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 and Parties

COURT FILE NO.: FC-14-1044-6 DATE: 2023/05/04

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 AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF J.J.L., born [...], 2015, E.H.L., born [...], 2016, C.C.L, born [...], 2019, and I.G.L., born [...], 2021

BETWEEN: The Children’s Aid Society of Ottawa Applicant

AND: R.F.S. (Mother) C.J.L. (Father) Respondents

Counsel: Brian Fisher, Counsel for the Applicant Society Sonya Notturno, Counsel for the Respondent Mother Jean Claude Dubuisson, Counsel for the Respondent Father

HEARD: March 20, 2023

Reasons for Judgment

Justice Engelking

[1] The Children’s Aid Society of Ottawa (hereinafter “the Society” or “the CAS”) has brought a Summary Judgment Motion seeking an order placing the children, J.J.L., born [...], 2015, E.H.L., born [...], 2016, C.C.L, born [...], 2019 and I.G.L., born [...], 2021 in Extended Society Care with access to their parents at the discretion of the Society as well as to one another, with all concerned being access holders.

[2] The children are currently residing with their maternal grandmother, B.S., and the Society’s intention is to have them ultimately adopted by Ms. B.S. An older child of the mother, J., was adopted by his grandparents, B. S. and D. S. in 2015, and is not a subject of the Society’s current application.

[3] The children’s mother, R.F.S., and father, C.J.L. oppose the Society’s motion, and seek that the matter proceed to trial.

[4] In support of its motion, the Society relied upon the following materials:

1. Notice of Motion dated January 19, 2023;
2. Affidavit of Pamela Redmond sworn on January 19, 2023;
3. Affidavit of Elizabeth Moscardi sworn on January 19, 2023;
4. Affidavit of Karen Jolicouer sworn on January 19, 2023;
5. Affidavit of B. S. sworn on January 19, 2023;
6. Affidavit of Pamela Redmond sworn on February 21, 2023;
7. Affidavit of Elizabeth Moscardi sworn on February 1, 2023; and,
8. Affidavit of Karen Jolicouer sworn on February 23, 2023;

[5] In defence of the motion, Ms. S. relied upon her affidavit sworn on March 2, 2023.

[6] Mr. L. relied upon his affidavit sworn on March 7, 2023.

[7] As a preliminary issue, Ms. S. objected to the volume of material filed by the CAS in support of their motion, referring to it as a “document dump” or “trial by paper”. Except for the number of police reports attached as exhibits to the January 19, 2023, affidavit of Ms. Redmond, more about which I will speak later, I do not agree. The motion was originally scheduled to be heard on February 23, 2023. The Society filed affidavits from the Child Protection Worker (“CPW”) with carriage of the file, Ms. Redmond, the main access supervisor, Ms. Moscardi, the Kinship worker, Ms. Jolicouer, working with the children’s maternal grandmother, with whom they are placed, and from the maternal grandmother, B. S., herself. They are all meant to and do provide information of those persons’ direct involvement in the file and with the parents or children. The motion, however, was adjourned on February 23, 2023, to March 20, 2023, so the Society provided brief updating affidavits from Ms. Redmond, Ms. Moscardi and Ms. Jolicouer, which I find appropriate under the circumstances. All, moreover, were in hand when the parents prepared their responding materials, and they had the opportunity to address any issues arising therefrom in their own affidavits.

The Procedural History

[8] The current legal proceedings were commenced in September of 2019, though the Society has been involved with these parents at various intervals dating back to 2014, as is evinced by Family Court file number.

[9] The three elder children, J., E. and C. were placed in their parents’ care under several consecutive supervision orders since the 2019 application, the most recent being the Final Order of Justice Somji dated February 9, 2021. In August of 2021, the youngest child, I., was placed in the temporary care of the parents subject to the supervision of the CAS.

[10] On November 25, 2021, Justice Blishen granted a temporary order which included a detailed parenting time schedule for the parents with numerous terms and conditions.

[11] However, on December 9, 2021, all four children were officially removed from the parents and placed with their maternal grandmother, B. S. They had, however, been living with Ms. B.S. since shortly after an incident on November 25, 2021.

[12] On December 14, 2021, Justice Shelston granted a temporary without prejudice order placing the children with Ms. B. S. subject to the supervision of the Society.

[13] On January 24, 2022, Justice Laliberte granted a with prejudice temporary supervision order to Ms. B. S.

[14] On March 29, 2022, Justice Mackinnon granted a final order making statutory findings regarding I. and placing the children with their grandmother subject to the supervision of the CAS on certain terms and conditions for a period of five months with access to their parents a minimum of twice per week.

[15] On August 2, 2022, the Society filed a Status Review Application seeking an order pursuant to Section 102 of the Child, Youth and Family Services Act, S.O. 2017, c.14, schedule 1 (“CYFSA”) placing the children in the custody of Ms. B.S.

[16] On October 1, 2022, the Society filed an Amended Status Review Application seeking the order requested in this Summary Judgment Motion, one of Extended Society Care for all four children.

The Facts

[17] As indicated, prior to December of 2021, these children were in the care of their parents pursuant to temporary supervision orders, although the parents separated for a period of time between August 2021 and June of 2022.

[18] On November 25, 2021, the Honourable Justice Blishen ordered a detailed parenting time schedule for the parents with numerous terms and conditions. On the same evening, an incident occurred between the parents to which the Ottawa Polices Services were called. According to Ms. Redmond, the Society made the decision at that time that the children could not remain in the care of the parents, and they worked out a plan (with the parents) for the children to be cared for by B.S.

[19] Between this incident and December 8, 2021, the children were placed in the care of their grandmother on a voluntary basis. However, on December 8, 2021, they were “brought to a place of safety” and placed with B. S. The children have remained with Ms. B.S. ever since.

[20] On January 13, 2022, an access trajectory plan was developed for R. F. S. The plan set out three steps of gradually increasing access for R.F.S. with gradually reduced supervision. The contemplated timeframe for Step 1 was three weeks, for Step 2 was four weeks and for Step 3 was four weeks. However, R.F.S.’s access has to date never surpassed Step 1, which was for fully supervised access at the CAS for 1.5 hours twice per week.

[21] On April 10, 2022, an access trajectory plan was developed for C. J. L. The plan for him was also set out in three steps of gradually increasing time and decreasing supervision, such that he would ultimately obtain unsupervised parenting time in the community a minimum of twice per week. Like R.F.S., C.J.L. has also not progressed beyond Step 1 of the plan, which was for supervised access twice per week at the agency.

[22] Indeed, until recently, the parents have been very inconsistent with attending their access with the children, and at times were unable to even make the minimum of twice per week contemplated in their respective plans. The parents began exercising their access more regularly as of October of 2022.

[23] In June of 2022, the CPW, Ms. Redmond advised the parents that the Society would be seeking an order placing the children in the custody of their grandmother. Ms. Redmond indicated that the Society had seen no change in the parents over the previous seven months and the children were doing well in B. S.’s care. The parents were not opposed to this idea at the time.

[24] As of June 28, 2022, the parents were to exercise access together, however, as indicated above, they were not consistent in doing so until October of 2022. As noted, the parents have not progressed past Step 1 of their respective access trajectories. However, even if they accomplished the objectives set out in the plans, they could not move to the second step, as it contemplated access visits at the maternal grandmother’s home. The relationship between R.F.S., C.J. L. and B. S. has significantly deteriorated since the spring of 2022. Ms. B. S. is no longer prepared to permit the parents to visit the children in her home.

[25] The Society has requested that the parents identify an alternative family member to assist with visits. They proposed and the Society approved C.J.L.’s sister, T.L., who had the children visit her home on a few occasions but then stopped responding to the MGM and the Society. Ultimately, Ms. T.L. only supervised one visit on Christmas Day of 2022.

[26] C.J.L. has acknowledged to Ms. Redmond that he has a severe drinking problem, and that he has been hospitalized over 30 times because of it. He pled guilty to assaulting R.F.S. while intoxicated in December of 2021. C. J. L. has been offered numerous services by the CAS to address his addiction; he has not engaged with any such services. However, both C. J. L. and R.F.S.’s evidence is that he quit drinking in the late fall of 2022.

[27] The parents, additionally, appear to have constantly engaged in conflict with each other, with family members and with neighbours. They have exposed the children to their outbursts, including R.F.S.’s outbursts aimed at her mother, B. S. and her maternal aunt, R.

[28] In August of 2022, the Society filed its Status Review Application (“SRA”) seeking an order placing the children in the custody of B.S.

[29] In September of 2022, the Society continued to receive referrals about R. F. S. and C. J. L. engaging in conflict with others, including physical altercations with neighbours. In October, C.J. L was charged with mischief in relation to security cameras he broke in their apartment building while intoxicated.

[30] In October of 2022, the Society amended its’ SRA to one seeking an order of extended care of the children.

[31] B.S. has sworn in her affidavit that she will not consent to a section 102 custody order under the CYFSA, but that she is agreeable to an order of extended society care for the children with a view to them being adopted by her. Although the parents have been at her home on a few occasions since the spring of 2022, B. S. has advised the Society that she is leery about them having visits at her home. The parents have been conflictual with her and in November of 2022, Ms. B. S. directed them to address all their communication through the CAS.

[32] The children were lacking in dental care when they came to live with their grandmother, to the point where E. and J. had teeth which were rotting in their mouths and needed to be extracted at CHEO. I.’s immunizations were not up to date. E. and J. were registered in school commencing as of December 13, 2021.

[33] Pursuant to her Answer and Plan dated September 13, 2022, R. F. S.’s plan is to have the children returned to her care, initially under a supervision order and ultimately a custody order. In her Answer and Plan dated November 4, 2022, filed in response to the Society’s Amended Status Review Application, R. F. S. states that her plan is the same; however, in the alternative, she seeks “a temporary custody order to the maternal grandmother, reviewable in 12 months.” R. F. S.’ position is that there is a triable issue in this case, which needs to be determined on viva voce evidence. She states at paragraph 14 of her affidavit, improperly in my view, given that she is making a submission as opposed to providing evidence: “The answer to that question alone (why adoption versus a custody order) is not one that is proper for a summary judgement motion. It is especially important for the maternal grandmother to testify and be cross examined)”. She repeats a similar submission at paragraph 16.

[34] Ms. R. F. S. was engaged in the “Triple P positive parenting program” on-line at the time of the motion and expected to complete it in approximately three weeks.

[35] R. F. S. had a public trustee and guardian from property since 2013 as she was unable to manage her finances. However, the appointment was terminated on February 16, 2023, as she was deemed capable.

[36] On September 6, 2022, R. F. S. was put on a waitlist for a CMHA worker, something she had previously had but which was terminated due to her lack of engagement. The wait list for such a service is currently three to three and a half years.

[37] Ms. R. F. S. also took three free sessions of counselling with Anne Wilson through the New Directions program mandated for C. J. L. and as of February 7, 2023, also attended 12 counselling sessions with Alison Melia with Partner Outreach of the New Directions Program while C. J. L. was attending New Directions Program.

[38] Ms. R. F. S. admitted to missing access visits, specifically during the period that C. J. L. was still drinking heavily. She indicated in her affidavit that she was not putting her relationship with him ahead of the children, but that she needed to be near him to manage either his tendency to destroy or damage property or to pass out and injure himself. She indicates that since he has stopped drinking, they have both consistently attended access.

[39] C. J. L. seeks to have the children returned to his and R. F. S.’s care. He takes the position that there is a genuine issue requiring a trial of what disposition is in the best interests of children.

[40] C. J. L. attests to having been sober for six and a half months at the time of the motion. He asserts that as a result, he has become “a better father for my children and a better husband for my wife”.

[41] C. J. L. has also participated in the New Directions Program, though which he “learned the right way to behave with my wife and children”.

[42] The Society’s position is that notwithstanding the programs accessed by the parents, their staff continue to observe the same issues that were present at the time the children came into care, including specifically the parents’ propensity to engage in conflict, even during visits with the children. Their position is, further, that the parents have not demonstrated during their visits that they are capable of implementing anything they may have learned in the programs in which they engaged.

The Law of Summary Judgment

[43] Justice Corthorn canvassed the post- Kawartha 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).

[44] In this case, a highly cautionary approach is warranted. First, the parents have made a number of changes in recent months. These include R. F. S. taking the Triple P parenting course, taking counselling with both Anne Wilson and Alison Melia through the New Directions Program and the parents consistently exercising access with the children since approximately October of 2022. I am unaware as to whether the Society workers have spoken to Ms. Wilson or Ms. Melia to assess the degree to which Ms. R. F. S. may have benefitted from same.

[45] Additionally, R. F. S. has put herself on the waiting list for a new CMHA worker and has recently been deemed competent to manage her own financial affairs. C. J. L. has stopped drinking, and although he did not provide any collaborative evidence in support of this, such as documentation from an addictions program, neither was there any evidence presented in the motion which refutes it. Additionally, C. J. L. has participated in the New Directions program. I am unaware as to whether the Society workers have spoken with his program facilitator to assess the degree to which he may have benefitted from the program.

[46] Second, the Society has relied heavily on the number of times the police have been involved with the parents in relation to conflict between them or between one or both or them and other individuals, notably neighbours. Indeed, the Society attached 33 OPS occurrence reports as exhibits to the Affidavit of Ms. Redmond dated January 19, 2023. Counsel for the Society submitted: “quantity has a certain quality of its own”.

[47] However, counsel for R. F. S. strenuously objected to this tactic of the Society, submitting that many of the reports are not admissible for or supportive of the purpose for which they were proffered – to establish adult conflict in the home when the children were residing with the parents. She submits, further, that as per Katarynych J. in Children’s Aid Society of Toronto v. MF [2001] O.J. No. 6076 (Ont. C.J.), it is “fundamentally unfair to a responding party and to the court itself to expect that the “truth” of a fact can be extracted” in this manner.

[48] With this submission, I agree. Some of the reports have no mention of the children, some are of a “general” nature, and some are for child wellness checks instigated by one of the parents during their separation in 2021. They are of little assistance to the court.

[49] Most of the remaining reports are, nevertheless, for “partner disputes”, the vast majority of which occurred in 2019. Many also have reference to C. J. L. being under the influence or “intoxicated”. Significantly, the last report involving a partner dispute is from February of 2022. The last reference to an altercation with neighbours or to C. J. L. being involved with the police are those referred to in paragraph 29 above. Both occurred while C. J. L was intoxicated. No police occurrence reports were provided for the period in which C. J. L. has claimed to be sober. This, in my view, may, in fact, lend some support to the parents’ contention that they have been able to relate better with each other since C. J. L. stopped drinking.

[50] Third, the children have been and will remain in the care of their maternal grandmother pending a trial of the Society’s application. They have not spent any time in care and are not subject to the time limits set out in Section 122 of the CYFSA.

[51] An order for extended society care is the most intrusive order that can be sought in a CYFSA proceeding. The parents dispute some portions of the Society’s evidence, and do not dispute other portions, but have provided different interpretations of it. They have also provided their own evidence of the changes they have made since the fall of 2022. Whether or not they will ultimately be successful in having the children return to their care is not the question I must address in this motion. Rather, I must address whether a genuine issue requiring a trial exists.

[52] R. F. S. has submitted that there is a genuine issue requiring a trial regarding the court’s ability to grant an order for extended society care versus granting one of custody to the maternal grandmother pursuant to Section 102 of the Act. With this, I disagree. Section 102 of the CYFSA provides that if a court finds the children are in need of protection, which finding has already been made in this case, it may grant a custody order to one or more persons, with the consent of the person or persons. Ms. B. S. does not consent to a custody order being made to her. I find that there is no genuine issue requiring a trial in this regard.

[53] Considering the cautious approach I am required to employ, however, I do find that there is a genuine issue requiring a trial as to what disposition is in the best interests of the children as between the plan presented by the Society of extended society care and that of a return of the children to the care of their parents subject to the supervision of the Society.

Order

[54] There shall be a final order dismissing the Society’ Motion for Summary Judgment.

[55] Under the circumstances, there shall be no order as to costs.

Engelking J. Released: May 4, 2023