WARNING

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

87(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.

87 (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.: 174/19 DATE: 2021/03/18

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 A.J., born December , 2018

BETWEEN:

Valoris for Children & Adults of Prescott-Russell Applicant – and – L.A.J. Respondent – and – J.J. Respondent

Counsel: Anaïs Paré-Chouinard, for the Applicant Self-represented Self-represented

HEARD: February 24, 2021

REASONS FOR JUDGMENT

LABROSSE J.

[1] This motion is brought by Valoris for Children & Adults of Prescott-Russell (the “Society”) pursuant to the Child Youth and Family Services Act [^1] (“CYFSA”), seeking summary judgment granting the following:

a. A finding that the child, A.J., continues to be a child in need of protection;

b. A finding that the disposition which is in A.J.’s best interest is an order for Extended Society Care for the purposes of adoption; and

c. Pending the adoption, an order for access to his parents, a minimum of once per month and otherwise at the discretion of the Society.

[2] The Society submits that, based on the evidence filed, there is no genuine issue for trial.

[3] The parents submit that there are issues requiring a trial and highlight the following:

a. That the Society collaborated with the police to have the parents charged;

b. That the Society used intimidation tactics with the Mother;

c. That the evidence about inflicted trauma is not conclusive;

d. That the injuries are not uniquely associated with inflicted trauma to the head; and

e. That the expert witness did not properly consider the additional possible causes as set out in the additional history provided by the parents.

[4] For the reasons that follow, the Society’s motion is granted, subject to increased access for the parents.

Factual Background

[5] This summary judgment motion relates to A.J., born December **, 2018. He has been in the Society’s care for approximately 19 months, which is in excess of the time limitation imposed by the CYFSA for a permanent plan.

[6] The Society’s involvement stems from a June 2019 incident when the child exhibited symptoms of distress after a week of vomiting and not eating. The parents initially noticed that the child presented with symptoms and they contacted their family doctor on June 9, 2019. They attended at the Winchester Hospital on June 10, 2019 and were then sent home.

[7] After a few more days of symptoms, the Father noticed a bump on the child’s forehead. They attended at the Cornwall Hospital on June 18, 2019, and the child was transferred to the Children’s Hospital of Eastern Ontario (“CHEO”). He was diagnosed with bleeding on both sides of his brain as well as behind his eyes.

[8] The child underwent two brain surgeries to reduce swelling and to install a shunt on the right side of the brain.

[9] The child was released from hospital on July 3, 2019. The Society sought a plan from the parents that would allow the Mother to remain with the child with full-time supervision and the Father’s visits would be supervised by the Society. During the month of July 2019, the Mother lived with three different kin, none of whom were available as long-term plans.

[10] The Society also offered that the Mother could reside in the family residence with the child and a third party who could provide supervision provided that the Father lived elsewhere. However, the Father was unwilling to leave his home in favour of the Mother and the child.

[11] On July 26, 2019, the Father met with the Society’s Child in Care worker who was supposed to offer sessions to help the Father with parenting and anger management skills. While the Father initially seemed eager to participate, he later said that he did not understand why he needed to participate in such sessions. There is no evidence that the Father followed through with this support.

[12] On July 29, 2019, the Society obtained a warrant to bring the child to a place of safety because the third kin was leaving on vacation and there was no foreseeable stable plan for the child. On August 2, 2019, a temporary without prejudice order was granted, placing the child under the Mother’s care, but with 23 conditions, three of which were that the Mother could not leave the foster home where she was staying with the child, could not inform the Father of the address and needed to be supervised at all times with the child. The Father continued to have supervised access.

[13] On August 9, 2019, the child was placed in the temporary care of the Society as the Mother did not want to reside with the foster family.

[14] On September 26, 2019, the August 9, 2019 order was amended to add additional visits, supervised by the maternal grandparents.

[15] On July 15, 2020, Justice Charbonneau denied the parents’ motion to place the child with possible kin (including the paternal grandmother, a paternal cousin and a member of their religious community).

[16] After the child came into the temporary care of the Society, the parents initially had supervised visits at the Society’s office and those visits raised no concerns. Between September 28, 2019, and November 25, 2019, visits were temporarily moved to the home of the maternal grandparents, but this ended due to conflict between the parents and the maternal grandparents.

[17] In January 2020, the parents advised the Society of their plan to move to Toronto due to employment opportunities and sought the transfer of their file to a Children’s Aid Society in the Toronto area. The Society did not agree with such a move as it was still in the process of determining the child’s life plan.

[18] Starting on February 22, 2020, access then took place on weekends at the home of a church member who resided in the Ottawa Valley. The parents moved to the Toronto area on March 1, 2020. The parents continued to travel back to the Ottawa Valley for access at the church member’s residence for at least four visits. Access at the church member’s residence ended with the COVID-19 pandemic.

[19] On May 29, 2020, the parents were charged with aggravated assault in relation to A.J.’s injuries. The Mother’s criminal conditions were amended in July 2020 to allow her to have access under the supervision of the Society. The Father’s conditions were thereafter also modified. Since that date, the parents have not sought to have in-person access supervised by the Society.

[20] In September 2020, the parents moved to St. Vincent and the Grenadines in the Caribbean. The parents now have video access five times a week. There are no concerns with the parents’ interactions with the child by video.

[21] The parents have been unable to identify any cause for the child’s injuries other than pointing to an unknown medical condition. Also, they have proposed situations where the child’s head may have been subject to some minor trauma.

[22] The Society relies on the report of Dr. T.M. Parker, a consulting pediatrician at CHEO who provided an Acknowledgement of Expert’s Duty. There was no challenge to Dr. Parker’s qualifications and the Court has independently reviewed her qualifications and concluded that she was able to provide the opinion evidence contained in her report.

[23] The parents provided several descriptions of “minor trauma” which they suggested could explain the child’s injuries. Dr. Parker considered them and concluded that they would not explain a subdural hemorrhage. Dr. Parker’s conclusions are summarized as follows:

In summary, at the present time, there has been no identified medical cause to explain AJ’s findings of bilateral subdural collections with blood and multiple bilateral retinal hemorrhages. These findings both individually and collectively raise concerns for a traumatic cause that may have been due to inflicted injury (defined as injury caused by the actions of another person).

[24] The Society workers were never able to properly address the content of Dr. Parker’s report with the parents because they refused to meet with the workers. The parents advised the Society that they would discuss their concerns with Dr. Parker’s report with her directly. There is no evidence that they ever attempted to do so.

[25] The evidence is that the child has now recovered from his injuries and is on a normal developmental path. The long-term effects of his injuries are unknown.

[26] The Society also relies on past parenting concerns. The Father has a child with another woman. The Society became involved with that child as a result of incidents of physical discipline by the Father on this 8-month-old infant. The Father pled guilty to assault with a weapon. That child was placed in the sole care of her mother. The Father has supervised access.

[27] The parents did not engage in services with the Society, but they advised that they did take a parenting class with another service provider. The parents also rely on the fact that the Mother has given birth to a healthy second child who is with them in St. Vincent and the Grenadines.

[28] On November 13, 2020, the Society made efforts with the parents to go over the objectives that the parents had to meet, including demonstrating age-appropriate parenting skills, assuring that the child was safe from any harm including corporal punishment and/or restraints, as well as participating in regular meetings with the worker. It is unclear, however, how this could be done with the parents no longer residing in the jurisdiction.

[29] In December 2020, the Society attempted to continue working with the parents. The Mother indicated that the parents had reservations about discussing the medical issues given the open criminal case. The parents were to advise what they would and would not discuss. It does not seem that this ever happened before the summary judgment motion.

[30] When the parents had visits with the child, the Society had no concerns with their care. They stimulated the child’s development by encouraging crawling and walking. They arrived with meals for the child. They were affectionate with him and the Mother consistently attended his medical appointments.

[31] The Society took steps to explore other available plans for the child. A family group conference occurred in February 2020, and the outcome was that three plans presented themselves: a paternal cousin (Roneal Clarke), the paternal grandmother and the maternal grandparents. The parents also proposed a church member as a possible temporary placement. These options were explored and had the following results:

a. Mr. Clarke never finalized his plan and stopped responding to the Society;

b. The parents advised in September 2020 that plan with the paternal grandparents was no longer an option;

c. The plan for the church member was rejected by the Court in July 2020;

d. The maternal grandparents were assessed and approved as a kin placement by the Ottawa Children’s Aid Society. In the fall of 2020, the maternal grandparents confirmed their preference to be considered for an adoption of the child rather than a custody order.

[32] The Society has amended its child protection application on three occasions:

a. January 27, 2020 – placing the child in the care and custody of the Society with no access to the parents;

b. August 21, 2020 – placing the child in the custody of the maternal grandparents with a minimum of 10 visits per year between the parents and the child;

c. December 23, 2020 – Extended Society Care with access to the parents with a view to having the child adopted by the maternal grandparents. The Society is waiting for information about the maternal grandparents before finalizing their approval for adoption.

[33] The parties have also referred the Court to previous affidavits filed in these proceedings and this evidence has been considered by the Court. At the motion, the parents reviewed their written material in detail and were permitted to supplement them with further information.

[34] As the parents are self-represented and the Court is conscious of giving judicial assistance to self-represented parties, it was agreed at the motion that the parents’ document titled Response to the Society’s Factum by the Respondents would be considered as part of their sworn affidavit as it is a mix of argument and evidence. Furthermore, for the purposes of this Endorsement, I have considered the additional information/evidence provided in oral submissions by the parents as being sworn testimony as the Society stated it was already essentially included in previous affidavits.

Applicable Law

Summary Judgment

[35] On a motion for summary judgment, the Court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the Society to show that there is no genuine issue requiring a trial. [^2]

[36] Courts should be very cautious in granting summary judgment in child protection cases because the stakes for the family are so high and the granting of summary judgment deprives the parents of their day in court and the procedural safeguard of cross-examination of witnesses before a judge. [^3]

[37] The procedure governing a motion for summary judgment is set out in r. 16 of the Family Law Rules [^4], the relevant provisions of which are as follows:

RULE 16: SUMMARY JUDGMENT

EVIDENCE REQUIRED

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

EVIDENCE OF RESPONDING PARTY

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

NO GENUINE ISSUE FOR TRIAL

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

POWERS

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

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[38] As stated by the Supreme Court of Canada in Hryniak v. Mauldin [^5], at paras. 47 and 49: “Summary judgment motions must be granted whenever there is no genuine issue requiring a trial […] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.” This Court has also indicated that the words “no genuine issue for trial” are equivalent to “no chance of success” or “plain and obvious that the action cannot success”. [^6]

[39] In Kawartha-Haliburton Children’s Aid Society v. M.W. [^7], the Court of Appeal for Ontario affirmed the longstanding cautious approach to summary judgment in child protection proceedings and summarized its guiding principles:

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

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

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

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

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

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

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

Extended Society Care and Access

[41] The Court’s assessment of the evidence is guided by the child’s best interests. Section 74(3) of the CYFSA requires the Court to prioritize those interests and mandates that the Court shall,

Best interests of child

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[42] Following a finding that a child is in need of protection, the Court must determine what disposition is in the best interests of the child. The child’s best interests considered in light of the position of the parties. The Society seeks an order placing the child in the Society’s extended care pursuant to s. 101(1)(3) of the CYFSA. The parents seek the return of the child to their care pursuant to s. 101(1)(1) of the CYFSA.

[43] In the event that the Court makes an order placing a child in the Society’s extended care, the Court must also consider the child’s best interests when making an access order under ss. 104 and 105 of the CYFSA.

[44] Finally, the Court must determine whether less disruptive alternatives or a community placement are available (see ss. 101(2) and 101(3) of the CYFSA).

Analysis

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

[45] I have given careful consideration to each party’s position, to the legislation and to the case law. The Court is also conscious of the need to exercise caution and apply the objectives of the CYFSA in assessing this summary judgment motion.

[46] As part of its arguments opposing reintegration into the parents’ care, the Society states that the only possible explanation for A.J.’s injuries, as provided by medical testing, is inflicted injuries. I disagree and such a conclusion would misconstrue what is said in Dr. Parker’s report. Dr. Parker has opined that the parents’ descriptions of possible “minor trauma” would not explain his injuries and that the absence of a medical explanation raises concern for inflicted injury. This is as far as the medical evidence goes.

[47] The Society has placed much focus on seeing someone step forward with an explanation for the injuries. They state that, as such, it has not been possible to work toward a plan to mitigate risks.

[48] The Society’s position is that the parents are unable to explain the reason for the child’s injuries and that this leaves as a real possibility that the child suffered a trauma while in the care of the parents. Thus, the parents are unable to keep him safe. The Society relies on the Father’s past instance of physical discipline and criminal conviction, the concern that A.J.’s 2019 injuries were due to an inflicted injury and the parents’ refusal to engage with the Society to address the protection concerns. The resulting conclusion is that the parents are unable to keep the child safe leading to a finding that the child is in need of protection and that he needs to be placed in Extended Society Care.

[49] The parents’ position is that the Society has refused to work with them unless they admit some wrongdoing with respect to the child’s injuries. They state that the Society otherwise offered no services or support. All the Society wanted was an admission of responsibility for the child’s condition. In this vein, they say that there are genuine issues requiring a trial given that the evidence is inconclusive that the parents caused the child’s injuries. In the alternative, the parents accept that they are currently residing in the Caribbean and that because of the ongoing criminal matters concerning the outstanding charges against them, they are not in a position to assume the care of the child. Still, they oppose a finding of Extended Society Care.

[50] The parents have presented no evidence or made any argument to detract from the obvious conclusion that, at the time the child came into care, he was in need of protection. I come to this conclusion for the following reasons:

a. The injuries suffered by the child are obviously very serious;

b. The physicians involved have been unable to point to a medical condition that could have been the cause of the injuries;

c. The parents were unable to point to any cause for the injuries;

d. The Father has a history of assaulting his other child and needs to address anger management issues;

e. The parents confirmed that at all material times, the child was under their care; and

f. Most of the circumstances proposed as minor trauma by the parents are still circumstances where they would have failed to properly care or supervise the child.

[51] Since the child has been placed with the Society, the parents have demonstrated proper parenting abilities during visits. However, as a result of their lack of engagement with the Society, the Court is unable to conclude that the protection concerns have been addressed. It does not assist the Court to know that their second child is healthy.

[52] The Court has some concern that the Society may have placed too much focus on blame rather than on the cause of the child’s injuries to avoid them in the future. This has been fully considered. There could have been a clearer focus on assessing if the parents, regardless of how the injuries happened, could better themselves as parents and offer a safe environment to the child. This is not to say that the Society has done none of this, but I am concerned that more could have been done.

[53] However, there is evidence that the Society has tried to work with the parents. It was clearly incumbent on the parents to engage with the Society and take advantage of all available services. Early on, the Father had the opportunity to receive support with parenting skills and anger management. This was an opportunity for the Father to engage with the Society, regardless of the cause of the child’s injuries, and show that he would work to better himself without having to admit to any wrongdoing. The Father’s history of abuse with his first child and the concerns raised with A.J. have made anger management a very real and legitimate issue that absolutely had to be addressed. It was not addressed and, as such, the risk to the child that existed when he was brought to a place of safety still exists today. Taking a third-party parenting course is not sufficient.

[54] When I consider if any issues exist that warrant a trial, I have specifically considered the list of issues raised by the parents during this motion:

a. That the Society collaborated with the police to have the parents charged: The evidence does not support this. This is simply a bald accusation made by the parents that is not supported in the evidence. The Society provided information to law enforcement as part of its mandate. The Court was not directed to any evidence that would support a finding that the Society acted inappropriately.

b. That the Society used intimidation tactics with the Mother: Once again, the Court was not directed to any evidence to support such an accusation. This was a complex file to manage given the circumstantial evidence concerning the parents and more particularly the Father. The Court recognizes that the suggested placement of the Mother with the child in a foster home where the Mother could not advise the Father of her whereabouts was challenging for the parents. It is likely that few parents would succeed in such a placement. However, the Society was trying to keep the Mother and child together. The placement of the Mother in her home with a third party was prevented by the Father’s refusal to move out, even temporarily. The Court is satisfied that the Society gave the parents a reasonable opportunity to engage and take advantage of the Society’s services. The allegation of intimidation is not made out.

c. The medical evidence is not conclusive: On this point, I agree with parents. The evidence is not conclusive and does not lead to the conclusion that the parents caused the injuries. Dr. Parker’s report simply states that there is a concern raised “for a traumatic cause that may have been due to inflicted injury.” However, the Court’s findings do not rest on a conclusion that the parents caused the injuries. The finding of need of protection rests on the assessment of the totality of the evidence and the circumstances that existed when the child came into care. It is not a triable issue that the Court cannot conclude definitively on the cause of the injuries as this is not necessary for the Court to conclude that the child was and continues to be in need of protection.

d. That Dr. Parker did not properly investigate other possible causes: While Dr. Parker’s report may not have listed every possible “minor trauma” referenced by the parents, she clearly explored the issue of other possible causes resulting from similar minor trauma and ruled them out. Furthermore, the parents had the opportunity to communicate with Dr. Parker to present other possible causes for the injuries and they did not do so. It is not sufficient to simply sit back and criticize the report as not listing every possibility when the parents did not make sufficient effort to have their issues considered.

[55] A finding that a child is in need of protection relates to the circumstances at the time the child was brought to a place of safety and whether those circumstances still exist today. I am satisfied that there is a sufficient evidentiary basis for a finding that A.J. was in need of protection when he came to a place of safety and that the parents’ lack of engagement with the Society and their failure to demonstrate that they can provide a safe environment for the child has caused for those circumstances to continue today. There is no need for the Court to use any additional fact-finding powers to decide if a trial is required. There is clearly no genuine issue for trial on this question.

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

[56] It is well established that in child protection proceedings, the parents must put their best foot forward on a motion for summary judgment. A parent’s case must rest on more than mere denials or a heartfelt desire to resume care of a child. There must be clear evidence that a parent faces better prospects than what existed at the time of apprehension and that the parent has developed some new ability as a parent. [^8]

[57] The Society submits that there is no triable issue as the same risks of harm that existed before the child came into the Society’s care are present today.

[58] The Father’s history of physical discipline, the parents’ inability to explain the circumstances surrounding the child’s injuries, their lack of engagement with the Society and the medical evidence that raises important concerns for inflicted injury lead me to conclude that the parents are unable to protect the child.

[59] I conclude that the child has suffered physical harm resulting from the parents’ failure to adequately care for him, to provide for him, to supervise him or to protect him. When considering the child’s best interests, the only available option is for the child to be placed in the Society’s extended care. I come to these conclusions for the following reasons:

a. The medical evidence satisfies me that it is unlikely that any medical condition can explain the child’s injuries/condition;

b. The injuries or condition happened while in the parents’ care;

c. The parents have taken no independent steps to obtain a second opinion from the conclusions of Dr. Parker and they have not engaged with her to challenge any of her conclusions;

d. The Father’s history of aggression has not been sufficiently addressed by the parents; and,

e. The parents have resisted discussing the injuries with the Society. Even if I were to accept their evidence that the cause of the injuries is unknown, the parents should have demonstrated a willingness to discuss the possible causes how those possible circumstances can be avoided. On the contrary, the parents have refused to discuss the injuries and how they can be avoided in the future.

[60] When considering the specific applicable criteria associated with the best interests of the child, the Court concludes:

a. The child is clearly too young for the Court to consider his views and wishes.

b. The parents are unavailable to meet the child’s physical and emotional needs as they have left the jurisdiction and have not demonstrated that they have addressed the child protection concerns that existed at the time the child was brought into care.

c. The parents have advocated for the need to respect the child’s religious upbringing. The Society has demonstrated an effort to do so but there are challenges to placing the child in a foster home which attends the Seventh-day Adventist Church.

d. Although the possible adoption by the maternal grandparents is not finalized and cannot be fully considered at this stage, this proposed placement demonstrates the Society’s efforts to consider the child’s race, ancestry, ethnic origins and the Mother’s heritage.

e. The unavailability of the parents has a significant impact on the ability to foster the relationship with the parents. As the parents are not available to the child except by video, the Society must look to other options for placing the child in a situation of permanence with extended family. Regardless of the success of the adoption by the maternal grandparents, the Society has demonstrated that it has attempted various other placements and is likely to continue to place value on the child’s cultural heritage in seeking a permanent plan.

f. Finally, the risk of returning the child to his parents is significant. There is little evidence to reassure the Court that the unknown circumstances which led to the child’s injuries will not present themselves again and, as such, the child is at risk of harm if he were returned to the parents. The circumstances that existed in July 2019 have not changed.

[61] If the parents truly did not know how A.J. was injured, they should have been open to exploring the possible accidental causes and how they can be avoided through proper supervision and parenting. The concerns about anger management with the Father should have been addressed through programming with the Society. They could have done this without admitting the cause of the injuries. Furthermore, the parents could have taken advantage of the time A.J. has been in care to demonstrate their ongoing parenting skills and willingness to work with the Society. On the contrary, they have left the jurisdiction.

[62] As for the evidence at trial, it will not change in any material way. The parents have not demonstrated an intent to return to Prescott-Russell prior to the commencement of the trial.

[63] Extended Society Care is the only available option. The parents have been unwilling to demonstrate that appropriate steps are in place to avoid the possibility of further injuries and, given the time already spent in the care, the legislation requires a permanent placement.

[64] There is also no other option for the child given that other placement options have failed to be viable. The parents have effectively abandoned their child with the exception of virtual access. They first moved to Toronto without making proper arrangements for ongoing access, although they showed some efforts by travelling on a certain number of occasions to eastern Ontario for access visits. However, they then proceeded to move to the Caribbean without notice.

[65] Given these circumstances, I conclude that the child is likely to suffer physical harm resulting from the parents’ inability to adequately care for, provide for and supervise or protect the child. There is no genuine issue requiring a trial with respect to the proper disposition and the Court does not need to use its fact-finding powers. The evidentiary record is sufficient.

[66] The Society has also demonstrated that there is also no less intrusive order available to the parties given the maternal grandparents’ unwillingness to proceed with a custody order. No other placement options have been approved and there is no evidence that the Society did not properly explore other options.

[67] Finally, the Society has a viable plan for adoption with the maternal grandparents. While the parents oppose this option given the uncertainty that their religious beliefs will be maintained following an adoption, this is not sufficient to sway the Court away from a permanent placement, which is clearly in the child’s best interests. The child requires permanency, which in this case amounts to adoption and the possibility of an adoption by the maternal grandparents is clearly in A.J.’s best interests. There is no genuine issue requiring a trial. For these reasons, I am granting an order for the relief sought by the Society, subject to issues surrounding access.

[68] On the issue of access pending adoption, the Society supports the ongoing video access and would not be opposed to in-person access should the parents return to Prescott-Russell. The Society seeks an order for access to be a minimum of once per month. I agree with the parents that this is insufficient.

[69] With the proposed adoption plan, there is a likelihood that the parents will remain involved in the child’s life. Given the Society’s lack of concern with the parents’ access, I conclude that it is in the best interest of the child that the access continues a minimum of once per week, pending an adoption which would include a process for openness.

Disposition

[70] For the reasons set out herein, the Court concludes:

a. The Society has met its onus to demonstrate that there are no genuine issues requiring a trial.

b. A.J. is a child in need of protection.

c. It is in A.J.’s best interests to be placed into the Society’s extended care.

d. It is in A.J.’s best interests to have access to his parents, a minimum of once per week, and otherwise at the Society’s discretion.

Released: March 18, 2021 Justice Marc R. Labrosse

Footnotes

[^1]: Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched.1 [CYFSA]. [^2]: Children’s Aid Society of Hamilton v. M.N.. [^3]: C.R. v. Children’s Aid Society, 2013 ONSC 1357, 33 R.F.L. (7th) 67. [^4]: Family Law Rules, O. Reg. 114/99 [FLR]. [^5]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. [^6]: C.A.S. v. H.B.L., 2014 ONSC 6291, at para. 8. [^7]: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32. [^8]: Children’s Aid Society of London and Middlesex v. L.A..