NEWMARKET COURT FILE NO.: FC-10-35751- 06 DATE: 20230712

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Children and Family Services for York Region, Applicant – AND – JB Respondent – AND – GM Respondent

Counsel: I. Couto, Counsel for the Applicant C. Adams, Counsel for the Respondent JB C.M. Murphy, Counsel for the Respondent GM

HEARD: June 12, 2023

RULING ON MOTION

JARVIS J.

[1] The York Region Children’s Aid Society (“the Society”) has brought a motion for summary judgment pursuant to Rule 16 of the Family Law Rules (the “Rules” or “FLR”). It seeks the following Orders that:

(a) Statutory findings be made in accordance with subsection 90(2) of the Child, Youth and Family Services Act, 2017 (“CYFSA”): (i) The children’s names and dates of birth are: (a) AGM, born in 2021 (“AGM”); and (b) RTM, born in 2023 (“RTM”). (ii) AGM and RTM are not First Nations, Inuk, or Metis; (iii) AGM and RTM were removed from the parents’ care in the Regional Municipality of York, ON.

(b) The children, AGM, born in 2021, and RTM, born in 2023, be found to be in need of protection pursuant to subsections 74(2)(b)(i), (b)(ii), (i) and (h) of the CYFSA.

(c) Pursuant to s. 101(1)(3) of the CYFSA, the children, AGM, born in 2021, and RTM, born in 2023, be placed in the extended care of the Society.

(d) An order pursuant to s. 104 and s. 105(5), (6) and (7) of the CYFSA that the children, AGM, born in 2021 (Access Holder) and RTM, born in 2023 (Access Holder), have access with JB (Access Recipient) and GM (Access Recipient), at the discretion of the Society as to times, frequency, duration, location and supervision of said access. At minimum, the parents shall be permitted to send AGM and RTM cards and pictures every 4 months.

(e) An order pursuant to s. 104 and s. 105(5), (6) and (7) of the CYFSA, that the child, AGM, born in 2021 (Access Holder), share access with RTM born in 2023 (Access Recipient), at the discretion of the Society as to times, frequency, duration, location and supervision of said access. At minimum, AGM shall be permitted to send RTM cards and pictures every 4 months.

(f) An order pursuant to s. 104 and s. 105(5), (6) and (7) of the CYFSA, that the child, RTM, born in 2023 (Access Holder), shall have access with AGM, born in 2021 (Access Recipient), at the discretion of the Society as to times, frequency, duration, location, and supervision of said access. At minimum, RTF shall be permitted to send AGM cards and pictures every 4 months.

(g) An order pursuant to s. 104 and s. 105(5) and (6) of the CYFSA that the children, AGM, born in 2021 (Access Holder) and RTM, born in 2023 (Access Holder), shall have access with C-AB, born in 2020 (Access Recipient) and R-ATB, born in 2019 (Access Recipient) at the discretion of the Society as to times, frequency, duration, location and supervision of said access. At minimum, AGH and RTM shall each be permitted to send C-AB and R-ATB cards and pictures every 4 months.

[2] The Society claims that the children are in need of protection pursuant to sections 74(2)(b)(i)(ii), 74(2)(i) and 74(2)(h) of the CYFSA. Those sections provide as follows:

Child in need of protection

(2) A child is in need of protection where,

(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;

(i) 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) and that the child’s parent or the person having charge of the child does not provide services or treatment or access to services or treatment, or, where the child is incapable of consenting to treatment under the Health Care Consent Act, 1996, refuses or is unavailable or unable to consent to treatment to prevent the harm.

(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.

[3] The parents oppose the Society’s motion. They seek the return of the children to their care.

[4] The following are the pleadings, affidavits and documents filed and relied upon by the parties:

(a) An Amended Protection Application dated March 3, 2023; (b) The Society’s Notice of Motion dated May 13, 2023; (c) An affidavit from Melissa Burtch sworn on May 18, 2023. She is a Children’s Services Worker employed by the Society. She became involved with AGM at the time of his birth on August 14, 2021, and placed him in a foster home about nine days later after his discharge from hospital. Carriage of the file was then assigned to one of Ms. Burtch’s colleagues, Amanda O’Malley, a Family Services Worker but Ms. Burtch resumed carriage of AGM’s file on February 22, 2022; (d) An affidavit from Arwin Ranjkesh sworn on May 23, 2023. He is a Family Services Supervisor employed by the Society. He was assigned to this case and reviewed the notes of Ms. O’Malley, the Family Services Worker between May 11, 2021, to October 3, 2022. Ms. O’Malley is on a leave of absence and was unavailable to swear an affidavit; (e) An affidavit from Jennifer Morrison sworn on May 12, 2023. She is employed by the Society as a Family Services Worker and assumed carriage of the family file from Ms. O’Malley between May 11, 2021, to October 3, 2022; (f) An affidavit from Nicola Graham sworn on May 10, 2023. Ms. Graham is employed by the Society as a Family Services Worker and was assigned to work with the family on August 16, 2021, to assist the regular Family Services Worker, Ms. O’Malley; (g) An affidavit from Courtney Manning sworn on May 15, 2023. Ms. Manning is a Family Intervention Worker who provided therapeutic access support to the family from August 23, 2021, to February 16, 2023; (h) An affidavit from Corinne Feldman sworn on May 22, 2023. Ms. Feldman is a Family Visit Support Coach employed by the Society. She began supervising AGM’s visits with his parents in October 2021 and with RTM and her parents after her birth; (i) An affidavit from Corinna Rock sworn on May 9, 2023. Ms. Rock is a Child Services Worker employed by the Society who has worked in that capacity for RTM (since March 7, 2023) and AGM (since March 31, 2023); (j) A Parenting Capacity Assessment dated October 22, 2022, prepared by Dr. Maurice Feldman Ph.D., a registered psychologist and Olivia Ng, a behaviour analyst. The report was prepared before RTM’s birth; (k) The mother’s Amended Answer and Plan of Care dated April 26, 2023; (l) The father’s Amended Answer and Plan of Care dated April 26, 2023; (m) The mother’s affidavit sworn on June 6, 2023; (n) The father’s affidavit sworn on June 6, 2023; (o) A Document Brief filed by the Society containing Reasons for Decision for four earlier summary judgment motions (dealing with seven children in care), case notes (O’Malley), various medical reports/records (Dr. Levine, Dr. Fast, Dr. Asper and local Hospital records) and related records and emails.

[5] For the reasons which follow the Society’s motion is granted with the exception of the relief sought in 1 above.

Background/Context

[6] Various child protection agencies have been involved with one or both of parents for almost three decades. The father has four children ranging in age from twenty-eight to eighteen years of age, none of whom he has parented. Together, the parents have nine other biological children (not including AGM and RTM) ranging from thirteen years to three years old, all of whom were removed from their parents’ care at birth or shortly afterwards, all having been found in need of protection. Two of the children are in the legal custody of different relatives of the mother, and seven have been placed in the Society’s care with no access to the parents. All have either been adopted or are in the process of being adopted.

[7] This proceeding is the fifth summary judgment motion involving the parents (Reasons for Decision of McGee J. dated September 16, 2014; Bennett J. dated November 14, 2017; Oldham J. dated July 16, 2019; and Himel J. dated November 26, 2020). A comprehensive Parenting Capacity Assessment was completed (Dr. Oren Amitay) in the fall of 2013. In her decision, McGee J. summarized what she considered were critical observations and findings of the assessor:

[55] [Dr. Amitay] details the missing criteria for successful independent parenting. Both parents lack insight, judgement and the ability to work well and cooperatively with services. Specifically, both parents tested within a borderline and extremely low level of intelligence suggesting that it extraordinarily difficult for them to learn new skills. Their tests also demonstrated low levels of emotional intelligence, which is necessary to respond to children and other adult social clues.

[56] A paramount concern in these circumstances was the mother's propensity for lying, even when there appeared to be no reason to do so. Dr. Amitay reviewed her patterns of deception and was unable to conclude whether they indicated an evolving delusional state, or a lack of awareness as to how unbelievable her falsehoods appeared to others.

[57] The father presented as a full participant in the deceptions, most notably the denials of pregnancy. In Dr. Amitay's conclusions he noted that the father's inability to detach from the mother, or to make her accountable for her deceptions, or to exercise independent judgement guaranteed that child protection concerns would continue.

[58] Both parents appeared unable to take responsibility for the dilemmas in which they found themselves; were unable to problem solve modest difficulties, or manage challenging social interactions.

[59] In summary, Dr. Amitay stated that, "even if [the mother] abides by all of the Society's expectations and complied perfectly with psychiatric treatment, she does not seem capable of raising one or more children on her own in the foreseeable future. In light of her and [the father's] history as a couple, there is no reason to believe that they would be able to work together to combine their parenting strengths so that any children in their full time care and custody would not be at unreasonable risk of harm."

[8] Later in her decision, McGee J. observed:

[65] Since apprehension, the parties have regularly exercised access to J.T.M. and A.T.M. Although the parents continue to be challenged to focus on the children, there have been memorable moments. The parents have made some gains in their interpersonal skills and their respective abilities to manage stress.

[66] At the same time, the parents have failed to demonstrate any significant improvements in their caregiving skills or their respective levels of insight. Access has not been able to progress past the unsupervised visits. The access visits continue to present significant management issues for the supervisors. For example, the parents visit the children separately, as caring for both children at once is beyond their present skills.

[67] The parents remain unable to work cooperatively with service providers. This poses a real challenge to the mother's plan of care which relies heavily on accessing community services. Her ongoing outbursts - one witnessed in the course of the hearing of this motion - suggest that she will not be successful in using services.

[68] In summary, the evidence informs the court that the parents have profound and fundamental parenting challenges which create multiple ongoing risks to the children, including exposure to excessive domestic conflict.

[70] There is simply no realistic prospect that J.T.M. or A.T.M. can be returned to the care of their parents without placing them at considerable risk of harm. Neither do I see how a trial with viva voce testimony and cross-examination could lead to any other conclusion.

[9] In finding that access would not be in the children’s best interests, McGee J. held:

[78] The access notes do show that visits are generally enjoyable for the children. But it is not the degree of pleasantry that is to be measured. Children need a secure and positive attachment to a parent who is able to read his or her cues and respond appropriately. Children need a parent who can place his or her interests ahead of any adult concerns, and who can stay focussed on their needs during the periods of access. Only then does the relationship rise to the level of being beneficial and meaningful as defined in the case law.

[79] In law, security of placement is of the upmost importance. There is no issue that J.T.M. and A.T.M. are adoptable. For the parents to meet their onus with respect to the two-part test in subsection 59(2.1) of the CLRA, each would need to demonstrate that ongoing access would be so beneficial and meaningful that it would supersede the benefits of a permanent placement within a forever family. I cannot so find.

[10] This decision was not appealed.

[11] In his 2017 decision three years later (also with respect to two children), Bennett J. noted the similarities between the evidence in the case before him and McGee J.’s decision:

[13] Similarities are noted between the issues involving the subject children and the decision of Justice McGee with respect to the other two children that include the respondent mother concealing her pregnancy with respect to the second oldest child and giving birth to him at home. In addition, the respondent mother and respondent father denied the respondent mother's pregnancy with the third oldest child which only became apparent as a result of the respondent father being charged with assault in August 20I2.

[14] In addition, soon after that child's birth, the Society suspected that the respondent mother was once again pregnant but both parents denied that pregnancy until the birth of the fourth oldest child.

[15] It was found by Justice McGee, with respect to the two other children, that the Society had repeatedly worked with the family to educate the parents on infant care but that the parents failed to make any positive gains and that the parents failed to demonstrate any significant improvement in their care with respect to those two children.

[12] Bennett J. added:

[49] A finding in need of protection relates to the circumstances existing at the time of the apprehension. The respondents attempted to conceal each of these pregnancies from the Society. With respect to the older child, the pregnancy only came to light as a result of criminal charges against the respondent father. With respect to the youngest child, the pregnancy was concealed, albeit suspected, from the Society until the child's birth. Each of these concealments resulted in the children not being afforded the opportunity of pre-natal care…

[51] The respondent parents must put their best case forward on a motion for summary judgment. The case must rest on more than mere denials or a heartfelt desire to resume care of the child or children. There must be clear evidence that a parent faces better prospects than what existed at the time of apprehension and the parent has developed some new ability as a parent. CAS of Toronto v. RH, 2000 O.J No. 5853.

[52] Since apprehension, until the charges of assault against the respondent mother on September 21,2077, the respondents have regularly exercised access to the children. As indicated earlier, there have been no major issues with respect to those access visits. The court notes however that the access has been supervised and that the parents' involvement with the children has been limited.

[53] Based on the history set out in this Decision relating to the Society involvement with respect to the parties four older children, and combined with the recent issues including the fact that the parents have, as recently as less than one week ago breached the non-contact Order outstanding, the court is satisfied that the parents have not made any improvements that satisfy the court that the children can be protected through a supervision order.

[54] On a motion for summary judgment, the onus lies on the Society to demonstrate that there is no genuine issue requiring a trial. The court finds that the Society has met the onus. The present circumstances do not show any lesser risk to the children than those that existed at the time of the apprehension.

[55] The court finds that there is simply no realistic possibility that the children can be returned to the care of their parents without placing them at considerable risk of harm. Neither does this court see how viva voce evidence at trial nor cross-examination could lead to any other conclusion. Therefore, there will be an Order to go making A.T.M. and M.A.T.M. Crown wards to be placed in the care of the Society.

[13] This decision to place the children in extended care with no access to the parents was not appealed.

[14] The Society was involved with both these summary judgment motions (as it has been with respect to a later motion heard by Himel J. in 2020 and now, this court). At some point in time after the decision of Bennett J, the parents moved out of the Society’s catchment area to an area operated by the Children’s Aid Society for the Districts of Nipissing and Parry Sound. Another child was born and apprehended. A summary judgment motion was brought by that agency. Oldham J. noted the circumstances relating to the newborn child’s apprehension: The respondents originally lived in York Region but left that jurisdiction when [the child] was born. The Parry Sound CAS was contacted by the York CAS when they were unable to locate the respondents in their home in Keswick and when notified by the landlord that they had moved out… [T]he respondents were tracked and located in Parry Sound. The historical concerns included concerns of domestic violence, hygiene, home environment, mental health issues and substance abuse. The respondents were located in the campground, in a trailer with an infant baby. The trailer was dark, messy, and cluttered and the mother had given birth in her home in York and had not received any prenatal care. The baby was apprehended and taken to the hospital to be observed by the doctor. There were no medical concerns noted. The society tried to work with the parents during the period of the supervision… during the period of supervision and in that period leading up to the final order of Justice Mathias McDonald on September 18th, 2018. During that period of time, the parents continued to struggle with transiency, living in a trailer then moving to a gravel pit by Kearney and eventually returning to the Keswick area and obtaining a room in a hotel sometime around January of 2019. Neither parent has engaged in any of the counselling or parenting courses to address the society's concerns in respect to their lack of ability to parent, and to make good decisions, and to address any of the mental health issues which have been identified historically. The society also raised concerns about adult conflict, lack of medical care for the child and no steps were taken to address these issues.

[15] Oldham J. also noted the parents’ history: There is a significant history as I noted with this particular family. The issues historically included lack of parenting ability, lack of stable housing, mental health issues, and there has been a history with the mom in particular of Cerebral Palsy, mild mental retardation, seizures, borderline personality disorder. There is a lack of follow through with medical care for the child and the siblings of the children and domestic violence and conflict. These concerns were also present in the case of [the child]. The society when leaving with the parents confirmed parenting concerns which included not only that history, but also evidence of poor decision making in that there was no prenatal care, there was (sic) efforts to conceal the pregnancy and no follow up planning for the child once they were identified and located by the CAS… There is no doubt a genuine desire on the part of these parents to parent a child. However, as indicated before, the litigation process cannot be utilised as a means to buy time to build up that rapport of skills and, in this particular case, the focus has to become permanency planning for the child.

[16] Extended care with no access to the parents was ordered. This decision was not appealed.

[17] During the proceedings before Oldham J. the parents returned to the Society’s catchment area. Two more children were born and taken into care. The Society’s position about the parents’ ability to care for a child was unchanged from the 2014 and 2017 proceedings. In finding that the children could not be returned to the parents’ care, Himel J. concluded:

[66] I find that the same problems that have plagued the parents in the past, and that have led to three summary judgment motions in favour of crown wardship/extended care, continue to interfere with the parents’ ability to protect and care for the children.

[67] As stated by Spence J. in P.F. v. A.W., [2016] O.J. No. 158:

“Absent evidence of a change in attitude, or therapy to address past bad behaviour, the best way to predict how a person will behave in the future is to examine past conduct. As Justice W.L. MacPherson stated in CAS v. C.T., 2015 ONSC 32: The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents”.

[68] The parents have yet to address the concerns as demonstrated by their failure to engage in counselling and appropriate medical supervision. [The mother’s] mental health is not stable. Her volatile and unpredictable behaviour places the children at risk of emotional and physical harm. The parents do not have the necessary parenting skills or insight to parent children, as evidenced by the challenges they face in the access visits and the statements they make to the workers. Caring for the children by following a schedule respecting feeding and changing diapers, walking and playing is not sufficient evidence that the parents can meet the children’s developmental needs.

[69] The refusal to engage in a working relationship with the Society or to admit when [the mother] is pregnant places the unborn child (and mother) at grave risk of harm, as does the decision to give birth at home (particularly since it is unhygienic, and she gives birth without medical support). [The father] may have strengths that could mitigate risk but he is not acting in a protective way, such that any potential benefits are lost. The parents have insufficient community and family/friend support networks to provide the degree of assistance that they would require or to provide alternate care as needed.

[70] The decision to blame [the father’s] adult child and the Society for the problems faced by the parents is evidence of their inability to appreciate the concerns and the risks. An inability to acknowledge challenges continues to present a significant obstacle to the parents’ willingness and ability to address same.

[18] As for access, Himel J. echoed McGee J.:

[83] As McGee J. noted in her 2014 reasons, and I reiterate today, the access notes provide that there are some memorable moments between the parents and the children. Generally speaking they attend regularly and on-time. However, the access notes and the evidence provided by the Family Visit Support Coaches (AM and AW) describe many incidents that are best characterized by [the mother’s] verbal outbursts, complaints about the children’s care and some forceful contact.

[84] While the McGee J. reasons review the issue of access pursuant to the Child and Family Services Act rather than the Act, the findings made on the summary judgment motion respecting the parents’ access visits hold true today.

[19] Extended care with no access to the parents was ordered. This decision was not appealed.

Relevant evidence

[20] Relevant to the relief sought in this motion are the following facts and unchallenged evidence:

(a) In March 2021 the Society was informed by the father’s counsel that the mother was pregnant and that the parents wanted to discuss matters with the Society; (b) Pre-natal and other support services were recommended by the Society; (c) FSW O’Malley gave the mother a chart setting out what was expected of them; (d) AGM was apprehended shortly after he was discharged from hospital nine days after his birth. He had multiple medical complications and was closely supervised; (e) The parents were asked to complete the paperwork at the hospital to register for the child’s birth certificate but did not do so; (f) Supervised visits at the parent’s home were arranged three times weekly; (g) In March 2022, AGM had a visit with his siblings C-A M and R-A M who were also in Society care; (h) The parents struggled with preparing AGM’s meals and feeding him. They deferred to the foster parents to provide meals for access visits; (i) The parents were invited by the Society to attend, in-person or virtually, an April 11, 2022, family outcome meeting. This is a meeting where everyone involved with the child’s care meets to review the child’s progress, strengths and needs. The parents did not attend; (j) Although the child was meeting his developmental milestones (June 2022) he was medically assessed for food sensitivities and motor/movement concerns. The parents disagreed with the food sensitivity diagnosis, would often ignore the specifically-prepared meals for AGM and took him to fast food outlets instead; (k) Dietary recommendations were made and provided to the parents. They struggled to follow them; (l) A Parenting Capacity Assessment was completed on October 22, 2022, and its contents reviewed with the parents. Ms. O’Malley’s chart earlier provided to the parents was also reviewed again because several of its contents overlapped the PCA’s observations and concerns; (m) In late November 2022 the parents were served with an eviction notice from the owner of the motel in which they had been renting an apartment. There were issues too with other tenants and the condition of the property. Apparently, the owner wished to renovate the premises. On March 22, 2023, the mother reconfirmed that she and the father had to vacate their unit in the near future. Neither parent’s affidavit addressed this concern where they would live. Their Plans of Care inconsistently proposed that they continue to live in their rental unit; (n) The parent’s proposed to move to Sudbury Ontario. A kinship provider (the mother’s father) was proposed and a kinship assessment begun but never concluded. The parents provided multiple moving dates but never followed though with their plans or Society recommendations for them to connect with support services in the Sudbury area; (o) AGM was assessed for speech and language delays in December 2022 (there was a family history of speech and language delays). Recommendations included that his caregivers attend a workshop to develop caregiving skills to meet the child’s needs. The parents declined to attend because they disagreed that such services were needed; (p) During the December 15, 2022 to February 16, 2023 period the Society worker (Morrison) tried to connect and explore services with the parents in York Region but the parents refused to engage in services. An opportunity was offered to participate in virtual training to support AGM’s language development, but the parents declined to participate; (q) A decision was made in early February 2023 by the Society to terminate Family Intervention Team involvement after about eighteen months because the parents dismissed FIT recommendations, failed to follow through with care suggestions, often blamed other persons for the Society’s involvement and were unwilling to engage in recommended community services; (r) The mother struggled to maintain her medication regime. Shortly after a court hearing on February 9, 2023, she threatened suicide and ran away from the premises shared with the father, eventually to return; (s) The mother concealed her pregnancy with RTM from the Society and others involved in AGM’s care. Despite repeatedly being asked whether she was pregnant in the months before RTM was born the mother denied that she was pregnant. When asked, shortly before the birth, whether the mother was pregnant, the father said he was “not sure about that.”; (t) The mother did not obtain any prenatal care before RTM was born and had not contacted the local hospital or a doctor after the birth. The Society became aware of the birth on February 27, 2023, when the father’s lawyer informed the Society that RTM had been born six days earlier at home without medical assistance. The child was apprehended that evening; (u) The notes of the workers directly involved with the family consistently reported concerns about the mother’s inability to manage her anger, the father’s passivity, conflict between the parents, the parents’ struggles with feeding AGM and appropriately responding to his cues and their refusal to consider or follow Society suggestions about third-party services, including therapies recommended for AGM by medical professionals; (v) As with previous children, the parents repeatedly lied to the Society that the mother was pregnant with RTM. They consistently rejected Society advice and failed to follow-up recommendations made to help them improve their parenting abilities.

Summary Judgment

[21] A Summary Judgment motion can fulfill two very important objectives in child protection proceedings. It enables the court to make an expeditious, less expensive and proportionate disposition of a case and provides closure and direction to the children involved and their parents.

[22] The procedure governing a motion for summary judgment is set out in Rule 16 of the FLR, the relevant provisions of which provide as follows:

RULE 16: SUMMARY JUDGMENT WHEN AVAILABLE

16. (l) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment

for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (l).

EVIDENCE REQUIRED (4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE (5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS (6. l) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[23] As stated by the Supreme Court of Canada in Hyrniak v. Maudlin, 2014 SCC 7,

To succeed on a summary judgment motion, an applicant must prove that there is no genuine issue for trial on a balance of probabilities. “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”.

[24] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the Ontario Court of Appeal affirmed the longstanding cautious approach to summary judgment in child protection proceedings and summarized its guiding principles,

80. To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

81. 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.

82. 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.

83. 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.

84. 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.

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

[25] A two-step analysis is required. The judge must first determine if there is a genuine issue requiring a trial on the evidence without using the additional fact-finding powers set out in Rule 16(6.1) of the FLR. If, after this initial determination, there remains a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required. These powers involve the weighing of evidence, evaluating credibility, drawing inferences and possibly receiving oral evidence on the motion. The use of these powers is discretionary.

Best interests of child

[26] Overarching the court’s assessment of the evidence is the matter of the children’s best interests. Section 74(3) of the Act requires the court to prioritize those interests and mandates that the court shall,

(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.

[27] The children’s best interests must also be considered in the context of the relief claimed by the Society. The Society has requested Orders pursuant to sections 101(1) and (3), 104(1) to (4) and 105(5), (6) and (7) of the Act which provide as follows:

101. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests.

(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

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.

(2) Where a child is in a society’s care and custody or supervision, the following may apply to the court at any time for an order under subsection (1):

1. The child.

2. Any other person, including a sibling of the child and, in the case of a First Nations, Inuk or Métis child, a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

3. The society.

(3) An applicant referred to in paragraph 2 of subsection (2) shall give notice of the application to the society.

(4) A society making or receiving an application under subsection (2) shall give notice of the application to,

(a) the child, subject to subsections 79 (4) and (5) (notice to child);

(b) the child’s parent;

(c) the person caring for the child at the time of the application; and

(d) in the case of a First Nations, Inuk or Métis child, the persons described in clauses (a), (b) and (c) and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

105. (5) A court shall not make or vary an access order under section

104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

(7) Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the court shall specify,

(a) every person who has been granted a right of access; and

(b) every person with respect to whom access has been granted.

Discussion

[28] In what Mr. Couto described as a “fresh look” or approach to the Society’s serial involvement with these parties, in-house (supervised) access with AGM for twelve hours a week was arranged and a Parenting Assessment (“the Assessment”) was undertaken. The Assessment acknowledged the Society’s concerns about the parents’ childcare challenges, noted that the parents could provide basic care and promote his development but cautioned that the “two primary areas of concern are the mother’s mental health issues and behavioural instability, and her frequent refusal to recognize the need for and accept help for personal and parenting issues”. The Assessment identified the parents’ numerous strengths and areas needing improvement.

[29] The Assessment recommended the Society’s continued involvement with the parents contingent, in particular, on the mother’s commitment to undertake certain therapies (dealing with stress, anger and emotional regulation), obtaining psychiatric support, behavioural therapy (parenting skills, anger management and coping skills) as part of a plan for reunification and, finally, that if AGM was permanently removed from his parents’ care, efforts be made to allow the parents to have an ongoing relationship with him. The authors of the Assessment were provided with the Document Brief from the 2020 proceedings before Himel J., the initial pleadings, access supervision notes and medical records from the local hospital where AGM was born. The parents were interviewed outside the home on two consecutive days and a six-hour home observation was conducted by Ms. Ng the day after.

[30] Despite the Assessment’s favourable, but qualified, recommendations, the parents either ignored or dismissed them.

Chart (Recommendation #1)

[31] The assessors recommended that “the parents need to know precisely what actions they must take to get AGM back. A chart may help. Currently, they may not realize that their approach is counter-productive to his return.” The report was shared with the parents and their counsel shortly after its release.

[32] FSW Morrison attended the parents’ residence on October 27, 2022, and she arranged with them to later review a chart of the Society’s expectations of them that had been prepared by her predecessor Ms. O’Malley and the Assessment. This was done on November 2, 2022. She was accompanied by FIT worker Manning. Among other things, Ms. Morrison reviewed the recommendations page from the Assessment and the O’Malley chart. The review outlined the Society’s concerns, discussed recommendations being made and listed community service providers. Recommendations in the chart overlapped with recommendations in the Assessment. Ms. Morrison continued to meet with the parents regularly (December 1, 2022; January 10, February 24, March 2, 15 and April 12 and 25, 2023): these meetings were in addition to telephone contacts. Ms. Morrison advised and followed up with the parents on what was expected of them from the assessors’ recommendations and the chart.

[33] In his affidavit, GM swore that “unlike other workers, Ms. Morrison was more objective and listened to our concerns and our questions.” She was “the most understanding worker we have had”. According to Ms. Morrison, when she asked the mother on April 25, 2023, whether she still had the chart and the Assessment recommendations, the mother told her that the father had thrown out the chart and that she felt it was “written in code”. Neither the mother nor the father disputed this evidence.

Therapies (Recommendations #2 and #3)

[34] In her affidavit, Ms. Morrison summarized her efforts to help the mother obtain therapeutic services, none of which the mother pursued. On January 20, 2023, Ms. Morrison informed the mother that she had found a counsellor who provided the therapies recommended by the Assessment. In expletive language, the mother said she would not attend therapy. Neither parent has disputed this evidence. The mother’s affidavit is otherwise silent on the issue.

Psychiatric help (Recommendation #4)

[35] The Assessment recommended that the mother consult a psychiatrist, preferably one with experience dealing with mental health issues in persons with learning disabilities. The mother acknowledged her understanding of this recommendation and that she had been diagnosed with bipolar disorder and been prescribed medications for that and for cerebral palsy. She swore that her “mental health and seizure issues have been properly addressed.” She referred to a pre-Assessment medical note from her family physician (Dr. Lynagh) dated June 9, 2022, as evidence of her improved health and stability but the note states that “she has not been the most reliable and consistent person for ongoing health concerns regarding her seizure disorder…[C]hild protection concerns… would be best addressed by children’s aid society”. A referral was made to a local psychiatrist (Dr. Gill) to assess the mother’s bipolar status. In a note to Dr. Lynagh dated May 6, 2022, Dr. Gill declined to complete the assessment because he was misled about its real purpose:

Contrary to the information provided, [the mother] stated she was only here because she was being mandated by Children's Aid Society (CAS) to get a psychiatric assessment completed or she would not be able to get custody of her nine month old child. She stated CAS had told her to go see her family physician to request a psychiatric assessment be completed for their own purposes; she stated she disclosed this information to Dr. Niall Lynagh at the time this referral was made. There was no mention of this Information on the referral form sent to this psychiatrist.

This referral was only approved based on the Information provided on Dr. Lynagh's referral form; it was not approved (and in fact would have been declined by myself if I had been made aware in advance) for the purposes of answering any of CAS's questions (with the context suggesting this was the sole reason for requesting this assessment which is inappropriate given the lack of transparency as illustrated above).

[The mother] stated she had no mental health concerns at this time. She denied any current issues with mood, anxiety, or other mental health-related symptoms. She states that apart from the ongoing disputes with CAS, she was doing quite well.

[The mother] was advised that given the circumstances this psychiatric consultation is not appropriate and should not be used for CAS, court, legal, or other forensic purposes…

[36] The mother knew about the expectation of future psychiatric treatment in October 2022. In November 2022 she advised Ms. Morrison that she didn’t want to work with a psychiatrist. Notwithstanding this statement, she was reminded by Ms. Morrison about the Society’s expectations on December 23, 2022, and again on March 2, 2023. The mother disputes none of this evidence. In her affidavit the mother swore that she had recently consulted a psychiatrist less than four weeks before this motion was heard who, according to the mother, confirmed her “current medication and advised that I did not need any more counselling.” This evidence is hearsay. There is no evidence about when this practitioner was contacted and nothing about assessing the mother’s mental health status. No psychiatrist’s note or report was tendered in evidence and no request by the parents made to adjourn to allow for properly admissible evidence from this practitioner to be tendered.

Parenting skills development (Recommendation #5)

[37] As noted, the Assessment recommended that the parents explore whether a local (named) hospital could work with them to develop parenting skills and teach the mother some anger management and coping strategies. This would be critical to any reunification plan (which is what the parents wanted). To address the parents’ trust issues with the Society the Assessment suggested that the parents might be more receptive to advice and training from professionals independent of the Society.

[38] Except for a reference to a 2017 parenting training class in which the mother participated and a 2019 couples counselling course for which the parents registered but didn’t complete, the mother’s affidavit is silent about any post-Assessment initiatives with respect to this recommendation. So is the father’s affidavit.

[39] During her December 1, 2022, home visit, FSW Morrison asked the parents whether they had contacted a “Parenting for Life” program earlier suggested by the Society to which the mother replied that “she didn’t feel like she needed to improve in any area of her parenting”. Follow up inquiries by the worker on December 23, 2022, January 20, 2023, and March 15, 2023, were either ignored or dismissed by the parents. With respect to the March 2023 home visit, the mother repeated that she “had gone to parenting programs in the past and that they didn’t help her get the children back.” Neither parent’s affidavit disputed this evidence.

Child development/Checklists and teaching strategies (Recommendations #6 and #7)

[40] The Assessment noted that while the parents had many skills, they needed more information on child development and could benefit from involvement of a FIT worker to assist their better understanding of child development and, assuming that the parents were receptive to more training, the worker could “cover handling childhood emergencies and first aid, home cleanliness and safety, praising appropriate behaviour (and reducing reprimands), and promoting [the child]’s language such as through speaking at his level, labelling, and asking questions, as he begins to talk”.

[41] FIT is an acronym for “Family Intervention Team”. FIT worker Manning, described the common goals of FIT to include helping caregivers develop:

(a) A stronger understanding of child development; (b) More effective parenting skills and behaviours; and (c) Stronger parent-child relationships.

[42] Except for a two-month period in early 2022, Ms. Manning was involved with the family for almost eighteen months, from shortly after AGM’s birth until February 16, 2023, when FIT involvement was ended. There were a total of 58 family visits; approximately 172 hours were spent working with the parents in their home, mostly with the mother as the father was rarely present due to his work schedule.

[43] As part of its Document Brief, the Society provided the workers’ 90-day therapeutic access notes (at least four workers, including Ms. Manning were involved). These notes detailed who attended the visit and what took place. Ms. Manning says that during FIT’s involvement “minimal progress was made by the parents…[m]y recommendations were often dismissed, suggestions were often not followed through on from one visit to the other, [the mother] often blamed other individuals for the Society’s involvement and the identified protection concerns, and the parents were not willing to engage in recommended community services.”

[44] Except for the mother alleging that she and the father don’t feel they have been supported by the Society, and that the Society gave up on them and hasn’t treated them fairly, the only reference in her affidavit to the evidence contained in the therapeutic notes is that they evidence her strong bond with the children and her ability to appropriately care for them. The mother’s affidavit does not address in any more informative or comprehensive fashion the observations and assessments made by the attending workers about (in particular) the mother’s ability to demonstrate a physically and emotionally safe environment, knowledge of child development, responding appropriately to the child’s verbal and non-verbal cues, prioritizing the child’s needs and empathy towards the child.

[45] The father’s evidence is that he is “not interested in working with the Society” and that it hasn’t even attempted “to focus on and help us develop the positive skills we do have.” Otherwise, the affidavit ignores the FIT evidence.

Disposition

[46] This proceeding represents the fifth summary judgment motion in less than a decade involving these parents and, now, eleven children. Over that time, well more than sixty Family Services, Family Intervention and Family Support workers have been involved (a few more than once), as well as two child protection agencies. There have been numerous referrals to specialists to deal with child development issues which were either not acknowledged or disregarded by the parents. There were numerous efforts by the Society to encourage the parents to engage in local community and related support services which the parents ignored-they made no effort of their own. In this case, there has been a total of at least fifty-eight family visits involving (at least) four workers over a period of one hundred and seventy-two hours (not including phone contacts): little progress was observed in the parents’ caregiving abilities. There have been two parenting capacity assessments. The first, in the 2014 proceedings (McGee J.), concluded that given the parents’ “history as a couple, there is no room to believe that they would be able to work together to combine their parenting strengths so that any children in their full time care and custody would not be at an unreasonable risk of harm”. The second (Dr. Feldman, Ms. Ng) in these proceedings mapped out a plan with therapeutic recommendations to help the parents develop the skills to safely and successfully parent, much with continued Society support, a plan that the parents either ignored or outright rejected by their subsequent behaviour.

[47] Little has changed in the parents’ behaviour and development of parenting skills in the last decade. The involvement of the child protection agencies and healthcare professionals involved with these parents in terms of time and resources during this period must be staggering.

[48] McGee J. observed in 2014 that a child “needs a secure and protective attachment to a parent who is able to read his or her cues appropriately…” and a parent who can place the child’s interests “ahead of any adult concerns, and who can stay focussed on their needs during periods of access”.

[49] Bennett J. found in 2017 that the well-being of children in the matter before him was jeopardized by the parent’s behaviour and that the parents had made no “improvements to satisfy the court that the children can be protected” even through a supervision Order.

[50] Oldham J. found in 2019 that the parents were unable to meet the child’s “physical, mental, emotional need and appropriate care to treatment of those needs.”

[51] Himel J. found in 2020 that the parents’ willingness and inability to appreciate Society concerns and risks to the children continued to be “extremely high.”

[52] As already noted, the parents repeatedly lied to the Society about the mother’s RTM pregnancy. They have taken no responsibility for their actions, or inactions as the case may be, despite Society encouragement and third-party professional advice. They point to the father’s eldest daughter as the original source of child protection involvement with them. Their complaints about lack of support from the Society are devoid of merit. The parents have learned nothing and forgotten everything. There is no merit to the parent’s’ Plan of Care.

[53] There is no need to proceed to the second step in the summary judgment analysis as there is no genuine issue warranting a trial in this case. Even if there was, this court would exercise its second step discretion and decline to order a trial. The evidence supporting the Society’s concerns is, quite simply, overwhelming and the parents’ responses inadequate and unpersuasive.

[54] Accordingly, pursuant to Rule 16 of the FLR and subsection 90(2) of the CYFSA, the following statutory findings and Orders are made:

(a) The children’s names and dates of birth are: i. AGM, born in 2021; ii. RTM, born in 2023; (b) The children AGM and RTM are not First Nations, Inuk or Metis; (c) AGM and RTM were removed from the parents’ care in the Regional Municipality of York, Ontario; (d) The children, AGM and RTM are found to be in need of protection pursuant to subsections 74(2)(b)(i), (b)(ii), and (h) of the CYFSA; (e) The children AGM and RTM shall be placed in the extended care of the Society pursuant to section 101(1)(3) of the CYFSA; (f) The parents, JB and GM, shall have no access to the children AGM and RTM pursuant to section 104 and 105(5) and (6) of the CYFSA; (g) The child, AGM, in 2021 (Access Holder), shall have access with RTM, born in 2023 (Access Recipient), at the discretion of the Society as to times, frequency, duration, location and supervision of said access. At minimum, AGM shall be permitted to send RTM cards and pictures every 4 months; (h) The child, RTM (Access Holder), shall have access with AGM, born in 2021 (Access Recipient), at the discretion of the Society as to times, frequency, duration, location, and supervision of said access. At minimum, RTM shall be permitted to send AGM cards and pictures every 4 months; (i) The children, AGM, born in 2021 (Access Holder) and RTM, born in 2023 (Access Holder), shall have access with C-AB, born in 2020 (Access Recipient) and R-ATB, born in 2019 (Access Recipient) at the discretion of the Society as to times, frequency, duration, location and supervision of said access. At minimum, AGM and RTM shall each be permitted to send C-AB and R-ATB cards and pictures every 4 months.

[55] Although Himel J. found that there was no genuine issue for trial respecting the parents’ request for sibling access between the children in that case and their two eldest siblings in the care of kin, she encouraged the Society to maintain some form of contact between the children and as many of their siblings as possible. That has been done with C-A M and R- A M with the children in this case and, like Himel J., this court encourages this approach. In his submissions for the Society, Mr. Couto indicated that the Society would act very circumspectly with respect to any future contact between the parents and AGM and RTM but given the continuing challenges presented by the parents no such contact is ordered even though AGM has some recognition of his parents. The children should be adopted together if possible.

Justice D.A. Jarvis Date: July 12, 2023