REASONS FOR DECISION

a. Himel J.

Introduction

[1] On July 23, 2019, JH (the “child”), was found to be in need of protection pursuant to Section 74(2)(b)(i) and 74(2)(h) of the Child, Youth and Family Services Act[^1] (“the Act”). The parties consented to the finding and the Statement of Agreed Facts dated July 23, 2019.

[2] The child is age 4.5 and has been in the Society’s care for 26 months.

[3] The Children and Family Services for York Region (“the Society”) brings a motion for summary judgment pursuant to Rule 16 of the Family Law Rules.[^2] It seeks an order that the child be placed in the Society’s extended care.

[4] The Society also seeks an order that the child be available for access with TH (the “Mother”) and DS (the “Father”) a minimum of once per week with the location, duration, and level of supervision at the Society’s discretion. The Society requests an order that the child be the access holder and that the Mother and Father (collectively the “Parents”) be access recipients.

[5] The Mother seeks an order placing the child in her care pursuant to a supervision order. In the alternative, the Mother seeks an order dismissing the Applicant’s motion for summary judgment, and requests an order that there be a parenting capacity assessment (“PC assessment”) conducted by Dr. Maurice A. Feldman, psychologist. He has expertise in conducting PC assessments for parents with learning disabilities.

[6] The father seeks an order adjourning the summary judgment motion for six months to allow time for the parents and the Father’s partner, (“LW”) to complete updated psychological assessments regarding their parenting abilities pursuant to section 98 of the Act. During the adjournment period he requests that the Society continue to assess the parents’ progress during their parenting time.

[7] Michael Polisuk, the panel lawyer appointed by the Office of the Children’s Lawyer (“OCL”) supports the relief sought by the Society.

[8] The Society and the OCL objected to the requested adjournment and I declined to do so.

[9] The following pleadings and 24 affidavits were filed and relied upon by the Society and the parents:

(a) the Amended Status Review Application dated December 17, 2020;

(b) an affidavit of Monica Kirby sworn January 29, 2021;

(d) an affidavit of Sonia Ferguson sworn February 1, 2021;

(e) affidavits of Kyla Maynard sworn February 1 and March 16, 2021;

(f) an affidavit of Karla Mendez sworn February 1, 2021;

(g) an affidavit of Julbee Parisien sworn February 3, 2021;

(h) an affidavit of Linda Sawhney sworn February 3, 2021;

(i) affidavits of Stephanie Booth sworn February 4, March 10, April 12 and 16, 2021;

(j) an affidavit of Asgarali Mandan sworn February 4, 2021;

(k) an affidavit of Lindsay Chaplin sworn March 12, 2021;

(l) an affidavit of Vicky Caruana, sworn April 5, 2021;

(m) affidavits of the Father sworn April 6 and 28, 2021;

(n) an affidavit of LW sworn April 6, 2021;

(o) an affidavit of the Mother sworn April 6, 2021;

(p) affidavits of Tiffany Chung sworn April 6 and 7, 2021;

(q) an affidavit of R. Clive Algie sworn April 8, 2021;

(r) an affidavit of Jody Hughes, April 13, 2021;

(s) an affidavit of Marcia McCready sworn April 28, 2021 (including her report);

(t) the Father’s Answer and Plan of Care dated February 6, 2020 and his updated plan;

(u) the Mother’s Answer and Plan of Care dated January 15, 2020 and her updated plan;

(v) the parenting capacity assessments by Dr. Betty Kershner dated January 28, 2018; and

(w) the Society’s motion for summary judgment dated February 6 and amended March 5, 2021.

Background

[10] Following the child’s birth in 2016, he resided with the Mother and her former foster mother until March 2019. On February 28, 2019, the Mother agreed that the child be placed in the care of the Society although she did not intend for the placement to be permanent. At that time the Mother was transitioning her residence from that of her former foster mother and into a shelter. She was unable to take the child to the shelter.

[11] In 2017 both parties engaged in PC assessments with Dr. Betty Kershner. They were planning to care for the child together, or on their own. Neither assessment (which were delivered on January 28, 2018) yielded a recommendation that the parents, or one of them, could meet the child’s needs.

[12] In July 2019, the parties agreed to the protection finding.

[13] On November 6, 2019, the child was diagnosed with ASD (autism spectrum disorder) and global developmental delays. He continues to display high-needs and is non-verbal.

[14] The child currently resides in his fourth foster home. There are various reasons that the foster homes broke down including but not limited to: the child’s high needs, one foster home being too far away from the parents, challenges relating to parenting the child and difficulties accessing resources during the Covid-19 pandemic.

[15] All parties recognize that the statutory timelines expired (in March 2020). They agree that the child requires a permanent plan that is founded on stability and routine, and parenting that is attentive to the child’s needs. There is also consensus that the matter proceed to trial in September 2021 (approximately four months from today), if the summary judgment motion is unsuccessful.

Decision

[16] To succeed on a summary judgment motion, the Society must prove on a balance of probabilities that there is no genuine issue requiring a trial. “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”[^3] or when there is “no realistic possibility of an outcome other than that sought by the applicant.”[^4]

[17] I have given careful consideration to each party’s position, the timelines, the legislation and the caselaw. I cannot conclude on the admissible and relevant evidence before me that there is no genuine issue requiring a trial in respect of the following issues: (1) the Father’s plan for the child to be placed in his care; (2) the Father’s access; and, (3) the Mother’s access. For that reason, the Society’s motion is dismissed. The matter will proceed to trial in September 2021.

The Law

Summary Judgment

[18] A summary judgment motion can fulfill two very important objectives in child protection proceedings. It enables the court to make an expeditious, less expensive and a proportionate disposition of a case and provides closure and direction to the children involved and their parents.

[19] The procedure governing a motion for summary judgment is codified in Family Law Rule 16, the relevant provisions of which provide:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

(l) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (l).

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6. l) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parents, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

Weighing the evidence.

Evaluating the credibility of a deponent.

Drawing any reasonable inference from the evidence.

[20] As stated by the Supreme Court of Canada in Hyrniak v. Maudlin,[^5]

To succeed on a summary judgment motion, an applicant must prove that there is no genuine issue for trial on a balance of probabilities. “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”.

[21] In Kawartha-Haliburton Children’s Aid Society and M.W., Curve Lake First Nation and Office of the Children’s Lawyer,[^6] (“Kawartha-Haliburton CAS”) the Ontario Court of Appeal affirmed the longstanding and cautious approach to summary judgment in child protection proceedings and summarized its guiding principles:

To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

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.

[22] A two-step analysis is required. The judge must first determine if there is a genuine issue requiring a trial on the evidence without using the additional fact-finding powers set out in FLR 16(6.1). If, after this initial determination, there remains a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary.

[23] Overarching the court’s assessment of the evidence is the matter of the children’s best interests. Section 74(3) of the Act requires the court to prioritize those interests and mandates that the court shall:

Best interests of child

(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.

[24] The child’s best interests must be also be considered in the context of the relief claimed by the Society. The Society has requested an extended care order.

Extended Care Order

101 (1) 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 or an order under section 102, in the child’s best interests:

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

Community Placement to be Considered

101 (4) Before making an extended care order the court must consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family subject to a supervision order with consent of the relative or other person.

Access order

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

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.

When court may order access to child in extended society care

(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.

Additional considerations for best interests test

(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.

Court to specify access holders and access recipients

(7) Where a court makes or varies 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), the court shall specify,

(a) every person who has been granted a right of access; and

(b) every person with respect to whom access has been granted.

Discussion and Analysis

1. Is There a Genuine Issue Requiring a Trial on the Evidence?

a. The Society’s Request for an Order for Extended Care

[25] The Society submits that there is no other outcome than extended care for the following reasons:

(a) the child is so vulnerable that he requires more than one caregiver and a placement that is calm, highly attentive, and provides structure and routine. The child needs a high-functioning parent who will be attuned to his needs and be available, physically and emotionally, to meet those needs;

(b) the parents and LW have past child welfare histories, parenting issues, and engagement with the criminal justice system (excluding the Mother). They each have ongoing parenting deficiencies that have not been addressed (before or during) the 26 months that the child has been in care; and

[26] The mother disagrees that she cannot parent the child alone (with her support network) or that she has not/is not addressing the child protection concerns.

[27] The father disagrees that he and LW have not/are not addressing the child protection concerns, or that their parenting plan will fail to meet the child’s needs.

The Child’s Needs and Best Interests

[28] The current foster mother, who is highly experienced and well educated in the field of child development, describes the child’s needs. He requires assistance every day with handwashing, brushing his teeth, bathing and diaper changing. The child cannot be left alone in the bath, and requires constant supervision, in the home and in the community. He is a safety risk and may run into traffic or leave with a stranger. As he grows bigger his needs will be more difficult to manage.

[29] She believes that the child’s caregivers will need to positively interact with numerous professional supports and advocate for his funding and programs. The child requires caregivers who are resourceful and understand the incremental improvements he is likely able to make. Taking the child to appointments is quite physically challenging.

[30] The Society submits that the three placements broke down because the child’s needs are so extensive that fully trained, skilled, and dedicated foster parents were unable to manage his behaviour long term, despite being the only foster child in the home.

[31] A review of the Society’s evidence contradicts the statement above. The first foster home placement (commencing February 28, 2019) broke down because the Society opted to place him outside of York Region and subsequently opted to move him closer to his parents. The second foster home (March to September 2019) could not manage the child’s behaviours which included: screaming, head banging, and jumping at all hours of the night. The foster parents had three of their own children in the home. The third foster home (September 2019 to June 2020) broke down because there was no available respite or childcare (due to Covid-19) and the child’s needs were more than the parents could meet. Some of the reported challenges include: the child’s sleep issues (yelling and waking in the middle of the night), screaming at bath time, climbing on everything and spitting everywhere. The child moved into the current foster home in June 2020. The foster parents have no intention of putting forward a permanent plan for the child.

[32] The child has experienced various changes since June 2020. His sleep has dramatically improved at the foster home (and at the father’s home), he attends school daily (which is a form of respite for his caregivers) and his ability to communicate has improved.

[33] The best interest analysis incudes (but is not limited to) a consideration of the following factors:

(a) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, and the child’s physical, mental and emotional level of development. The child’s profound special needs have been described above;

(b) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family and 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. Various access notes (FIT worker, Society and Bartimaeus Child and Youth Worker (“CYW”)) provide various examples where the child reacts positively to both parents and LW. The child has considerable access with his family every week including: one afternoon and one weekend day with the Mother; two afternoons and one overnight with the Father;

(c) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, and 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. Irrespective of the outcome of the case, the child will be moved once again. Given the child’s high needs, there is the risk that the next move, to an adoptive home or to either of the parents, will also break down;

(d) the effects on the child of delay in the disposition of the case. Any further extended delay to the achievement of a permanent plan is problematic. However, the delay must be weighed against the court’s need to ensure that a decision (or an agreement made by the parties) meets the child’s best interests. In this instance, the trial will be heard in approximately four months; and,

(e) the risk that the child may suffer harm through being returned to the care of a parent, and the degree of risk, if any, that justified the finding that the child is in need of protection. As set out below, the absence of recent psychological assessments/parenting capacity assessments impedes the court’s ability to assess risk including the risk of placement breakdown.

[34] I decline to accept the submission made by the Office of the Children’s Lawyer that an extended care order with access (at a minimum of once per week) is “the best of both worlds.” Following an order for extended care the Society is expected to find an adoptive home. If they are successful access will likely be replaced with openness (if agreed to by the adoptive parents or as ordered by the court). Openness, as compared to access, is often limited to a few in-person contact visits per year and/or the exchange of pictures, gifts and written updates.

[35] Given the child’s connection to his parents, his needs and the other factors set out above, there are triable issues about the extended care and the access orders that outweigh the concerns respecting the timelines. The child spends time with the Father and LW during three access visits per week, and with the Mother (who has her own plan and who is part of the Father’s plan) during two supervised visits per week. LW’s two children reside with the child overnight on alternate Saturdays and, as set out below both families have extended family members interested and willing to assist with his care.

[36] The child’s profound special needs present a double-edged sword in any assessment of the “best plan” - the ASD and global delays diagnoses (which are reflected in the child’s behaviours, his limitations and the safety concerns) will make it more difficult for the Father or the Mother to care for the child. The child’s high needs will also make it more difficult for prospective adoptive parents to care for the child and may limit the pool of interested and suitable families. As stated above, any placement may break down. On a summary judgment motion it would be inappropriate (and impossible) to assess the relative strength or weakness of the ties that will bind the child to his family (biological or adoptive).

[37] I turn now to the second issue.

[38] Is it plain and obvious that both of the parents’ plans will fail? Is there a triable issue in respect of either plan being able to meet the child’s best interests?

The Mother’s Plan (the Child be Placed in her Care)

[39] From the Society’s perspective, Dr. Betty Kershner’s PC assessment dated January 28, 2018, provides clear evidence that there is no genuine issue requiring a trial in respect of the Mother’s plan.

[40] The Society summarizes the key findings in Dr. Kershner’s PC assessment, as follows:

a. the Mother’s Wechsler Adult Intelligence Scale was 0.5th percentile in the range of Developmental Delay;

b. the Child Abuse Potential Inventory (CAP) – The Mother’s protocol was categorized as Invalid due to her high score on the Lie scale;

c. Parent Awareness Skills Survey (PASS) – The Mother’s responses “tended to be overly simplistic” and “tended to show caring”. Scores 7 or higher are considered invalid. The Mother’s Score was 13;

d. it can be expected that the Mother’s own limitation would limit her ability to respond to the complex emotional needs of any child; more so to a child with special needs; and

e. in some ways the Mother and the Father (who presented a plan together and/or alone) share some of the same short comings: failure to identify, acknowledge and address situation or factors that are problematic, misinterpretation of what is going on due to distortions caused by emotions taking priority over reason, satisfaction with a somewhat superficial level of relationship, and lack of insight or motivation for change.

[41] The Mother correctly identifies that Dr. Kershner’s PC assessment is dated and states that it is not designed for individuals who have developmental delays. She requests that an assessment be conducted by Dr. Freedman. She attests that Dr. Freedman has developed a modified approach to doing PC assessments to determine the needs and capabilities of parents with developmental delays (including learning disabilities).

[42] The Mother submits that Dr. Kershner underestimated her parenting skills as exhibited by the extensive parenting responsibilities that she undertook while residing with her former foster mother. This includes care for the child (from birth to age 2.5) and care for foster children in the home (whose needs included ASD or Downs Syndrome).

[43] The Mother’s formal education ended at grade 9. She is in receipt of ODSP and does not work outside of the home. The Mother has taken courses on ASD, and has joined Facebook groups for parents with autistic children.

[44] I accept that the Mother has skills (including those not anticipated by Dr. Kershner’s PC assessment) such as the ability to live on her own and attend access regularly. The recent Child in Care Enrichment Service Assessment (“CCES”) includes positive notes relating to the Mother’s interactions with the child during the observation session. The clinician’s report states that the Mother’s emotional responsiveness was very good, supervision was not a challenge, she watched the child appropriately and could adapt when the child lost interest in an activity.

[45] During the session, the Mother was able to complete all of the tasks in the Marschak Interaction Method (MIM assessment), which is a structured technique for observing and assessing the overall quality and nature of relationship between caregivers and child.

[46] However, the gains set out above and the one-time observation by the clinician are not sufficient to conclude that there is a triable issue in respect of the Mother’s ability to be the child’s full-time primary caregiver.

[47] The FIT worker met with the Mother for approximately one year and concluded that she was unable to learn the skills that were being taught. The Mother was unable to identify safety concerns and risks notwithstanding the intensive efforts made by the FIT worker.

[48] As early as June 2019, the use of visual aids were raised with the Mother. The FIT worker and Early Intervention were unable to persuade the Mother/teach the Mother to use visual aids (including the use of picture cards (PECS)) to provide the child with a voice. The Mother chose not to participate in the More than Words program in Fall 2020, whose focus was on PECS. The Mother’s failure to recognize (until recently) the non-verbal child’s significant need to have a form of communication is concerning.

[49] Safety issues (including the child putting a car in his mouth and being hit by a door) may be one-off incidents that perhaps the Mother can learn to avoid, however, the risks will evolve over time and may increase as the child gets physically bigger.

[50] The Mother’s access was previously held at the Society’s offices. The access supervisors noted issues relating to missed visits, timing (too early, too late), disorganization (losing her phone and wallet on different visits), forgotten supplies for the child and a misunderstanding of the child’s cues and common sense situations.

[51] In February 2021, with the Society’s assistance, the Mother arranged for support from Starfish Parenting Supports (“Starfish”), an organization that provides support to parents with cognitive challenges to care for their children in a healthy and safe way. The staff attend at the Mother’s home and supervise her access. The Mother has supervised access to the child one weekday for two hours and one weekend day for 5.5 hours. The Society provides transportation for the child and supervises the access when a Starfish staff is not present.

[52] The access is going well. The two supervised access notes filed by the Mother confirm that she does continue to require prompting and supports to ensure the child’s safety. The executive director attests that the child smiles, hugs and laughs with the Mother. The staff are working with the Mother to use visual prompts.

[53] The Mother’s parenting plan includes intensive oversight by Starfish, at an annual cost of approximately $14,000. There is no guarantee of funding on an ongoing or indefinite basis, and the child’s funds (payable to a caregiver on account of his ASD diagnosis) are intended to be used for his therapies rather than as support for the Mother.

[54] Aside from oversight by Starfish, and some measure of support from family members/friends, the Mother’s plan is one of sole caregiving. I accept the statements made by various foster mothers that one caregiver cannot meet this child’s needs.

[55] In terms of his education, the Mother’s plan is to move the child from his life skills special needs class (four students and three students) in York Region to a daycare in Durham and she will take steps to obtain a subsidy.

[56] The affidavit evidence of three foster mothers (all of whom have extensive experience fostering and/or have diplomas/degrees in child development and training in ASD), highlight the challenges that one faces when caring for the child. A second foster parent resides in each of their homes. The child cannot be left alone. The foster mothers identify that any caregiver will require a lot of support, skills, strategies, relief care and training in ASD. They report a significant number of medical and therapeutic appointments which take place outside of the home. The child’s behaviour makes it difficult to take him to these appointments.

[57] The timelines set out in the Act require that the child be placed with a parent or that an order for extended care be made. The leap from professionally supervised access to sole primary caregiver is too great, and the risks to the child too significant.

[58] Therefore, while I accept the Mother’s argument that the court ought not rely on her intellectual disability as the reason to place the child elsewhere, I must conclude that the Mother’s plan for primary care is not a genuine issue requiring a trial. The child’s very high needs, the Mother’s challenges and the details of her plan lead to no other reasonable outcome than the Mother will be unsuccessful at a trial.

The Father’s Plan (the Child be Placed in the Care of Himself and LW)

[59] From the Society’s perspective, Dr. Kershner’s PC assessment dated January 28, 2018, provides clear evidence that there is no genuine issue requiring a trial in respect of the Father’s plan.

[60] The Society summarizes the key findings in Dr. Kershner’s PC assessment, as follows:

a. a previous PCA was completed by Dr. Oren Amitay, in or about 2008, where Dr. Amitay concluded that while the Father lacked the capacity to parent appropriately, he might learn eventually, over a prolonged period of time. Dr. Amitay noted that the Father might warrant a diagnosis of Antisocial Personality Disorder noting his apparent lack of remorse, inclination to minimize and rationalize, and failure to appreciate the impact of his behaviours. His good cognitive abilities suggested the potential for learning new skills if sufficient motivation was present. Dr. Amitay concluded that the Father did not present the capacity and emotional maturity to safely and appropriately care for his child (pages 4 and 6);

b. in 2007, the Father had 27 adult convictions, in addition to youth involvement. He spent time in jail and in a psychiatric facility (page 5);

c. the Father’s Wechsler Adult Intelligence Scale – Fourth Edition (WAIS – IV) was 39th percentile in the range of Average. He has strong memory skills helpful for a parent (page 18);

d. he sees little reason for change and has little interest in treatment despite recognition that there are multiple areas in his life that are not going well (page 20). Suggested diagnosis (for consideration only) include: Bipolar I and Antisocial Personality Disorder;

e. the Child Abuse Potential Inventory (CAP) – The Father’s protocol was categorized as Invalid due to his high score on the Lie scale. Scores 7 or higher are considered invalid. The Father’s Score was 8 (page 21);

f. Parent Awareness Skills Survey (PASS) – The Father’s responses tended to mostly take a directive and educational approach;

g. he is very good in his interaction with his son: warm, affectionate, responsive to his cues, alert to his safety and needs;

h. the Father is able to bring out more of the child’s self-expression, exploratory behaviour, and social interaction; and

i. in some ways, the Father and the Mother share some of the same short comings: failure to identify, acknowledge and address situation or factors that are problematic, misinterpretation of what is going on due to distortions cause by emotions taking priority over reason, satisfaction with a somewhat superficial level of relationship, lack of insight or motivation for change.

[61] The Father, like the Mother, correctly identifies that Dr. Kershner’s PC assessment is dated. It relies on a prior assessment that is now 13 years out of date, makes reference to possible psychiatric diagnosis, and states that the Father resided in a psychiatric facility (which he denies). Dr. Kershner’s PC assessment predicts that the Father will not exercise access consistently to the child, which prediction is incorrect.

[62] A significant issue related to the dated nature of the Kershner PCA is that the report (which is over three years old) was completed when: (1) the Father and Mother were planning for the child together and/or alone; (2) It pre-dates the Father meeting LW, with whom he has been in a relationship since 2019; and (3) It pre-dates the child being diagnosed with ASD and global delays.

[63] As determined in CAS of Toronto v. S.C.,[^7] a psychological assessment is not determinative of a parent’s ability to parent. The assessor does not have the benefit of the full evidentiary record that the judge has. These reports, by their very nature, are predictive. They are just one piece of evidence. It is important for the court to evaluate how the findings do or do not correspond with the other evidence presented.

[64] The Kershner PC assessment presents a triable issue. The Father (and the Mother) require the opportunity to cross-examine Dr. Kershner in order to challenge the evidence (hearsay, opinion and otherwise) and the dated nature of same.

[65] The Society also relies on CCES Report dated March 12, 2021. That assessment was not created for court purposes but to address the child’s functioning, family dynamics, strengths and challenges as one way to inform the Society’s planning for the child. In addition to direct observations of the child, the clinician obtained information from the Society, parents, foster mother and the child’s special education and resource teacher. All sessions were conducted over the phone and/or through videoconferencing because of the Covid-19 pandemic.

[66] The Society’s decision not to pursue new PC assessments/psychological assessments followed the issuance of the CCES Report (and contradicts their earlier plan of February 2021 to obtain same).

[67] The CCES Report provides various opinions and relies on Dr. Kershner’s PC assessment for its history. At the summary judgment motion the Society conceded that they are not taking the position that the clinician who drafted the report is an expert. As a consequence, I must disregard all of “expert” opinion evidence contained therein.

[68] The clinician conducted one observation session with the Father and child on March 3, 2021. She observed the following concerning behaviours:

(a) the Father had challenging emotional responses to the child;

(b) the Father had a hard time supervising the child;

(d) the Father struggled to understand the child’s needs but had some knowledge of some service options;

(e) the Father was becoming frustrated, which was impacting the child;

(f) there were concerns around lack of nurturing and joyful engagement between the Father and child;

(g) the Father became so frustrated that the observation session was ended early; and

(h) the Father could be hard to engage with during sessions as he did not want to talk about his past or history.

[69] The Society argues that the observations set out above interfere with the Father’s ability to provide attentive and appropriate care for the child, and also follow a pattern in respect of the Father’s inability to manage his emotions and his anger. This is particularly problematic when considering the Father’s ability to parent in relation to this high-needs, emotionally sensitive, non-verbal child. However, the court must be cautious about drawing conclusions from the sole father-child session as there may be a wide variety of reasons that the one (virtual) meeting with the clinician did not go well.

[70] The Society submits that I must consider the totality of the evidence in the determination as to whether the Father’s plan is one that requires a trial. In doing so I note that the some of the evidence about the Father’s actions/inactions does not lead me to the conclusions requested by the Society. For example, I am not prepared to make adverse inferences/findings about the Father’s ability to care for the child on the basis of the following concerns:

(a) the Father has cancelled visits – As required by Covid-19 protocol and the Society, visits were missed on account of health-related issues;

(b) the Father has never cared for the child for more than one overnight. He has failed to bring a motion to increase his overnight access. – The Society is obliged to continually review and adjust a parent’s time with the child, particularly where placement is a goal;

(c) the Father and Mother have a conflictual relationship – There is no evidence that the Society proposed child protection mediation or a family group conference. Both services provide parents, extended family members, and professionals the opportunity to come together and resolve issues; and

(d) the Father does not participate in arranging, scheduling or transportation for appointments. They opt in or out of attending appointments – The child is in the Society’s care. Their parenting responsibilities including taking the required steps to meet the child’s needs. To the extent that the Father’s work or school schedule impedes his involvement in appointments, one should consider his ongoing need to support (and improve) himself. The Father will not qualify for government assistance (including special needs funds, benefits and tax credits) to enable him and/or LW to reduce their workload unless the child is placed with them.

[71] There are various impediments to the Father’s ability to parent this child, which he may or may not be able to overcome. Given the considerations set out above and below, I cannot conclude that there is no genuine issue requiring a trial.

[72] The following are triable issues in respect of the Father’s plan:

(a) the Father and LW’s ability to care for the child for more than one overnight per week. The Bartimaeus CYW’s notes are generally positive and set out important gains in the first two and half months of their involvement (including in respect of the child’s sleep patterns). She expresses concerns that the caregivers lack resourcefulness and underestimate the challenges of raising a high-needs child (along with their other responsibilities). The worker attests that she would be curious about the level of fatigue impacting the strategies, and emotional regulation after three or four nights of having the child in their care. However, the Father’s request for extended time has been denied by the Society so this important evidence is missing;

(b) the significance of the Father’s child protection and criminal history on the Father’s current and future ability to care for the child. On or about August 11, 2020, the Father was charged with uttering threats to property and mischief. The Father and LW had care of the child that night. The Father denies that the child was present when he removed and burned the Indigenous Lives Matter signs. However, even if the child was not present, this incident is relevant to the Father’s judgement, his willingness to address past trauma, his ability to prioritize the child’s needs over his own emotions and his reactivity/anger. On April 8, 2021 the Father plead guilty to the criminal charge of mischief under $5,000 for the sign burning. The Father was sentenced to home confinement for four months and anger management (and counselling, if directed by his supervisor,) as terms of the conditional sentence order. With respect to the Father’s historical involvement with the criminal justice system, most of the charges pre-date 2013. Aside from the above incident, the only other recent charges relate to a traffic infraction that is currently before the provincial offences court;

(c) the role of LW in the Father’s plan. While the Society cites LW’s child protection and criminal history as obstacles to her ability to care for the child, I recognize the following. LW has had regular alternate weekend, evening (until her move) and holiday access with two of her children since 2016. LW has no ongoing involvement with any Children’s Aid Society with respect to her children. LW’s contact with the criminal justice system primarily relates to domestic violence with prior partners, and ongoing custody and access issues with her children’s father. LW and the Father have been in a relationship since 2019, and there is no evidence of any domestic violence (including no occurrence reports from the police);

(d) concerns respecting the Father’s ability to engage with professionals and participate in educational programs. The Father acknowledges that his own child protection history (as a child and parent) results in his distrust of the Society. He also acknowledges that he has not been actively involved in the child’s medical and other appointments. He explains this fact as being related to his work and school schedule, coupled with the fact that the child resides at the foster home. The Bartimaeus CYW’s notes (November to January 2021) provide positive evidence that the Father (and LW) can work with therapists and other professionals. They are doing well with the coaching and strengths based approach taken by the access supervisor. However, as of the date of the Bartimaeus CYW’s affidavit (February 3, 2021), the Father and LW had not used photos and visual aids to interact with the child. These tools (including PECS) were recommended by the Society in 2019, and more recently by the Bartimaeus CYW. Given the benefits of providing the child with a form of communication, this is concerning. I note that the Father and LW have participated in various educational sessions over the past year, including More than Words (they each attended some of the sessions which took place from September to December 2020). The Father’s uncontradicted evidence is that he and LW have taught the child some sign language and have created visual cards to assist with communication.

The Bartimaeus CYW attests that the efforts made by Father and LW to learn to be better parents are exemplary (A++). They are generally able to implement her recommendations (which include parenting strategies, safety measures and routines). She cites various challenges that the Father and LW may face. The Bartimaeus CYW believes that the Father and LW would contact the Society if something did not feel right or if the child was hurt. She attests that, with supports in place, it would be possible for the Father and LW to provide for the child’s basic needs;

(e) deficiencies in the Father’s plan. The Society queries how the Father and LW can work full-time while meeting the child’s needs including various medical and therapeutic appointments. They also question how the child will be transported to and from school (as the Father recognizes the value of keeping the child at his current school where he is placed in a Communication-Autism Placement Special Education class). The Father recognizes that any viable plan should include therapeutic school/daycare, strong supports and respite for caregivers.

The Father acknowledges that there are further details that need to be worked out, including the possibility of funding to assist with the child’s care or to enable one caregiver to work fewer hours (funding that they cannot obtain until the child is placed with them). LW is employed as a personal support worker and has flexibility in her employment. The Father is currently working overnight in a factory and is taking steps to complete the final educational level to obtain his mechanic’s licence; and

(f) the Father’s intention to involve the Mother in his plan by agreeing to joint consultation and by offering up to three weekends per month of access. The parties have a conflictual history and an inability to communicate. However, they have a common goal of preventing the child from being the subject of an extended care order, and adoption. There is no evidence that the parties or the Society have considered or implemented child protection mediation or a family group conference to address their co-parenting and communication skills.

[73] The challenges to the Father’s plan should be explored by PC assessments (for him and LW), and perhaps by a psychiatric assessment. The absence of this important evidence is a significant gap. The opportunity to provide direct evidence on the issues raised by the Society, and the opportunity for cross-examination of the Society’s witnesses and expert witnesses are fundamental to the principles set out in the Act and the Family Law Rules.

[74] The legal considerations regarding summary judgment motions in child protection proceedings, and in particular, the evidentiary standard required, were recently summarized by Justice Stanley Sherr in the decision Catholic Children’s Aid Society of Toronto v. C.G. and D.S.[^8], Justice Sherr explains the following at paragraphs 8 to 14 of that decision:

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. The onus is on the society to show that there is no genuine issue requiring a trial. See: Children's Aid Society of Hamilton v. M.N., 2007 13503 (ON SC), [2007] O.J. No. 1526 (SCJ).

Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. See: C.R. v Children's Aid Society, 2013 ONSC 1357.

The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out principles for courts to apply in determining motions for summary judgment. The following principles set out in Hryniak are pertinent to this case: “Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).

Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).

A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

[75] I have taken a hard look at the merits of this case and there are several genuine issues that require a trial.

b. The Society’s Request for an Order Decreasing the Child’s Access with Each Parent

[76] As stated previously, the Mother has supervised access to the child twice per week. The Father has access to the child two afternoons and one overnight each week.

[77] The Society acknowledges that the child’s relationship with each parent is meaningful and beneficial. That conclusion aligns itself with the recent Ontario Court of Appeal decision. In Children’s Aid Society of Toronto v. J.G., [^9] (“CAS v. J.G.”). section 105(6) of the Act is explained as follows:

a) a rigid approach based on the requirement that access must be “significantly advantageous” for the child is no longer applicable. Access to a child in extended Society care needs to be viewed through a global best interest test;

b) the new access test permits the court to conduct a more holistic and comprehensive analysis of what is best for a child;

c) a child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies; and

d) in considering whether a relationship is beneficial and meaningful the court can consider any factor, whether past, present or future (child’s best interest are not static). This would include the prospect of an openness order.

[78] The proposed significant decrease in parenting time (to a minimum of one visit each week (which may be held virtually)) with the level of supervision at the discretion of the Society is a triable issue.

[79] The access issue takes on particular significance given the Society’s request that only the child be the access holder, which would impede the parents’ ability to commence openness applications in the event that an extended care order is made and the child placed for adoption.

[80] As stated previously, contact pursuant to an openness order (which is often limited to a few in-person contact visits per year and/or the exchange of updates, pictures and gifts), is different from access.

[81] The minimum amount of access, the schedule and the access holders are all triable issues. Even if I had found in favour of the Society regarding extended care, my conclusion in respect of the access issue would not change.

ii) Do the Additional Fact-Finding Powers Enable Me to Decide if a Trial is Required?

[82] The second stage in the test set out in Hryniak provides that a judge may resort to additional fact-finding powers to decide if a trial is required. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary.

[83] The gaps in evidence render it impossible for me to exercise this discretion and, as such, I decline to do so. The most glaring gaps are as follows: (1) the PC assessments are out of date; (2) there is no PC assessment of LW, notwithstanding the Society’s concerns respecting her ability to care for the child and LW’s willingness to participate in same; and (3) the affidavit of the Bartimaeus CYW is dated. She attends at the home every week, is employed for a neutral third party organization (rather than the Society) and has developed a good working relationship with the Father and LW. It is unclear why there is no evidence (in the form of an affidavit and/or access notes) after January 30, 2021, to support or refute the gains and/or challenges faced by the caregivers including their ability to follow recommendations and improve their skills. It would be inappropriate to weigh this evidence given that there are no updates from February, March or April, 2021.

[84] The court expects the parties to take the necessary steps to ensure that the relevant, necessary and reliable admissible evidence is before the court at the trial in September 2021. This includes:

(a) new PC assessments/psychological assessments of the Father and LW;

(b) a psychiatric assessment of the Father, if the Society deems same as necessary;

(c) updated evidence from the Bartimaeus CYW, for the period of time from February to the deadline for the delivery of the Society’s affidavits;

(d) evidence about the Father’s ability to care for the child for periods of at least three or four days, which can only be obtained if the Society increases the access (this should not depend on the Father bringing a motion as the Society is obliged to consider and re-consider every parent’s access. However, a motion may be brought if necessary);

(e) evidence of any steps taken by the Father and/or LW to attend the child’s appointment and engage with therapists, doctors, teachers and other professionals;

(f) a psychological assessment of the Mother (preferably by someone who has expertise in assessing individuals with developmental or intellectual delays). The assessment should focus on whether the Mother can care for the child on an unsupervised basis, for what periods of time and what steps need to be taken, if any, to enable her to have unsupervised day or overnight parenting time;

(g) a detailed plan from the Father including: any government or other benefits that may provide financial assistance; the anticipated work schedule for the Father and LW (or any plan to be a stay-at-home parent); any plan for self-care and respite; the plan to transport the child to and from the current school or another suitable school placement closer to his home; evidence about the individuals who will support the Father, including details respecting the form of assistance and confirmation as to whether they have passed the vulnerable sectors test; and

(h) evidence about whether the parents attended for child protection mediation or family group counselling, and whether the process enabled them to improve their communication and co-parenting skills.

iii) The Timelines Issue

[85] Reference to the timelines issue has been raised earlier in this decision as a component of the best interests tests. However, given the importance of this issue and the fact that the child has been in the Society’s care for well beyond the one year permitted by the Act, I feel compelled to add the following statements.

[86] On a summary judgment motion, the court must consider the strict timelines governing the child protection procedure under this section and also the best interests of the child in determining whether a genuine issue requiring a trial exists.[^10]

[87] The Society and the OCL advocated for the need of the court to make a decision at this juncture, given the child’s need for a permanent plan and the requirements set out in the Act.

[88] However, notwithstanding that the timelines set out in the Act were not impacted by the 2020 suspension of limitation periods,[^11] we cannot ignore the direct and indirect impact of the Covid-19 pandemic on the child protection system.

[89] Parents and children lost months of parenting time, in-person visits transformed into virtual access, and in-person assessments, treatment and counselling proved problematic.

[90] The timelines in this case expired in March 2020, just before the global pandemic and the complete shut-down of society as we know it.

[91] The impact of the Covid-19 pandemic on this family includes: (a) the suspension of both parents’ access from March to July 2020; (b) the Father’s counselling took place virtually (which he states was not productive); (c) a disinclination by the Mother’s preferred assessor to conduct the requested psychological assessment unless she is fully vaccinated; (d) the Father lost his longstanding job at an auto repair center and decided to return to school. He obtained work at a factory; (e) the parties were unable to attend certain educational programs or meetings on an in-person basis; (f) access to the court was materially limited; (g) the OCL was appointed in or about April 2020; (h) any impact on the child’s treatments and school attendance; and (i) the CCES assessment was conducted by telephone/through videoconferencing.

[92] The Father and LW put forward their plan to jointly care for the child in early 2020. LW moved into the Father’s home in March 2020. They became more engaged in programs, working with the Society and third party professionals during the pandemic. They have taken the Triple P program virtually, attended ASD related programs virtually and engaged in meetings including intake meetings with York Support Service Network and Children’s Treatment Network (which may or may not have been virtual). I take judicial notice that life before and after the commencement of the pandemic is dramatically different with unanticipated challenges.

[93] I note that the Father’s parenting time was changed in February 2020 from in-office access (where there were no concerns) to access in his home. All access was suspended in March 2020. Overnight access commenced shortly after the re-instatement of in-person access in July. The Father’s criminal charges, which flowed from the August 2020 incident, suspended his overnight access. A FIT access assessment was completed in early October 2020, however, the engagement of the Bartimaeus CYW was delayed until mid-November.

[94] The Father’s overnight access, which began in November 2020, may have commenced months earlier and be expanded by now, but for the pandemic.

[95] The current state of this legal case and this family’s plan for reunification may have been at a different point today, if Covid-19 did not exist.

[96] I recognize that the above statements are speculative. However, it would be inappropriate to consider the timelines issue without reflecting on the affects of the global pandemic.

[97] While I am mindful that the child’s need for a certain future is important so is his right and the parents’ right to have this case, which does not have a plain and obvious result, heard on its merits.

[98] The expiry of the timelines is not determinative of the child’s best interests. It is one factor that I have considered amongst the balance of the relevant considerations in this case.

Conclusion

[99] The caselaw and the Act require a Society to “jump through hoops” in order to attain success in a summary judgment motion, as follows:

(a) In order to build the required evidentiary record, a Society must continually assess potential plans and provide appropriate services and support.

(b) The Society must meet the test set out in Kawartha-Haliburton CAS, which raised the bar for summary judgment motions, particularly where extended orders are being sought.

(c) Where the requested order attempts to limit and/or terminate access, the Society must overcome the test in CAST v. J.G., which lowered the bar for parents in respect of beneficial and meaningful access.

(d) Following the Divisional Court’s recent decision in, J.S.R. v. Children’s Aid Society of Ottawa[^12], the court may no longer grant an order that the Society have the discretion to determine the type, frequency and duration of access, including whether access will take place at all. In this case, where the child sees the parents (collectively) one overnight, one weekend day and three afternoons, the requested access order (a minimum of one visit per week for each parent) may not comply with the spirit and intention of that decision, particularly in a motion for summary judgment.

[100] The utility of a summary judgment motion in the context of a child protections proceeding is limited.

[101] My interpretation of the “plain and obvious” test equates to a “slam dunk” (or close to it).

[102] The Society relied on 15 affidavits in support of this motion. Notwithstanding same, (or perhaps indicative of same), this case is not a slam dunk.

[103] The Society’s motion for summary judgment is dismissed.

[104] Pursuant to Family Law Rules 24(2) and (3), there is no presumption of costs in a child protection case. Costs, if any, are at the discretion of the court.

Order to Go as Follows:

(a) The Society’s motion for summary judgment is dismissed.

(b) The matter shall proceed to trial during the child protection trial sittings in September 2021.

(d) The parties shall attend for a Trial Scheduling Conference on June 8, 2021 at 11:30 a.m.

(e) The parties shall serve and file completed Trial Scheduling Endorsement Forms and identify the proposed witness list (avoiding replication and irrelevant evidence).

(f) The parties shall file updates as to the status of the steps set in paragraph 84 above.

(g) Prior to the Trial Scheduling Conference counsel shall meet and attempt to reach agreement with respect to any inadmissible evidence (on the basis of hearsay, opinion, irrelevance or any other evidentiary issue) that is currently contained in their respective affidavits. The amended affidavits (and any updates) will be relied upon as each party’s evidence in chief at the trial.

(h) If the Mother or Father seeks costs from the Society, within seven days he/she shall file submissions limited to three pages (double space, 12 -font Times New Roman), and any Offers to Settle and Bill of Costs. The Society shall file responding submissions with the same limitations within seven days thereafter. If no materials are filed there will be no order as to costs.

Justice A. Himel

Date: May 5, 2021

[^1]: 2017, S.O. c. 14.

[^2]: All references to Rules are to the Family Law Rules (“FLR”).

[^3]: Children’s Aid Society of Oxford (County) v. J. (J.), 2003 2388 at para. 8 (S.C.J.).

[^4]: Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.), 1996 7271 at para. 80 (S.C.J.).

[^5]: 2014 SCC 7, [2014] 1 S.C.R. 87, para. 43.

[^6]: 2019 ONCA 316, 2019 CarswellOnt 5927, [2014] O.J. No. 2029, 24 R.F.L. (8th) 32, 432 D.L.R. (4th) 497.

[^7]: Children’s Aid Society of Toronto v. S.C. [2016] O.J. No. 2124, at par. 141.

[^8]: [2018] O.J. No. 1612, 2018 ONCJ 193.

[^9]: Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415.

[^10]: Children’s Aid Society of the Niagara Region v. C. (S.), 2008 52309 (ON SC), [2008] O.J. 3969, 61 R.F.L. (6th) 328 (Ont. S.C.J.); D. (S.) v. Children’s Aid Society of London and Middlesex, [2019] O.J. No. 1769, 2019 ONSC 2184 (Ont. Div. Ct.).

[^11]: Covid-19 emergency as declared pursuant to Ontario Regulation 50/20 pursuant to section 7.0.1 of Emergency Management and Civil Act.

[^12]: 2021 ONSC 630 at para. 54.

CAS v. TH and DS, 2021 ONSC 3348

Case Summary