Simcoe Muskoka Child, Youth and Family Services v. S.M. and A.G.

BARRIE COURT FILE NO.: FC-18-496-01

DATE: 20210809

SUPERIOR COURT OF JUSTICE - ONTARIO

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

AND:

S.M., Respondent Mother

A.G., Respondent Father

BEFORE: Madam Justice R. S. Jain

COUNSEL: T. Nazerali, Counsel, for the Applicant S.M., Self-Represented A.G., Not Present

HEARD: June 11, 2021

ENDORSEMENT

Introduction and Background

[1] The child A.H.G. was born on [...], 2017 (hereinafter referred to as “AHG” or the “child”).

[2] AHG was in the care of both her parents from the time of her birth until early April 2018 (just under six months). During the brief period of time that she was in the care of both of her parents, AHG sustained multiple serious injuries. The parents brought AHG to Royal Victoria Hospital (“RVH”) and initial assessments showed that AHG had a fractured right clavicle, hydrocephalus with fluid beneath the skull, and a fracture in the first left rib. Concern was expressed by the examining doctor that these findings suggested non-accidental injury to the child and a referral was submitted to the Suspected Child Abuse and Neglect team at the Hospital for Sick Children in Toronto. AHG was taken to the Hospital for Sick Children to be further assessed and to receive surgery. Further assessment of the injuries found them to be of a suspicious nature as a result of abuse.

[3] By consent Order of Wildman J. dated April 16, 2018, AHG was placed in the temporary care and custody of the Simcoe Muskoka Child Youth and Family Services (hereinafter referred to as “the Society”). On April 20, 2018, AHG was discharged from the Hospital for Sick Children and placed into foster care. AHG has remained in the same placement for over three years.

[4] The father was criminally charged with Attempted Murder, Aggravated Assault Causing Bodily Harm x3, and Failure to Provide the Necessities of Life. The mother was not criminally charged; however, the police have indicated that the mother may have been involved. In addition, the Society continues to have concerns that the mother may have either been involved with inflicting the injuries herself or failing to protect the child.

[5] It has never been clearly established how AHG was injured.

[6] AHG has a “brother” and his name is “JG,” born […], 2010. JG is not AHG’s biological brother. JG was removed from the care of his biological parents and placed in the permanent deemed custody of SM in January 2014. According to the Statement of Agreed Facts dated April 1, 2019, both children were removed from the care of SM and AG in April 2018. JG was taken to a place of safety and on April 16, 2018 he was placed in the temporary care and custody of his paternal grandmother by consent Order of Wildman J. A final Order was made on consent on August 21, 2020 placing JG in the Extended Care of the Society with access to both SM and AG. JG is no longer a subject of the application before the court and he has declined visits with SM since August 25, 2020.

[7] On August 27, 2019, the Society issued their Status Review Application to seek an order placing AHG in the extended care of the Society for the purpose of adoption with no access to the mother or the father. The father was noted in default on August 21, 2020 and has not participated in this matter since then.

[8] The Society has brought a motion pursuant to Rule 16 of the Family Law Rules[^1] (hereinafter referred to as the “Rules”) seeking the following:

1. An order placing the child AHG in the extended care of Simcoe Muskoka Child Youth and Family Services with no access to the father.

2. An order that AHG (access holder) shall have access to her mother (access recipient) in the form of letters and pictures exchanged through the Society at a minimum of once per year.

3. An order that AHG (access holder) shall have access to her “brother” JG (access holder) facilitated by the Society on a minimum bi-weekly basis. This access may consist of virtual, FaceTime, phone and/or in-person visits and will be arranged in accordance with the children’s wishes.

[9] I have read and relied on the following documents:

(a) All endorsements and Orders;

(b) Society Motion, dated April 21, 2021 (Vol. 4, Tab 23);

(c) Society Factum;

(d) Affidavit of Child in Care Worker (CIC), C. Sicard de Carufel-Leduc (hereinafter referred to as C. Leduc) dated April 21, 2021 (Vol. 4, Tab 24);

(e) Affidavits of Family Support Worker (FSW), J. Lalonde dated April 21, 2021 (Vol. 4, Tab 25) and dated June 2, 2021 (Vol. 4, Tab 28);

(f) Affidavits of Child Protection Worker (CPW), name M. Robert-Martin, dated April 27, 2021 (Vol. 4, Tab 29) and dated June 3, 2021 (Vol. 4 , Tab 27);

(g) Affidavit of mother dated May 26, 2021 (Vol. 4, Tab 26);

(h) Unsworn medical reports referred to by the mother during her submissions, dated May 25, 2018; November 25, 2018 and March 11, 2019; and

(i) Unsworn letter from the mother’s employer dated June 8, 2021.

Decision

[10] For the reasons set out below, I find the Society has demonstrated a prima facie case in support of the relief sought in the Society’s motion for summary judgment. There will be a final order placing the child in the extended care of the Society with access to the mother and brother, and no access to the father.

Analysis

Summary Judgment

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

[12] The burden of proof is on the party moving for summary judgment (the Society). Pursuant to r. 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[13] Pursuant to r. 16(4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial (see: Children’s Aid Society of Toronto v. K.T., 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.)).

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

[15] Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”, this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (see: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 2 of para. 80).

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

[17] Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution and apply the objectives of the Child, Youth and Family Services Act[^2] (hereinafter referred to as the CYFSA or the Act) including the best interests of the child (see: Kawartha, at para.1 of paras. 80 and 64).

[18] 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 (see: Kawartha, at para. 3 of para. 80).

[19] The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that it is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is [a] foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant” (see: Kawartha, at para. 72).

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

[21] Rule 16(6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

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

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

[24] I have considered that I should exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.

[25] This matter came before me on January 15, 2021. At that time the mother discharged her third lawyer and advised the court that she wished to represent herself. Despite the child being in the temporary care of the Society well past the statutory timelines, the court granted a lengthy adjournment so that the mother could either retain new counsel and/or draft and serve responding materials herself. The parties agreed to an adjournment to permit an assessment of access to be completed and set the date for the motion for summary judgment along with filing timelines. On January 15, 2021, the mother advised the court that going forward she wished to represent herself. The mother confirmed that she understood that “she will need to either serve and file her responding materials in accordance with the timelines herself or retain a new lawyer.” The court cautioned the mother that if she decides to retain a lawyer, “she will need to do so well in advance of the court date so they can prepare and be ready to proceed at the next court date without further delay. This matter must proceed at the next court date as it is well past the timelines.” The mother said that she understood, and she agreed that the matter could proceed by ZOOM if an “in person” hearing was not available.[^3]

[26] Although the mother was self-represented at the motion for summary judgment, she provided her evidence in a detailed sworn affidavit setting out her side of the story. She was provided with some accommodations to assist her: at the beginning of the hearing, I explained the process and advised the mother that we would take breaks at any time she requested same; the mother made very lengthy submissions regarding her evidence; she was permitted to submit unsworn medical reports and documents from her employer to the court on the day of the hearing; and, she was given short breaks to collect her thoughts when she became emotional.

[27] I find it is in the interest of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. I find that the summary judgment process and the evidentiary record is sufficiently comprehensive for me to make a fair and just determination on the issues and disposition without the need for a trial. Cross-examination of witnesses would add little, if any, value to the court’s analysis.

[28] I find that the Society has met their onus and established, on a balance of probabilities, a prima facie case for summary judgment with respect to each aspect of the relief sought. I further find that the responding parties have not established that there is a genuine issue requiring a trial on any issue.

[29] I find that if this matter proceeded to trial there is no realistic possibility of an outcome other than that sought by the Society. I reach these conclusions for the reasons that follow.

The Child Continues to be in Need of Protection

[30] On April 1, 2019 both the parents and the Society signed a Statement of Agreed Facts regarding both children AHG and JG.[^4] On consent, the statutory and protection findings regarding the child AHG were made. AHG is not a First Nations, Inuk or Metis child. On consent, both children were found to be in need of protection. AHG was found in need of protection pursuant to s. 74(2)(a)(i) and (b)(i) of the CYFSA.

[31] Since AHG has already been found in need of protection, the case before me is a status review. The test for status review is twofold. The first test is to determine if the child continues to be in need of protection and requires a further court order for her protection. The second test is a consideration of the best interests of the child.

[32] AHG was found in need of protection on April 1, 2019 based on unexplained injuries. The Society submits that these grounds of protection continue to exist today and have not been mitigated or resolved in any way. In addition, on a status review, the court need not only consider the original protection grounds but any others that have come forward since the initial finding, including the emotional harm that could be caused by removing a child from longstanding caregivers with whom that child has bonded.[^5]

[33] The facts in this case are very serious and unsettling. AHG was born on [...], 2017. AHG was brought to the hospital again on April 5, 2018 at the age of five months after the parents reported she had been refusing feeds and vomiting. She was noted to be irritable and sleepy. She was treated with Pedialyte and sent home with instructions to return the next morning. When AHG returned to hospital the next day on April 6, she was still very sick and lethargic. She continued to be refusing feeds and vomiting. A head ultrasound was done that showed excess fluid across her frontal, temporal and to a lesser extent, the parietal areas of her brain. Although there was no skull fracture found, there was a right clavicular fracture identified as well as a healing rib fracture. She was transferred to the Suspected Child Abuse and Neglect (SCAN team) at the Hospital for Sick Children where surgery was done to drain the hematomas in her head.

[34] The SCAN report is a comprehensive summary of the findings authored by Dr. Paul Kadar.[^6] Dr. Kadar, the lead physician for AHG’s case, reviewed the documentation from RVH, examined the records from Sick Kids including the imaging studies and lab results, and also examined the child. He spoke with both parents and communicated with the primary investigating worker from the Society and with Corporal Sean Isaac, investigating officer with CFB Borden Police. Dr. Kadar informed the Society that it seemed that the more information he gave to the parents, the more explanations they were formulating.[^7]

[35] Dr. Kadar reviewed all the evidence and concluded that each of the three injuries were the result of “an inflicted injury or an unreported yet significant accidental injury event”. The report is briefly summarized as follows:

• At pages 6-11 of the report, Dr. Kadar described the various injuries, the possible mechanisms of causation (such as trauma related possibilities, metabolic or genetic disorders, and medical conditions), and the medical findings.

• With respect to the subdural hematomas: Dr. Kadar discussed each of the possible causes and ruled out everything except traumatic head injury resulting from a “yet unreported application of significant blunt force (direct impact), inertial forces, or a combination of these two types of forces” (p. 9). He reviewed each potential incident reported by the parents and concluded none of these were consistent with the subdural bleeding. He noted that generally there would not be a lengthy delay between the traumatic event and the onset of symptoms when a head injury presents with significant neurologic symptoms and requires surgical intervention, as AHG’s did.

• Dr. Kadar said “The period during which [AHG] developed symptoms would be compatible with a recent head injury which evolved over time leading to neurologic symptoms, or to the cumulative effect of a prior head trauma and a more recent (repeat) head injury in the hours to a few days prior to presentation for medical care” (p. 10).

• With respect to the healing left first rib fracture: this fracture was at minimum 7 to 10 days old as it was healing, which means it occurred at a different time than the clavicle injury and likely at a different time than the head injury. Dr. Kadar noted that fractures of the first rib are unusual in “all ages” by virtue of its location and it is seldom injured “even in abusive trauma”. “When seen in accidental injury, it is usually the result of direct impact to the neck/shoulder region or compression of the area”. There was no medical disorder that could explain the fracture and none of the parents’ explanations were consistent with this injury. He termed it “concerning for inflicted injury or a significant but unreported accidental injury event” (p. 10).

• With respect to the clavicle injury – this injury showed no signs of healing. While Dr. Kadar noted that these types of injuries are common in mobile and ambulatory children but not in pre-mobile infants such as AHG was at the time. These are concerning for inflicted injury (p. 11) as a pre-mobile infant is unable to generate the required level of force to self-inflict an injury of this kind. Again, Dr. Kadar reviewed the parents’ descriptions of previous events and concluded these were inconsistent with the injury. There were no bone disorders or other medical reasons to explain this injury. He did not believe the injury would be consistent with handling by health care providers. He concluded this fracture was the result of “an inflicted injury or an unreported yet significant accidental injury event” (p. 11).

• With respect to the retinal hemorrhages: AHG had numerous areas of bleeding in the retinas of both eyes, extending to the periphery. Dr. Kadar concluded that they were most likely the result of some sort of head trauma, but it was possible that they were in part explained by the increased pressure around her brain (p. 11).

[36] Further examinations were done while AHG remained in hospital. She was discharged on April 20, 2018 and placed in a foster home.[^8] AHG has remained in the same foster home since then.

[37] On November 29, 2018, the father was charged with Attempted Murder, Aggravated Assault Causing Bodily Harm x3, and Failure to Provide the Necessities of Life. He was released with conditions that he could not have contact with AHG with no exceptions. The Base Borden Police advised that there were searches on the father’s cell phone from January 1, 2018 of “How to Kill without an abortion”, “how to kill a baby without getting caught” and “how to kill a baby accidentally and at home”. These searches were directly typed into the phone and not selected from a drop down of choices. The mother confirmed to police and again in her material and submissions before the court that she was part of these searches.[^9]

[38] The police confirmed that the mother continued to be a subject in the police investigation up until the day charges were laid and that they only did not charge her due to the “technical” issue that the searches were done on the father’s phone.[^10] Police were clear that they could not prove the mother was not involved in the injuries in some way. According to the Society, throughout their involvement, the mother’s mental health and credibility has been called into question numerous times.[^11]

Unexplained Injury Principle

[39] Ms. Nazerali made submissions and offered the recent decision of V.R. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 3508, at paras. 126 and 129, as having many similar facts to the one before the court. This decision of the Ontario Superior Court of Justice affirmed the trial judge’s decision stating clearly that “the unexplained injury principle is a recognized principle in child protection matters” (V.R., at para. 124). At para. 126, Horkins J. used the description of the principle from Prince Edward Island (Director of Child Welfare) v. H.(A.), 2009 PECA 19:

In child protection case law, there is something called “the unexplained injury principle” and that is injuries suffered by an infant which are of a serious nature and which remain unexplained are in and of themselves grounds for removal of the child and for the continuation of that removal. Where there is no evidence of intervention by a third party, a failure to explain the cause of the child’s serious injury has been held to constitute grounds for finding a child in need of protection and for a refusal to return the child to previous caregivers.

[40] In the V.R. case, the facts were as follows: The child suffered several serious injuries while in the parents’ care. The child was brought into care but following an investigation, the child was returned to the parents’ care approximately two months later. Within a month, the child was brought to the Hospital for Sick Children – she was then four months of age. She was admitted to hospital and the treating physician concluded she had suffered subdural hemorrhages and multi-layered retinal hemorrhages. It was concluded that the most likely cause was blunt force trauma, or inertial forces, or a combination of the two. The child was brought back into Society care and remained in care continuously from that date onward. The child’s foster parents wished to put forward a plan for her adoption should that be possible. The undisputed facts were that the child suffered serious injuries on two separate occasions while in the care of the parents. There was no third party who had care of the child when the injuries occurred. I agree with the submissions of the Society that this case is eerily similar to the undisputed facts before the court with respect to AHG. The case before the court and V.R. share other additional similarities:

(a) The father in V.R. did not participate in the case before the court, having been deported. In AHG’s case, her father has not been participating in the case for some time and was noted in default in August 2020.

(b) The mother in V.R. provided explanations after the initial interviews with the Society, and a grandmother provided information after the fact as well. The trial judge considered the parents’ explanations but rejected them all. The doctor had also rejected the explanations as not consistent with the injuries and the medical evidence was found by both the trial judge and the appellate judge to be clear and on a balance of probabilities, the child was in need of protection. In the current case before the court, the doctor has also rejected the parents’ explanations as not consistent with the injuries. The parents in AHG’s case came up with multiple explanations, seemingly as more information was provided to them about the nature of the injuries and why the previous explanations were insufficient. Despite this, the parents have not provided any explanations which are consistent with the injuries. For example, as in AHG’s case, the mother in V.R. blamed the hospital for some of the child’s issues, claiming that the hospital caused the seizures, a theory that was rejected by the judge.

[41] In this case, both the parents gave multiple and varying explanations and/or theories and stories to try and explain the injuries suffered by AHG. Sometimes (depending on the status of their relationship) the mother and father directed their blame against each other.[^12] Sometimes they pointed to the healthcare workers treatment or handling of the child. In my view, all of the explanations were offered to deflect blame from themselves and not to actually explain the cause of the child’s serious injuries.

Position of Mother

[42] The mother opposes the summary judgment and the disposition sought by the Society. She served and filed a detailed and lengthy affidavit in response to the Society’s motion. The mother denies all the allegations that have been made against her. She denies there were any valid protection concerns about her care of JG or AHG. She asks for an order returning the child AHG to her care and/or dismissing the Society’s motion for summary judgment and ordering a trial.

[43] In her affidavit the mother gave details of all the positive things she has done to improve her circumstances and life. She is currently living with her mother in Quebec. She provided the court with copies of many certificates for online courses that she has completed.[^13] She advised that she has enrolled in other programs as well. The mother is employed as a supervisor for the cleaning department at a ski resort and advised that she is “an on-call social worker.” The mother says that her overall health has improved (both physically and mentally) and that she is taking her medications as prescribed.

[44] In her affidavit, the mother places all the blame for the unexplained injuries on everyone but herself. She says that the “injuries were done when she [AHG] was in the care of her father.” She also blames the hospital for the injury to AHG’s clavicle. The mother explained that she was ill after giving birth to AHG and that while she was recovering, the father was the “primary caregiver” to their daughter. She denies responsibility for hurting AHG in any way.

[45] The mother admits in her affidavit that she was involved in the father’s internet searches about “How to kill a baby,” but she explains that this was only to prove something in an argument they were having.[^14] She claims in her affidavit that she has “memory problems” but she says this is not a mental health problem, it is just an aspect of her personality. The mother denies that she had the father lie for her to protect her.

[46] The mother relies upon a critique of Dr. Kadar’s report provided by Dr. Amy Ornstein of the Suspected Trauma and Abuse Response Team from October 2018, as requested by the mother’s counsel.[^15] While the report indicated some details lacking and some findings that could be clarified, her overall conclusion was that Dr. Kadar’s report “adheres to published guidelines and standards”. Dr. Ornstein did not suggest that the ultimate conclusions of “an inflicted injury or an unreported yet significant accidental injury event” were incorrect.[^16] The mother acknowledged this in the signed Statement of Agreed Facts completed on April 1, 2019 when she was represented by counsel (see para. 2, section 4.1).

[47] In the middle of her submissions, the mother blurted out another new story/theory to try and explain AHG’s injuries (hereinafter it will be referred to as “the dog story”). The mother advised the court that AG told her that he had left the baby alone in a chair one morning while he walked JG to the school bus. Apparently, on his way back, AG saw through the window that the dog jumped on the couch and “toppled AHG out of her chair and onto the floor.” AG told her that he ran back into the house to get her off the floor. The mother said that she was not there when this happened. Although the Society did not object to this new evidence, the court stopped the mother to ask where the dog story could be found in her affidavit. The mother said it was not in her affidavit, but she did not give any other information about when AG told her the dog story. The mother was not under oath during her submissions, so she could not be offering this story for its truth, however, in my view, she was offering it as another way to deflect any responsibility from her for the child’s injuries.

[48] In my view, there were many aspects of the mother’s evidence and submissions that the court found very troubling and that made the court question her credibility.[^17] I further found the dog story to be quite troubling. The mother never shared this story with anyone prior to the day of the summary judgment hearing. It was never shared with the doctors. It was never mentioned or shared with the Society. It was never shared with the police. It is simply unbelievable that over three years after the child was removed from her care, the mother could bring forth the dog story and expect it to shed any light or understanding on this matter. I found that the dog story actually had a negative impact on the mother’s credibility. This is because if it is a true story, then the mother has been evasive and untruthful to the doctors, the Society and the police for three years and thus she simply cannot be believed. Also, if this is a true story, it sheds even more light on the poor parenting exhibited by the father to leave an infant alone in the house (with a dog) and poor parenting exhibited by the mother for permitting this to happen. If it is not a true story, again, the mother simply cannot be believed. In my view, the dog story was an unfortunate and poor attempt by the mother to show there was a genuine issue for trial.

[49] The mother’s presentation and submissions were quite emotional, and in some ways, they were compelling. She was somewhat agitated and tearful during parts of her presentation. It is obvious to the court that the mother cares about the child. Her efforts to improve herself and to attend every visit are noted (despite the child leaving the visits not participating with the mother). The court commends the mother for all of her continued efforts. Despite this, I find the mother’s emotionality and heartfelt expressions of her desire to resume care of AHG are not enough to show the court that the child faces a better prospect in her care than what existed at the time of the Society’s removal of the child from her care.

Undisputed Facts

[50] In my view, there are an overwhelming number of significant undisputed facts that support the disposition sought by the Society. Specifically:

1. AHG was solely in the care of both her parents from the time of her birth until her hospitalization in April 2018.

2. During the time she was in the care of both her parents, AHG sustained multiple serious injuries including a fractured right clavicle, hydrocephalus with fluid beneath the skull and a broken rib.

3. The Society was alerted to the child’s injuries by a doctor. Due to the age of the child and the nature of her injuries, she was transferred to the Hospital for Sick Children and underwent surgery. Further assessment of the injuries found them to be of a suspicious nature as a result of abuse.

4. The father was criminally charged. On November 29, 2018, the father was charged with Attempted Murder, Aggravated Assault Causing Bodily Harm x3, and Failure to Provide the Necessities of Life.

5. The mother was not criminally charged; however, the police and Society have indicated that they still consider her to have been involved either by injuring the child herself or failing to protect the child.

6. It has never been clearly established how AHG was injured.

7. On April 20, 2018, AHG was placed in a foster home after being discharged from the Hospital for Sick Children.

8. AHG has been in the care of the Society for over three years, well beyond the statutory timelines.

9. AHG has remained in the same foster home placement for over three (3) years and she is strongly bonded and attached to her foster parents. They have been her primary caregivers for the majority of her life. AHG’s foster parents plan to adopt her.

[51] The undisputed facts confirm that there are still unexplained injuries based upon the same facts that led to AHG being found in need of protection in April 2019. At that time, AHG was placed in the interim care of the Society with an extension to timelines. The Society submits that they have, over the course of this placement, explored family alternatives to Society care.[^18] The mother and father were regularly asked about other people who could care for AHG. No one has come forward to the Society to do so and AHG has remained in the same foster home for over three years now. The Society submits that AHG is happy there and she is clearly connected with her foster parents, whom she calls “Mommy and Daddy”.

[52] In my view, the continued inability to determine how AHG’s injuries were caused, even after a fulsome police and Society investigation, means that she remains in need of protection today. The court is concerned that the mother may have been directly involved in the physical harm to AHG or failed to protect the child from the father and/or delaying in taking AHG to the hospital. The court is also significantly concerned about the numerous explanations provided by the parents after the fact when their initial explanations were found to be inconsistent with the injuries suffered by AHG.

[53] In the case before me, AHG has bonded with her foster parents. She was placed in their care immediately after her discharge from the Hospital for Sick Children on April 20, 2018. She has remained there for over three years. In my view, these people are her psychological parents. In addition, the Society advised the court that AHG’s foster parents wish to adopt her and provide her a permanent home. There is no plan to move the child or disrupt the continuity of her care. I agree with the Society that this factor, as well as the unexplained injury principle, makes it plain and obvious that the child cannot be returned to the care of either parent. As has been affirmed numerous times, “parental rights should be terminated if…it is determined it would be in the best interest of the child to terminate” (see: M. (C.), at para. 37). I find there is no reasonable alternative than that sought by the Society. I find that AHG must be placed in the extended care of the Society for the purposes of adoption.

Best Interests of the Child and Access

[54] The onus is on the Society to prove on a balance of probabilities that an order for extended care with access is in the best interests of the child, AHG. It is the assessment of the Society that ongoing access to SM (face-to-face or virtually) is not in AHG’s best interests. They ask for an order that AHG have access to her mother in the form of letters and pictures exchanged through the Society at a minimum of once per year. They further ask for an order that AHG have access to her “brother” JG facilitated by the Society on a minimum bi-weekly basis. The access between AHG and JG may consist of virtual, FaceTime, phone and/or in-person visits and will be arranged in accordance with the children’s wishes.

[55] Section 1(1) of the CYFSA provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. Section 74(3) of the CYFSA sets out the criteria the court must use to make an order or determination in the best interests of a child. The relevant subsection is 74(3)(c), which provides that the court shall consider any relevant circumstances including the following:

i. The child’s physical, mental, and emotional needs, and the appropriate care or treatment to meet those needs,

ii. The child’s physical, mental, and emotional level of development,

iii. The child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. The child’s cultural and linguistic heritage,

v. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

vi. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

vii. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

viii. The merits of a plan for the child’s care proposed by a society including a proposal that the child be place for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

ix. The effects on the child of delay in the disposition of the case,

x. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

xi. The degree of risk, if any, that justified the finding that the child is in need of protection.

[56] Sections 105(5) and (6) of the CYFSA sets out the following:

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

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

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

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

[57] The Court of Appeal in the Kawartha case as well as a more recent case, Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, has confirmed that the CYFSA changed the test with respect to access following an extended care order and that the court is obliged to conduct a best interests assessment to determine what form of access should be ordered. There is no onus on the parent to show that access is meaningful and beneficial, but in each case, a holistic assessment needs to be made, taking into account the best interests of the child and looking at the concepts of “meaningful and beneficial” only as one part of the overall analysis.

[58] The evidence before the court is extensive, with detailed summary reports from Ms. J Lalonde who has been the primary supervisor of the mother’s access from the beginning. All the reports detail the challenges with access, the difficulty AHG seems to have in engaging positively with her mother and the efforts both the Society and the mother have made to try to improve access without much success. With the exception of an approximately six-month period between May and December 2019 when positive visits occurred, the access has been difficult for AHG. Ms. Lalonde’s affidavit is replete with examples and speaks for itself.[^19]

[59] According to the Society, access for AHG with her mother has been challenging at best, and extremely upsetting to the child at worst. It is the Society’s submission that an order placing AHG in the Extended Care of the Society is the only decision possible on the evidence before the court, and that ongoing access other than in the form of letters and pictures would not be in AHG’s best interests.

[60] As the subject child is very young, AHG’s views and preferences cannot be ascertained. Despite this, the Society provided affidavit evidence including videos showing how the access was proceeding between the mother and child. The Society takes the position that AHG shows, by her own actions, that regular in-person and/or virtual access between the mother and AHG is not in the child’s best interests.

[61] AHG is only three and a half years old and her speech is obviously limited. However, the Society submits that AHG has made her wishes clear repeatedly, through her behaviour and even through her words. AHG has sobbed uncontrollably at times during visits with her mother; she would say “no” when being brought to the office and recently in January 2021, she used the words “stop” and “enough” during a virtual visit, indicating clearly she did not want further interaction with her mother.[^20] Most commonly in the virtual visits, AHG briefly greets her mother and promptly disappears, leaving her mother interacting with an empty room. Her mother has suggested that this a factor of the medium and/or of coaching by the foster parents. However, both the family support worker and the child in care worker interact regularly with AHG virtually and have no difficulty in doing so.[^21]

[62] With respect to the mother’s allegation that the foster parents have somehow coached AHG, the Society says they have taken this concern seriously and have observed the foster parents with AHG numerous times. They have witnessed the foster parents speaking warmly about the mother and submit they have gone above and beyond to try to encourage AHG to see her, even when doing so caused the child distress. The Society has seen no evidence of any coaching and they say the foster parents have been receptive and cooperative with all methods the Society has used to try to improve the access for AHG and the mother.[^22] It is difficult to see that AHG has any emotional ties to her mother, or at least any significantly positive ties.

[63] Since AHG is not a First Nations, Inuk or Metis child, this factor is not a consideration. I find that the foster parents have been meeting the child’s physical, mental and emotional needs. I agree that from AHG’s point of view, she has a secure place as a member of a family (being her foster family), where she has been as long as she can remember. They have advised that they wish to adopt her. She does appear to have a connection to her brother JG and the Society, and the current foster parents are actively encouraging ongoing contact between these two children. I further find that the child’s French language heritage can be supported by her being enrolled in a French school and/or preschool.[^23]

[64] In my view, one of the key factors in this case is the continuity of care for AHG and the possible effect on her if it was disrupted. AHG is three years old and has spent the majority of her life in the care of people who are prepared to adopt her. These are the people she goes to for reassurance, who meet her needs and where she feels secure and loved. I agree with the submissions of the Society that it is clear that the plan for AHG to be adopted by her current foster parents would meet all of AHG’s needs and maintain the psychological connection she has developed over the last three years. I find that a return to the mother’s care is not a feasible option. AHG has been in care for over three years. The timelines under s. 122 of the CYFSA are clear that a child under six should not be in care for more than a year, and the six-month extension has long come and gone. AHG needs finality and permanency and I find that the Society’s plan would provide this for her.

[65] Whether access is meaningful and beneficial to the child continues to be one part of the access assessment. The Society made a referral to Dr. Wittenberg to determine what was happening during the access and to see if there were ways to improve the access for the mother and AHG.[^24] Unfortunately the mother declined to participate (even though Dr. Wittenberg had asked the Society to arrange an in-person visit between the mother and AHG so that he could observe them together and see if a productive and positive relationship could be formed). Dr. Wittenberg’s assessment is therefore limited as he was unable to meet with the mother or to observe any face-to-face encounters. He was very clear that any conclusions he reached were tentative as a result. However, based on the videos, he concluded that AHG is disrupted by access visits and that in-person visits might threaten AHG’s feelings of safety and security. He also noted that given that AHG has been with her current foster parents for over three years, it would be difficult for her to be moved at this point in her life.[^25]

[66] As a result, the Society submits that in this particular case, not only is the access neither meaningful nor beneficial, there are times that the access itself is actually harmful. The foster parents have noted that AHG requires more nurturing during and after access with the mother and described emotional outbursts, crying, walking away from access, unwillingness to come to the phone or computer, and disruptions in sleep patterns following visits.[^26]

[67] I find that based on all the evidence filed, the child has done very well in the care of the Society and has been placed in a safe, loving foster home. Now, with the foster parents plan for adoption, they are offering her permanence and stability as well. The Society has indicated to the court that there is no evidence to suggest that an order giving the mother some access will impede the chances of the foster parents adopting AHG. I find that after reviewing all the relevant factors, it is in the best interests of AHG to have some access to her mother in the form of semi-annual exchanges of letters and pictures. This way, AHG can continue to have an awareness of her family history, and access to medical and other information should she need it. I would recommend that the Society offer at least that level of contact in an openness agreement following an adoption. AHG should be the access holder and the mother an access recipient to the order for letters and pictures.

[68] With respect to AHG’s access to her father, he has a no contact order relating to AHG. The father has had no access with AHG for over two and a half years. The Society submits that access to the father is not in AHG’s best interests and seeks a no access order with respect to the father. I agree with the Society’s assessment.

[69] With respect to AHG’s access with her sibling JG, the Society submits that it has proven to be something that the child finds meaningful and that she enjoys. The Society supports ongoing sibling contact and seeks an order allowing their current level of contact (bi-weekly) to continue. JG has a similar extended care order that names both children as access holders, and this is currently being reviewed through the context of an openness application.

Conclusion

[70] In a case such as this, I find there would be a significant risk should a young child like AHG be returned to the care of a parent who either caused her serious injury or failed to protect her from that injury. I cannot forget the undisputed fact that AHG suffered significant serious injury while in the care of the parents. The SCAN team at the Hospital for Sick Children concluded that all the injuries were suspicious of having been inflicted. I cannot forget the fact that as a result of these injuries, this young infant required surgery to relieve the pressure on her brain. I am not satisfied with any of the evidence or explanations as having raised a genuine issue for trial. AHG has shown a mix of significant signs of distress to disinterest with short supervised visits with her mother over the last three years. The unexplained injury principle in and of itself militates against a return to either parent. In my view, the degree of risk is high, and continues to be high given the fact that the police and Society have not been able to rule out the mother as a perpetrator nor whether or not she failed to protect her young daughter. In addition, in my view, the inability to determine exactly how AHG was injured and who was responsible, coupled with the passage of time (whereby AHG would suffer emotional harm and possible trauma if she was removed from the care of her foster parents) raises the degree of risk to extremely high.

[71] Based upon all the above, I find that the Society has demonstrated a prima facie case in support of an Order that the child, AHG be placed in the extended care of the Society for the purpose of adoption, with access to the mother and brother, and no access to the father.

Order

[72] For the reasons set out above, I make the following order:

1. The child AHG, born [...], 2017 shall be placed in the extended care of the Simcoe Muskoka Child, Youth and Family Services, pursuant to s. 101 of the Child, Youth and Family Services Act, 2017.

2. The child AHG, born [...], 2017 (access holder) shall have access to the respondent mother, SM (access recipient) in the form of letters and pictures exchanged through the Society at a minimum of twice per year.

3. The child AHG, born [...], 2017 (access holder) shall have access to her “brother” JG (access holder) facilitated by the Society on a minimum bi-weekly basis. This access may consist of virtual FaceTime, phone and/or in-person visits and will be arranged in accordance with the children’s wishes.

4. The child AHG, born [...], 2017 shall have no access to the respondent father AG.

Jain J.

Date: August 9, 2021

[^1]: Family Law Rules, O. Reg. 114/99. [^2]: Child, Youth and Family Services Act, S.O. 2017, c 14, Sch 1. [^3]: Endorsement of Jain J. dated January 15, 2021. [^4]: Volume 3, Tab 19 of the Continuing Record. [^5]: See Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), 1994 CarswellOnt 376 (S.C.C.) (which has been affirmed numerous times). [^6]: Affidavit of M. Robert-Martin dated April 27, 2021, Exhibit H is a copy of the entire SCAN report dated July 30, 2018. [^7]: Affidavit of M. Robert-Martin dated April 27, 2021, at para. 36. [^8]: Affidavit of M. Robert-Martin dated April 27, 2021, Exhibit G, Discharge Summary from Sick Kids dated April 20, 2021. [^9]: Affidavit of M. Robert-Martin dated April 27, 2021, para. 73-76 and Affidavit of the mother dated May 26, 2021 at page 6 under heading “Police Involvements”. [^10]: Affidavit of M. Robert-Marin dated April 27, 2021, para. 77 and Exhibit “L”. [^11]: In both the affidavits of M. Robert-Martin dated April 27, 2021 and June 3, 2021 and even in the mother’s affidavit of May 26, 2021 there are numerous examples about the mother’s struggles with her mental health and post-partum depression; her disconnectedness and lack of emotional attachment with AHG; and conflicting accounts provided by the mother about her history and role in caring for AHG. These conflicting accounts and concerns about the mother’s credibility and willingness to acknowledge areas of difficultly were notes and corroborated by medical professionals (Dr. Collins, the family doctor and Dr. Marshall in his PCA Report at Exhibit K of the affidavit of M. Robert-Martin. April 27, 2021). [^12]: Affidavit of M. Robert-Martin dated April 27, 2021, para. 58. After being criminally charged, the father gave the Society very different information about the mother’s parenting and he shared concerns that the mother “was not fit to care for children.” He went on to advise that “he will no longer lie and will share info with the Society after he consults with his lawyer. He is truly concerned for [SM] being able to hurt other children in the future. “[AG] believes that once he shares the info he has [SM] will be the one charged, and he will be acquitted/seen as innocent.” [^13]: Affidavit of SM dated May 26, 2021, Exhibits 1-17 are copies of certificates of completion for many online courses on different subject matters to help her improve herself and address the Society’s protection concerns including: life coaching; parenting; understanding brain injuries; child psychology; trauma; first aid; grief; happiness; and mindfulness. [^14]: Affidavit of SM dated May 26, 2021, at page 6. [^15]: See Exhibit A to the Statement of Agreed Facts attached to the Endorsement of April 1, 2019. [^16]: In the VR case discussed above, fresh evidence provided by the mother as critique of the HSC findings was considered by the appeal judge and found that it was not admissible. The appeal judge also noted that even if it was admissible, the critique “supports the opinion of Dr. Shouldice [the HSC doctor] and could not be reasonably expected to have affected the result at trial.” (para. 73). In AHG’s case, the critique again did not challenge the key findings that AHG suffered serious injuries which did not match the explanations provided. [^17]: The mother has changed her story about her mental health and her own childhood trauma through the years depending on whom she is speaking to. The mother signed a Statement of Agreed Facts in April 2019 regarding her use of excessive discipline on the child JG, yet she denies there were any concerns about her parenting of JG. The mother’s own family doctor (Dr. Collins) noted concerns about the mother’s mental health and commented on how the mother appeared disconnected from AHG and confirmed the diagnosis of post-partum depression. The mother has indicated to the Society that she did not have post-partum depression. During the Parenting Capacity Assessment, SM was inconsistent with Dr. Marshall and he noted there were aspects of the assessment that raised concerns about the mother’s credibility and willingness to acknowledge areas of difficulty. At one point during the assessment, the mother reported she had post-partum depression and then at another point she asserted that, “she does not believe she had postpartum depression.” Also, during this assessment the mother described AG as the “primary caregiver” for the children, and that she had “minimal involvement” in AHG’s care. Later the mother claimed that while AG “had a role in caring” for AHG, she “was also involved in her care.” There were also striking contrasts noted about the mother’s parenting of AHG and her parenting of JG during the observations. See affidavit of M. Robert-Martin, dated April 27, 2021 at para. 30, 37, 54 and Exhibit K. [^18]: Contrary to the mother’s assertions there is no evidence that her mother ever put forward a plan. The Society says that the maternal grandmother has rarely communicated with the Society (see Affidavit of M. Robert-Martin dated June 3, 2021 at para. 10, 11, 14, 15). The mother’s sister put forward a plan but did not follow through, (see Affidavit of M. Robert-Martin dated April 27, 2021 at para. 79 and Affidavit of M. Robert-Martin dated June 3, 2021 at para. 12). The father’s mother put forward a plan and then withdrew it (see Affidavit of M. Robert-Martin dated April 27, 2021 at para. 78). The mother’s friend put forward a plan but was not approved through the kinship process (see Affidavit of M. Robert-Martin dated April 27, 2021 at para. 80). [^19]: Affidavit of J. Lalonde, June 2, 2021. [^20]: Affidavit of C. Leduc dated April 21, 2021 at para. 45,46 and Affidavit of J. Lalonde dated April 21, 2021 and Exhibit L which is a video of an access visit on January 26, 2021. [^21]: Affidavit of C. Leduc dated April 21, 2021 at para. 20, 55, 62. Attached to the affidavit of J. Lalonde dated April 21, 2021, the Society provided many videos that highlight the differences in AHG’s involvement and engagement with Ms. Lalonde and Ms. Leduc in comparison to her mother. The affidavits and videos show how animated AHG is and how happy she is to engage with Ms. Lalonde and Ms. Leduc despite the fact that AHG sees them much less regularly than the mother. The videos show a stark contrast in AHG’s engagement with her mother where she usually just conveys a friendly greeting and then shows complete disinterest or simply leaves the room. [^22]: Affidavit of C. Leduc dated April 21, 2021 at para. 17, 19, and 52. [^23]: Affidavit of C. Leduc dated April 21, 2021 at para. 12, 13, 14, 15, 16, 20, 24, 25, 28, 29, 64. [^24]: Affidavit of M. Robert-Martin dated June 3, 2021, Exhibit A is a copy of the full report of Dr. Wittenberg dated June 2, 2021. [^25]: Affidavit of M. Robert-Martin dated June 3, 2021, Exhibit A at page 8 Dr. Wittenberg says, “of much more concern to me, is the fact that [AHG] has not lived with her mother for three years. She seems to be in a home which is supportive and secure for her. Her foster parents seemed well attuned and sensitive to her. I think it would be very difficult for her to be moved away from them at this point in her life. I think it would be in her interest for her and her foster parents to feel secure in the knowledge that they have a permanent commitment to each other. Ongoing access visits with her mother might threaten that sense of commitment for both foster parents and [AHG].” [^26]: Affidavit of C. Leduc dated April 21, 2021 para. 16.