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-19-FO000133-0001
DATE: 2021-04-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE CHILDREN’S AID SOCIETY OF THE
REGIONAL MUNICIPALITY OF WATERLOO, Applicant
- AND -
R-A.M., Respondent
- AND -
J.C., Respondent
BEFORE: Madam Justice J.D. Walters
COUNSEL: Charu Smith, Counsel for the Applicant
Valeria Ruoso, Counsel for the Respondent, R-A.M.
Walter Wintar, Counsel for the Respondent, J.C.
Diane L. McInnis, Child Counsel for C.C.
HEARD: March 24, 2021
ENDORSEMENT
Overview
[1] The Applicant, the Children’s Aid Society of the Regional Municipality of Waterloo (“Society”), brought a motion (Vol 4, Tab 1, of the Continuing Record) pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99, seeking an order that the children, C.C. and J.C. (“children”), 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 a reciprocal right of access between the children and the Respondent, R-A.M. (“mother”) and the Respondent, J.C. (“father”), and that there be a minimum of three face to face visits per year between the children and the parents.
[2] The summary judgment motion (“the motion”) was argued on March 24, 2021. The mother did not file any responding material. The father filed an affidavit dated January 28, 2021 and a factum which was accepted on the day of the motion. Ms. McInnes, acting on behalf of the Office of the Children’s Lawyer (“OCL”), as counsel for the child C.C., also filed a factum.
[3] At the commencement of the motion, and on the consent of the parties, the Society brought an oral motion seeking leave to withdraw the two previous motions it had brought, found at Vol 3, Tab 1 and Vol 3, Tab 9 of the continuing record.
[4] The Society submitted that the only motion before the court, following the oral motion to withdraw, was the summary judgment motion dated February 22, 2021. The Society’s notice of motion seeks an order for extended Society care with both the children and the parents being access holders.
[5] The Society and counsel for the parties made submissions. Counsel on behalf of the parties advised that they consent to the order for extended Society care for both children. The only issue where argument was required, and all parties made submissions on, was the issue of access.
[6] The Society relies on the six affidavits filed in support of the motion, a document brief and a factum dated February 2, 2021.
[7] The affidavits filed by the Society in support of its motion are:
Jana Tatton, Child Protection Worker (“CPW”), dated December 29, 2020;
Amy Morphet, Family and Community Worker, dated December 21, 2020;
Amy Bannerman, Family and Community Worker, dated December 23, 2020;
Rachel DeVos, Children’s Services Resource Worker (“CSW”), dated December 22, 2020;
D.W., Foster Parent with Carpe Diem, dated December 30, 2020;
Rachel DeVos, CSW, dated February 22, 2021;
[8] The mother has not filed any material and at the outset of the motion her counsel advised that she consents to the relief sought by the Society but wished to make brief submissions.
[9] The father relies on his affidavit sworn January 28, 2021 and his factum dated February 11, 2021 filed at the commencement of the motion. At the outset of the motion, counsel for the father advised that the father is incarcerated and not in attendance at the motion, the father has provided instructions to counsel and the motion can proceed in his absence. The father consents to the order for extended Society care but wished to make submissions on the issue of access. The father seeks four to six visits per year, as opposed to the minimum of three visits per year that the Society is proposing.
[10] The child, C.C., is represented by counsel. Ms. McInnis, on behalf of the child, submitted that she agrees with the Society’s position.
[11] Each of the parties’ position will be discussed in detail below.
Brief Background
[12] The children are 10 and 4 years of age.
[13] The mother is 32 years of age.
[14] The father is 34 years of age.
[15] This is a Status Review Application.
[16] The Society’s history with this family dates back to 2012. The issues at that time included drug use and criminal activity on the part of the father. The father was charged with five charges of possession of a schedule one substance and two charges of possession of another schedule substance for the purposes of trafficking, and for possessing a dangerous weapon.
[17] Beginning in 2016, the Society noted concerns regarding the mother’s care of the child, C.C., and her use of drugs. There was also continued drug use by the father when the child, J.C., was born. Drug use continued to be a concern for both parents up until the children’s apprehension on March 22, 2019.
[18] Following the Society’s removal of the children from their mother’s care, the Society brought a Protection Application seeking an order that the children be placed in the Society’s care for six months, with access to the parents. On May 6, 2019, Rogers J. made a final order (“the Order”) pursuant to a Statement of Agreed Facts signed by the mother, a copy of which can be found at Tab 1 of the Society’s document brief. It is this Order that is now under review.
[19] The Order provides that the children are in need of protection pursuant to ss. 74(2)(b)(i) and (h) of the CYFSA and that they be placed in the care of the Society for six months.
[20] The children have remained in care since March 22, 2019 and have had access with the parents. The mother continues to struggle with substance use and the father has been incarcerated.
[21] On November 5, 2019, the Society commenced a Status Review seeking an order placing both children in extended Society care with no access to the parents. The Society has since changed its position in favor of access to the parents.
[22] The parties all consent to the order for extended Society care. The only issue before the court is whether the minimums being proposed by the Society for access between the children and the parents is in the children’s best interests.
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, 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:
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.
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.
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.
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.
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 summarized the law on status review applications and the treatment of agreed statement of facts as follows:
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.
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.
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.
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.
- 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:
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;
that the child be placed in interim society care and custody for a specified period not exceeding 12 months;
that the child be placed in extended society care until the order is terminated under section 116 or expires under section 123;
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,
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 Society seeks the following relief. First, an order that the children continue to be in need of protection. Second, that the children should be placed in extended Society care. Third, that once the order for extended Society care is made, that the mother and the father should be access holders with a reciprocal right of access to the children. With respect to access, the Society seeks a minimum of three face to face visits per year between the children and the parents.
[38] The mother agrees with the Society’s position. She concedes that there should be an order for extended Society care, that she should be an access holder and that access should occur between her and the children at a minimum of three times a year.
[39] On May 9, 2019, a Statement of Agreed Facts signed by the mother and the Society was filed with the court. The Statement of Agreed Facts formed the basis of Roger J.’s Order and indicates that the mother has suffered from substance use and advised her doctor in March 2019 that she was using crystal meth, marijuana and fentanyl. The mother loves the children very much, but she continues to struggle with addiction issues and has not been able to address the Society’s protection concerns since their apprehension, which includes obtaining a stable home for herself and the children.
[40] She did not put anything before the court. She disengaged from the hearing after she heard the Society’s proposal for minimum access between her and the children. Her counsel’s submission was that her withdrawal from the proceeding was likely due to her belief that the minimums proposed for access will likely be the maximum amount of time she will see her children.
[41] The mother is very happy with the children’s current foster home placement and hopes that the Society will respect the children’s views and preferences with respect to seeing their mother.
[42] The mother acknowledges that her visits have not been perfect but submits that they are good when she attends and that she has been attending more consistently as of late.
[43] The father concedes that there should be an order for extended Society care. Like the mother, he too knows the foster family with whom the children are placed and supports that continued placement. However, he submits that his access should be face to face at a minimum of four to six times a year and that the three visit minimum proposed by the Society is not enough.
[44] The father’s position is that although he has been incarcerated, he loves the children very much and has maintained contact with them. He has had access by telephone over the past year and while that has not been ideal, he hopes to have it expanded to in person access once he is released from jail. The father submits that he does not have to create a new relationship with his children, as he has had an ongoing relationship with them.
[45] The father also posits that the children have a relationship with his extended family and spend the weekend with them every six weeks. He submits that this relationship is important for the children. Although there is no direct evidence that the extended family would allow the father, once released, to attend to see the children in their home, it is the father’s position that he would like to work towards having access with the children and his extended family. Ultimately, it is his hope that he can raise the children. The father continues to work on himself through programming and indicates that he is in it for the long haul.
[46] When the father filed his affidavit, he advised that he had had a parole hearing earlier that month and that he has been granted parole. He states that he will soon be transferred to Stonehenge Therapeutic community in Guelph, Ontario. Although he had hoped to be transferred in early February, his transfer was delayed due to the pandemic.
[47] The father attests that while incarcerated, he has taken active steps, in the form of courses and programs, to better himself and help him reintegrate into the community once released. He has also been involved in individual therapeutic counselling and plans to take a six-month inpatient treatment program at his new residence to assist with his substance abuse issues.
[48] The father pointed out that at para. 24 of Ms. DeVos’ affidavit sworn February 22, 2021, C.C. said she would like to have a relationship with him, despite the fact that she told Ms. DeVos that she does not understand why her father has not been more present in her life.
[49] The father is agreeable to fully cooperating with the Society and doing whatever he has to do in order to maintain and improve his relationship with the children.
[50] Ms. McInnis is counsel for C.C. She supports access between C.C. and the parents at a minimum of three times a year and submits that to order a greater number of access visits would be inappropriate in this case. Based on the recent Divisional Court decision of J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630, Ms. McInnis submits that it is the court’s role to make a specific access order.
[51] Ms. McInnis confirmed that the information set out in Ms. DeVos’ affidavit dated February 22, 2021 accurately reflects C.C.’s views and preferences.
[52] In her submissions she advised that she last met with C.C. on February 22, 2021 and that it was an emotional interview where C.C. expressed that she is confused and feels abandoned by her parents. Ms. McInnis submitted that C.C. is very close to her mother and that she does not understand her father’s lack of involvement in her life.
[53] Ms. McInnis submitted that it has been two years since the father has had face to face visits with the children and that there is no way to predict how access will go if it moves to face to face contact. The child indicated to her that it took the father ten years to figure out that being a parent is important. Ms. McInnis stated that the child’s contact with the paternal extended family is important to her and should continue.
[54] C.C. is stable and is doing well in her current foster home. She feels safe and happy there. She has been doing well in school, which is remarkable given her history and that the world is currently experiencing a pandemic. C.C. is very protective of her little brother and enjoys spending time with him even though he can be annoying to her at times.
[55] C.C. had a psychological assessment completed and she has been diagnosed with a learning disability, as well as development trauma disorder. She is participating in counselling. In the past, she has struggled with school and she has also exhibited behavioral issues in her placements, but as stated above, she is now doing better. She has also struggled with wanting to know the “truth” about her parents and why she is in foster care. C.C. is ten years old and has clearly indicated to her counselor and to the Society workers that she would like to see her mother on special occasions and that she does not understand why it took her father so long to want to be a parent.
[56] J.C. is a high energy child and has struggled with his sleep patterns. J.C. has received a referral for sensory needs, emotional regulation and speech services. He is too young for his views and preferences to be ascertained.
[57] The Society submits that it has been involved with this family since 2012, initially in relation to drug use and criminal activity on the part of the father, and that there has not been a lot of progress since its involvement began. The Society argues that the parents’ consent to the order for extended Society care and the overwhelming evidence before the court both support a finding that there is no genuine issue requiring a trial.
[58] Although the children have a relationship with their extended family, there are no viable kinship plans before the court, and as stated, the father is currently incarcerated, and the mother continues to struggle with drug addiction and transience.
[59] The children have changed placements many times and are currently in the same foster home. Their current foster family is committed to continuing to care for the children for the time being, and connecting them with family and kin, but they are unable to put forward a permanent plan.
[60] With respect to access, the Society submits that the children have been seeing their parents and that it would be in their best interests for this to continue.
[61] The mother has consistently attended access with the children. She has been able to meet their physical needs during access, and often attends the visits with food and gifts for the children. She has consistently shown affection to J.C. during visits. However, there have been ongoing concerns noted by many about her care for C.C. and her ability to meet her emotional needs. There have also been concerns that the mother attends her visits under the influence of substances. The Society has attempted to provide support to the mother through services, but she has declined to follow through. Despite these concerns, the Society supports continued access between the mother and the children.
[62] The father has more recently maintained regular telephone contact with the children while incarcerated. His last face to face contact occurred in 2018 while he was incarcerated at Maplehurst Correctional Complex. If face to face visits are to take place, the Society submits that further work will have to occur with professionals on how to reunify the children with their father in an in- person context.
[63] The Society submits that an ongoing access order should strike a balance between maintaining contact while not impacting the children’s foster placement or their opportunities for adoption.
Placement
[64] The overwhelming evidence before the court supports the Society’s position that there are no less intrusive alternatives present for these two children. The children have been in the Society’s care since March 2019 and the protection concerns continue to exist.
[65] The Society’s materials support the position that the mother continues to struggle each day with her addiction issues and with transience. To the mother’s credit, she acknowledged her struggles and consents to the order being sought by the Society.
[66] The father is currently incarcerated and although he is awaiting transfer to another facility and has been approved for parole, he has been absent for the majority of the children’s lives, but particularly so in the past two years. He has not had face to face contact in this time and has only recently begun to have regular telephone contact with the children. J.C. is too young to benefit from this form of contact, and although C.C. is ten years old, she struggles to understand why her father has not been a parent to her for the ten years of her life.
[67] There is no doubt that both parents have struggled with addictions which have prevented them from having a consistent relationship with their children.
[68] Accordingly, the court must examine whether the mother has put in place sufficient supports to negate the protection concerns.
Supports
[69] The mother did not file any material and did not stay for the full summary judgment motion. It is clear from the Society’s material that the mother continues to battle her addictions. There is no evidence that indicates that she has begun to make any change in her life or whether she is capable of change at all.
[70] The Society workers’ affidavits set out the history of the file and the Society’s involvement with the parents. Since the mother did not file any evidence and the father only filed one affidavit, I assign a lot of weight to the Society’s affidavits. Rule 16(4) of the Family Law Rules authorizes the court to grant summary judgment based on the affidavit evidence provided by the parties.
[71] The parties agreed that the Society’s evidence filed supports an order for extended Society care. The only remaining issue is whether the parents should be access holders and whether face to face visits three times a year is an appropriate minimum.
Findings
[72] I accept the parties’ position that the only order to be made is one for extended Society care.
[73] Neither parent is in a position to parent the children. The mother continues to struggle with transience and drug addiction.
[74] The father is in custody as a result of criminal proceedings, is awaiting transfer to a less secure facility in Guelph and is to be placed on parole. He has been in custody for at least two years and needs time to reintegrate himself back into the community. The Society’s history indicates that his criminal involvement dates back to 2012, that he too has struggled with substance use, and that until recently, he has not had a relationship with the children.
[75] The parents’ family members are either unwilling or unable to provide a plan for the care of the children.
[76] Having considered the evidence before me, I find that it is in the interests of justice that this issue be resolved summarily. In the circumstances, I find that the Society has met its burden of proof and that there is no genuine issue for trial.
[77] 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.
[78] 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.
[79] Given the length of time that the children have 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.
[80] The evidence satisfies me, on a balance of probabilities, that: (1) intervention is required to protect the children both at the present time and for the foreseeable future; (2) that an order placing the children in the care of the parents cannot adequately protect them, even with terms of supervision; and (3) that an order placing the children in the extended care of the Society would be a foregone conclusion if this matter were to proceed to trial.
[81] Despite the love the parents feel for the children, the court cannot put the children’s lives on hold.
[82] I have considered the best interests factors set out in s. 74(3) and make the following findings:
(a) the child, C.C.’s views and wishes are to remain in foster care and have face to face contact with her parents while the child, J.C., is too young for his views and wishes to be ascertained;
(b) the children are not First Nations, Inuk or Métis children.
(c) Any other relevant circumstances:
i. There is evidence that the children have special needs;
ii. the Society attached a psychological assessment report dated November 2019 to January 2020 for C.C. to the Affidavit of Ms. DeVos, sworn December 22, 2020, which makes 15 recommendations to help address C.C.’s concerns set out in the assessment;
iii. the Society also provided evidence that J.C. is an active child who struggles with his sleep and also requires help with his speech;
iv. J.C. has been assessed by Dr. McLeod and has been referred to Kidsability for his sensory needs and emotional regulation;
v. the two children are currently together in the same foster home and are doing well there;
vi. there are no specific considerations regarding the children’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 children’s cultural and linguistic heritage;
vii. the Society proposes that the children remain in their current foster home while they search for a more permanent placement;
viii. the Society also proposes that the children continue to maintain their connections with their parents and their extended family;
ix. there is a real and significant risk that the children may suffer harm if they are returned to the care of the mother or the father;
x. the children require stability; and
xi. the children are young and vulnerable and have spent the past two years of their lives in the care of a child protection agency. They require a stable, reliable and committed caregiver who can provide them with a safe, secure and permanent home.
[83] There are additional considerations when contemplating 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.
[84] 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. No evidentiary issues were raised by the parties. I have assigned great weight to the evidence filed by the Society and neither parent filed any evidence to refute the Society’s evidence. 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.
[85] Having determined that intervention is required and that it is not in the children’s best interests to be placed in the care of their parents, and having no other less intrusive options available, I find that the children’s best interests require an order placing them 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?
[86] 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 children and their parents a minimum of three times a year. The Society requests an order that the children be access holders to the parents and that that contact be reciprocal.
[87] 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.
[88] 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.
[89] 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 factors and directs the court to “consider any other circumstance of the case that the person [deciding the case] considers relevant.”
[90] 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 Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, where 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.
[91] 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 interests 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.
[92] 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 involves 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.
[93] The Court of Appeal clarified 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.
[94] In J.S.R. v. Children’s Aid Society of Ottawa, 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.”
[95] The court in J.S.R. v. Children’s Aid Society of Ottawa 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
[96] The parties asked me to determine the issue of access based on the evidence before me.
[97] As previously stated, the Society seeks an order for access to the children by the parents and that that order provide for a minimum of three face to face visits a year.
[98] Both parents seek an order as access holders with face to face visits. The mother consents to the order sought by the Society for a minimum of three face to face visits a year while the father requests that the court set the minimums at four to six face to face visits a year.
[99] The father’s affidavit filed in support of this motion supports that he has begun to get his life back on track and has improved his circumstances since the children were apprehended. Whether it is due to his own desire to do so or whether it is a requirement of his incarceration is yet to be seen. Those improvements are summarized as follows:
While at the Warkworth Institute he completed the Integrated Correctional Program (ICPM) which is a three month program designed to help inmates successfully reintegrate into society after they are released.
He completed the National Employability Skills Program (NESP) which is a program intended to assist inmates obtain employment after they are released.
He has been involved in individual therapeutic counselling through the mental health services section located at the Warkworth Institution.
When he moves to Stonehenge Therapeutic Community in Guelph, Ontario he will begin a six month inpatient treatment program which assists persons with substance abuse issues and provides them with the tools to avoid relapsing.
The father hopes that once he is on parole, he will be able to enjoy face to face access with his children at either his new location or at his extended family’s home.
[100] Overall, the father’s position is that he has begun to improve his situation personally and is exercising regular telephone contact with the hope of moving to face to face contact in the not too distant future. He also submits that he is willing to do whatever the Society recommends in order to have a face to face relationship with the children, and relies on his extended family’s relationship with the children as support for his request for increased access with the children. Ultimately, his plan is to increase his access and eventually assume care of the children.
[101] Only time will tell if the father can continue to affect positive change in his life, and I do not agree that the recent regular telephone access and the children’s relationship with the father’s extended family justifies four to six access visits per year. For the majority of these two young children’s lives, he has failed them. It will take some time to build back their trust and a great deal of work with professionals will also likely be necessary before these two young children are in a position to see their father face to face.
[102] C.C. is the only child old enough to give her views and preferences. In submissions from the Society and OCL counsel, Ms. McInnis, it is clear that C.C. is confused about her relationship with her father.
[103] Ms. DeVos has been the CSW for this file since October 8, 2019. She swore an affidavit dated December 22, 2020 and February 22, 2021 in support of the Society’s summary judgment motion. In Ms. DeVos’ affidavit of February 22, 2021, she attests that C.C. struggles with her connection with her father. C.C. expressed to Ms. DeVos that she did not understand why her father waited so long to connect with her, but also expressed that she would like to meet her father.
[104] Ms. DeVos also attests that she has observed some of the visits between the children and the mother. During her observations she has observed the mother to be punitive, harsh and critical with C.C. around her personal appearance, hygiene and style choices. When Ms. DeVos met with C.C. to discuss her family through a “words and picture book”, C.C. asked for a break from visits with her mother. C.C. went on to advise that after a week-long break, she would want a visit with her mother alone and would like to be able to celebrate special occasions with her.
[105] Ms. DeVos further indicated that she has observed the mother spend more time with J.C., and that she tends to favour him over C.C. Yet, Ms. DeVos also posits that she has seen the mother be kind and affectionate with both children and has brought them treats and gifts.
[106] In addition to the foregoing, in Ms. DeVos’s two affidavits, she lays out information about the children’s access, placement, medical history and education. She also sets out some observations made during the access visits between the children and the mother:
(i) The mother brought candy, snacks and crafts for the kids. During the visit, the mother celebrated both children’s birthdays with gifts.
(ii) During the visit, the mother appeared to fall asleep while watching videos with C.C. on a tablet.
(iii) There are times where the mother does not attend two visits a week.
(iv) C.C. is sometimes impacted by the mother’s behaviour during visits.
(v) C.C. asked the worker why her father is in jail.
(vi) C.C. said she thinks her mom drinks and people have told her that before.
(vii) C.C. told the worker that when she was growing up her dad was always hiding or being sneaky. She asked why he would have a family if he was doing these things. She said that people know if they do bad things that they will go to jail, and she cannot understand why her dad would do bad things when he has a family.
(viii) Ms. DeVos asked C.C. to share some happy memories from her childhood to be included in a words and picture book that she is preparing to help the children understand their family story, and that this task was difficult for C.C.
(ix) J.C. is struggling with the virtual access with his father.
(x) J.C. has some speech delays, and a referral is being sought to address this issue. He also requires some sensory work and a referral was made by Dr. McLeod for Kidsability.
(xi) The children continue to have contact with the paternal family.
(xii) C.C. is struggling to understand what is next for her and her brother. She experienced some difficulties when her brother first joined her in the foster home, but they have adjusted now.
[107] Jana Tatton is a CPW who has been assigned to this family since October 15, 2019. 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 the children. She deposed the following:
(i) She heard concerns from the mother about the children not being in her care.
(ii) She organized access between the mother and the children and indicated that the access could not involve the mother talking to the children about the Society.
(iii) During one visit where C.C. attended despite being sick earlier that day, the mother told her that she smelled and that she should not be in a diaper. Ms. Tatton had to explain to the mother that it is not unusual for children to have bowel problems at her age and require a pull up.
(iv) She had to talk to the mother about the words she uses and how this impacts the children. When the children arrived for the access visit, the mother did not give them hugs and kisses, but she did bring snacks for them. Ms. Tatton observed the mother tell J.C. during the visit that she loved him, but she did not say this to C.C.
(v) She notes many times where the mother missed her visits with the children.
(vi) She has referred the mother to programming, but the mother did not follow through. On one occasion she had legal troubles and ended up at the Vanier Centre for Women, a correctional centre.
(vii) She has corresponded with the father while he is incarcerated to develop a plan for the children.
(viii) She received a letter from the father on October 31, 2019 asking the Society what they needed him to do. The father was also included in family meetings to discuss the children.
(ix) She notes that although some visits between the mother and the children are positive, they are inconsistent. The mother’s biggest struggle is her drug addiction, and this continues to be a central concern.
(x) She has worked with the father and observed that he clearly loves his children, but that he cannot put forward a plan for their care while he is incarcerated. Although he seeks parole, before he can be more involved in the children’s lives, he requires a period of stability.
[108] The Society also filed affidavits from D.W., Amy Bannerman and Amy Morphet, all of which provide further evidence that indicates that neither parent is able to put forward a plan for these two children,
[109] I accept the affidavit evidence submitted by the Society regarding its protection concerns and the access relationship that currently exists between the parents and the two children, C.C. and J.C.
[110] I have assigned extra weight to the affidavits of Ms. DeVos. As the CSW, she has a relationship with the children, and she has put forward evidence directly from them. These children are confused and have special needs as a result of their parents’ protection concerns.
[111] Although the father has filed an affidavit, I have assigned very little weight to his evidence. He is incarcerated and has only had telephone contact with the children consistently in the past year. He does not have a relationship with the children, but for the telephone calls that occur approximately once a week. It is apparent that C.C. is confused by her father’s absence and although she has asked to meet him, it is unclear if a face to face relationship is in the children’s best interests.
[112] J.C. has been in care for the majority of his life and his views and preferences cannot be ascertained due to his young age. The Society has sought services to address the concerns he has been displaying as he grows in foster care.
[113] Both children have recently been placed together and C.C. seems to have benefitted the most from this change. While she is confused by her child protection history, she has made her views and preferences known to both her lawyer and the child protection worker that she wishes to maintain contact with her parents.
[114] The court must consider the children’s views and preferences in determining whether or not to make an access order. Based on the evidence submitted by the Society, specifically the affidavit of the CSW, Ms. DeVos, dated February 22, 2021, and the submissions made by Ms. McInnes, I accept that there should be an order for access between the children and their parents, and that that order should be reciprocal.
[115] I agree with the parties that both the children and the parents should be access holders. I also agree with the Society that at a minimum, face to face visits should occur three times per year. I disagree with the father that the access minimums should be four to six times a year, especially considering C.C.’s confusion regarding her father’s role in her life. As he has only recently come back into the children’s lives vis a vis telephone access, I find that three face to face visits per year is appropriate and will allow the father to continue to develop his relationship with the children.
[116] It is clear from the Society’s evidence that the parents love their children. However, neither parent has been able to overcome their respective struggles for the sake of their children. That being said, there is evidence that the children are having contact with their parents and that that contact is beneficial and meaningful to them.
[117] 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 parents should have a right of access to the children and should be access holders. Although some access has had its challenges, C.C.’s views and wishes support continued access with both parents. The following factors further support an order to this effect: the children are happy to see their mother and are bonded to her; the children have had access with their mother since birth; the mother is unable to parent the children full-time as a result of her addiction, however the children are attached to their mother and both the mother and the children benefit from their access relationship. There is very little evidence about the impact of the father’s relationship upon the children. At best, C.C.’s evidence indicates a desire to know her father, but it is evident that she is confused about her father’s role in her life. Yet, despite the lack of evidence regarding the father’s relationship with the children, the Society supports continued access between the father and the children, and there is evidence that the children have a relationship with the father’s extended family. There is no evidence before me that in ordering access the children’s adoption prospects will be impaired. The evidence is that the current foster parents, who are known to the parents, will continue to care for the children and the children are doing well in their care.
[118] Having considered the evidence and the recent Divisional Court decision of J.S.R. v. Children’s Aid Society of Ottawa, the court makes the Order set out below.
Orders Granted
[119] This court orders the following:
The two previous Notice of Motions dated December 29, 2020 and January 12, 2021 shall be dismissed.
An order for summary judgment pursuant to Rule 16 for the following:
(a) the names and dates of the birth of the children are C.C. and J.C. [redacted for publication - counsel to insert name in Order];
(b) C.C. and J.C. continue to be in need of protection.
The child, C.C. and the child, J.C., shall be placed in extended Society care, until the extended Society care is terminated under section 114 or expires under subsection 123, and are placed in the care of the Children’s Aid Society of the Regional Municipality of Waterloo.
C.C. and the child, J.C., shall hold a reciprocal right of access to one another, at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children’s Aid Society of the Regional Municipality of Waterloo.
C.C. and R-A.M. shall hold a reciprocal right of access to one another, at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children’s Aid Society of the Regional Municipality of Waterloo.
(a) At a minimum, face-to-face visits shall occur three times per year.
(b) Reasonable efforts shall be made to schedule face-to-face visits around special occasions.
(c) At a minimum of two times per year, R-A.M. shall receive photos and updates regarding C.C.
(d) Access shall occur in accordance with C.C.’s views and preferences, and in accordance with C.C.’s best interests.
- C.C. and the father, J.C., shall hold a reciprocal right of access to one another, at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children’s Aid Society of the Regional Municipality of Waterloo.
(a) At a minimum, face-to-face visits shall occur three times per year.
(b) Reasonable efforts shall be made to schedule face-to-face visits around special occasions.
(c) At a minimum of two times per year, the father, J.C., shall receive photos and updates regarding C.C.
(d) Access shall occur in accordance with C.C.’s views and preferences, and in accordance with C.C.’s best interests.
- The child, J.C., and the mother, R-A.M., shall hold a reciprocal right of access to one another, at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children’s Aid Society of the Regional Municipality of Waterloo.
(a) At a minimum, face-to-face visits shall occur three times per year.
(b) Reasonable efforts shall be made to schedule face-to-face visits around special occasions.
(c) At a minimum of two times per year, R-A.M. shall receive photos and updates regarding J.C.
(d) Access shall occur in accordance with J.C.’s views and preferences, and in accordance with J.C.’s best interests.
- The child, J.C., and the father, J.C., shall hold a reciprocal right of access to one another, at the discretion of the Children’s Aid Society of the Regional Municipality of Waterloo and supervised as deemed necessary by the Children’s Aid Society of the Regional Municipality of Waterloo.
(a) At a minimum, face-to-face visits shall occur three times per year.
(b) Reasonable efforts shall be made to schedule face-to-face visits around special occasions.
(c) At a minimum of two times per year, the father, J.C., shall receive photos and updates regarding the child, J.C.
(d) Access shall occur in accordance with the child, J.C.’s, views and preferences, and in accordance with the child, J.C.’s, best interests.
- There shall be no order as to costs.
J. Walters J.
Date: April 16. 2021