Court File and Parties

COURT FILE NO.: FC-23-281 DATE: 20240301 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Simcoe Muskoka Child, Youth and Family Services Applicant

– and –

L.Z. Respondent

COUNSEL: Carolyn Gilchrist, for the Applicant unrepresented Jillian Bowman, for the Office of the Children’s Lawyer

HEARD: February 21, 2024

RULING ON SUMMARY JUDGMENT MOTION

MCDERMOT J.

[1] This is a summary judgment motion brought by the Applicant Society. The Society seeks the necessary statutory findings (including a finding under s. 90(2) of the Child, Youth and Family Services Act[^1] as to Indigenous status), a finding that the Respondent Mother’s 15 year old son, D.Z., is in need of protection and an order for temporary Society care for six months. The Society also seeks an order that any contact or access between the mother be initiated only by the youth.

[2] L.Z. is the adoptive parent of a 15 year old youth, D.Z. D.Z. was brought into care on March 11, 2023 after having allegedly assaulted the Respondent Mother and also having caused serious physical damage to her home. D.Z. was arrested and ended up in the care of the Society after the police kept him overnight and laid mischief charges under the Youth Criminal Justice Act.[^2] Because of his bail conditions, he could not return to his mother’s care because a No Contact order was put in place. There was no other parent or potential kin or kith caregiver available or willing to assume care of D.Z. (and there still is not). This meant that the only option was Society foster care.

[3] D.Z. has therefore remained in Society care since March 11, 2023. He was initially in foster care; however, after another violent incident in foster care on December 12, 2023 when D.Z. had another meltdown and again caused serious property damage, causing the foster parents to fear for their safety, he was moved to a group home in Orangeville, where he remains at this time.

[4] The charges under the YCJA have now been resolved and the No Contact order set aside. However, D.Z. has been consistent since being brought to a place of safety that he does not want to return to his mother’s care. He has also said that he wants to initiate any and all contact between himself and the Respondent Mother. Finally, he does not want his mother making any medical decisions or receiving any medical information about him.

[5] The medical issues loom large in this matter. That is because much of the disagreement between the Society and the Respondent Mother surround her concerns as to D.Z.’s mental health. L.Z. says that D.Z. has numerous medical conditions that have resulted in a number of psychotropic drugs being prescribed to him while in her care. Cooperation between the Society and L.Z. has broken down over these issues, and the Applicant Society and the Respondent Mother strongly disagree over the treatments being administered to D.Z. including a weaning off of the psychotropic drugs as suggested by the child’s pediatrician. Surrounding all of this is L.Z.’s position that D.Z. is not sufficiently mentally competent to provide his views and preferences to his counsel, Ms. Bowman, and that those views and preferences be given little weight by me. The Respondent Mother refused to provide consents for the Society to obtain information from caregivers or a list of caregivers of the child to the Society (there have been a number although it is unclear as to how many). The Society was unable to obtain a psychological assessment of D.Z., partly because L.Z. refused to complete a medical history form. The Society eventually had to bring a motion resulting in an order in favour of the Society dated July 7, 2023 for medical decision making for the Society. L.Z. calls this a “gag order.”

[6] This motion appeared to be unnecessary. D.Z. will be 16 in April of this year, after which he can obtain autonomy through the signing of a Voluntary Youth Services Agreement (a VYSA). He will also then be presumed to be able to consent to his own medical treatment: see the Substitute Decisions Act,[^3] s. 2(3). If the Society motion is dismissed, a trial could not be scheduled until after he turns 16. However, the issue of medical decision making along with D.Z.’s views and preferences are most probably the issues most driving this litigation. L.Z. takes great exception to the medical decisions that have been made since D.Z.’s apprehension, especially concerning the reduction in usage of the four psychotropic medications he was prescribed with in her care. She says in her materials that D.Z. is “disabled” and thereby unable to provide the views and preferences to his lawyer noted above. She was unwilling to consent to a finding, partly because she denies that she “abandoned” D.Z., partly because she does not agree with D.Z.’s position regarding access or that these are his true his views and preferences. In essence, she says that D.Z.’s mental health is deteriorating and that he is not competent to provide views and preferences to the court.

Summary Judgment

[7] This is a motion for summary judgment. There is extensive law on the issue of what matters are appropriate for a summary judgment motion (which dispenses with the necessity of a trial) and what matters are not.

[8] Rule 16 of the Family Law Rules[^4] provides the court with jurisdiction concerning an order for summary judgment, which effectively dispenses with the requirement of a trial prior to making a final order. The Rule provides as follows:

a. The moving party must provide affidavit evidence that “sets out specific facts showing there is no genuine issue requiring a trial”: Rule 16(4);

b. The responding party must provide factual evidence showing a genuine issue for trial and not “mere allegations or denials”: Rule 16(4.1);

c. A party relying on hearsay evidence runs the risk of “conclusions unfavorable” to that party: Rule 16(5);

d. The court has the power to weigh evidence, evaluate credibility of a deponent or to draw any reasonable inference from the evidence: Rule 16(6.1); and

e. If there is an issue, the court may make an order for summary judgment on some issues, and to direct a focused trial or “mini-trial” respecting specific issues where a genuine issue has been raised on the evidence: Rule 16(6.2).

[9] The leading case concerning summary judgment is, of course, Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87. In that case, the Supreme Court dictated a two stage process:

a. Firstly, the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1);

b. If, after that analysis, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers (weighing evidence; making credibility findings, etc.) to determine whether a trial is required.

[10] 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” and “plain and obvious that the action cannot succeed”: Children’s Aid Society of Oxford (County) v. J(J), 2003 CanLII 2388 (Ont. S.C.J.) at para. 8. The test has also been enunciated as being when “the outcome is foregone conclusion” or when there is “no realistic possibility of an outcome other than that sought by the applicant”: Catholic Children’s Aid Society of Metropolitan Toronto v. O(L.M.), 1996 CanLII 7271 (Ont. S.C.J.) at para. 80 and Children’s Aid Society of the County of Lanark and Town of Smiths Falls v. S.M., [2010] W.D.F.L. 2361 (Ont. S.C.J.) at para. 21.

[11] Rule 16(4.1) provides that the responding party has a duty to provide a narrative of the facts upon which he or she relies. This requirement has often been referred to as a party putting his or her “best foot forward” in response to a motion for summary judgment: see Children’s Aid Society of Toronto v. E.L.L. (2000), 2000 CanLII 11422 (ON CJ), 134 A.C.W.S. (3d) 263 (Ont. C.J.) and Rogers Cable TV v. 373041 Ontario Ltd., 1994 CanLII 7367 (ON SC), 1994 CarswellOnt 166 (Gen. Div.). In assessing their evidence, it is assumed that all of the evidence that those respondents would present at trial are contained in their affidavits: see Children’s Aid Society of Toronto v. E.L.L. (supra) and Children’s Aid Society of Simcoe (County) v. R.(D.), 2010 ONSC 2092 at para. 6.

[12] This does not, however, change the fact that it is the onus of the Society to prove that there is no genuine issue for trial and that onus does not change. Whatever evidence is provided by the parents, the Society always has the burden to prove that there is no genuine issue for trial.

[13] This was confirmed in Kawartha-Haliburton Children’s Aid Society v. M.W, supra. In that case, the Court of Appeal confirmed that the court must approach summary judgment matters with extreme caution and, at para. 80, adopted five principles from which Ontario courts must approach summary judgment matters. These are as follows:

1. Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.

3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. It is noted that this prohibition goes beyond rule 16(5), which provides only for an unfavourable conclusion where the party relies upon hearsay evidence.

4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.

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

[14] In the present case, there are three issues that have not yet been resolved. The issue is, considering the case law noted above, whether there is a genuine issue of trial concerning the following:

a. Because D.Z. was adopted, his file is sealed. A statutory finding as to Indigenous status must be made prior to finding a child in need of protection is required under s. 90(2) of the Child, Youth and Family Services Act. There is little or no evidence as to D.Z.’s Indigenous status.

b. Is there any genuine issue for trial as to whether D.Z. should be found to be in need of protection under s. 74(2)(k) of the CYFSA?

c. If the youth is found to be in need of protection, can the court also determine, without a trial, the proper disposition as requested by the Society (six month Society care; access to the Respondent Mother according the views and preferences of the child and Society discretion)?

Indigenous Status

[15] D.Z. was adopted by the Respondent Mother 14 years ago in 2010. The adoption file is sealed.

[16] Section 90(2) of the CYFSA provides as follows:

(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child’s name and age;

(b) whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuit or Métis communities; and

(c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

[17] There is more than sufficient evidence to make a finding under (a) and (c) of s. 90(2) of the CYFSA. There is, however, no evidence available to the Society as to D.Z.’s Indigenous status because the adoption file is sealed. However, the worker deposes that the “child is of Jamaican ethnicity.”[^5] She further advises:

D.Z. has expressed to the Society that he is that he is Jamaican and has shown some interest in further learning about his culture. D.Z. is currently placed in a culturally accepting home with providers who also identify as Black. D.Z. is being included in family gatherings with this placement and his providers are supportive of his culture and Jamaican heritage. D.Z.’s providers have incorporated traditional foods and customs into their daily life. The Society has referred this file to the ACCC Panel (Black Affirming Services Consultation Panel) to ensure that D.Z.’s cultural and intersectionality needs are met while in care. D.Z. is currently encouraged to attend programming at Shak’s World and that the Society will assist and support in him pursing and any cultural practices and services that he is open to.[^6]

[18] D.Z. has no idea whether he has any Indigenous heritage and the Respondent offers no evidence as to D.Z.’s Indigenous status.

[19] D.Z. is of Jamaican ethnicity and is aware of this. Although not mutually exclusive, it is improbable that he also has Indigenous status under the circumstances. There is no information available as to whether the youth has Indigenous status and a finding is mandatory under the CYFSA.

[20] In light of the youth’s self identification as being of Jamaican heritage and the lack of any evidence to the contrary, I am content to make a finding, on the balance of probabilities, that D.Z. does not have Indigenous heritage or status.

Child in Need of Protection

[21] The Society seeks an order that D.Z. is a child in need of protection under s. 74(2)(k) of the CYFSA. That section states that a child is need of protection where the Society establishes, on the balance of probabilities, that:

[T]he child’s parent has died or is unavailable to exercise the rights of custody over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody;

[22] In this case, it is uncontested that on March 11, 2023, D.Z. lost his temper and caused severe property damage in the Respondent Mother’s home. L.Z. herself says that D.Z. had an “aggressive outburst, [caused] 1 000's of dollars in property damage and [made] statements made to police regarding safety”[^7] and as a result the police charged D.Z. with mischief and issued a “No Contact” order between D.Z. and the Respondent Mother. This necessitated D.Z. being put into care as he had nowhere else to go and could not go home.

[23] It is clear that when this No Contact order was made, L.Z. was unable to exercise her “rights of custody” concerning D.Z. as he could not return to her home. Furthermore, L.Z. was unable to make other arrangements to provide for D.Z.’s care and it was therefore necessary for the Society to take D.Z. into care. Therefore, at the time of the first intervention by the Society, D.Z. was in need of protection within the meaning of s. 74(2)(k) of the CYFSA.

[24] The No Contact order has now been rescinded as the charges against the youth have been resolved through diversion. There has, however, been an ongoing dispute between the Society and the Respondent Mother as to the medical care to be given to D.Z. This largely surrounds the psychotropic drugs prescribed to D.Z. by his physician (or physicians) prior to his apprehension and the decision of D.Z.’s doctor to wean him off of most of these drugs. L.Z. says that those drugs are necessary for D.Z.’s mood stabilization and should continue. There have been disagreements about D.Z.’s medical records and the Society says that L.Z. has refused to provide her consent to the release of D.Z.’s medical records and a list of all of his physicians.[^8] A review of the evidence provided by the Society and L.Z. confirms the lack of clarity as to D.Z.’s medical history and as to the drugs prescribed by various doctors for this child. L.Z. says that although they were all originally prescribed by the child’s psychiatrist, various other doctors renewed the various prescriptions.

[25] L.Z. blames her refusal to provide information on the interim order made by Justice Jain on July 7, 2023 which gave the Society decision making authority over D.Z.’s medical issues, something L.Z. refers to a the “gag order”. She says that she is no longer responsible to provide consents or medical information as she has lost her right to decide on D.Z.’s medical issues and that the Society can obtain the information itself. This ignores the fact that it is only L.Z. who has information as to D.Z.’s medical history and his physicians and it is in D.Z.’s overall best interests that the now-designated caregiver (the Society) have access to that information.

[26] In sum, L.Z. says that there is no longer a need for a finding in need of protection as the No Contact order is gone and D.Z. can return to her care (although she is not offering that D.Z. can come home).

[27] One major issue is whether there is any sort of fixed time when a protection finding must be made. The case law confirms that there is not. In Children’s Aid Society of Toronto v. R.M.¸ 2019 ONSC 2251, Horkins J. considered C.(N.V.) v. Catholic Children's Aid Society of Toronto, 2017 ONSC 796, which suggested that a finding must be made as of the date of the hearing. If the latter case is followed, I would have to find that the circumstances for the finding continue to exist today when I make my decision in this motion.

[28] Horkins J. disagreed with the approach in C.(N.V.), advocating a “flexible” approach to the issue. She noted [at para. 94]:

In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.

[29] In K.R. v. Children's Aid Society of London and Middlesex, 2023 ONSC 3798, the Divisional Court considered Horkins J.’s decision in R.M. and reconciled it with the earlier decision in C.(N.V.). The court confirmed that the evidence as of the date of the hearing is relevant to and must be addressed in making a finding of the child being in need of protection. At para. 44, the court concluded:

In my view, that encompasses both the facts as they exist on the date of the hearing and the history of the participants in the trial. By considering the entirety of this evidence, a trial judge can arrive at a complete and accurate risk assessment.

[30] Essentially, the court endorsed the “flexible” or holistic approach suggested by Horkins, J. while stating that evidence as of the date of the hearing is relevant to a finding and should be considered. And this only makes sense. If the circumstances which led to a protection finding at the time of apprehension have truly been mitigated on a permanent basis, a finding may not be warranted. However, if those factors continue, even if the concerns are not as serious at the date of the hearing as originally resulted in Society intervention but are pervasive and ongoing, a finding may be warranted. As stated in the cases, the totality of the evidence must be addressed to make a finding.

[31] In the present case, in my view, the circumstances confirm ongoing protection concerns for D.Z. under the applicable section. Firstly, because the parties have disagreed on medical issues, the mother is refusing to cooperate with the Society and provide all relevant medical information to allow ongoing medical care for this child. Those medical issues are concerning, considering that the child had a meltdown at the foster parents’ home which resulted in them being unable to provide care for the child and then another more recent meltdown in the group home in which he presently resides. After the first breakdown, the foster parents could no longer provide care and the child had nowhere to go other than a group home in Orangeville. D.Z. is back on risperidone which had earlier been discontinued by his physician. Although L.Z. would prefer to blame the Society for failing to provide D.Z. with the psychotropic drugs that she advocates, it is clear that, whatever the cause, the mental health issues that led to the Society intervention continue.

[32] This is combined with the second factor, which is D.Z.’s views and preferences. He is now nearly 16 years old and refuses to have anything to do with his mother. He is adamant that he does not want L.Z. to contact him, preferring to be in charge of that himself. It is impossible for L.Z. to assume care of D.Z. at this time, and she as good as admitted this during submissions.

[33] Finally, even if the circumstances that existed at the date of the apprehension have changed, the second part of s. 74(2)(k) continues to apply, being “the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody”. This youth is in a residential group home and is therefore in a residential placement. L.Z. has nowhere made an offer for the child to move back into her care; indeed her own Plan of Care says that her own family as well as extended family “are not able to manage D.Z.'s mental health concerns, police involvment (sic.), property destruction and aggresion (sic.), due to safety reasons.” Nowhere in her affidavit does she suggest that D.Z. can or should return to her care and she did not offer this as a solution during her submissions on the summary judgment motion. As far as I can see, L.Z. is still unable or unwilling to resume care of D.Z. D.Z. continues to be a child in need of protection, even with a change in circumstances since the date of the apprehension.

[34] At this time, even though the No Contact order has been rescinded, the underlying problems that D.Z. had at the date he was brought into care are still present. As was the case then, the Respondent Mother still does not have any ability or willingness to assume care of D.Z. and she has not offered a solution for D.Z. coming back into her care of the care of a designate. Her position appears to be a “faint hope” that if D.Z. only follows the course of treatment that she suggests, his mental health situation might improve and then he could return to her care, but she provides no medical evidence, other than her own say-so that this would be the result. The protection issues are not mitigated by the release of the No Contact order and continue today, as of the date of the hearing.

[35] There is no triable issue as to a finding in this case. I find that D.Z. is in need of protection for the reasons set out by the Society.

Disposition

[36] The Society is not asking for extended care. The request is for an order for a six month temporary care order. This would allow for the youth to consider a VYSA once D.Z. turns 16 on […], 2024 which would obviate any future court orders in this matter.

[37] The Society also asks for an order that contact between D.Z. and the Respondent Mother be at the discretion of the youth.

[38] The determination of a disposition is based upon the best interests of the youth. Those best interests are set out in s. 74(3) of the CYFSA. That section requires the court to give weight to the child’s “views and preferences” where possible, as well as a child’s Indigenous status. I have already determined that, on the balance of probabilities, that this youth does not have Indigenous status.

[39] In addition, s. 74(3)(c) requires the court to consider a number of criteria in determining best interests:

(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.

[40] The scheme of the legislation appears to give priority to certain elements, including Indigenous status and views and preferences of the child. In this case, views and preferences loom large. The lawyer appointed for the OCL to represent the child, Ms. Bowman, has spoken with the child on nine different occasions. During all of these interviews, Ms. Bowman advises that the child has consistently said that he will not return to the care of his mother. He made several concerning statements, including that his mother favours his brother and that she does not love him. He also says that he is content to remain in the care of the Society. He says that he does not wish his mother to contact him and that he wishes to be the one to initiate access with her.

[41] I have stated that the issue of this youth’s views and preferences are of great importance. This is largely because of this child’s age; he is 15 and will turn 16 in April, 2024. If I dismiss the Society’s motion for summary judgment in this matter, the trial or mini-trial will not take place until the May, 2024 sittings, after D.Z. turns 16. By that time, the court has essentially lost jurisdiction to determine where and with whom the child wishes to live or have contact with, without the child’s consent: see ss. 82, 89, 101(9) and 104(5) of the CYFSA.

[42] L.Z .argues that the child is not competent to provide views and preferences. She says that the course of treatment pursued by the Society under the so-called “gag order” has ensured this to be the case. However, she offers no medical evidence of his incompetence than the fact that she “knows” her child (she has now not had contact with D.Z. since March of 2022, nearly a year ago). Ms. Bowman, a trained child’s counsel, says that in her interviews with D.Z., he knows the nature and consequences of his position and she also says that those views have been consistent through nine different interviews. She has advised the court that, from her perspective and her conversations with D.Z., he is fully competent to provide views and preferences.

[43] This is corroborated on the facts. When D.Z. had his meltdown at the foster home in December 2023, the hospital accepted his refusal of treatment when he was brought there. Society workers who have interviewed D.Z. confirm the consistency of his views and preferences as expressed to OCL counsel.

[44] L.Z. says that she has a Masters of Social Work and can speak to the issue of D.Z.’s competency. She is, however, a party, and even if qualified as an expert, could not provide objective opinion evidence as required under r. 20.2 for obvious reasons and she also could not complete the acknowledgment of an expert’s duties of objectivity as required under the rules. In any event, she is not qualified to provide an opinion of D.Z.’s ability to communicate his instructions to counsel, both on the basis of the fact that she has not had contact with D.Z. in the last 11 months as well as her failure to provide evidence of her qualifications to provide that opinion. A bare statement from the counsel table is not enough.

[45] The determining factor has to be that, when asked during argument, L.Z. was unable to offer any sort of suggestion as to a solution to the problem. She understands that D.Z. cannot and will not live with her and although she suggests an adjustment of D.Z.’s medication, it is his own doctor who recommended that he be weaned off of the four psychotropic medications that he was using at the time he was brought into care in March, 2023. The medical evidence is therefore uncontradicted that the four mood altering drugs were excessive and should have been reduced and that medical evidence consists of recommendations by D.Z.’s physician from prior to the apprehension. L.Z. suggested that the doctor treating D.Z. was not a psychiatrist and therefore was not qualified to reduce the medication; however, the worker pointed out that Dr. Meeder is a pediatrician and is the Clinical Director of the Child and Youth Mental Health unit at the Way Point Centre for Mental Health and well qualified to make medical recommendations concerning D.Z.’s care.

[46] As well, while failing to offer any reasonable alternative for D.Z.’s care, L.Z. has refused to cooperate in D.Z.’s medical care, thereby putting D.Z. at risk. One option being considered by the Society was a psychological assessment of D.Z. However, L.Z. refused to cooperate in providing D.Z.’s medical history form (and now says that she does not have to provide it due to the order removing her from medical decision making). The assessment could not be completed as a result. An assessment would have clarified D.Z.’s competency to provide views and preferences; yet L.Z. has had a hand in that not being available to the court. As stated by Justice Jain in making her decision on medical decision making, L.Z. cannot have it both ways:

The Society does not have D.Z.'s full medical records. The Mother won't consent to the Society obtaining this information, yet she is upset that Society is making decisions without knowing the full 13-year history.

[47] L.Z. does not understand that her lack of cooperation has put D.Z. at risk. She also fails to recognize her role in the unavailability of evidence concerning D.Z. for the court and for this summary judgment motion. Even if this matter is set down for trial, there will be no further evidence available at trial concerning D.Z.’s competency. D.Z.’s competency has been confirmed not only by the OCL counsel, but also on the best evidence presently available to the court. L.Z’s best foot forward consists of a refusal to provide medical information concerning D.Z. because of a court order made necessary due to lack of cooperation between the Respondent Mother and the Society.

[48] For those reasons, I find that D.Z.’s views and preferences are clear, independent and consistent. There is no evidence that would result in another conclusion, and a trial would make no difference, especially considering L.Z.’s lack of cooperation and her failure to assist in the obtaining of a psychological assessment of D.Z.. I find that D.Z.’s views and preferences are as disclosed by OCL counsel and I also give those views and preferences great weight considering D.Z.’s age and his upcoming 16th birthday.

[49] There are, of course, other factors under the best interests test in the CYFSA which must be addressed in determining whether there are any genuine issues for trial. The criteria under s. 74(3)(c)(i) and (ii) can be classified as relating to the particular needs of the child; s. 74(3)(c)(iii) and (iv) as cultural factors and s. 74(3)(c)(v), (vi), (vii) and (x) as the child’s connection with his family and parents. The final three clauses of the subsection, s. 74(3)(c)(vii), (ix), (x) and (xi) can be classified as issues arising out of the findings that the child was in need of protection.

[50] In reviewing these factors, the court recognizes that the two issues that are uppermost continue throughout to be the mental health needs of D.Z. as discussed above as well as, again, his views and preferences. However, my review of the Respondent’s Plan of Care confirms that, whatever D.Z.’s needs and factors, L.Z. is not really contesting that D.Z. be placed in the temporary care of the Society. In that Plan of Care, L.Z. confirms that she really has no plan whereby she can assume care of the child, stating, as noted above, in para. 5 of her Plan of Care that:

Immediate family and extended family are not able to manage D.Z.'s mental health concerns, police involvment (sic.), property destruction and aggresion (sic.), due to safety reasons.

[51] Again, as discussed when making a finding that D.Z. is in need of protection, L.Z. is not really disputing that D.Z. should remain in care. She has not suggested in her materials or in her submissions that D.Z. be placed with her, or her family and the Society confirms that a kin placement was explored and is not available. There is no alternative care arrangement other than as requested by the Society and D.Z. has asked that he remain in care. The proposed order allows for a status review and also that he be allowed to enter into a VYSA when he turns 16. The disposition requested by the Society is the only option that the court has been left with and is in D.Z.’s best interests.

[52] The one thing that L.Z. does address in her Plan of Care is the issue of access. She says, as noted above and as addressed, that D.Z. is “disabled” and that his views and preferences as to access cannot be trusted. She disagrees with the Society suggestion that there be no access except subject to D.Z.’s views and preferences and subject to him initiating that access based on her assertion that he is “disabled”.

[53] I have already made a finding that there is no triable issue as to whether D.Z.’s views and preferences were to be given weight in this motion and as to his capacity to provide those views and preferences.

[54] The child will be 16 in April of this year. Once a child is 16 tears of age, he or she cannot be made to exercise access to a party: see s. 104(5) of the CYFSA which provides that no order shall be made as to access to a person over the age of 16 years without that person’s consent. There would be little point in making a six month Society care order and yet ordering access to the child against his wishes as the order will become ineffective in about two months when D.Z. turns 16. Furthermore, as noted above, if access is s triable issue, the trial of that issue cannot be heard prior to D.Z. turning 16, when he has full autonomy over his access to his mother.

[55] I therefore decline to order access to the child except as initiated by the child and subject to the child’s views and preferences.

[56] I am going to continue Justice Jain’s order as to medical decision making considering the conflict between the Society worker and L.Z. Although s. 110(1) of the CYFSA permits a Society to make medical decisions concerning a child when an interim order, such as that requested, is made pursuant to s. 101(1)2 of the Act, that is only if the child has been found incapable of consenting to treatment under the Health Care Consent Act.[^9] No such finding has been made and therefore, the Society should have decision making authority concerning D.Z. in the same manner as would a parent of the child. This does not remove D.Z.’s autonomy as to decision making, which was recently exercised by him when he had a violent outburst while in foster care and when he refused treatment at the hospital as a result.

[57] There shall therefore be an order to go as follows:

a. There shall be the following statutory findings: i. A finding that the subject child is D.Z., born […], 2008 ii. A finding that there is no male parent in reference to the child. iii. A finding that the child is of non-Native and non-Indigenous status.

b. There shall be a finding that this child is in need of protection under s. 74(2)(k) of the CYFSA.

c. The child shall be placed in the temporary care of the Society for a period of six months.

d. The Society can and shall make medical decisions regarding D.Z. without consent from the mother, L.Z. but subject to the youth’s ability to make medical decisions for himself under the Health Care Consent Act.

e. The Society can and shall obtain any medical information about D.Z. without the consent of the mother, L.Z.

f. Any communication the mother, L.Z. seeks with the child's treating professionals shall be subject to the child's consent and shall be as coordinated with the Applicant Society.

g. There shall be no access to the Respondent Mother to the youth except as initiated by him and according to his views and preferences.

McDermot J.

Released: March 1, 2024

[^1]: S.O. 2017, c. 14. [^2]: S.C. 2002, c. 1 [^3]: S.O. 1992, c. 30. [^4]: O. Reg. 114/99 [^5]: Affidavit of Jennifer Bullock sworn October 23, 2023, para. 3. [^6]: Ibid., para. 64. [^7]: Affidavit of Respondent Mother sworn November 10, 2023, para. 22. [^8]: There is disagreement on the evidence concerning this issue. L.Z. says that she provided a list of physicians while the Society acknowledges that a list was provided but says that it was incomplete. [^9]: S.O. 1996, c. 2.