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-CP5

DATE: 2022/02/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

K.D. and S.G.

Respondents

COUNSEL:

Brian Fisher, for the Applicant

Dominique Smith, for the Respondents

HEARD: January 10, 2022

REASONS FOR DECISION

Audet J.

[1] The Ottawa Children’s Aid Society brings this motion for summary judgement in which it seeks a final order placing a two-year-old child in its extended care for the purpose of adoption, with access to the parents. The child has already been found in need of protection in an earlier decision rendered on September 9, 2021, with amended Reasons for Judgment released on October 6, 2021 (Children’s Aid Society of Ottawa v. K.D., 2021 ONSC 6092, hereinafter referred to as my “September 2021 decision”).

[2] The Respondent parents dispute the motion and take the position that there are genuine issues requiring a trial in relation to the disposition that is in their child’s best interests.

BACKGROUND

[3] The Respondents, K.D. (“the mother”) and S.G. (“the father”), are the biological parents of the child, M.G. who was born on […], 2020 (“the child”). The parents also have another child, K.G., who is five years old. K.G. was removed from his parents’ care in November 2016 by the Director of Youth Protection (“DYP”) in Gatineau, Quebec. In March 2018, the Court of Quebec ordered that K.G. be placed in what is the equivalent to Ontario’s extended society care for the purposes of adoption.

[4] The child at the heart of the current child protection proceeding was removed from her parents’ care at birth. She has remained in foster care since that date and by virtue of various orders made by the court over the course of this proceeding, she has had ongoing supervised access with her parents. The protection concerns raised by the Society are the parents’ lengthy history of alcohol addiction, domestic violence, and limited parenting capacity.

[5] This matter was the subject of a lengthy decision rendered by Somji J. in April 2021, in the context of a temporary care and custody motion heard in February 2021, during which the parents were seeking the return of the child to their care. They were not successful and Somji J. ordered that the child remain in the Society’s care pending trial or further order of the court (see CAS v. S.G., 2021 ONSC 3177, hereinafter referred to as the “April 2021 decision”). As I did in my September 2021 decision, I adopt as mine her detailed account of the background which led to the Society becoming involved with this family, as well as of the procedural history of this case, which are found at paras. 11 to 28 of her decision.

[6] To support her conclusion that the child would likely be at risk of harm if returned to the care of her parents at that time, Somji J. carefully reviewed the voluminous affidavit evidence before her and provided a detailed account of the facts. Based on that evidentiary record, Somji J. concluded that the child was at risk of harm if returned to her parents’ care at that time. She found that the risk of harm resulted from the parents’ long history of alcohol abuse, domestic violence and adult conflict between them, and the limited parenting capacity of both parents. On the issue of whether the child could be adequately protected by a supervision order if returned to the care of her parents, Somji J. concluded:

108 I agree with the Society. I do not find that the child can be protected by way of a supervision order for several reasons. First and foremost, the parents do not acknowledge their alcohol addiction issues and there is evidence as discussed above that they continue to drink. Given their long-standing alcohol addiction, I am not satisfied that they are able to abstain from consumption of alcohol to properly care for the child simply because such a term is imposed by this Court.

109 Second, while the parents have made considerable progress in their parenting capacity during the access visits, I am not satisfied based on the materials filed, and the observations of the Society Workers over the course of the last 14 months, that the parents are presently fit to care for this infant even under a supervision order.

110 Third, the affidavits of the Society Workers indicate the challenges they have had with communicating and dealing with both parents for different reasons. The mother is not communicative, and the father has often been disrespectful and easily angered. I am not confident that the parents would be amenable to direction and supervision by the Society. In fact, the Society reports the parents have recently stopped meeting with their assigned Society Worker altogether.

111 Fourth, the parents have no support network and have not presented a plan of care that ensures the child could be adequately cared for. They have neither confirmed their residence nor arranged for the Society Workers to attend their latest home to ensure it is a safe and appropriate environment for the child.

112 Finally, the parents were on previous court orders issued by several judges in Quebec during child protection proceedings involving their previous child and did not follow through with the recommendations made in those court orders. The mother and father were to follow-up and apply the recommendations of professionals on issues of anger management, domestic violence, alcohol addiction, and parenting skills. They have not filed any evidence to demonstrate that they followed through on any of these recommendations that were court ordered for the specific purpose of addressing child protection concerns.

113 Similarly, the parents were provided with the Society’s Plan of Care in January 2020 after the child was born and apprehended outlining the Society’s expectations of them going forward. The Society reports that they have not followed through significantly on those conditions either.

114 For all these reasons, I am not satisfied that the child could be adequately protected against the current risk of harm by imposing a supervision order with terms and conditions.

[7] This summary motion was first brought before me on July 28, 2021. For reasons set out in my October 6, 2021 decision, I found that there was no genuine issue requiring a trial on the issue as to whether the child was in need of protection. I concluded:

[13] I find that M. G. is a child in need of protection pursuant to s. 74(2)(b)(i) and (ii) of the CYFSA and that she is at risk of physical harm if she is returned to her parents’ care. I find that I am able to reach this conclusion based on the evidence before me without the need for a trial, and without the need to use the new fact-finding powers set out in Rule 16. The evidence before me overwhelmingly supports a finding that the child is in need of protection in light of the parents’ long-standing alcohol abuse, history of domestic violence and of adult conflict. The evidence presented by the parents in response to the Society’s motion does not alter my conclusion in this regard at all.

[14] In particular, the evidence before me unquestionably supports a finding that the parents have a serious and long-standing issue with alcohol addiction, and a significant history of police involvement in relation to domestic violence and adult conflict, most often than not resulting from one of them (or both) being intoxicated. Based on my own review of the Society’s evidence, which is summarized at length in Somji J.’s decision at paras. 48 to 81, the parents’ state of intoxication and incidents of domestic violence have led to significant police involvement since the parents relocated to Outaouais Region on or about 2015. The parents’ long-standing and on-going alcohol abuse has also been reported to the Society by medical professionals involved with this family, and the parents themselves have admitted as much to several professionals who have been involved in their care over the years.

[15] Given my conclusions above, it is not necessary to determine if the child is also in need of protection based on the parents’ alleged limited parenting capacity.

[8] For reasons set out in that decision, I refused to entertain the Society’s summary judgement motion for an Extended Society Care order. This is why the motion is now returning before me.

LEGAL FRAMEWORK

[9] The court has jurisdiction to deal with a child protection matter by way of summary judgment. The test enunciated is found at Rule 16 of the Family Law Rules, O. Reg. 114/99 and requires the moving party to demonstrate by way of affidavits or other evidence that there is no genuine issue requiring a trial.

[10] The general principles applicable to summary judgment motions are well established by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. There is no genuine issue requiring trial when the judge can reach a fair and just determination on the merits on a motion for summary judgment. In Hryniak, the court provided the following roadmap for judges to follow to determine whether summary judgment ought to be granted:

66 On a motion for summary judgment under rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable, and proportionate procedure, under rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

67 Inquiring first as to whether the use of the powers under rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution. As well, by first determining the consequences of using the new powers, the benefit of their use is clearer. This will assist in determining whether it is in the interest of justice that they be exercised only at trial.

68 While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate. There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense. In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above.

[11] The Court of Appeal has held that the summary judgment test applied in child protection cases is, at its core, the same as in other cases (see L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 52). However, the test must be applied with an eye to the specific context and to the particularly high stakes and Charter rights of parents and children in child protection proceedings (see L.M., at para. 52 and New Brunswick (Minister of Health & Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.), at para. 76). The Court of Appeal has maintained a consistent approach, both before and after the Hryniak decision, that summary judgment in child protection cases remains highly cautionary.

[12] However, such caution does not prevent summary judgment from being appropriate in certain child protection proceedings, provided that summary judgment can “ensure a fair and just determination in a prompt and proportionate manner” (L.M., at para. 51).

[13] The proper approach to summary judgment in child protection proceedings was usefully summarized by the Court of Appeal for Ontario in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32, at para. 80, as follows:

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.

ANALYSIS ON DISPOSITION

My conclusions

[14] This child has been in the Society’s care since she was born. Pursuant to s. 122 of the CYFSA, the court cannot make an order for Interim Society Care that would result in a child who is six years old or less being in the care of the Society for more than 12 months (subject to a six-month extension in appropriate cases). Having been in the Society’s care for two full years now, it is no longer open to this court to make an Interim Society Care order. This child is in dire need of permanency and her best interests require that a definite and long-term plan for her care be put in place without further delay. According to the legislation, the only options available to this court are that the child be returned to her parents’ care, under a supervision order or a custody order, or that she be placed in the Society’s extended care for the purpose of adoption.

[15] The Society’s request for an Extended Society Care order is grounded on its primary protection concerns, which have remained the same since the child was brought to a place of safety at birth; the long-standing alcohol abuse by both parents, domestic violence and adult conflict between the parents which often results from their misuse of alcohol, and their seemingly limited parenting capacity, which impacts their ability to care for this young child. Secondary concerns include the parents’ refusal to engage and cooperate with the Society, to access any of the services recommended to address the Society’s concerns, and the parents’ lack of a safety network upon which a plan for the safe return of the child to their care could be built.

[16] The main focus of this motion, therefore, is whether there is a genuine issue requiring a trial to allow this court to determine whether this child can be safely returned to her parents’ care at this time.

[17] It is with great regret that I conclude that there is no genuine issue requiring a trial in this case. While it is clear that these parents love their child very much, and want to be given an opportunity to care for her, the evidence before me overwhelmingly supports the conclusion that they have taken no meaningful steps to address the Society’s and this court’s concerns about their ability to parent this young child on their own. Despite two detailed court decisions confirming the existence of serious protection concerns, the parents to this day have continued to deny that any concerns exist at all, and they have presented no evidence that they have taken any steps at all to address those concerns.

[18] I am mindful of the fact that courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are very high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge (C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357; C.A.S. of Nipissing and Parry Sound v. S.B., 2019 ONSC 1352). However, in the context of this summary judgment motion, the parents were required to “put their best foot forward” and I am entitled to assume that they have put before me all of the evidence that they would be able to adduce at trial (T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 at para. 30).

[19] Unfortunately, I have been provided with no evidence whatsoever that would raise a genuine issue as to whether the parents face better prospects today than what existed at the time the Society removed the child from their care. Simply put, the evidence presented by the parents in this motion has fallen very short of establishing the existence of a genuine issue requiring a trial on whether this child can be safely placed in their care. The evidence presented by the Society in this motion makes it clear that the child cannot, at this time, be safely returned to the parents’ full-time care and the only option available to the court, given her age and the fact that she has been in the Society’s care for two years, is to place the child in the Society’s extended care for the purpose of adoption.

The evidence

[20] When the Society’s Protection Application was first issued in January of 2020, the Society was initially seeking an order that the child be placed in the Society’s interim care for three (3) months. A Plan of Care was prepared at that time, clearly outlining what it expected from the parents before it would feel that the child could be safely returned to their care. The Society’s expectations were the following:

The parents:

Cooperation

1. Shall work cooperatively with the child protection worker by

(1) meeting regularly and as requested, at minimum once every 30 days. They shall not cancel appointment without a proper justification;

(2) notifying the Society in advance of any change of address, telephone number or family constellation;

(3) allowing the Society worker to attend their home for announced and unannounced visits to assess their home when requested; and,

(4) staying calm during meetings and telephone contacts with the Society workers and other professionals involved with the family.

2. Shall sign consents as requested by the Society and Counsel for the child allowing the Society and other service providers to share information, upon consultation with counsel if desired.

Safety Network and Family Finding

3. Shall work with the Society worker and meet with the Family Finding worker to develop a safety network and provide names of individual who could present a plan or support the parents in their plan to care for the child.

4. Shall work with the child protection worker to identify and build a safety network of the parent's extended family, friends, kin, community supports etc. who will assist the parents with their plan to care for the child, ensuring the child always has a safe caregiver who will meet her needs and providing respite care.

Services

5. Shall participate and attend follow up meetings for substance abuse and follow through with recommendations made.

Access

6. Shall be present at all scheduled visits, follow the schedule, follow the cues of the access worker and engage with the access worker.

7. Shall be able to demonstrate appropriate care and parenting capacities of the child.

8. During access with the child, the parents shall remain appropriate in conversations with each other, focus on the child during the visits, be receptive to cues and directions given by the access workers.

The mother:

9. Shall complete a referral for a psychological assessment and follow any recommendations made by the professionals involved.

10. Shall meet with the child protection worker to identify parenting programs that will assist in developing parenting skills and attend and engage in the parenting classes.

The father:

11. Shall participate and follow up with anger management services and follow recommendations made by the professionals involved.

[21] When the Society amended its Application in May of 2021 to seek an Extended Society Care order, those expectations remained roughly the same except that the Society was no longer asking for a psychological assessment for the mother or requiring her to attend parenting programs, and the father was no longer expected to participate in anger management services. The removal of these expectations was based on the fact that by that time, the Society was no longer seeing the return of the child to her parents’ care as a viable option.

[22] It is not disputed that the two ongoing workers who worked with this family over the past two years, Ms. Pulfer and Ms. Georgaras, have attempted on numerous occasions to discuss the Society’s concerns and expectations with the parents, and to assist them in locating services necessary to address their protection concerns. It is also not disputed that the workers who supervised the parents’ access during the past two years, Ms. Campbell and Ms. Jacques, have also had multiple access review meetings with the parents to review progress and expectations around and during access.

[23] To support its motion for summary judgement, the Society adduced evidence from the ongoing worker, Ms. Georgaras, as well as from the various other workers who either supervised the parents’ access with the child, acted as ongoing workers or assumed care responsibilities for the child. Attached to these workers’ affidavits were decisions rendered by the Quebec Court in relation to the parents’ first child, K.G., as well as numerous police occurrence reports, medical reports for both parties, and a number of email exchanges between Society workers and the parents. There was no objection raised by the parents as to the admissibility of these documents and records in the context of this motion and I find that this evidence would be trial-worthy if it were adduced in the context of an eventual trial. In reviewing medical and police records, I have disregarded any hearsay that they may contain, and restricted my attention to direct observations recorded by health professionals and police officers of their interventions and interactions with the parents and/or the child.

[24] It was Ms. Georgaras’ evidence that, since the child was brought to a place of safety at birth, the parents have made no progress in addressing or mitigating the concerns of the Society. In fact, she indicated that her concerns had only increased.

[25] The Society’s evidence is that the parents have consistently denied that there are problems at all, and that it has been very difficult assisting them in accessing services or supports to address the ongoing child support concerns. This is due in large part to the Society’s difficulty in even discussing those concerns with them. Society workers have reported that the father has been difficult to work with in the sense that he always presents himself in an overly positive manner during meetings and refuses to acknowledge any of the concerns that have been brought up. The father expresses that he is a wonderful person, that he and the mother are great, that his relationship with the mother is perfect, that they have no problems at all except for their children being taken from them under “false pretences”.

[26] Ms. Georgaras explained that between November 2020 until March of 2021, the parents completely refused to meet with the child protection workers to discuss the Society’s concerns, or their progress addressing them. The parents refused to provide their home address to the Society workers and to allow them to visit their home until June of 2021, when a first and only visit in the parents’ home was permitted. Indeed, it is not disputed that at the time this motion was heard, the parents had moved into a different home, and refused to provide their current address to the Society, or to allow any of its workers to visit their home.

[27] Ms. Georgaras’ evidence was that when confronted about allegations of drinking or domestic violence, the father has erupted into uncontrolled anger, adamantly denying that any of the allegations are true and generally this will cause the conversation to end. It has been the same experience for Ms. Pulfer, the child protection worker who was involved with this family before Ms. Georgaras. Various society workers have observed that the father will speak for the mother in every meeting, even when questions are directly asked to the mother. This has also been noted by several health professionals who have been in contact with these parents, including their family doctor, Dr. Seid, the hospital staff at the time of both children’s births, and workers involved in the Quebec child protection proceedings which led to K.G.’s permanent removal from his parents’ care.

[28] The evidence adduced by the Society in this motion, as well as during the care and custody motion held before Somji J. in February 2021, overwhelmingly supports a finding that the parents have significant alcohol addictions which, on several occasions, have resulted in incidents of domestic violence. Between December 2015 (around the time the parents moved from British-Columbia to Quebec and then Ontario) and March 2020, the police were involved with the parents on nine occasions as a result of their intoxication and/or incidents of domestic violence (frequently both). Medical records obtained by the Society from Dr. Seid, the parties’ family doctor, as well as from various hospitals who provided medical assistance to the parents, overwhelmingly confirm a long history of alcohol misuse by both parents, a clear diagnosis of alcohol use disorder by the mother, and both parents having been referred to services to address their alcohol addictions, including by the Quebec Court and this court.

[29] The father’s controlling behavior towards the mother as well as numerous incidents of aggressive behaviour and angry outbursts towards Society workers (in Quebec and in Ontario) have been detailed in the Society’s evidence. Hospital staff, including hospital social workers, nurses and paramedics have also observed or experienced the father’s aggressive behaviours and noted those incidents in their notes and records. Hospital records dated December 27, 2018 reveal that the father was flagged as an at-risk patient requiring increased surveillance due to arriving for his appointment intoxicated/having consumed alcohol.

[30] Throughout these proceedings, and throughout the Quebec Court proceeding which led to K.G. being permanently removed from their care, the parents have known that they were expected to take positive steps to address their substance abuse and the domestic violence and adult conflict between them. The parents have heard through Somji J.’s April 2021 decision and my September 2021 decision that we considered the evidence to overwhelmingly support a finding, on a temporary and then on a final basis, that their child was at risk of harm due to their alcohol addiction and the existence of domestic violence and adult conflict in their relationship. To continue to simply deny that any concerns existed in that regard was not an option open to the parents at this stage of the proceedings. They had to demonstrate that they had taken meaningful steps to address those concerns or that those concerns were sufficiently being mitigated to raise a genuine issue requiring a trial.

The parents’ evidence with respect to concerns related to alcohol misuse

[31] In her affidavit in support of this motion, the mother acknowledged that she did abuse alcohol in the past, but stated that she had taken the following steps to address this issue:

• After K.G. was placed in foster care in November 2016, she attended programming from the Centre de readaptation en dépendance de l’Outaouais to become sober, and she did not drink for three years. The mother also asserts that she attended SMART Recovery virtual addictions programming.

[32] Not only has the mother provided no documentary or other corroborating evidence confirming her attendance at these programs, her assertion that she was sober for three years following K.G.’s apprehension is clearly contradicted by the many police and medical reports confirming that she was found to be highly intoxicated on many occasions during the five years that followed. Further, in her own affidavit the mother acknowledges having been intoxicated on August 5, 2017, on November 14, 2018, and on March 14, 2020, in the context of incidents which required police intervention. The mother’s medical records, including those recording events which took place in 2019 and 2020, are also replete with references to the mother’s alcohol misuse, including her own requests for assistance in engaging in substance abuse services.

• The mother indicates that she is now on naltrexone, a medication that she says is used to treat alcohol abuse by reducing the desire to drink, and which she states she has been taking for a year now. To support her assertion in that regard, the mother provided a picture of her naltrexone pill bottle, with the prescription label on it.

[33] Unfortunately, there is no evidence about the identity of the health professional who might have prescribed that medication to her (the name of the doctor does not show on the bottle), when it was prescribed and for what purpose(s). More importantly, there is no objective evidence, for instance from the mother’s doctor, health professional or addiction counsellor, providing information about the impact, if any, that this medication has had on the mother’s alcohol misuse. There is no evidence, by way of medical report or otherwise, that would support a finding that the mother is currently sober or that she has meaningfully addressed her alcohol addiction – whether with the use of that medication or in some other way.

[34] In his affidavit filed for the purpose of this motion, the father simply continues to deny that he struggles with alcohol abuse. While he acknowledges that he sometimes drinks, he maintains that he never gets heavily intoxicated nor has he ever done so in the past. He does not accept responsibility for any of the nine times, between 2016 and 2020, during which the police were required to intervene due to the parents’ intoxication or the presence of domestic violence or adult conflict, nor does he acknowledge any responsibility for K.G. having been removed from his care in the middle of the night on November 16, 2016, while he was observed to be heavily intoxicated. To him, this is all a big misunderstanding. As he did in the context of the two motions heard in 2021, the father provides his own version of the events which led to police intervention and denies that he was either intoxicated (as clearly observed by the police) or that he engaged in conflict. He also continues to deny, ignore, or give a different account of the significant evidence contained in various medical records in relation to a long-standing alcohol addiction on his part.

[35] The father has provided no evidence whatsoever indicating that he has undertaken any course of medical or other treatment to address the concerns about his addiction to alcohol over the past two years.

The parents’ evidence about concerns related to domestic violence and adult conflict

[36] In relation to the presence of domestic violence or adult conflict in the parents’ relationship, the parents’ evidence continues to be a flat denial that domestic violence or adult conflict is present in their relationship. As a result, they have taken no steps to address this concern, or to alleviate it in any way.

[37] In essence, the parents’ evidence in this motion is the same evidence they presented in the context of the motion heard by Somji J. in February 2021 and the summary judgment motion heard before me in July 2021. Their position has not changed, despite the overwhelming evidence presented by the Society (which has been set out in detail in Somji J.’s April 2021 decision at paras. 48 to 65), and no steps have been taken by them to address those concerns or mitigate them in any way.

[38] The parents’ complete refusal to engage and to cooperate with the Society in any meaningful way, including after these two decisions were rendered, only adds a further layer of concerns about a potential return of the child in the parents’ care.

Parenting abilities

[39] In my September 2021 decision, I stated that it was not necessary for me to determine if the child was in need of protection based on the parents’ alleged limited parenting capacity since I had already concluded that the evidence overwhelmingly supports a finding that she was in need of protection based on the parents’ long-standing alcohol abuse, history of domestic violence and of adult conflict. In the context of this motion, however, I feel that it is necessary to address this particular concern.

[40] The Society’s position in relation to the parents’ ability to parent is based on the events which led to the permanent removal of K.G. from their care in 2017, and on its own observations of the parents’ parenting skills during their supervised access visits with M.G. over the past two years. Pursuant to the various temporary court orders made, the parents have had three or four weekly visits with their child, all of which have taken place at the Society’s offices, and all of which have been supervised by two main supervisors, Ms. Colleen Campbell and Ms. Manon Jacques.

[41] Both access supervisors have reported strengths and some improvements in the parents’ ability to care for their child over the course of the past two years. They include:

• When the mother is alone at the visit, she generally does well. She is able to change the child’s diaper, adequately supervise and, for the most part, she remains engaged with the child, participating in age-appropriate activities (although it was observed that, as the child developed and grew, the mother struggled to introduce new activities to her);

• The parents have been observed to take turns completing the basic care needs for the child, sharing tasks such as diaper changes and feeding her snacks;

• The mother has been observed to dress the child in her winter clothing when it is time to leave (although the father has noted that he was unaware of how to do so);

• The parents have made best efforts to ensure the child was secured in her highchair for snacks (although there have been a few instances where they have forgotten);

• The parents have read books to the child during their visits;

• The parents read and wrote in the communication book when necessary. They have also had appropriate interactions with the foster mother on days they greeted the child at the car; and,

• The parents have never been observed to be intoxicated during the visits.

[42] Despite the above strengths, the visits have never progressed to an unsupervised setting or into the parents’ home as a result of several concerns, the most notable one being that they have steadfastly refused – except for one time in June 2021 – to allow the Society worker to attend their home. But in addition to this, access supervisors have noted other concerns.

[43] Firstly, although the parents have shown commitment to their child by regularly attending their visits, they have not always been consistent, more particularly the father. In September 2021, their weekly visits were reduced from four visits to two due to the parents regularly missing visits and, during that month, having failed to show at all without notice twice in a row. The visits were reduced to two per week with a view of increasing to three visits per week once they attended eight consecutive visits. At that time, the parents were advised that they would need to call, email or text the access supervisors the day of the visit to confirm their attendance failing which the visit would be cancelled. The visits were eventually increased back to three visits per week in November 2021.

[44] Secondly, and although there has been some work done by the parents towards achieving the goals given to them by access supervisors, the concerns over their parenting abilities have remained consistent despite their being given resources and teaching to improve. Access supervisors have indicated that the parents appear to lack insight into their child’s developmental needs and have not always followed the recommendations of the supervisors or the Nippissing Developmental Screens with respect to age-appropriate activities. Although this is reviewed with the parents each access review and by the foster mother, supervisors and workers, the parents have often demonstrated a lack of importance and understanding of ensuring that their child is stimulated in an age-appropriate way.

[45] For instance, although they have at times properly engaged the child in play and activities, they have frequently been observed to spend their entire visits – or substantial parts thereof – sitting on the couch with the child despite her demonstrating that she wanted to play and explore. At times, the mother even moved to another part of the room and was observed to play alone. Although they were cued about the importance of allowing the child to stay on the ground to stand, walk and play, the parents frequently just continue to sit on the couch and take turns in holding the child on their lap. When the parents attend the visits together, which is the norm, it was observed that the mother engages significantly less with the child and only interacts minimally with her. Both parents have also been observed to lack engagement with the child towards the end of their visits.

[46] The parents have also been observed to struggle with age-appropriate supervision. They have required cues to ensure that the child was securely buckled in her highchair. They have failed to follow the supervisors’ suggested safety measures after the father accidentally put the diaper bag strap around the child’s neck. Despite the child having used the same car seat for one month, and having received assistance from the supervisor to safely fastened the child in it, the mother in July 2021 was unable to safely buckle her in. The parents have also failed to recognize safety hazards presented by toys and/or objects accessed by the child while they looked on.

[47] Although both parents have been receptive to feedback received from access supervisors, both Ms. Campbell and Ms. Jacques have reported significant difficulties in their communications with both parents. It was reported that the parents often do not respond to text, emails, or phone calls, even when a call back or confirmation is requested, and this has made it challenging for them to make alternate arrangements for visits or schedule meetings. The father has reportedly been aggressive towards the supervisors when he is cued regarding his behavior, which have included shouting, hanging up the phone, rude comments and condescending emails. Although present, the mother has rarely participated in meetings or virtual calls, the father dominating most interactions and continuously speaking on her behalf.

[48] While I acknowledge, as is stated by the mother, that there is no evidence before the court that the mother has ever been diagnosed with development delays, concerns about this have been raised not only by the various Society workers who have been involved with this family, but also by the child protection workers from the DYP who removed K.G. from the parents’ care, and by hospital staff who interacted with this family over the past years. This is why the Society was initially seeking a psychological assessment of the mother, to determine whether there might be developmental delays affecting her capacity to parent.

[49] While I also acknowledge that the father took some steps in the summer of 2021 to locate a professional who could complete a psychological assessment for the mother, these steps were unfortunately taken way too late. By then, the child had already been in the Society’s care for 18 months and the Society was no longer in a position to contemplate the child’s return to their care, given the statutory timelines.

[50] In response to the Society’s evidence regarding their concerns over the parents’ ability to care for the child independently, the parents relied on the same evidence that was before Somji J. in the context of the February 2021 temporary care and custody motion, and before me in the context of the first summary judgement motion heard in July 2021.

[51] The mother asserts that she has attended a parenting class called “Positive Discipline” or “Positive Parenting” through Family Services Ottawa. She indicates that she was scheduled for fifteen classes and attended approximately eight classes before the pandemic struck and in-person classes were suspended. She also states that she signed up for “Parenting in a Pandemic” course, however, the mother provided no evidence of having successfully completed the first course, and to support her assertion that she completed the second, all she provided was an email confirmation of her registration in the online program. No evidence was provided from the program facilitators to confirm whether she had actually attended these classes and successfully completed them. Further, observations of her visits with the child do not support the conclusion that the information obtained during those programs, assuming that the mother attended, has translated into a satisfactory improvement in her parenting abilities, her level of engagement with the child during visits, or in her understanding of the child’s developmental needs.

[52] The father states that he previously raised two children with his ex-partner, who are now adults, and that he was the primary caregiver for his older boys, never having been involved with child welfare authorities in relation to those children. However, no information was ever provided by the father to the Society or this court to verify this information. Other than making this statement, the father has provided no evidence to support his past parenting experience. It does not appear that the father currently has contact with these adult children, and neither provided any evidence in support of their father’s assertions.

[53] Society workers have spoken with the parents on many occasions in an effort to identify and locate family members, friends and/or individuals who would be willing and able to support them in their parenting role if the child was placed in their care. Unfortunately, the Society continues to have very limited knowledge about the parents' family, friends or support network and it appears their supports are quite limited or non-existent in the Ottawa area. No kin plans could be identified. With the exception of one individual, Mr. Lewi, who indicated to Ms. Rioux that he could be there when needed, bring things over and offer financial assistance as well as a place to stay if needed (he would then sleep on the couch), no specific information was provided by the parents to the Society about other potential supports, their names or how they could be reached. In the context of this motion, the parents have not provided any further or more meaningful evidence with respect to individuals who would be willing to be part of their safety network if the child was placed in their care.

[54] It is not disputed that these parents were never given the opportunity to parent this child. But this is because of the numerous concerns raised by the Society about their ability to care for her during supervised visits, which concerns were identified in much detail in Somji J.’s April 2021 decision, and the parents’ refusal to engage with the Society, to cooperate and to access recommended services. For those reasons, the visits could never move to an unsupervised, more natural setting.

[55] The parents argue that the court cannot make a just determination of the disposition that is in the child’s best interests without hearing viva voce evidence from witnesses to assess whether the Society’s evidence or the parents’ evidence should be preferred. In their view, holding a trial in which they will have an opportunity to cross-examine the Society’s evidence and provide their own evidence is the only way they will be able to show that a supervision order would be sufficient to ensure the child’s safety in their care.

[56] The courts have stated in numerous occasions that it is not sufficient for a party opposing a motion for summary judgment to say that the evidence before the court might be weakened on cross-examination (Children’s Aid Society of Toronto v. M.R., 2016 ONCJ 215 at para. 130). The court should not deny a summary judgment motion based on speculation as to what evidence might emerge if a trial is ordered (CAS of S.D.G v. A.G. and K.T., 2021 ONSC 4172).

[57] I find that there is no genuine issue requiring a trial to allow me to decide whether this child can be safely placed in her parents’ care at this time, even under a strict supervision order: it is clear that she cannot. The child is a vulnerable young child who requires the attentive care of sober, appropriate parents with the knowledge and capacity to care for her. To date, the parents have not been able to demonstrate that they would meet these expectations, or that they have taken meaningful steps to address the Society’s and the court’s concerns.

Access

[58] I also conclude that there is no genuine issue requiring a trial on the issue of the access which is in this child’s best interest. Throughout the past two years, the parents have been given supervised access to their child three to four times per week. As of September 2021, their weekly visits were reduced from four visits to two visits per week, due to their inconsistent attendance and several missed visits without proper notice. However, they were subsequently increased to three times per week, in November 2021, because their attendance had improved.

[59] In my view, the evidence supports a final order being made granting the parents continued access to their child, at the Society’s discretion regarding duration, location, frequency and level of supervision, but subject to a minimum of four (4) visits per week (as detailed below), and providing that the parents are not under the influence of alcohol when they attend for visits. Both parents and child should be access rights holders.

ORDER

[60] Based on the above, summary judgement is granted, and the following final order is hereby made:

1- The child, M.G., shall be placed in the extended society care of the Children's Aid Society of Ottawa.

2- The parents, K.D. and S.G., shall have access to the child at the Children's Aid Society of Ottawa's discretion regarding duration, location, frequency and level of supervision, but subject to a minimum of four (4) visits per week provided that the Children's Aid Society of Ottawa in its sole discretion is satisfied that the parents are not under the influence of alcohol when they attend for visits. The minimum frequency of access set out herein may be gradually reduced as the child is transitioned toward adoption.

3- In the event that the parents fail to attend two access visits in a row without reasonable notice and justification (a visit is not deemed missed if at least one parent attends), the visits may be temporarily and gradually reduced by one visit per week, but shall also be gradually increased by one visit per week, once the parents (or one of them) have consistently attended their weekly visits for at least four consecutive weeks.

4- The child, M.G., and the parents K.D. and S.G. shall all be the access right holders.

Madam Justice Julie Audet

Released: February 1, 2022

COURT FILE NO.: FC-20-CP5

DATE: 2022/02/01

ONTARIO

SUPERIOR COURT OF JUSTICE

CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

K.D. and S.G.

Respondents

REASONS FOR DECISION

Audet J.

Released: February 1, 2022