WARNING

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

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT FILE NO.: 17-269-4

DATE: 2021/03/26

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.J. (DOB: […], 2015 and R.J. (DOB: […], 2016)

BETWEEN:

The Children’s Aid Society of Ottawa

Applicant

– and –

U.P. (Mother)

Respondent

Judith Hupé, for the Applicant

Joan Rothwell for the Respondent, Mother

A. J. (Father)

Self-Represented

HEARD: March 15 and 17, 2021

REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION

Somji j.

Overview

[1] The Children’s Aid Society of Ottawa (“Society”) brings a motion for summary judgment to have the children A.J.J., born […], 2016, and R.J., born […], 2016, (“children”) returned to the mother U.P. (“mother”) with contact by the father A.J. (“father”).

[2] The mother is of Inuit heritage. The father is First Nation and has ties to the Mowachaht / Muchalaht First Nation and Ahousaht First Nation.

[3] The children have been in the Society’s care for 878 days, a period of approximately 2 years and 5 months. Given the amount of time the children have been in Society care, the law requires the Society either to return the children to one of the parents or, alternatively, to seek an Order for Extended Society Care. An Order for Extended Society Care is an intrusive remedy; it would result in the children being permanently placed in the care of the Society with a view to adoption and would effectively terminate the mother and father’s rights over the children.

[4] The Society takes the position that it is in the best interests of the children to return them to the care of the mother. The Society is satisfied that over the past year, the mother and her new spouse Mr. G. have reformed their lives to provide the children a safe and nurturing home. The mother and Mr. G. have taken programming to address their alcohol addiction issues, cooperated with the Society and service providers, established a support network, and developed safety plans to ensure the children are no longer exposed to alcohol or conflict or left unsupervised.

[5] An Order placing the children in the mother’s care would also allow the children to be with their two siblings, E.G., who is 2.5 years old, and baby E.G. These are children of the mother and Mr. G.

[6] The mother wishes to have the children returned to her care and is agreeable to the conditions proposed by the Society.

[7] The father is self-represented. He initially opposed the plan. However, during the court proceedings, the father stated that he would prefer for the children to return to the care of the mother rather than to remain in foster care. The father acknowledges that he is neither in a position to care for the children nor does he have an alternative plan for the care of the children. The father would like to continue contacting the children which the Society and the mother support.

[8] The father had an opportunity to discuss with the Society what conditions, particularly as they relate to his contact with the children, he would be agreeable to as part of the six-month supervision order. Each of these conditions were reviewed with the father during the court proceedings to ensure he understands and is agreeable to them. The Society has provided a draft Order setting out the conditions that both the mother and the father are agreeable to.

[9] In support of its motion, the Society relies on the Affidavit of the Child Protection Worker Danielle Swim dated March 5, 2021 (“Ms. Swim’s Affidavit”). The mother relies on the facts set out in an Agreed Statement of Facts dated March 16, 2021 (“ASF”) signed by the mother, Mr. G., and the Society Worker Ms. Swim. The facts set out in the ASF are largely consistent with Ms. Swim’s Affidavit.

[10] The father has not filed any evidence in response but did make oral submissions on March 15 and 17, 2021 which I have taken into consideration in my findings and in determining the conditions of the proposed supervision order.

[11] This decision addresses whether the issue of the children’s placement can be resolved by way of a summary judgment motion, and if so, whether it is in the best interests of the children to be returned to the care of the mother, with contact by the father, as per the terms and conditions proposed by the Society.

[12] Upon reviewing the material filed and hearing the submissions for the Society, the mother, and the father, I find that there is no genuine issue for trial and that I can decide this matter by way of a summary judgment motion. I also find that it is in the best interests of the children to return to the care of the mother with the father having continued contact with the children as per the terms and conditions proposed by the Society. My reasons are set out below.

Facts

[13] The Society has provided services to the mother and father since January 2016. The Society first became involved following an altercation within the home where the police were called. The father was reported to have been intoxicated and verbally abusive towards the mother. The father was convicted of assault and served a period of custody for the incident. Following the father’s release and reintegration into the home, a safety plan was developed to ensure that the children were not exposed to adult conflict and that the father would be outside the home if consuming alcohol or marijuana.

[14] The mother and father later separated and stopped residing together.

[15] In February 2017, the children were brought to a place of safety. They were removed from the father’s care because he had been found inebriated in a sole caregiving role to the children. At the time, the mother was also struggling with addiction issues and was not able to care for the children.

[16] On August 15, 2017, this Court found the children in need of protection. Since that time, the children have been either in the Society’s care living in a foster home or in the mother’s care subject to the supervision of the Society. The periods of care are summarized as follows:

➢ February 17, 2017 to August 2018: Children removed from father’s care and placed in the Society’s care.

➢ August 2018 to May 2020: Children returned to the mother’s care subject to the supervision of the Society.

➢ May 2020 to present: Children removed from the mother’s care and returned to the Society’s care.

[17] The children returned to the mother’s care in August 2018. By this time, the mother had commenced a new relationship with Mr. G., and they were expecting their first child. E.G. who was born on […], 2018. Following E.G.’s birth, Mr. G. registered for support with Healthy Babies/Health Children in December 2018. He also commenced individual counselling.

[18] Mr. G. has had issues with alcohol, aggression, and police involvement for adult altercations. There was one incident of domestic violence involving the mother but both she and Mr. G. indicate that it was an isolated incident. During the incident U.P. was sober and protective of all three children who were with her at the time. Following this incident, the Society received in June 2019 an assessment from Dr. Fedoroff dated August 9, 2017 regarding Mr. G. There were no indications in the report that Mr. G. is a risk to children.

[19] Mr. G. has a criminal record and has acknowledged to the Society his criminal past and time in jail. There have been periods of custody since 2017 but also efforts to obtain treatment.

[20] Mr. G. has been parenting E.G. since his birth in […] 2018. However, he and the mother were not initially living together. They maintained separate homes until June 2019. The ASF and Ms. Swim’s Affidavit describe additional incidents of alcohol and aggression on the part of Mr. G. in 2019 which then required the mother to take further steps to protect herself and the children by temporarily moving to a shelter and ensuring Mr. G.’s contact with E.G. and her other children was supervised.

[21] On May 2, 2020, the mother and Mr. G. suffered a severe setback requiring the children and E.G. to return to Society care. On this day, the police arrested Mr. G. for shoplifting while E.G. was in his care. When the police attended the home to return E.G. to the mother, they observed her passed out and not responsive to attempts to wake her. It was unknown how long she had been passed out. She awoke after the children were removed from her care.

[22] At that time, the children were found vulnerable and unsupervised. R.J. was four years old and opened the front door for the police. A.J.J., who was three at the time, was observed playing with a 10-inch kitchen knife. The children had taken food out of the cupboards. The children had nail polish on their faces and hands and there was also nail polish throughout the bathroom. All three children were taken to a place of safety.

[23] Following these events, the mother moved in with her family. She was pregnant at the time with her second child with Mr. G. Baby E.G. was born in […] 2020. Following her birth, both the mother and Mr. G. signed a Voluntary Service Agreement and Safety Plan and agreed to address their issues and work cooperatively with the Society. The mother and Mr. G. have taken tremendous steps to turn their lives around and to get the help they need to deal with various child protection issues. The steps that both the mother and Mr. G. have taken are relevant in determining whether the Society’s plan to return the children to the mother’s care is in the best interests of the children. Hence, these facts are set out in greater detail under Issue 2.

[24] The father has not lived with the children since February 2017, but he has had contact with them while they were in either the Society’s or the mother’s care over these past few years.

[25] It is clear from Ms. Swim’s Affidavit that it has been challenging for the Society to work with the father and to get him to address the child protection concerns. In fact, 38 of the 53 pages of Ms. Swim’s Affidavit focus exclusively on the father. Ms. Swim’s Affidavit chronicles from pp. 13 to 51 since 2017:

➢ the Society’s involvement with the father including his lack of cooperation, anger, and sometimes emotionally abusive behaviour towards the Society Workers;

➢ the father’s changeable housing situation;

➢ the father’s criminal record and history including recent charges in 2020;

➢ the father’s inconsistent access with the children;

➢ the father’s kinship proposal which was not supported by the Society;

➢ the Society’s communication with the father’s bands; and

➢ the father’s failure to meaningfully engage in treatment and work with his community supports to address child-protection concerns.

[26] For the purposes of this ruling, it is not necessary to review all these facts here. However, any facts which I find are relevant for determining whether it is in the best interests of the children to have contact with the father are addressed further below under Issue 3.

Issues

1. Is summary judgment a fair and just means to resolve the issues of the request for a six-month supervision order returning the children to their mother?

2. Is it in the best interests of the children to return to the care of the mother?

3. Is it in the best interests of the children to have contact with the father, and if so, under what terms and conditions?

Analysis

Issue 1: Is summary judgment a fair and just means to resolve the issues of the request for a six-month supervision order returning the children to their mother?

The law on summary judgment

[27] A summary judgment motion enhances access to justice by providing a cheaper and faster alternative to a full trial. Generally, summary judgment is available where the court finds there is no genuine issue for trial: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 34.

[28] The statutory test for determining whether summary judgment can be granted is set out in r. 16 of the Family Law Rules, O. Reg. 114/99 (the “Rules”). The Rules allow a party, in this case the Society, to make a motion for summary judgment for a final order without going through the process of a full trial. A judge can make a final order if s/he is satisfied there is no genuine issue requiring a trial of a claim or defence: Rules, rr. 16(1), (4), (4.1), and (6).

[29] Rule 16(6.1) states that in determining whether there is a genuine issue requiring a trial, the court is to consider the evidence submitted by the parties. The judge is permitted to weigh evidence, evaluate the credibility, and draw reasonable inferences from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial: Rules, r. 16(6.1).

[30] As explained in Hryniak, there is no genuine issue for trial if I am satisfied that I can reach a fair and just determination on the merits of this motion without engaging the trial process. I must be satisfied that this process one, allows me to make the necessary findings of fact; two, allows me to apply the law to the facts; and three, serves as a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak, at para. 49.

[31] The standard for fairness requires I am confident that I can find the necessary facts and apply the relevant legal principles to resolve any disputed matters: Hryniak, at para. 50.

[32] The Court of Appeal for Ontario has stated that judges must be particularly cautious of summary judgment motions in child protection cases: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32, at paras. 63 and 70-79. The Court identified at para. 80, the following principles to be considered for summary judgment in child protection cases:

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

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

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

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

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

Application of the law on summary judgment to the facts

[33] Ms. Swim’s Affidavit and the ASF filed by the mother set out in detail the Society’s involvement with the mother, the father, and the children dating back to 2017. That year, the children were first removed from parental care. The documentary evidence sets out the facts as it relates to:

➢ the past and present factual circumstances of children;

➢ the past and present factual circumstances of the mother and the father;

➢ why the children were in need protection and what steps have been taken by the mother, the father, and Mr. G. to address protection issues;

➢ the Inuit and First Nation heritage of the children, as well as the views and involvement of people within these communities in the lives of the children; and

➢ the Society’s involvement with each of the parents and Mr. G., the progress that all of them have made in addressing the child protection issues identified, and their ability to abide by the terms and conditions of the proposed supervision order.

[34] In addition, I have heard submissions from each of the parties with respect to their views on the Society’s proposed plan. All the parties support the plan.

[35] Witnesses were scheduled to testify in these proceedings should it have been required. None of the parties, including the father, wished to call additional viva voce evidence.

[36] Based on the documentary evidence and the submissions of the parties, I conclude that I can make findings of facts and apply the law to decide the following issues:

1. Is it in the best interests of the children to return to the care of the mother?

2. Is it in the best interests of the children to have contact with the father, and if so, under what terms and conditions?

[37] I find that the Society has provided sufficient evidence to establish that there is no genuine issue requiring a trial. This matter can be disposed of by way of summary judgment.

Issue 2: Is it in the best interests of the children to return to the care of the mother?

[38] The Society seeks a six-month supervision order pursuant to s. 101(1) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”).

[39] Section 101(1) of the CYFSA states that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary, it may make one of several orders it considers to be in the best interests of the child. A “Supervision Order” placing the children in the care and custody of a parent is one of the available options.

[40] The children were found to be in need of protection by this Court on August 15, 2017. They have been subject to various court orders since that time either under Society care or under parental care subject to the discretion of the Society.

[41] The Society takes the position that it is in the best interests of the children to return to the care of their mother. The Society relies on the best interests of the child factors set out under ss. 74(3)(a)-(c) of the CYFSA. These factors are as follows:

(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] The Society also relies on the best interests of the child factors set out under s. 10(3) of An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“FNIMYF”).

[43] Section 10(3) of the FNIMYF states that in determining the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered including:

a. the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

b. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

c. the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

d. the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

e. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

f. any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

g. any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

h. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[44] There is overlap in the application of these factors, and therefore, I will address their application to the facts of this case collectively under the following four headings:

a. The children’s wishes – s. 74(3)(a) of the CYFSA and s. 10(3)(e) of the FNIMYF;

b. The Inuit and First Nation heritage of the children – ss. 74(3)(b) and (c)(iii)-(iv) of the CYFSA and ss. 10(3)(a), (d), and (f) of the FNIMYF;

c. The safety and physical and mental development of the children – ss. 74(3)(c)(i)-(ii) and (x)-(xi) of the CYFSA and ss. 10(3)(b) and (g)-(h) of the FNIMYF; and

d. The importance of keeping the children with a parent and family – ss. 74(3)(c)(v)-(viii) of the CYFSA and s. 10(3)(c) of the FNIMYF.

The children’s wishes

[45] The children’s wishes are an important factor in assessing the best interests of the child.

[46] The children want to go home to their mother.

[47] The children are four and five years of age. The Society Worker acknowledges that because of their young age, it is not easy to discern what they want, but that it is apparent from their conduct that they want to be with their mother and their siblings.

[48] The children have been observed to enjoy spending time with their mother and Mr. G. during home visits. They are visibly upset when they must leave visits with the mother to return to the foster home. They have voiced to the Society Worker that they want to go home like their younger brother E.G., who returned to the mother’s care in January 2021. The foster mother reports that the children regularly ask about visits with their mother.

[49] The children attend the Tumiralaat Childcare program though Inuuqatigiit, an Inuit Centre for children, youth, and families in Ottawa. A.J.J. is in the Headstart program and R.J. is in the school program. They are doing well and enjoy attending the program. Their attendance at Inuuqatigiit will not change upon their return to the mother’s care. The mother has recently returned to work full-time and both children will continue to attend their day programs.

[50] The children were struggling with speech and language issues but are progressing well. They have both undergone language assessments and there is a possibility for treatment sessions. If they return home, there are things that the mother and Mr. G. can do to continue to assist the children with their speech and language development both when speaking with the children or when reading stories to them.

[51] The children have been assessed by dentists while in care and a plan is underway for the children to get treatment, especially R.J., who has many cavities. The children have had flu-like symptoms in the past year but have never tested positive for COVID-19. There are no health issues that cannot be managed by the parents upon the return of the children to the home.

[52] The children have been in foster care on and off for over two years. Their desire to be home with their mother and with their siblings is an important consideration weighing in favour of the Society’s plan to return the children to the care of the mother.

The Inuit and First Nation heritage of the children

[53] Both legislation and the case law are clear that in the case of a First Nations, Inuk, or Métis child, consideration must be given to the importance preserving the children’s cultural identity and connection to community: see e.g., Kawartha-Haliburton Children’s Aid Society v. M.W., at para. 60; Windsor-Essex Children’s Aid Society v. E.W., 2020 ONCA 682, at para. 7; Children’s Aid Society of Ottawa v. M.G., 2020 ONSC 79, at para. 126; and Kawartha-Haliburton Children’s Aid Society v. JF and JP, 2019 ONSC 3994, at para. 5.

[54] The mother is Inuit. She is originally from Iqaluit. She speaks Inuktitut. She has ties to her Inuit family and community in Ottawa. Her children participate in programming through Inuuqatigiit. She is also presently employed with an organization that provides services to Nunavut families that come to Ottawa for medical treatment.

[55] Returning the children to the care of the mother will allow them to grow up in an Inuit cultural context and afford them the opportunity to learn Inuktitut from their mother.

[56] Mr. G. is also First Nation, but no further information has been provided about which community or communities he belongs to.

[57] The father is First Nation with ties to two bands in British Columbia: Mowachaht / Muchalaht First Nation and Ahousaht First Nation. The Society has had ongoing communication with the father’s bands since February 2018. They have been consistent in their position that the priority is to support the children returning to the care of one of the parents if it is safe to do, and failing which, they will step in and propose a plan.

[58] While the father indicated in court that he would like the children in his care, he acknowledged that he is not able to care for the children and cannot offer an alternative plan for the children’s care. He also made it clear that he presently supports the return of the children to the mother rather than their continuing in foster care.

[59] Returning the children to the mother will ensure they will continue to be connected to their Inuit heritage. Furthermore, as discussed below, the return of the children to the mother does not preclude the father from introducing his children to his family and community in British Columbia so that they remain connected with his First Nation identity, community, language, and traditions.

The safety and physical, emotional, and mental development of the children

[60] The child protection concerns with respect to the mother over the past few years have included the following: alcohol abuse; lack of stable accommodation; the condition of the home environment; parenting skills including supervision of the children; and exposure to adult conflict.

[61] The mother and Mr. G. intend to eventually live as a family with all four of the mother’s children. While Mr. G. is not presently residing at the mother’s house, he attends and participates in visits with all the children. Mr. G. agrees that he will not reside in the mother’s home unless that is approved by the Society in advance. The decision to move back into the house will be made in conjunction with his supports and the Society. While Mr. G. is not a party to these proceedings, he has been and will continue to be present in the mother’s life and will have a parental role in the lives of the children. Therefore, consideration must also be given to the progress he has made in addressing his addiction and anger issues.

[62] Since May 2020, both the mother and Mr. G. have taken significant steps to address these child protection concerns to provide their children with a safe home and one that nurtures their physical, emotional, and mental growth.

[63] Initially the mother took the position that the incident of May 2, 2020 was an isolated event. However, she now acknowledges that sobriety is an issue and is open to discussing her worries about it. On May 28, 2020, the mother reached out to Rideauwood for treatment. The mother is presently attending Well Briety online through Wabano Centre as well as trauma support groups through Tungasuvvingat Inuit and Inuuqatigiit. She is also scheduled to start one- on-one counselling through Inuuqatigiit.

[64] Mr. G. has continued to maintain his sobriety through the support of Liberty House, members of his church, and his counsellor.

[65] The Society has not received any reports since May 2020 that either the mother or Mr. G. have consumed alcohol while in a caregiving role.

[66] The mother and Mr. G. agree to abstain completely from alcohol and to work with their supports to address addiction issues and coping strategies as part of the terms and conditions of the supervision order.

[67] In addition, the mother and Mr. G. have taken steps to develop a support network and safety plans. These safety networks and supports were not previously in place. The mother has a support network through the Inuit community. Mr. G. also has a strong safety network consisting of members from his church, Liberty House, and his counsellor which were not in place before. Both have signed a Voluntary Service Agreement and Safety Plan in which they agree to continue to address their issues and work cooperatively with the Society and various service providers. Both are also actively participating in Circle of Care through the Wabano Centre. The Society has indicated that their safety plans have been tested and appear to be working.

[68] The mother and Mr. G. have also developed a process to deal with adult conflict. When they have a disagreement, Mr. G. now leaves the home. The mother reaches out to her support network which then comes to the home to assist. Once the argument has passed, the couple talks about what has happened.

[69] In November 2020, the mother secured housing for herself and baby E.G. In January 2021, her other child with Mr. G. (the elder E.G.) was returned to her care. The new housing has provided the mother with stability. It is in a different neighbourhood and is away from her previous environment in which people were engaging in alcohol use. The mother can now have the children visit on a regular basis, and overnight visits have also commenced. Mr. G. participates in the visits. The Society has had an opportunity to observe these visits and they are going well.

[70] Both the mother and Mr. G. have cooperated with the Society and intend to continue to do so. The Society has proposed terms and conditions in the draft supervision order which both the mother and Mr. G. agree to. Both agree to abstaining from alcohol and drug consumption, continuing with counselling and treatment, ensuring the children continue with their day programs and medical and dental appointments, providing consents for information to the Society, working with the Society to ensure networks of professional and personal supports are in place, following safety plans, and permitting the Society to attend for home visits, including unannounced visits.

[71] Mr. G. is also agreeable to not living at the mother’s residence until there is approval from the Society and a plan is put in place to allow for his reintegration into the mother’s home. Mr. G. is presently on an Order permitting him visits with his own children E.G. and baby E.G. during which times he will also have contact with the children R.J. and A.J.J. There will be an added condition in the supervision order that Mr. G. will leave the home if directed to do so by the mother.

[72] Based on the evidence presented in Ms. Swim’s Affidavit, I find that the mother and Mr. G. have taken significant steps to address the protection concerns identified by the Society thereby minimizing the risk of harm to the children. The mother has taken programming to address her sobriety issues as well as her parenting skills. With the support of the networks and safety plans put in place and her own commitment to continued sobriety, counselling, and programming, I find that the mother can provide the children with a safe and nurturing home.

The importance of keeping the children with a parent and family

[73] The law supports the notion that children should be placed with their parents where it is safe to do so. In this case, all the parties, including the father, support the return of the children to their mother. The father’s Bands have indicated the same. The children wish to return to their mother. The mother has demonstrated that she can provide a safe and nurturing home environment.

Conclusion on Issue 2

[74] For all these reasons, I find that it is in the best interests of the children to return to the care of the mother as per the proposed terms and conditions proposed by the Society.

[75] Section 101(7) of the CYFSA permits the court to impose conditions on any person who will participate in the plan for the care of the children. In this case, that person would be Mr. G. It is clear from the submissions of the parties that the long-term plan is for the mother and Mr. G. to live as a family with all four children and for the Society to gradually withdraw its involvement. In the interim, Mr. G. will continue to visit the home to see his own two children and will participate in visits with the other children. Given the steps taken by Mr. G. to address his child protection concerns, I find that with the terms and conditions proposed by the Society and to which Mr. G. is agreeable, it is in the best interests of the children to permit Mr. G.’s continued contact with all the children in the home visits.

Issue 3: Is it in the best interests of the children to have contact with the father, and if so, under what terms and conditions?

[76] The Society also seeks that as part of the six-month supervision order the father have continued contact with the children. In determining the father’s contact, I must consider the same factors set out above with respect to the best interests of the children. These factors are considered below collectively under the same four headings.

The children’s wishes

[77] While there have been issues with the consistency of visits over the past few years, the Society has observed that the father has a positive relationship with the children, that they are happy to see him, and that they respond well to him.

The Inuit and First Nation heritage of the children

[78] The father is First Nation with ties to two bands in British Columbia: Mowachaht / Muchalaht First Nation and Ahousaht First Nation. The father has family in Gatineau, namely a cousin and her spouse, and their children. He has lived with them and they have supported him for several periods over the last few years. He acknowledged in court that he is close to this family.

[79] The father states that he is also in touch with members of his family and community in BC.

[80] The father was encouraged in the court proceedings to introduce his children to their paternal family and members of the First Nation community in B.C. during his contact time with the children. Doing so would provide the children an opportunity to learn about his First Nation’s culture. The Society indicated it has been and continues to be supportive of such contact and would assist the father with facilitating it. The Society requires, and I agree, that the calls are age appropriate and not recorded to maintain the children’s privacy. The technology is now available to do calls on Facetime or Zoom with multiple participants. It is also important to keep in mind that contact can take many forms. As stated by Benotto J.A. in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, 151 O.R. (3d) 320, at para. 64, “access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access.”

[81] I find that contact with the father will ensure the children remain connected to their First Nation heritage and that this is an important consideration in determining the best interests of the children in this case.

The safety and physical and mental development of the children

[82] The child protection concerns with respect to the father over the past few years have included the following: alcohol abuse; lack of stable accommodation; parenting skills including supervision of the children; children’s exposure to adult conflict; the father’s anger issues; and the father’s ability to meet children’s basic needs. As already indicated, Ms. Swim’s Affidavit refers to many incidents illustrating the source of these concerns.

[83] Unfortunately, the father has not been able to address many of these child protection concerns. He has had minimal contact with the Society. He has had multiple encounters with different Society workers where he has been angry and verbally abusive, making it extremely difficult for the Society to communicate and work with him.

[84] The father does not acknowledge that he has issues with sobriety or anger. He has not been consistent with attending any programing. While he does check in daily at the Odawa Friendship Centre, his contact with the workers there, including his counsellor, has been sporadic. The father’s response to this is that he needs to work and does not have time for this.

[85] The father has not had a stable home since 2017. He has moved several times in the last 10 months – living at times in a room, at times at the home of his cousin and her spouse, and at times at places unknown. He presently has a home, but he acknowledges that it is not fit for the children to visit. The father also refuses to provide the Society with his address.

[86] It is clear from Ms. Swim’s Affidavit that the father has been inconsistent with the children’s visits in 2017, 2018, 2019, and 2020. For example, the Society reports that the father attended 28 of the 55 visits offered to him in the last 10 months and has not attended any visits with the children in the last month. The father missed two birthday visits with the children. This poses difficulties for the children who are disappointed, for caregivers such as the mother who must reorganize their plans, for visit supervisors who arrange and attend these visits, as well as for the Society which is overseeing the entire matter. The father has complained about wanting to see his children more often, but when the Society has offered him more visits, the father has declined.

[87] Nonetheless, the father loves his children and is committed to their well-being. After his counsel withdrew from the record, the father missed several court appearances. However, on the first day of the motion, the father attended and participated in these proceedings knowing that this was an important hearing to determine the placement of his children. While it is clear from Ms. Swim’s Affidavit that the father has had a strained relationship with the Society, the father listened patiently to the Society’s submissions regarding the plan for the children, articulated his views on where the children should be (with the mother rather than at a foster home), and worked with the Society to craft conditions that he felt he could genuinely abide by as part of the proposed six-month supervision Order.

[88] Going forward, it is the father’s intention to find a stable and suitable home so that his children can visit him. Upon finding accommodation, he indicates that he is agreeable to having the Society visit the home and to working with the Society to put a plan in place for the children to visit him in the home. For now, contact with the children will be by telephone or virtual, supervised, and at regularly scheduled times.

[89] Counsel for the mother suggested, and I agree, that the less involvement the mother has in arranging the visits the better. During 2019, the father was not consistent with the visits and would suggest that the mother was preventing his access. Having a regular weekly schedule with set dates and times will minimize the potential for conflict between the mother and the father.

[90] The father has not addressed the child protection concerns identified to support the return of the children to him. It has been reported to the Society that since February 2021, he has been drinking again. The father was, however, able to participate in the court proceedings. The father stated that he would like to have the children in his own care but acknowledges that he is not in a position for this to happen. However, this does not preclude contact. There is no evidence that the children are at any risk of harm during the visits, and on the contrary, the Society reports that the children have a positive relationship with their father and enjoy their visits with him.

[91] Contact with the children as per the terms and conditions proposed by the Society will provide a safe way in which to allow the father to maintain and build his relationship with his children, an important aspect of the children’s physical, emotional, and mental growth.

The Importance of keeping the children with a parent and family

[92] The father hopes to have a stable home one day where he can have the children for overnight and weekend visits and eventually have a greater presence in their daily lives. To achieve that goal, it is important that the father have consistent contact with the children so that he can continue to develop his relationship with them.

Conclusion on Issue 3

[93] For all these reasons, I find that it is in the best interests of the children to have contact with the father on the terms and conditions proposed by the Society. These conditions which the father has reviewed and is agreeable to include:

➢ abstaining from alcohol or drugs when in a caregiving role;

➢ participating in telephone or in-person contact with the children on a consistent basis as per the proposed schedule and terms set out in the supervision order;

➢ identifying supports in the community who can assist him in working on communication and conflict resolution strategies;

➢ walking away when he is frustrated and angry to avoid and minimize conflict with the Society workers;

➢ agreeing to meet with a child protection worker at least once a month;

➢ upon consultation with counsel, agreeing to sign certain consent forms allowing the Society and others to share information about their involvement and observations; and

➢ notifying the Society of any change of telephone number or email.

Order

[94] There shall be a final Order that sets out:

➢ one, that there is no genuine issue for trial in this matter and this Amended Status Review Application for a supervision order can be decided by means of a summary judgment motion;

➢ two, that there will be a six-month supervision order pursuant to s. 101 of the CYFSA returning the children to the care of the mother subject to the Society’s supervision and on the terms and conditions proposed by the Society and agreed upon by the mother and Mr. G.; and

➢ three, that as part of that supervision order, the father will have weekly scheduled access with the children as per the terms and conditions proposed by the Society and agreed upon by the father.

[95] The precise terms and conditions are set out in the Final Order dated March 22, 2021. If there is a dispute over the meaning of a condition, the wording in the Final Order will take precedence over the wording in this judgment.

Somji J.

Released: March 26, 2021

COURT FILE NO.: 17-269-4

DATE: 2021/03/26

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.J. (DOB: […], 2015 and R.J. (DOB: […], 2016)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

U.P. (Mother)

A.J. (Father)

Respondents

reasons for decision on summary judgment motion

Somji J.

Released: March 26, 2021