WARNING
This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both
COURT FILE NO.: FC-18-FO000002-0001
DATE: 2021-09-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE CHILDREN’S AID SOCIETY OF THE
REGIONAL MUNICIPALITY OF WATERLOO, Applicant
- AND -
C.F., Respondent
- AND -
R.A., Respondent
BEFORE: Madam Justice J.D. Walters
COUNSEL: Aisha Ghafoor, Counsel for the Applicant
Gloria Ichim, Counsel for the Respondent, C.F.
Walter Wintar, Counsel for the Respondent, R.A.
Ernest Putman, Child Counsel for R.M.A
HEARD: June 16, 2021
THE HONOURABLE MADAM JUSTICE J.D. WALTERS
REASONS FOR JUDGMENT
Overview
[1] The Applicant, the Children’s Aid Society of the Regional Municipality of Waterloo (“Society”), brought a motion pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99, seeking an order that the child, R.M.A. (“child”), be found in need of protection pursuant to s. 74(2)(a)(i), (b)(i), (b)(ii) and (h) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). The Society seeks a disposition that the child be placed in the care of the Respondent father, R.A. (“father”), pursuant to a six-month supervision order with terms and conditions. Finally, the Society seeks an order for access to the Respondent mother, C.F. (“mother”), pursuant to its discretion.
[2] The summary judgment motion (“the motion”) was argued on June 16, 2021. The mother did not file any responding material. The father filed affidavits dated November 27, 2020 and March 19, 2021 and a factum which was accepted on the day of the motion. Mr. Putman, acting on behalf of the Office of the Children’s Lawyer (“OCL”), as counsel for the child, also filed a factum.
[3] The summary judgment motion has been before the court on three prior occasions dating back to December 2020 where the mother sought an extension of time to file her material. Despite being given numerous opportunities in December 2020 and February and March 2021 the mother has not filed any material for the summary judgment motion.
[4] The Society and counsel for the parties made submissions. Counsel, on behalf of the father and the child, advised that they consent to the order sought by the Society for disposition and they did not take a position on whether the child should be found in need of protection.
[5] Counsel for the mother acknowledged that she has not filed any material for the motion. Although counsel attempted to contact her client before the commencement of the motion and during the break, she was not able to speak to her client. The mother did not attend the motion.
[6] The Society relies on eleven affidavits filed in support of the motion, two document briefs and a factum dated June 11, 2021.
[7] The affidavits filed by the Society in support of its motion are:
Cindy Folkerson, Child Protection Worker (“CPW”), dated February 26, 2018, November 5, 2020, January 13, 2021, March 10, 2021 and May 13, 2021;
Dorian Whalen, CPW, dated December 31, 2019;
Sherry Rehkopf, CPW, dated November 4, 2020;
Steve Dick, CPW, dated October 28, 2020 and January 13, 2021;
Sarah Martin, CPW, dated November 5, 2020;
Jim Gignac, CPW, dated January 15, 2021.
[8] The mother has not filed any material for the summary judgment motion. She has served an answer to the Society’s protection application commenced in 2019, however, it was never filed with the court. At the outset of the motion, counsel for the mother advised that she was unable to file material as she has not heard from her client. She indicated that she wished to make submissions.
[9] The father relies on his affidavits sworn November 27, 2020 and March 19, 2021, and his factum dated June 14, 2021, filed at the commencement of the motion. At the outset of the motion, counsel for the father advised that the child is in the care of his client pursuant to a temporary without prejudice order made on March 25, 2021. The father consents to the child remaining with him pursuant to a final supervision order for six months. The father agrees that access between the child and his mother should be at the discretion of the Society.
[10] Mr. Putman submitted that it is the child’s views and preference to remain in the care of his father and to have access to his mother. He agrees with the Society’s position.
[11] For the reasons that follow, I find that the child is in need of protection. I also find that placing the child in the care of the father pursuant to a six-month supervision order in accordance with the terms and conditions as suggested by the Society is the least intrusive order that is in the best interests of the child. I have made specific determinations regarding access as between the mother and the child. I make that determination based on the facts and the evidence before me.
Brief Background
[12] The child is 14 years of age.
[13] The child has two siblings who are not the subject of this proceeding. One sibling, G.F., was made a Crown ward in 2010 and the other sibling, J.R., is the subject of a separate application where a summary judgment motion was argued one week after this one.
[14] This is an amended protection application. The Society has had previous applications before the court regarding these parties and this child where a protection finding was made and court orders have been obtained. Some of the previous court involvement will be summarized below.
[15] The Society has been involved with this family since 2000. The protection issues at that time included mental health, drug and alcohol abuse, neglect, anger issues, domestic violence, lack of supervision and inconsistent engagement with the Society and service providers to meet the children’s needs. There were also concerns regarding alcohol abuse by the father. A statement of agreed facts, dated August 11, 2009, was filed with the court and signed by both the mother and the father. The statement of agreed facts was filed in support of an order for a protection finding and a three-month order placing the child and his older sister (G.F.) in the care of the Society with access to the parents at the Society’s discretion.
[16] The issues set out in the statement of agreed facts include substance abuse by both parents, domestic violence, police involvement, lack of follow through with services, lack of food for the children, and lack of supervision. It also sets out the mother’s inconsistent attendance at access with the child. The mother did not have any visits with the child from January 31, 2009 until March 2009. When the matter resolved in August 2009, the mother had resumed having access with the child.
[17] A second statement of agreed facts was filed with the court, signed by the mother and the father, dated November 23, 2010. The issues of concern were noted to be mental health issues, drug and alcohol abuse and anger management. It was also noted that the most predominant and ongoing concern was domestic violence.
[18] In the November 23, 2010 statement of agreed facts, the mother’s involvement with the Society since 2008 was outlined. G.F. was made a ward of the Crown and the child was returned to the mother pursuant to a supervision order acknowledging the progress she had made addressing the Society’s concerns.
[19] A third statement of agreed facts was filed with the court and signed by the parties on November 22, 2011. On October 16, 2009, the mother tested positive for cocaine and benzoylecgonine. On July 30, 2010, her drug test results were negative for cocaine and alcohol. The mother’s cooperation, attendance at counselling, and engagement with the Society was outlined. Since the mother had completed an education program, obtained employment and maintained a safe and stable home, the Society obtained an Order terminating the supervision order of Nicklas J. dated November 23, 2010.
[20] The most recent involvement of the Society regarding this family began on January 4, 2018. The child and his younger brother (J.R.) were apprehended from the care of the mother due to serious concerns regarding the mother’s ability to provide the children with appropriate supervision and meet their needs. There were also reports that the mother was using drugs. Both children were placed in care. The child was eventually returned to the mother because the child’s placements in care were problematic. On November 9, 2019, the Society withdrew its application with the child in the care of the mother.
[21] In December 2019, the Society brought a protection application and the child was once again brought into care. The protection application was amended twice and is dated April 14, 2021. It seeks protection findings and an order placing the child in the care of his father with access to the mother at the discretion of the Society.
[22] The mother served on the Society an amended answer dated September 4, 2020, in response to the initial amended protection application dated February 10, 2020. The mother’s answer has not been filed with the court. The mother’s answer agrees to an in-care order for the child, however, she does not agree that the child should be found to be in need of protection.
[23] The child has been in and out of care numerous times since his birth.
[24] On March 10, 2021, the Society brought a motion seeking placement of the child in the temporary care of the father pursuant to terms of supervision. On March 25, 2021, I heard the motion and made a temporary without prejudice order on the consent of the father, the OCL and the Society and unopposed by the mother placing the child in the care of the father with access to the mother at the Society’s discretion. That is the existing order.
[25] The father and the child consent to the existing order being made final. The mother does not, although she has no material before the court. Her counsel, Ms. Ichim submits that the mother does not agree that the child should be found in need of protection. The mother also disagrees with the Society’s request that an order for access between her and the child be made in the Society’s discretion. It is the mother’s position that access should be in the discretion of the child, given his age.
The Law
[26] The issue for me to decide is whether there exists a genuine issue for trial to determine the following: (a) the statutory findings pursuant to s. 90(2) of the CYFSA, (b) whether the child is in need of protection pursuant to s. 74(2) of the CYFSA, (c) what is the appropriate disposition and (d) what is the appropriate order for the mother’s access.
A. The Test for Summary Judgment in Child Protection Cases
[27] The Family Law Rules, O. Reg. 114/99, allow for a matter to be resolved without trial by way of a motion for summary judgment. The moving party, the Society, has the burden of proof and shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: see r. 16(4).
[28] In response to the affidavit or other evidence served by the Society, the responding party may not rest on “mere allegations or denials” but shall set out specific facts showing that there is a “genuine issue for trial”. If the evidence supports that there is no genuine issue for trial, the court is mandated by r. 16(6) to make a final order: see rr. 16(4)-(4.1) and (6). In its decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada established a new approach to summary judgment motions, the details of which are described further below. In response to Hryniak, new powers were added under rr. 16(6.1) and (6.2) that permit the court to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial.
[29] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80, the Court of Appeal for Ontario provided the following concise summary of the approach that the court should take to summary judgment within the context of child protection litigation, considering the decision in Hryniak:
Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
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.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
[30] 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 in order to make a determination. Hyrniak states 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.
[31] 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 those facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: See Hryniak, at para. 4.
[32] 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. Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings, which apply the objectives of the CYFSA, including the best interests of the child, and which promotes Hryniak’s principle of reaching a fair and just determination on the merits: See Kawartha-Haliburton Children’s Aid Society v. M.W, at para. 76.
[33] 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 discernible from the parents’ evidence that the child faces some better prospects than existed at the time of the Society’s removal of the child from their care and that they have developed some new ability as a parent: See Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (Ont. C.J.); Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, at para. 98.
[34] 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: See Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737, at para. 7.
[35] 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. There must be some demonstrated basis for a determination that the parents are able to parent without endangering the child’s safety: See Children’s Aid Society of Toronto v. C.G., at para. 103.
B. What is the Test on a Protection Application?
[36] The structure of a child protection application under the CYFSA is a two-step process. First, the court must decide if the child is in need of protection under s. 74(2) of the CYFSA. The Society bears the onus to prove on a balance of probabilities that the child is in need of protection. The court may determine that a child is at risk of suffering harm even though the conduct that causes the concern is not directed specifically towards that child. The risks do not need to be intentional. See Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, 24 R.F.L. (8th) 384, at paras. 18-19; Simcoe Muskoka Child, Youth and Family Services v. C.C., 2019 ONSC 4541, at para. 30.
[37] If the court finds that the child is not in need of protection, then that is the end of the Society’s protection application. See: Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, at para. 116
[38] The court can choose a flexible approach when considering the timing of the protection finding in a child protection proceeding. The court can and should admit evidence arising at any time up to the date of the court hearing. See Family and Children’s Services of St. Thomas and Elgin v. M.M., 2019 ONSC 4649, at para. 63; Children’s Aid Society of Halton Region v. L.S.A., 2019 ONCJ 759, at para. 82.
[39] The flexible approach allows the court to consider if the child is in need of protection at the start of the proceeding, the hearing date, or some other date. See Children’s Aid Society of Toronto v. R.M., at para. 85.
[40] In many child protection matters, the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection application proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts. See Children’s Aid Society of Toronto v. R.M., at para. 94.
[41] Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addiction, inadequate shelter/food are common circumstances leading to the findings of physical harm or risk of physical harm. Verbal abuse, aggression and inappropriate situations that children are exposed to also constitute risk of physical and emotional harm. See Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, at para. 106.
[42] When the evidence of a child's distress reactions to parental behaviour is sufficiently clear, a finding of risk of emotional harm can be made without the opinion of an expert. See Simcoe Muskoka Child, Youth and Family Services v. L.V., 2016 ONSC 7039, 90 R.F.L. (7th) 438, at para. 20 and Children’s Aid Society of Halton Region v. L.S.A., 2019 ONCJ 759, at para. 89.
[43] Furthermore, a periodic lack of consistent attendance at access also supports a finding of risk of physical harm as it can be seen as a pattern of ongoing neglect. A pattern of not exercising access consistently may also place the child at risk of emotional harm. See Family & Children’s Services of St. Thomas and Elgin v. M.M., at para. 77(d).
Best Interests
[44] The factors to be considered in determining the best interests of a child are contained in s. 74(3) of the CYFSA, which provides as follows:
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
i. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
ii. the child’s physical, mental and emotional level of development;
iii. the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression;
iv. the child’s cultural and linguistic heritage;
v. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;
vi. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community;
vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;
viii. the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent;
ix. the effects on the child of delay in the disposition of the case;
x. the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent; and
xi. the degree of risk, if any, that justified the finding that the child is in need of protection.
[45] Sections 101(2) to (4) of the CYFSA obligate 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.
[46] Sections 101 and 102 of the CYFSA provide that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders:
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;
that the child be placed in interim Society care and custody for a specified period not exceeding 12 months;
that the child be placed in extended Society care until the order is terminated under section 116 or expires under section 123;
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; or,
that one or more persons be granted custody of the child, with the consent of the person or persons.
[47] In determining which disposition is in the child’s best interests, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be placed in the care of the Society. In light of the timelines created by the statutory framework, the court has available to it only two options in this case: that the child be returned to the care of the mother (with or without a supervision order), or that the child be placed in the care of the father pursuant to the Society’s supervision. The child has maximized his time in care.
Positions of the Parties
[48] The Society seeks the following relief. First, an order that the child is found in need of protection pursuant to s. 74(2)(a)(i); (b)(i) and (ii); and (h). Second, an order placing the child in the care of his father for six months pursuant to terms and conditions. Third, that access between the child and his mother shall be supervised in the Society’s discretion.
[49] The father supports the Society’s position that the child be placed with him subject to the Society’s supervision. He submits that access to the mother should be in accordance with the child’s wishes. He takes no position on whether the child should be found in need of protection.
[50] The OCL supports the Society’s position on placement and access to the mother. Mr. Putman advises that the child’s views and preferences are clear. He enjoys living with his father and he frequently sees his mother.
[51] The mother did not oppose the child being placed in the temporary care of the father in March 2021. She acknowledges that the child suffers from mental health issues and requires the Society’s assistance in that regard. She has not filed any material. The mother argues, however, that since the child was returned to her care in 2018 and the Society terminated its involvement in November 2019, the Society cannot now rely on any evidence before November 2019.
[52] The mother acknowledges that, the child is 14 years old, and his views and preferences should be considered. The child has seen the mother when he wants to see her and that should continue.
[53] In reply, the Society acknowledged that it withdrew its application in November 2019, however, past parenting is relevant to the current issues and should be considered by the court. With respect to access, the Society submits that the child has been seeing his mother and that it would be in his best interests for this to continue. It is also the Society’s position that access between the mother and the child should be at the Society’s discretion.
[54] The Society submits that it has been involved with this family since 2000, initially in relation to mental health, drug and alcohol abuse, neglect, anger issues, domestic violence, lack of supervision and inconsistent engagement with the Society and service providers to meet the children’s needs. There were also concerns regarding alcohol abuse by the father.
[55] The Society’s most recent concerns (December 2019) arose out of the mother’s inability to meet the child’s physical, social and emotional needs (lack of food in the home, lack of appropriate supervision and caregiving plans, and not following through with school meetings and mental health supports for the child). The mother and the child were having conflict in their relationship, which resulted in the child leaving the mother’s home to reside with his teacher and eventually his sister.
[56] The child reported to the Society worker that his mother had not been providing him with food. The home was observed to be in disarray and the child disclosed that his mother verbally abused him. There was police involvement due to the reported conflict between the mother and the child.
[57] The child has changed placements throughout his life and has been in the care of his father consistently since February 2021. He continues to see his mother whenever he wishes and often unbeknownst to the Society worker. Included in the Society’s document brief is a letter from the worker to the mother dated October 1, 2020, where it is written that “the society is aware that [the child] continues to attend your home contrary to the court order, according to you, a few times a week.”
[58] The Society has recommended that the mother attend the agency for “coached” supervised access visits. The Society recommended that the mother attend “Parent Teen coaching” at the “Community Justice Initiative”. The Society also indicated that it would support the mother and the child attending a parenting program subject to the mother providing the Society with the information. There is no evidence that the mother has followed through with any of these recommendations. The evidence is that the mother has disengaged from the Society.
[59] There have been ongoing concerns noted about the mother’s ability to meet the child’s emotional needs. This is demonstrated by the breakdown in their relationship in November and December 2019 when the child went to reside with his sister. Police involvement when the relationship broke down and the subsequent report substantiates the conflict in the mother-child relationship. The child reported to the police that he had an argument with his mother that resulted in her hitting him in the face on the left side. The argument arose out of the child confronting the mother about her drug use. It was noted in the report that the mother and the child are aggressive towards one another and are prone to violent outbursts.
[60] The child has raised concerns with the Society about the mother’s continued struggle with addiction issues. The Society has attempted to provide support to the mother through services, but she has declined to follow through. The mother has not consistently attended access with the child. The child has attended at her home when he wants to see her. The Society has learned about the visits after the fact. Despite these concerns, the Society supports continued access between the mother and the child.
[61] The father has had the child in his care since March 2021. He is working cooperatively with the Society. Although the Society has historical concerns with the father regarding domestic violence when he was in a relationship with the mother, as well as his own addiction issues, there are no current concerns that would prevent the Society from supporting the child’s continued placement in his care.
[62] The evidence is overwhelming and not refuted by the mother. The evidence supports the Society’s position that the child should be found in need of protection in accordance with s. 74(2) of the CYFSA. I agree with the Society that protection findings have been made out in accordance with the grounds pleaded in the Society’s amended protection application.
[63] I am satisfied, based on my review of the evidence, that there is no genuine issue requiring a trial. I am also satisfied that the findings, as sought by the Society, should be made in accordance with s. 90(2) of the CYFSA.
Placement
[64] The overwhelming evidence before the court supports the Society’s position that there are no less intrusive alternatives present for this child. The child has been in the care of the father since February 2021. Although the Society has closed its file for short periods of time, the protection concerns continue to exist.
[65] The Society’s materials support the position that the mother cannot care for the child. His mental health issues increased while in her care. She continues to struggle with caring for the child and addressing his issues. To the mother’s credit, she acknowledged in her answer and plan of care that the child requires help from the Society to address his mental health issues and that he should not be returned to her care. Other than that acknowledgement in her answer signed in September 2020, she has not been engaged in services with the Society since the Society reopened its file.
[66] The father provided a plan for the child to be placed in his care when the placement broke down with the child’s sister. Although there continue to be challenges, the father advises that he is committed to the child and providing a place for him. He has been working cooperatively with the Society and supports the child remaining with him. Although the Society has had a history with the father, they support the child remaining in the father’s care and submit that this is the least intrusive order available.
[67] There is no doubt that this child has difficulties due to his time in foster care and his time in the care of his parents historically and more recently his mother. The child acknowledges that he has anger issues and he does not wish to reside with his mother. He chooses to continue an access relationship with her, but he has indicated his view and preference to reside with his father.
[68] Accordingly, the court must examine whether the father has put in place sufficient supports to negate the protection concerns. After reviewing the father’s material, I am satisfied that he is working with the Society worker to support the child.
[69] The mother did not file any material and did not attend the summary judgment motion. It is clear from the Society’s material that the mother has not engaged with the Society to address the protection concerns. There is no evidence that indicates that she has begun to make any change in her life. She accepts no responsibility for her actions past or current and blames the child and his behaviours for why he is not with her.
[70] The Society workers’ affidavits set out the history of the file and the Society’s involvement with the parents. I have assigned a lot of weight to the Society’s affidavits. Rule 16(4) of the Family Law Rules authorizes the court to grant summary judgment based on the affidavit evidence provided by the parties.
[71] The parties agreed, or do not oppose, that the Society’s evidence filed supports an order for the child’s placement, however, the mother does not agree that there should be an order finding the child in need of protection. Unfortunately, the mother did not file any material to support her position. The court must therefore first consider whether the child should be found in need of protection and second determine the appropriate disposition.
Findings
[72] Based on the applicable case law and the evidence before the court, the child in the current proceeding has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child under s. 74(2)(a)(i). The child is also at risk of physical harm under ss. 74(2)(b)(i) and (ii). I find that there is also a risk that the child is likely to suffer emotional harm as set out in s. 74(2)(h) of the CYFSA.
[73] The mother cannot parent the child. In her answer dated September 4, 2020, the mother submits that, “[a]t this time, I am not putting a plan for the child to live with me but I am contesting the finding in need of protection.” The mother submits that the child has severe problems with authority, and she is not safe living with him. The mother does not acknowledge any role that she may have played in the child’s development.
[74] The mother has neglected the child’s physical, mental, emotional, academic and behavioural needs while he has been in her care. The mother has failed to provide an appropriate home environment for the child with adequate food. The mother has not supervised the child while he was in her care. The mother has not followed through with services consistently for the child.
[75] This family has been involved with the Society for over 20 years. Previous orders have been made finding the child in need of protection. Although a supervision order was terminated on November 23, 2010, and there was a short time where the Society was not involved with the family, the file reopened in 2019 with many of the same concerns.
[76] The mother’s police record indicates numerous police occurrences from 2008 to 2020. The mother was convicted of assault on December 2, 2018, and failure to comply on February 3, 2009. There are 28 charges listed on the mother’s police record dated July 28, 2020. In 2020, the mother was charged with possession of stolen goods over $5,000 and possession, use, and trafficking a credit card. Included in the police records is a report where the mother contacted police regarding concerns with the child and conflict in their relationship whereby each was advising the police that the other had assaulted them.
[77] The mother has continued to experience conflict in her relationships and that conflict has now begun to occur in her relationship with her child. When the Society’s most recent involvement began, the child came into care because of the mother’s inability to manage his behaviours. The child’s anger issue and violent outbursts have made it difficult for him to be placed in alternate accommodation.
[78] The child has serious behavioural concerns and has required the services of medical professionals. A psychological assessment was completed on the child February 19, 2016, with numerous recommendations for his educational programming. The child has also been assessed by Dr. Martha Linkletter, a pediatrician. Dr. Linkletter writes, “[this child] has experienced symptoms of disordered attachment and emotional stress related to his time in fostercare. … he is currently exhibiting symptoms of Oppositional Defiance disorder, with significant concerns of aggressive behaviour, anger and lack of respect for authority both at home and at school.”
[79] In 2019 and 2020 the child attended at Grand River Hospital. The Society filed the child’s medical records, which note that the child attended the hospital for acute situational disturbance and Oppositional Defiance Disorder with chronic irritability-anger disorders. The child was referred to the Rapid Response Child and Adolescent Team for follow-up and has been referred to counselling for trauma and attachment as well as a psychiatry consult. This child continues to require significant support from professionals.
[80] Having considered the evidence before me, I find that it is in the interests of justice that this issue be resolved summarily. In the circumstances, I find that the Society has met its burden of proof and that there is no genuine issue for trial.
[81] I find that I am able to make the necessary findings of fact and apply the law to the facts, and that such an approach is a proportionate, more expeditious, and less expensive means to achieve a just result.
[82] I find that the evidentiary record is sufficiently comprehensive on this aspect of the case for me to make a fair and just determination of the issues on the merits without the need for a trial.
[83] Given the length of time that this matter has been before the court, I find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious, but it is also a desirable and necessary mechanism to achieve the objectives of the CYFSA.
[84] The evidence satisfies me, on a balance of probabilities, that: (1) intervention is required to protect the child both at the present time and for the foreseeable future; (2) that an order finding the child in need of protection should be made; (3) an order placing the child in the care of the father can adequately protect him, with terms of supervision; and (4) that such orders would be a foregone conclusion if this matter were to proceed to trial.
[85] I have considered the best interests factors set out in s. 74(3) and make the following findings:
(a) the child’s views and wishes are to remain in the care of his father and have face-to-face contact with his mother;
(b) the child is not a First Nations, Inuk or Métis child.
(c) Any other relevant circumstances:
i. there is evidence that the child has special needs;
ii. the Society attached a psychological assessment report dated February 19, 2016 in its document brief, which makes 13 recommendations to help address the concerns set out in the assessment;
iii. the Society also provided evidence that the child’s behaviours have resulted in police involvement and medical intervention;
iv. the child has been assessed by Dr. Linkletter and has been noted to exhibit symptoms of Oppositional Defiance Disorder, with significant concerns of aggressive behaviour, anger and lack of respect for authority both at home and at school;
v. the child has been in the care of his father pursuant to a temporary temporary supervision order since March 2021 and the Society supports this placement;
vi. there are no specific considerations regarding the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression. I have no evidence regarding the child’s cultural and linguistic heritage;
vii. the Society proposes that the child remain in the care of the father pursuant to its supervision;
viii. the Society also proposes that the child continue to maintain his connection with his mother and his extended family;
ix. there is a real and significant risk that the child may suffer harm if he is returned to the care of the mother;
x. the child requires stability; and
xi. the child is an adolescent and has spent a considerable portion of his life in foster care and different family placements. The child requires a stable, reliable and committed caregiver who can provide him with a safe, secure and permanent home. The father has provided that stability.
[86] There are additional considerations when contemplating summary judgment motions in the context of child protection cases. These include the nature of the evidence, the mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved and particularly how material the facts in issue are to the case. In addition, the analysis must be undertaken with a view to the paramount purpose of the legislation, which is to promote the best interests, protection and well-being of children. Specifically, summary judgment can be used as a procedural remedy to promote the child’s best interests and to support the time limitations established by the legislation: see Children’s Aid Society of Waterloo (Regional Municipality) v. C.A.D., 2011 ONCA 684, at para. 5; Children’s Aid Society of Algoma v. A.K., 2015 ONSC 6166, at para. 35.
[87] I have considered that I should exercise considerable caution before proceeding on a summary basis on a child protection case, particularly with respect to evidentiary issues. No evidentiary issues were raised by the parties. I have assigned great weight to the evidence filed by the Society and neither parent filed any evidence to refute the Society’s evidence. The father filed evidence in support of the Society’s position and the mother filed no evidence. I recognize and have considered that in child protection proceedings, there are Charter implications at stake for vulnerable litigants. I find that it is in the interest of justice for the court to determine this case summarily.
[88] Having determined that intervention is required and that it is not in the child’s best interests to be returned to the care of the mother, I have determined that a less intrusive option is available in placing the child in the care of the father pursuant to the Society’s supervision. I find that it is in the child’s best interests to be placed in the care of the father.
[89] I must now determine the issue of access to the mother.
C. What Considerations Apply in Determining Whether Parents Should Have a Right of Access Following a Determination of Extended Society Care?
[90] As noted previously, when a child is placed into the care of one parent, the court must also consider whether there should be continued contact with the other parent. The Society is seeking an order that there be access between the child and the mother at the Society’s discretion.
[91] The Court of Appeal for Ontario has recently considered the issue of access in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, 41 R.F.L. (8th) 1, which was released on June 25, 2020.
[92] In this decision, Benotto J.A. made it clear that when the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) was replaced with the CYFSA, one of the legislative aims was to import a broad best interests analysis into the determination of access: see para. 18. The previous test was replaced with a holistic consideration of the child’s best interests, as set out in ss. 105(5) and (6) of the CYFSA. These sections read as follows:
105(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) unless the court is satisfied that the order or variation would be in the child’s best interests.
105(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),
(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and
(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.
[93] Pursuant to s. 74(3) of the CYFSA, “best interests of a child” is a defined term that encompasses a very wide range of considerations. The provision lays out 15 enumerated factors and directs the court to “consider any other circumstance of the case that the person [deciding the case] considers relevant.”
[94] After setting out the new statutory test for access to the child in extended Society care, at para. 37, Benotto J.A. refers to her previous decision in Kawartha-Haliburton Children’s Aid Society v. M.W., where the following is stated at para. 49:
The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive.
[95] Writing for a unanimous court, Benotto J.A. made it clear that the CYFSA has changed the criteria for access by removing the presumption against access and making the child’s best interests paramount. This change was not just semantics but represented a significant shift in the approach to access for children in extended care: see Children’s Aid Society of Toronto v. J.G., at para. 37.
[96] Benotto J.A. went on to state that the “beneficial and meaningful” test articulated in s. 101(6)(a) is not a separate precondition. Instead, it is a consideration within the context of the child’s best interests. A child’s best interests are not static, and the possibility of positive future relationships can be considered. As indicated at paras. 50-55, when a child has significant medical issues, the court may consider whether the child could benefit from access to their biological parents. Ultimately, a child’s best interests in connection with future access involves a delicate weighing and balancing of multiple factors: see para. 63. The court should consider all factors whether they be past, present or future, and this can include future medical issues.
[97] The Court of Appeal clarified that access comes in many forms that depart from in-person visits, including the exchange of emails, gifts, video chats or phone calls: see para. 64.
[98] In J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630, the Divisional Court found that it was an error in law for the trial judge to delegate the exercise of its jurisdiction to determine access between the parent and child to the Society. At para. 38 of the decision, the court stated the following:
Section 104 of the CYFSA provides the court with jurisdiction to determine access in the child’s best interests. Section 104(1) provides that the court may “make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.” Section 104 makes it clear that it is the court that makes an order respecting access, and it is the court that is to impose terms and conditions “as the court considers appropriate.”
[99] The court in J.S.R. v. Children’s Aid Society of Ottawa then canvassed how s. 105 of the CYFSA sets out the factors that a court must consider in making an access order based on the best interests of the child[ren]. At paras. 54 and 55 the court made the following comments:
We find that granting a Society the discretion to determine the type, frequency and duration of access, including whether access will take place at all, is an inappropriate delegation of the court’s role to determine access terms and conditions pursuant to section 104 and 105 of the CYFSA.
That said, it is important to distinguish between discretionary “visits” and the right of access resting in access holders. As the Court of Appeal held in Children’s Aid Society of Toronto v. D.P., 2005 CanLII 34560 (ON CA) at para. 12, a Society has “the right to control who may visit children and when,” as would a custodial parent. For example, if the access order stipulates in-person visits six times a year for an hour, a Society retains the discretion to grant additional visits, or to supplement in-person visits with additional written communication. In this sense, the right of access granted by a court may be supplemental by a Society’s discretionary decisions about visits. But the minimum rights of access must be established by the court. [Emphasis added.]
Evidence with Respect to Access
[100] The Society seeks an order for access to the child by the mother in the Society’s discretion and supervised in its discretion. The Society acknowledges that the child determines when and where he wishes to see the mother without consultation with the Society. Despite the Society’s efforts to control unplanned visits, the child continues to see his mother without input from the Society.
[101] The father and the OCL supports the Society’s position regarding the child’s access with his mother. They also recognize the child’s desire to do as he wishes.
[102] The father’s affidavit dated March 19, 2021, supports that he has had appropriate accommodation for the child since February 12, 2021. The child began to have weekend access with the father at his home from Friday until Monday for two weekends in February 2021. On February 26, 2021, the child required a place to live as a result of his “in care” home closing, and the child went to stay with the father on an extended access visit. The Society brought a motion for a temporary order placing the child with the father and that order was made. The child has remained with the father since that time with the exception of a few days at an alternate accommodation.
[103] The father outlines in his affidavit that he supports the child having a relationship with his mother. If the child continues to reside with him, he attests that he will ensure that any access order is followed regarding the child’s access with his mother.
[104] The father also attests that he has a good working relationship with the Society worker. He has been cooperating with the Society and he shall continue to cooperate to ensure that the child’s needs are met. He submits that he is willing to do whatever the Society recommends, to assist the child in addressing his challenges.
[105] The child is 14 years old and has been in and out of care several times since his birth. His time in care exceeds the 24 months permitted for children this age. Although he was removed from his mother’s care, his mother agrees that he cannot return to her care. The father is prepared to have him in his care full-time. Although the placement is new, the evidence is that the child is doing well in the father’s care. I agree that the child should continue to reside with his father and see his mother.
[106] Ms. Folkerson is one of the Child Protection Workers assigned to this file. Ms. Folkerson swore four affidavits in support of the summary judgment motion. Ms. Folkerson attests that she worked with the mother in 2019 when she began to experience difficulty with the child’s behaviours. Shortly thereafter the child left the mother’s care and went to reside with his sister. The child made allegations about an encounter he had with his mother and the Society and the police were involved in an investigation. The child has not returned to the mother’s care since that time and has advised Ms. Folkerson that he wishes to live with his father.
[107] Ms. Folkerson has attempted to engage the mother in services over the years and she attests that the mother does not follow through. The worker’s last home visit with the mother was on September 24, 2020. Between January 2021 and May 4, 2021, the mother did not complete any scheduled home visits and missed a meeting with the Society worker to discuss concerns. The mother has not responded to the Society worker’s efforts to reschedule the meeting.
[108] The child advised the worker that things are going well while living with his father. They had an argument that resulted in the child leaving the home to reside at “Safe Haven” for a few nights. The child advised the worker that he had discussed the argument he had with his father, worked things out and he returned to his father’s home. The Society has had regular visits with the child and the father since the child was placed there in February and continues to support placement of the child with the father.
[109] The Society continues to be concerned for the mother’s lack of engagement. Efforts continue to be made by the Society to reach out to the mother, however, the mother is not responding.
[110] In Ms. Folkerson’s affidavit sworn May 19, 2021, she attests that she remains concerned about the mother’s ability to attend access as scheduled with her youngest child, J.R. That child has special needs and requires a caregiver that is willing and able to consistently meet his needs, including attending appointments with schools and service providers to support his development. The mother continues to ignore the protection concerns. She will not meet with the Society worker and she will not follow through with services. Despite years of Society involvement and some past engagement in services to address issues of domestic violence and substance abuse, there has been little substantive change in the mother’s ability to maintain children in her care and meet their needs.
[111] The Society also filed affidavits from Dorian Whalen, Sherry Rehkopf, Steve Dick, Sarah Martin, and Jim Gignac, all of which provide further evidence that indicates that the mother is unable to put forward a plan for this child.
[112] I accept the affidavit evidence submitted by the Society regarding its protection concerns, the child’s current placement with the father and his access with the mother.
[113] I have assigned extra weight to the affidavits of Ms. Folkerson. She has a relationship with the child and she has put forward evidence directly from him. This child has special needs as a result of the protection concerns with the mother.
[114] The father has filed two brief affidavits which discuss the Society’s historical concerns as well as his relationship with the child. The father attests that he has obtained appropriate accommodation and that the child has been residing with him full-time since approximately February 26, 2021. I have assigned some weight to his evidence as he acknowledged the Society’s protection concerns with him. He posits that he has addressed the concerns and has a plan of care for the child. He accepts that the child has some challenges and he will ensure that the child has help to deal with those challenges. He is engaged with the Society worker, he is willing to abide by terms of a supervision order and he is prepared to support a relationship between the child and his mother. I also accept that it is the child’s view and preference to remain in the care of his father with access to his mother.
[115] The court must consider the child’s views and preferences in determining if an access order should be made. Based on the evidence submitted by the Society, specifically the affidavit of Ms. Folkerson, dated May 13, 2021, and the submissions made by OCL counsel, Mr. Putman, I accept that there should be an order for access between the child and his mother.
[116] It is clear from the evidence that the parents love the child. However, the child continues to experience many issues. The Society is supporting the child while he is in the father’s care and that should continue. There is evidence that the child is having contact with his mother and that that contact is beneficial and meaningful to him.
[117] I agree with the Society that there should be access between the child and his mother at the discretion of the Society and supervised in the discretion of the Society. I do not need to set minimums for access since the child is a teenager and is choosing when he wishes to see his mother. The child is in the care of the father and I accept the father’s evidence that he supports the relationship between the child and the mother.
[118] Based on the evidence that has been presented and considering the factors set out in s. 74(3) of the CYFSA, I find that the mother should continue to have access in accordance with the Society’s discretion and in consultation with the child. The following factors further support an order to this effect: the child is happy to see his mother and is bonded to her; the child has had access with his mother since birth; the mother is unable to parent the child full-time, however, the child is attached to his mother; and both the mother and the child benefit from their access relationship.
[119] Having considered the evidence and the recent Divisional Court decision of J.S.R. v. Children’s Aid Society of Ottawa, the court makes the orders set out below.
Orders Granted
[120] This court orders the following:
- An order for summary judgment pursuant to Rule 16 for the following:
(a) the name and date of the birth of the child R.M.A. [redacted for publication - counsel to insert name in Order];
(b) R.M.A is not a first Nations, Inuk or Métis child;
(c) the location from which the child was removed is the Waterloo Region;
(d) the child is in need of protection pursuant to section 74(2)(a)(i), (b)(i), (b)(ii) and (h) of the CYFSA.
- The child, R.M.A., shall be placed in the care and custody of the father, R.A., subject to the supervision of the Society for a period of six months on the following terms and conditions:
(a) The father shall co-operate with the Children’s Aid Society of the Regional Municipality of Waterloo (“Society”);
(b) The father shall allow a worker from the Society to have access to the home and to the child at the home and at school on both a scheduled and unscheduled basis;
(c) The father shall meet with a worker from the Society at the home, agency, and/or community as requested by the worker;
(d) The father will sign consents to release information to allow the Society to communicate with service providers and vice versa;
(e) The father shall advise the Society in advance of any change in address and/or telephone number;
(f) The father shall reside with the child in a residence approved in advance by the Society;
(g) The father shall consistently maintain a safe and stable home environment;
(h) The father shall ensure that no other individuals reside in the home with him and the child without advance approval by the Society;
(i) The father shall not consume alcohol to the point of intoxication while in a caregiving role;
(j) The father shall ensure that no other person is under the influence of alcohol or illegal drugs while in the presence of the child;
(k) The father shall ensure that the child is appropriately supervised at all times by a caregiver who is awake, alert and sober;
(l) The father shall ensure that the child consistently attends school, will ensure that his educational needs are met and will attend all required school meetings;
(m) The father shall ensure that the child attends counselling at an Agency approved by the Society;
(n) The father shall attend and successfully complete individual and/or group parenting counselling at an agency approved by the Society;
(o) The mother, C.F., shall cooperate with the Society;
(p) The mother shall allow a worker from the Society to have access to the home on both a scheduled and unscheduled basis;
(q) The mother shall meet with a worker from the Society at the home, agency and/or community as requested by the worker;
(r) The mother will sign consents to release information to allow the Society to communicate with service providers and vice versa;
(s) The mother shall advise the Society in advance of any change in address and/or telephone number;
(t) The mother will consistently maintain a safe and stable home environment;
(u) The mother will attend and successfully complete individual and/or group parenting counselling at an agency approved by the Society;
(v) The mother shall refrain absolutely from the use of illegal drugs and abuse of alcohol and prescription drugs;
(w) The mother will commence an assessment for drug addiction at an agency approved by the Society and will follow through with all treatment recommendations offered by the service provider;
(x) The mother will commence individual counselling and/or group counselling for victims of domestic violence to learn about power imbalance, the abuse of power in relationships, and the impact exposure to domestic violence has on children at an agency approved by the Society and will follow through with treatment recommendations offered by the service provider;
(y) The mother will commence individual and/or group counselling with regard to children witnessing domestic violence at an agency recommended by the Society and will follow through with treatment recommendations offered by the service provider.
Access between the child and the mother, C.F., shall be at the discretion of the Society and supervised in its discretion in consultation with the child.
There shall be no order as to costs.
____________________________
J. Walters J.
Date: September 16, 2021