COURT FILE NO.: FC-19-477
DATE: 2021/07/12
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.
ONTARIO
SUPERIOR COURT OF JUSTICE – UNIFIED FAMILY COURT
B E T W E E N:
Children’s Aid Society of the Regional Municipality of Waterloo
J. Boich, for the Applicant
Applicant
- and -
A.L.P.
Respondent Mother
J.B., noted in default December 10, 2020
Respondent Father
A. Towlson, for the Respondent Mother
HEARD: June 24, 2021
Breithaupt Smith, J.
REASONS FOR JUDGMENT
Introduction
[1] The Applicant Society (the “Society”) brings a Motion for Summary Judgment seeking a Final Order placing the child, B.M.J.B., in the care of his Maternal Grandmother, J.G., for six months on terms of supervision. The Order under review is that of Madam Justice D. Piccoli dated January 14, 2020, being a supervision order under terms similar to those sought by the Society in its Status Review Application.
[2] Sadly, no one has heard from Mother for several months. She was discharged from hospital following a stroke or some other sort of capacity-impacting medical incident and was initially residing with Maternal Grandmother. The medical incident occurred on or about December 15, 2020. A number of court attendances were adjourned in the hope that someone, whether a Society worker or an employee of Ms. Towlson’s office, would be able to connect with Mother.
[3] Long before the incident, on May 19, 2020, Mother instructed Ms. Towlson to serve and file her Answer and Plan of Care. In it, Mother submitted the following:
a. that on January 16, 2020 she had an isolated relapse of her drug addiction;
b. that her plan to care for B.M.J.B. was based upon her continued residence with her mother, Maternal Grandmother;
c. that both Maternal Grandmother and Maternal Great-Grandmother (who has assisted in caring for the child), supported her plan; and
d. although her primary position was for B.M.J.B. to be placed in her care, her alternative position was for the child to be placed in her care jointly with Maternal Grandmother.
[4] Father, J.B., was noted in default on December 10, 2020 and is not participating in this litigation.
[5] Ms. Jessica Vanhevel was the Family Service Worker from July 9, 2019 through to February 9, 2021. In her Affidavit of June 10, 2021, she attests that:
a. on January 16, 2020, Mother used Fentanyl at Maternal Great-Grandmother’s home in the presence of the child, fell unconscious and was taken to hospital;[^1]
b. throughout February of 2020, Mother was unable to attend visits with B.M.J.B. with any consistency, regularly forgetting the date and/or attending on the wrong day, and appeared high on one specific occasion;
c. a comparison of positive drug screens from December and January with dates upon which Mother had parenting time with B.M.J.B. supervised by maternal family showed that she was using while in a care-giving role;
d. in May and June of 2020, Mother had almost-daily socially distanced visits with B.M.J.B. at Maternal Great-Grandmother’s home, which went well;
e. although Mother expressed interest in meeting with trauma specialist psychologist Dr. Kristen McLeod, she did not attend the scheduled intake appointment;
f. between September 1, 2020 and November 6, 2020, Mother had very sporadic contact with Maternal Grandmother and was not responsive to the Society;
g. by December 29, 2020, sufficient contact had resumed such that an in-person visit was arranged between Mother and B.M.J.B. at Maternal Great-Grandmother’s home, with Ms. Vanhevel in attendance to meet with Mother;
h. on December 29, 2020, Ms. Vanhevel learned that Mother had been admitted to hospital on or about December 15, 2020 following seizures and had remained there for observation for ten days, during which period Mother suffered unexplained memory loss;
i. on December 29, 2020, Ms. Vanhevel observed Mother to respond to the discussions in a “childlike manner” making comments such as “that is my baby, I made that, can you believe it?” repeatedly;
j. on December 31, 2020, Ms. Vanhevel and Maternal Great-Grandmother facilitated a further visit at which Maternal Grandmother was also present, and Ms. Vanhevel observed that Mother was unable to determine how to remove B.M.J.B.’s shirt;
k. on January 13, 2021, another Society staff-person met with Mother and obtained signed consents for the release of information from service providers with whom Mother was working;
l. between January 13, 2021 and May 27, 2021, the Society had no contact from Mother despite numerous attempts.
[6] Mr. Allen Hamilton took over carriage of the file effective February 9, 2021. In his Affidavit dated June 14, 2021, he attests that:
a. he has had only one point of contact with Mother since taking over the file despite numerous attempts to reach out to her;
b. Maternal Grandmother similarly has not heard from Mother in several months;
c. on May 3, 2021, Waterloo Regional Police Services (“WRPS”) sent the Society a report indicating that Mother had been identified as the victim of a physical assault at a residence on Lancaster Street in Kitchener and was transported to hospital for medical treatment; and
d. on […], 2021, Mother telephoned him from a friend’s number asking for a visit with B.M.J.B. as it was the child’s birthday, but no visit in fact took place.
Positions of the Parties
[7] The Society’s position is that there is no genuine issue requiring a trial in this matter and that it is possible for the court to reach a fair and just determination based upon the written record, which could be augmented as may be necessary having regard to the court’s powers under Family Law Rules 16(6.1) and 16(6.2). Simply stated, Mother is not in a position to care for B.M.J.B., who is already residing with kin, and no other person has put in a plan to care for the child.
[8] For Mother, Ms. Towlson concedes that it is obvious that her client cannot take on a care-giving role. She points out the Answer/Plan of Care in which Mother confirmed her support for a plan to have Maternal Grandmother involved in the day-to-day care of B.M.J.B. Candidly, Ms. Towlson notes that while the hope had been for a consent package to be prepared in order to finalize this matter, same simply cannot come to fruition if she is unable to locate and receive instructions from her client.
Law and Analysis
A. Summary Judgment in the Child Protection Context
[9] As alluded to above, this matter would have been resolvable on consent but for Mother’s disconnection from the process. It is important to strike a balance in such matters between conducting a fulsome analysis so as to ensure that all necessary issues are addressed and managing the Court’s intense workload so as apportion precious resources among all families who seek help from the Unified Family Court. In that regard, this Summary Judgment Motion was conducted on the basis of the written record only. Using a standard return date (“Speak To” date) as the launch point, I seized myself of this Summary Judgment Motion and indicated in my Endorsement that the Application was adjourned sine die to a date to be arranged through the Trial Co-ordination office if required. Such future date would only become necessary if I were to dismiss the Summary Judgment Motion.
[10] The leading case on Summary Judgment in the context of child protection proceedings is Kawartha-Haliburton C.A.S. v. M.W., Curve Lake First Nation, and OCL, 2019 ONCA 316 (“Kawartha-Haliburton C.A.S.”). In that case, Madam Justice Benotto on behalf of the Court of Appeal set out the specific considerations needed in these matters at paragraphs 62 through 80 of her decision. At paragraph 80 of the decision in Kawartha-Haliburton C.A.S., Justice Benotto wrote:
To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:
Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
[omitted as not applicable to the case at bar].
[omitted as not applicable to the case at bar].
I will apply each of these directives in turn below.
Directives #1 & #2: Has the Society demonstrated on the balance of probabilities that there is no genuine issue requiring a trial, viewed through the specific lens applicable to child protection proceedings?
[11] Madam Justice Benotto’s first directive asks courts of first instance to determine whether a particular child protection case is suitable for Summary Judgment. In order to do so, the applicable legal test must be defined so as to best understand the triable issues, if any.
[12] The two-stage test to be applied on a Status Review Application is as set out in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, and referenced most recently by the Ontario Court of Appeal in Children’s Aid Society of Oxford County v. W.T.C., 2013 ONCA 491:
Does the child continue to be in need of protection?
If so, which of the available range of orders is in the child’s best interests?
[13] There is simply no question that B.M.J.B. continues to be in need of protection. Although in theory the Court could make any of the orders available under section 101(1) of the Child, Youth and Family Services Act, 2017 (“CYFSA”), the least intrusive thereof is a supervision order in the care of kin. That is the order sought by the Society. The Society also seeks a term for parenting time between each parent and the child at the Society’s discretion, and the evidence provided shows that the Society and maternal family have worked collaboratively together to facilitate visits between Mother and the child when Mother has participated.
[14] Therefore, on the balance of probabilities, there is no genuine issue requiring a trial.
Directive #3: Evidentiary Considerations
[15] Much of the evidence regarding the details of Mother’s hospitalization is double or triple hearsay, for example Ms. Vanhevel’s recital of Maternal Grandmother’s report regarding the MRI performed on Mother during her hospitalization. This is obviously inadmissible. Similarly, no original records regarding Mother’s positive drug screens or subsequent refusals to provide urine samples were submitted. Mother admitted in her Answer/Plan of Care that she experienced a relapse and rendered herself unconscious using Fentanyl on January 16, 2020 but claimed in that document that it was a single occurrence on her path to sobriety. Importantly, however, the Society is not really relying either upon Mother’s medical condition or upon her alleged drug use in its position. Rather, Mother is unable to care for B.M.J.B. because of her own disconnection from the child over the last eighteen months. However, having regard to the phrasing of section 74(2)(k) of the CYFSA, it cannot be said that Mother has abandoned B.M.J.B.
[16] It must be remembered that, even where there is no meaningful opposition to the basic facts as presented by the Society in support of a final order, the court retains a gate-keeping function to ensure that the evidence meets the same rigorous requirements whether it is in the context of summary judgment or trial. Here, it is not necessary for me to base any decision upon inadmissible hearsay.
[17] Based on the admissible evidence submitted, including Mother’s factual admission and alternative pleading in her Answer/Plan of Care, I find that the child continues to be in need of protection and that the Order sought by the Society is the least intrusive in the best interests of the child pursuant to section 101(1) of the CYFSA.
Order
[18] Therefore, a Final Order shall issue in the terms as set out at paragraphs 1 through 4 of the Society’s Notice of Motion dated June 14, 2021 and returnable June 24, 2021.
J. Breithaupt Smith, J.
Released: July 12, 2021
COURT FILE NO.: FC-19-477
DATE: 2021/07/12
ONTARIO
SUPERIOR COURT OF JUSTICE
– UNIFIED FAMILY COURT
B E T W E E N:
Children’s Aid Society of the Regional Municipality of Waterloo, Applicant
- and-
A.L.P., Respondent Mother
J.B., noted in default December 10, 2020, Respondent Father
REASONS FOR JUDGMENT
J. Breithaupt Smith, J.
Released: July 12, 2021
[^1]: Note that although this evidence is hearsay, presumably based upon comments made to Ms. Vanhevel by Maternal Grandmother and possibly by hospital staff, Mother specifically admits that she had a relapse on this date.