Simcoe Muskoka Child, Youth and Family Services v. J.N. and C.F., 2021 ONSC 4783

BARRIE COURT FILE NO.: FC-19-984-00

DATE: 20210707

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simcoe Muskoka Child, Youth and Family Services, Applicant

AND:

J.N., Respondent Mother

C.F., Respondent Father

BEFORE: The Honourable Madam Justice R. S. Jain

COUNSEL: J. Hustins, Counsel for the Applicant J.N., Self-Represented C. Allen, Counsel for the Respondent Father

HEARD: June 4, 2021

ENDORSEMENT

Introduction

[1] The child, N.N., was born on [...], 2019 and was placed in the interim care of Simcoe Muskoka Child, Youth and Family Services (hereinafter referred to as “the Society”) on August 14, 2019 by Order of Olah J. In the fall of 2020, the Society stated its intention to amend their Application to seek extended care. On January 7, 2021 the Society amended its Application to seek an order placing the child in the extended care of the Society with access to the parents. The father has never served or filed an Answer and Plan of Care.

[2] The Society has brought a motion pursuant to r. 16 of the Family Law Rules[^1] (all references to rules in this decision are to the Family Law Rules – hereinafter referred to as the “Rules”) seeking the following:

1. An order making the statutory findings pursuant to s. 90(2) of the Child, Youth and Family Services Act[^2] (hereinafter referred to as “the CYFSA” or “the Act”);

2. An order finding the child, N.N., born [...], 2019, is in need of protection pursuant to ss. 74(2)(b)(ii) and (h) of the CYFSA;

3. An order placing the child, N.N., in the Extended Society Care of the Simcoe Muskoka Child, Youth and Family Services with access to the Mother or Father.

[3] This motion for summary judgment was originally brought in January 2021. Despite numerous court dates, adjournments of the motion for summary judgment and warnings from the court, neither of the parents served or filed anything on this matter. The court adjourned this motion for summary judgment three times: January 15, 2021; March 22, 2021; and May 14, 2021.

[4] In my endorsement of May 14, 2021, I adjourned the motion for summary judgment to the trial sittings so that the parents would have adequate time to prepare responding materials and/or to give oral evidence (one hour each) pursuant to r. 16(6.2). On May 14, 2021, the court advised the parents that this was the last adjournment and that by giving them the opportunity to give oral evidence, the court was doing its utmost to reach a fair and just determination on the merits of the motion for summary judgment. It was made clear to the parents that the relief being sought by the Society was very serious. This matter needed a final resolution as the child N.N. had been in care for almost two years and required permanency. Both parents were warned and cautioned more than once that the motion would not be adjourned again. They were further cautioned that in giving them an opportunity to give oral evidence, they cannot “rest on mere allegations or denials” pursuant to r. 16(4.1). The court advised the parents that their evidence would need to be specific and factual. They were told that they would be able to provide the court with the facts of their side of the story and a detailed plan of care.

[5] Despite all the above, the parents did not serve or file any responding materials for the Society’s motion for summary judgment. The parents attended at the hearing and advised the court they opposed the finding in need of protection and the disposition sought by the Society. The parents request the Society’s motion for summary judgment be dismissed and that N.N. be immediately returned to their care.

[6] In addition to hearing oral evidence provided by the respondent parents, I have read and relied on the following documents:

(a) Society Motion for Summary Judgment, dated May 10, 2021;

(b) Affidavit of Child Protection Worker (“CPW”), Lisa Malito, dated October 13, 2020;

(c) Affidavit of Lisa Malito dated January 4, 2021;

(d) Affidavit of Lisa Malito dated May 11, 2021;

(e) Affidavit of Family Support Worker (“FSW”) G. Legacy dated January 6, 2021; and

(f) Affidavit of Family Support Worker (“FSW”) K. Morton dated January 6, 2021.

Issues

[7] The issues for this motion for summary judgment are as follows:

1. Has the Society demonstrated a prima facie case in support of an Order making the statutory and protection findings pursuant to the CYFSA?

2. If so, has the Society demonstrated a prima facie case in support of an Order placing the child N.N. in the extended care of the Society with access to the Mother and Father?

Decision

[8] The Society has demonstrated a prima facie case in support of the relief sought in the Society’s motion for summary judgment. There will be a final order finding the child in need of protection and placing him in the extended care of the Society with access to the parents.

Analysis

Summary Judgment

[9] The Society brings this motion pursuant to r. 16 of the Rules – the Summary Judgment rule.

[10] The burden of proof is on the party moving for summary judgment (i.e. the Society). Pursuant to r. 16(4.1), the responding party 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. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence that they would be able to adduce at trial (see: Children’s Aid Society of Toronto v. K.T., 2000 20578 (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.).

[11] A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial. The parents need more than genuine and heartfelt expressions of their desire to resume care of the child. There must be something discernable from the parents’ evidence to show they face some better prospects than what existed at the time of the Society’s removal of the child from their care. (See: Children’s Aid Society of Toronto v. R.H., 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.); Catholic Children’s Aid Society of Hamilton v. W. (B.)., 2015 ONSC 7621, para. 90).

[12] Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (see: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 80).

[13] As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes the principle in Hryniak v. Mauldin, 2014 SCC 7 of reaching a fair and just determination on the merits (see: Kawartha, at para. 76).

[14] Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial, the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child (see: Kawartha, at paras. 64 and 80).

[15] The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in several ways. It has been equated with “no chance of success” or that it is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is [a] foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant” (see: Kawartha, at para. 72).

[16] Rule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[17] Rule 16(6.1) provides that in determining if there is no 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 only exercised at trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[18] Pursuant to r. 16(6.2) the court may, for the purpose of exercising any of the powers set out in r. 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[19] In Hryniak, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

[20] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak, at para. 49). As the Supreme Court stated, at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (see: Kawartha, at para. 63).

[21] An order for extended care with access severely limits the parent-child relationship. Pursuant to rr. 16(6.1) and 16(6.2) and pursuant to key principles regarding the use of summary judgment as articulated in Hryniak and as explained in Kawartha, the court needs to use “exceptional caution” for summary judgment in the child protection context.

[22] I find that it is in the interest of justice for the court to determine this case summarily, based on the evidence before me, and with the use of the courts expanded powers to weigh evidence, assess credibility and draw reasonable inferences. In order to do this, I allowed limited oral evidence and submissions by the respondent parents even though they had not filed any materials. The oral evidence assisted the court in carefully assessing this evidence and in fulfilling the objectives of the CYFSA.

[23] I have considered that I should exercise exceptional caution before proceeding on a summary basis in this child protection case. I recognize and have considered that in child protection proceedings like the one before me, there are Charter implications at stake for vulnerable litigants like the respondents. I gave special consideration to the reality of the implications of this summary judgment motion for the participants, both the parents and the child.

[24] As stated in Kawartha, at paras. 68-69:

Reality of the child protection litigant

[68] The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. As Justice L’Heureux-Dubé noted in her concurring reasons in G. (J.), at para. 113, “women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings”. She continued at para. 114:

As well as affecting women in particular, issues of fairness in child protection hearings also have particular importance for the interests of women and men who are members of other disadvantaged and vulnerable groups, particularly visible minorities, Aboriginal people, and the disabled. As noted by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745 (1982), at p. 763:

Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups. . . such proceedings are often vulnerable to judgments based on cultural or class bias.

Similarly, Professors Cossman and Rogerson note that “The parents in child protection cases are typically the most disadvantaged and vulnerable within the family law system . . . .”: “Case Study in the Provision of Legal Aid: Family Law”, in Report of the Ontario Legal Aid Review: A Blueprint of Publicly Funded Legal Services (1997), 773, at p. 787.

[69] Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms. The miscarriages of justice outlined in the Report of the Motherisk Commission (2018: Ontario Ministry of the Attorney General) speak, by way of example, to the significant imbalance between parents and Children’s Aid Societies, noting that parents, even when represented by counsel, were “simply overpowered” (at p. 121). Fairness in the child protection context demands recognition of these dynamics.

[25] This court recognized the reality of both parents as vulnerable child protection litigants. The father was represented by experienced counsel, namely Ms. Allen. Despite this, and despite numerous warnings, he did not complete or submit an Answer and Plan of Care or responding materials for the motion for summary judgment. The mother had legal representation for a significant period, however, on March 22, 2021 it was discovered that her lawyer was suspended by the Law Society of Ontario. She was granted an adjournment that day in order to retain new counsel. On May 14, 2021 the parents requested a third adjournment. The Society opposed the adjournment because the child had been in care of the Society for 22 months and required permanency. Despite the Society’s opposition, the court granted a third (and final) adjournment so that the mother could retain new counsel. During the adjournment period, the mother did not retain a lawyer for the hearing, nor did she serve or file any responding materials.

[26] This court recognized the dynamics and the significant imbalance between the parents and the Society, this court did many things to level the field for the respondent parents. In addition to granting the parents three adjournments of the motion for summary judgment, this court: gave the parents time to file materials; advised and gave the parents multiple warnings about the seriousness of this summary judgment motion; and advised the parents of the need for a permanent plan for the child. Finally, when it became quite clear that the parents may never file any responding materials, this court gave the parents an opportunity to give oral evidence at the hearing and allowed them to make submissions to the court (despite never filing any materials).

[27] Despite all the above, on June 4, 2021, the parents attended and sought a fourth adjournment. The Society opposed and counsel for the Society, Mr. Hustins, stressed the length of time the child has been in care and the fact that the timelines have long passed. N.N. has been in care since birth and is now almost two years old and requires permanency. The parents have received numerous warnings that this motion would go forward. The father had counsel and he still never filed materials. The mother did not retain another lawyer and did not serve or file any materials for the motion. In my view, it was not in the child’s best interests to delay the hearing again especially when it was unlikely that anything would change if the adjournment was granted. For all these reasons, I denied the parents’ request for a fourth adjournment.

[28] I found that the resolution of this matter by way of summary judgment motion (with some limited oral evidence) was not merely efficient and expeditious, but was a desirable and necessary mechanism to achieve the objectives of the CYFSA. I found that the evidentiary record was sufficiently comprehensive on all other aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a full trial. Cross-examination of any other witnesses would add little, if any, value to the court’s analysis. I found that the summary judgment process allowed the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result.

[29] For the reasons set out below, I find that the Society has met their onus and established, on a balance of probabilities, a prima facie case for summary judgment with respect to each aspect of the relief sought. I find that if this matter proceeded to trial there is no realistic possibility of an outcome other than that sought by the Society.

Statutory and Protection Findings

[30] The parents did not dispute the statutory findings. As such, the court will make an order regarding the statutory findings pursuant to s. 90 of the CYFSA.

[31] The onus is on the Society to prove on a balance of probabilities that N.N. is in need of protection. The risks do not need to be intentional. The Society seeks a finding in need of protection pursuant to s. 74(2)(b)(ii), (f) and (h) of the CYFSA. According to those provisions, a child is in need of protection where:

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behavior, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the action, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii) (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

Positions and evidence of the Society and the Parents

[32] The circumstances that brought the child to the attention of the Society predated N.N.’s actual birth. Dr. Lewin (the mother’s doctor) contacted the Society on July 5, 2019 and reported that the mother was approximately 35 weeks pregnant and that the mother had a previous child apprehended in 2014. He reported that at that time, the mother was struggling with misuse of drugs, her mental health and living with domestic violence. Dr. Lewin expressed that he thought the mother was in a more positive place in her life now, but that he wanted to ensure she had adequate supports in place.

[33] The Society attempted to work with the mother leading up to the child’s birth. They offered services and supports, yet the mother was inconsistent in her engagement and communication with the Society and other supports both before and after the birth of the child.[^3] Despite the Society’s efforts, the child ended up being born in a crisis primarily due to the mother’s neglect of her pre-natal care; the mother not following her doctor’s orders; and the mother’s misuse of drugs.[^4] On [...], 2019 the child was born requiring breathing intervention upon delivery and his arm was fractured in the emergent delivery process. Blood test results for the baby and the mother were positive for marijuana.

[34] The Society’s protection concerns for the mother are extensive. She has a child protection history that dates back to her other child who was apprehended in 2014. The concerns at that time included drug misuse, ongoing mental health concerns and involvement in violent relationships. In 2015, that child was placed in the deemed custody of the maternal aunt and uncle.

[35] Unfortunately, the Society’s protection concerns about the mother in the present Application are of the same or similar nature as existed in 2014. The Society’s concerns in the present Application include substance misuse, ongoing mental health concerns; transiency; domestic violence and parent conflict; and lack of engagement and follow through with service providers.

[36] When the mother was contemplating placing N.N. for adoption, she reported to the adoption worker that she has been diagnosed with “post-traumatic stress disorder with auditory spectrum hallucinations, depression, generalized anxiety disorder, and ADHD” and she advised that she was not seeing a counsellor at the time. The mother had been hospitalized historically for concerns related to her mental health and suicidal ideation in 2016; Dr. Lewin reported that the mother attended substance misuse/mental health treatment at CMHA. The mother has since identified that this program was “not helpful” but has not entered an alternative inpatient program.[^5]

[37] The mother denied misusing drugs. However, despite her denials, in my view there is ample evidence that this is a significant child protection concern. The child was born with marijuana in his system.[^6] The hospital staff “monitored the child for symptoms of withdrawal, and the child continued to experience body tremors upon discharge.”[^7] During the mother’s interactions with the Society and on more than one occasion, she presented as “under the influence as evidenced by slowed speech, delayed responses, responses that were not rational or that followed flow of conversation.”[^8] After the birth of the child, a nurse reported that “initially the mother was presenting with some flat affect.”[^9] During a meeting at the Society office the father “reported that the mother used crack cocaine throughout her pregnancy.”[^10] The mother’s misuse of drugs was corroborated by other family members and friends.

[38] Both parents admitted to parental conflict at different times and blamed each other. They have engaged in heated arguments during meetings and at the hospital. The police have been called on numerous occasions due to the concerns about the parents conflict and domestic violence.[^11] The mother confirmed her concerns about the father’s temper and his abuse of her.[^12] The mother and father have both commented on the mother’s inability to regulate herself.

[39] The mother’s oral evidence was very brief and unfortunately unhelpful to the court. She showed little to no insight into the protection concerns and presented no plan. She was either speaking in a very pressured and fast manner or she was yelling. When asked to tell her side of the story and to tell the court what she wants and why, she simply answered, “the Society fucked me” and “I never got a fair chance.” When asked why she thought it would be in the child’s best interests to be in her care, she simply answered “I’m his mother, that’s why.” When asked about her mental health challenges, domestic violence and why the police come to her residence so often, she said, “people push my buttons all the time.” When asked about her plan, she answered that “I had my daughter for seven years with no problem so why not now?” When asked why her daughter did not live with her, she answered “because the Society and father agreed that it would be better for her to live with my sister.” Lastly, the mother made a general statement that she is “not a bad person” and “I never got a fair shot.”

[40] It is understandable that the mother was upset about the proceeding. However, in my view, her presentation corroborated some of the Society workers’ descriptions of the mother’s behaviours and discussions during their interactions regarding their protection concerns. I found that the mother was unfortunately extremely disjointed and aggressive. Her evidence was unhelpful to the court and I gave it little to no weight.

[41] The Society’s protection concerns for the father include substance misuse; domestic violence and parent conflict; lack of engagement and follow through with service providers; transiency; and physical assaults. Historically, the father has two other children from other relationships that are not being raised in his care. One child resides with his mother and it is unclear whether he has regular contact or parenting time with that child. The other child was raised by the father’s parents.

[42] When the father gave oral evidence, he advised the court that he and J.N. are presenting a “joint plan” for the child. He acknowledged that “they” (meaning both the parents) “need help.” When asked what his plan was, he gave what in my view was very vague and/or evasive answers. He outlined no specific plan and instead said that “I want to eventually be a normal family.” He said that he “can communicate really well with kids and that he has been around them all his life.” He wants to “be there” for the child.

[43] The father did not deny there is conflict between the parties. When asked how he is addressing it, he said that J.N. “has separation anxiety and he needs to be there for her.” He confirmed that the police are involved with them quite regularly (about three times in the past three months) because of calls regarding allegations of domestic violence and noise. He said the police “know us” and that J.N. “calms down when the police talk to her.” He said that “if the baby was in her life, J.N. would not be so anxious.” I found that the father was evasive and very general in his answers. He blamed the mother for the repeated police involvement by referencing her “separation anxiety.” He said nothing about how his temper may be contributing to the continued domestic conflict.

[44] With respect to the parties attending counselling to address their domestic conflict issues, the father said that they started with Catholic Family Services two to three months ago when he “made the first call.” He said, “we should see them more” but that “finding the time was hard.” By admitting that they had only made their first call two to three months ago, that meant it was after the first and possibly the second adjournment of the motion for summary judgment. The father’s comments about “finding the time” confirmed for the court that this matter is not truly a priority to the parents. It was clear to the court that the parents lacked engagement and follow through.

[45] When discussing his residence, the father said that he has lived with J.N. for the past three years in a “nice little house with a yard.” He described it as a one-bedroom house and that J.N. plants flowers. He told the court that he has a “pull out for the baby.” When asked about who resided in the home with him and J.N., he said that some friends have been “staying for a couple weeks” or that they “crash” at their place.

[46] Although the father was involved with a housing support program called “Housing First,” he was discharged from the program in November 2020. The Society says that the father was discharged from the program because of lack of engagement.[^13] When asked about why he was discharged from the Housing First support program, the father said that “the housing guy was rude, so I decided not to work with him anymore.”

[47] During the Society’s involvement, the parties vacillated between being together and separated. When they were apart, the mother would express concerns about domestic violence and the father’s temper; and the father would express concerns about mother’s drug use and mental health. When they were together, they denied any concerns. When the parties separated and had stated their intention to present separate plans, the Society had required that the parents have separate visits with the child (in order to prevent the child from being exposed to parental conflict and domestic violence). Despite this, the father allowed (and possibly encouraged) the mother to be present during some of his unsupervised visits. The mother would hide at the back of the house and wait for the worker to leave. When discussing how and why he allowed J.N. to attend at the home for visits that were supposed to be just him and the child alone, the father admitted that he permitted her to be there three times per week but was evasive about whether she was there to visit the child. [^14] Despite the Society concerns about the parents domestic conflict and separations, he said that he “sort of agreed to have a separate residence, but it didn’t make sense.”

[48] When discussing the issue of providing drug screens to the Society, he said that he had “trust issues” and that if “push comes to shove, whatever I need to do, I’ll do it.” Despite numerous allegations of drug misuse, the father never provided a drug screen to the Society. He was inconsistent about his drug use; he vacillated between absolute denials to admitting it was a regular “part of his morning routine”.

[49] He advised the court that he wants a gradual increase of their access with N.N. at their home and said, “I’d be willing to work with the Society.” Generally, although the father made it clear that he cares for the child and that he has good intentions, I found his evidence lacked credibility. He gave no specific facts or plans on how he alone or he and the mother were addressing the Society’s concerns.

[50] The court found it very concerning that at this stage of the proceeding the father still had no concrete plan and little to no evidence on how he alone or jointly with the mother had addressed the Society’s protection concerns. He was minimally insightful in that he acknowledged that the parents needed help. However, the father’s lack of follow through with service providers was confirmed by his own words and actions. The court found the father to be evasive in his evidence and in his answers to any questions. The father lacked credibility and the court gave little weight to his evidence.

[51] I found the evidence of the parents to be very far from “putting their best foot forward.” Unfortunately, they did exactly what the court had warned them not to do, i.e. they simply rested on denials and provided no plan for the court to assess and no evidence or facts to support the dismissal of the Society’s motion for summary judgment.

[52] Based upon all the above, I find that the Society has demonstrated a prima facie case in support of an order finding the child N.N. in need of protection pursuant to s. 74(2)(b)(ii) and (h) of the CYFSA.

Disposition - Extended care of the Society with access to the Mother and Father

[53] The onus is on the Society to prove on a balance of probabilities that an order for extended care with access is in the best interests of the child, N.N. Section 1(1) of the CYFSA provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. Section 101(1) of the CYFSA provides that:

Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the chid in the future, the court shall make one of the following orders or an order under section 101, 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.

4. Consecutive orders of interim society care and supervision

5. 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.

[54] Section 74(3) of the CYFSA sets out the criteria the court must use to make an order or determination in the best interests of a child. As the child is an infant, N.N.’s views and preferences cannot be ascertained. N.N. is not First Nations, Inuk or Metis. The relevant subsections of s. 74(3)(c) provide that the court consider any relevant circumstances including the following:

(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 place 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.

[55] Section 105(5) and (6) of the CYFSA sets out the following:

When a court may order access to child in extended society care

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

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

[56] There are several undisputed facts that support the protection findings and disposition that are sought by the Society. Specifically:

(a) The Society was alerted to the mother’s pregnancy by the mother’s doctor. Dr. Lewin expressed concerns about the mother’s prenatal care, misuse of drugs, mental health and lack of supports.

(b) Both parents have children from previous relationships that they either have not raised and/or they have little to no contact with. The mother’s first child was apprehended and placed in the deemed custody of the maternal aunt and uncle. One of the father’s children (who is an adult now) was raised by paternal grandparents. The father’s other younger child resides with his mother.

(c) The mother did not follow doctor’s orders in attending at doctor’s appointments and attending at the hospital preceding the birth of N.N.

(d) The child N.N. was born in an emergent delivery process and required breathing intervention upon delivery and his arm was fractured.

(e) Tests taken shortly after the birth of the child showed both the child and the mother being positive for marijuana.

(f) The child was apprehended from the mother and father after his birth while he remained in hospital.

(g) Both the mother and father have failed to follow through with or engage with professionals, supports and services to address the protection concerns. This includes the Society, mental health professionals, medical professionals, housing supports and addiction supports.

(h) The police are involved regularly with the mother and father due to concerns about domestic conflict and mental health.

(i) The father has never provided a clear drug screen.

(j) Both parents have been granted numerous adjournments and been given multiple opportunities to follow through and engage in the legal process.

(k) The father has never served or filed an Answer and Plan of Care.

(l) Neither the father nor the mother served or filed any responding materials for the motion for summary judgment.

(m) Neither the father nor the mother have put forward a plan to be assessed.

(n) The child has remained in foster care since his apprehension and is now almost two years old.

(o) The child is healthy and reaching all milestones.

(p) The Society’s Family Finding has found members of the paternal and maternal sides of the family who wish to continue to have ongoing connection with the child and support him being adopted.

(q) The Society is assessing a possible family kith plan for adoption.

[57] Since the court has now made the protection findings, the choices for the court at this stage are:

1. Dismiss the Society’s motion and order a trial on the disposition.

2. Place the child with one or both parents under a supervision order.

3. Grant the Society’s motion and make an order for extended society care with access.

[58] The parents in this case have provided no evidence to the court acknowledging the Society’s concerns or the risk of harm for N.N. in their care. In order for the court to contemplate returning the child, there must be an arguable notion discernable from the parents’ evidence that they face some better prospects than what existed at the time of the Society’s removal of the child from their care. The parents in this matter have not provided any evidence that anything has or is going to change or improve. The father’s general acknowledgment that the parents “need help” is not enough to show they are going to change or improve anything.

[59] In my view, there are no other less restrictive alternatives that are adequate to protect N.N. The child has never lived with the parents and is beyond the timelines and requires permanency. A further six months of access will not substantially change either of the parent’s circumstances and it will only increase the child’s exposure to risk of harm. A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In my view, the father’s request to increase access gradually at this stage of the process is not in the best interests of the child. The Society’s plan and proposal to explore a family kith plan for adoption has merit, whereas the merits of the child remaining with or returning to the parents has little to none.[^15]

[60] As many courts have already stated, in child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. The father described his feelings that the child loves them. He went on to talk about how the mother’s separation anxiety will improve if the child was with her. He expressed a desire to be a “normal” family. The mother simply denied the Society’s concerns and expressed that the child should be with her because she is his mother. These expressions of feelings and denials are simply not enough. The court acknowledges that the parents care about N.N.; however, the parents have not provided any evidence to contradict the concerns or the evidence of the Society. Additionally, the parents have not provided any plan for the Society or the court to assess. Lastly, the father’s speculation that the mother’s mental health will improve if the child was placed in her care is not evidence that it is in the child’s best interests to do so. If anything, this suggestion by the father is the opposite of child focused. In my view, neither parent (whether presenting a plan alone or together) are able to meet the child’s physical, mental or emotional needs.

[61] The parents have been attending access with N.N. up to three times per week, supervised by the Society. According to the affidavit evidence filed, the visits are positive for the most part, but there are still instances of conflict between the parents and instances of the parents not engaging or taking direction/guidance.[^16] The Society has indicated that they are in the early stages of exploring a possible family kith plan for adoption.

[62] In my view, placing N.N. in either or both parents care under a supervision order would require a leap of faith that is simply too dangerous for such a young and vulnerable child. The parents care for N.N. However, it is also clear to the court that the parents have little credibility in regards to addressing the serious concerns about their mental health, substance misuse, parent conflict and domestic violence. Although they acknowledge some aspects of the Society’s concerns, they lack insight or motivation to connect appropriately with community supports, assist with the family finding or make the required changes. Their lack of engagement and denials may be a function of their mental health and/or addiction and/or the cycle of domestic violence. In my view, it is not in the best interests of a young child who has never lived in their care to be placed with them. I find there is no other option available to the court at this time but to make an order for the child to be placed in the extended care of the Society with access to the parents.

[63] I find that an order for extended society care with access is the only option that is in the best interests of N.N. The parents have made no significant progress in acknowledging or addressing the ongoing protection concerns. The child cannot be returned to the parents’ care on an interim supervision order. I find that the degree of the risk of harm, for the child in the parents’ care that justified the finding of the need for protection (as described above), is simply too high to place the child in their care under a supervision order. An order for extended society care with access will keep the child safe. The Society will continue their family finding efforts and assessment of the family kith plan for adoption. Access will continue between the parents and child; however, it will be reduced. In my view, the court has no other option available that is in the child’s best interests at this time but to make an order for extended care with access.

[64] Based upon all the above, I find that the Society has demonstrated a prima facie case in support of an order that the child, N.N., be placed in the extended care of the Society with access to both parents.

Order

[65] For the reasons set out above, I make the following Order:

1. The child is N.N., date of birth [...], 2019.

2. The mother of the child is J.N. The father of the child is C.F.

3. N.N. is not a First Nation, Metis or Inuit person.

4. The child N.N., born [...], 2019 is found to be a child in need of protection pursuant to s. 74(2)(b)(ii) and (h) of the Child, Youth and Family Service Act, 2017.

5. The child, N.N., shall be placed in the extended care of the Simcoe Muskoka Child, Youth and Family Services, pursuant to s. 101 of the Child, Youth and Family Services Act, 2017.

6. The child, N.N., (access holder) shall have access to the respondent parents, J.N. (access recipient) and C.F. (access recipient). Access with the respondent parents shall occur at least once per month.

7. The respondent father, C.F. shall be noted in default, having been served on October 14, 2020 with the Society’s amended Application and Affidavit and having not served and filed an Answer and Plan of Care.

The Honourable Justice Jain

Date: July 7, 2021

[^1]: Family Law Rules, O. Reg. 114/99. [^2]: Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. [^3]: Affidavit of Lisa Malito dated January 4, 2021, at paras. 16-20, 89-121 and 178-195. [^4]: Affidavit of Lisa Malito dated January 4, 2021, at paras. 21-43. [^5]: Affidavit of Lisa Malito dated January 4, 2021, at para. 25. [^6]: Affidavit of Lisa Malito dated January 4, 2021, at para. 40. [^7]: Affidavit of Lisa Malito dated January 4, 2021, at para. 45. [^8]: Affidavit of Lisa Malito dated January 4, 2021, at para. 27. [^9]: Affidavit of Lisa Malito dated January 4, 2021, at para. 31. [^10]: Affidavit of Lisa Malito dated January 4, 2021, at para. 54. [^11]: Affidavit of Lisa Malito dated January 4, 2021, at paras. 195-197. [^12]: Affidavit of Lisa Malito dated January 4, 2021, at para. 63. [^13]: Affidavit of Lisa Malito dated January 4, 2021, at para. 176. [^14]: Affidavit of Lisa Malito dated January 4, 2021, at paras. 157-160. [^15]: Affidavit of Lisa Malito dated May 14, 2021, at paras. 11-13. [^16]: Affidavit of Lisa Malito dated May 14, 2021, at paras. 3-4 and 6-8.