WARNING This case is governed by the Child, Youth and Family Services Act, 2017 which provides:

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

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

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

C.A.S. Niagara v. C.M., CITATION : 2022 ONSC 1331

Court File and Parties

COURT FILE NO.: 6/21 DATE: 2022-02-28 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Children’s Aid Society of the Region of Niagara AND: C.M., Mistawasis Nehiyawak and M.M., Respondents

BEFORE: Mr Justice Ramsay

COUNSEL: Paul Heinen for the Society; Faizal Roy for M.M.

HEARD: February 28, 2022 at Welland by teleconference

Endorsement

[1] The Society moves for summary judgment on its application under s.81 of the Child, Youth and Family Services Act, 2017. It seeks a final order for extended care of the child without access, for the purpose of adoption.

[2] The findings required by the Act are not in issue. They are contained in a separate, unpublished endorsement. The child is just over a year old. He is a First Nations child through descent from his mother. He is in need of protection for risk of harm caused by neglect under s. 74(2)(b)(i) of the Act.

[3] The mother and the First Nation have not participated in the proceedings. The remaining Respondent is the child’s father. The mother exercised access to the child on five occasions, the last of which occurred on May 11, 2021.

[4] The evidence on the motion comes entirely from the Society. There is no evidence that a member of the mother’s extended family is available for placement. The father has filed no evidence. He has no contact with his family. He has no plan of care. There is no question that the child should be placed into the extended care of the Society under paragraph 3 of s.101(1) of the Act. The father submits that the genuine issue for trial is whether he should be given access under s.104 of the Act.

The evidence

[5] The child was removed to a place of safety from the hospital at birth. The Society had been involved with the mother from July 2020.

[6] The mother was transient before and after the birth. She admitted consumption of methamphetamine during the pregnancy. The mother did not identify the father. The father identified himself to the Society on May 18, 2021. Paternity was confirmed by DNA testing on September 9, 2021.

[7] The father was staying in shelters at night at the time. The Society has attempted to assist him with housing, but the father still had no permanent place to live when last they heard.

[8] The father has had 13 weekly access visits since October 28, 2021. During the visits he has acted more or less appropriately, although he demonstrated little aptitude for basic parenting. He has accepted coaching during the visits. The Society is concerned however, that the father has been under the influence of marijuana on occasion which, according to what he told them, is not, in his opinion, incompatible with taking care of a child.

[9] The last visit was on January 11, 2022. The father did not show up for his scheduled visit on January 25, 2022 and has not shown up since. He has not been communicating with his solicitor recently, so Mr Roy was unable to provide any explanation for the discontinuation of the access visits.

[10] The father has admitted use of hard drugs in the past but “not for years.”

[11] The Society intends to involve the First Nation in the adoption planning process. The Society has demonstrated a commitment to recognize the child’s paternal Filipino heritage. Many adoptive parents permit informal openness without a court order.

[12] I accept the evidence of the adoption worker, who deposed:

Adoptive families are taught the importance of sharing what they know about the birth family in a sensitive and age-appropriate way. The “Life Book” and photographs of the child made by the foster families are a very important link to the past for the child. The birth parents would also be asked to provide pictures for the child of their time with birth parents, as well as photos of birth family members.

[13] On the specific question of access, she said:

It would be difficult to find adoptive families interested in exploring a potential adoptive placement with openness, if the birth family’s prior actions support a reasonable belief that their continued direct contact with the child significantly disrupts the child or poses a risk to the success of the adoption. …

Based on the evidence available to the Society as part of his ongoing permanency planning, the Society collaboratively determined it is believed to be in Criss’s best interests to have no access with either parent given his lack of connection to either of them, and their inability to demonstrate a consistent understanding of his needs or recognize how their lifestyle choices place him at risk.

Summary judgment in child protection cases

[14] Application of the principles in Hryniak v. Mauldin, 2015 SCC 7 to child protection cases is explained in Kawartha-Haliburton Children's Aid Society v MW, 2019 ONCA 316, LM v Children's Aid Society of the Region of Peel, 2019 ONCA 841 and Children's Aid Society of the Niagara Region v. T.-D. and A., 2020 ONSC 5241 (Div. Ct).

[15] 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. As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak's principle of reaching a fair and just determination on the merits.

Access in extended care

[16] The principles for ordering access under s.104 of the Act are set out in subsections 105 (5) and (6).

(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.

(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.

Application

[17] The child has been in temporary care for 423 days, which exceeds the statutory maximum. He needs a new family. He will have learned to bond with his foster family. He will need to grieve the loss of that bond and develop a new bond with an adoptive family.

[18] The child cannot not have developed a significant bond with either parent. Given the father’s situation there is little prospect for continued access beyond supervised visits. The father’s conduct in the last month has underscored the concern that he will not maintain access consistently. The father-child relationship is, it is sad to say, neither meaningful nor beneficial to the child in the circumstances. The same is true of the mother-child relationship.

[19] I accept the adoption worker’s evidence that in the circumstances an order for access would reduce the pool of potential adoptive parents and impair the child’s future opportunities for adoption. Her conclusion makes sense, and it is not contradicted.

[20] On the evidence before me there is no genuine issue that requires a trial. I find it plain and obvious that an order for access would not be in the child’s best interests. Accordingly I grant summary judgment to the Society and order that the child be placed into its extended care without any order for access.

[21] The application is struck from the trial list. Mr Roy’s motion to be removed from the record is dismissed as moot.

J.A. Ramsay J. Date: 2022-02-28