COURT FILE NO.: C185/15

DATE: 2021-04-28

WARNING

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

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

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

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

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Applicant

– and –

T.E., B.B.D., C.M.M. and P.T.M.

Respondents

COUNSEL:

S. Edwards, Counsel, for the Applicant

T.E. and B.B.D., not in attendance T. Hammond-Grant, Counsel, for C.M.M. and P.T.M.

J. Higginson, Counsel, for the Office of the Children’s Lawyer

HEARD: April 26, 2021

JUDGMENT

THE HONOURABLE MR. JUSTICE A. PAZARATZ

[1] This is a summary judgment motion dated January 28, 2021 brought by C.M.M. and P.T.M. – the paternal aunt and uncle (respectively) of the eight year old female child A.R.D. – seeking a final order including the following terms:

1. That the child A.R.D. born (date of birth deleted) be placed in the sole custody of the Applicant Paternal aunt and uncle, C.M.M. and P.T.M., pursuant to s. 102 of the CYFSA.

2. That the child A.R.D. born (date of birth deleted) have her primary residence with the Applicant Paternal aunt and uncle, C.M.M. and P.T.M..

3. That the Applicant paternal aunt and uncle, C.M.M. and P.T.M. may change the child’s ordinary residence from the City of Hamilton and will advise the Respondent parents T.E. and B.B.D. of the new location unless it is not in the best interests of the child to provide the specific details of the new address 30 days prior to any move.

4. That the Applicant paternal aunt and uncle, C.M.M. and P.T.M. may apply for and renew, and obtain and legal documents for the child such health cards, social insurance, and passports, without the consent and signature of the Respondent mother and father.

5. That the Applicant paternal aunt and uncle, C.M.M. and P.T.M. may travel outside of Canada with the child without the written or verbal consent of the Respondent mother and father of the child. The Applicant paternal aunt and uncle, C.M.M. and P.T.M. will use their best efforts to provide the Respondent mother and father with details of their travel plans outside of Canada 30 days in advance.

6. That any access to the child A.R.D. born (date of birth deleted) by the Respondent parents T.E. and B.B.D. be in the discretion of the Applicant Paternal aunt and uncle C.M.M. and P.T.M.. Such discretion shall include date, time, frequency, duration, location and supervision of access. The child’s wishes shall also be taken into account in arranging any access.

7. At this time, the Respondent parents shall have access by video, telephone or other agreed upon social media twice per month for up to one hour per visit.

8. The Respondent parents shall be on time for any access arranged, and should they be more than ten (10) minutes late, the access shall be cancelled and may not be rescheduled.

9. The Respondent parents shall be polite and civil with all caregivers, professionals involved with the child and the child, including the Applicant Paternal aunt and uncle.

10. The Respondent parents shall not expose the child to any conflict. Should the parents argue or expose the child to conflict during any visit, the visit shall be ended by the visit supervisor or the Applicants C.M.M. and P.T.M.. The child may also terminate any video, telephone or social media access.

11. No other persons may attend for access with the Respondent parents unless agreed upon in advance. Should any other party not agreed to in advance attend access, the visit shall be cancelled.

12. Neither of the Respondent parents shall attend access under the influence of any intoxicating substances and they shall not use any intoxicating substances, such as alcohol, illegal drugs, or marijuana, 12 hours prior or during any access time with the child. In the event they attend any access visit impaired by substances, the visit will be cancelled.

13. Should the Respondent parents cancel or not attend at more than three (3) scheduled access visits, the visits shall be suspended pending further order of the court.

14. Prior to consideration of any expansion of access, including supervised access in person access or unsupervised access, or a Motion to Change being brought, the Respondent parents shall each:

a) Successfully complete a drug addiction and treatment program and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program.

b) Continue to attend and follow all recommendations of their Methadone doctors and service providers and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program and drug test results.

c) Provide weekly clean drug tests showing no substance use for at least three months.

d) Enroll in and successfully complete an anger management program within the last 12 months, and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program.

e) Shall enroll in and attend couples counselling to address the conflict in their relationship and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program.

f) Demonstrate no involvement with the police by providing the Applicant paternal aunt and uncle with a written consent to allow them to obtain updated police records for the Respondent Mother and Father for the preceding 12 months.

g) Maintain a safe and stable residence that is child safe and allow the Applicant paternal aunt and uncle or their designate to view the home.

h) Followed all terms of access herein.

i) In addition, the Respondent mother shall obtain a regular family doctor and have her mental health assessed and follow any programs or recommendations of the mental health providers and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program.

15. The Catholic Children’s Aid Society shall be served with a copy of any Motions or Applications to change the custody or access provisions set out herein.

[2] C.M.M. & P.T.M. filed a lengthy joint affidavit dated January 28, 2021 in support of their motion.

[3] The Catholic Children’s Aid Society of Hamilton (“the Society”) supports the aunt and uncle’s motion. It wants to withdraw its child protection application and asks that the supervision order of Justice Chappel dated July 8, 2020 be terminated. The Society filed the following materials:

a. February 1, 2021 affidavit of family service worker Kathryn Bowers

b. February 2, 2021 affidavit of family resource unit worker Carron Nisbet

c. February 2, 2021 affidavit of kinship care worker Jacqueline Kinnear

[4] The Office of the Children’s Lawyer (“the OCL”) assigned Mr. Higginson as counsel for the child. The OCL also supports the aunt and uncle’s request, and says it accords with A.R.D.’s wishes and is in the best interests of the child.

[5] A.R.D.’s father is B.B.D..

a. He has been represented by counsel but never filed an Answer.

b. He was noted in default on December 14, 2020.

c. He did not seek to file materials or participate in relation to this summary judgment motion.

[6] A.R.D.’s mother is T.E.:

a. Historically she has participated in the court process, and she had filed an Answer in relation to the current Status Review Application.

b. She then stopped participating in the court process. She missed court dates. She fell out of touch with her lawyer who brought a successful motion to be removed from the record.

c. The mother now represents herself. She hasn’t filed any response to the current motion. She hasn’t consistently attended court. She did not file any materials in response to the summary judgment motion.

[7] Neither parent attended court on April 26, 2021 at 2:00 p.m. when the summary judgment motion was heard.

[8] So basically this summary judgment motion has been brought because the mother has verbalized her opposition to the plan for the child -- but she has done virtually nothing to participate in the process.

[9] A brief summary of the relevant chronology:

a. The Society has been involved with the parents since 2012 – the year A.R.D. was born.

b. On September 27, 2018 the Society investigated a report about the mother’s care of A.R.D.. There were reports of the mother swearing and yelling at the child. The mother was said to be “high” every day, and acting “strangely”. It was unclear if the father was also using drugs, but the parents had a lot of conflict between themselves.

c. On December 25, 2018 there was further family conflict which resulted in the mother telephoning C.M.M. and P.T.M. asking that they come and take charge of A.R.D.. C.M.M. and P.T.M. had been actively involved in A.R.D.’s life. They previously provided a kin placement for the child, including the period June 12, 2015 to March 21, 2016.

d. On December 28, 2018 a family meeting was held at the Society’s office. The parents agreed that A.R.D. could remain with C.M.M. and P.T.M. for a period of one month while the parents addressed protection concerns. During that time A.R.D. went to her parents’ home on weekends.

e. Those temporary arrangements were then extended. A.R.D. has remained in the care of C.M.M. and P.T.M. continuously since December 2018.

f. On April 15, 2019 Justice Lafrenière made findings, pursuant to Final Minutes of Settlement that:

i. the child’s full name is A.R.D., born (date of birth deleted);

ii. the child is not First Nations, Inuk or Métis; and

iii. the child, is found to be in need of protection pursuant to section 74(2)(b)(i) and (h) of The Child, Youth and Family Services Act, 2017.

g. The April 15, 2019 order set out that A.R.D. would continue to reside with C.M.M. and P.T.M. for a period of six months, under supervision by the Society. Access by the parents would be in the discretion of the Society, supervised in its discretion.

h. In October 2019 the Society brought a Status Review Application seeking a continuation of the April 15, 2019 terms for a further six months.

i. On January 16, 2020 there was a further order placing A.R.D. with C.M.M. and P.T.M. for six months, under supervision by the Society. Again, the parents’ access was in the discretion of the Society.

j. On July 8, 2020 the Society brought a Status Review Application. The mother filed an Answer. The father filed no response, and he was noted in default.

k. A Settlement Conference was scheduled for December 14, 2020. But neither parent filed a brief or confirmation. Neither parent attended. The lawyers for both parents were present. They had no instructions and no explanation for the parents’ absence. The matter was adjourned to February 1, 2021 to be spoken to.

l. The mother’s counsel brought a motion to be removed from the record.

m. On February 1, 2021 the mother attended but the father did not. The mother had not filed any responding materials in relation to her lawyer’s motion to be removed from the record. She opposed the lawyer’s request, but based upon the material filed I granted the order removing her solicitor from the record.

n. At the February 1, 2021 attendance the mother confirmed she had received the summary judgment motion materials filed by C.M.M. and P.T.M.. The mother indicated she would be contacting Legal Aid because she wanted to retain a lawyer again. All issues, including the summary judgment motion, were adjourned to February 24, 2021 at 10:00 a.m. to be spoken to.

o. My February 1, 2021 endorsement included the following notation:

14 I have explained to the mother that it is critically important that if she intends to oppose the requests in the summary judgment motion that she has to file responding materials and she will have to do so within strict timelines. Since she no longer has a lawyer she will have to make diligent efforts to retain a lawyer if she intends to retain one. Whether she has a lawyer or not, she is required to file responding materials.

p. On February 24, 2021 neither the father nor the mother attended when the matter was called at the scheduled 9:30 a.m. time. I placed the summary judgment motion on the April 26, 2021 sittings, and extended the mother’s deadline for responding to the summary judgment motion to March 15, 2021. Given the mother’s historic lack of attention to this file, I also adjourned the matter to March 24, 2021 to be spoken to, to determine whether the mother had filed responding materials by the March 15, 2021 deadline.

q. As it happens, shortly after I completed my February 24, 2021 endorsement and the lawyers were excused, at 10:04 a.m. the mother entered my (Zoom) remote courtroom. I explained what she had missed and confirmed that the court would email my February 24, 2021 endorsement to her, just as we had emailed previous endorsements. I specifically explained to the mother that if she was opposed to the aunt and uncle’s summary judgment motion she had to file her materials by the extended March 15, 2021 deadline. I also told her that she had to attend court on the next return date March 24, 2021 at 9:30 a.m. sharp.

r. On March 24, 2021 neither the father nor the mother attended. I was advised that the mother had not filed any responding materials by the March 15, 2021 deadline. (To this date the mother has never filed any responding materials, or indicated any further desire to do so.) The aunt and uncle’s summary judgment motion was adjourned for hearing on April 26, 2021 at 2:00 p.m. As always, the endorsement was emailed to the mother.

s. The lawyers involved in this case – for the Society, C.M.M. and P.T.M., and the OCL – all advise that they have not heard from the mother, nor from any lawyer on her behalf (since her former counsel was removed from the record on February 24, 2021).

[10] The Society’s materials explain why the agency supports the request by C.M.M. and P.T.M.:

a. Both parents have a long history of drug activity, including drug use and drug trafficking in their home. Their behaviours and lifestyle have impacted negatively on A.R.D..

i. For example, after A.R.D. was born on (date of birth deleted) she had to remain in hospital for a week because she was born addicted to methadone.

ii. When she was brought into care A.R.D. provided a detailed description of witnessing both of her parents’ drug use.

iii. She said she saw them with a lighter under tinfoil and a straw to suck up the smoke.

iv. She would mimic what she said her parents would do.

b. The parents’ efforts to address their drug issues have been half-hearted, inconsistent, and unsuccessful.

c. Both parents have been inconsistent with respect to access to A.R.D. (which has remained supervised by the Society). At times the access has gone well. At times the mother has appeared to be under the influence of drugs. A January 29, 2021 visit was described by the Society supervisor as “chaotic”, with the mother speaking non-step and loudly. Sometimes A.R.D. elects to end the visits early. Most recently the child has insisted that she is only prepared to have contact with the parents by video. She is not comfortable seeing them in person.

d. A.R.D. disclosed constant arguing and shouting between her parents which she found frightening.

e. The father has serious anger management issues. He has attended counselling but his subsequent aggressive behaviours demonstrate he has not been able to use the skills recommended to him in counselling.

f. The mother’s behavior has been reported to be erratic. A.R.D. has disclosed such behaviours to the Society and has mimicked her mother’s behaviours to C.M.M. and P.T.M..

g. The parents have been unable to maintain proper or hygienic accommodation. They were evicted from their previous home. They have not cooperated with the Society in relation to securing information about their current residence and landlord.

h. On various occasions the parents have been uncooperative with the Society, failed to sign consents for the release of information, or failed to follow up on appointments and recommendations.

i. The parents have not always been forthcoming with information and have provided inconsistent information throughout the current Society involvement.

j. The parents have not completed all recommended services. For example they attended some couples’ counselling sessions, but they did not attend their last scheduled appointment.

k. The parents challenge and deny concerns about their current behaviours and previous actions. They have not shown any insight or responsibility with respect to why A.R.D. was removed from their care. They fail to understand or acknowledge the harm they have caused to the child – or the steps they would need to take to avoid causing further harm to the child in the future.

l. A.R.D. has experienced significant disruption and trauma in her life. This is the second significant period of time she has not been in the care of her parents due to serious concerns.

m. A.R.D. has done very well in the care of her aunt and uncle. She is doing well in school, has made friends, and has started to become much more confident. She is involved with extracurricular activities, and support services including an empowerment program, to help A.R.D. continue to succeed.

n. C.M.M. and P.T.M. have ensured that her needs are met. They have done an excellent job caring for A.R.D. and keeping her safe. There have been no concerns with their care of the child.

o. C.M.M. and P.T.M. have demonstrated that they are committed to A.R.D.’s long term care.

p. A.R.D. has been adamant that she is happy with C.M.M. and P.T.M., has a close bond with them, and she would like to remain in their care permanently.

q. A.R.D. has also been consistent in her wish to have only virtual timesharing with her parents. She does not want in person contact at this time.

r. Given the lack of progress made by the parents during the last two consecutive supervision orders and A.R.D.’s need for permanency, the Society supports C.M.M. and P.T.M. obtaining custody, with appropriate access arrangements that focus on A.R.D.’s needs.

[11] Counsel for the Society, C.M.M. and P.T.M., and the OCL all referred to a Child Maltreatment Report in relation to A.R.D., issued by the Child Advocacy and Assessment Program (CAAP) of McMaster Children’s Hospital on October 8, 2019. That 30 page report included the following comments and recommendations.

a. A.R.D.’s relationship with her paternal aunt and uncle provides her both psychological and emotional safety.

b. A.R.D. described that she feels safer with C.M.M. and P.T.M. than at her parents’ home “because mom was more crazy, jumping around” whereas her aunt and uncle “don’t fall around and stuff”.

c. A.R.D.’s needs were not sufficiently met while she was living with her parents, during important and formative years of her life.

d. A.R.D.’s attachment relationship with her parents was compromised as a result of her parents’ difficulties and the parenting environment.

e. “A.R.D. requires first and foremost a stable, safe parenting environment that can provide physical and psychological safety such that her educational, emotional/behavioural and social needs are addressed.”

f. The young child requires caregivers who are flexible and attuned to her needs; able to provide assistance with emotional competence and emotional co-regulation.

g. Her current functioning is best understood within the framework of complex trauma. “Complex trauma refers to childhood experiences of multiple traumatic events that occur within the child-caregiver relationship, and to which children are exposed within the first few years of life.”

h. C.M.M. and P.T.M. provide A.R.D. with the physical and psychological safety that she did not experience in her caregiving environment with her parents, and that she requires to thrive across all developmental domains (physical, emotional, cognitive and social).

i. CAAP recommends that A.R.D. remains with C.M.M. and P.T.M..

j. A.R.D. will benefit from trauma counselling but this cannot take place until the child has found permanency in her life.

k. Access with her parents is dysregulating to A.R.D.. CAAP recommends that access should be focused on the quality of the visits versus quantity and frequency. CAAP “strongly recommends that access should be supervised by a skilled person who is attuned to A.R.D.’s cues and needs and can recognize and mitigate risk of emotional harm”.

[12] The lengthy affidavit filed by the paternal aunt and uncle confirms the Society’s information and provides considerable reassurance as to the plan being presented.

a. C.M.M. and P.T.M. have been married since October 26, 1996. They have two adult children (and their son’s girlfriend) residing in their home.

b. C.M.M. and P.T.M. have never been the subject of a child protection proceeding.

c. A.R.D. was initially in their care from age 18 months to two years and three months -- a nine month period.

d. She has been in their care continuously since December 25, 2018.

e. The father is C.M.M.’s half brother.

f. C.M.M. and P.T.M. maintained regular contact with A.R.D.. Early in her life they came to be concerned about the care she was receiving from the parents.

g. When A.R.D. was six months old C.M.M. started receiving phone calls from other family members expressing concern about the parents’ drug use and its impact on their parenting.

h. When she was a year old A.R.D. started talking and screaming in her sleep, yelling “help me”.

i. As soon as A.R.D. first came into their care on June 12, 2015 as a kinship placement, C.M.M. and P.T.M. furnished a bedroom for her and purchased clothes and supplies to make her feel safe and secure.

j. Soon after, the child revealed that both parents used to hit her on the head. With the passage of time the child disclosed more examples of abusive, neglectful and dangerous parental behaviours she was exposed to.

k. The aunt and uncle’s affidavit sets out in chronological detail the progress they have made in stabilizing the child’s life and emotional health – and in overcoming periodic setbacks experienced when the child had inappropriate, upsetting or confusing interaction with the parents.

l. Within months of her second placement with C.M.M. and P.T.M. in December 2018, A.R.D. became very clingy. Since then she has become closely emotionally bonded with the aunt, uncle and their extended family. She is now part of their family.

m. It every respect the affidavit of C.M.M. and P.T.M. provides reassurance that the dedicated, enlightened and loving environment they have provided for this little girl has been overwhelmingly successful and reassuring. The child is doing well in school, socially, and emotionally.

n. The aunt and uncle’s affidavit also reassures me that they have always acted in good faith with respect to the parents and their place in A.R.D.’s life. I accept their representations that they are prepared to work with the parents and facilitate ongoing access, when it can be done safely. The parents have repeatedly been told what they need to do and what A.R.D. needs. It’s up to the parents to decide whether they have the desire and commitment to pursue future opportunities with their daughter.

[13] The OCL fully supports the requests in the summary judgment motion.

a. Mr. Higginson advised he has interviewed the child on multiple occasions since March 2019. Her views have always been clear and consistent.

b. A.R.D. has repeatedly stated that she enjoys living with the aunt and uncle. She is very happy in their home and she wants to remain part of their family.

c. A.R.D. has experienced a lot of stress – stomach upset, nerves, hives – in relation to having access to her parents in the past. She wants to see her parents in the future as long as the visits are not stressful or upsetting. For the moment she is only feels comfortable having video contact with her parents.

ANALYSIS:

[14] As stated, C.M.M. and P.T.M. have brought a motion pursuant to Rule 16 of the Family Law Rules (“the Rules”) which sets out the circumstances and methodology by which the court may determine issues by way of summary judgment, effectively dispensing with the requirement of a trial prior to making a final order. The Rules includes the following:

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

b. The responding party must provide factual evidence demonstrating that there is a genuine issue requiring a trial. Mere allegations or denials are not enough. Rule 16(4.1);

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

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

e. If there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly. Rule 16(6);

f. The court may grant summary judgment on some issues, while ordering a trial or mini-trial on other matters in relation to which there is a genuine issue for trial. Rule 16(6.2).

[15] In Hyrniak v. Maudlin, 2014 SCC 7 the Supreme Court set out a two-stage process for summary judgment motions:

a. The court 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 subrule 16 (6.1);

b. If, after that analysis, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers (weighing evidence; making credibility findings, etc.) to determine whether a trial is required.

[16] The Ontario Court of Appeal has emphasized that in child protection cases the court must be particularly cautious about motions for summary judgment. In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the Court identified five primary considerations applicable to summary judgment in child protection cases:

a. 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.

b. 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.

c. 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.

d. 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.

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

[17] As stated, a party responding to a motion for summary judgment has a duty to set out in an affidavit specific facts upon which he or she relies. This has been referred to as a party being required to put their “best foot forward”. The court is entitled to assume that the responding party has presented all of the evidence they would be able to adduce at trial. CAS of the Niagara Region v. S.T., 2020 ONSC 727 (SCJ); Children’s Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (OCJ); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200 (SCJ).

[18] However, Rule 16(4.1) does not shift the ultimate burden of proof. Even if the responding party’s evidence does not establish a genuine issue for trial – or indeed, even if (as here) the responding party provides no evidence – 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. Kawartha-Haliburton Children’s Aid Society v. M.W.

[19] The test of “no genuine for trial” has been referred to in a number of ways. It is been equated with “no chance of success” and “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when “the outcome is foregone conclusion” or when there is “no realistic possibility of an outcome other than that sought by the applicant”. Kawartha-Haliburton Children’s Aid Society v. M.W.

[20] 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 the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. Hyrniak v. Maudlin; Kawartha-Haliburton Children’s Aid Society v. M.W.

[21] On a motion for summary judgment the Court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. Valoris for Children & Adults of Prescott-Russell v. L.A.J., 2021 ONSC 2051 (SCJ).

[22] Courts should be very cautious in granting summary judgment in child protection cases because the stakes for the family are so high and the granting of summary judgment deprives the parents of their day in court and the procedural safeguard of cross-examination of witnesses before a judge. CAS of York v. JB and GM, 2020 ONSC 7457 (SCJ).

[23] In relation to the request for summary judgment:

a. The parents have tendered no evidence. The evidence of C.M.M. and P.T.M. and the Society is comprehensive, consistent, child-focussed and uncontradicted.

b. I have been careful to exclude consideration of hearsay or other inadmissible evidence.

c. I have considered the consistency of the evidence provided by C.M.M. and P.T.M., the Society, and the information provided by OCL.

d. I have considered the circumstances under which the father never responded and was noted in default.

e. I have considered the circumstances under which the mother initially filed an Answer, and then failed to participate or respond to the summary judgment motion – despite repeated extensions of time and extra opportunities and invitations to participate and file responding materials.

f. I am confident that I can find the necessary facts and apply the relevant legal principles to resolve the issues herein.

g. I am able to make a fair and just determination without using expanded powers to weigh evidence or assess credibility.

[24] I accept the evidence that the concerns about each of the parents which led to the previous orders – and which led to the child’s current placement – have not diminished. The parents have made no discernible progress, and there is no evidence of any intention or meaningful effort by either parent to address their problems or parenting skills in the future.

[25] It is clear on the undisputed evidence that the child remains in need of protection.

[26] Section 101 of the Act sets out the orders available when a child is in need of protection. The determination must be based upon the best interests of the child. One of the options available is a custody order pursuant to section 102, as requested by C.M.M. and P.T.M., the Society and the OCL.

[27] Section 1(1) of the Act provides that the paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children.

[28] I have considered the best interests criteria set out in section 74(3). Among the factors relevant to this case:

a. A.R.D.’s strongly held and completely understandable views and preferences are a vital part of my analysis. She has repeatedly and consistently communicated to Society workers and through the OCL that she is extremely happy living with C.M.M. and P.T.M.. She feels loved and secure with them. She wants to continue to be part of their family. She wants to remain permanently with them. She has mixed feelings about her parents, and anxiety about contact with them. Currently she is only willing to have contact with her parents by video. Given her age, her life experiences, and the clarity of her views, I place considerable weight on her views and wishes. To do otherwise would risk significant emotional harm to the child. Section 74(3)(a)

b. C.M.M. and P.T.M. have demonstrated a sustained commitment to ensuring A.R.D.’s physical, mental and emotional needs. Section 74(3)(c)(i).

c. A.R.D.’s mental and emotional development was seriously undermined during periods she was with her biological parents. She has made significant progress while in the care of C.M.M. and P.T.M.. She is thriving in their care. The CAAP report sets out that some of the recommended trauma counselling could not take place until the child had permanency in her life. A.R.D.’s best interests require that she attains the necessary permanence and stability in her life, to allow her to continue to benefit from counselling. Section 74(3)(c)(ii).

d. The evidence of C.M.M. and P.T.M. and the Society workers, and the information provided by the OCL all reaffirm how important it is for A.R.D. to be in a positive, supportive, loving relationship, and to be a secure member of the aunt and uncle’s family. Section 74(3)(c)(v)&(vi).

e. Similarly, the evidence of professionals sets out the significant emotional disruption which A.R.D. has experienced, and the importance of the stability and continuity in her life which C.M.M. and P.T.M. have been providing – and which they are committed to providing in the future. Section 74(3)(c) (vii).

f. I have considered the merits of the Society’s plan (including the Plan of Care); C.M.M. and P.T.M.’s plan, compared with the merits of the child being returned to either or both of the parents. A return to either parent (individually or jointly) would be absolutely untenable and dangerous for the child. In contrast, the custody request by C.M.M. and P.T.M. is strong, proven, viable and entirely child-focussed. Section 74(3)(c)(viii).

g. Any further delay in determining A.R.D.’s situation and achieving permanency for her would be both unfair and prejudicial to the child’s emotional development and well-being. After far too much upheaval and trauma in her life she is happy and secure. She needs to be settled, physically and emotionally. She needs to know that the uncertainty is over. She is eight years old. Her only good years – her only safe and happy years – have been with C.M.M. and P.T.M.. She is still a child and she is entitled to resume her childhood without fear or uncertainty about the future. Section 74(3)(c)(ix)

h. If A.R.D. were to be removed from C.M.M. and P.T.M. she would be emotionally devastated. If she were to be returned to either parent she would be endangered. Section 74(3)(c)(x).

i. The risk in relation to each parent which justified the protection finding is quite significant, particularly for a young, vulnerable child. Section 74(3)(c)(xi).

[29] I am satisfied that the Society has made exhaustive efforts to assist each of the parents.

[30] I am satisfied that the custody proposal in favour of C.M.M. and P.T.M. represents the least disruptive alternative from the child’s perspective. A.R.D. has already had far too much disruption in her life. The order requested by the aunt and uncle will support this young child’s physical, mental and emotional development.

[31] I am satisfied that all other community or family placements have been considered, and that the plan in relation to C.M.M. and P.T.M. is by far the most logical and beneficial from the child’s perspective.

[32] Significantly, the order requested by C.M.M. and P.T.M. will allow A.R.D. to continue her ties with her biological parents – but with parameters to ensure that this ongoing contact will occur safely and in a non-threatening manner.

[33] Based on all of the evidence submitted I find that there is no genuine issue requiring a trial on any issue herein, including the appropriate disposition; the requested custody order; or the proposed provisions in relation to A.R.D.’s ongoing contact with her biological parents.

[34] Final order as requested by C.M.M. and P.T.M., but with a few modifications which are underlined.

1. The supervision Order of the Honourable Justice D. Chappel, dated July 8, 2020, shall be terminated.

2. The child A.R.D. born (date of birth deleted) shall be placed in the sole custody of the Applicant paternal aunt and uncle, C.M.M. and P.T.M., pursuant to s. 102 of the CYFSA.

3. The child A.R.D. born (date of birth deleted) shall have her primary residence with the Applicant paternal aunt and uncle, C.M.M. and P.T.M..

4. The Applicant paternal aunt and uncle, C.M.M. and P.T.M. may change the child’s ordinary residence from the City of Hamilton and will advise the Respondent parents T.E. and B.B.D. of the new location unless it is not in the best interests of the child to provide the specific details of the new address, 30 days prior to any move.

5. The Applicant paternal aunt and uncle, C.M.M. and P.T.M. may apply for and renew, and obtain and legal documents for the child such health cards, social insurance, and passports, without the consent and signature of the Respondent mother and father.

6. The Applicant paternal aunt and uncle, C.M.M. and P.T.M. may travel outside of Canada with the child without the written or verbal consent of the Respondent mother and father of the child. The Applicant paternal aunt and uncle, C.M.M. and P.T.M. will use their best efforts to provide the Respondent mother and father with details of their travel plans outside of Canada 30 days in advance.

7. Any access to the child A.R.D. born (date of birth deleted) by the Respondent parents T.E. and B.B.D. shall be in the discretion of the Applicant paternal aunt and uncle C.M.M. and P.T.M.. Such discretion shall include date, time, frequency, duration, location and supervision of access. The child’s wishes shall also be taken into account in arranging any access. If either of the parents disagrees with the manner in which the paternal aunt and uncle are exercising their discretion, the issue of access or communication with the child may be returned to court by way of a motion to change.

8. At this time, the Respondent parents shall have access by video, telephone or other agreed upon social media twice per month for up to one hour per visit.

9. The Respondent parents shall be on time for any access arranged, and should they be more than ten (10) minutes late, the access may be cancelled with re-scheduling being in the discretion of the paternal aunt and uncle.

10. The Respondent parents shall be polite and civil with all caregivers, professionals involved with the child and the child, including the Applicant paternal aunt and uncle.

11. The Respondent parents shall not expose the child to any conflict. Should the parents argue or expose the child to conflict during any visit, the visit shall be ended by the visit supervisor or the Applicants C.M.M. and P.T.M.. The child may also terminate any video, telephone or social media access.

12. No other persons may attend for access with the Respondent parents unless agreed upon in advance. Should any other party not agreed to in advance attend access, the visit shall be cancelled.

13. Neither of the Respondent parents shall attend access under the influence of any intoxicating substances and they shall not use any intoxicating substances, such as alcohol, illegal drugs, or marijuana, 12 hours prior or during any access time with the child. In the event they attend any access visit impaired by substances, the visit will be cancelled.

14. Should the Respondent parents cancel or not attend at more than three (3) scheduled access visits, the visits shall be suspended pending further order of the court.

15. Prior to consideration of any expansion of access, including supervised access in person access or unsupervised access, or a Motion to Change being brought, the Respondent parents shall each:

a) Successfully complete a drug addiction and treatment program and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program.

b) Continue to attend and follow all recommendations of their methadone doctors and service providers and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program and drug test results.

c) Provide weekly clean drug tests showing no substance use for at least three months.

d) Enroll in and successfully complete an anger management program within the last 12 months, and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program.

e) Enroll in and attend couples counselling to address the conflict in their relationship and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program.

f) Demonstrate no involvement with the police by providing the Applicant paternal aunt and uncle with a written consent to allow them to obtain updated police records for the Respondent mother and father for the preceding 12 months.

g) Maintain a safe and stable residence that is child safe and allow the Applicant Paternal aunt and uncle or their designate to view the home.

h) Follow all terms of access herein.

i) In addition, the Respondent mother shall obtain a regular family doctor and have her mental health assessed and follow any programs or recommendations of the mental health providers and provide the Applicant paternal aunt and uncle written proof thereof authored by the service provider and sign consents for the Applicant paternal aunt and uncle to speak with the service providers to confirm their attendance at and participation in the program.

16. The Catholic Children’s Aid Society of Hamilton shall be served with a copy of any Motions or Applications to change the custody or access provisions set out herein.

[35] If there are any additional issues, clarifications or proposed corrections, counsel should contact the Trial Coordinator within the next 15 days to set a time for this matter to be spoken to, by Zoom.

Pazaratz J.

Released: April 28, 2021

COURT FILE NO.: C185/15

DATE: 2021-04-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Catholic Children’s Aid Society of Hamilton

Applicant

• and -

T.E., B.B.D., C.M.M. and P.T.M.

Respondents

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: April 28, 2021