine issue requiring a trial with respect to the findings in need of protection or the disposition. It is in the best interests of the child BJ to be placed in the custody of his paternal uncle and aunt and to have access with the mother and father as set out in the court’s order (below).
Background
[8] The subject child is BJ, born December 1, 2017, hereinafter referred to as the “child” or “BJ”. The child has been residing with kin care providers in northern Ontario since May 10, 2019. The kin care providers are the child’s paternal uncle and aunt, hereinafter referred to as “paternal uncle” and/or “paternal aunt” and/or “BW” and/or “AM”. Prior to May 10, 2019, the child resided for approximately one year with his maternal grandmother (he was placed there voluntarily on April 6, 2018). The maternal grandmother is hereinafter referred to as “WP” and/or “maternal grandmother”.
[9] Prior to April 6, 2018, the child resided in the care of his mother for approximately four months (from the day of his birth on December 1, 2017 until April 6, 2018). The Society has been involved with the mother since prior to the child’s birth, due to their concerns about the mother’s substance misuse and domestic violence.[^3] The Society remains concerned about these issues and is further concerned about the mother’s inconsistent attendance at access visits with the child.
[10] The respondent father was previously noted in default on September 25, 2020. He did not attend or participate in the hearing. The Society advised the court that the respondent father consented to the placement of the child with the kin care providers. The father has not had access with the child since December 1, 2019 and has not made any requests to have access to the child or even inquired about the child’s well-being.[^4]
[11] On December 4, 2020 the respondent mother consented to the statutory findings and to a protection finding based on risk of emotional harm pursuant to s. 74(2)(h).[^5] Her consent to same can be found in her affidavit dated December 4, 2020 and in my endorsement of December 4, 2020. These consents were confirmed again at the outset of the hearing on February 19, 2021.
[12] In January 2021, the Society attempted to plan a Family Centred Conference as required by the endorsement of December 4, 2020. The mother was agreeable to the conference and confirmed she would attend. Without explanation or prior notice, the mother did not attend the conference. She did not respond to any phone calls or emails and nobody knew her whereabouts or what caused her to miss the conference. The Society proceeded with the conference and although there were productive discussions, nothing could be resolved.
[13] On the day of the hearing, the mother attended late and requested another adjournment of the SJM. The Society opposed. As this matter had already been adjourned before and it was peremptory on all parties to proceed, the court denied the mother’s request. The mother chose not to stay in court and left the hearing. Her lawyer, Ms. File, made submissions on behalf of her client in her absence.
[14] On the day of the hearing, the court made the above findings on consent and heard argument and submissions on the balance of the SJM with respect to additional protection findings and with respect to disposition. In addition to the deemed custody of BJ, a significant part of the issue before the court was the disposition regarding access. The court needed to determine whether it was in the best interests of the child to grant the Society’s request for an order leaving both parents’ access with BJ to the discretion of the paternal uncle and aunt or whether the court should make some other order regarding access.
Analysis
Summary Judgment
[15] The Society brings this motion pursuant to r. 16 of the Family Law Rules – the summary judgment rule. Rule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[16] A motions judge can make a summary judgment decision based on uncontested facts, or facts that are admitted or baldly denied if those facts are sufficient to establish that there is not a genuine issue requiring a trial. The court does not have to make findings of fact on contested facts if it is not necessary to come to the ultimate determination: see JFCS v. E.K.B., 2019 ONSC 6214. Unspecified and generic defense’s will be rejected: CAS of Oxford County v. J.J., [2002] O.J. No. 5407. The respondents must put their best foot forward and they cannot use delay to gain time to rehabilitate: CAS of Hamilton v. M.W., 2003 CanLII 2309 (ON SC), [2003] O.J. No. 220.
[17] Some parts of both the mother’s and the Society’s affidavits contained hearsay. The particularly offensive hearsay was from unreliable sources like the mother’s former boyfriend(s) (which is not at the standard for a summary judgement motion and should not be relied upon by the court). The court did not give any weight to those parts of the affidavits.
[18] 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.[^6] The court should always exercise exceptional caution before proceeding on a summary judgment motion in a child protection case. I have considered this caution and found that it is in the interest of justice for the court to determine this case summarily.
[19] Further, as set out in r. 14(19) of the Family Law Rules, an affidavit may contain hearsay evidence if the source is identified and the affiant believes the information to be true. Further, pursuant to r. 16(5) the court “may draw conclusions unfavourable to the party” tendering hearsay evidence on a summary judgment motion.[^7] As such, this court found that the probative value of the hearsay evidence outweighed any prejudice suffered by the mother and the Society in the circumstance where the hearsay evidence was in relation to references to and exhibits of: police occurrence reports; reports from the rehabilitation centre that the mother attended twice; the mother’s clinically managed access; and the mother’s hospital attendances. The court found that this evidence met the necessity and reliability tests and therefore allowed it to be proffered by both the Society and the mother for the truth of the content of their affidavits and it was afforded its due weight by the court.
[20] The summary judgment process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate this dispute. I find that I can do so based on the evidence before me, and without the need to use any expanded powers. I find that the evidentiary record is sufficiently comprehensive on all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a trial. Although the respondent mother has made some allegations against the kin providers, these allegations are all either unverified or in dispute. The court found that cross-examination of witnesses would add little, if any value to the court’s analysis.
[21] I find that the material and undisputed facts of this case support this matter proceeding summarily. These material facts include:
The mother has admitted to substance misuse.
The mother has admitted to issues regarding her mental health and domestic violence with her partners.
The mother attended at rehabilitation twice, and she was unable to successfully complete same.
On October 14, 2020, the mother attended at the hospital with concerns of a possible overdose. Her urine screen completed that day was positive for cocaine and marijuana.
The father has not participated in the proceeding. He consents to the child remaining in the care of the paternal uncle and aunt.
The father has been noted in default.
The child has been in the care of the paternal aunt and uncle since May 2019.
BJ’s needs and milestones are all being met. He has formed a secure, positive relationship with his paternal aunt and uncle. He calls them “Dad & Mum Mum.”
The child was in the care of the maternal grandmother for approximately one year prior to him being placed with the paternal aunt and uncle.
The paternal aunt and uncle consent to an order for deemed custody of BJ to them.
The mother has been inconsistent and sporadic in her attendance at access visits with the child.
The mother has attended at access visits with visible injuries on her face and body.
The mother has been inconsistent in her contact with the Society.
The mother was absent from the family conference held by the Society in January 2021.
When the mother attends access and is sober, the visits with the child are positive.
The above material and undisputed facts in this matter and in the summary judgment process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[^8] As the Supreme Court has stated, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”[^9]
[22] Although the statutory timelines do not technically apply, I must be cognizant that almost two years have passed since the child was placed in the care of his paternal aunt and uncle, (and almost three years since the child was removed from the mother’s care). But for the kin plan, BJ may have been in the care of the Society. Although the child has not been in foster care, he has not been in the care of his mother or maternal grandmother for almost two years.
[23] It is the view of the court that the child should not have to wait any longer, nor should he have to continue to suffer ongoing uncertainty. He needs some finality in this matter. The child has been in the care of the current kin provider for almost two years. Given the length of time the child has been out of the care of his father and mother and in the care of kin, I find that the resolution of this matter by way of summary judgment is not merely efficient and expeditious, it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.
[24] I find that the Society has established, on a balance of probabilities, a prima facie case for summary judgment with respect to each aspect of the relief sought. I find there is no genuine issue requiring a trial on any issue. I find that if this matter proceeded to trial there is “no realistic possibility of an outcome other than that sought by the applicant”. After reviewing all the materials and hearing the submissions of counsel, I am confident that I can reach a fair and just determination of the merits of a summary judgment motion. I reach these conclusions for the reasons that follow.
Protection Findings – ss.74(2)(b)(i), (ii) and (h) of the CYFSA
[25] The concerns of the Society with respect to the mother include substance abuse/misuse, mental health, and domestic violence. These concerns have predated the birth of the child and remain unchanged.[^10] As stated above, the mother consents to a finding that the child is in need of protection pursuant to s. 74(2)(h) of the CYFSA. The court agrees to make this finding on consent. This protection finding is sufficient for the court to move on to an analysis of the disposition. However, in my view, in this matter, the court should still explore making a finding pursuant to ss. 74(2)(b)(i) and (ii) as it relates to the seriousness of the concerns and may affect the best interests of the child and ultimate disposition. The relevant sections of the CYFSA read as follows:
Child in need of protection
74(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;
(f) the child has suffered emotional harm, demonstrated by serious,
(i) anxiety,
(ii) depression,
(iii) withdrawal,
(iv) self-destructive or aggressive behaviour, or
(v) delayed development,
and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or patterns of neglect on the part of the child’s parent or the person having charge of 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;
[26] The Society has concerns with respect to the mother’s substance abuse/misuse. The mother has admitted to “previously” having an “issue with consuming alcohol.”[^11] Despite this limited insight, the court finds the mother minimizes her misuse of substances and her relapses after periods of sobriety. DD has attended counselling and attempted to complete a 28-day alcohol rehabilitation program twice. The first time she was discharged early from the program after just 10 days due to her negative behaviour and the impact on staff and other clients in the program. Specifically, her unacceptable behaviour included repeatedly missing meetings, acting aggressively towards staff and going into another participants room.[^12] DD admits to smoking marijuana to help her “relax” as well as to help her “sleep and eat”.[^13] She further has admitted in the past that, “she began drinking at age 16 and it became problematic by the age of 17 or 18” and that she “finds when she drinks, she cannot stop”.[^14] It was noted that DD’s barriers to a full recovery from her addiction was her intention not to abstain from marijuana and her ambivalence about alcohol.[^15]
[27] DD attempted to complete the rehabilitation program again and was admitted on October 18, 2019. This second time she completed the majority of the program and seemed to make a great deal of progress. Despite her progress, she was discharged from the program on November 15, 2019. It was noted that there was not any significant change in her attitude and behaviour and that she still displayed serious aggressive behaviour like defiance and disrespect for staff and clients. As a result, she was discharged and did not “graduate”. Her “continuing care bursary” was also revoked. [^16]
[28] As set out above, the mother continues to struggle with substance abuse. She has recently attended at the hospital with concerns of a possible overdose. Her urine screen completed that day was positive for cocaine and marijuana.[^17] DD has not adequately addressed the Society’s concerns regarding her substance misuse.
[29] The Society also has concerns about the mother’s mental health, involvement in relationships where she has been the victim of domestic violence and involvement with the police numerous times.[^18] The mother has been involved in multiple police occurrences. She denies being directly involved in all of the police occurrence reports, except for the times where she called the police. She explains that some of her involvements with police were because “someone else was charged with doing something wrong” and she “had no knowledge of the problem until it happened”.[^19] Basically, her explanation for those incidents is that she was a witness and was in the wrong place at the wrong time.
[30] The mother has been inconsistent with respect to the allegations and concerns regarding her mental health and involvement in domestic violence. The mother has admitted to being depressed due to the legal issues surrounding BJ. At times she has completely denied even being in a relationship with the boyfriends who she later admits were abusive to her. The mother admits she has attended at access visits with bruises and cuts on her face and all over her body. Some of the incidents of violence are alleged to have occurred as recently as March, May, July and September 2020. There is a fear and worry regarding how the child will react seeing his mother when she attends access visits in this condition. The mother has given many different excuses for the injuries including walking into a wall, falling downstairs, and engaging in outdoor activities and sports.[^20]
[31] I find the mother’s excuses for all of her wounds and injuries to be unbelievable. She points out that she has called the police when there has been conflict, and this is commendable; however, until recently, she would not admit that she was even in a relationship with her previous boyfriends or that they were abusive at all. The inconsistencies in her own affidavit evidence lead the court to find that if the mother was not being hurt by her boyfriends, the injuries may be as a result of intoxication from her substance misuse (or both). Either way, both of these concerns are unresolved, and both raise a serious possible risk of harm to BJ if returned to the mother’s care.
[32] The mother admits to feelings of anger and has attended some anger management programs. She has further recently admitted that there was violence in her relationships and that she reported same to police. The court can see that the mother has made some progress. The court understands that the mother has love for her child and a desire to parent him full-time. However, these heartfelt expressions are not enough. Her recent insights are unfortunately too little too late.
[33] The court finds that concerns regarding DD’s addictions, mental health and misuse of substances still exist. The court finds that DD does not truly “own” or have insight into the magnitude or effect of these issues, or the domestic violence issues, on her ability to care for BJ. Taken together these findings not only create a serious risk of physical harm and emotional harm to the mother herself, but also to BJ if he was left in her care. For all these reasons, the court shall make the finding that the child is in need of protection pursuant to ss. 74(2)(b)(i) and (ii) in addition to the consent protection finding pursuant to s. 74(2)(h).
Disposition of custody pursuant to s. 102 – Access and the Best Interests of the Child
[34] For the majority of the child’s young life (just three years old) BJ has not resided in the care of the mother or father. The child resided with his maternal grandmother from April 6, 2019 to May 10, 2019 and has been in the care of the present kin care providers for almost two years, since May 10, 2019. Although the statutory timelines do not run in a situation like this, the court cannot turn a blind eye to how much time has passed since the child was in the care of his parents and how that effects a young child. This child deserves some finality, stability, and an end to the litigation. It is not in the child’s best interests to continue waiting in limbo due to the mother’s delays in seeking help and her lack of insight into how her mental health and addictions affect her ability to parent the child.
[35] The maternal grandmother, WP, provided an affidavit dated December 17, 2019. WP described how DD experienced “trouble years as a youth and as a young adult” but that she was proud of what she described as DD’s “significant progress.” WP described how she had BJ in her care for the first year of his life while DD “fought hard to change her life and behavior.”[^21] She further commented on DD’s love for BJ and said that DD’s life “is now stabilized and healthy” and that DD “is ready to have BJ full-time in her life”. Unfortunately, the court finds that WP’s expressed pride in DD’s progress and her hopes that DD is ready to care for BJ full-time are unrealistic and not in the best interests of BJ. Despite this and because of WP’s prior role as a caregiver for BJ, the court finds that it is in the best interests of the child that WP be permitted to attend at the mother’s in-person access visits with BJ and/or she shall be permitted to supervise the mother’s in-person visits.
[36] With respect to custody, the Society has satisfied the court of the many considerations listed in s. 74(3) of the CYFSA. I find that during the almost two years the child has resided in the care of the paternal uncle and aunt, the child’s physical, mental and emotional needs have been and continue to be met. All the child’s milestones are being reached. He is a generally healthy child (despite his asthma). The child has developed positive relationships and strong emotional ties to their family. The child is an important part of the family and is comfortable in his placement. BJ has started attending pre-school and is doing well. I find that residing with the paternal uncle and aunt in their custody is the least disruptive plan and promotes continuity of the children’s care with kin. Based on all the above, I find that it is plain and obvious that there is no other reasonable outcome than the disposition sought by the Society. I find it is in the best interests of both the child to reside in the deemed custody of the paternal uncle and aunt and to have access with his mother and father.
[37] The Society seeks an order granting BW and AM the ability to obtain government documents for the child without the mother and father’s consent. It does not necessarily follow that if a kin care provider is granted custody of a child that the right to obtain government documentation for the child without the biological parent’s consent or to travel with the child outside of Canada without the other parent’s consent will be ordered. These are parental rights distinct from who has custody of the child, and without a dispensation order from a court, the consent of an access parent is usually required by government authorities. These are important parental rights that are not to be dispensed with lightly. In this case however, there have been long periods of time where the mother and/or father have had little to no contact with the child or the kin care providers. At times the mother and/or father have been unresponsive to emails and phone calls from their own family, lawyers and the Society workers. For these reasons, summary judgment for this relief is granted.
[38] The only concern the court has about the deemed custody and parenting order requested by the Society is that it does not include any specified access for the child and the mother. Instead, of specified access, the Society seeks an order that leaves the parents’ access to the discretion of the paternal uncle and aunt.
[39] The recent Divisional Court case J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 seems to resolve the competing case law about whether access in society discretion can be ordered. This was a case where extended society care with discretionary access was ordered. The Divisional Court clarified that it is an error in law for a court to delegate all discretionary decisions on the type, frequency and duration of access to the society as it offends the principle against self-delegation.[^22] Section 104 of the CYFSA makes it clear that that it is the court’s obligation to impose the terms and conditions of an access order. The court does not have the authority to simply subdelegate the decisions as to terms or conditions of access to a nonjudicial actor such as a society.
[40] In the case at bar, the Society is not asking for an order to give the Society discretion regarding access. However, the Society is asking for a final order intended to determine both the parent’s rights without further litigation. In that way, this case is analogous to a case where the Society asks for an extended care with access at the discretion of the Society.
[41] Deemed custody to kin caregivers is much less intrusive for the children because they are not being placed with strangers. However, each situation is different, especially when the kin placement is with a “non-parent” and when there is no or little regular access occurring with the biological parent(s) whom the children were removed from. Without some specifics or minimums, the deemed custody order with access at the custodial caregiver’s discretion will look and feel a lot like extended care with access at the discretion of the Society.
[42] The mother complains that the child has not had regular access with her or her extended family since the child went into the care of the paternal aunt and uncle. Prior to May 2019, the mother had clinically managed access with the child from approximately April 2018 until January 2019. The Society notes that there were lots of positive interactions and access between the mother and child when the mother consistently attended and was sober. The mother denies that there is any need for supervision of her access with BJ. She denies that all the injuries she has sustained were due to domestic violence. She says that the child was never present during the incidents of violence. Despite not completing the rehabilitation programs, the mother says she benefitted from them.
[43] Unfortunately, from approximately January 2019 onwards, the mother’s attendance at access visits and her contact with the Society declined and became very inconsistent. From March 18, 2020 to September 25, 2020, the mother was permitted virtual visits three times per week. The mother only attended once. The mother’s most recent visit took place on December 23, 2020. Her last contact with the Society was on January 6, 2021 when she confirmed she would be attending at the Family Group Conference and that she would be bringing family members to discuss access. She never attended the scheduled meeting. She did not even provide any notice or explanation as to why she was out of contact with the Society for weeks. The meeting went ahead without her participation.
[44] At the same time, the child has rights as well. At this point, due to his age, the court does not have the ability to consider his views and wishes. However, where there is a pre-existing positive and/or meaningful relationship with the biological parents and/or extended family, and the court makes an order for deemed custody to another person, the court should be satisfied that giving the kin care providers/custodial parents discretion to make decisions about future access is in the child’s best interests having regard to all the factors set out in s. 73(3) of the CYFSA.
[45] According to the clinically managed access reports by T. Gallimore, there are indications of a “strong bond” between the child and mother and that their interactions have been “loving”. Ms. Gallimore reported “no concerns” about the mother’s caregiving skills when she is “alert and sober.” Overall, access has been positive when the mother attends consistently, is sober, and if she does not have visible injuries that may distress the child.[^23] The court finds that in this case, there is an existing positive relationship between the child and his mother. The court finds that there is evidence that supports access between the child and mother as being in the best interests of the child.
[46] Unfortunately, the protection concerns are serious, and the mother has not addressed them sufficiently to overcome the risk of harm to the child if the access was as generous and loose as the mother requests. The mother blames the COVID pandemic for interrupting the access expansion and her progress towards unsupervised access. In some situations, the court agrees that the COVID pandemic has interfered with progress. However, in this case, the child was residing with the kin care providers long before the pandemic. Further, the mother was seriously injured by her boyfriend in the summer of 2020, she overdosed on drugs, and tested positive for marijuana and cocaine as recently as October 2020. She has missed numerous access visits and she did not attend at the Family Conference hosted by the Society in January 2021. The COVID pandemic and the mother’s excuses do not explain away these facts.
[47] By granting custody to the kin care providers, they become the “custodial parents” for the child. Custodial parents should retain discretion and parental autonomy to decide whom their children spend time with. If there are too many limitations on the kin care providers/custodial parents, the custody placement could be jeopardized and become too difficult to continue. This would not be in the best interests of the child. Therefore, the kin care providers/custodial parents should be entitled to maintain some discretion regarding access. The degree of risk that justified the protection finding is high; the father has not exercised any access; the mother has continued substance misuse issues; and her access has been sporadic. For these reasons, I find that it is in the child’s best interests for the court to grant the paternal uncle and aunt some discretion regarding access.
[48] Given all the above concerns, the court asked counsel to provide submissions regarding some specific terms of access between the mother and child. Both Ms. Gibson and Ms. File, as well as the paternal aunt, made helpful submissions.
[49] The Society seeks an access order for the mother and child as follows: a two-hour visit with the child once per month at a supervised access centre; additional face-to-face or virtual access to occur around special holidays at the discretion of the caregivers; that the mother shall be the only person present for the access unless there is prior consent of the kin caregivers; if the mother misses three consecutive visits the access returns to being at the discretion of the kin care providers. The Society seeks an access order for the child and father to be simply at the discretion of the kin care providers.
[50] On behalf of the mother, Ms. File seeks an order that the mother’s access with the child be unsupervised because the safety concerns can be managed by terms such as: zero alcohol consumption 24 hours prior to access; and no other persons or partners being present during access visits. She further submits that there should be opportunities for extended family on the mother’s side to be involved in the child’s life. She asks that access between the mother and child be expanded to include: access outdoors or in the community (like a library, early years centre or another agreed location); access in the presence of the maternal grandmother, maternal grandfather or another family friend; and access taking place in North Bay (where the mother is hoping to reside if she is able to obtain appropriate accommodations). She asks that the in-person visits take place at least once per month and then, if consistent and positive, they be expanded to full day access at least twice per month and so on. She asks that the supervised access centre be a last resort. Ms. File submits that the consistency of access could be managed by a confirmation system; not allowing make-up visits if any are missed; and the mother taking responsibility for travel if the child comes into her community.
[51] The paternal aunt filed an affidavit dated October 23, 2020 wherein she has made efforts to engage with the mother. The paternal aunt attended at the SJM and made submissions that she would be agreeable to the maternal grandmother, WP, attending visits with BJ. She also indicated that if the visits between the child and mother were consistently positive, then she would be agreeable to expanding the visits in terms of frequency, location, duration and the need for supervision. The aunt also said that she would be willing to open the access up to members of the child’s extended family. The Society submitted that they supported the kin care providers managing future access and expanding the access if it is positive.
[52] The court finds that the kin care providers are willing and able to act in the best interests of the child in terms of using their discretion and being supportive of a safe, meaningful relationship between the child and his parents, and even between the child and his extended family. Based on this, the court shall order some specific minimum access terms and leave any further detailed access terms and expansion of access to the discretion of the paternal aunt and uncle. So long as they do not unreasonably or arbitrarily deny access, there should be no need for the court or the Society to micro-manage access or impose a more detailed access order. If a dispute arises on these issues, either of them may bring the issue back to court and/or they may attempt mediation (if it is appropriate) if there has been a material change.
[53] The Society and the paternal uncle and aunt have tried to support the child’s relationship with the mother and her side of the child’s family. The court has confidence that the paternal uncle and aunt will support reasonably expanding the child’s access with his mother if it is safe to do so. However, there is a good chance that the mother and paternal uncle and aunt may not agree regarding if, or when, there should be an expansion of access including the duration, frequency and need for supervision. Therefore, in addition to some specific access, there shall be an order permitting the access to be reviewed in the future.
Amendments to the CLRA and the CYFSA
[54] As a result of the Moving Ontario Family Law Forward Act,[^24] 2020, amendments were made to the CYFSA and took effect on March 1, 2021. The Moving Ontario Family Law Forward Act also amended the Children’s Law Reform Act[^25] (“the CLRA”) to align it with similar amendments to the federal Divorce Act.[^26] These amendments also came into force on March 1, 2021 and change the parenting terminology used in relation to custody of and access to children. The term “custody”, which may be sought by a parent or a non-parent, is replaced by “decision-making responsibility”, and may be granted by a court under a parenting order. “Access” to a child by a parent is now referred to as “parenting time” and may also be granted under a parenting order. “Access” to a child by a non-parent is now referred to as “contact” and may be granted by a court under a contact order. Consequential amendments to the CYFSA change references to custody of or access to a child in order to align with the new terminology used in the CLRA. It is important to note that not all references to “custody’ and “access” in the CYFSA are replaced; rather, the “custody” and “access” terminology has only been replaced where it is used in reference to the CLRA.
[55] Section 102 now reads in part:
Custody order
102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
Deemed to be order under s. 28 Children’s Law Reform Act
(2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be a parenting order or contact order, as the case may be, made under section 28 of the Children’s Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any direction that it may give under section 34 of that Act.
[56] To my knowledge, there was no direction or clarification provided to the court regarding whether we should change the terminology in an order made under this amended section of the CYFSA or whether the amendments should be applied to cases started but not determined prior to March 1st, 2021. In L.B. v. P.E., 2021 ONCJ 114 (released March 2, 2021), Sherr J. canvassed these issues. Justice Sherr made note of the transition provision at s. 76 of the Moving Ontario Family Law Forward Act, 2020 but stated that s. 76 does not address whether the amendments should be applied to cases started but not determined before March 1, 2021.[^27] Nor has Ontario passed a regulation providing clarification about whether the amendments should apply to a case started but not finally disposed of on or after March 1, 2021.[^28] In this case, Sherr J. decided to apply the approach set out in the amendments. With respect to terminology, the court’s reasoning was that:
Section 76 of the amendments provides that starting on March 1, 2021, existing custody orders are deemed to be decision-making responsibility orders and that existing access is deemed to be either parenting time or contact. If this decision were to be written using the language of the Act before the amendments came into force, they would be deemed by section 76 to be the kind of orders authorized under the amendments. It makes sense then to use the new language in this judgment, as the orders will be deemed to be renamed this way anyways.[^29]
[57] In short, it seems any orders released after March 1, 2021 will be deemed to use the new language regardless of what is in the order. I did not have a chance to hear any submissions from counsel on this technical legal issue. In my view, in this situation, the amendments modernize the language, but would not change the ultimate result. As such, to ensure there is clarity as to the courts order, I have decided to use terminology in the order that incorporates both versions.
Order
[58] For the reasons set out above, the court makes the following final order:
The subject child is BJ born December 1, 2017.
The child is not First Nations, Inuk or Metis.
The child is in need of protection pursuant to ss. 74(2)(b)(i), (ii) and (h) of the CYFSA.
The child shall be placed in the custody of the kin care providers BW and AM pursuant to s. 102 of the CYFSA. BW and AM shall have decision-making responsibility and shall make all major and/or significant decisions and day-to-day decisions about the child’s well-being, including with respect to: (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extra-curricular activities. BW and AM shall inform the parents of the significant decisions they make about the child’s well-being.
The respondent mother shall have access and parenting time with the child as follows:
(a) Minimum of one (1) visit per month in-person as follows:
(i) A minimum of two (2) hours.
(ii) After completing three consecutive two (2) hour visits, the duration of the visit shall expand to four (4) hours.
(iii) After completing three consecutive four (4) hour visits, the duration of the visit shall expand to eight (8) hours.
(b) Virtual and/or telephone access and parenting time for up to one hour once per week as arranged between BW, AM and the respondent mother in advance.
(c) Additional in-person access and parenting time as agreed and arranged between BW and AM and the respondent mother to occur around special holidays including Christmas, Easter, the child’s school summer break, the child’s birthday.
(d) All access and parenting time set out in paragraphs 5 (a), (b) and (c) shall be subject to the discretion of BW and AM with respect to location, duration, frequency, and the requirement for supervision. Appropriate locations for supervised in-person access and parenting time shall include a supervised access centre in Orillia and/or Bracebridge and/or another location (that is not a supervised access centre) and/or another community as agreed between the parties in advance.
(e) Access and parenting time shall be not unreasonably withheld.
(f) The maternal grandmother is an approved supervisor. No other person (except for an approved supervisor) shall be present for any of the mother’s access and parenting time set out above without the prior consent of BW and AM, and such consent shall not be unreasonably withheld.
(g) If the mother misses three consecutive in-person visits as set out in paragraph 5(a) and does not provide a reasonable explanation for same, then all subsequent in-person access and parenting time shall be at the discretion of BW and AM as to location, duration, frequency, and the requirement for supervision. Such access and parenting time shall not be unreasonably withheld.
- The respondent father shall have access and parenting time with the child as follows:
(a) access and parenting time shall be at the discretion of the kin care providers BW and AM.
Any further increase in access and parenting time for either or both parent(s) shall be at the discretion of BW and AM. Such increases and/or expansion in access and parenting time shall not be unreasonably withheld.
The mother shall provide at least 24 hours notice of any cancellation of in-person access and parenting time (with the exception of weather or illness).
BW and AM will provide at least 24 hours notice of any changes or cancellation of any in-person access and parenting time (with the exception of illness or weather).
The mother and/or father shall not consume any alcohol or non-prescription drugs during or 24 hours prior to any in-person access and parenting time with the child.
If there is a material change in circumstances of the parents, BW, AM or the child, affecting the access and parenting time, the parents, BW and AM may attempt mediation prior to commencing a Motion to Change. A material change shall include (but is not limited to) a dispute regarding a change in the access that arises at least two (2) years from the date of this Order, or the passage of at least five (5) years from the date of this Order.
BW and AM shall be permitted to obtain and maintain all government documents for the child including his health card, birth certificate, social insurance number and passport. The mother and father’s signatures and consents for obtaining any of these documents shall not be required and is hereby dispensed with.
BW and AM shall be able to travel with the child within and outside of Canada for the purpose of a vacation without the consent of the mother or father.
BW and AM and both the parents shall keep each other informed of their residential address and contact information including telephone numbers and e-mail address.
BW and AM shall make their best efforts to regularly inform both the parents of the child’s health and well-being including the child’s progress in school, any significant medical issues and advance notice of any planned vacations outside of Canada.
No parent or caregiver shall speak negatively about the other parents/caregivers in the presence or earshot of the child, nor shall they engage in conflict in the presence of the child.
Justice R.S Jain
Released: March 17, 2021
[^1]: O. Reg. 114/99 [^2]: S.O. 2017, c. 14, Sched. 1. [^3]: Affidavit of T. Menzies dated November 28, 2019 [^4]: Affidavit of T. Menzies dated October 22, 2020 [^5]: Affidavit of DD dated December 4, 2020, at paras. 28 and 45 [^6]: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, para 3 of para. 80 [^7]: Children’s Aid Society of Toronto v. S.T., 2017 ONCJ 833, at para. 27 [^8]: Hryniak v. Mauldin, 2014 SCC 7, at para. 49 [^9]: Hryniak, at para. 50; cited in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 63 [^10]: Affidavit of T. Menzies dated November 28, 2019 [^11]: Affidavit of DD dated December 20, 2019, at para. 67 [^12]: Affidavit of DD dated December 20, 2019, Exhibit “B” [^13]: Affidavit of DD dated December 20, 2019, Exhibit “B” [^14]: Affidavit of DD dated December 20, 2019, Exhibit “B” [^15]: Affidavit of DD dated December 20, 2019, Exhibit “B” [^16]: Affidavit of DD dated December 20, 2019, Exhibit “B” [^17]: Affidavit of T. Menzies dated October 22, 2020, at paras. 36-37 [^18]: Affidavit of T. Menzies dated October 22, 2020 [^19]: Affidavit of DD dated December 4, 2020, at para. 24 [^20]: Affidavit of DD dated December 4, 2020 [^21]: Affidavit of WP dated December 17, 2019 [^22]: See also A.G. of Canada v. Brent, 1956 CanLII 5 (SCC), [1956] S.C.R. 318 at 321 [^23]: Affidavit of T. Menzies dated October 22, 2020 [^24]: S.O. 2020, c. 25. [^25]: R.S.O. 1990, c. C. 12 [^26]: R.S.C 1985, c. 3 (2nd Supp.) [^27]: L.B. v. P.E., 2021 ONCJ 114, at para. 39 [^28]: Ibid., at para. 40 [^29]: Ibid., at para. 43(g)