CAS v. T.D.R. and J.S., 2021 ONSC 2362

WARNING

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

87 (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(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.: FC-15-FO000373-0000

DATE: 2021-03-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE CHILDREN’S AID SOCIETY OF THE

REGIONAL MUNICIPALITY OF WATERLOO, Applicant

• AND -

T.D.R., Respondent

• AND -

J.S., Respondent

BEFORE: Madam Justice J.D. Walters

COUNSEL: Diane Sousa, Counsel for the Applicant

Brent Balmer, Counsel for the Respondent, T.D.R.

J.S., noted in default August 8, 2019

HEARD: September 9, 2020 Summary Judgment Motion submissions

Oral evidence December 1, 3 and 4, 2020

ORALLY

ENDORSEMENT

THE HONOURABLE MADAM JUSTICE WALTERS

Overview

[1] The Applicant, the Children’s Aid Society of the Regional Municipality of Waterloo (“Society”), brought a motion (Volume 7, Tab 6, of the Continuing Record) pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99, seeking an order that the child, J., (“child”), be placed in extended Society care, until the extended Society care is terminated under s. 114 or expires under s. 123 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1 (“CYFSA”). The Society further seeks a disposition that there shall be no right of access to the child by the Respondent, J.S. (“father”), and an order that the child have a right of access to the Respondent, T.R (“mother”).

[2] The summary judgment motion was argued on September 9, 2020. The father did not participate.

[3] The Society and counsel for the mother made submissions. Following submissions made by counsel, I released a decision on October 20, 2020 requiring oral evidence from Dr. Sas, Dr. Suranpaneni and the mother, before the summary judgment motion could be resolved.

[4] Three days of oral evidence were heard on December 1, 3 and 4, 2020, followed by further submissions by counsel for the Society and the mother. The father did not participate in the hearing where oral evidence was presented.

[5] In addition to the oral evidence, the Society relies on the ten affidavits filed in support of its motion for summary judgment, a document brief dated September 10, 2019, and a factum dated August 28, 2020.

[6] The affidavits filed by the Society in support of its motion are:

1. Jana Tatton, Child Protection Worker (“CPW”), dated September 10, 2019;

2. Tracey Brick, Children’s Services Worker (“CSW”), dated September 10, 2019;

3. Alicia Schuster, Protection Support Worker (“PSW”), dated July 29, 2020;

4. Tracey Brick, CSW, dated July 30, 2020;

5. Ed Gruszka, Supervised Access Worker (“SAW”), dated July 30, 2020;

6. Liz Hedley, Child Protection Supervisor, dated July 30, 2020;

7. Erin Miller, SAW, dated July 31, 2020;

8. Taneika Samuda, SAW, dated July 31, 2020;

9. Jana Tatton, CPW, dated August 6, 2020; and

10. Karen Innanen, CPW, dated August 10, 2020.

[7] The mother relies on her oral evidence given on December 1 and 3, 2020, as well as her affidavit sworn August 24, 2020 and her factum dated September 2, 2020.

[8] The Society submits that there are three issues for the court to decide. First, whether the child continues to be in need of protection. Second, whether the child should be placed in extended Society care or returned to the care of the mother pursuant to terms of supervision. Third, if an order for extended Society care is made, whether the mother should be an access holder with a right of access to the child. The Society concedes that the child should be an access holder with a right of access to his sibling, and that this order should be reciprocal. The Society also concedes that the child should be an access holder with a right of access to his maternal grandparents and the mother but maintains that this order should not be reciprocal. The Society seeks an order for no access to the father.

[9] The mother concedes that she no longer seeks a dismissal of the Society’s motion for summary judgment. The oral evidence provided by the expert, Dr. Sas, alters the mother’s position taken on the summary judgment motion at the September attendance. It is the mother’s position that a trial is not necessary for the court to decide the issues. This alters the mother’s position from that taken at the oral submissions made in September 2020.

[10] The mother submits that disposition is the only issue before the court. The mother states that she has addressed the Society’s concerns and that her life is stable and argues that the child belongs in the care of his biological family. She seeks the return of the child to her care pursuant to a supervision order.

[11] It is the mother’s position that if the court finds that the child should be placed in extended Society care, that she should be an access holder with right of access to the child.

Brief Background

[12] The child is five years of age.

[13] The mother is 33 years of age.

[14] The father is 36 years of age. The father is not participating in this proceeding and does not have a relationship with the child.

[15] This is a Status Review Application.

[16] On March 18, 2016, a final order was made finding the child in need of protection under ss.37(2)(b)(i) and (b)(ii) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”).

[17] The order under review is the final order of Oldham J. of December 19, 2017 (“the Order”). The Order provides that the father is noted in default and that the child shall be placed in the care of the mother for six months pursuant to terms and conditions. There are terms and conditions related to both parents and there is also an access order to the father at the discretion of the Society.

[18] The Society removed the child from the mother’s care on March 22, 2018 and brought an Early Status Review seeking an order for extended Society care with no access to the parents. On March 26, 2018, an interim order was made without prejudice, placing the child in the care of the Society. On July 10, 2018, Rogers J. made the interim order of Oldham J. temporary and dispensed with service of the Status Review Application, Notice of Motion, Affidavit of Stephanie Keller, Plan of Care, and any other documents upon the father. The child has not had any access with the father since birth.

[19] The child has remained in care since March 22, 2018 and has had access with the mother. Prior to March 2018, the child had been in the mother’s care pursuant to a supervision order.

[20] The Society obtained a parenting capacity assessment (“PCA”) from Dr. Louise Sas on June 10, 2019.

[21] Dr. Sas consulted with Dr. Surapaneni when completing the PCA with respect to his diagnosis regarding the mother’s mental health and her potential treatment.

[22] Both Dr. Sas and Dr. Surapaneni gave oral evidence in this matter as a result of my October 20, 2020 endorsement. The evidence they provided will be discussed later.

The Law

A. The Test for Summary Judgment in Child Protection Cases

[23] The Family Law Rules, O. Reg. 114/99, allow for a matter to be resolved without trial by way of a motion for summary judgment. The moving party, the Society, has the burden of proof and shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: see r. 16(4).

[24] In response to the affidavit or other evidence served by the Society, the responding party may not rest on “mere allegations or denials” but shall set out specific facts showing that there is a “genuine issue for trial”. If the evidence supports that there is no genuine issue for trial, the court is mandated by r. 16(6) to make a final order: see rr. 16(4)-(4.1) and (6). In its decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”), the Supreme Court of Canada established a new approach to summary judgment motions, the details of which are described further below. In response to Hryniak, new powers were added under rr. 16(6.1) and (6.2) that permit the court to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial.

[25] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80, the Court of Appeal for Ontario provided the following concise summary of the approach that the court should take to summary judgment within the context of child protection litigation, considering the decision in Hryniak:

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.

[26] Hyrniak confirmed that the summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make a determination. Hyrniak states that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in r.16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

[27] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to those facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: see Hryniak, at para. 4.

[28] In child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage the rights of a vulnerable segment of our society under the Canadian Charter of Rights and Freedoms. Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings, which apply the objectives of the CYFSA, including the best interests of the child, and which promotes Hryniak’s principle of reaching a fair and just determination on the merits: see Kawartha-Haliburton Children’s Aid Society v. M.W, at para. 76.

[29] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernible from the parents’ evidence that the child faces some better prospects than existed at the time of the Society’s removal of the child from their care and that they have developed some new ability as a parent: see Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.); Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, at para. 98.

[30] Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care, but are unable to take the steps to translate their proposals into a plausible reality: see Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737, at para. 7.

[31] The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child’s life with the result that, in giving the parents another chance, the child would have one less chance. There must be some demonstrated basis for a determination that the parents are able to parent without endangering the child’s safety: see Children’s Aid Society of Toronto v. C.G., at para. 103.

B. What is the Test on a Status Review Application?

[32] In C.A.S. v. M.W. and M.S, 2020 ONSC 1847, Madsen J. succinctly summarizes the law on status review applications and the treatment of agreed statement of facts as follows:

1. On a status review, the task of the court is to assess what, if anything, has changed since the making of the prior final order. A status review hearing is not a re-hearing of the original protection application: see para. 51.

2. A consent order that ends an action is of the same effect as a judgment of a court following a trial or hearing, for the purpose of the doctrine of res judicata: see para. 52.

3. Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders: see para. 53.

4. Section 114 of the CYFSA provides that where an application is made for review of a child’s status under section 113, the court may, in the child’s best interests:

a. vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;

b. order that the original order terminate on a specified future date;

c. make a further order or orders under section 101; or

d. make an order under section 102: see para. 73.

5. The test on a status review application is as follows:

a. the original order is presumed to be correct. This is not a rehearing of the previous order that was made;

b. the court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection;

c. the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and

d. secondly, the court must consider the best interests of the child. This analysis must be conducted from the child’s perspective: see para. 74.

Best interests

[33] The factors to be considered in determining the best interests of a child are contained in s. 74(3) of the CYFSA, which provides 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.

[34] Sections 101(2) to (4) of the CYFSA obligate the court to consider additional factors when determining the issue of placement, including whether there are any less disruptive alternatives, such as community or extended family placements, and to make enquiries with respect to what efforts the Society has made to assist the child before intervention.

[35] Sections 101 and 102 of the CYFSA provide that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders:

1. that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months;

2. that the child be placed in interim society care and custody for a specified period not exceeding 12 months;

3. that the child be placed in extended society care until the order is terminated under section 116 or expires under section 123;

4. that the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months; or,

5. that one or more persons be granted custody of the child, with the consent of the person or persons.

[36] In determining which disposition is in the child’s best interests, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be placed in the care of the Society. In light of the timelines created by the statutory framework, the court has available to it only two options in this case: that the child be returned to the care of the mother (with or without a supervision order); or that an order be made for extended Society care.

Positions of the Parties

[37] The mother loves the child very much. She is a kind person and wants what is best for her child. She believes that he should be with his biological family. She has been involved with the Society for eight years. Her first child was placed in the care of her mother (the maternal grandmother) and she continues to be involved in her life. Having the Society in her life has been very stressful for her. In past years, the mother’s life was hard and precarious, there was a time where she used illicit substances and did not have a home but she has lived in her own apartment for three years and exercises her access regularly. Her life is now stable, and she believes that it would be best for the child to return to her care pursuant to a supervision order.

[38] The Society agrees that the mother clearly loves the child. However, the Society states that the mother cannot safely parent the child due to her mental health issues. Dr. Sas’ expert evidence indicates that the mother suffers from a significant psychological disorder (“STPD”) which will interfere with her ability to safely parent the child on her own. Dr. Sas also testified that if the child were placed in her care, his quality of life would be diminished. The mother is a victim of unfortunate circumstances that life has dealt her. Dr. Sas maintains that the mother does not have the capacity to care for this child – the capacity issues are clear and unchallenged. There is no treatment that can be administered to the mother to allow her to overcome this diagnosis. It was recommended that the mother attend counselling and try to build relationships, but Dr. Sas cautioned that even if she were to take this advice, it would not improve her circumstances such that she will be able to safely parent alone.

[39] The Society further states that the child is attached to the mother and would benefit from ongoing access with her. The Society accepts Dr. Sas’ evidence and suggests that given her expertise, the court should assign great weight to it. The Society concedes that access should be ordered between the mother and the child but submitted that the child be made an access holder and the mother an access recipient, as opposed to the reverse.

Capacity to Parent

[40] The mother states that she can take care of herself and provide for her immediate day to day needs, that she functions in the community, uses transportation systems and attends appointments and meetings with persons such as doctors and other people that she would have to see if the child is placed with her. The mother has also noted that she was able to find new counsel when her previous counsel passed away and that she has the capacity to instruct her lawyer.

[41] The evidence before the court as to the mother’s ability to parent is set out in the PCA completed by Dr. Sas. Dr. Sas testified and was qualified as an expert in parenting capacity, attachment and psychological diagnosis.

[42] Dr. Sas provided clear testimony about the mother’s ability to parent. Dr. Sas completed a PCA of the mother on June 10, 2019. The assessment evaluates the mother’s parenting capacity and whether she suffers from a psychiatric or psychological disorder or other condition (such as an addiction) that may impact her ability to care for the child in the long term. The assessment describes the existing attachment between the mother and child, and the potential emotional impact on the child if the relationship is severed. She also considered the child’s needs and how that interacted with her parenting ability. The PCA was filed as Exhibit 2.

[43] In Dr. Sas’ assessment, she indicates that she met with the mother for a total of 14 hours over the course of several months. The meetings took place at the Society’s offices and in the mother’s home. During these meetings, Dr. Sas administered some standard tests including a personality assessment inventory test.

[44] Dr. Sas testified that she observed the mother twice at the Society’s offices and for three hours at her home, which included outside time. Dr. Sas also spoke with Dr. Surapaneni on two occasions. During those discussions she sought Dr. Surapaneni’s potential diagnosis and discussed whether there was a medical diagnosis and/or prognosis for the mother.

[45] Dr. Sas also testified that she attended at the mother’s parents’ home and met with both the maternal grandmother and the maternal grandfather.

[46] In Dr. Sas’ report she notes at p. 7 that:

The history is concerning and suggests that although well meaning in regards, to her son, Ms. R’s denial that she had mental health problems and her refusal to get help were potentially putting her child at risk, as she was not always grounded. She appears to have been experiencing paranoia and breaks with reality. In terms of J, given his age at the time he would not have understood what was going on with his mother, and her behaviour would have been disconcerting. The lack of supervision of this almost 3 year old child when he was apprehended, was likely due to the fact that there were times when Ms. R had difficulty being present in the world, due to the competing thoughts in her head which interfered with her ability to pay attention to him, and her ability to consistently respond in an appropriate manner.

[47] When questioned about this passage in her report, Dr. Sas clarified that there are times where the mother displays bizarre behaviour and exhibits no awareness or insight into the fact that she is not fully present in the world. When people have breaks with reality, they may not see things as they really are. She went on to say that the mother is kind and means well. She is pleased to see her son and he recognizes that, but there are times where the child appeared anxious because his needs were not being met. Dr. Sas did not recommend that the child be returned to the mother’s care because it would be traumatic and difficult for him.

[48] Dr. Sas went on to describe what stood out to her when she observed the mother and the child together. Dr. Sas acknowledged that it can be stressful for a parent to be watched by someone. She observed that the mother was never malicious, but she did experience trouble staying focused on the child. As her anxiety increased, she would make odd comments which were confusing to the child. She was able to play with him and Dr. Sas witnessed some nice moments between the mother and the child. She was not mean, but she had difficulty showing her emotions. She made a lot of effort to provide a nice lunch for the child at her apartment.

[49] There were times during the observations that Dr. Sas noted that the mother had a lot going on inside her head. She was not rude, but her mood did change. Dr. Sas testified that the mother displayed a range of emotions across the interviews. There were triggers for the mother that led her to become angry and volatile. Sometimes she was very friendly and appropriate. She would also use lots of metaphors.

[50] At different points in time, Dr. Sas explained that the mother was not able to remember what she had said to her and asked her to repeat it.

[51] Dr. Sas testified that she reviewed the mother’s history with the Society, observed the mother and the child together, spoke with the mother’s parents and administered personality tests. She explained that she never relies solely on one measure and uses different sources to make conclusions. She testified that the personality test provided her with information that substantiated her concerns.

[52] It was Dr. Sas’ opinion that the mother is really kind and would not hurt the child. However, she is of the opinion that the mother is unwell, and she would not be able to parent the child full-time. The mother struggles with her inner thoughts and as a result would not be able to meet the child’s needs on her own. If there was someone else in the home to be the primary caregiver and to compensate for the mother’s shortcomings, then perhaps the child’s needs could be met. However, Dr. Sas would be very concerned for the child’s safety if he was placed in the mother’s full-time care. She went on to state that there is an attachment between the child and the mother. At times, she observed the child become anxious when he looked at his mother. The child is affected by seeing the mother and leaving her. The mother is attached to the child as well and clearly loves him.

[53] When asked about her recommendations, Dr. Sas testified that she supports the child being placed in extended Society care. She would not want access to interfere with the child’s adoption prospects, however, she has no opposition to the child having contact with the mother. She did clarify that access should not be as frequent as it has been (twice a week with the mother) as that would be confusing for the child. She recommended that contact between the mother occur at the same time as contact with the maternal grandmother and the sibling, as the child is attached to all of those relationships. Her only concern would be if the mother had conflict with her parents that could impact her contact with the child.

[54] Dr. Sas said one of her biggest concerns is the mother’s lack of a social network. While she has been at her current home for three years and she can meet her basic needs and function and do reasonably well, she does not have any social connections. If she had her child in her care full-time, she would have to go out into the world more than she is capable of doing. Social engagements are hard for her because of her suspicious paranoia. The quality of life she could offer a child would not be good for him.

[55] Dr. Sas testified that the mother has a disorder. She had to consider the mother’s disorder when doing her assessment to make sure the child gets what he needs when he is with her. She followed up with Dr. Surapaneni to see if there was a diagnosis for the mother. She acknowledged that she is not a psychiatrist and that she wanted to cover the bases. Dr. Sas indicated that she was confident, based on the work she had done on the file and the time she had spent making her own assessment that this is a case where the child cannot be placed in the mother’s care.

[56] When pressed about the mother’s diagnosis and whether her prognosis could improve with help and treatment, Dr. Sas testified that there is no cure for her condition, and it could get worse as she ages or with stressors. It could potentially be lessened if she were to seek help, but she has not been willing to do so. Dr. Sas also testified that some individuals with this condition can progress to schizophrenia.

[57] Dr. Sas testified to a specific experience she had with the mother. She described an incident in the elevator with the mother, the child and Dr. Sas, where the child almost escaped from the elevator when the doors opened, but Dr. Sas quickly reacted and grabbed the child to keep him in the elevator. When Dr. Sas recounted that story in her testimony, she indicated that she was surprised by how quickly the mother became angry as a result of that incident. She was not sure how the mother was going to react towards her after she grabbed the child. Dr. Sas described the incident as a “dangerous situation, she (the mother) was very mad with me and there was a small person between us. It came on very quickly. Did I think she would harm him (the child) – no, me – maybe.” The potential danger of that situation concerned Dr. Sas and makes her worried about the possibility of the mother having a full-time parenting role.

[58] I found Dr. Sas’ testimony to be credible and reliable, as well as balanced and fair. She acknowledged the mother’s strengths while also acknowledging her shortcoming and the challenges she faces. Dr. Sas was qualified as an expert and she has testified in court on numerous occasions. I assign a lot of weight to Dr. Sas’ testimony.

[59] Despite the mother’s statement that she can parent, she has not provided the court with any evidence to contradict that of Dr. Sas.

[60] Dr. Surapaneni is a psychiatrist who has seen the mother as a patient. Dr. Surapaneni testified to his involvement with the mother. He was not sworn in as an expert but was presented as a witness who treated the mother as her psychiatrist.

[61] Dr. Surapaneni testified that he has been seeing the mother off and on since 2014, when she was referred to him by her family doctor. At first, Dr. Surapaneni did not diagnose the mother as having a mental health issue. In his letter dated August 18, 2014, filed as Exhibit 10, he queried anxiety disorder, stress in life, and adjustment disorder under diagnosis. It was his testimony that he had only seen the mother for a 30-40-minute period in his office when he first met with her. The mother advised Dr. Surapaneni about problems in her life involving her partner and drug use. He suggested that she use Abilify, a medication designed to address issues with anxiety. However, she did not want to take it. He observed some irritability and paranoia at that time but noted that he would wait and see if these symptoms persisted. The purpose of that meeting was to assess whether the mother was safe from herself and others. He did not recommend that she have her daughter returned to her care at that time.

[62] On August 11, 2015, Dr. Surapaneni wrote a second letter regarding the mother. This letter was filed as Exhibit 11 and notes that Dr. Surapaneni considered the mother to be “entirely normal, free from psychiatric problems”. His concluding sentence in the letter states, “For all practical purposes, I am of the impression that this lady is safe and is not considered suffering with any mental disorder.”

[63] In December 2018, when he saw her years later, he noticed that something was not right. Dr. Surapaneni wrote a letter dated December 11, 2018 which was marked as Exhibit 5. This appointment was 30-40 minutes and was based on self-disclosure by the mother. In his testimony, Dr. Surapaneni noted that it was that appointment that made him question whether the mother had personality issues. He wanted to obtain a better understanding and therefore asked the mother to return for another appointment with him and requested that she bring her resume and her mother along with her. He wanted the maternal grandmother to accompany her to the appointment because he found it difficult to obtain information from the mother and wanted to gain a longitudinal perspective.

[64] The mother attended an appointment with Dr. Surapaneni in January of 2019. Dr. Surapaneni wrote a letter dated January 22, 2019 which was filed as Exhibit 3. The last paragraph of that letter states, “Overall impression is that this patient has poor interpersonal relationships and there does not seem to be depth understanding of human life and a person who lived like a schizoid individual all through her life. I have lots of doubts about her capacity to look after her children. Hence, I would definitely deny her the opportunity to look after children on her own.”

[65] Dr. Surapaneni testified that there are three categories of people in the world: people who cling to others, those who have anti-social personalities and fight against others, and those who are aloof in serious relationships. He assessed the mother as falling into the third category, aloof and distant from others. He testified that he assessed the mother as having a schizoid type personality disorder and described her as someone who does not have connections with other people. He stated that this pattern of behaviour will continue and that there is no treatment for it, and went on to say that the possibility that she experience psychosis in the future could not be ruled out. Dr. Surapaneni described psychosis as being when one loses touch with reality. However, during his time with the mother, he never observed her lose touch with reality.

[66] Dr. Surapaneni testified that he would be concerned if the mother were to have unsupervised access with the child. Her personality disorder cannot be changed by treatment and her inability to have relationships with others could negatively impact the child. When asked how an individual with this type of diagnosis could live successfully in the world, he said that counselling could be beneficial and could improve the mother’s ability to be left alone with the child. However, the mother would have to attend counselling for one to two years before an assessment could be made about whether the child would be safe if left alone in her care.

[67] I found Dr. Surapaneni to be credible in his testimony. His time with the mother was briefer than Dr. Sas’, but it was for a specific purpose. I accept Dr. Surapaneni’s evidence where he indicates that based on his assessment of the mother, he would have concerns if the child were to be placed in her care.

[68] I assign great weight to the evidence of Dr. Sas. Dr. Sas was qualified as an expert in this trial and has been qualified as an expert in several other trials. She has completed over 300 PCAs over the past twenty years. Her evidence was balanced and thorough. Dr. Sas acknowledged both the mother’s strengths and weakness in her evidence. I find her assessment to be reliable and her conclusions to be supported.

[69] I share Dr. Sas’ concern, based on the evidence before me, that the mother does not have the capacity to safely parent the child on a full-time basis.

[70] The mother has not put forward any evidence to dispute the PCA. Nor has she been able to explain why she has not followed up with the counselling suggested by the Society worker.

[71] During her oral evidence, the mother asked both her own counsel and Society’s counsel to repeat their questions. At first it appeared as though the mother was nervous and wished to better understand the questions. The court then had concerns that the mother could not hear the questions. However, when Dr. Sas testified, she clearly described the mother’s demeanor and explained that SPTD is a condition that involves the mother experiencing noise within her head that she is unable to control. It is that noise that prevents her from hearing people when they speak to her and requires her to ask people to repeat what they have said.

[72] Dr. Sas testified that the mother’s condition will vary over time and that she will likely suffer a psychotic break in the future. It was her opinion that the mother suffered a psychotic break on the day the child was apprehended from her care. The mother’s internal dialogue and the prospect of being a single parent poses too great a risk for the child.

[73] The mother maintains that she is willing and able to parent the child. She submits that she is stable and that she has done everything she can to address the protection concerns. She participated in the PCA and followed up with the mental health assessment. She testified that she was not aware that Dr. Surapaneni diagnosed her with any type of disorder and states that the assessments being relied upon by the Society, namely the PCA completed by Dr. Sas dated June 10, 2019 and Dr. Surapaneni’s letters, are inconclusive.

[74] The mother argues that Dr. Suranpaneni’s position regarding her mental health is at odds with his own documents. In one report he says that she does not have mental health issues, yet in his oral testimony he indicates that he diagnosed her as a schizoid individual or as having a schizo type personality disorder, in January 2019.

[75] The mother’s plan is that she will remain home on a full-time basis to care for the child. If it was recommended that the child be in daycare, she would agree. Once the child starts school full-time, she could look for work. She would also have her mother and her aunt and uncle to help her if the need arose. The mother will continue to receive Ontario Disability Support Program (“ODSP”) payments as her source of income while she is not working.

[76] The mother states that she has improved her circumstances since the child was apprehended. Those improvements are summarized as follows:

1. The mother has come a very long way in being able to care for her child. She has made extraordinary changes in her life.

2. She is no longer using drugs and living on the streets. She has obtained housing and has been living in the same home for the past three years.

3. The mother has maintained a consistent home that is clean.

4. The mother is not involved in a relationship where there is domestic violence.

5. The mother has followed through with obtaining a mental health assessment.

6. The mother exercises her access regularly with the child and access has been positive.

7. The mother does not perceive herself as suffering from a mental illness.

8. The mother has had difficulties dealing with the Society. She is tired of them being in her life as they have been for the past eight years and she would like them to end their involvement with her.

9. She has not accessed all of the services that the Society has asked her to access, but there is evidence that those services, such as trauma counselling, would not be of benefit to the mother.

10. The mother has some concerns that the Society workers’ affidavits have not been tested as they did not testify.

11. The mother is also concerned about the reliability of Dr. Surapaneni’s evidence as he has been inconsistent in his position.

12. The mother acknowledged that there is no genuine issue requiring a trial, given Dr. Sas’ testimony. Dr. Sas addressed the concern regarding the difference in opinion of her report and Dr. Surapaneni’s letters.

13. The only issue for the court to decide in the mother’s view is whether she has been diagnosed and the effects of the diagnosis on her ability to parent the child full-time.

[77] There is no doubt that the mother loves her child, is kind, and lacks any malice towards him. She has been dealt an unfortunate hand in that her personality disorder prevents her from having the capacity to parent the child alone. Without any other supports or relationships in her life beyond that of her mother, I accept Dr. Sas’ position that she cannot parent the child.

[78] Accordingly, the court must examine whether the mother has put in place sufficient supports to negate the protection concerns.

Supports

[79] The Mother testified that if the child were placed in her care, she would have the support of her mother and her aunt and uncle.

[80] No specifics were provided with respect to the mother’s plan to care for the child other than that the child would attend daycare or school and the mother may seek employment while the child is in school.

[81] The mother’s evidence is that her eldest child is in the care of her parents. Her parents are prepared to support her with this child, but they cannot have this child placed in their care. There are no other family members who are able to support the mother or who have put forward a plan for the child.

[82] The Society also provided evidence that the mother’s aunt and uncle had been supporting the mother in her plan to have the child returned to her care, but that they later withdrew their plan.

[83] In her evidence, Dr. Sas indicated that the maternal grandmother, while a support to the mother, is also torn between the mother and the paternal grandfather. The mother has made allegations against the maternal grandfather, which has hurt their relationship and has prevented the maternal grandfather from acting as any type of support to the mother.

[84] The mother states that she has contact with her mother and that she is her only support. She does not have any friends or other relationships. She did have a relationship with an aunt and uncle, but they have been unable to offer her support with caring for the child full-time.

[85] Dr. Sas and Dr. Surapaneni both cited the mother’s lack of social contacts as a concern for her ability to function safely in the world. They both testified that a lack of social relationships places the mother at a greater risk of suffering from a psychotic break.

[86] The mother did not provide any affidavits from the extended family.

[87] The Society workers swore ten affidavits in support of the motion. Counsel for the mother indicated in his closing submissions that these affidavits remain untested as none of the workers provided oral evidence in the proceeding nor were they cross-examined.

[88] The Society affidavits set out the Society workers’ involvement with the mother since the commencement of the Early Status Review Application brought in 2018. The affidavits include observations made by the workers during the mother’s supervised access. Some of the workers expressed suspicion that the mother may be suffering from a mental health issue. The affidavits also include information about the child’s development while in foster care.

[89] While the workers’ affidavits set out the history of the file and the Society’s involvement with the mother, it is not necessary for me to give any weight to this evidence. Although r. 16 of the Family Law Rules authorizes the court to grant summary judgment based on affidavit evidence provided by the parties, in this case, I exercised my discretion to order that oral evidence be heard pursuant to the expanded power provided for in r. 16(6.2). This rule states that “[t]he court may, for the purposes of exercising any of the powers set out in subrule (6.1) [weighing the evidence, evaluating the credibility of a deponent, and drawing any reasonable inference from the evidence], order that oral evidence be presented by one or more parties, with or without time limits on its presentation.” I have heard directly from the mother and she has confirmed the role that the Society has played in her life and the duration of their involvement, and have found it unnecessary to rely on the evidence provided by the Society workers in making this decision.

[90] The parties agreed that the Society has been involved in the mother’s life for the past eight years. They also agree that the mother has had one other child who is no longer in her care and is being raised by her parents. The mother also acknowledges her past struggles that caused the Society to become involved in her life. The mother participated in the PCA and although she does not agree with Dr. Sas’ findings, I do not need to go any further than the PCA to find that the child continues to be in need of protection.

[91] Having heard from Dr. Sas and the mother, the court can conclude that there is no genuine issue for trial.

[92] Dr. Sas is an expert in the area of parenting capacity and gave evidence in this proceeding as an expert. Dr. Sas provided a very clear, balanced and fair testimony. It is her opinion that the child will suffer harm if returned to the full-time care of the mother. Dr. Sas testified that the child is attached to the mother and would benefit from continued contact with the mother. Dr. Sas’ evidence is that the child should be adopted but should also maintain contact with the mother in the future.

[93] As noted above, the mother has not led any evidence to refute Dr. Sas’ opinion. In an effort to put her best foot forward, the mother has only provided her parenting plan. She submits that she has obtained stable housing and is no longer using drugs, and that these were the two concerns that the Society historically had about her care of the child. She disagrees that she suffers from a mental health issue that would put her child at risk and maintains that she is able to parent full-time. However, when faced with evidence from an expert and a statement from a parent, the court must accept the expert’s opinion unless the expert can be discredited.

Findings

[94] It is Dr. Sas’ opinion that the mother suffers from STPD, which affects her ability to parent full-time. I accept Dr. Sas’ opinion.

[95] Since the PCA was received from Dr. Sas in June of 2019, there has been no information provided to suggest that the mother’s capacity to parent has changed. On the contrary, the mother’s demeanour and behaviour during her testimony mirrored Dr. Sas’ observations. The mother asked to have questions repeated numerous times, she spoke using strange metaphors, and she could not recall reviewing the report presented by Dr. Sas or the letters sent by Dr. Surapaneni.

[96] Through no fault of her own, the mother cannot independently parent this child. Both Dr. Sas and Dr. Surapaneni agreed that without supports, the mother cannot parent successfully. The child’s quality of life would be diminished if he were to be placed in the mother’s care.

[97] The mother’s family members are either unwilling or unable to provide assistance.

[98] There are no external or other appropriate supports in place for the level of supervision that is required to safely parent the child and to mitigate the risk.

[99] Although the mother should be commended for the improvements she has made and the positive steps she has taken, they do not address the underlying protection concern, which is fundamentally that the mother does not have the capacity nor supports to care for the child alone.

[100] Having considered the evidence before me, I find that it is in the interests of justice that this issue be resolved summarily. In all of the circumstances, I find that the Society has met its burden of proof and that there is no genuine issue for trial.

[101] I find that I am able to make the necessary findings of fact and apply the law to the facts, and that such an approach is a proportionate, more expeditious, and less expensive means to achieve a just result.

[102] I find that the evidentiary record is sufficiently comprehensive on this aspect of the case for me to make a fair and just determination of the issues on the merits without the need for a trial.

[103] Given the length of time that the child has been in Society care, I find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.

[104] The evidence satisfies me, on a balance of probabilities, that: (1) intervention is required to protect the child both at the present time and for the foreseeable future; (2) that an order placing the child in the care of his mother could not adequately protect him, even with terms of supervision; and (3) that an order placing the child in the extended care of the Society would be a foregone conclusion if this matter were to proceed to trial.

[105] Despite the love the mother feels for the child, the court cannot put the child’s life on hold.

[106] I have considered the best interests factors set out in s. 74(3) and make the following findings:

(a) the child is too young to ascertain his views and wishes;

(b) the child is not a First Nations, Inuk or Métis child.

(c) Any other relevant circumstances:

i. there is no evidence that the child has special needs. The Society advised the court that an assessment has recently been completed and it was filed with the court as an Exhibit. However, it is not evidence and I cannot give any weight to that report;

ii. there is a sibling who is in the care of the maternal grandmother with whom the child has a relationship. The Society supports an access order between the child and his sibling and there was no opposition from the mother on this issue;

iii. there are no specific considerations regarding the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression. I have no evidence regarding the child’s cultural and linguistic heritage;

iv. the Society proposes that the child be placed for adoption or adopted. This plan will be beneficial for the child, as he will be able to form bonds (or continue to form bonds) with a family who can provide a safe and nurturing environment;

v. delay in the disposition of this case will have a negative impact on the child. It is in his best interests to be adopted as soon as possible so that he can form bonds (or continue to form bonds) with a family while young;

vi. there is a real and significant risk that the child may suffer harm if he is returned to the care of the mother;

vii. the child is over two years old and although he has previously been in the care of his mother, there is a parenting capacity assessment that identifies that if the child were to return to the mother’s care he would be at risk of harm. At his young age, his physical, mental and emotional level of development require stability; and

viii. the child is young and vulnerable and has spent most of his life in the care of a child protection agency. He requires a stable, reliable and committed caregiver who can provide him with a safe, secure and permanent home.

[107] There are additional considerations when considering summary judgment motions in the context of child protection cases. These include the nature of the evidence, the mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved and particularly how material the facts in issue are to the case. In addition, the analysis must be undertaken with a view to the paramount purpose of the legislation, which is to promote the best interests, protection and well-being of children. Specifically, summary judgment can be used as a procedural remedy to promote the child’s best interests and to support the time limitations established by the legislation: see Children’s Aid Society of Waterloo (Regional Municipality) v. C.A.D., 2011 ONCA 684, at para. 5; Children’s Aid Society of Algoma v. A.K., 2015 ONSC 6166, at para. 35.

[108] I have considered that I should exercise considerable caution before proceeding on a summary basis on a child protection case, particularly with respect to evidentiary issues. In making my decision, it has not been necessary for me to rely on the Society’s affidavits that the mother submits are untested. I recognize and have considered that in child protection proceedings, there are Charter implications at stake for vulnerable litigants. I find that it is in the interest of justice for the court to determine this case summarily.

[109] Having determined that intervention is required and that it is not in the child’s best interests to be placed in the care of the mother, and having no other less intrusive options available, I find that the child’s best interests require an order placing him in the extended care of the Society. I must now determine the issue of access.

C. What Considerations Apply in Determining Whether Parents Should Have a Right of Access Following a Determination of Extended Society Care?

[110] As noted previously, when a child is placed into the extended care of the Society, any existing order for access to the child is terminated. The Society is seeking an order that there be access between the child and his sibling, the mother and the maternal grandmother. The Society requests an order that the child be an access holder to those with whom he has contact. The Society seeks an order that the child’s sibling also be an access holder. The Society seeks an order that there be no access by the child to the father.

[111] The Court of Appeal for Ontario has recently considered the issue of access in Children’s Aid Society of Toronto v. J. G., 2020 ONCA 415, 41 R.F.L. (8th) 1, which was released on June 25, 2020.

[112] In this decision, Benotto J.A. made it clear that when the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) was replaced with the CYFSA, one of the legislative aims was to import a broad best interests analysis into the determination of access: see para. 18. The previous test was replaced with a holistic consideration of the child’s best interests, as set out in ss. 105(5) and (6) of the CYFSA. These sections read as follows:

105(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

105(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.

[113] Pursuant to s. 74(3) of the CYFSA, “best interests of a child” is a defined term that encompasses a very wide range of considerations. The provision lays out 15 enumerated considerations and directs the court to consider “any other circumstance of the case that the person [deciding the case] considers relevant.”

[114] After setting out the new statutory test for access to the child in extended Society care, at para. 37, Benotto J.A. refers to her previous decision in in Kawartha Haliburton Children’s Aid Society v. M.W., the following is stated at para. 49:

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive.

[115] Writing for a unanimous court, Benotto J.A. made it clear that the CYFSA has changed the criteria for access by removing the presumption against access and making the child’s best interest paramount. This change was not just semantics but represented a significant shift in the approach to access for children in extended care: see Children’s Aid Society of Toronto v. J. G., at para. 37.

[116] Benotto J.A. went on to state that the “beneficial and meaningful” test articulated in s. 101(6)(a) is not a separate precondition. Instead, it is a consideration within the context of the child’s best interests. A child’s best interests are not static, and the possibility of positive future relationships can be considered. As indicated at paras. 50-55, when a child has significant medical issues, the court may consider whether the child could benefit from access to their biological parents. Ultimately, a child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors: see para. 63. The court should consider all factors whether they be past, present or future, and this can include future medical issues.

[117] The Court of Appeal clarifies that access can come in many forms that depart from in-person visits including the exchange of emails, gifts, video chats or phone calls: see para. 64.

[118] In J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 (Div. Ct.), the Divisional Court found that it was an error in law for the trial judge to delegate the exercise of its jurisdiction to determine access between the parent and child to the Society. At para. 38 of the decision, the court stated the following:

Section 104 of the CYFSA provides the court with jurisdiction to determine access in the child’s best interests. Section 104(1) provides that the court may “make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.” Section 104 makes it clear that it is the court that makes an order respecting access, and it is the court that is to impose terms and conditions “as the court considers appropriate.”

[119] The court in J.S.R. then canvassed how s. 105 of the CYFSA sets out the factors that a court must consider in making an access order based on the best interests of the child[ren]. At paras. 54 and 55 the court made the following comments:

We find that granting a Society the discretion to determine the type, frequency and duration of access, including whether access will take place at all, is an inappropriate delegation of the court’s role to determine access terms and conditions pursuant to section 104 and 105 of the CYFSA.

That said, it is important to distinguish between discretionary “visits” and the right of access resting in access holders. As the Court of Appeal held in Children’s Aid Society of Toronto v. D.P., 2005 CanLII 34560 (ON CA) at para. 12, a Society has “the right to control who may visit children and when,” as would a custodial parent. For example, if the access order stipulates in-person visits six times a year for an hour, a Society retains the discretion to grant additional visits, or to supplement in-person visits with additional written communication. In this sense, the right of access granted by a court may be supplemental by a Society’s discretionary decisions about visits. But the minimum rights of access must be established by the court. [Emphasis added.]

Evidence with Respect to Access

[120] The parties asked me to determine the issue of access based on the evidence before me.

[121] The Society changed its position on access between the mother and the child following the oral evidence. Ms. Sousa, counsel for the Society, made an oral motion following the presentation of oral evidence amending the Society’s Status Review Application to seek an order that the child shall be an access holder with his mother. Ms. Sousa further clarified that the Society was no longer seeking an order for no access between the mother and the child.

[122] The Society’s position that both the child and his sibling be access holders for one another remains the same, as does its position regarding the father having no access.

[123] On June 27, 2017, a Statement of Agreed Facts signed by the mother and the Society worker, Mel Wannamaker, was filed with the court. The Statement of Agreed Facts indicates that the biological father is J.S. It is further stated that the Society has had no contact with the father, his whereabouts are unknown, and he has not had any contact with his son. On December 19, 2017, Oldham J. made a final order that noted that the father was served with court documents on November 3, 2017 and he did not file a response. Oldham J. also noted that the father has not had contact with the child since his birth and was noted in default.

[124] The Society commenced an Early Status Review Application on March 26, 2018 as a result of the child being apprehended from the mother’s care. A motion dated April 23, 2018 seeking an order dispensing with service of the Early Status Review documents on the father was brought on May 1, 2018. On July 10, 2018 Rogers J. dispensed with service of the documents on the father.

[125] The father has never been involved in this proceeding, despite being served on two previous occasions (March 31, 2017 and November 3, 2017). He does not have a relationship with the child and there is no evidence to suggest that the child is even aware of the father. For this reason, I agree with the Society that it would not be in the child’s best interests to have access with the father.

[126] The mother seeks the return of the child to her care pursuant to a supervision order, but if the child cannot be placed in her care fulltime, it is her position that the court make a reciprocal access order between the mother and the child. Mr. Balmer, the mother’s counsel, submits that the mother has been able to stabilize her life in an extraordinary manner. She has a stable home that is well kept, and although unable to work, the mother has secured a regular income through the ODSP. She also attends her access regularly and it has been positive.

[127] The roadblock for the mother is the parenting capacity report of Dr. Sas and the diagnosis of Dr. Surapaneni. Mr. Balmer acknowledged that Dr. Sas’ evidence was clear and compelling.

[128] It is true that the mother has had difficulties dealing with the Society. She acknowledged this in her own evidence. The mother has been involved with the Society for the past eight years and she would like nothing more than to have them out of her life. Her involvement started in August 2013, after the birth of her first child. She has had many ups and downs since the Society’s involvement. There is no doubt that the progress she has made in addressing the concerns outlined by the Society over the years has been an extraordinary accomplishment for which the mother must be commended. Securing a stable home and beating a drug addiction are two of her biggest accomplishments.

[129] She has also accessed some of the services recommended to her by the Society. Both doctors who testified indicated that some of the other services that the Society suggested she access would not have been helpful to her. She has also been consistent and reliable in her access with the child. The evidence is that the access visits were positive for both the mother and the child.

[130] The mother testified that her current access with the child is once a week and that this is not enough. Dr. Sas testified that the child is attached to the mother and stated that contact between the mother and the child should continue. However, she testified that it should not continue with the same frequency as this would be too confusing for the child. It was Dr. Sas’ opinion that the child be placed with permanent caregivers and that contact with his mother continue on a reduced basis. Dr. Sas did not provide an opinion on the amount of visits beyond her statement that it be reduced.

[131] The Society led evidence that the mother is familiar with the foster parents with whom the child has been placed. Dr. Sas confirmed this point in her evidence. Those foster parents have expressed an interest in adopting the child. The Society provided evidence that the mother is suspicious of the foster parents and does not support the placement. I give no weight to the Society’s affidavit evidence regarding the mother’s concerns with the foster placement, as there is no further evidence that the mother is unable to work with them.

[132] The mother did not testify that she had any concerns about the child’s placement with the foster family. Dr. Sas’ evidence is that following the concerning incident in the elevator, the mother returned the child to the care of the foster parents without any issues.

[133] After hearing oral evidence from Dr. Sas, the Society conceded that the mother should continue to have contact with the child if the court makes an extended Society care order. Making the child an access holder would ensure that the mother has ongoing contact with the child if he were to be adopted. The mother asks the court to consider a reciprocal order to ensure that contact continues. I agree with the mother. Although the evidence is clear that she cannot be a full-time caregiver for the child, she and the child are attached to one another.

[134] Dr. Sas gave evidence of the access visits she observed. She advised the court that the mother is pleased to see the child and that the child recognizes that. She played with him and although sometimes she had trouble staying attuned to his needs, she was kind. There were times that she would say very odd things to the child, but he would continue playing. Overall, Dr. Sas observed some nice moments of imaginative play between the mother and the child.

[135] In one visit, the maternal grandmother and the mother’s older child attended supervised access and the child went right to them. It was clear to Dr. Sas that the child is also attached to the maternal grandmother and his sibling.

[136] Dr. Sas observed that the mother was able to prepare a nice lunch for the child and commented that she had made a real effort in that regard. There was a brief period of outdoor play between the child and the mother which caused Dr. Sas concern as the mother was unable to problem solve when the child had to go to the bathroom while at the park. Dr. Sas recommended that the child go to the bathroom in the park as there was not enough time to get back to the mother’s home. Dr. Sas remarked that the mother did not appear happy with this suggestion and acted differently after that point.

[137] Dr. Sas said the mother and the child appeared happy to see each other and were sad to say good-bye. Dr. Sas observed the mother having trouble hearing at times and she indicated that this was likely due to the noise in her head. Dr. Sas observed the mother having difficulty changing direction with the child when he said “no”. She was not mean, but due to the noise inside her head she is unable to be attentive to the child all the time. It was her evidence that the child and the mother have a positive attachment and contact should continue.

[138] Supervised access currently occurs once a week between the mother and the child. Both the Society workers and Dr. Sas described the mother’s interactions with the child, noting that sometimes the mother would make random, nonsensical statements. It was this unusual behaviour noted by the Society workers during access that caused them to pursue the PCA.

[139] During the months of March – July 2020, as a result of the pandemic, all face to face visits were put on hold and access occurred instead by telephone. It is acknowledged that access by telephone is not ideal for a child of this age. As pandemic protocols were put in place, in-person access resumed, and the mother has been, for the most part, consistent with her access.

[140] Access continues to be supervised at the Society and has been noted as positive.

[141] Tracey Brick, a Children’s Services Resource Worker, has been the children’s services worker for this file since March 21, 2018. She swore an affidavit dated September 10, 2019 and July 30, 2020 in support of the Society’s summary judgment motion. Ms. Brick attests that she has seen the child a total of 20 times in person and twice virtually over Zoom. She also indicated that she supervised two access visits between the mother and the child and observed interactions between the mother and the child on two more occasions. In Ms. Brick’s two affidavits, she lays out information about the child’s placement, medical history and his education. She also sets out some observations made during the access visits between the child and the mother in the affidavits:

(i) The child ran and hugged his mother at the beginning of the visits upon seeing her.

(ii) The mother sometimes yelled out random words that were unusual for the situation (“big yellow pants”, Newton”).

(iii) The child was upset when he attended for a visit with the mother and she did not attend.

(iv) The child was able to be consoled by the foster father if he was disappointed.

(v) The mother engages with the child during visits through play.

(vi) When Ms. Brick asked the child about his access visits with his mother, he told her he cries when he has to go.

(vii) The child is a healthy child who is meeting most of his developmental milestones. He does not have any special needs and there are no concerns with his development. He has struggled with self-regulation and impulse control.

(viii) The child is active and enjoys being outside. He is compassionate and demonstrates concern for others. He is more successful in play if he is interacting with one friend rather than many.

(ix) The child has a sister who is three years older than him and he has extended family who have indicated a desire to know him.

[142] Jana Tatton is a Protection Worker who has been assigned to this family since September 13, 2018. Her stated primary role is to ensure that parents and their child(ren) have safe and positive visits and are given the opportunity to continue and/or build on their parent/child relationship. When necessary, she also assists parents with education, safety and support with their children. She deposed the following:

(i) Ms. Tatton heard concerns from the mother about the child’s behaviour during access.

(ii) Ms. Tatton set out expectations for the mother during access and assisted her in obtaining legal counsel.

(iii) Ms. Tatton organized visits for the mother with the child and established rules around the access.

(iv) Ms. Tatton attended at the mother’s home regularly to discuss the file and any concerns that the mother had.

(v) Ms. Tatton offered services to the mother to address concerns, for example, she offered coached access. The mother declined this service.

(vi) Telephone access was arranged between the mother and the child during the pandemic. The child spoke to the mother and told her stories. The mother responded appropriately. Both the mother and the child appeared to enjoy the telephone visit.

(vii) Ms. Tatton has observed the mother having difficulties completing simple tasks and suspected that this was due to mental health issues. One example was having the mother contact her cell phone number rather than her office number when the pandemic first shut down in order to organize access.

(viii) The mother frequently makes non-sensical comments during access visits. She has struggled with carrying on a conversation with the child during access which has sometimes caused the child to become frustrated.

(ix) The mother has refused the worker access to her home and she has missed many meetings with the Society. The worker has required the mother to call before attending her visits to ensure that the child is not brought to the Society unnecessarily.

(x) The child is content and happy during access – he interacts with his mother.

[143] The Society filed affidavits from Alicia Schuster, Ed Gruszka, Liz Hedley, Erin Miller and Taneika Samuda, all of which set out observations made during the mother and the child’s supervised access visits. Each of these individuals has had limited involvement with the mother and as a result I give no weight to this evidence.

[144] I accept the affidavit evidence of Ms. Tatton and Ms. Brick as outlined in their affidavit material regarding their observations of the mother’s visits. I have assigned minimal weight to this evidence as the expert evidence of Dr. Sas provided in person addresses the concerns around access and therefore the court does not require any further evidence in that regard to make the findings it has made.

[145] I disagree with the Society that only the child should be an access holder. It is clear from both Dr. Sas’ testimony as well as the mother’s testimony that contact between the mother and child is beneficial and meaningful to the child. There is no evidence before me that suggests that if the mother were to be an access holder, the child’s adoption prospects would be hindered. The evidence is that the current foster parents, who are known to the mother, are putting forward a plan to adopt the child. I accept the mother’s position regarding her contact with the child and that she should be an access holder.

[146] Submissions were made regarding access prior to the release of the Divisional Court decision. As a result, the Society and the mother did not make specific submissions on the frequency or duration of the mother’s visits with the child.

[147] Based on the evidence that has been presented and considering the factors set out in s. 74(3) of the CYFSA, I find that the mother should have a right of access to the child and should be an access holder. Access has been positive, and for the most part consistent. The following factors further support an order to this effect: the child is happy to see his mother and is bonded to her, the child has had access with his mother since birth, the mother is unable to parent the child full-time as a result of her medical diagnosis, however the child is attached to his mother and both the mother and the child benefit from their access relationship. There is no evidence before me that in ordering access the child’s adoption prospects will be impaired.

[148] Dr. Sas’ evidence is that the access should continue on a reduced basis from its current frequency. Having considered the evidence and the recent Divisional Court decision, the court makes the Order set out below.

Orders Granted

[149] This court orders the following:

1. An order for summary judgment pursuant to Rule 16 for the following:

(a) the name and date of the birth of the child is J. [redacted for publication - counsel to insert name in Order];

(b) J. continues to be in need of protection.

2. J. is placed in extended Society care, until the extended Society care is terminated under section 114 or expires under subsection 123, and is placed in the care of the Children’s Aid Society of the Regional Municipality of Waterloo.

3. There shall be a right of access to the child, J., by the Mother and that right of access shall be reciprocal and shall be at the discretion of the Society and supervised as deemed necessary by the Society. At a minimum, face to face visits shall occur 6 times per year. Reasonable efforts will be made to schedule face to face visits around special occasions. At a minimum twice per year, the mother shall receive photos and updates regarding the child. Access shall occur in accordance with the child’s views and preferences if these can be ascertained and in accordance with his best interests.

4. There shall be a right of access to the child, J., by the child’s sibling, J.J.R. and the child’s maternal grandparents, C.R. and B.R. and that right of access is reciprocal between the children. At a minimum, these visits shall be face to face and shall occur during the mother’s access at least three times per year.

5. There shall be no right of access to the child, J., by the father, J.S.

6. There shall be no order as to costs.

J.D. Walters J.

Date: March 24, 2021