COURT FILE NO.: FC 21-00000052-0002 and 21-00000052-0003 DATE: 2023-01-30

SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N:

The Children’s Aid Society of the Niagara Region Jason Farrer, counsel for the Applicant Applicant

- and -

M.B., D.J. and J.S.J.M. Respondents Keith Newell, counsel for the Respondent M.B. Faizal Roy, counsel for the Respondent D.J. Respondent J.S.J.M. not present and not represented

HEARD: January 10, 2023

THE HONOURABLE JUSTICE M. BORDIN

REASONS FOR JUDGMENT

INTRODUCTION

[1] This is a status review application with respect to five-year-old A. and 17-month-old H.B.S.J.M. (“H.”).

[2] The Children’s Aid Society of the Niagara Region (the “Society”) moves for summary judgment for an order placing A. and H. in extended society care for the purpose of adoption without parental access.

[3] The Society filed eight lengthy and extensively repetitive affidavits from three different affiants. It would have been much more helpful if, rather than providing repetitive, rote, evidence of day-to-day events, the Society had provided evidence that more fully detailed its efforts to work with the parents and some evidence of the views and preferences of at least A., to the extent they were available, or more detailed evidence of the interactions between the children and the parents during access. The Society also filed two factums.

[4] M.B. is the mother of both A. and H. D.J. is A.’s father. J.S.J.M. is H.’s father.

[5] M.B. filed a brief affidavit and factum opposing the motion and appeared at the motion. D.J. did not personally appear at the motion and did not file an affidavit. He filed a factum and appeared through counsel and opposed the motion.

[6] On August 26, 2022, MacPherson J. made an order for substituted service on J.S.J.M. He did not file an answer or responding materials or appear for the motion personally or through counsel.

POSITION OF THE PARTIES

[7] The Society submits that this is an appropriate case for summary judgment. The Society seeks an order that A. be placed in extended society care without access to his biological parents, that there be access between A. and his sibling H. as arranged by the Society and supervised in its discretion where each child shall be an access holder and recipient.

[8] The Society seeks a similar order with respect to H.

[9] The Society says that the motion for summary judgment with respect to extended society care is supported primarily by:

a. The timelines in section 122 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”); b. The injuries to A. in January 2021; c. The inability of M.B. to find and maintain stable housing; d. The inability of D.J. to find and maintain stable housing and overcome his substance use issues; and e. The unwillingness of J.S.J.M. to engage with the Society and his complete lack of involvement with H.

[10] In submissions, M.B. said that she is not seeking the immediate return of the children to her. She submits that this is not an appropriate case for summary judgment and that the matter should proceed to trial where she will seek to establish that she can meet the needs of the children. She says that the Society has not met its burden for summary judgment and that there are triable issues with respect to the efforts of the Society to assist M.B., specifically with respect to assisting with the transfer of the children to Elliott Lake. M.B. says that the only evidence of why the children could not be transferred is hearsay evidence which ought not to be admitted on a summary judgment motion.

[11] D.J. asserts that it is in A.’s best interests that A. should be placed in his care under a supervision order. He also argues that this is not an appropriate case for summary judgment, in large part because the Society has not provided him with appropriate supports and meaningful assistance to address and mitigate the Society’s concerns. He also says that there are triable issues with respect to whether extended care is in the best interests of the children.

[12] The Society asks the court to take judicial notice that an access order would adversely impact the child’s chances for adoption. It is admitted that there is no evidence before the court on this issue. The Society says that it will call such evidence at a trial. M.B. and D.J. say that it is not appropriate to take judicial notice of such an alleged fact and that the absence of such evidence indicates that the Society has not met its burden on the motion for summary judgment to deny access to them.

ISSUES

[13] I must decide if, on the evidence before me and utilizing the tools afforded to me under the summary judgment rules and jurisprudence, there is no genuine issue for trial with respect to:

a. Firstly – whether the children are in need of continued protection; b. Secondly – if so, whether a court order is necessary to protect the children in the future and whether placement of the children in extended society care or the return of the children to their parents’ care is in the children’s best interests; c. Thirdly – whether the parents should be denied access to the children.

FACTUAL BACKGROUND

Prior orders: A.

[14] On February 2, 2021, Reid J. made a temporary order that pursuant to section 94(2)(d) of the CYFSA A. be placed in the temporary care and custody of the Society.

[15] On October 13, 2021, Scott J. made a final order finding that:

a. A. was born on [...], 2017; b. A. is not First Nations, Inuk, or Métis; c. A. was brought to a place of safety on January 29, 2021 at the city of St. Catharines; d. A. is in need of protection pursuant to sections 74(2) (a)(i) and 74(2)(b)(i) the CYFSA.

[16] A. was placed in interim society care for six months with access to his parents as arranged and supervised by the Society.

[17] Scott J.’s October 13, 2021 order is the order under review.

[18] Section 74(2)(a)(i) required a finding that A. had suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child.

[19] Section 74(2)(b)(i) required a finding that there was a risk that A. was likely to suffer physical harm inflicted by the person having charge of A. or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect A.

[20] As of the date of this hearing, A. has been in the Society’s care for 706 days, or 24 days short of two years since Reid J.’s order.

Prior orders: H.

[21] On August 9, 2021, Reid J. made a temporary order that pursuant to section 94(2) (d) of the CYFSA H. be placed in the temporary care and custody of the Society.

[22] On February 14, 2022, J. W. Scott J. made a final order finding that:

a. H. was born on [...], 2021; b. H. is not First Nations, Inuk, or Métis; c. H. was brought to a place of safety on August 5, 2021 at the city of St. Catharines; d. H. is in need of protection pursuant to sections 74(2) (b)(i) and 74(2)(h) of the CYFSA.

[23] H. was placed in interim society care for six months with access to M.B. as arranged and supervised by the Society.

[24] Scott J.’s February 14, 2022 order is the order under review.

[25] Section 74(2)(b)(i) required a finding that there was a risk that H. was likely to suffer physical harm inflicted by the person having charge of H. or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect H.

[26] Section 74(2)(h) required a finding that there was a risk that H. was likely to suffer emotional harm of the kind described in subclause 74(2)(f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the H’s parent or the person having charge of H.

[27] As of the date of this hearing, H. has been in the Society’s care for 519 days, or 17 months and 1 day since Reid J.’s order.

M.B.

[28] M.B. had a difficult childhood. She had a history with the Society as a child. Her father passed away from a drug overdose. Her mother lives in Northern Ontario and M.B. has minimal involvement with her. M.B. spent time in foster care and was primarily raised by her grandmother. She has a sister who lives in Elliott Lake with her two children. Her sister is not able to care for A. and H.

[29] M.B. and D.J. were in a relationship from 2017 to September 2020.

[30] M.B. was involved with the Society between April 2018 and July 2019, at which time she and D.J. moved to Elliott Lake and their file was transferred to the Algoma CAS. That file was closed in June 2020.

[31] Algoma CAS opened a new file in September 2020 due to partner conflict. It appears that charges were laid against M.B. and a no contact order made. It appears that subsequently D.J. was arrested for making threats against M.B. D.J. then relocated to Kapuskasing, Ontario. He withheld A. from M.B.’s care.

[32] In the fall of 2020, M.B. returned to St. Catharines where she shared an apartment with a friend. Between September 2020 and January 2021, M.B. had no in person contact with A., as he was in D.J.’s care.

[33] M.B. became involved with J.S.J.M. from late 2020 to early 2021. They lived together until approximately late March 2021.

[34] On January 12, 2021, M.B. contacted the Society to report D.J. had returned to the Niagara Region and reported that D.J. was exposing A. to substance use. The record indicates that, around this time, M.B. “took” A. from D.J. and that M.B. had not seen A. since the end of September 2020. The Society conducted a safety assessment at M.B.’s then residence and determined that A. was safe in M.B.’s care.

[35] Each of M.B. and D.J. made allegations against the other to the Society.

[36] Prior to January 27, 2021, the record does not indicate any concerns with M.B.’s parenting.

[37] On January 27, 2021, M.B. reported taking A. to hospital due to swelling in his pubic area and diaper rash. M.B. reported A. had diaper rash when he returned to her care and she noticed bruising in his genital area. The Society worker observed bruising in A.’s genital area and advised A. needed medical attention. M.B. was unable to explain the bruising. A Child Advocacy and Assessment Program ("CMP") assessment was completed by Dr. Elizabeth Nolan ("Dr. Nolan"). A safety plan was developed for A. to stay with Mr. and Ms. D. (A.’s maternal great grandparents) without M.B.

[38] Dr. Nolan advised that there was extensive bruising around the genital area. Dr. Nolan advised the bruising was suspicious and concerning and that significant force would have been required to cause the bruising. Dr. Nolan was not able to date the bruising.

[39] Mr. and Ms. D. advised they were unable to care for A. Due to the unexplained injuries, A. was brought to a place of safety on January 29, 2021.

[40] The Society opened a separate investigation file on January 29, 2021. The Society had concerns regarding M.B.’s supervision of A. due to the unexplained injury while in her care and it had concerns about D.J.’s transience and the allegations made regarding drug use. The Society asked D.J. to provide kinship information.

[41] A joint Society and Child Abuse investigation was conducted. M.B. was cooperative with the Society investigation into A.'s injuries. M.B. advised J.S.J.M. was present with A., but not unsupervised. J.S.J.M. refused to participate in the investigation. The investigation concluded that there was inflicted harm which likely occurred after A. returned to M.B.’s care, but the source of the harm was not confirmed or known.

[42] In February 2021, M.B. began living in a motel room. J.S.J.M. resided with her until approximately the end of March 2021. While they were together, there were concerns about domestic violence and J.S.J.M. who refused to work with the Society. The Society referred M.B. to counselling at Design for A New Tomorrow but M.B. did not consistently engage with the services. The Society assisted M.B. with an application for housing.

[43] M.B. continued to reside at the motel until early November 2021, except for a brief period in August 2021 where she and J.S.J.M. stayed with friends.

[44] Through to November 2021, M.B. had access to A. and remained consistent with her access, leading to her access being increased and unsupervised. By November 2021, M.B. had weekly access visits. There were no concerns regarding M.B.’s access.

[45] In early November 2021, M.B. moved to Elliott Lake and temporarily resided with her sister, J.B. Algoma CAS opened a file.

[46] After she moved to Elliott Lake, the Society set up virtual access visits twice a week for M.B.

[47] The Society inquired whether M.B. had maintained contact with Bethlehem Housing Support Services, with whom she had been working prior to moving to Elliott Lake. M.B. advised she had not maintained contact and expressed concerns with lack of income and employment.

[48] In January 2022, M.B. began attending therapy sessions.

[49] As of February 2022, the Society’s concerns were regarding M.B.’s housing issues, the environment in the home, and her relationship with J.S.J.M.

[50] In early March 2022, M.B. reported to the Society that J.S.J.M. had assaulted her.

[51] In March and April and, the evidence suggests, through to August 2022, M.B. was residing in a domestic violence shelter for women in Elliott Lake. During that time, she participated in counselling and various programs to develop skills for building confidence, healing arts, healthy relationships, and life skills.

[52] On June 28, 2022, the Society met virtually with M.B., the Algoma CAS worker, and domestic shelter support staff. M.B. was told that that there were no current options for placement for the children in Algoma Region. The option of M.B. moving back to Niagara Region was discussed.

[53] While M.B. was in Elliott Lake, it was difficult for the Society to see her interact with the children and to assess her ability to interact with the children.

[54] As the Society could not or did not transfer the children to Elliott Lake, M.B. returned to Niagara on September 2, 2022. Leading up to this transfer, the Society attempted to assist M.B. in finding shelter and encouraged her to connect with her Ontario Works worker regarding housing and shelter. Ontario Works was not able to assist.

[55] The Society made the arrangements for M.B.’s transportation to the Niagara Region and paid for a hotel for M.B. for one month with a plan that she transition to supportive housing. M.B. attempted to find shelter space.

[56] The Society worked with M.B. to arrange reunification counselling and face-to-face access visits supervised by the Society and continued to assist M.B. to try to find housing. The Society set up access for M.B. with the children.

[57] By October 4, 2022, M.B. had purchased a tent and was living behind the Ramada Hotel in Niagara Falls. The Society continued to assist M.B. to find housing and arranged for her to obtain a place at the YWCA. M.B. obtained accommodation there on October 20, 2022.

[58] By November 1, 2022, M.B. had left the shelter and was living behind the Ramada Hotel in a tent. She was pregnant, with her baby due on December 20, 2022. The Society continued to remain in contact with M.B. and facilitated access.

[59] In early December 2022, M.B. obtained a room at the Ritz Hotel in Niagara Falls. As a result, she has a room with a kitchenette with a fridge, microwave, and hot plate. She receives financial assistance from her grandmother. The room costs $350.00 per week. At the hearing, M.B. acknowledged that she supplements her income with funds from panhandling to pay for the hotel room.

[60] On December 20, 2022, M.B. gave birth to a baby boy. The Society brought the child to a place of safety on December 21, 2022.

[61] Prior to relocating to Elliott Lake in November 2021, M.B. had visits with the children once per week for two hours. There were no obvious concerns during these visits. When she relocated to Elliott Lake, the visits were changed to once-weekly virtual visits. She continued to attend these and there were no obvious concerns.

[62] M.B. has attended four reconciliation counselling sessions with A. on October 7, October 14, October 21, and December 16, 2022. M.B. and A. showed strong attachment and a healthy bond. M.B. also attended unsupervised access at the Society office on November 16, November 23, November 30, and December 14, 2022. No concerns were noted by the Society.

[63] M.B. had supervised access with H. on September 16 and 26, October 14 and 17 and November 16, 2022. She has had unsupervised access with H. weekly since November 2022. The Society expressed had no concerns about the interaction between M.B. and H.

[64] M.B. does not consume drugs or abuse alcohol. She has no criminal record. She says that she can meet A. and H.’s needs. She wants to live in Elliott Lake with the children where she will have the support of her sister. Alternatively, she says that she can care for A. and H. in Niagara where she lives in a hotel and will be applying for housing. She must “make one payment” and then her “name will be added to the list” for housing.

D.J.

[65] D.J. has a history with the Society as a child and as a parent. By September 2020, the Society became involved with D.J. again due to concerns regarding his mental health and partner conflict.

[66] During the relevant period, D.J. struggled with housing stability and was residing with various family and friends. The Society has also had concerns regarding D.J.’s substance misuse and his mental health management. The Society provided D.J. with community resources to utilize to support housing and address his addiction and mental health, and offered to support D.J. in connecting him with these supports. D.J. reported that he wanted to connect with these supports independently, however, there was limited progress made. D.J. self-identified that his housing was not suitable for a child.

[67] In October 2021, D.J. was encouraged to connect with mental health services, including the Family Counselling Centre ("FCC"). He did not follow through with this service.

[68] In late 2021, the Society followed up with D.J. about access to programming to initiate individual counselling with no success. D.J. did complete an intake with Community Addiction Services of Niagara (“CASON”) but did not attend his scheduled appointment. D.J. reported he began a methadone program but had difficulties getting to appointments and so was not consistent.

[69] As of February 2022, the Society remained concerned about D.J.’s lack of stable housing, transience, ongoing challenges with substance misuse, and that he had not connected with any addiction supports or attended treatment to address these concerns.

[70] On May 30, 2022, D.J. met with the Society and advised he had no fixed address and declined assistance from the Society in connecting to services. D.J. presented as being under the influence and he reported being connected to a methadone program but was not consistent. D.J. was encouraged to connect with CASON for support. D.J. inconsistently attended for access and was difficult to contact to confirm visits. He reported struggling with housing stability and substances including MDMA and fentanyl during this time.

[71] Through 2021, D.J. had access to A. but was inconsistent with his access, leading to several changes being made to his access arrangements and periods of time where he did not see A. for several consecutive weeks. However, when access occurred, the Society had no concerns.

[72] From June through August 2022, D.J.'s access with A. remained inconsistent. He sometimes missed access visits or was late for various reasons. He sometimes failed to communicate with the Society to confirm access visits. When visits did take place, he was observed to be affectionate and appropriate with A.

[73] In early August 2022, D.J. acknowledged to the Society that he was living with injection drug users at the time. He appeared under the influence. On September 19, 2022, D.J. advised the Society that he was homeless.

[74] The last contact the Society had with D.J. was September 22, 2022.

J.S.J.M.

[75] J.S.J.M. had significant Society involvement as a child. He was also involved with the criminal justice system at an early age. He was previously involved with Algoma CAS with respect to two of his children. There were concerns of substance use, unmanaged mental health, domestic violence, and neglect.

[76] There is evidence that J.S.J.M. has been involved in an on-again-off-again relationship with M.B. that has chronic concerns for domestic conflict. J.S.J.M. has also reported struggling with substance use.

[77] On March 5, 2021, J.S.J.M. did not attend a scheduled meeting with the Society to discuss protection concerns.

[78] On March 29, 2021, M.B. reported that J.S.J.M. had relocated to Elliott Lake, Ontario. On April 13, 2021, J.S.J.M. advised he planned to move to Quebec and not to return to the Niagara Region. J.S.J.M. did not speak with the Society again until June 25, 2021, at which time he stated he was unsure where he would be residing and was processing the passing of his parents.

[79] The Society has had very limited contact with J.S.J.M. The last telephone call was in August 2021, facilitated by M.B. There have been emails exchanged.

[80] In the second half of 2022, J.S.J.M. sent seven e-mails to his Society worker but did not provide contact information to speak with him or arrange access. There has been no contact since August 29, 2022.

[81] J.S.J.M. has had no access with H.

Kinship Options

[82] The affidavits filed by the Society detail the efforts of the Society to find kinship caregivers and placements.

[83] The Society had begun assessing J.B. as an alternate caregiver; however, she has intermittent involvement with Algoma CAS which impacted the assessment.

[84] Maternal cousin, S.L.R., was also contacted, but was unable to act as a kin caregiver.

[85] Mr. and Ms. D. were contacted and were not able or willing to put forward a plan to care for A. They were asked if they could provide names of other family members for the purpose of kinship but declined to do so and advised that no one in the family had indicated a desire to provide a plan for A.

[86] M.B. provided names for five other family members but advised she has no contact information for them and does not know where they live. Some attempts to locate the family members were made by the Society with no success. A maternal grandmother, N.D.’s name was provided by M.B. N.D. did not return attempts to be assessed.

[87] V.D., A.’s paternal grandmother advised she was not able to care for A.

[88] V.D. provided contact information for paternal relatives to consider for assessment. J.J., A.’s paternal grandfather, was not able to put forward a plan due to his accommodations and partner’s age.

[89] The Society contacted the paternal great-aunt, R.D., with respect to a kinship plan. It appears none was forthcoming.

[90] Paternal cousin, C.S., did not respond to attempts to contact her.

Needs of the Children

[91] During the Society's involvement with A., he has demonstrated problematic behaviours, including hitting, biting, throwing objects, or screaming. These behaviours have similarly been observed by A.'s school. He has been connected to in-school services and external supports with family physician Dr. de Wet and psychiatrist Dr. Savenkov.

[92] A. has been in three foster placements. He has been in his third placement since January 19, 2022. During that time, his behaviour has stabilized, although this has required dedicated assistance. A. has been diagnosed with ADHD and is on medication.

[93] H. was born with Trisomy 21 and has required consistent medical support and intervention. He regularly attends appointments with doctors, specialists and at the Niagara Children’s Center where he is attended to by physio and speech therapists and social workers together with his foster parents. M.B. attended two of the appointments at the Niagara Children’s Centre. H.’s foster parents complete daily exercises with him with the assistance of equipment loaned by the Niagara Children’s Center.

[94] H. has been in the same foster home since his discharge from hospital on August 12, 2021, shortly after his birth. He is reported to be thriving there.

LAW

[95] As noted by Bale J. in CCAS v. I.B. et al., 2020 ONSC 5498, at paragraph 148, a court should be mindful of the following distinctive features of child protection matters generally:

1. The best interests, protection, and well-being of children takes precedence over all other considerations: Child Youth and Family Services Act, S.O. 2017, c.14, Sched. 1, s. 1 .(1);
2. The interests at stake in child protection proceedings are of the highest order – few state actions can have a more profound effect on the lives of both parent and child: New Brunswick (Minister of Health and Community Services) v. J.(J.), [1993] 3 S.C.R. 46 at para. 76;
3. Fairness demands recognition of the unique dynamics of the child protection litigant: women, particularly single mothers are disproportionately and particularly affected by child protection proceedings; parents are often poor, uneducated, or members of minority groups; and even when parents are represented by counsel, a power imbalance often exits: Kawartha-Haliburton Children’s Aid Society v. W.(M.), 2019 ONCA 316 at paras. 68-69.
4. The decisions made in child protection courts have life changing consequences for parents, families, and children. The court is conferred with the awesome power to permanently separate parents and children. Children are set on courses that potentially lead them to estrangement from their biological family. Parents are forever left grieving the loss of their offspring: Brant Family and Children’s Services v. A.H. and C.T., 2019 ONCJ 540 at para. 7.

Summary Judgment in Child Protection

[96] Rule 16 of the Family Law Rules, O. Reg. 114/99, allows a party to bring a motion for summary judgment for a final order without a trial on all or part of any claim after the respondent has served an answer or after the time for serving an answer has expired. Rule 16 specifically allows summary judgment motions in child protection proceedings. If there is no genuine issue requiring a trial on all or part of any application, the court shall make a final order accordingly.

[97] The party making the motion is required to serve an affidavit or other evidence that sets out specific facts showing there is no genuine issue requiring a trial. The responding party may not rest on mere allegations or denials but is required to set out, in an affidavit or other evidence, specific facts demonstrating that there is a genuine issue for trial. 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.

[98] Rule 16(6.1) provides as follows:

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.

[99] The court may, for the purposes of exercising any of the powers set out in rule 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[100] As set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paragraph 49, there will be no genuine issue requiring a trial when a judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process:

a. allows the judge to make the necessary findings of fact on the record before him; b. allows the judge to apply the law to the facts; and c. is a proportionate, more expeditious and less expensive means to achieve a just result.

[101] However, summary judgment in child protection proceedings should proceed with "exceptional caution." The Ontario Court of Appeal in Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32, at paragraphs 65-67 and 73-80 confirmed that child protection litigation engages the Charter rights of both parents and children and outlined the approach that courts should take to summary judgment in child protection proceedings:

a. 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. b. 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. c. 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. d. Judicial assistance must be provided for self-represented litigants. e. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[102] The cautious approach to summary judgment motions was reiterated by the Ontario Court of Appeal at paragraphs 50-52 of L.M. v. Peel Children's Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18. The Court of Appeal reiterated that:

[52] … As set out in Hryniak, at para. 49, "[t]here will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment." But the test must still be applied in context and sensitive to the particularly high stakes and Charter rights of parents and children implicated in child protection cases.

[103] The Court of Appeal in Kawartha at paragraphs 71-72 noted that following the release of Hryniak courts have taken Hryniak’s fairness principles and adapted them to the cautionary approach needed in child protection. The court referenced the descriptors of “no genuine issue for trial” in Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 212, at paragraphs 66-67:

[66] In assessing whether or not a society has met its obligation of showing there is no genuine issue requiring a trial, courts have equated that phrase with “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed”, and “where there is no realistic possibility of an outcome other than that sought by the applicant”.

and in F. v. Simcoe Muskoka Child, Youth & Family Services, 2017 ONSC 5402, at paragraphs 21-23:

[23] The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant”.

[104] As set out by Sherr J. in Children's Aid Society of Toronto v. S.A., 2013 ONCJ 367, at paragraphs 32 and 54:

[32] The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. See: Children’s Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (Ont. C.J.); Children’s Aid Society of the Regional Municipality of Waterloo v. H. (T.L.) 2005 ONCJ 194, [2005] O.J. No 2371 (Ont. C.J.).

[54] … [T]he legal test is not whether the parent will have an uphill struggle achieving success at trial, but whether or not there is a genuine issue for trial.

[105] To give rise to a genuine issue requiring a trial, there must be something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that the child faces some better prospect than what existed at the time of the Society’s removal of the child from the parent, and that the parent has developed some new ability as a parent: CAS of London and Middlesex v. A.(L.), CAS of Toronto v. H.(R.), Catholic Children’s Aid Society of Hamilton v. V.C. et al, 2017 ONSC 5557, at paragraph 61.

[106] In Children's Aid Society of Algoma v. L.P., [2002] O.J. No. 2895, at paragraphs 20-21, the court held that in determining whether a genuine issue requiring a trial exists, the court must consider the strict timelines governing the child protection procedure under the CYFSA and the best interests of the child. The paramount consideration is the best interests test which would include, among other factors, as certain a future as possible. However, since the court’s decision will have a permanent effect on both the child and the parents, the fairness of the procedure must not be sacrificed in the name of expediency.

CYFSA

[107] As set out in section 1 of the CYFSA, the paramount purpose of this Act is to promote the best interests, protection, and well-being of children.

[108] This section sets out additional purposes of the Act which may be taken into account so long as they are consistent with the paramount purpose. These additional purposes are to recognize, among other things, the requirement to support the autonomy and integrity of the family unit, to intervene in the least disruptive manner that is available and appropriate, to take into account a child’s various needs and characteristics, to provide services that build on the strengths of families wherever possible, and to provide services to First Nations families in a manner that recognizes their culture, heritage, traditions, connection to community, and the concept of extended family.

[109] As stated by the Court of Appeal for Ontario in Children’s Aid Society of Toronto v. V.L., 2012 ONCA 890, at paragraph 15: “[T]he court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.”

ANALYSIS

Is there a genuine issue as to whether the children are in continued need of protection?

[110] The court determines whether a child is "in need of protection" by applying the criteria in section 74(2) of the CYFSA.

[111] Section 74(2) of the CYFSA defines a child in need of protection as follows (in relevant part):

A child is in need of protection where,

(a) the child has suffered 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;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

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

[112] The court in Children’s Aid Society of Ottawa v. C.V., 2022 ONSC 5582, summarizes the nature of the harm giving rise to an ongoing need for protection:

[82] The Society has the onus, on a balance of probabilities, to establish that the child continues to be at risk of harm.

[83] The risk of harm under clause 74 (2) (b) of the CYFSA must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[84] A child can be at risk of harm even if the conduct is not specifically directed at the child. See: Catholic Children’s Aid Society of Metropolitan Toronto v. O(LM), aff’d on appeal . A risk of harm can include harm that is caused by neglect or an error in judgement. See: Children’s Aid Society of the Niagara Region v. TP, [2003] OJ No 412 (ONSC). A risk of physical harm can be founded upon a parent’s engagement in relationships with “unsavoury individuals” who caused physical harm. See: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6.

[85] In many child protection matters, the risk that is identified at the outset may change as the application progresses. The initial risk may be under control or resolved as the protection application proceeds. The risk may return or different risks appear. Multiple factors may be responsible to the creation of the risk. It all depends on the facts.

[113] Prior findings have been made that the children were in need of protection.

[114] A. has suffered physical harm, either inflicted by M.B. or caused by or resulting from M.B.’s failure to adequately care for, provide for, supervise, or protect A.

[115] M.B. has now had two years to address the safety concerns and find stable housing. She has not been able to do so. Her housing situation remains precarious. M.B.’s inability to explain the serious physical harm suffered by A. is concerning and suggests a lack of insight into the need to protect A. from harm.

[116] Given M.B.’s housing instability (as recent as November and December 2022 when she was on the verge of giving birth and living in a tent), current housing arrangement in a motel room, and that she needs to panhandle to pay for the hotel room, as well as the lack of a determination (or admission) about how the injury occurred to A., there is a real risk that both A. and H. are likely to suffer emotional harm of the kind described in subsections 74(2) (f) (i), (ii), (iii), (iv) or (v), and physical harm, if they are returned to M.B. at this time.

[117] Due to issues of housing and homelessness and substance misuse, there is an ongoing and real risk and likelihood that A. is at risk of harm if he is returned to D.J.’s care.

[118] There is no evidence that J.S.J.M. has had any involvement with H. or expressed any interest in being involved in H.’s life. J.S.J.M. has not participated in these proceedings. There is an ongoing and real risk and likelihood that H. would be at risk of harm if he would be returned to J.S.J.M.’s care.

[119] Even accepting all the evidence favourable to M.B., there is no genuine issue of material fact requiring a trial as to whether the children are in need of protection. Her heartfelt desire or belief that she can care for A. and H. is not enough. The Society has met its burden on the evidence tendered. I do not have to rely on inadmissible hearsay evidence to reach this conclusion.

Is there a genuine issue as to whether the order for extended society care is in the best interest of the children?

[120] Pursuant to section 101 of the CYFSA, where a court finds 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 (custody), in the child’s best interests:

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

[121] Section 101 further provides that in determining which order to make under subsection (1):

a. The court shall ask what efforts the society or another person or entity has made to assist the child before intervention under this Part (subsection 2); b. The court must be 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 (subsection 3); c. The court shall consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under with the consent of the relative or other person (subsection 4); and d. Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part (subsection 8).

[122] Section 100 of the CYFSA requires that before making an order, the court shall consider the Society’s written plan for the child including,

(a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection; (b) a statement of the criteria by which the society will determine when its care or supervision is no longer required; (c) an estimate of the time required to achieve the purpose of the society’s intervention; (d) where the society proposes to remove or has removed the child from a person’s care, (i) an explanation of why the child cannot be adequately protected while in the person’s care, and a description of any past efforts to do so, and (ii) a statement of what efforts, if any, are planned to maintain the child’s contact with the person; (e) where the society proposes to remove or has removed the child from a person’s care permanently, a description of the arrangements made or being made for the child’s long-term stable placement; and (f) a description of the arrangements made or being made to recognize the importance of the child’s culture and to preserve the child’s heritage, traditions and cultural identity.

[123] Considerations in determining what order to make were summarized by Madsen J. in Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744:

[81] The length of time a child has been in care is at all times a relevant consideration in determining placement. This must be viewed from the child’s perspective. Further, any decision to extend time should be based on something more than a parent’s heartfelt desire to resume care of a child. The parent(s) must face some better prospects than what existed at the time of the removal of the children from their care and the development of new ability as a parent. CCAS of Toronto v. O.(G.), 2014 ONCJ 523 at 87 and 88; Children’s Aid Society of Toronto v. S.(D.), 2009 CarswellOnt 6725 at 70, 71; Children’s Aid Society of Toronto v. H.(R.), 2000 CarswellOnt 6170.

[82] An Order for extended Society care, which permanently severs the legal relationship between parents and their children and profoundly reshapes any emotional and caregiving relationship, is an Order to be made only with the highest degree of caution, only on the basis of compelling evidence, and only after careful examination of possible alternative remedies. CAS of Hamilton v. M. (M.A.), 2003 CarswellOnt 1122. The court must assess the degree to which the risk concerns that existed at the time of the removal still exist, and those risks must be examined from the child’s perspective. CAS of Toronto v. M.(C.), [1994] 2 S.C.R. 165. See also CAS of Frontenac v. T.(C)., 2010 ONSC 3054 at 35.

[83] In determining whether an Order for extended Society care is required, consideration should be given to whether the Society has provided the parent an opportunity to parent. Where the Society frustrates contact and offers few or no services, this must be considered. More will be said about this below. Children and Family Services for York Region v. A.W. and M.M. 2003 CarswellOnt 936 at 22; CCAS v. M.(P.A.), 1998 CarswellOnt 3659; CAS of the United Counties of Stormount, Dundas and Glengarry v. K.(C.), 2001 CarswellOnt 219 at 18, 25.

[124] Here, there is an issue with the timelines in section 122 of the CYFSA. That section provides (in relevant part):

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

Calculation of time limit

(2) The time during which a child has been in a society’s care and custody pursuant to the following shall be counted in calculating the period referred to in subsection (1):

2. A temporary order made under clause 94(2)(d) (custody during adjournment).

Six-month extension

(5) Subject to paragraphs 2 and 4 of subsection 101(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so.

[125] The passing of the statutory timelines is not a sufficient basis upon which to grant summary judgment; delay cannot be the basis for diluting the evidentiary requirements on a motion for summary judgment or glossing over genuine triable issues: CCAS v. I.B., 2020 ONSC 5498, at paragraph 161, citing C.A.S. v. R. F. and V.C., 2019 ONSC 5224, at paragraph 60.

[126] A. has been in the Society’s care for longer than the statutory timelines under section 122 of the CYFSA. As such, prima facie and subject to other evidence, he cannot be ordered to remain in the interim care of the Society. Section 122 would require that A. be returned to M.B., with or without supervision, or an order for extended society care be made.

[127] H. is one month short of the statutory time limit. However, he is essentially in the same position. Were an extension for interim society care granted, it could only be granted for less than a month and another hearing would immediately have to take place. As a result, I am of the view that, pursuant to section 122, it is in the best interests of H. to make a determination at this time and that H. must either be returned to M.B., with or without supervision, or an order for extended society care must be made.

[128] The court determines whether the order for extended society care is in the "child's best interests" by applying the criteria in section 74(3) of the CYFSA.

[129] Section 74(3) of the CYFSA directs a court making or order or determination of the best interests of a child to (in relevant part):

(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; 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, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection. 2017, c. 14, Sched. 1, s. 74 (3).

[130] It is clear on the evidence that returning A. to D.J. and H. to J.S.J.M. is not appropriate and not in their best interest. The evidence is clear that D.J. has unstable housing, misuses substances, and has had limited contact with A. J.S.J.M. has had no contact with H. since immediately after his birth and has not appeared on the Society’s application.

[131] M.B. conceded at the hearing that she is not seeking the immediate return of the children to her. She seeks a trial where she will attempt to establish that she can meet the needs of the children.

[132] There is no evidence before the court of A.’s views and wishes.

[133] M.B. has had limited access to A. and H. There is no evidence before the court that she could adequately care and provide for them on an overnight basis, let alone a full-time basis. H. has special needs which must be addressed for his development and well-being. He must be taken to appointments. He needs a stable home where he can be assisted with physio and other developmental exercises. H. has never been in the care of M.B.

[134] The amount of time that has passed and its impact on both children is concerning. A. is five and a half years old. He has been in care for two years. Prior to this, he spent approximately six months in D.J.’s sole care. A. has now been in a stable foster home for a year. He is doing well, and his behaviour has improved.

[135] H. has been in the same foster home since days after his birth.

[136] The risk of homelessness is significant, and the impact of homelessness on these children would be devastating. The risk that gave rise to the protection concern was significant and has not been mitigated in any significant way.

[137] M.B.’s limited access to the children has gone well. I have no doubt that she desires to have them in her care. Unfortunately, this is not enough. M.B. is not in a position to care for the children and further delay is not in the best interests of the children.

[138] There are no suitable relatives, neighbours, or other members of the children’s community or extended family with whom they can be placed. No one has provided their consent.

[139] No viable less disruptive alternatives are adequate to protect A. and H.

[140] The Society filed a plan of care for A. dated February 16, 2022. It contains minimal details. It sets out that the Society seeks extended care without access for the purpose of adoption and that it will seek adoption and will make best efforts to place the child for adoption in an appropriate home.

[141] The Society filed a plan of care for H. dated June 1, 2022. It contains minimal details. It sets out that the Society seeks extended care without access for the purpose of adoption and that it will seek adoption and will make best efforts to place the child for adoption in an appropriate home.

[142] As noted above, the court must inquire what the Society has done to assist the child before intervention. Madsen J. in Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744, summarized the issues to be considered by the court in this determination:

[90] Courts have held that the Society’s duty to provide services to a family is a fundamental issue in determining whether or not the risk of return to the parent can be addressed or mitigated. If every available service is not provided, or not provided in a timely manner, then the parent has not been given a reasonable opportunity to engage in those services and the ability of the court to assess a parent’s ability to benefit from services is hampered. Children’s Aid Society of Toronto v. C.(L.)., 2016 ONCJ 432, Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113 at 155.

[91] Providing services to the family includes connecting parents with external resources as may be required, whether with respect to housing, mental health or addiction supports, parenting courses, courses or services to address intimate partner violence, for example.

[92] Service to families must also include making necessary adjustments to access over time, where appropriate. This can mean increasing the amount of access supervised by the Society, moving towards supervised pick up and drop off only, to unsupervised access with unscheduled visits by Society workers. Thus, in CCAS of Toronto v. R.M., 2017 ONCJ 784, Sherr J stated:

[77] It is imperative in this process that the initial access Order not stay frozen until trial, unless it would be unsafe for the child to change it. Families sometimes fail in the reunification process because no steps were ever taken to change the original access Order.

[78] The failure to change temporary access places a trial judge in a difficult predicament. The statutory time limit for a child to stay in Society care set out in subsection 70 (1) of the Act may have expired. This means that the child must either be made a crown ward or returned to a parent who might only have had supervised access for two hours once each week since the child was apprehended. Even if the access was positive, how can the judge confidently return the child to a parent if he or she does not even know that the parent can safely parent the child for a full day?

[79] In a constructive child protection case, access is constantly being re-evaluated. Where it can safely be done, access should be gradually increased. This not only improves the parent/child bond, but gives the court some basis to assess whether the parent is capable of parenting the child on a full-time basis. In child protection cases, full family reunification is often achieved one hour at a time.

[93] In CAS of Toronto v. R.B, 2020 ONCJ 113, Murray J. found the Society failed to discharge its duty to the mother under section 102(2) when it failed to properly explain family group conferencing; failed to assist her in locating resources; failed to assist in finding housing; failed to give recommendations about addiction aftercare programs; and, when it failed to increase and attempt unsupervised access so the mother could demonstrate her ability to parent for longer periods. See para 156.

[94] Murray J. noted that the CYFSA does not address what consequences should flow from a failure by the Society to properly assist. However, she considered that such failure might, in some cases, ground a decision to extend time to remain in interim Society care, under section 122, as discussed above. However, this must balance against the need for permanency planning and requires an assessment of whether, with such an extension, it can reasonably be expected that the remaining protection issues can be addressed, and, whether a transition from limited and highly structured supervised access can be successfully transitioned to a return home. In that case, despite her serious concerns with respect to the lack of assistance by the Society to the mother, Murray J. ordered that the children be placed in extended Society care. See paras. 157 - 173.

[143] Notwithstanding concerns the court may have about the efforts of the Society, the best interest of the child is the paramount consideration.

[144] M.B. says that there are triable issues with respect to the efforts of the Society to assist M.B., specifically with respect to assisting with the transfer of the children to M.B. in Elliott Lake. M.B. says that the only evidence of why this could not be done is hearsay evidence which ought not to be admitted in a summary judgment motion.

[145] M.B. objects to the hearsay evidence that Algoma CAS advised that it did not have placements for the children in Elliott Lake while M.B. resided there. M.B. was told this was the case in a meeting with the Society and Algoma CAS. She led no evidence to the contrary. The non-hearsay evidence from the Society is that the Society inquired about foster homes for the children in Elliott Lake. A couple of months later, M.B. moved back to the Niagara Region.

[146] The reality is that M.B. was not able to find stable housing in Elliott Lake. She was there for ten months. Much of the time she lived there, she lived in a type of shelter. She was in a shelter when she relocated to the Niagara area.

[147] The affidavits setting out the Society’s efforts to assist the children and parents could have been more fulsome and set out more clearly the Society’s efforts, especially given the amount of ink spilled on duplicative affidavits. However, there is sufficient evidence that the Society made many efforts to assist M.B. with housing, with access to the children, and with directing her to resources to assist her.

[148] D.J. asserts the Society has not provided him with appropriate supports and meaningful assistance to address and mitigate the Society’s concerns. The evidence indicates that D.J. was provided with such supports or opportunities, but D.J. appears not to have availed himself of those opportunities.

[149] Apart from the dispute over the evidence regarding a foster care placement for the children in Elliott Lake, no evidence was lead or arguments made about what supports or services should have been provided by the Society but were not.

[150] Given the concerns expressed above with respect to the children and their ongoing need for protection, I find that there is no genuine issue requiring a trial as to whether the Society provided sufficient assistance to D.J. and M.B.

[151] I conclude that, on these facts, ongoing society care is in the best interest of the children. As a result of the timeline in section 122, the admissible evidence and factors outlined about, I conclude that the children must be placed in extended society care.

[152] There are no other viable options available to these children. There is no genuine issue requiring a trial with respect to whether extended society care is in their best interest.

Is there a genuine issue for trial as to the no access order sought by the Society?

[153] Pursuant to section 104 of the CYFSA, the court may, in the child’s best interests 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.

[154] Pursuant to section 105 of the CYFSA, the court shall not make or vary an access order under section 104 with respect to a child who is in extended society care unless the court is satisfied that the order would be in the child's best interests. The court shall consider, as part of its determination of whether an access order would be in the child's best interests:

(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.

[155] In Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, at paragraph 49, the Court of Appeal discussed the burden with respect to access:

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access.

[156] The Court of Appeal in L.M. v. Peel Children's Aid Society, 2019 ONCA 841 also addressed the burden on this issue in paragraph 72:

Third, the appeal judge erred in law by placing an onus on the appellant to establish that there was a genuine issue requiring a trial as to whether there should be an access order. This court in Kawartha clarified that the burden of proof remains on the Society as the moving party for summary judgment. Even if the appellant's evidence did 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": at para. 80.

[157] In Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, 151 O.R. (3d) 320, the Ontario Court of Appeal held that there is no longer a presumption against access for children placed in extended society care.

[158] Principles applicable to determination of access were summarized by the court in CCAS v. I.B. et al., 2020 ONSC 5498, at paragraphs 169 and 170:

[169] The new trilogy of cases recently decided by the Ontario Court of Appeal have stressed and articulated these important changes to the access regime under the new legislation: Kawartha-Haliburton Children’s Aid Society v. W.(M.), 2019 ONCA 316, [2019] O.J. No. 2029, L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, and Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415. Specifically:

a. There is no longer a presumption against access for children in extended society care; b. There is no burden on the person seeking access to demonstrate that their relationship to the child is beneficial and meaningful and that their access to the child will not impair a child’s future adoption opportunities; c. The court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of the assessment and only where relevant; d. Children are individuals with rights to be respected and voices to be heard in such proceedings; e. Specific consideration of sibling access should be promoted; f. The special considerations that apply to Indigenous children must be part of every access decision involving Indigenous children; g. The court must delicately weigh and balance a number of factors: past, present, and future in determining access.

[170] Characteristics or features of potential access parents which may be found to impair a child’s future opportunities include:

a. Parents who demonstrate confrontational attributes, including difficulty with aggression, anger or impulse control, as this may threaten the physical or emotional security of adoptive parents and their family; b. Parents who demonstrate lack of support for an alternate caregiver, including relentless criticism, as they may undermine an adoptive placement and the child’s sense of security in the adoptive family; c. Parents who demonstrate dishonesty and secrecy or who otherwise cannot be trusted to comply with the terms of court orders or accurately report important issues about the child; d. Parents who demonstrate a propensity to be litigious or an inability to accept a reduced role in a child’s life may complicate adoption proceedings by engaging in openness litigation: Children’s Aid Society of Toronto v. A. F., 2015 ONCJ 678 (at paras 166-169); and e. Parents with mental health conditions, substance abuse issues, transience or chaotic lifestyle may be difficult to deal with and may complicate arrangements for access or contact: Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631 at para. 132.

[159] As noted above, the Society asks the court to take judicial notice that an access order would adversely impact the child’s chances for adoption. The Society admits that there is no evidence before the court on this issue. The Society says that it will call such evidence at a trial.

[160] It is not appropriate to take judicial notice of the alleged adverse impacts of access on adoption. The Court of Appeal for Ontario made this clear in in L.M. v. Peel Children's Aid Society, 2019 ONCA 841, at paragraphs 73-75 and 78. The court went on to say:

[77] [T]he evidence on the motion did not suggest that access would undermine the prospects for the adoption of these particular children. It merely suggested that one of the key factors in determining whether post-adoption face-to-face contact is appropriate is whether the birth parent will undermine the adoptive placement. In this case, there was no evidence that the appellant would undermine an adoptive placement and, to the contrary, she had good relations with the children's foster parents and the Peel CAS personnel. Even if face-to-face access were inappropriate – and I make no such determination – the court must still consider all forms of access, ranging from regular face-to-face access to an exchange of gifts, cards, and letters that may be vetted by the children's caregivers for appropriateness.

[161] In Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, at paragraph 49, the Court of Appeal noted that under the current CYFSA, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in his overall best interests. As seen from section 74(3) of the CYFSA above, the best interests analysis is comprehensive.

[162] On this ground alone, the Society has not established that there is no genuine issue for trial with respect to access.

[163] As noted, under section 105(5) of the CYFSA, the best interests of the children govern the analysis as to access.

[164] A mother who is not able to adequately provide primary care may still have a meaningful and beneficial relationship with her children such that access is warranted. The Society has not led any evidence to support the assertion that there should be no access. The evidence tendered by the Society indicates that the access M.B. has had with the children has been appropriate and positive and that there were no concerns with the access.

[165] There is insufficient evidence with respect to whether continued access between the children and M.B. is the best interests of the children or to assess the nature of any access that may be appropriate. M.B.’s positive interaction with children in her visits suggests that access might be appropriate. However, this is a matter which must be determined following a trial on the issue of access.

[166] There is also a genuine issue requiring trial with respect to D.J.’s access to A. The evidence of the visits which have taken place between D.J. and A. indicate that the visits were positive. While D.J. has not had contact with the Society and A. since August 2022, the issue of access is best left to be determined at trial.

[167] There is no genuine issue requiring a trial with respect to the request for a no-access order for J.S.J.M. He has had no contact with H. The order will be granted.

SUMMARY

[168] For the above reasons, I make the following orders:

a. A. shall be placed in extended society care of the Children’s Aid Society of the Niagara Region; b. H. shall be placed in extended society care Children’s Aid Society of the Niagara Region; c. There shall be access between A. and his sibling H. as arranged by the Children’s Aid Society of the Niagara Region and supervised in its discretion. Each of A. and H. shall be an access holder and access recipient; d. J.S.J.M. shall have no access to H.; e. The issue of whether M.B. shall have access to A. and H. and the nature of that access, if any, shall proceed to trial; and f. The issue of whether D.J. shall have access to A. and the nature of that access, if any, shall proceed to trial.

M. Bordin, J. Released: 2023-01-30