COURT FILE NO.: 1065/16

DATE: 2021-07-15

WARNING

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

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

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

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

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton Applicant

– and –

D.B., D.G., R.M.G., R.G. and J.M. Respondents

COUNSEL:

M. Bergart, Counsel, for the Applicant

Self-Represented Respondents, D.B., R.M.G., R.G., J.M. F. Lanza, Counsel, for D.G.

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

HEARD: July 6, 2021

JUDGMENT

The Honourable Mr. Justice A. Pazaratz

[1] This is a summary judgment motion brought by the Children’s Aid Society of Hamilton (“the Society”) within a Status Review Application relating to brothers H.R.G. age 11 and E.B.G. age four.

THE PEOPLE INVOLVED

[2] D.B. is the mother of both children. She is 35. She currently represents herself.

[3] D.G. is the father of both children. He is 45 years old. He is represented by Mr. Lanza.

[4] D.B. and D.G. have been in an unmarried relationship about 15 years. Most of their separations have been as a result of D.G. being in jail; or because the Society would not agree to the father being in their home for the safety of the children. The father was released from jail most recently in May 2021 and the parents are again back together.

[5] D.B. and D.G. have a third child together A.G. who is two months old. As a result of the parents’ history and ongoing problems, the Society intervened at birth and A.G. was placed in Society care. A separate protection application is underway. A.G. is not the subject of this summary judgment motion.

[6] J.M. is the maternal grandmother. She is a party and represents herself.

[7] R.M.G. and R.G. are the paternal grandparents. They are parties and represent themselves.

[8] H.R.G. has a lawyer, Ms. Swan, assigned through the Office of the Children’s Lawyer (“OCL”).

[9] H.R.G. has been in the full-time care of the paternal grandparents since May 2019 pursuant to a Society supervision order. Prior to that, in February 2019 the family have arranged for H.R.G. to be with the paternal grandparents weekdays.

[10] E.B.G. has remained in the maternal grandmother’s full-time care since May 2019, also pursuant to a Society supervision order.

[11] On May 12, 2021 the non-subject child A.G. was also placed in the care of the paternal grandparents, with access to the parents in the discretion of the Society, supervised in its discretion.

REQUESTED RELIEF

[12] The Society now seeks an order without a trial:

a. A finding that both children continue to be in need of protection.

b. A final order placing the child H.R.G. in the custody of the paternal grandparents pursuant to s. 102 of the Child, Youth and Family Services Act (“the Act”).

c. A final order that mother’s and father’s access with the child H.R.G. be in the discretion of the paternal grandparents as to the location, duration, frequency, level of supervision, supervisor of the visits, and to include whether or not visits take place.

d. A final order placing the child E.B.G. in the custody of the maternal grandmother pursuant to s. 102.

e. A final order that the mother’s and father’s access with the child E.B.G. be in the discretion of the maternal grandmother as to the location, duration, frequency, level of supervision, supervisor of the visits, and to include whether or not visits take place.

f. A final order that the Society shall be served with any motion or application to change in relation to the children regarding custody and/or access.

[13] The paternal grandparents and the maternal grandmother did not file any responding materials. They all support the Society’s requests.

[14] Both parents oppose the Society’s motion. They want the children returned to their care. During submissions the mother advised she did not object to H.R.G. and E.B.G. remaining in their current grandparent placements on a temporary basis pursuant to a supervision order. But ultimately the parents want the children back.

[15] On behalf of H.R.G. Ms. Swan filed an OCL factum and some additional materials. The OCL advanced alternative positions:

a. The OCL opposes summary judgment being granted on the basis that there are genuine issues requiring a trial with respect to H.R.G.’s placement; access to his parents; and sibling access.

b. If, however, the court determines that there is no triable issue with respect to returning the children to either or both of the parents, in that event the OCL supports H.R.G. being placed in the custody of the paternal grandparents, as requested in the Society’s motion.

c. If the children remain with the respective grandparents, the OCL asks that any order include two important provisions: Firstly, specific terms ensuring that H.R.G. will have sibling access with his brother E.B.G.. Secondly, specific terms ensuring that H.R.G. will have ongoing access with the parents (particularly the mother).

[16] During submissions, the Society and the grandparents were quickly able to accept some of the OCL’s proposals.

a. The Society and the grandparents all agreed that the order they are seeking should include provision that as a minimum the parents would be entitled to access to each child at least three hours per week. The grandparents indicated that they were quite prepared to be flexible with liberal and regular access.

b. The Society and the grandparents also consented to the OCL request that the order include specified sibling access at least twice per month for a minimum of two hours, with both children to be identified as access recipients and access holders.

c. However, those concessions did not change the parents’ opposition to any order being granted by way of summary judgment.

MATERIALS

[17] I received and reviewed the following materials served and filed prior to the 11:00 a.m. hearing of the motion on July 6, 2021:

a. Society’s Notice of Motion re: Summary judgment dated May 25, 2021

b. Affidavit of child protection worker Lucie Rivet sworn April 1, 2021

c. Affidavit of child protection worker Eryn Yeaman sworn March 29, 2021

d. Affidavit of child protection worker Milka Muhwati sworn March 31, 2021

e. Notice of Intention to File Business Records [Hamilton Police Service] dated March 11, 2021

f. Notice of Intention to File Business Records [Hamilton Police Service] dated March 31, 2021

g. Notice of Intention to File Business Records [Barton St. Clinic] dated March 31, 2021

h. OCL Request To Admit dated April 8, 2021.

i. CAS Response to OCL Request to Admit dated April 12, 2021

j. Updating Affidavit of Lucie Rivet sworn May 27, 2021

k. CAS Factum dated May 12, 2021

l. Revised CAS Factum dated June 30, 2021

m. OCL Factum dated June 30, 2021.

[18] At the outset of the hearing of the motion both parents requested an adjournment to file materials.

a. The father had not filed any responding materials.

b. A few minutes prior to the hearing of the motion, the mother emailed a large volume of materials – about 59 pages, plus dozens of “exhibits” – to all opposing parties.

c. The mother acknowledged that her materials were not very well prepared, and that in fact some might be illegible. To a large extent she submitted individual pdf photographs of various documents, with little narrative. Some of the photographs of documents were confusing and/or impossible to read. The mother said she wanted an adjournment to prepare better paperwork.

[19] The OCL took no position with respect to the adjournment request. The Society and the grandparents opposed the request, submitting that the parents had ignored clear and generous timelines for responding materials which I would summarize as follows:

a. On February 8, 2021 Justice Brown endorsed that the Society was to file its summary judgment materials on or before April 2, 2021. Responding materials were to be served and filed by May 3, 2021. The summary judgment motion was placed on the May 25, 2021 trial sittings. If the mother wanted to change the timelines for filing, she would have to serve and file a motion on or before February 26, 2021.

b. The mother did not serve or file a motion to change the filing timelines.

c. The Society served and filed its materials on April 1, 2021, within the deadline.

d. The mother did not file any responding materials by her May 3, 2021 deadline.

e. On May 17, 2021 the parties attended Purge Court at which time they both requested an adjournment of the summary judgment motion, stating they needed more time. The Society did not oppose the request. The matter was adjourned to the sittings of June 28, 2021. Any further materials by the Society were to be served by May 28, 2021. Responding affidavits by the parents were to be served by June 9, 2021.

f. The Society served an updating affidavit on May 27, 2021. The parents did not serve or file any materials.

g. On June 21, 2021 the parties attended Purge Court. The mother again requested an extension of time to file her responding material. Justice Bale granted the mother yet another extension to serve her materials by June 25, 2021 at 12:00 noon.

h. Despite the further extension neither the mother nor the father filed any responding materials within the deadline.

i. The parties were given an opportunity to amend and/or file legal facta by July 2, 2021. The Society filed its original factum on May 13, 2021 and filed a revised factum on June 30, 2021. The OCL submitted its factum on June 30, 2021. Neither parent served or filed a factum.

[20] At the hearing of the motion, Mr. Lanza provided a very limited explanation as to why the father had not filed any responding materials in relation to the summary judgment motion:

a. Until May 2021 the father was in jail.

b. By the date of the May 17, 2021 Purge Court he was out of jail. That’s one of the reasons both parents were granted an adjournment of the summary judgment motion, and an extension of time until June 9, 2021.

c. The father says he was relying on the mother to organize responding materials (since they were advancing a common plan for the children). “It was to be a joint effort and the mother was to be the catalyst.” He had a lawyer. She was representing herself. But he was waiting for her to start the paperwork.

d. Unfortunately the mother did not prepare her materials. So the father didn’t prepare his either.

[21] The mother’s explanation was somewhat unfocussed.

a. She wanted to apply for Legal Aid. But she had to refinance her house first because Legal Aid would place a lien on the house. But the refinancing was delayed. Everything took much longer than it should have. She was very busy trying to finish renovations on that house, because she wants the children to live there.

b. As well, she had trouble preparing her own materials, and then she had trouble printing them. She experienced lots of delays and that’s why she only served her very roughly prepared materials literally minutes before the summary judgment hearing on July 6, 2021.

c. Her materials were sort of a first draft. She wanted an adjournment so she could apply for Legal Aid and have a lawyer prepare proper materials.

[22] There was no justification for an adjournment.

a. The parents had been given ample opportunity to prepare materials.

b. They were given several extensions and hearing of the motion was adjourned from the May sittings to the sittings in late June to accommodate the parents.

c. The father had a lawyer, but by his own admission he did nothing to prepare responding materials, waiting instead for the unrepresented mother to prepare documents he intended to rely upon. They were living together so they could have co-ordinated their efforts.

d. The mother says she now wants to retain a lawyer, but she had a lawyer on record until December 2020.

e. When the court sets deadlines for filing responding materials, the court already takes into account that summary judgment motions are complicated, stressful, and sometimes even overwhelming for parents. That’s why – as in this case – we start by giving a reasonable amount of time to respond. And then more time. And often still more time if it’s requested.

f. But these are important cases, and filing deadlines are not just intended to address the convenience or capabilities of parents. Deadlines are primarily intended to protect children from endless litigation, and ensure that timelines set out in the legislation are (more closely) adhered to.

g. At a certain point, deadlines have to mean something. Any extensions need to be justified. And after multiple extensions, the justification for further delay must be extremely compelling.

h. In this case, the father provided no reasonable explanation for failing to file any materials. And the mother’s explanation reflected a lack of diligence, organization and priority on her part.

i. These children require permanence and resolution. H.R.G. is old enough to understand what’s going on. He understands that his future has not yet been decided. That’s an uncertainty he shouldn’t be burdened with. And he shouldn’t have to be exposed to repeated updating interviews by his OCL lawyer, as the litigation drags on.

j. The grandparents have respectively taken on enormous responsibilities and they should not be subjected to any further distraction or litigation uncertainty.

[23] Fortunately, after reviewing all of these considerations, late in the morning on the day of the hearing the parties reached agreement as to how to proceed:

a. The mother would have the lunch hour to refine the very rough materials she had served about two hours earlier. She would re-serve the amended materials and I would receive them.

b. We would reconvene after the lunch hour and the mother could rely upon her materials, notwithstanding any irregularity with respect to organization and formatting. (However, I clearly indicated that the mother would not be able to rely upon documents – photographs of other documents – which were illegible.)

c. On that basis, the mother withdrew her request for an adjournment. And at that point the father withdrew his request for an adjournment.

d. At 2:00 p.m. we proceeded with the hearing of the motion.

[24] The mother’s materials included:

a. A 457 paragraph 59 page typed statement which clearly set out her narrative.

b. About 115 individual attachments, each a photograph of a document. The mother’s narrative referred to some of them as “exhibits”, but it was difficult to sort out what documents related to what portions of her narrative.

c. Some of the “exhibits” were simply presented as stand-alone documents without being specifically referenced or explained in the mother’s typed statement.

d. Some of the exhibits were simply photographs of individual pages of past Society pleadings. In some instances portions of the Society’s narrative were either scratched out (or highlighted?) with a marker.

e. Some of the exhibits were photographs of drug tests.

f. Some of the exhibits were illegible photographs of documents.

g. Some of the exhibits appear to be photographs of emails intended to be unsworn testimonials in support of the mother, from past years.

h. Some of the exhibits were photographs of documents relating to the father – although the father provided no evidence confirming the information contained in the documents.

i. Some of the exhibits were photographs of website stories or newspaper articles dealing with children’s issues generally.

[25] In many respects the mother’s last-minute materials might be described as a “document dump”.

a. The 59 page typed narrative lacked structure, organization, or focus.

b. The more than 100 individual photographs of documents – the “exhibits” – were somewhat randomly assembled. Some appeared to relate specifically to aspects of the mother’s narrative. Others were quite confusing.

c. In the circumstances, I did my best to review all of these materials. And – without objection from the Society or any other party – I allowed the mother broad latitude in making submissions, without specifically referencing any of her “evidence”.

d. The father made no effort to present any information. But I wanted to give the mother every opportunity to identify her side of the story, and her evidence and submissions in relation to the summary judgment motion.

BACKGROUND

[26] A review of the history of proceedings makes it clear that the Society’s concerns about both parents have been long-standing – and largely unresolved.

[27] The Society’s materials summarize events leading to an initial protection application being commenced in July 2016.

a. The parents’ involvement with the Society started in 2010 due to concerns about substance use, the mother’s mental health, and domestic violence between the parents.

b. Between 2010 and 2015 those concerns were ongoing. The parents had a turbulent relationship, with a lot of police involvement.

c. In April 2015 the father and H.R.G. went to live with the paternal grandparents. H.R.G. remained with the grandparents after the father was incarcerated in August 2015.

d. The parents continued to have an unstable relationship. They breached a no-contact order, and did not follow through with recommended services. The father continued to engage in criminal activity.

e. H.R.G. remained with the grandparents until April 2016, at which time the mother no longer consented to him remaining there.

f. For a couple of months there were no concerns about the mother’s care of H.R.G. ̶ until the father was released from jail in June 2016.

g. In June 2016 concerns resurfaced. H.R.G. reported to his teacher that his parents gave themselves needles. The father was in the home (contrary to the Society’s clear direction). The mother was not sending H.R.G. to school regularly. The mother was not cooperating or being forthcoming with the Society.

h. The Society commenced a Protection Application returnable July 20, 2016 (in relation to H.R.G., prior to E.B.G.’s birth).

[28] The Society’s materials describe the evolution of the initial protection application.

a. On July 20, 2016 the Society commenced a Protection Application seeking an Order that H.R.G. remain in the mother’s care, subject to Society supervision, with access to the father in the discretion of the Society and supervised in its discretion.

b. Concerns were ongoing: Domestic violence between the parents; the mother’s mental health; criminal charges against both parents; continuing breaches of a no-contact order between them; the parents’ failure to follow through with recommended services; H.R.G.’s poor school attendance; the parents’ lack of cooperation with the Society; substance use; and the mother’s lack of insight or acknowledgment with respect to multiple concerns.

c. On July 20, 2016, a temporary Order was granted placing H.R.G. in the mother’s care, subject to Society supervision, with access to the father in Society discretion and supervised in its discretion. One of the terms of supervision was for the father to obtain “housing separate from the mother, and the mother shall not allow the father into her home, whether the child is present or not.”

d. On January 30, 2017, the Court granted a temporary supervision Order pursuant to Minutes of Settlement placing H.R.G. in both parents’ care.

e. On November 16, 2017, the Society commenced an Amended as Fresh Protection Application regarding H.R.G., and a Protection Application regarding E.B.G.. The Applications sought Orders placing the children in the parents’ care subject to a supervision Order. The two Applications were consolidated.

f. The Society then brought a summary judgment motion which was heard on June 13, 2018, with judgment being reserved. Shortly after the hearing, the father was arrested. The Society amended its application and re-opened its summary judgment motion. The parents filed no responding material.

g. On September 20, 2018 the children were found not to be First Nations, Métis or Inuit children; and in need of protection pursuant to sections 74(2)(b)(i), 74(2)(b)(ii), and 74(2)(h) of the Act. They were placed in the mother’s care subject to Society supervision for 6 months; with access to the father in the Society’s discretion and supervised in its discretion.

h. The Society brought a Status Review Application returnable March 6, 2019 seeking a further period of six months supervision in the mother’s care, as concerns persisted about the father’s continued criminal involvement; the parents’ lack of engagement with the Society; the mother’s lack of follow-through with services for her mental health; H.R.G.’s school attendance; and housing.

i. On March 6, 2019 the OCL was appointed to represent H.R.G..

j. In May 2019, after the mother was evicted from her home she left the children with the maternal grandmother. There were concerns the mother was using drugs. The Society then commenced an amended Status Review Application. On May 24, 2019 a temporary order was made placing H.R.G. with the paternal grandparents and E.B.G. with the maternal grandmother, subject to Society supervision.

k. On September 20, 2019, a final Order was granted pursuant to Minutes of Settlement. H.R.G. remained in the paternal grandparents’ care, and E.B.G. remained in the maternal grandmother’s care, subject to Society supervision for five months. Access to the parents was in the Society’s discretion and supervised in its discretion.

l. The Society brought a Status Review Application on February 12, 2020 seeking an Order placing H.R.G. in the paternal grandparents’ custody, and placing E.B.G. in the maternal grandmother’s custody, pursuant to s. 102 of the Act. Those are the claims being pursued in this Summary judgment motion.

[29] The Society’s materials include the following information about parenting skills.

a. While in the mother’s care, there were concerns about H.R.G.’s school attendance, hygiene, and the mother not communicating with school staff.

b. H.R.G. spoke of waking himself up and making his own lunches.

c. The mother did not bring the children for necessary medical care.

d. H.R.G. disclosed seeing the father at times, despite a no-contact order between the parents.

e. The mother did not follow through with enrolling E.B.G. in subsidized daycare, despite being approved.

f. In mid-February 2019, H.R.G. began staying with the paternal grandparents on weekdays to ensure he attended school regularly. H.R.G. also visited other family members on weekends.

g. In late March 2019, E.B.G. was observed to be dirty, and the condition of the home was unsafe for a child. The mother agreed to the maternal grandmother caring for E.B.G. for a short time while she addressed the condition of the home.

h. The Society investigated reports in April 2019 about the mother yelling at E.B.G. constantly; presenting as under the influence; and not providing appropriate supervision.

i. In May 2019 the mother was evicted from her home. She went to stay at a friend’s home. She denied reports that she was using drugs. But she ended up leaving that home – and leaving E.B.G. with the maternal grandmother that month. H.R.G. was already with the paternal grandparents.

j. When E.B.G. was placed with the maternal grandmother in May 2019, the young child had an untreated foot infection suffered after stepping on a screw.

[30] These and other concerns also arose or continued during periods when the father was in the household. The Society had less interaction with the father because he was in jail a lot or otherwise uncooperative with the agency.

[31] The Society’s materials include the following information about the parents’ relationship:

a. There is a long-standing history of conflict and domestic violence between the parents.

b. In 2009 the father was charged with assaulting the mother.

c. Between 2010 to 2014 the police were called to 11 verbal disputes between the parents which H.R.G. was present for.

d. In September 2014 the mother was charged with assaulting the father after punching him and hitting him with a mop. This resulted in a no-contact order, which the parties breached.

e. More recently, the mother has repeatedly contacted police to attend the home, complaining that the father won’t listen to her. She has explained that her only recourse is to call the police, because she does not know how else to manage the situation. She would tell police she wants the father to leave. He would leave but later, if he wasn’t in jail, she would accept him back.

f. In March 2019 the mother admitted that the parents argued when they consumed alcohol, but claimed they stopped drinking in 2014.

g. Throughout 2019 and 2020 the parents continued to argue about home renovations, the father using the mother’s debit card, and other issues.

h. The parents have not followed through with relationship counselling even though the Society identified this as an expectation.

i. In January 2020 the mother advised that her plan was to care for the children with the father. At the same time she acknowledged that the father is a source of stress for her, and he was not helping her renovate the home or work toward the children returning to her care.

j. In January 2021 the mother advised that she was pregnant. She described the father as being very emotionally abusive, and said their relationship was over. But she declined an opportunity to meet with a Violence Against Women worker.

k. At various times the mother has adamantly stated that their relationship is over and she would never live with the father again. But as stated, in May 2021 the father was released after his most recent period of incarceration, and he immediately returned to live with the mother.

l. The Society is concerned that this long-standing pattern of significant domestic conflict, separations, and reconciliations will continue. And with no services in place to address the issues, there is a high risk that any children in the parents’ care would be exposed to ongoing conflict, including more police interactions.

[32] The Society’s materials include the following information about substance abuse by the parents:

a. The Society has received ongoing reports from the community regarding the parents’ drug use since 2014.

b. In June 2016 H.R.G. disclosed knowing that the parents gave themselves needles.

c. In October 2018 the mother reported attending a rehab clinic to assist with withdrawal and relapse related to a Percocet addiction. The Society requested that the mother ask the clinic to test for amphetamine and methamphetamine, but she did not do so.

d. In early 2019 needles and a tourniquet were found in the mother’s possession. She claimed they were the father’s, even though at the time he was in jail.

e. In June 2019, the mother denied using drugs and claimed that her urine screens were supervised. But she provided no proof.

f. In August 2019, the father claimed that a prosthetic penis found in his possession was a sex toy, and denied the suggestion that he was using it to tamper with his urine test results.

g. The mother tested positive for cocaine six times in October and November 2019 – but she denied using cocaine.

h. During a meeting with a worker from Alcohol, Drugs, and Gambling Services in January 2020 the mother denied using drugs in the previous year. When confronted with her positive cocaine results from late 2019 she claimed the test results were incorrect.

i. In January 2021 the mother advised that she had a letter from her methadone doctor, but she has not provided this letter to the Society.

j. In March 2021 the mother advised that she had one year of clean urine screens and would forward these results to the Society. She never provided those test results.

k. The mother has a history of methamphetamine use and continued to attend a Suboxone program at the Barton Street Clinic. She has, in the past, signed consents for the Society to obtain her urine screen test results, but later revoked those consents.

l. The father also signed and then revoked consents for the release of drug test results.

m. The mother has been asked by the Society worker repeatedly to have her urine screened for amphetamines and methamphetamines, in addition to the other substances she is regularly screened for. However she has failed to make this request to the Barton Street Clinic.

n. She has not followed through with recommended programming, and repeatedly denies having a substance use issue.

o. The mother did not complete requested prenatal urine screens during her recent pregnancy. When she gave birth to the parents’ third child A.G. in April 2021 she tested positive that day for amphetamines/MDMA. But as on other occasions when she tested positive, the mother denied using any substances. She claimed that “other things” could have caused her positive result.

p. The parents have refused to sign consents for the Society to obtain updated test results or to communicate with the clinic staff. The mother has not signed an updated consent since January 2020.

q. At one point the mother agreed to attend any program requested by the Society, and was referred to the Starting Point Program. But she did not attend the program, which was only two sessions. She later explained that she was busy and did not need to attend because there were no concerns.

[33] The Society materials include the following information about the father’s criminal lifestyle:

a. The father’s criminal record dates back to 1994 when he was 18 years old. It includes 30 convictions, 21 of them between 1995 and February 2021.

b. The father’s convictions include offences such as drug possession, theft, possession of stolen property, breaking and entering, mischief, arson.

c. He has a large number of convictions for failing to comply with court orders. The Society says this is consistent with the parents’ history of ignoring “no-contact” orders when the father was supposed to stay away from the mother for the well-being of the children.

d. The father has been in and out of jail repeatedly, for periods up to 120 days at a time. This has impacted on the Society’s ability to work with him. It has also impacted on the children’s ability to form and maintain a significant relationship with him.

e. While serving an 85-day intermittent sentence he was arrested in September 2019 for possession of stolen property, obstruction, and failure to comply, for which he was incarcerated.

f. In February 2020 he was charged with theft in relation to stealing building supplies from Home Depot, for the house the mother is renovating as a proposed residence for the children.

g. He was incarcerated again in or around October 2020 for breaching probation, was released, and returned to jail in early 2021.

h. The Society submits that the father’s extensive and continuing criminal record raises concerns about the likelihood that he will re-offend.

[34] The Society materials include the following information about the mother’s involvement with criminal law.

a. The mother has also been involved in criminal activity, although she does not have a criminal record.

b. In September 2014, she was charged with assaulting the father. A no-contact order was implemented, which the parents breached repeatedly in 2015.

c. The parents were both charged with theft, failure to comply, driving while suspended, breach, and possession of stolen property in 2015.

d. In November 2015 the mother was charged with drug possession and drug trafficking.

e. In February 2016 and July 2019 she was charged with driving while suspended.

f. In September 2019 the parents were arrested for possession of stolen property after police found them riding a stolen motorcycle.

g. The mother was charged in November 2019 and March 2020 with failure to appear after leaving court before her matter was dealt with.

h. She recently reported that the father took sole responsibility for the motorcycle theft, and that her failure to appear charges were withdrawn.

[35] The Society’s materials set out significant concerns about the mother’s mental health.

a. The mother was diagnosed with anxiety disorder, social anxiety, Generalized Anxiety Disorder, and Obsessive Compulsive Disorder in 2014.

b. In November 2014 she stopped taking her prescribed medication and began self-medicating with a non-prescribed medication.

c. It was recommended a number of times that she engage in Cognitive Behaviour Therapy but she did not follow through with this therapy.

d. In July 2019 the mother advised that she was receiving ODSP due to anxiety.

e. The Society has been asking the mother for several years to have a mental health assessment. The mother insists that this is unnecessary and denies that her mental health impacts her children. She has repeatedly denied having mental health issues; said her issues were related to housing and not having the children in her care; and minimizes the concerns about her anxiety impacting her functioning.

f. The mother eventually agreed to attend a mental health assessment, but did not follow through. She had an appointment scheduled in January 2020 with a psychiatrist. But she didn’t attend that appointment, stating that she did not need to go and denied concern about her mental health.

g. In February 2021 the mother said the Society’s concerns regarding her mental health were “ridiculous.”

h. The mother has missed many appointments with her family physician Dr. Oliver, that were scheduled to address her mental health.

i. At one point the mother said Dr. Oliver had written letters advising that her mental health does not impact her parenting. Those letters are from 2014 to 2016.

j. More recently, in a March 23, 2021 letter to the Society, Dr. Oliver expressed significant concerns about the mother’s mental health.

i. He said while the mother has many strengths, she also has significant struggles which his office has not been successful in engaging her in improving.

ii. Since 2015 alone the mother has been a “no-show” for 48 visits in his office.

iii. His staff have been persistent in trying to help the mother, but they are “a long way from any successful efforts at connecting this patient with the care she deserves.”

iv. He said he has told the mother at various times that he believes her mental health has been stable – but at other times he has told her that she needs help.

v. He said at the present time he has “significant concerns about her mental health”.

vi. He said she tends to minimize or fail to grasp the gravity of situations going on around her.

k. When advised about Dr. Oliver’s recent comments, the mother simply disagreed.

l. The mother denies having any mental health issues, or that her mental health impacts on her functioning or parenting.

[36] The Society’s materials include the following information about the parents’ resistance to services:

a. The mother has not maintained consistent contact with her Society worker.

b. At times she has not provided her contact information.

c. She often does not respond to messages left for her.

d. She has not returned phone calls, voicemail messages, or e-mail messages sent to her by Society workers, and has ended conversations and meetings abruptly.

e. At times she has refused to respond to confirm her availability to set up a meeting.

f. She has failed to attend many scheduled meetings.

g. At times she has not been present for scheduled home visits.

h. At times she has prevented a worker from entering or viewing areas of her home.

i. She has failed to ensure that H.R.G. was available for meetings despite her worker asking that he be present.

j. She has been rude and aggressive, referring to a worker as a liar and “stupid”. She has yelled at a worker, and entered the worker’s personal space.

k. The mother frequently claims to be unaware why the Society has an open file, despite workers reviewing the concerns with her multiple times.

l. The mother does not recognize or acknowledge the concerns about her ability to meet the children’s needs or present a stable, appropriate home environment for the children. She has repeatedly minimized protection concerns. When challenged about contradictory statements she has made to her worker, she presents as defensive and evasive.

m. She has repeatedly asked that the Society close the family’s file, and has insisted that she has met all of the Society’s expectations. The Society worker has reviewed the concerns with her numerous times, but she continues to state that she is unaware of the concerns or why the file is open.

n. She has blamed the maternal grandmother, her landlord, and the Society for the current situation and any anxiety she feels, rather than accepting responsibility for her actions.

o. In May 2020 she claimed that the Society worker told her the children could return to her care since there were no concerns about her parenting. However the worker made no such comment.

p. The mother continuously denies that the children were removed from her care, and insists that she placed the children with their grandparents.

q. The mother has repeatedly stated that the Court Order has expired or is “over” and she has threatened to remove the children from the grandparents’ residences.

r. In February 2021 the mother requested police assistance to remove the children from the kin homes. The Society has sent the mother correspondence confirming that the Order remains in effect, though the mother still speaks of the Court Order having expired.

s. The Society has attempted to arrange family meetings, a Family Group Conference, and mediation with the parents and kin to develop a plan for the children. The parents have not attended the meetings. They refused to sign necessary consents. They ignored the mediator’s attempts to contact them. They failed to attend scheduled intake meetings. And they did not complete paperwork required to proceed with mediation. Ultimately mediation had to be cancelled.

t. The mother has advised that she will not engage in any discussion about a plan for the children that does not result in their return to her care.

u. Even when the Society tried to work with the mother with respect to her newborn baby in April 2021, the mother failed to attend a scheduled meeting.

v. The father has had even less contact with the Society, and he has been equally uncooperative.

w. The Society submits that with both parents having been non-compliant with multiple supervision terms set out in a series of successive court orders – including orders they consented to – it is very unlikely that they would respect and comply with any future terms of supervision.

[37] The Society’s materials include the following information about housing problems:

a. There have been ongoing concerns about the mother’s housing situation.

b. While the children were in the mother’s care in 2018 and 2019, large holes were observed in walls; cleaning and construction supplies were within the children’s reach; and wires were observed hanging from the ceiling.

c. In March 2019 E.B.G. was observed eating food off the floor; concrete blocks were stacked in the living room; and there were no beds for the children.

d. The mother was evicted from her home in May 2019. She then stayed with various friends and family. At times she wouldn’t provide the Society with the names or addresses of persons she was staying with. At one point she was living in a truck.

e. In August 2019 the parents advised they were residing together but refused to provide their address.

f. In October 2019 the mother moved to a new home and was residing with a male friend who the mother suggested could supervise her visits with the children. By January 2020 the mother was added to the mortgage of this home, and she began extensive renovations. The home was unsafe for the children to reside in or attend for access due to the construction, and she repeatedly prevented the worker from viewing the home.

g. In September 2020 the mother advised that the home could be ready “in a few weeks” if she knew the children were going to return to her care. At that time the Society worker observed five “Cease Work” orders posted on the home.

h. As of March 2021 there were still holes in the floors such that the basement was visible; wiring was exposed; the electrical service still needed to be addressed; and walls were missing.

i. The mother’s source of income is ODSP, which is insufficient to cover the costs of the home. She has borrowed a large sum of money against the home to complete the renovations. In March 2021 the mother advised that the home was in foreclosure and she had not paid the mortgage or utilities in months. She insists however that she can afford to retain the home and complete renovations.

[38] The Society materials include the following information about access:

a. The parents’ attendance for access visits with the children has been inconsistent.

b. The father’s involvement with the children has been sporadic, largely because he spends so much time in jail.

c. The mother’s attendance has also been sporadic since 2019. She has missed many visits and has been late repeatedly, both at the Society’s Access Centre and at the grandparents’ homes after access moved into the community in 2020 as a result of the Covid-19 pandemic.

d. In July 2019 the Society implemented a requirement that the mother confirm her access on the day of the visits. But she missed several visits in the following weeks and did not accept responsibility. As a result, in August 2019 her access was reduced to once per week. She continued to miss visits or arrive late.

e. In September 2019 the mother asked about moving visits to a friend’s home, but did not provide the address of the home to be assessed for some time. She continued to miss visits in December 2019 and January 2020.

f. In January 2020 when a Society worker attended at the home the mother proposed for access, she observed that it was under construction and it was unsafe for the children. The mother acknowledged that the home was unsafe but felt it could be ready in one week.

g. In September 2020 the mother again asked to move access to her home despite not having a working washroom, and suggested that visits take place in the backyard, which was full of construction debris and tools.

h. The mother says she has been renovating her home for at least 18 months, but it still remains unsuitable even for access – let alone for children to live there.

i. The Society approved a second weekly visit starting in January 2020 after the mother’s attendance somewhat improved. But she continued to miss visits or arrive late.

j. In February 2020, the Society implemented a requirement that the mother physically check-in at the Access Centre prior to visits and remain on-site, as she had developed a pattern of checking in and then leaving before the visit started.

k. The Society stopped facilitating in-person access in mid-March 2020 due to COVID. Access continued by telephone or video calls.

l. In late June 2020 the paternal and maternal grandparents agreed to supervise the parents’ access with the children at their homes. But since then the grandparents have reported that the parents’ attendance is sporadic. They miss visits or often attend late. And they do not consistently engage with the children.

m. Access was reduced to once per week starting in January 2021 due to the parents’ poor attendance.

n. The paternal grandparents have reported that H.R.G. does not show excitement about upcoming visits with the mother, because he is so used to her not showing up. They say H.R.G.’s emotional well-being appears to suffer when the parents do not attend consistently for access.

o. The maternal grandfather has reported that the mother has yelled at the maternal grandmother during access.

[39] The Society’s materials include the following information about the children.

a. H.R.G. and E.B.G. have been in the care of their respective kin caregivers (the grandparents) since May 2019 and require permanence and stability.

b. The grandparents have expressed a willingness to care for the children on a permanent basis.

c. The children present as happy and healthy in their respective homes, and the grandparents have facilitated regular sibling access. The boys celebrate birthdays and major milestones together.

d. The grandparents have also facilitated ongoing access by the parents. Any interruption or inconsistency with respect to that access has been caused by the parents.

e. H.R.G. is doing well in school. He’s receiving all necessary medical care, and has reported no concerns about the care he is currently receiving. The paternal grandparents have consistently stated that they are prepared to care for him as long as necessary. They describe H.R.G. as “holding in” his emotions with respect to the parents, and have discussed enrolling him in counselling to support his emotions.

f. E.B.G. presents as happy in the maternal grandmother’s home. He is generally meeting his developmental milestones, and has a positive attachment to the maternal grandmother. She has confirmed that she is prepared to care for E.B.G. on a long-term basis. The maternal grandmother has enrolled E.B.G. in daycare, and has ensured that he receives all necessary medical care. She expressed concern about the mother’s ability to care for E.B.G. in the future

g. The children are stable in their current homes. There continues to be significant concern that the parents are unable to provide a similar level of stability for the children at this time or in the foreseeable future.

[40] The Society’s materials included the agency’s Response To Request to Admit, with respect to a Request to Admit served by the OCL on April 8, 2021.

a. Basically the Society admitted almost everything except for very minor corrections with respect to one child’s date of birth, and an hour mistake with respect to the duration of weekly visits.

b. None of the other parties filed any response.

[41] Apart from those minor corrections, the OCL’s Request to Admit established the following non-contentious facts:

1. H.R.G. is 11 years old.

2. H.R.G. is in Grade 6.

3. H.R.G. has an IEP at school but has not been formally identified as having any academic delays.

4. H.R.G. has made significant improvements at school in terms of his academics and behaviour since being placed with his paternal grandparents on May 24, 2019.

5. H.R.G.'s placement with his paternal grandparents meets his needs.

6. There are no significant concerns with H.R.G.'s behaviour at this time.

7. H.R.G. has a younger brother E.B.G. who resides with the maternal grandmother.

8. H.R.G. and E.B.G. currently see each other once a week for approximately three hours at either grandparent's home on Wednesdays when they also have a visit with the mother.

9. H.R.G. enjoys his visits with E.B.G. and H.R.G. looks forward to these visits, so that he can see his brother and his mother.

10. E.B.G. and H.R.G.'s relationship with each other is significant and important.

11. H.R.G. understands that someone is going to make a decision about where he and E.B.G. are going to live.

12. H.R.G. wants to live with his mom.

13. If H.R.G. cannot live with his mom, then he would like to live with his paternal grandma where he currently resides.

14. H.R.G. would like to keep seeing E.B.G. no matter where he lives.

15. If H.R.G. is placed with his paternal grandma on a permanent basis, he wants to ensure that he still sees his mother.

16. If H.R.G. is placed with his mother on a permanent basis, he wants to make sure he still sees his paternal grandma.

17. H.R.G. would feel sad if he didn't get to see his mom or grandma anymore, depending on where he lives.

18. H.R.G. would like to see his mom more than once a week and for a longer period of time.

19. H.R.G. would also like a visit with just his mom and him.

20. H.R.G. does not like it when his mom misses visits and this makes him sad.

21. Lately, the mother has missed some visits because she is pregnant and has been in the hospital and H.R.G. understands why she can't come to the visits.

22. H.R.G. hasn't had visits with his father for a significant period of time. He doesn't know why he doesn't have visits with his dad.

23. H.R.G. would like it if his Dad could come to the visits with his mom and E.B.G..

24. H.R.G.'s behaviour doesn't change before or after visits.

25. H.R.G.'s relationship with his parents is important to him. H.R.G. would be very upset if his relationship with his parents wasn't to continue.

26. H.R.G.'s relationship with his paternal grandmother is important to him. H.R.G. would be very upset if his relationship with his paternal grandmother didn't continue.

[42] On behalf of H.R.G., Ms. Swan briefly reviewed the evidence and made the following submissions:

a. H.R.G. has clearly and consistently stated that he would like to return “home” – which is the child’s way of saying he wants to be in the mother’s care.

b. H.R.G. would speak more about the mother than the father. He never disclosed his understanding as to why the father hasn’t been around as much, or why the father hasn’t come for visits.

c. But H.R.G. is equally clear that if he can’t live with the mother, he would very much like to stay with the paternal grandparents. He is content where he is living and he is doing well.

d. The paternal grandparents are meeting all of H.R.G.’s needs. They have followed up with the school to obtain a psycho-educational assessment.

e. School records show that H.R.G. has made a significant improvement while he has been in the grandparents’ care, both in terms of academic progress and attendance.

f. The OCL agrees with the Society’s position that all of H.R.G.’s needs are being met by the paternal grandparents.

g. If H.R.G. remains with the grandparents, it is important to the boy that he maintain regular contact with both parents, and with his brother E.B.G..

[43] The mother’s submissions and materials included the following information:

a. She feels Society workers keep relaying information to one another, leading to her situation being misinterpreted and mis-stated. She says the succession of child protection workers has created confusion and inconsistency.

b. She acknowledges historically she and the father had issues with alcohol consumption and that “things got out of hand” in 2014. But she says since then they’ve stopped drinking.

c. She denies that any domestic violence occurred in front of the children, and they never saw the parents argue.

d. She says the parents cannot trust the Society because they are “sneaky” and not always honest.

e. She says the father has stayed out of trouble for long periods of time. He has only reverted to criminal behavior when his children have been taken away from him, because the loss of family has been disorienting for him.

f. She denies having a drug problem, but she admits she had a brief relapse in 2019 after the children were no longer in her care. She produced copies of a number of clean drugs tests. She says all of the tests indicating drug use have been wrong. After a while she stopped agreeing to tests because she was worried about more false-positives.

g. She has no criminal record. She admits many years ago she had trouble with the police, but not recently.

h. At times she had trouble caring for the children on her own because the Society wouldn’t let the father into the home to assist her. They would have had no trouble caring for the children together if the Society hadn’t interfered.

i. She has had her tubes tied so she won’t have any more children. She wants to care for the children she has.

j. She denies having a mental health problem. She acknowledges she experienced anxiety in relation to the death of a previous child in 2003, two days after birth.

k. She acknowledges there was a single occasion when E.B.G. was exposed to danger when he managed to get out of her yard. But she said it was an isolated incident.

l. She acknowledges that when she was pregnant with E.B.G. she had trouble with H.R.G.’s school attendance, because she was ordered to be on bed rest by her doctor.

m. She wants the court to “dismiss” any information that is more than 12 months old.

n. She wants the court to ignore any delay caused by the COVID pandemic, in determining timelines for the children.

o. She said the Society has a double standard. They forgive anything that goes wrong with either of the grandparents, but they are not forgiving or understanding if the parents have any sort of problem.

p. She says she and the father have been together 15 years and they are working hard to make the relationship succeed. But rather than help them, the Society has created more complications and frustrations for them.

q. She admits at times she and the father have had serious problems. But they have resolved most of those issues.

r. She wants the children returned to her care. She feels ready to assume responsibility for them.

s. She proposes that the transition of the children back into her care should be gradual.

t. She thinks the Society should do more work investigating ways to return H.R.G. and E.B.G. to their parents, rather than taking them away.

u. She says she and the father are able to care for the children, and the boys are better off home with them.

v. She says she has had no mental health issues since 2016 when her doctor told her he had no concerns.

w. She denies that her residence is unsafe.

x. She says she and the father have always been excellent, caring parents.

y. She says some of her challenges as a parent have been as a result of a shortage of funds and resources.

z. She says at times malicious neighbours have made false complaints about her and the father to the Society, and the Society has been too quick to accept allegations at face value.

aa. She says some of her earlier court appearances in this case went badly for her because her lawyer didn’t provide the court with a lot of information that could have helped her.

bb. She admits she has sometimes missed visits. But she said there have been a number of reasons, including scheduling mix-ups; and for a period she lived far away and didn’t have transportation.

cc. She feels H.R.G. is emotionally suffering because he has been kept away from E.B.G. and the parents.

dd. She believes her sons should be living together.

ee. She admits she has missed many CAS and medical appointments. Sometimes she hasn’t had transportation. Sometimes she forgot or became overwhelmed or exhausted.

SUMMARY JUDGMENT

[44] The Society brings this motion pursuant to Rule 16 of the Family Law Rules (“the Rules”).

[45] Rule 16 sets out the circumstances and methodology by which the court may determine issues by way of summary judgment, effectively dispensing with the requirement of a trial prior to making a final order. The Rule includes the following:

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

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

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

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

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

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

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

a. The court must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in Rule 16 (6.1);

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

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

1. 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.

2. The burden of proof is on the party moving for summary judgment. Although, Rule 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.

3. 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.

4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.

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

[48] As stated, a party responding to a motion for summary judgment has a duty to set out in an affidavit specific facts upon which he or she relies to establish that there is a genuine issue for trial. This has been referred to as a party being required to put their "best foot forward". The court is entitled to assume that the responding party has presented all of the evidence they would be able to adduce at trial. CAS of the Niagara Region v. S.T. 2020 ONSC 727 (SCJ); Children's Aid Society of Toronto v. K.T. 2000 CanLII 20578 (ON CJ), 2000 O.J. No. 4736 (OCJ); Sweda v. Egg Farmers of Ontario 2014 ONSC 1200 (SCJ); CCAS of Hamilton v. T.E. et al. 2021 ONSC 3151 (SCJ).

[49] It is not sufficient on a summary judgment motion for a Respondent to say that further evidence may be available at trial. L.M. v. Peel Children's Aid Society 2019 ONCA 841 (Ont. CA). Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not an adequate response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion

[50] However, Rule 16(4.1) does not shift the ultimate burden of proof. Even if the responding party's evidence does not establish a genuine issue for trial – even if the Responding party provides no evidence – the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. Kawartha-Haliburton Children's Aid Society v. M.W.; CAS of Brant v. R.T.S. 2021 ONCJ 311 (OCJ).

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

[52] On a summary judgment motion within the context of a status review application, where little has changed since the previous order, and where the conditions of likelihood of harm to the children remain present, there is no genuine issue for trial. C.A.S. v. M.W. & M.S. 2020 ONSC 1847 (SCJ).

[53] 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

a. Allows the judge to make the necessary findings of fact;

b. Allows the judge to apply the law to the facts, and

c. Is a proportionate, more expeditious and less expensive means to achieve a just result.

[54] The standard for fairness 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. Hyrniak v. Mauldin; Kawartha-Haliburton Children's Aid Society v. M.W.

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

[56] 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 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. There must be an arguable notion discernable from the parent's evidence that the child faces some better prospects than what existed at the time of the society's removal of the child from the parent’s care; and that the Respondent has developed some new ability as a parent. CAS of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (OCJ).

[57] Good intentions are not enough. The test is not "whether the parents have 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 his or her best interests. There is not to be experimentation with a child's life with the result that, in giving the parents another chance, the child would have one less chance." CAS of Toronto v. H.S. 2019 ONCJ 729 (OCJ); CAS of Waterloo v. C.N. & H.C. 2019 ONSC 5915 (SCJ).

[58] Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care, but are unable to take the steps to translate their proposals into a plausible reality. CAS Simcoe County v. T.D. 2012 ONSC 6737 (SCJ); CAS Waterloo v. R-A.M. & J.C. 2021 ONSC 2828 (SCJ).

[59] If there appears to be a genuine issue requiring a trial, based on the record before the Court, the judge should then determine if the need for a trial can be avoided by using the powers set out in Rule 16(6.1).

a. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion.

b. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice.

c. Their use will not be against the interests of justice if they 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.

Hyrniak v. Mauldin; CAS of Waterloo v. M.W. and M.S. 2020 ONSC 1847 (SCJ)

[60] Rule 16(5) allows for the use of hearsay evidence. However, if the party’s evidence is not from a person who has personal knowledge of the facts, the court may draw conclusions unfavourable to the party. While hearsay evidence is admissible, each piece of hearsay evidence must be judicially weighed at the summary judgment motion. In making determinations regarding the weight to be given to hearsay evidence, the court must keep in mind the paramount purpose of the Act, and the primary objective of the Family Law Rules.

[61] Hyrniak confirmed that the summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence for the sake of expedience in making a determination. CAS of Waterloo v. R-A.M. & J.C.

[62] Courts should be very cautious in granting summary judgment in child protection cases because the stakes for the family are so high and the granting of summary judgment deprives the parents of their day in court and the procedural safeguard of cross-examination of witnesses before a judge. CAS of York v. JB and GM 2020 ONSC 7457 (SCJ). In child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage the rights of a vulnerable segment of our society under the Canadian Charter of Rights and Freedoms. Kawartha

STATUS REVIEW

[63] The Act provides for a status review proceeding as a method by which the court maintains oversight of the state’s intervention in the lives of families that is otherwise justified by the need to protect children from neglect or abuse. The Act mandates a process whereby the Society is required to return to court once a protection order has been made, and to justify why another protection order is needed (or no longer need) to protect the child. A status review may be requested by others, but only the Society is required to bring such an application. CAS of Algoma v. F.M. 2021 ONCJ 183 (OCJ).

[64] On a status review application the court must take into consideration the paramount purpose of the Act as set out in section 1(1), which is to promote the best interests, protection and well-being of children, which takes precedence over all other considerations.

[65] The test on a status review application is as follows:

a. The original order is presumed to be correct. This is not a rehearing of the previous order that was made;

b. The court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection;

c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist.

i. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then;

ii. Children’s needs are continually evolving as they are governed by occurrences in the lives of children and their families which cannot be held still in time. Ever changing circumstances must be taken into account as the court requires accurate and up to date knowledge of their situation.

d. Secondly, the court must consider the best interests of the child. This analysis must be conducted from the child's perspective.

CCAS of Toronto v. M. (C.) 1994 CanLII 83 (SCC), 1994 CarswellOnt 376 (SCC); CCAS of Hamilton v. S. (B.L.) 2014 ONSC 5513, 2014ONSC 5513 (SCJ); CAS of Niagara Region v. B.P. and B.W. 2018 (SCJ).

[66] Section 114 of the Act provides that where an application is made for review of a child's status 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.

[67] Section 101 includes the following provisions relevant to this case:

101(1) Order where child in need of protection

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:

1. Supervision order

— 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.

2. Interim society care

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

3. Extended society care

— 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

— 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.

101(2) Court to inquire

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.

101(3) Less disruptive alternatives preferred

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.

101(4) Community placement to be considered

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.

101(8) Order for child to remain or return to person who had charge before intervention

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.

[68] Section 102 includes the following provisions relevant to this case:

102(1) Custody order

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.

102(2) Deemed to be order under s. 28 Children's Law Reform Act

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.

[69] Section 74(3) sets out the criteria that court shall consider in determining the child's best interests:

74(3) Best interests of child

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.

[70] Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders. Statements of agreed facts are admissions, which are an exception to the hearsay rule. CAS of Waterloo v. M.W.; CAS of Toronto v. I.H. 2017 ONCJ 760 (OCJ).

[71] Sections 101(2), 101(3) and 101(4) of the Act require the Court to consider additional factors when determining the issue of placement, including whether there are any less disruptive alternatives, such as community or extended family placements, and to make enquiries with respect to what efforts the Society has made to assist the child before intervention.

[72] Section 104 of the Act gives the Court the discretion, in the child’s best interests, to make, vary or terminate an order respecting a person’s access to a child or a child’s access to a person, and may impose such terms and conditions on the order as the Court considers appropriate.

[73] Section 105(2) states that 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.

[74] Section 3 of the Act outlines the rights of children receiving services under the Act. These include the right to express their views freely and safely about matters that affect them, to have their views given due weight in accordance with their age and maturity, to be consulted on the nature of services to be provided to them, and to raise concerns about the services provided.

ANALYSIS

[75] The court must first determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in Rule 16 (6.1).

[76] Rule 16(5) gives the court discretion as to whether or not to admit hearsay evidence; and to attach whatever weight to it, if any, that the court deems appropriate. Given the permanent nature of the relief being sought and the serious consequences for both parents and children, only trial-worthy evidence should be relied upon on a Summary judgment motion. CAS of Toronto v. S.M.T. 2018 ONCJ 540 (OCJ); CAS of Niagara v. S.T. 2020 ONSC 727 (SCJ). As a result, I have placed no weight on hearsay evidence. But having said that, I also find that the non-hearsay evidence provided by the Society, the OCL, and the mother herself provides me with sufficient reliable information and evidence to conduct the required analysis.

[77] In this Status Review Application, the onus is on the Society to prove on a balance of probabilities that the children continue to be in need of protection. The risk must be real and not speculative. CAS of Rainy River v. B. (C.) 2006 ONCJ 458; CAS of Ottawa-Carlton v. T. and T. 2000 CanLII 21157 (Ont. Fam. Ct.).

[78] This finding was not seriously challenged by the parents or the OCL. In any event, based on the evidence I find that there is no genuine issue requiring a trial on this threshold issue. Long-standing concerns about the parents – individually and as a couple – have continued, for the most part without significant improvement or correction. These include their conflictual and unstable relationship; the father’s criminality; substance abuse issues; housing issues; lack of cooperation; lack of parental insight; lack of commitment to the children’s needs; unacknowledged and unaddressed mental health issues on the part of the mother; and inconsistent involvement in the children’s lives.

[79] In considering the options available under section 114, I have carefully reviewed the trial-worthy evidence and applied it to an analysis of the best interests of the children, focussing on the non-exhaustive list of criteria set out in section 74(3).

[80] At age four, E.B.G. is too young for “views and preferences” to apply, but it is reassuring that the evidence confirms he is happy, comfortable and thriving in the maternal grandmother’s care – and that he has a strong, positive attachment to his grandmother.

[81] At age 11, H.R.G.’s consistent “first choice” – that he return home (to his parents or at least to his mother) must be carefully considered. There can be little doubt about the strength, clarity, consistency and rationale for H.R.G.’s unequivocal first choice. But this is one of those very sad situations in which what a child wants is simply not a realistic possibility, because the parents are not capable of making it happen safely. Fortunately H.R.G.’s second choice (that he remain with the paternal grandparents if he can’t return to the parents) is both achievable and acceptable from the child’s perspective. Similarly, H.R.G.’s strong desire to maintain parental access and sibling access should – and can – be respected through the terms of the Society’s proposed order. In a perfect world, H.R.G. would get everything he wants. But in his decidedly imperfect world, the most we can safely do is give him much of what he wants.

[82] The paternal grandparents and the maternal grandmother, respectively, have done an outstanding job of meeting H.R.G. and E.B.G.’s physical, mental and emotional needs. The children are thriving. This was not the case when the children resided with one or both of the parents. For example, the mother was unable to ensure that H.R.G. attended school regularly; there were hygiene and many other parenting deficiencies; and the parents did not follow up on services which would have benefited the children. In contrast, H.R.G. is now doing well in school; his overall development has improved since being with the grandparents; and he is now receiving all necessary medical and professional care.

[83] The children’s placement with the respective grandparents ensures their ongoing connection not only with the parents, but also with their entire extended families.

[84] Both children have a positive, stable relationship with their current caregivers. They are loved and they know that they are loved and wanted. Their current peace of mind and insulation from ugly adult issues is in stark contrast to the chaotic, unstable, unpredictable lives they experienced when they lived with parents who were (and remain) debilitated by their own overwhelming issues.

[85] The two boys have strong relationships and emotional ties with their parents, their grandparents, and with one another. Those bonds are vitally important and must be safeguarded and fostered. The Society’s proposal will allow this to occur – safely.

[86] Continuity and stability are big issues here. H.R.G. has been in the full-time care of the paternal grandparents since May 2019, and even before that he was spending significant periods with them. E.B.G. has been in the full-time care of the maternal grandmother since May 2019 (just after he turned two). They are doing extremely well – better than when they were with the mother and father. The parenting proposals presented by the parents – individually and jointly – entail so many likely and easily predictable problems, that the negative impact and risk associated with dislodging the children from their beneficial environments cannot be justified.

[87] The custody proposals in relation to the grandparents are proven, child-focussed, and make sense. The parenting proposals presented by the parents simply offer more of the same uncertainty, upheaval and risk to each child’s emotional and physical well-being.

[88] The father didn’t present any evidence or plan, nor did he even make a representation that his long-standing criminal lifestyle is going to change.

[89] The mother’s “plan” for the children requires a huge leap of faith that she will suddenly be able to offer what she has been unable to offer for many years.

a. The mother’s affidavit is lengthy but shallow. Apart from blanket denials it includes a conspicuous amount of blame shifting; suggestions that previous court orders were wrong; and simplistic assurances that her life is under control now and that the children will be better off returning to her care.

b. She denies or minimizes past problems (many of which have already been determined by the court in previous orders).

c. She denies or glosses over current problems and uncertainties.

d. She insists, for example, that she’ll have appropriate housing soon – but she’s been renovating this same house for a year and a half; it’s still unfinished; and her financial ability to retain the property is uncertain. The mother’s previous standards of housing for the children have been grossly inadequate – and dangerous – so there is no basis upon which the court could have confidence that the mother would maintain appropriate or safe housing for the children.

e. The mother insists her relationship with the father is more stable, but they only started living together again in May 2021 when he was most recently released from jail. The parents have refused counselling or professional assistance to deal with relationship issues. There is no immediate basis upon which the court can have any confidence that the cyclical and turbulent nature of their relationship won’t keep repeating itself – to the detriment of the children’s physical and emotional well-being.

f. While apologizing and minimizing the significance of the father’s lengthy criminal record, the mother promises that the father will change and that he won’t continue his criminal lifestyle. But if anyone was going to make that representation, it should have been the father. He has a lawyer. He could and should have filed his own affidavit, given the fact that the parents are presenting a joint plan. Only the father can give sworn evidence about any intention to change his life – and he provided no such evidence.

g. Indeed, on the issue of deficiency of responding evidence, I note that this is not the first time the parents have been served with a summary judgment motion. So they know the process. Last time neither of them filed responding materials. This time, once again, the father filed nothing. And the mother’s extremely late and poorly prepared materials are entirely consistent with the Society’s suggestion these parents simply don’t prioritize their children; their lives are chaotic and disorganized; they don’t understand the magnitude of the problems that need to be addressed; and they are incapable of doing what they need to do to make it possible for the children to safely return to their care.

h. The mother’s blanket denial of historic and recent drug problems is not a sufficient response or explanation with respect to the Society’s detailed and overwhelming evidence. She has selectively assembled a few helpful drug tests. But her self-serving insistence that all of her positive test results are simply “wrong” – without advancing any credible competing theory as to how they could be so wrong – is not an adequate response. Particularly since she admits to a relapse in 2019; she admits she didn’t attend tests that were requested; and she does not deny that she has refused to cooperate with the Society with respect to releasing information.

i. Similarly the mother’s blanket denial of mental health issues does not provide the kind of reassurance necessary when the court must determine the safety and best interests of children. The mother has been resistant to professional assistance, and even after she agreed, she failed to follow up. The mother selectively relies on Dr. Oliver’s observations in 2014 and 2016. But she has missed an astonishing number of appointments with her doctor. And she simply rejects Dr. Oliver’s written report just four months ago that he has “significant concerns about her mental health.

j. Neither parent denies their lack of consistency with respect to access. Unlike housing, and drugs, and mental health issues – which have the potential to hurt children – failing to attend for access actually hurts children. Both of these parents have demonstrated a chronic inability to prioritize the children and make themselves available for brief – presumably precious – weekly opportunities for access. Neither parent has demonstrated any insight with respect to the impact of regularly missed visits on the children. The mother speculates that H.R.G. is unhappy being away from her. The paternal grandparents provide a more plausible observation (as confirmed in the OCL’s Request To Admit) that H.R.G. is uncertain why he doesn’t have visits with his dad, and he “does not like it when his mom misses visits and this makes him sad.” Attending for weekly visits is such an easy thing to do. If a parent can’t make that commitment, how could they possibly care for a child “24/7”?

k. While the mother offers explanations about some specific situations; specific discussions; specific problems – her materials fail to address the big picture. The Society has outlined, with great detail and specificity – multiple problems (including non-compliance with court orders) which have existed for years. And which still exist. Indeed, the mother’s insistence that any information about her which is more than 12 months old is “irrelevant” betrays an awareness on her part that there’s a lot of very troubling history here. She wants to continue to characterize it as “history”. But the Society materials establish that it is current.

l. Indeed, even if the mother were to be successful in refuting a handful of specific examples of inappropriate behaviour, it wouldn’t diminish the preponderance of evidence that neither of these parents can be safely entrusted with the care of these children.

m. The mother claims she has been acting in good faith and conscientiously. But the evidence is overwhelming that she and the father are unreliable in relation to really important children’s issue. They have an uncorrected record of missing Society appointments; professional appointments; medical appointments; visits; and court deadlines. And they have repeatedly ignored court orders intended to safeguard the children.

n. In response to this motion, the father has presented no plan whatsoever. No evidence. No specifics.

o. The mother’s 2021 plan is pretty much the same as the plan she has been repeating for many years. She once again makes promises that in the future she will be more reliable – even though she provides little evidence that she is actually capable of being reliable.

p. Neither parent has identified any evidence which would suggest that either or both of the children could be safely returned to the care of either or both of the parents.

[90] Although the children are not in care, delay is still an important (and somewhat nuanced) consideration.

a. Litigation has a trajectory of its own.

b. The early stages of a court case entail exploration of facts, and opportunities for cooperation and repair. But scheduling a trial invariably creates a tipping point where hope gives way to preparation for war. Parents perceive the Society has switched to “gathering evidence mode”. Trust and cooperation become instant casualties.

c. A trial is not just the last phase of litigation – it’s the worst phase. Trials force people to go for broke, so they say and do desperate things. The rancor irreparably destroys relationships.

d. Parents facing the prospect of Extended Society Care usually have nothing to lose by going to trial, so there’s no way to avoid that upset. But that’s not the case here.

e. Summary judgment motions are about more than just figuring out whether parties and lawyers are going to be spending more days in a courtroom, or less. The obligation and opportunity “to do justice to the case” requires a practical, holistic analysis of whether we are helping children and families – or whether there might be a point where our court process actually compounds their pain.

f. Where is it undisputed that parents will have ongoing involvement with their children, we may want to include a cost-benefit analysis to consider how much trial damage a family can (or should) endure, ostensibly in the name of determining the best interests of the child.

g. Where there is no “genuine issue”, trials accomplish little more than intensifying perceptions of “winner” and “loser”, leaving parents feeling more bitter and aggrieved than when they started.

h. So while all litigation delay deprives children of much-needed resolution, needlessly advancing to trial compounds the harm by causing the most important adults in a child’s life to become distracted and consumed by resentment and anger.

i. If we can determine that there is no genuine issue requiring a trial, it is in the best interests of children not just to expedite an inevitable arrangement – but also to ensure that the viability of that inevitable arrangement is not inevitably undermined by a destructive trial process.

j. For clarity: Summary judgment should never be granted simply to avoid the unpleasantness of a trial. But in this case, if we reach the threshold determination that there is no genuine issue – that the children should be in the custody of the grandparents who will have to regularly work with the parents to arrange access – then how is it in the best interests of the children to allow an unnecessary trial to drive a wedge between the grandparents and the parents?

[91] If H.R.G. and E.B.G. are removed from their respective grandparent placements, they will suffer significant disruption and potential emotional harm. Equally, if they are placed in the care of either or both of the parents, there is significant risk that each child will be exposed to neglect, instability, a chaotic home environment, and an unstable relationship between the mother and father.

[92] The risk which justified the finding that the children are in need of protection is quite significant. It is not theoretical or remote. It is the very foreseeable risk that in the future the mother and father will behave the same as they have in the past.

[93] I am satisfied that the Society has established that there is no genuine issue requiring a trial with respect to any of the relief it seeks, and that summary judgment on all issues should be granted.

[94] I have carefully considered the materials and the submissions.

a. I am satisfied that the process in this case allows me to make the necessary findings of fact and apply the law to those facts, in order to reach a fair and just determination on the merits.

b. I am able to make these determinations and do justice to the case based upon the comprehensive record before me, and without having to resort to any expanded powers available under Rule 16(6.1).

c. Adjudication of the application on the basis of this motion is, in the circumstances, a proportionate, more expeditious and less expensive means to achieve a just result than a full trial.

d. Determination of this case by way of summary judgment addresses the needs of the children and is in their best interests.

[95] As stated, the evidence is overwhelming that the children remain in need of protection.

[96] The parents propose that the children be returned to their care; individually or jointly; either immediately or in the near future. However, the evidence is clear that neither parent has addressed or resolved the significant issues which would make it unsafe to entrust the children to either of them.

[97] The Society has given these parents countless opportunities to prioritize the children’s needs; to engage in safety planning; and to address multiple issues including substance abuse, mental health issues, and deficient parenting skills. The Society has sought out the least intrusive options. It has sought out options with extended family (with considerable success).

[98] The parents have proposed returning the children under a further supervision order. But the materials clearly establish that there is no basis to have confidence that either parent would comply with any further supervision order. They have a long history of ignoring orders and being uncooperative. A lack of engagement or unwillingness to cooperate with the Society has been found to be a relevant factor when determining if terms or conditions of a supervision order could adequately protect a child if returned to their parent(s): CAS v. J.D. 2018 ONSC 3298 (SCJ). With these parents a supervision order would be ineffective.

[99] The paternal grandparents and the maternal grandmother are doing an excellent job caring for H.R.G. and E.B.G.. They require no ongoing supervision.

[100] The respective custody orders for H.R.G. and E.B.G. requested by the Society are overwhelmingly in the best interests of the children. Section 102 custody orders would not only be the safest, least intrusive, least disruptive options available – they are the only realistic options available. And they happen to be excellent options, offering the children stability, continuity, and the emotional security of ongoing family connections.

[101] Similarly, I am satisfied that the parental access and sibling access provisions of the Society’s proposal are realistic, workable, reliable and in the best interests of the children. The paternal grandparents and the maternal grandmother have consistently shown good faith and cooperation in facilitating and promoting parental and sibling access. Any breakdown or inconsistency with respect to parental access has been entirely caused by the parents themselves. The evidence strongly suggests the likelihood of further irregularity with respect to the parents taking advantage of access opportunities – either through lack of commitment or, in the father’s case, as a result of recurring incarceration as a result of his criminal lifestyle. But at least the requested order will afford the parents ongoing opportunities to have meaningful involvement with the children – if they choose to do so.

THE ORDER

[102] Final order:

a. The children H.R.G. and E.B.G. are found to continue to be in need of protection.

b. The child H.R.G. shall be placed in the custody of the paternal grandparents R.M.G. and R.G. pursuant to s. 102 of the Child, Youth and Family Services Act.

c. The parents D.B. and D.G. shall have access to the child H.R.G., in the discretion of the paternal grandparents as to the location, duration, frequency, level of supervision, supervisor of the visits, but as a minimum the parents shall be entitled to access at least three hours per week.

d. The child E.B.G. shall be placed in the custody of the maternal grandmother J.M. pursuant to s. 102 of the Child, Youth and Family Services Act.

e. The parents D.B. and D.G. shall have access to the child E.B.G., in the discretion of the maternal grandmother as to the location, duration, frequency, level of supervision, supervisor of the visits, but as a minimum the parents shall be entitled to access at least three hours per week.

f. The children H.R.G. and E.B.G. shall have liberal and generous access to one another, with a minimum frequency of twice per month for a minimum duration of two hours per visit. H.R.G. and E.B.G. are designated as access recipients and access holders.

g. The Children’s Aid Society of Hamilton shall be served with any motion or application to change in relation to the children regarding custody or access.

Pazaratz J.

Released: July 15, 2021

COURT FILE NO.: 1065/16

DATE: 2021-07-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton Applicant

• and -

D.B., D.G., R.M.G., R.G. and J.M. Respondents

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: July 15, 2021