WARNING

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

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

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

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

COURT FILE NO.: FC-20-CP21-2 DATE: 2022/03/14

ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, S.O. 2017 AND IN THE MATTER OF C.R.P., born […], 2018

BETWEEN:

The Children’s Aid Society of Ottawa Applicant – and – A.P. (Mother) A.D.-S. (Father) Respondents

Counsel: Brian Fisher, for the Applicant Jennifer Ho, for the Respondent Mother

HEARD: February 22, 2022

REASONS FOR JUDGMENT

Justice Engelking

[1] The Applicant Children’s Aid Society of Ottawa (hereinafter referred to as “the Society” or “the CAS”) has brought a Summary Judgment Motion pursuant to Rule 16 of the Family Law Rules seeking a final order placing the child C.R.P., born […], 2018, in the extended care of the Society.

[2] The Respondent Mother, Ms. A.P. opposes the motion.

[3] Service by email on the Respondent Father, Mr. A.D.-S., was validated by order of Justice Corthorn on October 18, 2021. He has not filed an Answer and Plan and has not participated in the proceedings. Mr. A.D.-S is noted in default.

Background Facts

[4] The facts are not in dispute.

[5] Ms. A. P. is the biological mother of C.RP. She and C.R.P. are Inuit, identify with the Inuit Tapiriit Kanatami (“ITK”) and receive service in Ottawa through its’ agent, Tungasuvvingat Inuit (“TI”). ITK is a registered community pursuant to Ontario Regulation 159/18.

[6] C.R.P. was in the care of his mother from his birth until March 11, 2020, when he was brought to a place of safety.

[7] Ms. A.P. gave birth to a second child, M.V. P. on […], 2020. The CAS of Ottawa became involved with the family on February 3, 2020, when a call was received from a Social Worker at the Gatineau Hospital, Ms. Anik Poulin, indicating that Ms. A.P. had given birth to a daughter whom she wanted to place for adoption.

[8] At that time, Ms. A.P. was residing at a shelter in Ottawa with C.R.P. On February 4, 2020, she signed a Temporary Care Agreement with the CAS voluntarily placing M.V.P. in the Society’s care for a period of three months.

[9] On March 5, 2020, Ms. A.P. sent a text message to the CPW assigned to the file, Ms. Stephanie Cote, indicating that she would also like to place C.R.P. in care temporarily, as she was struggling with post-partum depression.

[10] On March 10, 2020, Ms. A.P. sent another text message to Ms. Cote, indicating that she wanted to place both C.R.P. and M.V.P. in care permanently, as she did not feel she could adequately care for the children. Ms. A. P. was at this point no longer with Mr. A.D.-S. Attempts were made to find alternatives to C.R.P. coming into care, including assessing whether Ms. A.P.’s family members could assist or whether she could be placed at St. Mary’s, but C.R.P. was ultimately taken to a place of safety on March 11, 2020. He has remained in care since that date, in other words, quickly coming up to two years.

[11] The Society then filed a Protection Application for both C.R.P. and M.V.P. A temporary care and custody order to the Society was made on March 16, 2020. Ms. A.P. was at that time indicating that she would like to care for C.R.P. again, but that she needed time for herself as she had both her children at a very young age. Ms. A.P. aspired to finish high school, obtain a driver’s licence and find a stable home before caring for the children again. Ms. A.P. remained uncertain about resuming care of M.V.P.

[12] Ms. A.P. lived with a friend, Ms. G., from the spring of 2020 to the end of January 2021. On October 1, 2020, on consent of Ms. A.P., the children were found to be in need of protection and placed in the interim care of the Society for a period of six months.

[13] Ms. A.P. started school in November of 2020. She was having virtual visits with C.R.P. and receiving photographs and updates from M.V.P.’s foster mother. She began to have in person visits with both children in the home of Ms. G. from the late fall of 2020 though to the end of January 2021. Ms. A.P. then requested that the visits be put on hold until she moved into her own place. In addition to wanting to move into her own place, Ms. A.P. was struggling with her mental health. She was finding the visits at Ms. G.’s home very difficult. In March of 2021, Ms. A.P. moved into a small room in a home with a couple of roommates in Hull, Quebec. At that time, she was attending school twice per week and taking her driver’s training. She also began having therapy with a psychiatrist through the Akausivik Inuit Family Health Team.

[14] As of March, Ms. A.P. asked for her visits with the children, which had been on hold since the end of January, to resume. However, due to the pandemic and the fact that she had roommates she did not know well, they could not take place at her home. She resumed exercising access to C.R.P. on March 27, 2021, at Ms. G.’s home. However, this did not last as she found the atmosphere negative, which affected her own mental health. Additionally, although M.V.P. was available for access visits, Ms. A.P. indicated on April 15, 2021, that she would like access with her to stop.

[15] In May of 2021, a further four months of interim Society care was ordered for the children on consent. Ms. A.P. confirmed that she only wanted C.R.P. to return to her care as she was unable to parent M.V.P. Ms. A.P. indicated to Ms. Cote that she did not feel attached to M.V. P. and that it was too much to care for both children. She indicated that she would be able to care for C.R.P. once she got her own place, felt good mentally, and had the support she needed. She continued to have visits with C.R.P.

[16] This remained the case until August of 2021, when Ms. A.P. once again stated that she was ready to resume visits with M.V.P. However, they appear not to have started right away, as Ms. A.P. was having difficulty demonstrating consistency in attending virtual visits with the children.

[17] In November of 2021, Ms. A.P. connected with the Inuuqatigiit Centre for Inuit Children, Youth and Families. She began to exercise access to C.R.P. at Inuuqatigiit and her visits went well.

[18] Ms. A.P.’s goals remained to be to get her own place in Gatineau, to finish school and to get her driver’s licence. She indicated to Ms. Cote that she was not interested in subsidized housing, and she refused to return to a shelter, even though either of those options could have resulted in C.R.P. returning to her care sooner.

[19] Ms. A.P. continued to visit with the children, including visiting with C.R.P. in his foster home over the Christmas holidays. In January of 2022, Ms. A.P. once again confirmed that she was not presenting a plan to have M.V. P. return to her care, but that she wanted C.R.P. to return to her care when she had safe and appropriate housing for him and adequate support to care for him without becoming overwhelmed.

[20] On February 1, 2022, on consent of Ms. A.P., the court granted a final order placing M.V. P. in Extended Society Care with access to Ms. A.P. and C.R.P.

[21] Ms. A.P. is currently attending the Hull Adult Education Centre working on her GED certificate, which she expects to complete in about a year and a half. She intends to attend college once she finishes high school. Ms. A.P. has also been working on obtaining her driver’s licence, which she expects to do in April 2022.

[22] Ms. A.P. has some family support, notably from her father, P.R. who also lives in Gatineau, but who is not able to present a plan for C.R.P. Both Mr. P.R. and Ms. A.P.’s sister, J.P. have helped her care for C.R.P. in the past and have provided emotional support to her. Ms. A.P. also has access to a psychiatrist at the Akausivik Inuit Family Health Team, though she has not seen one recently.

[23] Since November of 2021, Ms. A.P. has also been connected with a support worker, Courtney MacDonald, from TI, and feels she has community support. Ms. A.P. exercises her access with C.R.P. at TI every Tuesday.

[24] Ms. A.P.’s plan, if C.R.P. is returned to her care, would be to continue having him in daycare at Inuuqatigitt.

[25] Ms. A.P. is actively looking for an apartment in which she and C.R.P. can live. Ms. A.P. stated at paragraph 10 of her affidavit sworn on February 16, 2022: “Currently, this I the only barrier that is preventing me from seeking that [C.] return to my care immediately.”

[26] Despite this, in January of 2022, Ms. A.P. did decline an apartment that was affordable to her as it was above a bar, and she considered it to not be child friendly. She previously found both the shelter system and the process to obtain subsidized housing “traumatizing and draining”, and indicates they are not options for her.

[27] The Society has no concerns with Ms. A.P.’s parenting of C.R.P. Mother and child are well-connected, and she provides loving and warm care during visits. Indeed, the Society would immediately commence a reintegration plan with Ms. A.P. if she was in a position to have C.R.P. in her care. The concern for the Society is that Ms. A.P. is not ready to have C.R.P. in her care, based primarily, indeed almost solely, on her housing situation, and C.R.P. has been in the care of the Society for nearly a year beyond the statutory timelines. They seek a permanent solution for C.R.P, as they are required to do under the Child, Youth and Family Services Act, which will include Ms. A.P., as well as M.V.P., as participants, first through an access order and later via an openness order.

Analysis

[28] Section 122 (2) of the CYFSA provides:

122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101(1) that results in a child being in the care and custody of a society for a period exceeding, (a) 12 months, if the child is younger than 6 on the day the court makes the order; or (b) 24 months, if the child is 6 or older on the day the court makes an order.

[29] Subsection 122 (5) provides that those time limits may be extended by six months if the court finds that it is in the best interests of the child to do so.

[30] In this case, C.P.R., who is under 6 years of age, has been in the care of the Society beyond both the 12-month limit, as well as the possible 6-month extension.

[31] The Society’s position is that the court is required to make a permanent order for him, and if he cannot be returned to Ms. A.P. immediately, the court may summarily make an order for Extended Society Care. There is, the Society submits, no genuine issue which requires a trial under these circumstances.

[32] Ms. A.P.’s position is that, notwithstanding the length of time that has passed, there is a triable issue as to what disposition is ultimately in C.R.P.’s best interests, even though he cannot be returned to her care today.

The Law of Summary Judgment

[33] Justice Corthorn canvassed the post- Kawartha-Haliburton Children’s Aid Society v. M.W. approach to Summary Judgment in child protection matters at paragraphs 29 through 35 of The Children’s Aid Society v. S.P. and K.L., 2019 ONSC 5624 as follows:

Summary Judgment

a) General Principles

[29] It is well-established that a summary judgment motion may be brought in a proceeding under the Act. The governing two-part test was articulated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. First, the judge must determine, based only on the evidence in the record, if there is a genuine issue requiring a trial. Resort to additional fact-finding powers is not permitted at this first stage. If there is no genuine issue requiring a trial, then the matter may be summarily determined.

[30] If there appears to be a genuine issue requiring a trial, then the second step requires the judge to look beyond the evidence in the record. At this stage, the judge determines whether the need for a trial can be avoided by utilizing the additional fact-finding powers available to the judge under the relevant procedural rules. If it can, then the matter may, at the discretion of the judge, be summarily determined. If not, then summary judgment is not granted (Hryniak, at para. 67).

[31] Rule 16 of the FLR governs motions for summary judgment. The additional fact-finding powers are set out in r. 16(6.1). Those powers permit the judge hearing a motion for summary judgment to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interests of justice that such powers be exercised only at trial.

[32] Pursuant to r. 16(4), the burden of proof rests with the moving party to set out “specific facts showing there is no genuine issue requiring a trial.” A party responding to a motion for summary judgment is not entitled to “rest on mere allegations or denials” (r. 16(4.1)). A responding party is required, through affidavit or other evidence, to set out specific facts that demonstrate there is a genuine issue requiring a trial. In summary, each party on a motion for summary judgment is required to put their best foot forward.

b) Child Protection Matters

[33] In its recent decision in Kawartha-Haliburton Children’s Aid Society v. M.W., the Ontario Court of Appeal set out “the proper approach to summary judgment in child protection matters” (2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 1). Coincidentally, that case involved a motion for summary judgment in which the mother consented to an extended society care order but sought access.

[34] The Ontario Court of Appeal identified a number of principles to be applied on motions for summary judgment in child protection cases. Those principles are summarized at para. 80 of the decision:

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

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

3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

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

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

[35] In Kawartha-Haliburton, the Court of Appeal directs that judges on motions for summary judgment in child protection proceedings undertake a best interests analysis (paras. 31 and 49). Above all, a cautious approach should be taken on motions for summary judgment in child protection proceedings (paras. 63 and 70-79). The Court of Appeal described the requisite approach as “highly cautionary” (para. 74).

[34] As indicated in principles 1 and 5 of paragraph 80 of Kawartha-Haliburton Children’s Aid Society v. M.W., the best interests of the child must be applied in every decision, and the special considerations that apply to Indigenous children must be part of every decision involving them.

[35] Subsection 74 (3) of the CYFSA sets out the factors to be considered by the court in any determination being made in the best interests of a child. The first two factors, (a) and (b) are “super weighted” in that they “shall” be considered, while the remaining factors in (c) are to be considered to the degree they are relevant. Subsection 74(3) (a) pertains to the child’s views and preferences, which are not relevant in this case given C.R.P.’s age. Subsection 74(3) (b) is relevant and provides:

In the case of a First Nations, Inuk or Metis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Metis 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),

[36] Some of the “special considerations that apply to Indigenous children” in the CYFSA include best interests considerations (Section 74 (3) (b) and Section 179 (2) (b)), party status for the child’s band or community (Section 79(1) 4.), findings as to First Nations, Inuk or Metis identity (Section 90(2)), placement with family or community unless there is “substantial reason” otherwise (Section 101(5)), the option of customary care for children in extended care (Section 112), notice to a child’s band or community of a plan for adoption (Section 186), and maintaining connection to band or community through openness (Section 187).

[37] Additionally, the preamble of the CYFSA provides:

With respect to First Nations, Inuit and Metis children, the Government of Ontario acknowledges the following:

The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Metis peoples.

First Nations, Inuit and Metis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

Where a First Nations, Inuk or Metis child is otherwise eligible to receive a service under this Act, an interjurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Metis children should be happy, healthy, resilient, founded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Metis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Metis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

[38] Finally, given C.R.P. is an Inuk child, the Federal Act respecting First Nations, Inuit and Metis children, youth and families, S.C, 2019, c.24, must also be considered. The best interests of an Indigenous child are set out in Section 10 of the Act, which provides:

Best Interests of Indigenous child

10(1) The best interest of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decision or actions related to child apprehension, the best interest of the child must be the paramount consideration.

Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

Factors to be considered

(3) to determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including

(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life; (d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs; (g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotion and psychological harem or risk of harm to the child, and (h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[39] Reference was also made in this case to Section 15 of the Act, which states that in the context of providing services to an Indigenous child, “the child must not be apprehended solely on the basis of his or her socio-economic conditions, including poverty, lack of adequate housing or infrastructure or the state of health of his or her parent or the care provider” (emphasis added). In this case, C.R.P. was not apprehended because of Ms. A.P.’s socio-economic conditions but is not being returned to her care because of them, specifically her lack of adequate housing.

[40] The Society, to its great credit, has hithertofore not pressed Ms. A.P.; rather, it has diligently worked with her over the past two years to see if a return of C.R.P. to her care was possible. Ms. A.P. had significant struggles with her mental health and ability to cope during much of that time, both of which she indicates have since improved. Additionally, M.V.P. has now been placed into Extended Society Care, and she can focus on meeting the needs of C.R.P. She now simply seeks a safe and appropriate environment for C.R.P. to return to, and she is convinced that it will be in his best interests to do so when she has it.

[41] The Society is still prepared to integrate C.R.P. into Ms. A.P.’s care, but it cannot do so primarily due to her inadequate housing. Other family and/or community options have been exhausted. The Society is of the view that Ms. A.P. does not have to find “perfect” accommodations, only “good enough” accommodations. She has not done so, and pursuant to the CYFSA, particularly Section 122, the Society has a statutory obligation to find a permanent solution for C.R.P. Its’ decision to pursue Summary Judgement is understandable under the circumstances. It is, in a sense, between a rock and a hard place in this case. While it’s preference would be to place C.R.P. with Ms. A.P., its’ inability to do so and the amount of time the child has been in care both dictate that it pursue permanency for him.

[42] However, the Ontario Court of Appeal has called for a “highly cautionary” approach to Summary Judgment motions in child protection proceedings. In this case, that highly cautionary approach is compounded by the fact that the child and family in question are Indigenous.

[43] Is it truly in C.R.P.’s best interests to be summarily placed in Extended Society Care when he could be placed in the care of his mother, but for her current housing situation? What disposition is going to best ensure C.R.P.’s emotional and psychological safety, security and well-being? Is it to be yet another Indigenous child not raised by his Indigenous parent? What is the interplay between subsection 74(3) (b) and subsection 122 (1) of the CYFSA in a case such as this, where the only real issue is time, and the child is Indigenous? Are there any “Gladue-like” factors that the court might need to consider in the case of an Indigenous parent when determining the best interests of an Indigenous child? Are these genuine issues requiring a trial? Given what I have termed as the “super weighted” best interests considerations for First Nation, Inuk or Metis children in the CYFSA, as well as those contained in Section 10 of the Act respecting First Nations, Inuit and Metis children, youth and families, I think that they are.

[44] For these reasons, the Society’s motion for Summary Judgment is dismissed.

[45] The matter shall be added to the CYFSA Assignment Court on April 22, 2022, to be listed for trial.

Justice Engelking

Released: March 14, 2022