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-14074-4

DATE: 2022/06/21

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF A.M. (DOB: September 2015), R.M. (DOB: March 2017), and R.L. (DOB: September 2012)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

A.L.S. (Mother)

– and –

J.M. (Paternal Aunt)

– and –

C.N. (father of R.L.) in default

Respondents

Counsel:

Ben-David Ulster, for the Applicant

Mellington Godoy for A.L.S.

Stephen Pender for J.M.

Michael Chun (OCL for R. L.)

HEARD: June 7, 2022

Reasons for decision

mackinnon j.

[1] The Society brought a Summary Judgment Motion, pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99 as am seeking a finding that the children are in need of protection pursuant to s.74(2) (b) (i), (ii); 74(2) (h) of the Child, Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) and that final deemed custody orders are granted under section 102 of the CYFSA, for the child R to the maternal aunt, SH, and for the children, A and R Jr, to the paternal aunt, JM.

[2] The motion is supported by the OCL, acting for R, and by JM. The maternal aunt, SH also provided her consent to the order sought for R. The father of A and R Jr is deceased. The father of R was noted in default by order dated April 15, 2021. The mother opposed the motion. She submitted there are genuine issues requiring trial on the protection finding, the disposition and on the access, order sought by the Society.

[3] The statutory findings are not disputed and are made as deposed to at paragraphs 3 and 4 in the affidavit of AC dated May 30, 2022.

[4] I adopt the analysis of Justice Corthorn in The Children’s Aid Society v. S.P. and K.L., 2019 ONSC 5624, regarding the principles applicable on a motion for summary judgment 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).

Procedural Background

[5] The three children before the court are R, age 9, A, age 6, and R Jr, age 5. In November 2020 the mother voluntarily placed R with the maternal aunt, who resides in Belleville. R. has remained living there since then. At the mother’s request the younger two children stayed with the paternal aunt off and on between September and November 2020. They have lived primarily with her from November 5 to February 1, 2021, and again from March 2 to June 2021. At that time, they moved to live with their sibling and maternal aunt until January 2022 when the approaching birth of SH’s baby occasioned their return to JM. These two children have remained with JM since then.

[6] Despite the voluntary placements the Society commenced this Protection Application in March 2021 after the mother refused to work co-operatively with them, or to sign an agreement to leave the children with their aunts while the Society assessed her ability to resume care of the children. Further details pertaining to this decision are set out below.

[7] A number of court orders were made starting on March 11, 2021 when Labrosse J made an interim without prejudice order placing R with SH and A and R Jr with JM subject to supervision of the Society. Virtual access visits were ordered for the mother two times per week. On July 12, 2021, Summers J made an interim consent order placing all three children with SH and for the mother to have a minimum of two virtual visits per week and a minimum of one in person visit per month at the residence of SH and in her presence.

[8] On September 15, 2021, the mother’s access motion was heard. Roger J ordered in person supervised access to alternate one month in Belleville and one month in Ottawa. Visits took place in Belleville in September and in Ottawa in October but in November, SH declined to supervise any more visits. The local Society in Belleville advised that supervised access would have to be in their offices because no community locations were available. These visits did not go ahead as the mother would not attend a Society office. So doing, she said, would trigger her PTSD.

[9] On December 23, 2021 Doyle J made a further temporary without prejudice order for the mother to have in person access a minimum of one visit every month supervised at the Society, or at some other appropriate supervised access centre or location, plus virtual access a minimum of twice per week.

[10] Virtual visits did not always take place. There were periods of time when the mother was without internet access due to financial constraints. At one time she decided not to do virtual visits because the format was not satisfactory for the purpose.

[11] On January 19, 2022, Williams J made an order restoring the placement of A and R Jr with JM. Following this order, the mother did not attend any virtual visits until March when she requested to resume doing so. Visits have resumed but the order permitted the Society to determine the terms because of the hiatus in visiting and have been once per week for 15 minutes each visit.

Decision

[12] There is sufficient evidence for the court to exercise its powers to weigh the evidence, evaluate the credibility of the information, draw reasonable inferences, and to fairly and justly reach the conclusion that there is no genuine issue requiring a trial. The protection finding is made. The custody orders sought are in the best interests of the children. The children have already been residing for a considerable length of time with their aunts. The mother has not presented a plan to resume their care at this time. The custody and access order that is made, while Final, is subject to change in the event of a material change in circumstances affecting the children’s’ best interests. The availability of a change application aligns with the mother’s current and hoped for future circumstances.

The Protection Finding

[13] The Society’s position is that the children are in need of protection pursuant to CYFSA section 74(2)(b)(i), (ii), 74 (2) (h):

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child

[14] The mother’s position is that there are many factual disputes in the materials before the court that raise genuine issues requiring trial before the court may determine whether the children are indeed in need of protection. My view is that there are sufficient facts not in dispute and/or that can be determined on the motion record before me on which the Society has met its onus to establish that the children are in need of protection.

[15] The mother acknowledges that A has used a broom handle to unlock the front door and exit the house while the mother was sleeping. A would go to the park to play without the mother knowing she was gone until a neighbour returned A home. It is not clear how many times this happened, but I conclude it was a number of times based on the mother’s description of how she told all the children they were not to open the locks or go outside without her, her discipline of A, and her references to other times when A did the same thing and was returned by a neighbour. The last time the mother recalls took place in August 2020 when A unlocked the door and took three-year-old R Jr with her to the park. The mother explained that this happened while she and the children were taking their afternoon nap. This time the children were returned by two police officers.

[16] On September 9, 2020, the mother texted JM and said that the children did not listen to her, she had no patience with them and was fed up, and that the Society was coming because the children ran to the park “one am” while she was sleeping. A few days later she added that she was ready to tell the Society to take the children because she did not want to parent them anymore. In October she asked JM to take A for a month, saying she was literally having a mental breakdown and would hurt one of the children if something wasn’t done. The mother’s language was extreme: either JM or the Society would have to take A “before I end up in jail and her badly beaten.”

[17] In November 2020, the mother found herself unable to control the children in Walmart. She wrote that they kept running away and after she had checked out, they were nowhere to be seen. The mother complained that if SH could not take them the Society would have to before she herself ended “up in hospital, already having a mental breakdown”. She described herself as not wanting to get out of bed, “worn out, barely keep head up, not sleeping or eating properly” due to stress. According to the mother it was the stress of having to move houses that was really difficult for her, and she was struggling with PTSD and anxiety. Clearly, she was unable to adequately look after the children at this time.

[18] Early in November the mother arranged for R to go to stay with her maternal aunt in Belleville and for A and R Jr to stay with their paternal aunt in Ottawa. The mother deposed that the plan was for R to stay in Belleville until the March break and for A and R Jr to come back to her when her move was completed. The move was completed by the end of January. Shortly thereafter A and R Jr were returned to their mother. Within two weeks the mother messaged JM to take the children back. Again, her language was extreme: if the children were not removed. “I’m literally going to fucken beat them to death”.

[19] These two children were apprehended and placed with JM on March 2, 2021. The same occurred for R with SH because clearly, she could not be returned to her mother as had been intended in view of the mother’s statement. All of the children were in need of protection at this point of time under section 74 (2) (b).

[20] The mother attributes her shortness with A and R Jr in February 2021, her lack of patience and irritability with them, and her inability to take proper care of them at that time to her mental health issues. Once again, she described great difficulty sleeping, feelings of fear and being overwhelmed. At this time, she also admitted to putting locks on the children’s bedroom doors to keep them in their rooms “for their own safety” when she wasn’t supervising them.

[21] The mother told the Society worker that she was sleeping maybe one hour at night and then crashing at 7 am. She said she knew it was not good for the children to be awake during the day when she was asleep. Although the mother denied locking the children in their room during the day, saying she only did so at night, so they wouldn’t get out and mess up the house, her admission of not sleeping at night and crashing in the morning is consistent with a statement A made to the Society worker at this time, namely that her mother sleeps during the day and locks the children in their bedroom. I accept this statement made by A for its truth and find that the mother had locked the children in their room during the daytime so that she could sleep.

[22] It is also consistent with evidence that the mother did not pick up A at school closing during this time, and the school had contacted JM because they were unable to reach the mother. JM went to get A from school and said she had to bang on the mother’s door a few times before she answered. JM formed the impression the mother had been asleep at the time.

[23] The mother’s mental health issues continued after apprehension as evidenced by the extremely serious threats of violence she directed to Society workers’, their families, and herself. The threats included death: “I’m going out with a bang; I’m going to take them all with me.” The threats included graphic details: “shoot a [kod] point blank in the fucken face. And make them watch” “It will be bloody…. [I am] the new dexter and cops will be picking up bodies or pieces of like the city does garbage.” “I told you not to play games with my kids. Now I’m gonna play a little game called head shot with yours”. Threats were made off and on from March to December 2021.

[24] The mother describes December 2021 as a very difficult month for her because she was not going to have her children over the holidays. She said her mental health was suffering, and she was struggling. In her own words, she felt all the weight of her mental health issues crashing down on her. The struggles were severe and continued into January 2022, causing the mother to miss several visits with the children because, as she said, she needed to regulate her mental heath before she could see them. She describes going into a deep depression and contemplating suicide. In May, she told the Society worker that she had been committed to hospital in January under a Form 1 under the Mental Health Act, R.S.O. 1990, c.M.7. She listed her diagnoses as impulse control disorder, complex post-traumatic stress disorder, bipolar disorder/depression, anxiety disorders and panic disorders.

[25] The mother goes on to say that during her hospitalization her medications were changed to two types of Seroquel, 150 mgs slow release and 50 mgs fast release. She deposed that this has been working really well, is helping her sleep, and slowing down her anxiety. The mother says her mental health has stabilized. She points to an occasion when an access supervisor forgot about a scheduled visit for her the children, and she was able to keep her calm in the circumstances. That said, in April she missed a visit due to a severe anxiety attack brought on by a Landlord and Tenant board appearance, and in May she verbally lashed out at JM.

[26] I have concluded that the mother’s mental health issues have been very serious and longstanding, and the children were in need of protection when they came into Society care in March 2021. They were likely to suffer physical harm arising from her inability to care for them or adequately supervise them due to her mental health issues, and as amply illustrated by her own statements of what would happen to them if they stayed with her. The mother’s own testimony as to her improved mental health does not raise a genuine issue for trial as to the protection finding.

Disposition

[27] The mother has no current plan to resume care of the children. She describes herself as hopeful for her future with her children. If things continue to progress, she would like to have home visits with the children and reintegrate them back into her home.

[28] The mother described her progress to date. She has the support of friends who let her use their internet so she can keep visits up. She has connected with community groups and does not feel isolated anymore. She describes a regular sleep schedule so she can attend visits and be engaged with the children. Her view is that her mental health has improved. She has reconnected with her primary physician, who is going to make referrals for her and write a letter to her lawyer for future use in court. She has attended six counselling sessions through Elizabeth Fry to learn techniques to calm her anxiety, stress, and PTSD symptoms. She has two more appointments scheduled and is also on a wait list for a parenting program this summer put on by Elizabeth Fry. That agency also has a location available for in person access, called Diana’s Place. The mother has also applied to use that facility as a location to visit her children.

[29] The considerations touching on the best interests of the children are set out in CYFSA section 74 (3):

Best interests of child

(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. 2017, c. 14, Sched. 1, s. 74 (3).

[30] The children are doing well in their current placements. The kin placements are both long term. R, who is represented by the OCL has clear, strong, consistent, and independent views and preferences to remain with the maternal aunt. All of the children have some challenges, but these are being addressed in the kin placements. Essentially the children have not been able to live with their mother since November 2020. They need stability and to know that these proceedings are finalized to the extent they can be. With no alternate residential plan before the court, it cannot be said that there is a genuine issue as to disposition that requires a trial. That the mother may be in a position at some future point to advance a case to change the terms on which she will visit her children, or perhaps to change their residential arrangements, does not raise a genuine issue for trial as to the disposition of this case, at this time.

Access

[31] The criteria for access is found in CYFSA section 104 (1):

Access order

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

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.

[32] Having regard to the nature of the contact to date between the mother and the children, to her longstanding mental health issues, to the threats of extreme violence she has made, and the absence of any professional medical evidence, it is in the children’s best interests that the mother’s access to the children is supervised. Neither SH nor JM is willing to fulfill this function. Nor will I require a Society worker to supervise visits at the mother’s home having regard to the repeated threats the mother has made against workers and their families. These are too serious to simply be waived off on the mother’s own statement that she is doing much better in regulating her emotions and controlling her impulses.

[33] Both SH and JM are single parents with their own children, and both have expressed their concerns as to the affordability of facilitating visits between Belleville and Ottawa without the financial assistance currently being provided by the Society. The estimate of $500 per visit was provided having regard to mileage, food, overnight accommodation, and payment for some activities. Based on information the mother provided it appears that her current income from ODSP and the death benefit she receives following the passing of A’s and R Jr’s father is $32,400 per year. Compared to the table amount of child support she would be required to pay for the children at that income level, the cost to her to travel to see R and to help defray the costs of bringing R to Ottawa so that she and the three siblings can all visit here, is modest.

[34] I require SH to bring R to Ottawa in alternate months because it is the best way to facilitate contact between all the siblings together with their mother and is a less expensive way of facilitating in person contact amongst the siblings on their own, than the option of requiring JM to bring the other two children to Belleville for half of these visits. It is only fair that the cost of assuming this obligation be shared equally by SH, the mother and JM.

[35] Additional in person visits for the three siblings would benefit them and are left in the discretion of SH and JM to facilitate from time to time as they are able.

[36] The order set out below also provides for the mother to visit with R in Belleville, and with A and R Jr in Ottawa, on a once monthly basis. Because supervision is required the length of the visits is set for a minimum of two hours but can be extended to up to four hours by agreement if supervision for that duration is available. For clarity these monthly visits are in addition to the alternate monthly visits to take place in Ottawa with all three children together. Virtual contact between the mother and the children, and amongst the children is also included in the order.

The Order

[37] A Final order is made in these terms:

(1) The children are found to be children in need of protection pursuant to s.74(2)(b) of the Child, Youth and Family Services Act.

(2) The statutory findings pursuant to section 90(2) of the CYFSA are made as set out above in paragraph 3.

(3) A Final order is made placing the child R. in the custody of her maternal aunt, SH, pursuant to section 102 of the CYFSA. A Final order is made placing the children A and R Jr in the custody of their paternal aunt, JM, pursuant to section 102 of the CYFSA.

(4) A Final order is made pursuant to sections 104 and 102 (2) of the CYFSA for the mother to have in person access to R once per month provided the access takes place in Belleville, Ontario and is supervised by the local child protection agency, or takes place in a Supervised Access Centre, or some other appropriate supervised location, for a duration of two hours each visit, or for up to four hours by agreement if supervision is available for that duration. These visits shall be scheduled between the mother and SH on not less than 96 hours’ notice provided by the mother to SH and shall take place outside of school hours. Additionally, the mother shall be entitled to two virtual visits with R each week, for a duration of 15 minutes, which shall occur on set days and at set times to be agreed upon between the mother and SH, or failing an agreement between them, as specified by SH.

(5) A Final order is made pursuant to sections 104 and 102(2) of the CYFSA for the mother to have in person access to A and R Jr once per month provided the access takes place in Ottawa, Ontario and is supervised by the local child protection agency, or takes place in a Supervised Access Centre, or some other appropriate supervised location, for a duration of two hours each visit, or for up to four hours by agreement if supervision is available for that duration.. These visits shall be scheduled between the mother and JM on not less than 96 hours’ notice provided by the mother to JM and shall take place outside of school hours. Additionally, the mother shall be entitled to two virtual visits with A and R Jr each week, for a duration of 15 minutes, which shall occur on set days and at set times to be agreed upon between the mother and JM, or failing an agreement between them, as specified by JM.

(6) In the event the mother is unable to attend any of the virtual visits set out above, she shall provide sufficient advance notice to SH or JM as the case may be, so that the child or children will know the morning of the virtual visit that it will not be taking place. In the event that the mother misses two consecutive virtual visits without providing the required advance notice, then her virtual visits in relation to the impacted child or children will be reduced to once per week only. In the event the mother misses two consecutive virtual visits after the virtual visits have already been reduced to once per week, without providing the required advance notice, then her virtual visits with the impacted child or children shall be suspended until further order of the court.

(7) SH shall bring R to Ottawa in alternate months for the purpose of facilitating in person visits for the three siblings and their mother. The costs of these trips, set at $500 per trip shall be paid for equally by SH, JM, and the mother, in the amount of $167 each person for each visit. SH shall provide proof of mileage and receipts for out of pocket expenses following each visit, and the amount due from each of the mother and JM shall be refunded if necessary to represent one third of the amount. On each occasion the mother shall have in person access with the children for two hours on each of two successive days supervised by the local child protection agency, or in a Supervised Access Centre, or some other appropriate supervised location. Additionally, the children shall visit together in the absence of the mother for as much time as may be facilitated by SH and JM, and in locations as agreed upon between SH and JM.

(8) SH is not obliged to comply with subparagraph 7 unless she has received the amount of $167 from each of the mother and JM not less than 48 hours in advance of the proposed visit. SH and JM shall nonetheless ensure that at least 6 in person visits occur each year for the three children in locations and formats as agreed upon between themselves. These visits may take place in Belleville, in Ottawa or at some other mid-point location, as can best be afforded and facilitated by SH and JM.

(9) The children shall have frequent virtual access to each other of not less than twice per week as arranged between SH and JM.

Mackinnon J.

Released: June 21, 2022