Simcoe Muskoka Child, Youth and Family Services v. M.H., 2021 ONSC 7114

Court File and Parties

Citation: 2021 ONSC 7114 Court File No.: FC-20-988-00 Date: 2021-10-26 Superior Court of Justice - Ontario

Re: Simcoe Muskoka Child, Youth and Family Services, Applicant And: M.H., Respondent

Before: The Honourable Mr. Justice J.P.L. McDermot

Counsel: Ms. C. Gilchrist, for the Applicant John Rogers, for the Respondent

Heard: August 13, 2021

Ruling

1On February 14, 2020, the Respondent Mother, M.H., gave birth to a son, D.H. at Soldiers Memorial Hospital in Orillia. In her affidavit, the mother acknowledged using cocaine and alcohol during pregnancy; she says that she promptly stopped using when she discovered that she was pregnant at 27 weeks’ gestation.¹ However, when the child was born, he tested positive for cocaine and could not breathe on his own. He required tube feeding and had to be placed in the Neonatal Intensive Care Unit for two days.

2Prior to the birth of D.H., M.H. had previous involvement with child protective services. She has another son, P.H., who was placed with the maternal grandmother and grandfather because of the mother’s homelessness, mental health issues and drug and alcohol use. According to the Society material, M.H. was diagnosed at that time with Borderline Personality Traits and Mood Disorder. P.H. now lives with the maternal grandmother, S.C. Since the time of D.H.’s birth, S.C. says that she has had no communication with M.H. and she does not want sibling contact between P.H. and D.H.

3Because of this previous involvement, M.H.’s drug and alcohol use, the baby’s health problems resultant from that drug use as well as her mental health concerns and lack of stability, the Society worker was not willing to allow M.H. to take D.H. home with her. By way of a Voluntary Service Agreement, D.H. was placed with kith care providers who were friends of the mother, W.S. and M.J. That placement was confirmed by a temporary order in these proceedings on December 20, 2020 and the child remains in their care today. The Society moves for deemed custody in favour of those caregivers, subject to access to the mother at their discretion.

Result

4For the reasons set out below, I have granted summary judgment in favour of the Applicant Society as follows:

a. The kith caregivers, W.S. and M.J., shall be granted deemed custody and decision-making concerning the child, D.H.

b. The Respondent Mother shall have access to the child of one visit per week as arranged between the parties at the discretion of W.S. and M.J. as to duration, supervision and location. Access shall only take place on 48 hours’ notice to the caregivers.

ANALYSIS

5In argument, it was clear that the mother understood that she could not assume primary care or even shared care of D.H. She seeks joint custody or decision-making concerning the child and also asks for unsupervised access which could take place at her residence.

Findings on Consent

6This motion is for summary judgment for an order for deemed custody of the child to W.S. and M.J. under s. 102 of the Child, Youth and Family Services Act (the “CYFSA”).² Prior to making such an order, there must be a finding that the child is in need of protection under s. 74 of the CYFSA.³ The Society has requested a finding that D.H. is in need of protection under ss. 74(2)(b)(i), 74(2)(b)(ii) (failure to adequately care for or protect the child or a pattern of neglect in caring for the child) and 74(2)(h) (risk of emotional harm resulting from pattern of neglect of the child) of the CYFSA. During argument, the Respondent Mother through her counsel consented to these findings as well as the necessary statutory findings required to be made under s. 90(2) of the CYFSA as requested in the Society’s Notice of Motion.

7I would note, however, that even if there was no consent, the evidence is clear and uncontradicted that this child was in need of protection by reason of the mother’s drug use, her mental health issues as well as her lifestyle and associations and this finding would have been made in any event.

8The Respondent Mother says in her materials that she had never been permitted to care for the child and complained of the unfairness of depriving her of care of the child. Although she says that her “goal right now” is to have 50% care of the child,⁴ it was clear from her materials and argument that the mother was not presently capable of becoming a joint caregiver of the child. As noted above, only issues raised in her counsel’s argument was the nature of the custodial relationship: the Respondent Mother asked for “joint custody” of D.H. with primary residence to W.S. and M.J. As well, the Society asks for limited access to the Respondent Mother at the discretion of the caregivers while the Respondent Mother asks for fixed unsupervised access to the child including the right to take D.H. to her home.

Summary Judgment

9There did not appear to be any major objection to the court making a decision on these issues in the context of this summary judgment motion. There was, however, no specific consent that an order for summary judgment go on the issues raised by the Respondent Mother. The court must therefore consider whether there is any “genuine issue for trial” within the meaning of Rule 16 of the Family Law Rules⁵ concerning these issues prior to making a decision on joint custody and access in this case.

10The test of “no genuine issue for trial” has been referred to in a number of ways. It is been equated with “no chance of success” and “plain and obvious that the action cannot succeed”: Children’s Aid Society of Oxford (County) v. J(J), 2003 2388 (Ont. S.C.J.) at para. 8. The test has also been enunciated as being when “the outcome is foregone conclusion” or when there is “no realistic possibility of an outcome other than that sought by the applicant”: Catholic Children’s Aid Society of Metropolitan Toronto v. O(L.M.), 1996 7271 (Ont. S.C.J.) at para. 80 and Children’s Aid Society of the County of Lanark and Town of Smiths Falls v. S.M., [2010] W.D.F.L. 2361 (Ont. S.C.J.) at para. 21.

11Rule 16(4.1) provides that the responding party has a duty to provide a narrative of the facts upon which he or she relies. This requirement has often been referred to as a party putting his or her “best foot forward” in response to a motion for summary judgment: see Children’s Aid Society of Toronto v. E.L.L. (2000), 2000 11422 (ON CJ), 134 A.C.W.S. (3d) 263 (Ont. C.J.) and Rogers Cable TV v. 373041 Ontario Ltd., 1994 7367 (ON SC), 1994 CarswellOnt 166 (Gen. Div.). In assessing her evidence, it is assumed that all of the evidence that the Respondent would present at trial is contained in her affidavit: see Children’s Aid Society of Toronto v. E.L.L. (supra) and Children’s Aid Society of Simcoe (County) v. R.(D.), 2010 ONSC 2092 at para. 6.

12However, Rule 16(4.1) does not affect the onus of the Applicant Society to prove there to be no genuine issue for trial. That onus does not change. This was confirmed by Benotto J.A. in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 which confirms that the onus always remains with the Society to prove on the balance of probabilities that the case can be determined without a trial. Kawartha-Haliburton also confirms that, because of the child protection issues before the court and the resources available to a child protection agency, the court must always proceed with caution in granting summary judgment.

13In the present case, the credibility of the Respondent Mother is a major issue. There are concerns that this individual habitually lies to the kith care providers and the Society worker and that she lied in her sworn statements provided to the court. Traditionally on a motion, the court does not have the power to make credibility findings; however, under Rule 16(6.1), the court on a summary judgment motion can weigh evidence, evaluate a deponent’s credibility and draw reasonable inferences from the evidence.

14The leading case of Hryniak v. Maudlin, 2014 SCC 7, [2014] S.C.J. No. 7 addresses these powers in the context of Rule 20 of the Rules of Civil Procedure,⁶ which is similar to Rule 16. Hryniak says that the touchstone in a summary judgment motion is fairness: is the court able to make an accurate determination of fact on the basis of the written record? If so, then a decision on the motion is fair and proportionate considering the issues before the court. If not, then the court can have recourse to the powers under Rule 16(6.1) in assessing the evidence of the parties prior to dismissing the motion or ordering a trial.

15In the present case, it was difficult to avoid addressing the credibility of the Respondent Mother. As will be outlined below, she made many assertions which were difficult to believe and her affidavit material on its face often lacked credibility or corresponding reliability.

16Under Rule 16, as amended, I can make credibility findings concerning deponents filing affidavits in a summary judgment motion. Although a last resort according to Hyrniak v. Maudlin, if there are credibility issues between these parties, it was clear to me that much of the Respondent Mother’s evidence cannot be believed. If necessary, I would trust what W.S. or the Society worker say in their affidavits over the evidence of M.H.

Joint Custody

17As stated, the Respondent Mother says that she is content that D.H. continue to have his primary residence with the kith care providers, W.S. and M.J. She requests joint custody, what would also be referred to as joint “decision-making responsibility” within the meaning of s. 21(1)(a) of the Children’s Law Reform Act (the “CLRA”).⁷ Section 28(4) of that statute gives the court the power to allocate decision-making concerning a child “to one or more persons.” As s. 102(2)(a) of the CYFSA permits the court to make any order under s. 28 of the CLRA, there is no issue that the court may allocate decision-making authority between caregivers in making a deemed custody order.

18A custody order under s. 102(1) of the CYFSA may only be made where it is in the best interests of the child. The best interests of children are addressed in s. 74(3) of the CYFSA. The best interests factors under that section relevant to the mother’s claim for joint decision-making include ss. 74(c)(v), (vi) and (vii) which read as follows:

(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,…

19The law is fairly clear at the appellate level that a joint custody order is only appropriate where there is a sufficient degree of cooperation between the proposed joint decision makers: see Kaplanis v Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 (C.A.), Ladina v. Ladina (2005), 2005 1627 (ON CA), 11 R.F.L. (6th) 50 (Ont. C.A.) and Giri v. Wentges, 2009 ONCA 606, [2009] O.J. No. 5173 (C.A.).

20These cases make it clear that the nature of the relationship between the parties is important to the determination of whether there should be joint decision making concerning the child. Where communication is inadequate, problematic or toxic in nature, then joint decision making or custody is not seen to be in the best interests of the child. The reasons for this are obvious: to allow joint decision making between conflicted parties would lead to deadlock on major decisions and also might result in arguments or disagreements in the presence of the child.

21In the present case, the parties were friends at the time of the birth of the child, and M.H. saw W.S. as a support person to the extent that she suggested that W.S. have care of the child when the Society determined that M.H. could not do so. W.S. deposes that she drove M.H. around, loaned her a vehicle and also loaned her money.

22However, it appears that things have deteriorated between these parties. Initially, in March, 2020, W.S. and her partner permitted the Respondent Mother to exercise access in their home, but they ended this because of M.H.’s inconsistency in exercising access and because of M.H.’s behaviour toward her child during access visits. On March 20, 2020, a threatening note was left on W.S.’s vehicle; according to W.S., it contained details that only M.H. and W.S.’s family knew. The letter stated that “this is a warning not to fuck with [M.H.] any more” and accuses W.S. and her partner of not allowing M.H. visits with the child. In addition, the Respondent Mother has accused W.S. of telling D.H. to call her “mommy” and W.S. denies having done this. The Respondent Mother has also accused W.S. of having her family “drive by” her and D.H. during an access visit in the park.

23The note left on the vehicle also raises the fact that M.H. chooses her friends badly. Friends or associates of the Respondent Mother clearly authored this note, whether or not M.H. was aware of the note. On February 11, 2021, her boyfriend, M.O., was shot and injured outside of her residence in what was suggested to be a targeted shooting. Earlier, he was arrested for possession of firearms and cocaine on May 20, 2020; M.H. eventually lived with him at the residence where the firearms and cocaine were found and she suggested it to the worker as a safe place for access to D.H. Another former boyfriend was shot and killed on July 5, 2020.

24There is also some evidence that the mother has herself engaged in criminal behaviour, and her name has appeared on criminal dockets in the Ontario Court of Justice; she has refused to disclose what she has been charged with and did not address these criminal court appearances in her affidavit.

25These persons who are part of M.H.’s life as well as her own lifestyle require her to be distanced from the parenting of D.H. She cannot associate with persons who would even consider leaving a threatening note addressed to her joint decision maker for obvious reasons. Her connection with these persons leaves the court questioning her judgment or whether she can be trusted in parenting a small child. M.H. knows that these relationships are concerning and she says that she is now moving to Orillia with a view to severing those relationships. However, this initiative remains untested and can only be called a “heartfelt expression” of a desire to do better as outlined in Family and Children’s Services of Lanark, Leeds and Grenville v. J.M., 2016 ONSC 5954 at para. 31. There must be something discernable from the evidence that the mother has actually changed her ways and associations and not just an untried statement of intention.

26W.S. also points out in her affidavit that M.H. cannot be trusted. She notes that M.H. lied to her family and friends about her pregnancy. She has told her friends and family that W.S. has been denying access to M.H. which, according to all accounts, is untrue. According to W.S., M.H. cancels access visits, and lies about the reasons for this.

27There is independent evidence that M.H. cannot be trusted. In her affidavit, she said that the baby had cocaine in her system from ingesting her amniotic fluid, but was unable to explain how cocaine got into her amniotic fluid. I had to press counsel during argument to obtain an admission that the cocaine in D.H.’s blood came from nowhere else other than from M.H.’s own use of cocaine unless the baby ingested cocaine independently, something that was clearly impossible. The only way that the baby could have tested positive for cocaine was because his mother ingested cocaine, and the Respondent Mother was unwilling to admit this. Another blatant untruth involved M.O., the boyfriend of M.H. who was shot and injured just outside her residence: M.H. advised the court in her affidavit that she had ended her relationship with that individual and that he was shot while delivering a pizza while working for a restaurant, something completely unbelievable as demonstrated by the 911 call when M.H. said that her “boyfriend had just come home from work and was shot at.”⁸ There was good reason for W.S. in not trusting the Respondent Mother as her own affidavit has very little credibility.

28To some extent, the Respondent Mother also confirms that her relationship with W.S. has soured. She indicates in her affidavit that she does not want to allow W.S. to distribute family pictures including D.H. on social media. She says that she appreciates the efforts that W.S. has taken in caring for D.H. for the past 18 months, but says, on the other hand “it’s ridiculous that [W.S.] and [M.J.] feel that they can share pictures of [D.H.] with friends.”⁹ To say that W.S. and M.J. cannot treat D.H. as a household member is disrespectful to both the caregivers and to the child, who needs both family and stability. This is especially so where the Respondent Mother is now agreeing that a deemed custody order can go, at least as to primary residency.

29Finally, the Respondent Mother has not been sufficiently involved with her child to be a joint decision maker. She has been inconsistent in her visits with the child and has missed visits frequently. She admits to this in her own affidavit. She has provided medication to the child during an access visit without checking with W.S. as to whether that medication had been given prior to the visit. According to W.S., the Respondent Mother has fed the child apple sauce and other solid food prior to the child being ready for that type of food. I can only conclude that she has not been sufficiently engaged with her child to permit her involvement in making major decisions concerning the child and this is unfortunately reflected in the types of decisions that she has, in fact, made.

30In addressing joint custody or decision-making, it is important to note that there is case law that supports such an order even where parties don’t get along where it is important to preserve a parent’s relationship with the child, something that is specifically seen as important to the child’s best interests under ss. 74(c)(v), (vi) and (vii) of the CYFSA noted above. Specifically, in Patterson v. Patterson, 2006 53701 (ON SC), [2006] O.J. No. 5454 (S.C.J.), McLaren J. cited Habel v. Hagedorn, 2005 ONCJ 252 (C.J.) where it was suggested that joint custody would be appropriate “to preserve a parent's relationship with the child or children in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk that the objecting parent will try to marginalize and limit the other parent's involvement with the child.”

31I agree that joint decision-making would be in the child’s best interests where the caregiver was intent upon marginalizing the child from the parent. However, it is clear that this was not the situation in the present case. W.S. deposes that she attempted to foster a relationship between the mother and her child from the beginning and include M.H. in her child’s life. W.S. says that she was a friend of M.H. and drove her to the hospital when she went into labour. She took M.H. to appointments and allowed her to stay with her when she needed housing. When D.H. came into W.S.’s care in February, 2020, she offered to have M.H. come to the home to help D.H. settle in at the home, an offer that M.H. declined. She assisted in facilitating access between M.H. and D.H., which proved to be both sporadic and difficult. Throughout, it is clear that if there was limited contact between the Respondent Mother and the child, it was the Respondent Mother who was responsible for this and not W.S. or M.J.

32It is therefore clear that this is not an appropriate case for joint decision making or custody. I do not need a trial to know that M.H. and the kith providers do not get along sufficiently to jointly parent D.H. and disagree on the roles of the caregivers in D.H.’s life. Threats have been made on behalf of M.H. against W.S. and M.J. by associates of the Respondent Mother. W.S. has also lost trust with M.H. for good reason as it is apparent that M.H. cannot be trusted to tell the truth.

33There shall be summary judgment granting deemed custody and primary decision making in favour of W.S. and M.J. as requested by the Applicant Society.

Access

34This is a motion for a deemed custody order and the Applicant Society asks that access be left to be addressed by the custodial parents. The Society asks for access to be “subject to the discretion of” the kith care providers, W.S. and M.J.

35M.H. disagrees. She wants to have access at her home, unsupervised. She complains that she has never been able to care for the child on her own and in her home, and wishes to do so.

36Since D.H.’s birth, the Respondent Mother has continued to have access with her son. However, that access has been sporadic and there has been little progress throughout.

37M.H. began with supervised visits at the home of the kith caregivers. Originally, she had three weekly visits and one visit on the weekend. She often showed up late and on one occasion showed up “under the influence”. Between March 4 and 16, 2020, eleven visits were scheduled and the mother missed four of those visits.

38Because of the missed visits and problems during the visits, M.H.’s visits were moved to the C.A.S. offices to be supervised by a Society worker. Originally, the visits were to be three visits per week, but COVID intervened, and the visits became virtual. Numerous virtual visits were missed and M.H. missed 23 of 31 visits.

39When the access returned to in person visits on July 8, 2020, this pattern continued. By August, 2020, the Respondent Mother was to receive three four-hour access visits per week. Again, M.H. was observed to be under the influence of drugs on October 8, 2020. On October 14, 2020, M.H. gave Tempra to D.H. without good reason. Then, between October 14 and December 8, 2020, M.H. did not exercise any access whatsoever to her son.

40Access was reduced to one visit per week but the visits continued to be sporadic. M.H. cancelled her Christmas Day visit in December, 2020. She missed an Easter Zoom virtual visit and admits that she favoured relatives who were staying with her. She missed visits scheduled for May 20, May 27 and June 1, 2021. She also cancelled visits leading up to this motion on June 29 and July 6, 2021.

41The mother provides somewhat dubious excuses for missing the visits. When she missed the visits between October 14 and December 8, 2020, she says that this was partly because she was attending a hospital in Midland for scans for a head injury suffered as a result of a spousal assault. However, the hospital records confirm that M.H. never attended at the hospital during this time other than for one emergency room visit. She said that she missed a visit on June 1, 2021 because she had to attend for a mental health assessment; she failed to provide that assessment or proof of that appointment in her reply affidavit. On June 8, 2021, the visit was changed because M.H. said that she was attending a “Road to Recovery” virtual program at the Georgian Bay Native Friendship Centre but when the worker contacted the Centre, she was told that M.H. had not attended the program since May 20, 2021 and had only attended three visits.¹⁰

42The evidence from both W.S. and the worker regarding the history of access is largely uncontradicted by the Respondent Mother. She does not deny that she has failed to exercise consistent access to D.H. and missed numerous visits. She acknowledges that she missed an Easter visit because of her houseguests. Her own affidavit has shown that she is willing to lie to the court about the reasons for missing these visits. Again, M.H. has little credibility and access can be addressed without the need for a trial of an issue.

43The unfortunate part of all of this is that, apart from providing medication and food to the child where not warranted or in consultation with the caregiver, the access visits between mother and child are generally beneficial to the child. The worker indicates that the mother’s behaviour is generally appropriate and the visits go well. If the visits had been consistent, we might very well be in a different place than considering a request that the visits be at the discretion of the caregivers.

44The criteria for a summary judgment motion is improvement: has the Respondent Mother made progress since the apprehension of the child? Put another way, the court must address the question of whether the “risk concerns that existed at the time of the apprehension still exist today?” See Children’s Aid Society of Toronto v. T.T., [2012] O.J. No. 1649 (C.J.) at para. 32. If there is no progress, then summary judgment in favour of the Society should go.

45It is also clear that access under s. 101 (as well as generally in child protection cases) of the CYFSA, is based upon the best interests of the child: see Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415.

46In the present case, access, when it takes place, is beneficial to the child and appropriate. However, the Respondent Mother’s consistency in attending access has been abysmal and she does not tell the truth when she misses visits. She has also failed to demonstrate that she is able to provide appropriate care for the child. Although she has not put the child into danger, she has provided medication without checking with W.S. as to whether it had already been provided and gave D.H. Tempra without good reason. She has shown up several times demonstrably under the influence of drugs and has not provided consistent drug screens. There is no progression which would allow unsupervised access at the mother’s residence as she has requested.

47Her inconsistency in exercising access is also a concern. Fixed access does not work with this individual as she just does not show up, sometimes for months at a time. However, considering the deterioration in the relationship between W.S. and M.H., it is inappropriate to pressure W.S. and M.J. to decide on when specific visits should take place.

48Because of the lack of improvement and based upon the material provided by the mother which does not adequately address that inconsistency, there is no triable issue concerning access between M.H. and her child. However, I do not believe that the access requested by the Society is in the best interests of the child or the caregivers of the child.

49I am ordering that the weekly access continue on a reasonable basis and as arranged between M.H. and the custodial parents, but only on 48 hours’ notice to W.S. If M.H. does not provide W.S. or M.J. with 48 hours’ notice of the visit as arranged between the parties, the visit will not take place.

50The terms of the access visits including exact timing, location, supervision and duration shall be at the discretion of W.S. and M.J.

Order

51There shall therefore be summary judgment in favour of the Applicant. Final order to go as follows:

a. On consent, there shall be an order for statutory findings under s. 90(2) of the CYFSA as requested by the Society in paragraphs 2 and 3 of the Notice of Motion found at tab 5 of the Continuing Record;

b. On consent, there shall be a finding that the child, D.H., is in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii) and 74(2)(h) of the CYFSA.

c. There shall be an order that the kith caregivers, W.S. and M.J., shall have deemed custody of the child, D.H.

d. W.S. and M.J. shall have sole decision-making authority concerning the said child.

e. The child shall have access to his mother, M.H. on the following terms:

i. The child shall have access once per week to his mother with the timing of access visits to be arranged between the mother and the custodial caregivers, W.S. and M.J. The access shall be at the discretion of those caregivers as to duration, supervision and location.

ii. Access shall be on 48 hours’ notice to the caregivers by text or email. If that notice is not given, the visit shall not take place and shall be deemed to be cancelled.

52I finally note that nothing is written in stone. If the Respondent Mother consistently exercises access to her child, there may very well be a change in circumstances warranting a variation in this order. It is totally up to M.H. as to whether she moves into a position to increase her parenting time and decision-making authority. She does well during her visits with the child and as far as I can see, the child enjoys his visits with his mother. D.H.’s future relationship with his mother is totally up to M.H. and no one else.

McDermot J.

Footnotes

1. 1In fact, the affidavit of W.S. suggests that M.H. knew about her pregnancy as early as July 15, 2019: see Ex. I to that affidavit.
2. 2S.O. 2017, c. 14.
3. 3An order under s. 102 of the CYFSA can only be made in place of an order under s. 101(2) which requires a finding that the child is in need of protection.
4. 4Affidavit of Respondent Mother sworn August 11, 2021, para. 17
5. 5O. Reg. 144/99
6. 6R.R.O. 1990, Reg. 194
7. 7R.S.O. 1990, c. C.12 as amended.
8. 8Reply affidavit of Deanna Stevens sworn August 5, 2021, para. 10(e).
9. 9Affidavit of M.H. sworn July 29, 2021, para. 9
10. 10The letter from the Georgian Bay Native Friendship Centre dated July 12, 2021 confirms that the Respondent Mother had attended 8 sessions with the Indigenous Mental Health and Wellness Worker and the Aboriginal Alcohol and Drug Worker: see Ex. A to the Respondent Mother’s affidavit sworn July 29, 2021. The letter confirms that the last individual session took place on June 2, 2021. The letter does not corroborate that the mother was forced to change her June 8 visit because of programming at the Native Friendship Centre, but it does confirm that she had more than three sessions as stated by the C.A.S. worker. It is unclear, however, as to whether these sessions were part of any program called “Road to Recovery” which is the program that the Respondent Mother said was responsible for the changed access visit.