WARNING

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

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

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

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

COURT FILE NO. C 2161/06

DATE: 2021-05-31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton

Applicant

– and –

C.M., A.B.-P. and J.P.

Respondents

Martha Tweedie, for the Applicant

Respondents self-represented

Virginia Mendes da Costa for the child E.M.J.E.P.

HEARD: May 10-11, 2021

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART 1: INTRODUCTION

[1] This was the hearing of a summary judgment motion brought by the Children’s Aid Society of Hamilton (“the Society”) in the context of an Amended Status Review Application respecting the male child E.M.J.E.P, born […], 2006. For ease of reference, I will refer to the child simply as “E.P.” in these Reasons. The Society requests an order granting care and custody of E.P. to the Respondents J.P. and A.B.-P., who are the child’s great uncle and aunt. I will refer to J. P. and A.B.-P. as “Mr. and Mrs. P.” in these Reasons for ease of reference. The Respondent C.M. is E.P.’s maternal grandmother. She obtained custody of E.P. in 2014. I will refer to her in these Reasons as Ms. M. In this summary judgment motion, the Society also seeks an order granting Ms. M. access to E.P. in the discretion of Mr. and Mrs. P., in consultation with the child.

[2] Mr. and Mrs. P. consent to the relief requested by the Society. Ms. Mendes da Costa is counsel for E.P. On behalf of E.P., she agrees to an order placing E.P. in the care and custody of Mr. and Mrs. P., but requests that access to Ms. M. be in the discretion of the child. Ms. M. opposes the relief requested. Her position is that E.P. should be returned to her care and custody.

[3] The Society filed nine affidavits and a Plan of Care in support of this summary judgment. Mr. and Mrs. P. did not file any materials, as they fully agree with the relief requested by the Society. The maternal grandmother Ms. M. filed an affidavit sworn April 29, 2021. In addition, she served a second affidavit which she failed to have sworn. However, given the importance of the issues in this case to Ms. M., and with the consent of the other parties and Ms. Mendes da Costa, I accepted this second affidavit as evidence in this matter, and Ms. M. affirmed to the truth of its contents during the hearing on May 11, 2021.

[4] As I will discuss in further detail below, the Society’s case is based largely on concerns regarding Ms. M.’s mental health difficulties. The Society alleges that these problems have persisted for many years, that Ms. M. does not acknowledge the extent of her problems and that she has not followed through with recommended services to resolve them. Based on the evidence before me regarding the extent of Ms. M.’s mental health challenges, I raised the question at the outset of the hearing on May 10, 2021 as to whether she was a special party within the meaning of Rule 2 of the Family Law Rules, O. Reg. 114/99, as amended, and whether she required a representative to assist her. All of the parties, including Ms. M., took the position that Ms. M. did not qualify as a special party. However, in order to fully satisfy myself on this issue, I adjourned the hearing to May 11, 2021 to allow the Society to obtain current information from Ms. M.’s family physician, Dr. Oliver, as to whether he had any concerns that Ms. M. may be incapable for the purposes of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended.

[5] With the consent of all parties, I heard additional evidence from Society worker Ms. Hamilton on May 11, 2021 regarding her consultation with Dr. Oliver on that day. Based on that evidence, I find that Dr. Oliver has been Ms. M.’s physician since 2019, and that he has seen Ms. M. between 40 to 50 times since then for issues relating to her physical and mental health, anxiety and stress relating to her family issues. He concurs with previous mental health diagnoses that Ms. M. has been given of borderline personality disorder and delusional disorder, but he has questioned whether Ms. M. suffers from a primary mood disorder as well. He has referred her to another psychiatrist for a second opinion, and he confirmed that Ms. M. is scheduled to meet with that specialist in June 2021. Despite these impressions regarding Ms. M.’s mental health, Dr. Oliver’s clinical view is that Ms. M. has been functioning reasonably well. He indicated to Ms. Hamilton that many people who have delusional thinking on certain issues can nonetheless function reasonably well in their daily lives. He relayed to Ms. Hamilton that he has not had any concerns regarding Ms. M.’s capacity to understand and consent to treatment. Dr. Oliver is also of the view that Ms. M. is fully able to understand this court process and the implications of this hearing. Based on this information, I concluded that Ms. M. is not a special party, and I allowed the hearing to continue with Ms. M. representing herself. My impression was that she did not have any difficulty understanding the court process, the positions taken by the Society, Mr. and Mrs. P. and Ms. Mendes da Costa, or in presenting her case and advancing her arguments.

[6] The issues to be determined in this case are as follows:

1. Is there a genuine issue requiring a trial as to whether the child E.P. continues to need protection?

2. If there is no genuine issue requiring a trial respecting E.P.’s ongoing need for protection:

a) Is there a genuine issue requiring a trial regarding the placement that is in his best interests; and

b) Is there a genuine issue requiring a trial as to whether Ms. M. should be granted access to E.P., and if so, as to the specifics of the access that would be in E.P.’s best interests?

[7] For the reasons that follow, I conclude that there is no genuine issue requiring a trial with respect to any of these issues. I have been able to determine on a summary judgment basis that E.P. continues to require protection, and that it is in his best interests to be placed in the care and custody of Mr. and Mrs. P. I have also been able to determine based on the materials before me that it is in E.P.’s best interests to have access with Ms. M., with the specifics of such access to be as agreed upon between Mr. and Mrs. P. and E.P., but with such access to include at minimum reasonable communication by text as may be initiated by E.P. and Ms. M.

PART 2: BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS

I. THE SOCIETY’S HISTORICAL INVOLVEMENT AND PREVIOUS COURT PROCEEDINGS

[8] E.P. was born on […], 2006, and he is therefore 14.5 years of age. His biological mother, L.P., is deceased, and the identity of his biological father is unknown. On September 19, 2011, Brown J. made an order finding that no male person qualifies as a parent to E.P.

[9] The Society has been involved with E.P. for many years, initially due to child protection concerns respecting his mother. The concerns regarding L.P. included her ongoing substance abuse, mental health difficulties including her engagement in self-harming behaviours, residential instability, repeated criminal involvement resulting in frequent incarcerations and her lack of cooperation with the Society and other community professionals. Ms. M. eventually obtained custody of E.P. in June 2011 due to L.P.s failure to address the numerous concerns respecting her lifestyle and her inability to meet E.P.’s needs. Ms. M. also had care of the mother L.P.’s other children, who are half siblings to E.P. The Society subsequently became involved with Ms. M. in relation to the child E.P. and his siblings due to concerns regarding the safety of her residence, her use of marijuana and her difficulties in keeping the children safe from their mother L.P. A supervision order was in effect respecting E.P. and his siblings from June 15, 2011 until March 9, 2012. The children were all removed from the care of Ms. M. and placed in foster care on March 9, 2012 due to Ms. M.’s noncompliance with the terms of the supervision order.

[10] E.P. was returned to the care of Ms. M. in August 2014, pursuant to a four month supervision order. The Society supported his return to Ms. M. at that time based on improvements in the state of Ms. M.’s home, Ms. M.’s participation in services to address her excessive use of marijuana and her improved cooperation with the Society. By December 2014, the Society was satisfied that E.P. was doing well in Ms. M.’s care and that the protection concerns had been addressed. Accordingly, on December 17, 2014, Brown J. made an order at the request of the Society granting Ms. M. care and custody of E.P. pursuant to section 57.1 of the Child and Family Services Act.

[11] The Society became involved with Ms. M. and E.P. again on May 17, 2018, after E.P.’s half brother reported that E.P. had disclosed that Ms. M’s partner at the time, E.M. (who I will refer to as “Mr. M.”) was touching his private parts when he went to sleep, and that his grandmother was attempting to set up cameras in his room to catch Mr. M. doing this. Around the same time, E.P.’s cousin, who also spent time at the home of Ms. M., reported that he had seen Mr. M. and E.P. in the garage at the maternal grandmother’s home with their pants down. Society worker Ms. Yeaman investigated these reports, and neither E.P. nor the other children who she interviewed made any disclosures of sexual abuse by Mr. M. E.P. denied that he and Mr. M. had ever been in the garage at any time with their pants down. E.P. was later interviewed by police and he again denied having ever been sexually abused by Mr. M. The Society and police did not verify any sexual abuse of E.P. or the other children involved in the investigation. However, Ms. Yeaman noted concerns regarding Ms. M.’s mental health, as Ms. M. reported that she was recording her entire home with tablets, phones and computers, and that she had cameras around the perimeter of the home. She also claimed that she had made recordings of Mr. M. getting up in the night and going to E.P.’s room. However, she indicated that she could not access the recordings because Mr. M. had tampered with all of her devices in the home and with the outdoor cameras, had changed her password on her phone and had locked her out of it. Ms. Yeaman had concerns that Ms. M. was harbouring irrational thoughts about her former partner Mr. M., as she had made allegations prior to this time that Mr. M. had sexually assaulted E.P., but had later recanted the allegations stating that she had been taking medication that had caused her to have delusional thoughts.

[12] The Society became involved with Ms. M. again a few weeks later, on May 27, 2018. On that date, police attended at Ms. M.’s home after she reported that her former partner Mr. M. was hiding in the home. It was determined that Mr. M. was not in fact in the home, but police located guns under Ms. M’s bed and knives and hammers scattered around the home. The police called COAST to attend the home to support Ms. M. due to concerns that she was presenting as paranoid and delusional. Ms. M. was transported to St. Joseph’s Hospital where she was detained involuntarily pursuant to the Mental Health Act, R.S.O. 1990, c. M-7, as amended, as she was having paranoid and delusional thoughts and was deemed unable to consent to treatment. E.P. was placed in the care of a family friend pursuant to a voluntary arrangement between the Society and Ms. M. While Ms. M. was hospitalized, she advised Ms. Yeaman that she believed Mr. M. was breaking into her home and tampering with her electronics again. She also believed that Mr. M. had arranged for her admission to the psychiatric ward and for her to be held there against her will. She remained fixated on the idea that Mr. M. had been sexually abusing E.P. for six years, despite the fact that E.P. had adamantly denied that Mr. M. had been sexually inappropriate with him. Ms. M. advised Ms. Yeaman that she would be taking E.P. to complete a rape kit upon her release from hospital, and that she would be arranging to have his pyjamas tested for evidence of sexual abuse.

[13] Ms. M. left St. Joseph’s Hospital against medical advice on June 6, 2018, with a discharge diagnosis of delusional disorder, cluster B traits (borderline and histrionic), as well as chronic pain. Her treatment team at the hospital recommended that she take medication to manage her mental health symptoms and receive psychiatric follow up care with the East Regent Psychiatric Clinic.

[14] E.P. was returned to Ms. M.’s care on June 14, 2018. Following Ms. M.’s discharge from hospital, she continued to insist that Mr. M. had been sexually abusing E.P. for years, that he was breaking into her home and that he was compromising her telephone and cable. She went to the police several times to report her concerns about Mr. M. and to obtain a peace bond, but the police concluded that there were no grounds for such a measure. She continued to indicate that she intended to take E.P. for a rape examination to confirm her claims that he had been sexually assaulted by Mr. M. Based on all of this information, the Society verified concerns that Ms. M.’s mental health issues posed a risk of harm to E.P. Specifically, the concerns were that Ms. M. may continue to question E.P. about the alleged sexual abuse, that she was recording the home and the child’s bedroom, that she may have to be hospitalized again due to her unstable mental health and that she would seek to subject E.P. to invasive medical testing to confirm her belief that he had been sexually abused.

[15] Ms. M. brought E.P. to Oakville Trafalgar Hospital on August 23, 2018. She reported to hospital staff that E.P. had been sexually molested by Mr. M., and asked that E.P. be assessed to confirm that sexual abuse had occurred. Hospital staff contacted the Society due to concerns regarding Ms. M.’s presentation. Ms. M. was detained involuntarily in hospital once again due to her mental health difficulties at that time. She did not identify any possible kin caregivers for E.P., and therefore the Society placed E.P. in foster care.

[16] The Society commenced a Protection Application respecting E.P. on August 28, 2018, seeking an order placing him in interim society care and custody for six months. Pazaratz J. granted a temporary order on that date providing for E.P. to remain in the care of the Society, with access to Ms. M. in the discretion of the Society and supervised in its discretion.

[17] Mr. and Mrs. P. advanced a plan to care for E.P. following the commencement of the Protection Application. The Society assessed and approved this plan, and it brought a motion on December 14, 2018 seeking an order placing E.P. in the temporary care and custody of Mr. and Mrs. P. subject to Society supervision. As of that time, the Society had ongoing concerns regarding Ms. M.’s mental health, her failure to follow through with treatment recommendations and her drug seeking behaviour with her family physician. An order was granted on that date as requested by the Society. Subsequently, on February 12, 2019, the Society filed an amended Protection Application seeking an order providing for E.P. to remain with Mr. and Mrs. P. subject to Society supervision for six months. On June 11, 2019, Pazaratz J. granted a final order on consent of all parties providing for E.P. to remain in the care and custody of Mr. and Mrs. P. subject to Society supervision for six months, with access to Ms. M. in the discretion of the Society, in consultation with the Respondents and the child, to occur at minimum twice per week. The concerns as of that time included the following:

1. Ms. M. continued to present as disjointed in her thought processes and to insist that her former partner had repeatedly sexually abused E.P., despite the complete lack of evidence in support of this allegation. She also continued to allege that Mr. M. was breaking into her home, tampering with her belongings and sabotaging and hacking into her internet equipment, her household electronics and her electronic devices.

2. Ms. M. continued to deny that she had any mental health difficulties, and there was no evidence that she had followed through with recommendations that she take medication to address the concerns regarding her mental health.

3. There were also concerns regarding Ms. M.’s other health related issues and the impact of these on her ability to care for E.P.

4. There were numerous concerns regarding Ms. M’s access. During the visits that she attended at the Society’s offices, she often talked about inappropriate issues with E.P., including evicting people from her home, attending the police station for various reasons, her plans to pursue a return of E.P. to her care and her concerns about Mr. M. In addition, she often took calls and reviewed text messages during visits.

5. Ms. M. also failed to attend several visits, some of which she had not bothered to cancel in advance. In response to these difficulties, the Society required her to call the Society one half hour prior to her scheduled visits to confirm her intention to attend. From December 2018 until early January 2019, she failed to call ahead for three out of nine visits, resulting in those three visits being cancelled. In addition, of the six other visits that she had attended, she was late for four. As a result of these ongoing problems, the Society advised her that she had to arrive at the Society’s office an hour ahead of the scheduled visits to confirm her attendance. Ms. M. did not arrive by the designated time for her January 18, 2019 visit, and therefore the Society informed her that the visit had been cancelled. Ms. M. alleged that she had arrived on time, but when the Society Visit Facilitator attempted to problem-solve around the issue, Ms. M. announced that she wished to cancel all of her visits and left the Society’s offices, kicking the door as she left.

6. In February 2019, Mr. and Mrs. P. agreed to facilitate weekly calls and texts between Ms. M. and E.P. However, Ms. M. often failed to answer E.P.’s calls or to respond to his text messages. She claimed that she had not received the calls because Mr. M. had tampered with her phone.

7. The Society arranged for E.P.’s maternal great grandparents to supervise visits with E.P. once a week at the home of the great grandparents, commencing in April 2019. This access was approved on the condition that Ms. M. not discuss the court proceedings or Mr. M. with the child. Unfortunately, concerns subsequently arose that the maternal great grandparents were not properly supervising Ms. M.’s interactions with E.P.

8. The Society worker involved with Ms. M. during this period, Ms. Mather, had difficulty addressing concerns with Ms. M. and following up with any progress that she was making, as Ms. M. frequently presented as confrontational and dismissed the concerns that were presented to her.

II. THE SOCIETY’S STATUS REVIEW PROCEEDINGS

[18] The Society brought a Status Review Application on November 27, 2019, seeking an extension of the supervision order with Mr. and Mrs. P. for six months. At that time, the Society had ongoing concerns regarding Ms. M.’s mental health challenges and how they were impacting her daily functioning. Ms. M. continued to express similar concerns that she had raised in the past about her former partner Mr. M. She acknowledged to Society worker Ms. Maguire that she had not followed through with recommended treatment and follow-up regarding her mental health and that she was not seeing a psychiatrist. On September 19, 2019, she advised Society supervisor Ms. Fiona Koopal that Mr. M. was controlling her email accounts and embezzling money from her, and that she had security footage of him prowling around her home at 4:30 a.m. She never provided the Society with any such video footage. She stated that she believed that E.P. was having ongoing contact with Mr. M., but she was unable to provide any information to substantiate this concern. She also alleged that she had followed up with police about her concerns respecting Mr. M. at least 30 times, without receiving any response from them. On September 26, 2019, she advised Society worker Ms. Maguire that Mr. M. continued to control her electronic devices and emails, and that she believed that he had stolen her phone and assumed complete control over it. In addition, Ms. M. continued to discuss her numerous physical ailments, including Graves disease.

[19] As of November 2019, there were also ongoing concerns regarding Ms. M.’s visits and interactions with E.P. Following the visit on October 22, 2019, the child returned to the kin home crying hysterically. He disclosed that Ms. M. had spoken to him about Mr. M., and accused him of meeting with Mr. M. in the community. During that visit, E.P. advised his maternal grandmother that he wished to continue living with Mr. and Mrs. P. E.P. later disclosed that Ms. M. had been talking to him for several weeks about Mr. M. and accusing him of letting Mr. M. into the kin home to have sex with him. Ms. M. denied having made these statements.

[20] Following the October 22, 2019 visit, the Society advised Ms. M. that the maternal great grandparents could no longer supervise visits due to the concerns that they had not been vigilant in monitoring her interactions with E.P. during access. Ms. M. proposed a friend as a supervisor, but that individual was not approved as a supervisor because she did not cooperate with the Society’s efforts to assess her suitability and her home. After the October 22, 2019 visit, E.P. indicated that he did not want any further visits or contact with Ms. M. Society worker Ms. Maguire made efforts to work with the family to reinstate access with Ms. M. During a conversation with Ms. M. on November 27, 2019, she advised Ms. M. that access could only resume at the Society’s offices due to the concerns regarding the maternal grandparents’ failure to monitor the access properly, her friend’s failure to cooperate in assessing her suitability as an access supervisor and the concerns regarding Ms. M.’s interactions with E.P. The meeting ended because Ms. M. became escalated and began yelling at Ms. Maguire. Subsequent efforts on the part of Ms. Maguire to connect with Ms. M. were difficult because Ms. M. did not answer her phone and Ms. Maguire could not leave messages.

[21] The Society brought this amended Status Review Application on March 11, 2020, seeking an order placing E.P. in the care and custody of Mr. and Mrs. P., with access to Ms. M. in the discretion of Mr. and Mrs. P., in consultation with the child. Since that time, the Society has had the following ongoing concerns respecting this family:

1. Ms. M. has continued to deny that she has any mental health difficulties, despite the fact that Dr. Priyanthy Weerasekera reported in September 2019 that she most likely suffered from delusional disorder, and identified a need to rule out a diagnosis of substance-induced psychosis (cannabis and opiates).

2. Ms. M. failed to follow through with recommendations that she take antipsychotic medications and undergo an assessment through schizophrenia outpatient services.

3. The Family Services worker Ms. Shannon Hamilton was unable to connect with Ms. M. for several months in 2020 through the various telephone numbers that she had provided to the Society. When Ms. M. finally contacted the Society, she used a different phone number that she had not provided to the Society in the past, yet she insisted that she had not changed her number.

4. Ms. M. has continued to present as irrational and disjointed in her communications with Society workers, and had persisted in making numerous allegations about Mr. M.

5. The Society has been unable to arrange face-to-face access between Ms. M. and the child, as E.P. has been adamant that he is not willing to participate in such access. Ms. M. reached out to E.P. by text message on November 30, 2020, and E.P. did respond to her at that time. Unfortunately, Ms. M. raised the issue of Mr. M. again, stating that justice still has to be served on him. E.P. responded in capital letters to his grandmother indicating that he would say it one more time, that Mr. M. did not sexually harass him and that he has not had any contact with him. Ms. M. proceeded to challenge him in regard to these statements. On January 5, 2021, E.P. relayed to his kinship worker, Ms. Perpetua Chizive, that he does not like it when his maternal grandmother pressures him to state that he was sexually abused by Mr. M., since this did not occur. He has remained uncertain about seeing his grandmother in person, but he has advised Society staff that he is open to communicating with her by text message provided that she does not discuss Mr. M.

PART 3: POSITIONS OF THE PARTIES

I. POSITION OF THE SOCIETY

[22] The Society seeks an order placing E.P. in the care and custody of Mr. and Mrs. P. pursuant to section 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”). It submits that E.P. continues to require protection, based on the concerns regarding Ms. M.’s mental health, her lack of follow-through with recommendations made to address her mental health challenges, questions as to whether her mental health difficulties are substance-induced and concerns respecting Ms. M.’s physical well-being. It relies as well on the difficulties that the Society has had in maintaining contact and working with Ms. M. and the emotional harm that E.P. has suffered as a result of his experiences with Ms. M.

[23] The Society submits that it is in E.P.’s best interests to remain in the care and custody of Mr. and Mrs. P. on a long-term basis. It notes that E.P. cannot even tolerate face-to-face contact with Ms. M. at this point, and it takes the position that he would suffer significant emotional harm if he were returned to Ms. M.’s care. The Society’s assessment is that Mr. and Mrs. P. have met all of E.P.’s needs, that E.P. is very happy in their care, and that it is critical at this point that a long-term plan be implemented for E.P.’s care given the considerable instability and trauma that he has experienced in his life.

II. THE POSITION OF MR. AND MRS. P.

[24] Mr. and Mrs. P. fully support the Society’s position. They indicate that E.P. has adjusted very well to their care, that they are very committed to his well-being, and that they wish to provide him with a permanent and stable home. E.P.’s counsel, Ms. Mendes da Costa, also fully supports the proposed placement with Mr. and Mrs. P., and requests that any access between E.P. and his maternal grandmother be in E.P.’s discretion. She relayed that E.P. loves his maternal grandmother very much, but that he is unable to cope any longer with the stress of her engaging him in inappropriate discussions about Mr. M. and other inappropriate matters. She confirmed that E.P. wishes to reside with Mr. and Mrs. P. on a long-term basis, as he feels that they have cared for him very well and he is happy in their care.

III. THE POSITION OF MS. M.

[25] Ms. M. opposes the Society’s summary judgment motion. In her view, the evidence before the court does not support a finding that E.P. continues to be in need of protection, or that it is in his best interests to be placed in the care and custody of Mr. and Mrs. P. Rather, she submits that it is in E.P.’s best interests to be returned to her care and custody. She acknowledges that the Society’s concerns relate in large part to the nature of the allegations that she has made against her former partner Mr. M., but she maintains that those allegations are all true. In the materials that she filed with the court and in her submissions at the hearing, she claimed that Mr. M. had sexually abused E.P., and that he had tampered with and hacked her internet, television, emails and various electronic devices over several years. In addition, she made serious allegations of Mr. M. physically abusing her and her dog; sexually assaulting her; killing two of her parakeet birds; electrocuting and poisoning her; tampering with her dentures; damaging her gas tank on several occasions; and stealing over 130 devices from her as well as large sums of money from her and three of her friends who had signed into her internet. She described having taped a tablet to her ceiling in 2020 and having recorded Mr. M. walking into her back door with a 12 inch blade in hand, but stated that the police did not take any action because Mr. M. had deleted the recording before the police responded.

[26] Ms. M. acknowledged that numerous doctors have assessed her mental health over the years, but she denied that she has ever been clearly diagnosed with a mental health condition. She is of the view that any concerns respecting her mental health in the past related to the fact that she was over-medicated with her pain medication. She also acknowledged that many physicians have recommended that she receive mental health treatment, but she emphasized that they never took steps to compel her to comply with the recommendations. She feels that her mental health is stable at this time, and she noted that she will be undergoing another psychiatric assessment further to the recommendation of her current family physician, Dr. Oliver.

[27] Ms. M. emphasized that she provided a stable and loving home for E.P., and that she ensured that all of his needs were fully met. She described how she enrolled him in numerous activities, signed him up for summer camp for two summers, supported him in school and ensured that he attended school regularly and on time. She relayed concerns that he had missed school since being in the care of Mr. and Mrs. P., and that he has been spending most of his time playing video games rather than participating in meaningful activities. Her understanding is that E.P. wishes to reside with her, but that he does not want to return to her current residence due to the negative experiences that she alleges he had with Mr. M. in that home. In summary, her position is that she is fully able to provide a stable and loving home for E.P., and that the child’s best interests would be most fully advanced by returning him to her full-time care and custody.

IV. THE POSITION OF COUNSEL FOR THE CHILD

[28] Ms. Mendes da Costa, counsel for the child, supports the Society’s request for a custody order in favour of Mr. and Mrs. P. She indicated that E.P. is happy and doing very well in the care of Mr. and Mrs. P., and that he wishes to remain in their care on a permanent basis. E.P. has advised Ms. Mendes da Costa that he loves his grandmother very much, but that he could not cope with the chaotic experiences that he experienced when he was in her care. Ms. Mendes da Costa relayed that E.P. wishes to maintain contact with Ms. M., but that he can only emotionally cope with communications by text at this point.

PART 4: THE LAW

I. RELEVANT STATUTORY PROVISIONS AND GENERAL LEGAL PRINCIPLES RESPECTING STATUS REVIEW PROCEEDINGS

[29] The Society initiated this Status Review application pursuant to section 113 of the CYFSA. Section 113(1) of the Act stipulates that section 113 applies to situations where the order in effect is a supervision order or an order for interim society care. Section 113(2) provides as follows:

Society to seek status review

113(2) The society having care, custody or supervision of a child,

a) may apply to the court at any time for a review of the child’s status;

b) shall apply to the court for a review of the child’s status before the order expires, unless the expiry is by reason of section 123; and

c) shall apply to the court for a review of the child’s status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision.

[30] The orders that a court may make on a Status Review Application commenced pursuant to section 113 of the CYFSA are set out in section 114 of the Act, which provides as follows:

Court may vary, etc.

114. Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

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

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

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

d) make an order under section 102.

[31] Sections 114(a) and (c) stipulate that the options for orders on a Status Review Application include a variation or termination of an order made under section 101(1), a further order or orders under section 101 and an order under section 102. Dealing first with section 101(1), it provides as follows:

Order where child in need of protection

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:

Supervision order

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

Interim society care

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

Extended society care

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

Consecutive orders of interim society care and supervision

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

[32] Section 102 allows the court to make custody and restraining orders, as follows:

Custody order

102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2017, c. 14, Sched. 1, s. 102 (1).

Deemed to be order under s. 28 Children’s Law Reform Act

(2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be a parenting order or contact order, as the case may be, made under section 28 of the Children’s Law Reform Act and the court,

a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

b) may give any directions that it may give under section 34 of that Act. 2017, c. 14, Sched. 1, s. 102 (2); 2020, c. 25, Sched. 1, s. 26 (2).

Restraining order

(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children’s Law Reform Act. 2017, c. 14, Sched. 1, s. 102 (3).

Deemed to be final order under s. 35 Children’s Law Reform Act

(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children’s Law Reform Act, and shall be treated for all purposes as if it had been made under that section. 2017, c. 14, Sched. 1, s. 102 (4).

Appeal under s. 121

(5) Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 104 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 121. 2017, c. 14, Sched. 1, s. 102 (5).

Conflict of laws

(6) No order shall be made under this section if,

(a) an order granting decision-making responsibility with respect to the child has been made under the Divorce Act (Canada); or

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court. 2017, c. 14, Sched. 1, s. 102 (6); 2020, c. 25, Sched. 1, s. 26 (3).

Application of s. 101 (3)

(7) Subsection 101 (3) applies for the purposes of this section.

[33] If the court is considering making an order under either section 101(1) or section 102 on the Status Review Application, section 101(2) requires the judge to make inquiries about the efforts that the Society or another person or entity has made to assist the child before intervention under Part V of the Act:

Court to inquire

101(2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

[34] If the final order in existence prior to the commencement of the Status Review Application provides for the child to be in the care of the person who had charge of the child immediately before intervention under Part V of the CYFSA, and the court is considering making an order in the Status Review Application removing the child from that person’s care, the court must also weigh and address the considerations set out in sections 101(3) to (5) of the Act (Children’s Aid Society of Toronto v. A.P., 2020 ONCJ 572 (O.C.J.)). These provisions stipulate as follows:

Less disruptive alternatives preferred

101(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

101(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

First Nations, Inuk or Métis child

101(5) Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible or, if it is not possible,

(a) in the case of a First Nations child, another First Nations family;

(b) in the case of an Inuk child, another Inuit family; or

(c) in the case of a Métis child, another Métis family.

[35] If the court decides to grant a supervision order on the Status Review Application pursuant to section 101(1)1, section 101(7) stipulates that it may impose terms and conditions, as follows:

Terms and conditions of supervision order

101(7) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

a) reasonable terms and conditions relating to the child’s care and supervision;

b) reasonable terms and conditions on,

i. the child’s parent,

ii. the person who will have care and custody of the child under the order,

iii. the child, and

iv. any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

[36] If the court is not satisfied on the Status Review Application that a court order is necessary to protect the child in the future, the disposition options are those set out in sections 101(8) and (9), as follows:

Order for child to remain or return to person who had charge before intervention

101(8) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

No order where child not subject to parental control

101(9) Where the court finds that a child who was not subject to parental control immediately before intervention under this Part by virtue of having withdrawn from parental control or who withdraws from parental control after intervention under this Part is in need of protection, but is not satisfied that a court order is necessary to protect the child in the future, the court shall make no order in respect of the child.

[37] Section 122 of the CYFSA circumscribes the relief available on a Status Review Application by precluding the court from making an order for interim society care and custody that will result in the child being in a Society’s interim care and custody for a period exceeding the time limits set out in that section. Sections 122(2) and (3) describe the manner in which the time periods are to be calculated, and section 122(4) sets out circumstances when the court may extend the time limits.

[38] Before making an order in a Status Review Application, the court must obtain and consider a plan for the child’s care prepared by the Society. This requirement is set out in section 100 of the CYFSA, which also outlines the information that must be included in the Plan of Care:

Society’s plan for child

100. The court shall, before making an order under section 101, 102, 114 or 116, obtain and consider a plan for the child’s care prepared in writing by the society and including,

a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection;

b) a statement of the criteria by which the society will determine when its care or supervision is no longer required;

c) an estimate of the time required to achieve the purpose of the society’s intervention;

d) where the society proposes to remove or has removed the child from a person’s care,

i. an explanation of why the child cannot be adequately protected while in the person’s care, and a description of any past efforts to do so, and

ii. a statement of what efforts, if any, are planned to maintain the child’s contact with the person;

e) where the society proposes to remove or has removed the child from a person’s care permanently, a description of the arrangements made or being made for the child’s long-term stable placement; and

f) a description of the arrangements made or being made to recognize the importance of the child’s culture and to preserve the child’s heritage, traditions and cultural identity.

[39] The Supreme Court of Canada addressed the fundamental principles that apply on a Status Review Application under the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, which was the predecessor to the CYFSA, in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, 2 R.F.L. (4th) 313, 18 O.R. (3d) 160n., 165 N.R. 161, 113 D.L.R. (4th) 321(S.C.C.) (hereinafter referred to as “M.C.”). Although Ontario’s child protection legislation has undergone many amendments since the release of M.C., the main principles that the court articulated in that decision remain relevant. The court held in M.C. that in dealing with child protection cases pursuant to the CFSA, the court must always keep in mind the overall purpose and rationale of the global legislative scheme. It held that the underlying philosophy of the Act is that the best interests of children must be balanced with the importance of keeping the family unit intact if reasonably possible. The court concluded that this philosophy is the foundational starting point for determining the applicable test on a Status Review Application. It emphasized the importance of avoiding unduly restrictive interpretations of the individual sections of the Act which may work at cross purposes with this overall philosophy. Applying these general concepts, the court held that in a Status Review Application, the court is not required to retry the original need for protection order. As the court stated at paragraph 35, “that order is set in time, and it must be assumed that it has been properly made at that time.” However, it concluded that the test in Status Review proceedings is not a pure best interests analysis that places the state and parents on an equal footing with respect to the care of the child. Rather, there is a two-fold test for the determination of Status Review Applications. The first branch of the test requires the court to determine whether the child continues to be in need of protection, and as a result requires a court order for their protection. The second branch of the test involves a determination of the placement disposition that is in the best interests of the child.

[40] With respect to the first part of the test in Status Review proceedings, the Supreme Court of Canada concluded in M.C. that an analysis of whether the child continues to need protection is necessary having regard for the broad objectives of the CFSA, which seek to strike a balance between the best interests of the child and the need to prevent unwarranted state intervention in family life. In establishing this first branch of the test, the court relied heavily on the fact that these statutory objectives include the preservation of the autonomy and integrity of the family unit, and the provision of child protection services in the least restrictive and disruptive manner. The court emphasized that the first part of the test does not involve a determination of whether the child is “in need of protection” as that phrase is defined in the legislation (now section 74(2) of the CYFSA). Rather, the child protection agency involved must justify ongoing state intervention in the life of the family by proving that a court order continues to be necessary to protect the child in the future (see also Children’s Aid Society of Oxford County v C.(W.T.), 2013 ONCA 491, 2013 CarswellOnt 10258 (C.A.)) The Supreme Court of Canada held in M.C. that the inquiry into the child’s continued need for protection involves more than simply analyzing the events and concerns that triggered the child welfare intervention in the first instance and determining if those concerns persist. Rather, the issue must be assessed from the perspective of both the child and the parents, taking into account the reality that the needs and circumstances of both evolve continually. A finding that the child continues to require protection can be based on ongoing concerns respecting the parents’ ability to meet the child’s needs, or for reasons unrelated to the parties’ parenting, such as concern about the effects of removing the child from a long-term caregiver who is able to present a permanent plan (see also Children’s Aid Society of Hamilton v. J.M. and C.W., 2017 ONSC 5869 (S.C.J.); Children’s Aid Society of Toronto v. S.A.P. et al., 2019 ONSC 3482 (S.C.J.)).

[41] Turning to the second branch of the test, section 74(3) of the CYFSA lists the factors that the court is required to consider in carrying out the analysis respecting the best interests of the child, as follows:

Best interests of child

74(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. 2017, c. 14, Sched. 1, s. 74 (3).

[42] In considering the best interests of a child pursuant to the CYFSA, the court must also be guided by the Ontario government’s commitments as set out in the preamble to the Act, as well as the purposes of the legislation, which are articulated in section 1 of the Act. The preamble to the Act provides as follows:

Preamble

The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard.

The Government of Ontario is committed to the following principles:

Services provided to children and families should be child-centred.

Children and families have better outcomes when services build on their strengths. Prevention services, early intervention services and community support services build on a family’s strengths and are invaluable in reducing the need for more disruptive services and interventions.

Services provided to children and families should respect their diversity and the principle of inclusion, consistent with the Human Rights Code and the Canadian Charter of Rights and Freedoms.

Systemic racism and the barriers it creates for children and families receiving services must continue to be addressed. All children should have the opportunity to meet their full potential. Awareness of systemic biases and racism and the need to address these barriers should inform the delivery of all services for children and families.

Services to children and families should, wherever possible, help maintain connections to their communities.

In furtherance of these principles, the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child.

With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:

The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honour the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

[43] With respect to the purposes of the Act, section 1(1) of the CYFSA stipulates that the primary purpose of the Act is “to promote the best interests, protection and well-being of children.” Section 1(2) outlines the following additional purposes of the Act, provided that they are consistent with the best interests, protection and well-being of children:

Other purposes

1(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.

3. Services to children and young persons should be provided in a manner that,

i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons,

iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. takes into account a child’s or young person’s cultural and linguistic needs,

v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and

vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.

4. Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.

5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.

6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

[44] Section 1 of the CYFSA provides a clear direction to the courts that all decision-making factors in child protection proceedings under Part V of the Act are subject to the ultimate issue: what is required to promote the best interests, safety and well-being of the child? The Court of Appeal emphasized in Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646 (C.A.), at para. 70 in the context of a Protection Application under the Child and Family Services Act that “[n]othing displaces the best interests of the child, and no section of the Act overrides the child’s best interests.” The Ontario Divisional Court reiterated in J.E. and K.E. v. Children’s Aid Society of Niagara Region, 2020 ONSC 4239 (Div. Ct.), at para. 56 that all decision-making factors stipulated in the CYFSA must be considered “with the overarching goal of determining the best interests of the child.” The assessment of the child’s best interests must ultimately maintain a primary focus on the needs of the child and the importance of pursuing permanency planning for the child within a timeframe that is sensitive to those needs (Catholic Children’s Aid Society of Toronto v. M.(M.), 2012 ONCJ 369 (O.C.J.); Catholic Children’s Aid Society of Hamilton v. R.M. and N.M., 2015 ONSC 5101 (S.C.J.); Children’s Aid Society of Hamilton v. J.M. and C.W., at para. 41). The child-centred focus of the CYFSA makes it clear that a current desire on the part of parents to turn over a new leaf and address protection concerns is not enough. As Ratushny, J. articulated in Children’s Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1540 (S.C.J.) “[t]he test is not whether the parents have now seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in her best interests. There is not to be an experimentation with the child’s life with the result that in giving the parents another chance, the child would have one less chance” (see also Children’s Aid Society of Winnipeg (City) v. R. (1980), 1980 CanLII 3654 (MB CA), 19 R.F.L. (2d) 232 (Man. C.A.)). Where a parent has demonstrated a significant history of dysfunction impacting on their parenting of their children, a request that they be given more time to prove their parenting capacity must be very carefully and critically scrutinized to determine whether any meaningful, longstanding change is realistic. The longer the child has been in limbo, the more intense the focus will become on the child’s right to a secure and stable long term placement within a reasonable time-frame (Children’s Aid Society of Nipissing and Parry Sound v. M.(L.), 2008 ONCA 491 (C.A.); Children’s Aid Society of Toronto v. H.(R.), 2000 CanLII 3158 (ON CJ), 2000 CarswellOnt 6170 (O.C.J.); Children’s Aid Society of Hamilton v. M.(A.), 2012 ONSC 6190 (S.C.J.); Children’s Aid Society of Hamilton v. V.B. and M.B., 2015 ONSC 4602 (S.C.J.)). As Katarynych, J. stated in Children’s Aid Society of Toronto v. H.(R.):

Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent’s chance to correct parenting inadequacies must be balanced with a child’s right to appropriate development within a realistic time frame, if damage to the child is to be minimized.

II. STATUTORY PROVISIONS AND GENERAL PRINCIPLES RESPECTING ACCESS

[45] With respect to access, section 104(1) of the CYFSA provides that the court may, in the child’s best interests, make, vary or terminate an access order in a proceeding under Part V of the Act (Child Protection) or on application under section 104(2):

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.

Who may apply

(2) Where a child is in a society’s care and custody or supervision, the following may apply to the court at any time for an order under subsection (1):

1. The child.

2. Any other person, including a sibling of the child and, in the case of a First Nations, Inuk or Métis child, a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

3. The society.

[46] Section 104(3) must also be considered in cases where the court determines that a custody order should be granted pursuant to section 102:

Access after custody order under s. 102

104(2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests.

[47] In Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 (C.A.), Benotto J.A. highlighted that “access” can come in many forms, including the exchange of gifts, emails, video chats or phone calls, and that the form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes (at para. 64). In J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 (Div. Ct.), at para. 38, the Divisional court emphasized that pursuant to section 104, it is the court that is to impose terms and conditions respecting access “as the court considers appropriate.” Based on the wording of section 104, it concluded that the court cannot sub-delegate the decision as to terms or conditions of access to a nonjudicial actor, including the Society, and that an access order must include at least minimum terms of access.

III. SUMMARY JUDGMENT IN CHILD PROTECTION CASES

A. [Rule 16](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html#sec16_smooth) of the [Family Law Rules](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html)

[48] Rule 16(1) of the Family Law Rules provides that a party may bring 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 a case:

When Available

16. (1) 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 (1).

[49] Rule 16(2) stipulates that the summary judgment procedure is available in child protection proceedings. The test on a summary judgment motion is set out in Rule 16(6), which stipulates that the court shall make a final order on a summary judgment basis if it determines that there is no genuine issue requiring a trial of a claim or defence:

No Genuine Issue For Trial

16(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

[50] Rule 16(6) is mandatory in the sense that if the court concludes that there is no genuine issue requiring a trial of a claim or defence, the court must make a final order. (Children’s Aid Society of Haldimand and Norfolk v. T.(S.L.), 2011 ONSC 4990, 2011 CarswellOnt 8480 (S.C.J.)).

[51] Rule 16(7) stipulates that if the only genuine issue requiring a trial is the amount to which a party is entitled, the court shall order a trial to decide the amount. Rule 16(8) stipulates that if the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

[52] Rules 16(4) and (4.1) address the evidence that is required on a summary judgment motion. Rule 16(4) provides that the moving party must serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. Rule 16(4.1) stipulates that the party responding to the motion may not rest on mere allegations or denials, but rather must set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. A party may include hearsay evidence in their affidavit evidence on a summary judgment motion. However, Rule 16(5) allows the court to draw conclusions unfavourable to the party if they adduce hearsay evidence:

Evidence Required

16(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. O. Reg. 114/99, r. 16 (4).

Evidence of Responding Party

16(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. O. Reg. 91/03, s. 5.

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. O. Reg. 114/99, r. 16 (5).

[53] Rules 16(6.1) and 16(6.2) grant the court significant fact-finding powers on a summary judgment motion. They provide as follows:

Powers

16(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, 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:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

Oral Evidence (mini-trial)

16(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[54] Rule 16(9) outlines the powers of the court to give directions respecting the trial of the proceeding in the event that the court does not make a final order on the summary judgment motion, or if it makes an order for a trial of one or more issues. The Rule provides as follows:

Order Giving Directions

16(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

b) give directions; and

c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).

[55] The powers of the court pursuant to Rule 16(9) to organize and manage the trial are in addition to the court’s broad powers set out in Rule 1(7.2), which is referenced in Rule 16(9). Section 1(7.2) specifies as follows:

Procedural Orders

1(7.2) For the purposes of promoting the primary objective of these rules as required under subrules 2(4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order,

a) that a party give to another party an affidavit listing documents that are relevant to the issues in a case and that are in the party’s control or available to the party on request, or that a party make any other disclosure, within a specified time;

b) limiting the number of affidavits that a party may file, or limiting the length of affidavits that a party may file (excluding any exhibits);

c) that any motions be brought within a specified time;

d) that a statement setting out what material facts are not in dispute be filed within a specified time (in which case the facts are deemed to be established unless a judge orders otherwise);

e) that questioning be conducted in accordance with a plan established by the court, be subject to a time limit or be limited with respect to scope;

f) limiting the number of witnesses;

g) that all or part of an affidavit or any other evidence filed at any stage in a case, and any cross-examinations on it, may be used at a hearing;

h) that a party serve and file, within a specified time, a written summary of the anticipated evidence of a witness;

i) subject to subrule (7.3), that a party or witness give any or all of their evidence by affidavit or by another method not requiring attendance in person;

i.1) subject to subrule (7.3.1), that all or any part of a case be heard using telephone or video technology;

j) that oral evidence be presented, or that any oral evidence be subject to a time limit;

k) that any expert witnesses for the parties meet to discuss the issues, and prepare a joint statement setting out the issues on which they agree and the issues that are in dispute;

l) that a party serve and file a summary of argument;

m) that a party provide to the court a draft order (Form 25, 25A, 25B, 25C or 25D) setting out the relief that he or she is seeking;

n) identifying the issues to be decided at a particular hearing;

o) that the parties appear before the court by a specified date;

p) that a case be scheduled for trial or that a trial management conference be conducted; and

q) that a trial be limited to a specified number of days and apportioning those days between the parties. O. Reg. 69/15, s. 1 (1); O. Reg. 152/21, s. 1 (1).

B. General Principles Respecting Summary Judgment Motions

[56] The Supreme Court of Canada articulated several fundamental principles for determining whether the summary judgment motion process is the appropriate adjudicative model for resolving a case in Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.)). Those principles apply equally to summary judgment proceedings initiated pursuant to Rule 16 of the Family Law Rules (Ramdial v. Davis, 2015 ONCA 726 (C.A.); Chao v. Chao, 2017 ONCA 701 (C.A.); Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 (C.A.); L.M. v. Peel Children’s Aid Society, 2019 ONCA 841 (C.A.)). Further to Hryniak and the relevant cases decided prior to and after that decision, the principles that I must consider in deciding whether the summary judgment route is the appropriate adjudicative process in this case are as follows:

1. The summary judgment process is a valuable tool for addressing the public’s right to a fair and accessible justice system, which is one of the most pressing needs in regard to the rule of law in Canada today (Hryniak, at para. 1). The three main underpinnings to a fair and accessible justice system are proportionality, timeliness and affordability. The proportionality principle requires judges to implement processes, orders and directions that are proportionate to the importance and difficulty of the issues in the case in terms of cost, complexity and timeliness. The conventional trial process, with its associated expense and delays, is a major contributor to the access to justice problem, since ordinary Canadians either cannot afford this method of adjudication or give up on it because it is not timely enough. The summary judgment process can be a fair and just alternative adjudicative model that satisfies the need for proportionality, timeliness and affordability in appropriate circumstances (Hryniak, at para. 27).

2. Given the value of the summary judgment process as a means of promoting fair and accessible justice, “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims” (Hryniak, at para. 5).

3. In determining if there is a genuine issue requiring a trial, and whether the summary judgment route is appropriate, the test is whether the judge is able to reach a fair and just determination on the merits of the case on a motion for summary judgment (Hryniak, at para. 49). This test will be met where the summary judgment process meets the following three criteria:

a) It allows the judge to make the necessary findings of facts;

b) It allows the judge to apply the law to the facts; and

c) It is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak, at para. 4).

4. The standard for determining whether the summary judgment model of adjudication is appropriate is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that they can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (Hryniak, at para. 50; Kawartha, at para. 63).

5. The courts should not delineate rigid rules or categories of cases for determining when a summary judgment motion is or is not the appropriate adjudicative process. However, relevant factors for the court to consider include whether the case is document driven with few witnesses, whether there are numerous contentious factual issues, and whether the written record can be supplemented by oral evidence on discrete points (Hryniak, at para. 62).

6. The core of the analysis of whether the summary judgment process is appropriate is whether it can yield a just result. The values of proportionality, timeliness and affordability must be balanced against the backdrop of this central question. The nature of the potential impact of the litigation on the parties is one of the major factors to consider in determining how to carry out this delicate balancing exercise. Family relationships form the essential fabric of our society, and therefore decisions that interfere with those relationships typically have serious, long-term and widespread repercussions. As the Supreme Court of Canada stated in New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.), at para. 76, “[t]he interests at stake in the custody hearing are unquestionably of the highest order. Few sate actions can have a more profound effect on the lives of both parent and child.” These considerations must always remain in the forefront in carrying out the analysis of whether the summary judgment process is the appropriate means of ensuring a just result in Family Law and child protection cases. Accordingly, when the relief requested has an intrusive impact on the parent-child relationship, it is appropriate for the court dealing with a summary judgment motion to proceed with caution (L.M., at para. 48; Children’s Aid Society of Hamilton v. J.M. and C.W., at para. 70).

7. In the child protection context, the determination of whether the summary judgment process will allow the court to reach a fair and just determination on the merits of the case involves a number of additional special considerations. First, the interests at stake in these cases “are unquestionably of the highest order” (Kawartha, at para. 65; L.M., at para. 48). Second, child protection litigation engages important rights of both parents and children under the Canadian Charter of Rights and Freedoms, s. 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11, including their right to security of the person. Given that the best interests of the child are presumed to lie with their parents, the potential for child protection proceedings to interfere with the parent-child relationship may seriously affect the child’s psychological integrity and well-being (Kawartha, at para. 65). Third, in dealing with summary judgment motions in the child protection context, courts must be mindful of the reality that women and disadvantaged and vulnerable groups, particularly visible minorities, Indigenous peoples and the disabled, are disproportionately affected by child protection proceedings (Kawartha, at para. 68). Finally, “poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings” (Kawartha, at para. 69; L.M., at para. 48). Having regard for these special dynamics in child protection cases, courts dealing with summary judgment motions in the child protection context must remain keenly attuned to the potential for significant imbalances between parents and Children’s Aid Societies, even when the parents are represented by counsel (Kawartha, at para. 69). For all of these reasons, the court should take a highly cautious approach in determining whether summary judgment is the appropriate route in child protection cases. The judge must carefully weigh and apply the objectives of the CYFSA, including the best interests of the child in deciding the issue, and must vigilantly assess the evidence adduced in support of the motion. In these cases, the courts should only grant the motion for summary judgment if there is no realistic possibility of an outcome other than that sought by the moving party, and the claims of the other parties have no chance of success (Kawartha, at paras. 70-74; L.M.; Children’s Aid Society of York v. J.B. and G.M., 2020 ONSC 7457 (S.C.J.); Catholic Children’s Aid Society of Hamilton v. T.E., 2021 ONSC 3151 (S.C.J)). This cautious approach promotes the principle articulated in Hryniak of reaching a fair and just determination on the merits (Kawartha, at para. 76).

8. A key factor in determining whether the summary judgment procedure is appropriate is whether it permits the judge to make the necessary findings of facts. Further to this requirement, the court and the parties must be mindful of the parties’ obligations respecting the evidence required on a summary judgment motion. The burden of proof is on the moving party on a summary judgment motion to establish that there is no genuine issue requiring a trial for its resolution (Kawartha, at para. 80; Chao, at para. 16; L.M., at para. 2). The evidence adduced in support of the motion need not be equivalent to that at trial, but it must be sufficient for the judge to feel confident that they can fairly resolve the dispute without a conventional trial (Hryniak, at para. 57). In the child protection context in particular, the court must conduct a careful screening of the evidence and should not give any weight to evidence that would be inadmissible at trial (Kawartha, at para. 80).

9. The responding party in a summary judgment motion also has evidentiary responsibilities on a summary judgment. They have a positive obligation by virtue of Rule 16(4.1) to put their best foot forward to defend the motion with fulsome affidavit evidence (Ramdial, at para. 27; Chao, at para. 24; Children’s Aid Society of Hamilton v. J.M. and C.W., at para. 55; Kawartha, at para. 80; Catholic Children’s Aid Society of Hamilton v. T.E., at para. 17). Speculation by the responding party as to evidence that could potentially be available for trial or that could be elaborated upon at trial is not a sufficient response to a summary judgment motion. The court must assume that the information put forward by the responding party is the best they have to offer at that stage (Chao, at para. 24; Children’s Aid Society of Hamilton v. J.M. and C.W., at para. 55). Furthermore, an assertion that the moving party’s evidence must be tested through cross examination is insufficient to defeat a summary judgment motion, as it is akin to a bald assertion or mere denial as referred to in Rule 16(4.1), and the court has the discretion under Rule 16(6.2) to permit oral evidence and cross examination on the motion (Children’s Aid Society of Hamilton v. J.W. and C.W., at para. 55). Notwithstanding these principles, the burden of proof on a summary judgment motion rests squarely with the moving party. Accordingly, “[e]ven 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” (Kawartha, at para. 80).

10. The judge hearing a summary judgment motion in the Family Law or Child Protection Law context pursuant to Rule 16 is required to take a good hard look at the evidence to determine whether there are any genuine issues of material fact that require a trial for their resolution. In order for an issue to be considered a genuine one which requires a trial, it must be of sufficient importance to warrant a judicial determination between the disputing parties and must be relevant to the determination that the court is called upon to make (Children’s Aid Society of Algoma v. E.W., 2001 CarswellOnt 2346 (O.C.J.), at para. 15; Children’s Aid Society of Hamilton v. J.M. and C.W., at para. 60). Not every disputed fact or question of credibility gives rise to a genuine issue for trial. Disputed facts, the existence or non-existence of which will not affect the outcome of the case, do not raise a genuine issue for trial. (Chao, at para. 10; Children’s Aid Society of Hamilton v. J.M. and C.W., at para. 60).

11. The following general “roadmap” should be followed for determining whether the summary judgment procedure is the appropriate adjudicative model in a case, and whether the court should invoke the expanded fact-finding powers set out in Rules 16(6.1) and 16(6.2):

a) Determine if there is a genuine issue requiring a trial based only on the written evidence before the court, without using the fact-finding powers set out in the summary judgment rule.

b) If there appears to be a genuine issue requiring a trial based on the materials before the court, determine whether it is appropriate to use the fact-finding powers set out in the Rule, which include weighing the evidence, evaluating credibility, drawing inferences and receiving some oral evidence. In deciding this question, consider whether the interests of justice require that those fact-finding powers be exercised in the context of a full trial rather than on a summary judgment motion. The analysis of this involves balancing the advantageous features of a traditional trial with the importance of achieving justice in a proportional, timely and affordable manner. Reliance on the enhanced fact-finding powers in the summary judgment process will generally be appropriate if their use will lead to “a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole” (Hryniak, at para. 66).

12. The court’s authority to hear oral evidence on a summary judgment motion is an important tool for rendering this process a fair and just alternative to a conventional trial. This power should be invoked if it allows the judge “to reach a fair and just adjudication on the merits and it is the proportionate course of action” (Hryniak, at para. 63). There are no absolute rules or guidelines for determining whether oral evidence is appropriate. However, some of the factors that may be useful in guiding the court’s discretion on this issue include the following:

a) Whether oral evidence can be obtained from a small number of witnesses and gathered in a manageable period of time;

b) Whether any issue to be dealt with by presenting oral evidence is likely to have a significant impact on whether the summary judgment motion is granted; and

c) Whether any such issue is narrow and discrete, i.e. whether the issue can be separately decided and is not enmeshed with other issues on the motion (Hryniak, at para. 62).

13. Judges must assist self-represented litigants on a summary judgment motion, in accordance with the principles set out in the Statement of Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council (Kawartha, at para. 80).

14. Finally, the special considerations that apply to Indigenous children must be part of every decision involving Indigenous children (Kawartha, at para. 80)

PART 5: ANALYSIS

I. OVERVIEW

[57] For the reasons that follow, I am satisfied based on the written materials that there is no genuine issue requiring a trial in this case. The evidence fully supports the Society’s position that E.P. continues to require protection, and that it is in his best interests that he be placed in the care and custody of Mr. and Ms. P. With respect to access, I am satisfied that it is in E.P.’s best interests to have access with Ms. M., but that any such access must be at his pace and based on his comfort level, with the condition that there be no discussions about Mr. M.

[58] Upon considering the legal principles relating to the use of the summary judgment process, I am confident that I have been able to reach a fair and just determination on the merits of this case through this motion procedure. Based on the voluminous evidence before me, I have been able to make the necessary findings of facts and apply the law to those facts without any difficulty. I did not feel a need to request any oral evidence to supplement the record. I conclude that there is no realistic possibility of an outcome in this case other than the one requested by the Society, Mr. and Mrs. P. and the child, and that Ms. M.’s request to have E.P. returned to her care and custody has no chance of success. Furthermore, given the strength of the Society’s evidence and the child’s wishes, I have determined that the summary judgment process is the most proportionate, timely and affordable means of achieving a just result. I note that the court gave Ms. M. every possible opportunity to advance her case on this motion. On March 11, 2021, McLaren J. granted her a six week extension to serve and file her materials, and she was permitted to file an affidavit at the outset of this hearing notwithstanding that she did not meet the extended deadline. Although Ms. M.’s affidavit materials were difficult to read because of the manner in which she presented the facts, she did a very good job during the hearing of articulating the evidence in support of her case in an organized and comprehensible manner. While she contests some of the facts set out in the Society’s materials, I conclude that the facts which she disputes are not material to the determination of the issues in this case.

II. ISSUE #1: IS THERE A GENUINE ISSUE REQUIRING A TRIAL AS TO WHETHER E.P. CONTINUES TO REQUIRE PROTECTION?

A. Overview

[59] The first issue to determine on this Amended Status Review Application is whether there is a genuine issue requiring a trial regarding E.P.’s ongoing need for protection through a court order. As I have indicated, the evidence fully satisfies me that E.P. continues to require protection, and that there is no genuine issue requiring a trial respecting this issue. My conclusion on this issue is based in part on the longstanding and significant concerns respecting Ms. M.’s mental health, unanswered questions as to whether her mental health challenges have been impacted by substance abuse problems and her inability to acknowledge her mental health difficulties and to follow through with recommended treatment in a timely manner. In addition, there have been persistent concerns regarding the negative impact of her mental health challenges on her ability to provide reliable and consistent care for E.P and on E.P.’s emotional wellbeing. I turn now to each of these areas of concern.

B. Concerns Regarding Ms. M.’s Mental Health and Unanswered Questions Regarding Possible Substance Abuse

[60] I address first the concerns regarding Ms. M.’s mental health difficulties, her excessive reliance on medication and marijuana, her appreciation of those difficulties and her compliance with recommendations that have been made to resolve them. The evidence indicates that there have been pressing concerns about Ms. M.’s mental health difficulties and the impact of those problems on her overall functioning since at least 2016. In May 2016, Ms. M. was assessed by Dr. Weerasekera of the Community Psychiatry Clinic at St. Joseph’s Hospital, as she was presenting as disoriented and confused. Dr. Weerasekera found that Ms. M. was experiencing some symptoms of possible psychosis, since she reported that somebody had been hacking into her computer and was experiencing paranoid thoughts. She also noted concerns that Ms. M. was suffering from cognitive and memory difficulties. Dr. Weerasekera’s final diagnosis of Ms. M. was Substance Induced Mood Disorder. Dr. Weerasekera had concerns that the chronic pain medications that Ms. M. had been taking may have been impacting on her ability to think properly. She recommended that Ms. M. undergo an evaluation of her pain medications to determine if the levels that she was taking were contributing to her difficulties.

[61] Concerns regarding Ms. M.’s unstable mental health surfaced again in 2018. As I have indicated, the Society’s intervention in May 2018 was precipitated by concerns regarding possible inappropriate interactions between Ms. M.’s former partner, Mr. M., with E.P. Those concerns were not verified after a very thorough investigation by the Society and the police. E.P. has consistently denied that Mr. M. abused him in any way. As early as May 2018, Society worker Ms. Yeaman concluded that Ms. M. was having irrational thoughts about Mr. M. The evidence indicates that at that time, Ms. M.’s family physician, Dr. Smosarski, also had serious concerns regarding Ms. M.’s general emotional instability and her excessive reliance on narcotics which she was taking for pain, despite his efforts to assist her with this issue. Dr. Smosarski discharged Ms. M. as a patient effective July 2018 due to her erratic and escalated behaviour with him and his staff.

[62] Ms. M.’s irrational and unsubstantiated concerns about Mr. M. resulted in her involuntary admission to the St. Joseph’s Hospital psychiatric ward from May 27, 2018 until June 6, 2018. As I have discussed, her treatment team diagnosed her with delusional disorder, cluster B traits (borderline and histrionic) and chronic pain. Despite this diagnosis, Ms. Ms. has continued to argue that she has never actually received a mental health diagnosis. She chose to leave the hospital at that time against the advice of the treatment team and did not follow up with the recommendation that she take medication to address her symptoms. As a result, she continued to harbour unsubstantiated concerns and irrational thoughts about Mr. M. which led to her second involuntary admission to hospital due to mental health concerns less than 3 months later, in August 2018.

[63] The evidence indicates that Ms. M. was seen by Dr. Boursiquot at the Community Psychiatry Clinic from July 2018 until October 2018. Dr. Boursiquot also made a diagnosis of delusional disorder and found that Ms. M. exhibited borderline personality features. He recommended that Ms. M. take antipsychotic medication to address her symptoms, but Ms. M. has never complied with this recommendation. Ms. M. attended the clinic during this period for the purpose of obtaining her pain medication, but she was not interested in any follow-up regarding her mental health difficulties. Accordingly, she was discharged to the care of her family physician, with the recommendation that she be given a referral for schizophrenia outpatient services at St. Josephs’ Hospital. Ms. M. did not follow through with that recommendation either.

[64] Unfortunately, the concerns regarding Ms. M’s mental health and her inconsistent compliance with recommendations to address her difficulties have continued unabated since June 2018. Ms. M. continues to this day to insist that Mr. M. sexually abused E.P. over the course of many years. In addition, she has consistently made wide-ranging horrific allegations to the Society and the police of all types of abuse and harassment by Mr. M. towards her, none of which have been substantiated by the Society or the police. Although she frequently advised Society workers that she had physical evidence of the alleged abuse and harassment by Mr. M., she was never been able to provide any compelling evidence, and she often blamed her inability to do so on Mr. M. having destroyed or stolen the evidence.

[65] The numerous Society professionals involved with Ms. M. since 2018 have all shared similar serious concerns regarding Ms. M.’s mental instability. The Adolescent Services Worker involved with E.P., Ms. Lesley Mathers, and the Family Services Workers who have worked with Ms. M., Ms. Maguire and Ms. Hamilton, all observed that Ms. M. often presented as lacking clear thought processes. They consistently noted that Ms. M. persisted in making the types of very serious but unsubstantiated allegations of abuse by Mr. M. towards her and E.P. that I have described above. Ms. M.’s conversations with the workers about these allegations and other issues were often non-sensical. Ms. M.’s family physician Dr. Warren, also had concerns that Ms. M. presented as emotionally unstable, very angry and scattered in her thoughts during his contacts with her, and that she was refusing to take any medication or engage in any services to manage her mental health problems.

[66] In September 2019, Ms. M. underwent an updated psychiatric assessment by Dr. Weerasekera of the Community Psychiatry Clinic. Dr. Weerasekera noted in her report dated September 14, 2019 that Ms. M. was still endorsing persecutorial delusions regarding Mr. M. poisoning her, hacking into her electronic devices and various accounts, stealing her money, breaking into her house and sexually abusing E.P. She noted concerns that Ms. M. tends to misinterpret information and use it as evidence to entrench her delusional beliefs. She found Ms. M.’s thought processes to be illogical, inconsistent, tangential and circumstantial, and documented that her speech was at times non-sensical. Dr. Weerasekera concluded that Ms. M. most likely suffers from a delusional disorder, but again highlighted the need to rule out the possibility of substance induced psychosis as a result of high cannabis and opiate use. She recommended that Ms. M. take antipsychotic medication and that she receive follow up assessment and services from the schizophrenia outpatient clinic. However, she indicated that Ms. M. had no insight into her mental health difficulties and that she had once again refused to take medication or participate in any sort of mental health treatment or follow-up. Ms. M. has not to date followed through with the recommendations that Dr. Weerasekera made.

[67] Ms. M. has continued to adamantly deny having any mental health problems, notwithstanding the results of Dr. Weerasekera’s updated assessment in September 2019. She has maintained that the outcome of that assessment was not conclusive, and that Dr. Weerasekera only “suggested” that she had mental health difficulties. Her current family physician, Dr. Oliver, has indicated that she continues to exhibit paranoid thoughts but that she is functioning reasonably well in her daily living despite those issues. He has referred her to another psychiatrist to obtain a second opinion regarding a psychiatric diagnosis, as he questions whether she may be suffering from a primary mood disorder.

[68] Regardless of the precise mental health diagnosis for Ms. M., it has now been over 3 years since her relationship with Mr. M. ended, but her irrational and unverified claims against him have not abated. This is evidenced by the extensive number of dreadful allegations that she made against Mr. M. in the materials that she filed in response to this motion. The current Family Services Worker, Ms. Hamilton, reports that she has had numerous contacts with Ms. M. since February 2021, and that during each of those communications, Ms. M. has spoken at length about how Mr. M. continues to control her by hacking into her computers, cell phones and other electronic systems. She has also told Ms. Hamilton that the City of Hamilton took over her garage due to Mr. M.’s antics, and that she could therefore not sell her home. According to Ms. Hamilton, Ms. M. presented as highly irrational and delusional in her conversations with her as recently as March 2021. On March 16, 2021, Ms. Hamilton met with Ms. M. to provide her with a laptop with which to complete her motions for this motion. During that meeting, Ms. M. again spoke at length about how Mr. M. has her “so hacked” that she has spent almost $40,000 on electronics because of it. The following week, commencing on March 22, 2021, Ms. M. sent Ms. Hamilton several text messages stating that Mr. M. had hacked into the laptop that the agency had provided to her and that she was now locked out of it and unable to use it. She also sent multiple text messages advising that Mr. M. had snuck into her house and her father’s house, had stolen money from her father’s bank account and had also stolen her father’s papers from her garage. She complained that the police had refused to take a report or let her speak to the staff sergeant. She also spoke about how “someone” had tried to take $10,000 off her mother’s credit card, how she has made regular mortgage payments on her home but nothing has come off the principal for the last 2 years, and about having to sleep in her bathtub because the door to her bathroom is the only one that Mr. M. cannot get through. In addition, Ms. M. has repeatedly alleged that the child E.P. is meeting with Mr. M. in the community and in the kinship home to have sexual relations with him, despite E.P.’s insistence that he has not had any contact with Mr. M. and the lack of any evidence whatsoever to support the allegations.

C. Concerns Regarding Ms. M.’s Physical Health

[69] In addition to the concerns regarding Ms. M.’s mental health, the Society has had longstanding concerns regarding her numerous physical health problems and her difficulties in managing pain. Her family physicians have worked with her in monitoring and managing her pain medications over the years and have expressed concerns about her over-reliance on them. The report of Dr. Boursiquot of the Community Psychiatry Clinic dated October 18, 2018 indicates that at that time, Ms. M. was suffering from chronic pain, degenerative disc disease and spinal stenosis. The records of St. Joseph’s Hospital regarding her admission in June 2018 indicate that as of that time, she had been diagnosed as suffering from chronic obstructive pulmonary disease (COPD), high cholesterol, incontinence, osteoporosis, restless legs syndrome and sleep apnea. On April 9, 2019, Ms. M. advised Society worker Ms. Mathers that she was seeing Dr. Innes for pain management and psychological issues, Dr. Kalee regarding thyroid problems, Dr. Woolfrey for orthopaedic problems, Dr. Akerele from Oakville Trafalgar Hospital and a urologist, Dr. Best. She relayed to Ms. Mathers at that time that she continued to struggle with her numerous medical issues, which included an unstable thyroid, back issues, sciatic nerve issues and inability to control her bladder.

[70] Ms. M.’s numerous medical issues cannot be considered in isolation in this case. As I have discussed, there have been concerns since 2016 about her over-reliance on pain medication and marijuana to address her physical ailments, and the possibility that this may be contributing to or causing her mental health problems. Although Ms. M. indicated that she has worked hard at managing her pain medication, the report of Dr. Weerasekera dated September 14, 2019 still raises concerns that she may be suffering from of substance induced psychosis as a result of cannabis and opiate use.

D. Concerns Respecting the Impact of Ms. M.’s Mental Health Difficulties on Her Parenting Capacity and E.P.’s Emotional Wellbeing

[71] The evidence before me clearly reveals significant historical and current concerns regarding the impact of Ms. M.’s mental health problems on her ability to parent E.P. and to meet his needs for security and stability. There is no doubt in my mind that Ms. M. loves E.P. dearly, that she provided him with a loving home when his mother could not do so and that she did her very best to meet all of E.P.’s needs. She created many positive memories and experiences for E.P., and I commend her for all of the efforts that she put in to caring for him. However, the Society has had very valid concerns for many years now about the deleterious impact of Ms. M.’s mental health difficulties on E.P.’s emotional well-being. E.P.’s placement in her care was disrupted on three occasions due to the Society’s protection concerns. While E.P. resided with Ms. M., he was subjected to her irrational thoughts and behaviour in relation to Mr. M. on a regular basis. He witnessed the attendance of police at his home to address Ms. M.’s issues and to deal with Ms. M.’s mental health crises. He spent time in a kin placement in May 2018 following Ms. M’s involuntary admission to hospital and then then spent several months in foster care following Ms. M.’s second involuntary hospitalization in August 2018. He has had to undergo numerous interviews by Society staff and the police to investigate his grandmother’s concerns. Despite his repeated denials of any abuse at the hands of Mr. M., Ms. M. has persisted over the past several years in telling him that he was sexually molested by him. It is clear from the evidence that all of these events have been extremely confusing and traumatic for E.P.

[72] In addition, Ms. M. has had considerable difficulty maintaining consistent and positive interactions with E.P. since 2018, and this has caused E.P. additional anguish. As I have indicated, the Society arranged for twice weekly visits between Ms. M. and E.P. at the Society’s offices after his admission to foster care on August 27, 2018, but Ms. M. missed many visits and arrived late for many others. E.P. would become extremely upset when he attended the Society’s offices and his grandmother failed to show for visits. In response to his distress, the Society implemented graduated measures to ensure that Ms. M. would attend visits before bringing E.P. to the office. It initially required Ms. M. to call the Society in advance to confirm her intention to attend, but this did not resolve the problem. The Society then required her to actually show up for visits an hour early as a condition of transporting E.P. to the visits. Ms. M. was also unable to comply with this direction consistently, and when some visits were cancelled due to her non-compliance, she cancelled the Society visits altogether. Efforts on the part of Mr. and Mrs. P. to facilitate telephone and text contact were unsuccessful, as Ms. M. did not answer the calls or respond to E.P.’s texts. All of these events were also very upsetting and hurtful to E.P.

[73] As I have discussed in these Reasons, there were serious concerns regarding Ms. M.’s interactions and discussions with E.P. during the visits that did occur at the Society’s offices and later at the home of E.P.’s maternal great grandparents. Ms. M. spoke to E.P. about numerous inappropriate topics that made E.P. feel very uncomfortable, including discussions about Mr. M., and efforts to redirect her did not result in any significant improvement. These problems came to a head during a visit at the home of the maternal great grandparents on October 22, 2019, when Ms. M. talked to E.P. about Mr. M. again and accused him of secretly meeting with Mr. M. in the community. E.P. was extremely traumatized by his interactions with his grandmother on that day and has still not recovered from the stress that his interactions with his grandmother caused him.

[74] E.P. has done remarkably well considering all of these challenges. However, he has clearly and consistently indicated since October 2019 that he cannot manage face-to-face contact with his grandmother, as he has great fear that she will engage him in confusing and hurtful conversations again about Mr. M. and other issues. The ongoing concerns respecting Ms. M.’s unstable mental health, her lack of insight into her difficulties, her non-compliance with recommendations made by various mental health professionals and her interactions with E.P. lead me to conclude that E.P. would be at considerable risk of suffering further disruption and significant emotional harm if he were returned to Ms. M.’s care.

III. ISSUE #2: IS THERE A GENUINE ISSUE REQUIRING A TRIAL RESPECTING THE PLACEMENT THAT IS IN E.P.’S BEST INTERESTS?

[75] Having concluded that E.P. continues to require protection, it is necessary to address if there is a genuine issue requiring a trial as to whether the custody order that the Society seeks is in his best interests. I conclude that there is not. The evidence before me overwhelmingly supports the conclusion that an order placing E.P. in the care and custody of Mr. and Mrs. P. is in his best interests. In reaching my decision on this issue, I have carefully considered the factors set out in sections 101 and 74(3) of the CYFSA, the commitments set out in the preamble to the legislation and the purposes of the CYFSA as set out in section 1 of the Act.

[76] My conclusion that an order placing E.P. in the care and custody of Mr. and Mrs. P. is in his best interests is based in large part on the seriousness and enduring nature of the protection concerns that I have outlined above. I have also considered E.P.’s views and wishes, and the weight that I should give them having regard for his age and maturity. Ms. Mendes da Costa indicated that E.P. is an intelligent youth and that he has consistently stated since being placed with Mr. and Mrs. P. that he wishes to remain in their care. More recently, he has stated that he wants this to be a permanent placement. Although he loves his grandmother, he has clearly indicated that he does not wish to return to her care, and that he cannot even manage face-to-face visits with her at this time. E.P. is now 14.5 years old, and it is apparent from the evidence that he is a sensitive, insightful, caring, mature and very well-adjusted youth notwithstanding the many hardships that he has experienced in his life. There is no evidence before the court suggesting that his views and preferences as relayed to his counsel and Society staff have been influenced. I am satisfied that they are his true wishes. Having regard for these considerations, it is appropriate to give significant weight to E.P.s views and wishes as relayed by Ms. Mendes da Costa.

[77] I have carefully considered E.P.s’ emotional ties to his grandmother Ms. M. and to Mr. and Mrs. P. It is clear from the evidence that he loves all of them very much. With respect to Ms. M., his relationship and emotional ties with her have made it very difficult for him to reach the decision that he has made that he wishes to remain with Mr. and Mrs. P. It is clear from text messages that he wrote to Ms. M. in November 2020 that he worries about her and that he has feelings of guilt about his wish to remain with his great aunt and uncle. It is also clear from those messages that despite his love, affection and concern for his grandmother, he does not feel that he can return to her care because the experiences that he had with her were “too much,” and he could not deal with them like he thought he would be able to.

[78] Unfortunately, E.P. has experienced a great deal of disruption in his life due to the personal challenges of his mother and Ms. M. He has now been in the care of Mr. and Mrs. P. on a consistent basis for 2.5 years. The evidence indicates that he feels happy and secure in this placement. It is critical to E.P.’s overall wellbeing that a permanent plan be implemented at this stage so that he can have a secure place as a member of this family. The evidence satisfies me that a disruption of this placement or a further delay in establishing a permanent plan for E.P. would have very significant negative repercussions in terms of E.P.’s emotional wellness.

[79] I conclude that an order placing E.P. in the care and custody of Mr. and Mrs. P. will ensure that all of his physical, emotional and developmental needs are fully met. E.P. has been in this placement for 2.5 years and has done very well in the care of Mr. and Mrs. P. He does not have any behavioural issues and is consistently described as a kind and well-mannered young man. E.P. has not expressed any concerns regarding the care that Mr. and Mrs. P. have provided to him or their interactions with him. E.P. has attended school regularly since being placed with Mr. and Mrs. P. and has been involved in extracurricular activities, including basketball and the Niagara Regional School Mathematics competition. Mr. and Mrs. P. have ensured that all of his medical, dental and other needs have been met. In addition, they have worked diligently with the Society to encourage and facilitate contact between E.P. and his grandmother Ms. M., and they have also supported and facilitated contact between E.P. and his other family members.

[80] Finally, I have considered the efforts that the society and other community professionals have made to assist Ms. M. in addressing the protection concerns over the years, and Ms. M.’s ability to engage in a meaningful and productive way with those professionals. I have discussed at length the services that Ms. M. has received to assist and support her in identifying and resolving her mental health issues. She has been assessed and treated at St. Joseph’s Hospital and the Community Psychiatry Clinic in Hamilton. Unfortunately, she has not followed through with the recommendations that those service providers made, and she has disagreed with their conclusions and diagnoses. She has also received the support of numerous family physicians, including Dr. Smosarski, Dr. Warren, Dr. Keerken and now Dr. Oliver. Dr. Smosarski referred her to a pain clinic and worked with her to reduce her pain medication levels. She did not follow through with the recommendations of Dr. Smosarski respecting her mental health, and he discharged her from his care due to her dysregulated conduct with him and his staff. Ms. M. did not follow through with the recommendations of Dr. Warren either, and she eventually chose to leave Dr. Warren’s care in early 2019 stating simply that Dr. Warren was not doing her job.

[81] The evidence indicates that Ms. M.’s interactions with Society staff over the years have often been extremely challenging and strained. She has frequently become escalated and defensive with Society workers and has been inconsistent in providing information and signing consents for the release of records and information required to properly manage her file with the Society. She did not comply with protocols that were established to manage her inconsistency in attending visits and did not follow the Society’s directions about not talking to E.P. about Mr. M. during visits. In addition, she has at times been resistant to meeting with Society staff outside of court. Society workers have also struggled to maintain regular communication with Ms. M. There have been periods when her telephone number has been out of service, when she has not answered the Society’s calls, when she has not responded to messages left by Society staff, and when she has blocked the Society’s number. In addition, she has on occasion claimed that she did not receive mail from the Society, alleging that someone was tampering with her mail.

[82] Unfortunately, the Society’s challenges in maintaining contact and a working relationship with Ms. M. have persisted since the final order dated June 11, 2019. In January 2020, Ms. M. admitted to recording her phone calls with the Society. Between February 13, 2020 and June 25, 2020, Society worker Ms. Hamilton made several attempts to reach Ms. M. using the phone numbers that the Society had on file for her. However, none of these attempts were successful. There was a court appearance on March 11, 2020 at which time Ms. Hamilton hoped to confirm Ms. M.s’ contact information, but Ms. M. did not attend court on that date. On April 28, 2020 Ms. Hamilton sent Ms. M. a letter to the address on file with the Society, indicating that she had been trying to reach her on the phone numbers in the Society records without success. Ms. Hamilton asked her to call her to provide her current contact information. Ms. M. did not call until two months later, on June 25, 2020. On that date, she left a voice mail message for Ms. Hamilton indicating she had not changed her phone number. However, the telephone number that she left on the voicemail message did not match any of the numbers that were in the Society’s records. Having regard for the difficulties that the Society and other professionals have experienced in attempting to work with Ms. M. to resolve the protection concerns and implement long term gains, I am not satisfied that the concerns that I have discussed could be addressed by means of an order placing E.P. with Ms. M. subject to Society supervision.

[83] For all of the reasons set out above, I am satisfied that an order placing E.P. in the care and custody of Mr. and Mrs. P. pursuant to section 102 of the CYFSA is clearly in his best interests at this time, and that this is the only realistic placement outcome of this Amended Status Review Application.

IV. ISSUE #3: IS THERE A GENUINE ISSUE REQUIRING A TRIAL AS TO THE ACCESS TERMS THAT ARE IN E.P.’S BEST INTERESTS?

[84] The final issue to be addressed on this motion is the question of access between Ms. M. and E.P. All parties acknowledge that some form of access with Ms. M. is in E.P.’s best interests, and I agree. Although E.P. has not had face-to-face contact with Ms. M. since October 2019, he has recently had text communication with her. As I have indicated, he clearly loves Ms. M. and had many positive experiences and memories with her, notwithstanding the problems that I have discussed in these Reasons. It is clear from E.P.’s text messages to Ms. M. in November 2020 that he wishes to maintain a relationship with her, even though he cannot emotionally deal with direct face-to-face visits at this point.

[85] The Society requests an order for access to Ms. M. to be in the discretion of Mr. and Mrs. P., in consultation with the child. As I have indicated, the Ontario Divisional Court has held that upon determining that access is in the best interests of a child pursuant to the CYFSA, the court must establish at least the minimum amount of access that should occur and cannot leave this issue to the complete discretion of the Society or other third parties. This is particularly important where a permanent placement is being ordered. The Society, E.P.’s counsel Ms. Mendes da Costa and Mr. and Mrs. P. all clearly acknowledge that E.P. is comfortable with communication with his grandmother by text at this time, as initiated by him or Ms. M., and this is a form of access. They have all clearly supported this form of access to date. Given the high level of emotional distress that face-to-face contact has caused E.P. in the past, it is in my view critical to E.P.’s emotional health that his wishes regarding contact with his grandmother be respected. Accordingly, I conclude that it is in E.P.’s best interests that Ms. M. be granted access to him, commencing with text communication as initiated by him or Ms. M., and with the specifics of any additional access to be as agreed upon between E.P. and his caregivers Mr. and Mrs. P. in consultation with Ms. M. This access will be conditional on Ms. M. refraining absolutely from discussing any issues respecting Mr. M. with E.P.

PART 6: TERMS OF ORDER TO ISSUE

[86] Based on these Reasons, a final order shall issue upon the following terms and conditions:

1. The child E.M.J.E.P., born […], 2006, continues to be in need of protection.

[87] A separate final order shall issue under the style of cause “A. B.-P. and J. P. (Applicants) and C.M. (Respondent) upon the following terms and conditions:

1. A.B.-P. and J.P. shall have care and custody of the child E.M.J.E.P, born […], 2006 (“the child”), pursuant to section 102(1) of the Child, Youth and Family Services Act.

2. C.M. shall have access to the child commencing with at minimum text communication as initiated by the child or C.M. Any additional access between C.M. and the child shall be as agreed upon between A.B.-P., J.P. and the child, in consultation with C.M.

3. C.M.’s access to the child shall be subject to the condition that she refrain absolutely from talking about Mr. E.M. with the child.

4. The Society shall be given at least 60 days notice of any court proceeding that includes a request to change the terms of this order.

5. Approval of the draft of this order as to form and content by A.B.-P., J.P. and C.M. is dispensed with.

Released: May 31, 2021

COURT FILE NO. C 2161/06

DATE: 2021-05-31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton

Applicant

– and –

C.M., A.B.-P. and J.P.

Respondents

REASONS FOR JUDGMENT

Chappel J.

Released: May 31, 2021