2021 ONSC 2074

COURT FILE NO.: FC-19-151

DATE: 20210319

SUPERIOR COURT OF JUSTICE - ONTARIO

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

AND:

K-J W. and M.B., Respondents

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: Ms. C. Gilchrist, for the Applicant

Mr. B. Kinnear, for the Respondent, K-J W.

Ms. K. Bromley for the Office of the Children’s Lawyer (representing E.W. and J.B. only)

HEARD: January 22 and 29 and February 8, 2021

reasons for decision

Introduction

[1] The Respondent Mother, K-J W. and the Respondent Father, M.B. are the parents of three children who are at issue in this summary judgment motion. E.W., 10 years old and J.B. who is 6, are both sons; S.B. is 3 and is a daughter.

[2] The Society has been involved with this family since 2010 because of unstable housing, drug use and parental conflict. In July, 2019, because of homelessness, the family was living with the maternal grandmother. She kicked the parents out because of drug use but was unable to satisfy the Society worker that she was able to adequately care for the children on any sort of permanent basis. On July 24, 2019, she called the worker and demanded that the Society find an immediate placement for the children. The parents were unable to advise of any alternative kin placement, and the children were taken into interim Society care on that date.

[3] The children have all been in foster care since that time. The boys are in one home, S.B. in another.

[4] M.B. has been incarcerated since November 19, 2020. He was served with the Amended Application on November 20, 2020 and did not file an Answer or Plan of Care. He was noted in default by me on January 22, 2021.

[5] K-J W. did file an Answer. She filed a very short affidavit in opposition to the Society’s summary judgment motion, and during submissions on Zoom, she began to make assertions that were not in her affidavit. I gave her a chance to give viva voce testimony on this motion and she testified on January 29 and February 8, 2021 and was cross examined by Society counsel.

[6] Prior to argument, counsel indicated that the Society, the OCL and the Respondent Mother were consenting to a finding that the children were in need of protection as requested in the Amended Protection Application. Therefore, there shall be a finding that the children are in need of protection as requested in the Amended Application (ss. 74(2)(b)(i), 74(2)(b)(ii), 74(2)(e) and 74(2)(h) of the Child, Youth and Family Service Act[^1]).

[7] I note that the Society affidavit evidence, most of which remained uncontradicted after K-J W.’s testimony, would support those findings regardless of counsel’s consent. It is clear from the affidavits provided by the Society that there was severe neglect of the children and their health which put them at risk. There was no evidence that these factors had been addressed since the children came into care in July, 2019. There is no issue that a finding could have been made by the court in any event that these children were in need of protection under the sections of the CYFSA noted above.

[8] This matter was adjourned to March 19, 2021 for judgment.

Analysis

[9] There are two issues in this matter. The Society requests extended care of the children but subject to parenting time or contact between the children and their mother. Regarding access, the Society is requesting different access between the Respondent Mother and the two boys from the access to the youngest child, S.B.

[10] The Respondent Mother, who is the only party left in this proceeding, objects to extended care. She testified that she will be able to obtain housing in the near future and that she wants nothing more than having the children returned to her care. She wants at least the access that she has now, which is three times per week, supervised.

[11] Therefore, the issues are as follows:

a. Is there any genuine issue for trial as to whether it is in the best interests of the children that they be placed in the extended care of the Society?

b. If extended care is ordered, is the parenting time proposed by the Society in its Plan of Care and Notice of Motion in the best interests of the children?

[12] Throughout all of this it must be recalled that this is a claim for summary judgment involving dispensing with a trial of the issues noted above. The real issue is whether the Society has satisfied the court as to whether the relief requested by the Society requires a trial as to the best interests of the children.

Summary Judgment

[13] The Society requests an order by way of summary judgment for extended care of the children. Previously known as Crown wardship, this involves permanently removing the children from the care of their parents, and has been called the “capital judgment” of the child welfare legal system: see C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357 and Children’s Aid Society of Toronto v. R.C., 2016 ONCJ 335 at para. 90.

[14] The authority for summary judgment in child protection claims (or any family proceeding for that matter) is r. 16 of the Family Law Rules[^2]. The provisions of that rule can be summarized as follows:

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

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

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

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

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

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

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

[17] However, r. 16(4.1) does not affect the onus of the Applicant Society to prove there to be no genuine issue for trial. That onus does not change. This was confirmed by Benotto J.A. in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 which confirms that the onus always remains with the Society to prove on the balance of probabilities that the case can be determined without a trial. Kawartha-Haliburton also confirms that the court must proceed with caution, especially in the case of unrepresented litigants. Where a party is unrepresented or, as the case may be, inadequately represented, the court must give all possible assistance to ensure that the process is fair to all of the participants in the summary judgment motion.

[18] That was the situation in the present case. The Society materials in this matter were extensive; the leading affidavit was more than 170 paragraphs long and there were six other affidavits addressing hearsay issues and supporting the worker’s affidavit. In response to this, the Respondent Mother filed an affidavit that was only seven paragraphs long and there was very little actual evidence contained in that affidavit which mostly contained assertions and statements of intent. When Mr. Kinnear began to make responding submissions on the motion, his client was present in his office (the hearing was by Zoom), and she began to make statements which were out of turn, but also made it clear that she had more to say than the contents of her affidavit. That was the reason that I offered her a chance to testify in support of her position on the motion which she accepted. As noted above, she testified over two days prior to the completion of the motion. She was cross-examined by the Society counsel as well as Ms. Bromley on behalf of the Office of the Children’s Lawyer.

[19] The major issue that became apparent as submissions were made and evidence given was whether anything had actually changed since the children were apprehended due to the parties’ homelessness, domestic violence and drug use issues. This is crucial because case law has confirmed that, where children are taken into care because of risk of harm, the parents must at least, in a minimal manner, address the risk factors which resulted in that apprehension. The court must address the question of whether the “risk concerns that existed at the time of the apprehension still exist today?” See Children’s Aid Society of Toronto v. T.T., [2012] O.J. No. 1649 (C.J.) at para. 32. If it is uncontested on the evidence that the same risk factors continue as before, then summary judgment in favour of the Society should go.

Extended Care

[20] This is a hearing involving the disposition regarding children once they have been found in need of protection. The Society requests an order without a trial for extended care of the children at issue in this matter. The order is requested under s. 101(1)3 of the CYFSA. Under s. 101(1), that order must be made in accordance with the child’s best interests.

[21] Best interests are defined in s. 74(3) of the CYFSA. That section requires the court to give weight to the child’s “views and preferences” where possible. In addition, s. 74(3)(c) requires the court to consider a number of criteria in determining best interests:

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

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

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

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

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

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

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

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

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

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

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

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

[23] Regarding the first two criteria, the children have not demonstrated any special needs and their lawyer did not speak of any particular emotional or other needs when giving submissions. The issue resolves itself down to whether the children’s basic needs regarding their health and welfare can be met by the parents. Cultural issues do not play a role in this case. However, what does play a role is the children’s connection with their parents, the views and preferences of the two older children and the risk factors which led to the children being apprehended in the first place and the need for the finding that the children are in need of protection.

[24] In reviewing this motion and the claim for extended care, the court is going to firstly review those risk factors and whether the evidence demonstrates any mitigation or minimizing of those risk factors. The court will then review the present connections between the parents and the children along with the children’s views and preferences. Finally, the court will then turn to the issue of whether there are any less intrusive measures available to an extended care order or whether the children can be placed in the community subject to Society supervision: see ss. 101(3) and (4) of the CYFSA.

Risk Factors

[25] The risk factors which resulted in the children’s apprehension included the Respondents’ homelessness, their drug use and domestic violence and conflict within their household. As well, the court must review the parents’ abilities to meet the needs of the children.

Homelessness

[26] Housing instability along with drug use were the immediate reasons why these children were apprehended. In June, 2019, the parents had lost their housing in Angus, had to move into the Lighthouse shelter in Orillia and then had to move in with the maternal grandmother of the children. The grandmother asked the parents to leave because they had been using cocaine in her household and the parents moved to a hotel, leaving the children in the care of the maternal grandmother on July 21, 2019. By July 24, 2019, the maternal grandmother demanded that the Society find a placement for the children on an “emergency” basis because she could not manage them anymore.

[27] The affidavit of the worker confirms that between December 2017 and the present, the parents have resided in at least 10 different residences, both with and without the children. The home in Angus was a clear example of what would typically happen. The Society understood from the parents that they were not paying their rent on the Angus residence and that there were hearings of the Landlord and Tenant Board for eviction from that residence. After being evicted in June, 2019, the family moved in with the maternal grandmother but then had to leave and go to a hotel. After the parents moved out of the maternal grandmother’s residence, the Society was told that this was a result of conflict and drug use; they had been living with the maternal grandmother for a period of six weeks.

[28] The condition of the parents’ home was also an issue. The children reported that there was “poo and pee” in the laundry room of the home the family was living in in December, 2017. The Society workers who attended there observed that the condition of that home was abysmal and “the kitchen sink and counter were full of dirty dishes and the home was noted to have a smell of garbage and cigarette smoke.”[^3] This inability to maintain a safe and sanitary residence is corroborated by the realtor who took possession of the Angus property after the family was evicted in June, 2019; he noted that there was more than $100,000 damage to the property after the family vacated the home and that there were “dog feces on the floor of the home.”[^4]

[29] After the children were apprehended, the parties’ patterns of instable housing continued, with stints couch surfing with friends, residing at shelters or hotels, returning to the residence of the maternal grandmother, and then after a fight, returning to transiency. The worker deposes to ten different living situations between February, 2020 and the swearing of the affidavit in December, 2020.

[30] According to the worker’s affidavit, on November 11, 2020, the mother was living in a shelter having again been evicted from the maternal grandmother’s home. K-J W. deposed in her affidavit sworn January 18, 2021 that she was residing “at my mother’s apartment in Orillia”;[^5] however, there are actually three different versions of her living situation in the evidence given by K-J W.

[31] In her own testimony given in response to questions that I posed during the motion on February 8, 2021, she confirmed that she had actually been living at her mother’s until November 16, 2020 and then went to stay at Greenhaven Shelter, returning to her mother’s residence in December, 2020. She confirmed that M.B. showed up at her mother’s residence on New Years’ Eve, 2020 and her mother yet again kicked her out at that time. She confirmed that she returned to Greenhaven Shelter on that date and appears to have actually been living there when she deposed that she was living with her mother on January 18, 2021.

[32] However, when testifying in chief with her lawyer, she said that she had moved out of her mother’s residence, not because she was kicked out because M.B. showed up, but because her mother was ill and had to go to stay with a friend. She failed to mention the New Years’ Eve incident respecting M.B. when she testified in chief.

[33] Finally, in her own affidavit, she said that as of January 18, 2021, she deposed that she was actually living at her mother’s residence when the affidavit was sworn, and this statement, made in a sworn affidavit, appears to have been patently false as she testified that that she had left her mother’s residence on December 31, 2020.

[34] She also testified that her stepmother had now obtained housing for her, but she did not offer any details about that housing.

[35] It appears plain that there has been no improvement in K-J W.’s ability to maintain stable housing since the children were apprehended on July 24, 2019. Her housing situation remains insecure, and she was unable to offer proof of any change in that situation; in fact her evidence in her affidavit regarding her living situation was contradicted by her own testimony. I find that, if the children were returned to the mother’s care, there is no genuine issue for trial that K-J W. would not be able to offer stable housing for the children.

Drug Use

[36] Drug use has been a constant issue for K-J W. She has been on the methadone program for nine years, having started on that program on February 22, 2012. She has a diagnosis of opiate addiction, confirmed in the latest letter from Dr. Cooper filed at the hearing in this matter.[^6]

[37] There have been a number of allegations of risk factors noted above. These include housing instability, domestic violence and mental health issues. It goes without saying that many of these types of problems are often rooted in ongoing addictions and drug use issues, which is debilitating to the user and results in an inability to address the basic issues that are before the court. It also goes without saying that these drug use issues severely affect a parent’s ability to care for their children.

[38] As with many other cases, K-J W.’s problems are rooted in her addiction issues. Her drugs of choice were, at the time of apprehension, opiates and cocaine; she has now graduated to fentanyl and cocaine as reflected in the drug screenings placed in evidence before the court.

[39] The Respondent Mother had originally agreed to provide the Society worker with her Urine Drug Record Sheets and provided a consent to this effect. The screening report from July to September, 2019, the months immediately following the apprehension of the children, show that K-J W. was using cocaine and opiates. Occasionally there was little or no cocaine in the Respondent Mother’s system, but it always returned. It is to be noted that one of the reasons that the maternal grandmother asked the couple to leave her residence in July, 2019 was cocaine use in her home. A crack pipe was found in her couch and the maternal grandmother said that the parents had used drugs in the presence of the children.

[40] The drug use has continued. In April, 2020, the parents were kicked out of a friend’s residence as he did not want “addicts to stay in the home.”[^7] But more telling is the urine screen provided by the Respondent Mother during the summary judgment hearing when she gave testimony.[^8] That Urine Screen showed ongoing and continuous cocaine use as well as fentanyl use between November 4, 2020 to January 24, 2021. It is also noted that K-J W. does not have “carries” of her methadone; it is well known that carries are not provided to anyone other than addicts whose urine screens remain clear.

[41] The Respondent Mother has not been forthright about her drug use. On November 27, 2019, K-J W. refused to provide a consent form regarding her urine screens and her treatment by Dr. Cooper. In October, 2020, the worker requested an updated consent form for her urine screens and she refused to provide that. She testified that she could not provide the signed consent form because she did not have access to a printer, but it is difficult to see how this would be the case if she was in Greenhaven Shelter.

[42] K-J W. has many explanations as to her drug use. She says that she originally started using opiates because of pain issues resulting from gastric by-pass surgery. She said that she does not use much cocaine at all now; her positive readings are caused by her low liver function which results in positive readings with very little drug use.

[43] She did not provide confirmation of this from Dr. Cooper. She also acknowledges that she continues to use cocaine, just not very much. It is apparent to me from the evidence, largely uncontradicted, that K-J W.’s drug use continues to be pervasive and, if anything, appears to be worse now than it was at the time of apprehension. There is little or no evidence of improvement and the risk factors from drug use remain as prevalent today as they were when the children were brought into care.

Domestic Violence

[44] According to the worker, there has been physical domestic abuse issues since 2017. As with the housing instability that was pervasive for these parents, the issue of domestic violence follows the same predictable cycle. There is an incident of domestic violence, on occasion resulting in criminal charges, a period of time when the parties reconnect, a reconciliation and then another assault. The perpetrator of these assaults on K-J W. is the father of the children, M.B. who has been charged with assault, has been subject to a no contact recognizance which was breached on a number of occasions, and ended up incarcerated as a result.

[45] I firstly note that there is substantial evidence of spousal abuse and it is clear that it was in front of the children. That is clear from the evidence from E.W., who told the worker that “he did not have any good memories with his mom and dad” and that “they always argued, and yelled, and that his dad has a scar on his back where his mom stabbed him with a knife.” Tellingly, this 10 year old child was also aware of the cycle of abuse that I mentioned above, stating that “they always fight but are likely still together even though they can’t get along.”[^9] E.W. clearly has seen too much.

[46] Reports from the police and the maternal grandmother confirm the domestic violence issues that have occurred. There was a no contact order that was breached on numerous occasions. The fifth breach, in November, 2020, resulted in the Respondent Father’s incarceration. The affidavit of the worker confirms numerous incidents since December 2017 of abuse, separation, reconciliation and then further abuse and separation lasting right up to the father finally being jailed in November, 2020.

[47] As the mother is requesting return of the children to herself, her behaviour throughout these cycles is especially concerning. For example, notwithstanding the no contact order, the parents would attend together for access visits. In July, 2020, the Respondent Mother minimized the domestic violence between the parties and said that the no contact order was “stupid and unfounded.” She said that “she and the father did not have intentions of upholding the no contact order and that they did not care.”[^10]

[48] K-J W. testified that she wanted to revoke the no contact order so that the parents could attend meetings together with the C.A.S. However, she did not deny that she made the statements noted above about the no contact order being stupid and unfounded and that is a value judgment unnecessary where the only reason for revoking the order was C.A.S. meetings. If K-J W. made those statements, it was obviously her intent to reconcile, and she wished the order revoked for that purpose.

[49] The Respondent Mother says that she has now learned her lesson. She says that she is doing better without M.B. around, and that his incarceration was the best thing for her. She says that she has attended counselling at Greenhaven Shelter and that she now is aware of the fact that she was an abused spouse and is able to break the cycle.

[50] I am not willing to make that finding on the Respondent Mother’s say so alone. She provided no correspondence from the shelter confirming the counselling that she has undergone; the only specifics on counselling were that there were two sessions with Catholic Family Life a few months ago. More concerning was the evidence that I believe that she let slip that M.B. showed up at her mother’s home on New Years’ Eve of 2020 when the maternal grandmother asked K-J W. to leave yet again. If that is the case, the parties were together in the past few months, and the cycle remains intact.

[51] Considering that these incidents of abuse happened in the presence of the children, there is no excuse for not dealing with these issues. It was convenient that M.B. had been incarcerated, but it is unclear that this remains the case. It also remains clear to me that the children cannot return to a household where these parents fight viciously and without physical restraint in the children’s presence.

Meeting the Needs of the Children

[52] In addressing best interests of the children, ss. 74(3)(c)(i) and (ii) provide that the court must examine the parties’ ability to meet the needs of the children.

[53] In this case, there is substantial evidence that the needs of the children were not met when they were in the care of the parents. There is evidence that the homes in which the children lived were filthy with pet feces throughout the home. There was housing instability with the children moving on numerous occasions as well as domestic violence and drug use in the presence of the children. The children, specifically E.W., missed numerous days at school in 2017 and 2018; the school threatened to call the police regarding his attendance records. In June, 2019, the children were not attending school according to the maternal grandmother.

[54] In addition, basic health needs of the children were not met. S.B. did not attend any appointments with the doctor after her four month visit following her birth. The doctor confirmed that the Respondent Mother had missed appointments to address J.B.’s behavioural concerns in February and November, 2018. In November, 2018, the worker noted to the mother that there was insufficient food in the home for the children; K-J W.’s response was to attempt to shoplift groceries the next day resulting in criminal charges.

[55] There is no acknowledgement of responsibility for these problems in the Respondent Mother’s evidence. She has not provided a plan as to how she intends to address those issues. She has provided no concrete plan as to how she intends to address the housing insecurity problems in the future other than a vague suggestion that her stepmother had obtained subsidized housing for herself and the children. She has not provided income information to satisfy the court as to her ability to pay for food and necessaries for the children; she also has not acknowledged that she has to get the children to school on a consistent basis.

[56] I am satisfied that the Applicant has demonstrated that the Respondent Mother is unable to meet the needs of the children for basic health, food and housing. She has not provided any sort of valid plan to remedy the problems that became obvious in 2018 and 2019 prior to the apprehension of the children.

Relationship with Parents / Views and Preferences

[57] These two issues, the relationship between the parents and the children and the views and preferences of the children, can be viewed together as much of the evidence surrounding the children’s relationships with the Respondent Mother and Father become apparent through the views and preferences of the children as submitted in the Society evidence and the submissions of counsel for the two oldest children.

[58] Neither of the parents have had any contact with the children since September 2020. The worker points out that the parents have had access to the children for only 4 of the last 16 months prior to the swearing of her affidavit on January 5, 2021.

[59] This largely inconsistent access history has affected the children. According to the affidavit of Carrie Jones, the Child in Care Worker, when she asked E.W. on June 25, 2020 about his parents not consistently exercising access, he responded in an ambivalent manner: ‘Mehh I am kinda sad and kinda mad.’ When asked about missing his mom and dad, E.W. said that he did “not really” miss them anymore as he was “used to [the parents missing visits]”.[^11] On another occasion, E.W. said that it was “upsetting” when the visits were sporadic and that his mother “just lies about everything”.[^12]

[60] The two older children have made it clear through their counsel that they do not want to move back in with their parents until they have become “healthy and ready” (according to E.W.) or “safe and healthy” (according to J.B.). Although E.W. would not elaborate on what he meant by this with his lawyer, he did say to the Child in Care worker that “his parents both use drugs and they choose drugs and cocaine over their kids.”[^13]

[61] Because of S.B.’s young age, and the fact that she was removed from the parents’ care when she was very young, her views and preferences are unknown and would not carry a great deal of weight in the determination of this matter.

[62] From this, I can extrapolate that the children, or at least E.W., are aware of the parents’ drug and alcohol issues, and have observed substantial amounts of domestic violence between the parents. I believe that when the two oldest children speak of the parents being “healthy” they are speaking of their drug use, which remains unresolved.

[63] Based upon these disclosures and the failure of the mother to consistently exercise access, the relationship between the Respondent Mother and the two oldest children is ambivalent at best. E.W. is angry at his mother for not exercising consistent access. Although the mother blames the worker for her failure to exercise access, she was represented by counsel and could have taken steps through communication between counsel to arrange access. Whatever the reasons for the mother not attending access, it has been largely inconsistent for most of the time these children have been in care and from the perspective of the children, the reasons for the lack of consistent access are irrelevant.

[64] Based upon this, I find that the relationship between the Respondent Mother and the children is not close. As well, the views and preferences of the children is that, at this time, they do not wish to return to their mother’s care until she has resolved her long-standing issues with drug and cocaine use.

Less Intrusive Measures

[65] In determining the disposition of this matter, the court must review whether less intrusive measures are available to address the best interests of the children.

[66] These children have been in care since July, 2019 with sporadic contact with their parents. Although they are not beyond the timelines in the CYFSA (because of the suspension of the timelines after March, 2020 under the emergency order in council passed because of COVID), this is a lengthy period of time, and the children deserve permanency.

[67] The mother told the court that she has plans to become a veterinary assistant and obtain stable housing in order that the children can be safely returned to her care. Although the Respondent Mother was poignant in her presentation and, I believe, sincere, she did not offer any concrete solutions or evidence of progress in moving towards these goals. As far as I could see, she continues to use drugs and cocaine; she has no stable housing and no firm evidence that she has obtained housing, and in addressing her issues, she has had some unspecified abuse counselling at Greenhaven and two counselling sessions at Catholic Family Life. In light of this, the mother’s statements were only expressions of desire to have the children returned to her care as stated by Trousdale J. in Family and Chidlren’s Services of Lanark, Leeds and Grenville v. J.M., 2016 ONSC 5954 at para. 31:

In child protection proceedings, the genuineness of an issue must arise from something more than the heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from the parent's evidence that she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent.

[68] The mother’s plan is to have the children return to her care with assistance from her mother. Firstly, she also testified that her mother was ill with a brain tumour and had to go and stay with a friend; this was one of the reasons she said that she said that she had returned to the shelter and was no longer living in her mother’s apartment. It is unclear that the maternal grandmother can assist when she is ill with an illness of this magnitude.

[69] As well, the maternal grandmother has not demonstrated that she is fit to assist in the care of the children or even to assist in this. The worker’s affidavit confirmed that on July 24, 2019, the maternal grandmother demanded that the children go into care immediately on an urgent basis because she could not manage the children’s behaviour. The Respondent Mother and her mother have been unable to live together on any sort of consistent basis since then because of both domestic violence issues and because of the parents’ drug use; K-J W. is constantly being asked to leave the grandmother’s home because of these issues. According to her own testimony given at the hearing of this motion, K-J W. said that M.B. had actually shown up at the maternal grandmother’s home on New Year’s Eve, resulting in the most recent stay at the shelter. The history of these parties dictates that the mother’s plan for the care of the children with the assistance of her mother is doomed to failure.

[70] The parents were unable to advise as to any other kin placement in July, 2019 when the children were apprehended and brought into care.

[71] There is no need for a trial to find that there are no less intrusive measures for care of the children other than Society extended care. The children have been in care for 20 months at this time and require permanency.

Conclusion

[72] The risk factors which existed at the date these children were apprehended have not been mitigated in any way since then. The Respondent Mother, the only party left in these proceedings, continues with her drug use and transiency. I am also not convinced that the risk of domestic violence is at an end.

[73] The children do not want to return to the care of the parents unless the Respondent Mother has sorted out her issues, including drug use. That has not been done. The Respondent Mother offers no concrete plan which would allow her to assume care of the children within a reasonable time, if at all. There is no plan on the table other than the Society’s plan for extended care of the children.

[74] I find that there is no need for a trial to make these findings. The mother’s evidence lacked credibility and was inconsistent with previous statements made by her. The evidence in the Society affidavits was largely uncontradicted as were the views and preferences of the children.

[75] I therefore find it to be in the best interests of the children that they be placed in the extended care of the Society as requested.

Access

[76] In respect of M.B., now noted in default, the Society asks that there be no access.[^14] There was no evidence that access to M.B. by the children was in their best interests. There shall be no access between M.B. and the children.

[77] At the end of her testimony, K-J W. said that if extended care were granted, she wished to see the children on the same basis as at present, which is three visits per week supervised and arranged through the Society.

[78] The Society suggests differentiated access between the three children. Because the boys are older and can express views and preferences, they suggest one visit per month for them, with supervision, location and duration at the discretion of the Society.

[79] The Society asks that access to S.B. be more restrictive as she is only 2 and has had a limited relationship with K-J W. They suggest that it is in S.B.’s best interests that her access to her mother be once every three months on the same terms and conditions as above.

[80] Under s. 105(5) of the CYFSA, access between parents and children after an extended care order are governed by the children’s best interests which are noted above. In addition, under s. 105(6), further considerations apply:

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

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

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

[81] In addressing this issue, the court must take into account the views and preferences of the children, their ambivalent relationship with the Respondent Mother and the failure of K-J W. to attend on access visits since September, 2020.

[82] Ms. Bromley for the children provided information to the court respecting the views and preferences of E.W. and J.B. who are 10 and 6 years of age. They have both told Ms. Bromley that they wish to continue seeing their mother according to the temporary access order which was in effect after they were apprehended and taken to a place of safety. As noted, that access order provided that parents were to have access up to three visits per week supervised by the Society.

[83] This appears to be in the face of the children’s ambivalent attitude towards the Respondent Mother. I spoke of this in discussing the children’s views and preferences regarding being placed in extended care above. Much of this arose from the parents’ failures in attending access visits. On June 25, 2020, E.W. spoke of being “kinda mad and kinda sad” about the parents not visiting but when asked if he was upset about it, E.W. said, “not really anymore I am used to it.”[^15] On June 30, 2020, E.W. said that he was aware that his parents “choose drugs and cocaine over their kids.”[^16]

[84] J.B. is not immune to this either. A particularly poignant example is when, on March 31, 2020, he said that he was upset about his parents not visiting, but that “his parents are likely looking for a place to live and that’s why they are not attending.”[^17]

[85] The difficulty with acceding to the children’s views and preferences regarding access is that any access order that I might make will not necessarily result in increased contact between parents and children as requested. These parents have been sporadic about access. According to the material filed by the Society, these parents exercised access to the children 4 out of 16 months since the children were in care. There was no access from September 24, 2019 to December 3, 2019, from February 2020 to June 2020 and none since September 20, 2020. This is during a period of time when the parents were entitled to 3 visits a week supervised by the Society.

[86] The failure to exercise access or parenting time can be described as nothing other than a betrayal by the parents of their children. To be fair, the mother in her testimony blamed the Applicant Society for her failure to exercise access and there were difficulties in the worker and the mother contacting each other late last year. In her affidavit sworn January 6, 2021, the worker outlined difficulties in connecting with the mother in December, 2020 and left off stating that she intended upon meeting with the mother about access on December 23, 2020 but in her reply affidavit, the worker advises that the mother did not attend at the visit. The mother acknowledged that when she last spoke with the worker, she became upset when hearing that the children were going to be subject to this summary judgement motion for extended care. She said that she showed up for a visit at 8:30 a.m. at the Society offices but could not recall whether that was actually the December 23 visit.

[87] Although there were difficulties in connecting with the mother, I do not blame the worker for this. The mother’s transiency and her drug use continue and she is living, at present, an unstable lifestyle which would explain the difficulty that the worker deposed to in speaking with the mother and discussing access. The mother was unable to offer any specificity as to why the worker was at fault in not speaking with her and admitted that she could not keep track of the meetings between herself and the Society workers.

[88] When the mother was questioned by OCL counsel about getting access on track, she was unable to state that she had any specific plans as to how to change things. She spoke of the apartment that she hoped to get which would have internet and WIFI, but as noted above, she had no specific evidence as to when and how she would obtain stable housing. She has not been able to maintain stable housing for the past six months, staying at her mother’s and then shelters. She seems to have had a cell phone that was stolen, but she said that it had been replaced and that did not assist in her connecting with the worker to arrange access with her children since September, 2020.

[89] She also says that, now that M.B. is no longer in her life, she will be more stable and more able to attend on access visits. However, M.B. has been, according to her affidavit, out of her life since his arrest on November 23, 2020 when he breached the no contact order one time too many. This gave rise to a major inconsistency in her testimony when she said in her examination in chief that she had to leave her mother’s residence that last time because her mother was sick and had to move in with a friend. However, she later admitted that M.B. had shown up at her mother’s residence on December 31 resulting in her having to leave her mother’s residence. It appears that M.B. remains in her life.

[90] Considering the drug use (as shown by the most recent screens), the Respondent Mother’s housing instability and M.B.’s continued involvement in her life, the prognosis for change in the future is not good. To provide the mother with extensive access would just give the mother the chance to continue to let down the children by failing to attend at access visits. In light of the past history, there is little evidence that K-J W. will be consistent on access whether or not she is given access three times per week as is the present case (and as requested by K-J W.) or once a month as suggested by the Society. I cannot find that, considering the failure to exercise access, the access is meaningful and beneficial to the children within the meaning of s. 105(6) of the CYFSA because the continuing betrayals and inconsistencies only serve to hurt the children. It would be a disservice to the children to order frequent access as this only gives a greater opportunity to the mother to let the children down which does nothing other than hurt the boys and create unfulfilled expectations.

[91] The Society has suggested differentiating between the two boys, E.W. and J.B. and their sister, S.B. They suggest that access to S.B. be once every three months and once every month to the boys. I understand that these children are of different ages and in different foster homes; however, the access is being given on the basis of a faint hope that the Respondent Mother will change and maintain a relationship with her children. I don’t agree that there is any basis for differentiating access between the three children; they are siblings and it is common ground that they have sibling access. It would result in further confusion to the boys if access is differentiated.

[92] Therefore, the children shall have access to their mother once a month supervised at the discretion of the Society and on the terms as set out in para. 7 of the Society’s Notice of Motion.

[93] The siblings will also have access to each other as set out in para. 10 of the Notice of Motion. However, I am not making that access subject to their wishes as it is difficult to understand how the views and preferences of the younger two children can be determined.

Order

[94] There shall be an order on the following terms:

a. Statutory findings as set out in paras. 2 and 3 of the Society’s Notice of Motion.

b. In addition, there shall be a finding that the children were taken to a place of safety before the hearing from the maternal grandmother’s residence in Orillia, Ontario.

c. There shall be a finding that the children are in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii), 74(2)(e) and 74(2)(h) of the CYFSA.

d. The children shall be placed in the extended care of the Society.

e. The children shall have access to their mother once per month, taking into account the views and preferences of E.W. and provided that the Respondent Mother attends sober and of sound mind. Supervision of access, location and duration shall be at the discretion of the Society. The children are the access holders and the Respondent Mother is the access recipient under this order.

f. There shall be access between E.W. J.B. and S.B., each being access holders and recipients to occur at a minimum of once per month, provided that they are not residing together.

McDermot J.

Date: March 19, 2021

[^1]: S.O. 2017, c. 14 [^2]: O. Reg. 114/99 [^3]: Affidavit of Nyla Lowe sworn December 22, 2020, para. 13 [^4]: Ibid., para. 82. This is hearsay evidence, but is utilized as corroboration for the children’s observations about the earlier property. [^5]: Affidavit of K-J W. sworn January 18, 2021, para. 6. [^6]: Ex. 1, Letter from Dr. Cooper dated January 21, 2021 in which he confirms that the Respondent Mother “is on methadone maintenance therapy for her opiate addiction.” [^7]: Affidavit of Nyla Lowe, op cit. at para. 39. [^8]: Ex. 2 [^9]: Affidavit of Carrie Jones sworn January 6, 2021, para. 7 [^10]: Affidavit of Nyla Lowe, op cit. at para 61. [^11]: Affidavit of Carrie Jones, op cit., para. 7 [^12]: Ibid., para. 9 [^13]: Ibid., para. 8. [^14]: I have used the term “access” throughout this endorsement notwithstanding the recent amendments to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 changing the wordings of these orders to “parenting time” or “contact”. The terms in ss. 102 and 105 of the CYFSA have not changed, and although a custody order under the CYFSA is deemed to be a parenting order under the CLRA, that does not change the terms to be used for the purposes of orders in child protection matters. [^15]: Affidavit of Carrie Jones sworn January 6, 2021, para. 7. [^16]: Ibid., para. 8. [^17]: Ibid., para. 6.