WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

87 (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: FC-22-CP33 DATE: 2024/01/15 AMENDED- JANUARY 16, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1.

AND IN THE MATTER OF L.S.

BETWEEN:

CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – D.E.S A.T. A.T Respondents

Counsel: Tara MacDougall, for the Applicant Millington Godoy, for D.E.S Vasu Naik, for A.T. Ezioma O. Nnorom, for A.T. Ezioma O. Nnorom, for the child L.S.

HEARD: January 4, 2024 (At Ottawa)

Decision

AUDET J.

[1] This summary judgment motion in which the Society is seeking a custody order for the child, L.S. (6), in favour of his paternal great-aunt, with supervised access to the mother.

[2] This motion is brought in the context of an Amended Status Review Application. L.S. has been found in need of protection by Justice Fraser on November 21, 2022. Although the mother filed an Answer and Plan of Care in response to the Amended Status Review Application, in which she sought the return of the child to her care, she did not file any responding materials for the purpose of this motion. However, she was present today and her counsel made submissions on her behalf on the issue of access only.

[3] L.S.’s father and stepfather have not participated in the court proceeding and they do not have access to him. As a result, the summary judgment motion proceeded on the basis of the evidence filed by the Society and the child’s paternal great-aunt (hereinafter “L.S.’s aunt”), as well as the representation made by the child’s counsel as to his wishes and preferences.

[4] The child’s counsel supports the order being sought by the Society.

Background

[5] L.S. has indigenous heritage on both his mother’s and his biological father’s sides. The mother initially indicated she was Mohawk and Ojibwe, but later clarified that she identifies as Métis, French, and Indigenous. She has heritage through her father who was Blackfoot, from the Okotoks area of Alberta (Band unknown).

[6] L.S.’s biological father also has Algonquin heritage. However, the Band is unknown as apparently female ancestors would have lost their status by marrying non-status man. L.S.’s aunt, who is putting forward a plan for L.S., is currently investigating this heritage further. She reports being a member of the Bonnechere Algonquin First Nation (this is a non-registered association of Algonquins who are in negotiations for a land claim settlement with the provincial and federal government).

[7] L.S. was removed from his mother’s care and brought to a place of safety on June 1, 2022, following an incident of alleged physical abuse by the mother and the child’s stepfather. By that point, the Society had been involved with the family for some time as a result of physical and verbal abuse between the adults in the home, as well as concerns over the mother’s mental health, and the child’s reports of physical abuse at the hands of those adults and being exposed to the adult’s conflict.

[8] L.S. is a child with several special needs. He demonstrates delays in multiple areas of learning and age development consistent with Global Developmental Delays. He also demonstrates symptoms consistent with Developmental Trauma Disorder, Disinhibited Social Engagement Disorder, as well as ADHD. In addition, L.S.’s psychiatrist, Dr. Matheson, has not ruled out Autism Spectrum and Traumatic Brain Injury secondary to hypoxia/head injury as an infant. L.S was followed by Dr. Matheson at CHEO and attended CHEO’s Step to Success program (discontinued by the mother in the summer of 2022 but resumed once L.S. was brought to a place of safety). He was placed in multiple foster homes until August 2023, when he was placed in his aunt’s care.

[9] In early 2023, L.S.’s aunt began exercising access with him. She resides in Quebec (near Pembroke) and travelled to Ottawa to exercise access. She did not miss a single visit/facetime/phone call. Very quickly, the aunt’s access with L.S. moved from supervised to unsupervised and access time expanded such that by April 2023, L.S. began to have full weekend access with her (Friday after school to Sunday evening).

[10] In June 2023, L.S.’s aunt was added as a party. She has filed a detailed Answer presenting a permanent plan for L.S. She was assessed as a kin placement and passed a kin assessment. L.S. stayed with her for a few weeks in July. On August 3, 2023, L.S. was with her on an extended visit until August 31, 2023, following which he has remained in her care pursuant to the Interim Supervision Order of August 31, 2023.

[11] I find that L.S.’s aunt has taken many steps to ensure that his needs are met. L.S. is thriving in her care and the Society has raised no concerns at all with respect to L.S.’s well being in his aunt’s care.

[12] As stated earlier, when L.S. was removed from his mother’s care in June 2022, some of the Society’s protection concerns included domestic violence in the mother’s home (and L.S.’s exposure to same), potential physical abuse, as well as the mother’s mental health issues and their impact on her ability to care for L.S. These concerns have remained throughout the Society’s involvement.

[13] In addition, new concerns have arisen in relation the mother’s inconsistent attendance at access visits, and her increasing emotional dysregulation during many of those visits (including when they took place in the community). Although the mother demonstrated significant strengths during most of the visits (she is caring and affectionate towards L.S.; engages in play with him; talks about his day, and encourages him to do various activities), the Society had to reduce and then suspend visits on three occasions since the summer of 2022 (sometimes for several weeks) due to the mother’s repeated failure to attend. The mother’s visits were suspended for one last time on December 18, 2023, after the mother failed to attend several visits. The mother’s last visit with L.S. took place on December 7, 2023.

[14] In January 2023, L.S. was struggling with toileting and was having accidents almost every day. In May 2023, there were concerns about the impact that inconsistent visits with the mother were having on L.S. During this timeframe (May-June 2023), Child in Care worker Mr. Tim Dickert received correspondence from others caring for L.S. (CHEO’s Steps to Success and group home staff) regarding their concerns about the impact of inconsistent visits. Dr. Matheson also raised concerns in that regard.

[15] As of June 2023, Dr. Matheson noted that L.S.’s mental health and social/emotional wellbeing had declined drastically due to his continued uncertainty about his living arrangements. She supported L.S. being placed with his aunt.

[16] I find as a fact that the mother was offered many services to address the Society’s concerns, but that she failed to avail herself of those services. Dr. Matheson, during L.S.’s time in the Steps to Success program, noted that the mother had been offered and declined multiple supports to engage with, including the Circle of Security parent group and Parent-Child Interaction Therapy.

Legal Framework

[17] The legal principles applicable to summary judgment motions in the child protection context were summarized as follows by Engelking J. in Children’s Aid Society of Ottawa v. S.V. and M.C., 2020 ONSC 8132:

[33] In its recent decision in Kawartha-Haliburton Children’s Aid Society v. M.W., the Ontario Court of Appeal set out “the proper approach to summary judgment in child protection matters” (2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 1). Coincidentally, that case involved a motion for summary judgment in which the mother consented to an extended society care order but sought access.

[34] The Ontario Court of Appeal identified a number of principles to be applied on motions for summary judgment in child protection cases. Those principles are summarized at para. 80 of the decision:

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 including the best interests of the child.
2. The burden of proof is on the party moving for summary judgment. Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[35] In Kawartha-Haliburton, the Court of Appeal directs that judges on motions for summary judgment in child protection proceedings undertake a best interests analysis (paras. 31 and 49). Above all, a cautious approach should be taken on motions for summary judgment in child protection proceedings (paras. 63 and 70-79). The Court of Appeal described the requisite approach as “highly cautionary” (para. 74).

Analysis

1- Is there a genuine issue requiring a trial with respect to disposition (the request for a custody order)?

[18] I find that there is no genuine issue requiring trial in relation to the disposition that would be in the best interest of this child. There is no evidence before me that would indicate that the mother has taken any meaningful steps to address any of the Society’s valid and serious concerns. Her attendance at visits with L.S. has been very inconsistent and although she showed clear strengths during these visits, her emotional dysregulation and lack of insight into how her behavior impacts L.S. have led to great stress and anxiety for him, and in his behaviors regressing.

[19] In CAS of Ottawa v. S.K., 2015 ONSC 4623 and in Children and Family Services for York Region. v L.B., 2015 ONSC 2242, the court stated that the legal process is not to be used as a strategy to buy time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a parent's heartfelt expression of his desire to resume care of the child; the parent's evidence must support that the faces better prospects than what existed at the time the society removed the child from his care and that he has developed new parenting skills.

[20] L.S. has been in the Society’s care for almost twenty months and it is urgent for him to find permanency and stability from a caregiver who is able to meet his very special needs. Additionally, the Society has been involved with L.S. and his family since November 2021. Despite this long involvement, the mother has made no progress in addressing the concerns which would allow her to resume care for him. She easily gets triggered and the Society’s efforts to engage with her have been fruitless. The mother has presented no evidence suggesting that she faces better prospects today than those she was facing at the time the child was removed from her care.

[21] Meanwhile, L.S.’s aunt has demonstrated that she is able to meet all his needs, and he is thriving in her care. There are absolutely no concerns in relation to the aunt’s ability to care for L.S. and to keep him safe. She is also committed to ensure that L.S. continues to have contact with his mother, despite the fact that she lives more than an hour away from Ottawa, as long as it is in keeping with his best interests.

[22] It is clear that L.S. continues to be a child in need of protection, and it is clear that a custody order placing L.S. with his paternal great-aunt is the least intrusive measure required to protect the child in keeping with his best interests. It also respects the placement hierarchy dictated by s. 16 of the Act Respecting First Nations, Inuit, and Métis Children, Youth and Families, (S.C. 2019, c. 24).

2- Is there a genuine issue requiring a trial with respect to access?

[23] The Society seeks an order providing that access between L.S. and his mother will take place at the Supervised Access Center in Pembroke (which is close to the aunt’s residence) once per month, with the cost of same being borne by L.S.’s aunt. In the event that the mother is prepared to cover the costs of supervision services at the Ottawa Family Services’ Supervised Access Center, the aunt is prepared to drive there for the visit and bear the costs of travelling to and from Ottawa with L.S.

[24] The mother takes the position that there is a genuine issue requiring a trial in relation to her access with L.S. because Pembroke is 1.5 hours away from Ottawa where she resides, and she does not have the financial means to travel to Pembroke for access. To support the above, the mother alleges that she is living off Ontario Disability Support Payments (“ODSP”), that she does not own a vehicle, that she has no means to travel to Pembrooke or supports to get her there, and that the aunt’s and the Society’s evidence to the effect that she has lots of family support in Pembroke is untrue. She adds that she does not have the financial means to cover the costs of any supervised access, which may take place in Ottawa.

[25] As indicated earlier, the mother did not file any responding evidence in the context of today’s motion. She has provided no evidence to support her allegations that she is in receipt of ODSP, that she does not have the financial means to travel from Ottawa to Pembroke to exercise access, or to pay for the costs of supervised access in Ottawa, or that she has no family support in Pembroke as alleged by the Society.

[26] In my view, the mother cannot raise a genuine issue for trial based on bare allegations where she has chosen not to file any evidence supporting her assertions. In CAS of Ottawa v. S.K., 2015 ONSC 4623 (see also Hyrniak v. Mauldin, 2014 SCC 7, and Children and Family Services for York Region. v L.B., 2015 ONSC 2242), the court reiterated that in the context of a summary judgment motion, the moving party has the onus of establishing that there is no genuine issue requiring trial. Once the moving party establishes a prima facie case, the onus shifts to the responding party to show that there is a genuine issue requiring trial. The responding party must put their best foot forward; in other words, they "must lead trump or risk losing".

[27] Everybody agrees that the relationship between L.S. and his mother is an important and meaningful one to him, and that access is beneficial to him when his mother is well. The uncontested evidence before me is that when the mother fails to attend visits, this has a very negative impact on L.S.’s regulation and overall functioning. In my view, it is important for that access to continue, to the extent that the mother is well during access visits, that the access is positive for L.S., and that the mother is consistent in her attendance.

[28] In August 2023, the mother’s access was reduced from twice per week to only once per week because of her inconsistent attendance and the emotional harm suffered by L.S. as a result. The mother’s access has been suspended since December 18, 2023 because she failed to attend too many visits. Although the aunt is committed to facilitate access between L.S. and his mother, she has not and will not be receiving financial support to care for L.S., or to drive to Ottawa for visits. She indicates that while she is able to financially care for L.S., her income is limited and she cannot continue to drive L.S. to Ottawa for visits with his mother in addition to financially cover the costs of supervision as well as all of L.S.’s day-to-day expenses, particularly when the mother fails to attend so many visits.

[29] The access proposal put forward by the Society and the aunt properly balances the importance of L.S.’s access with his mother and the concerns raised by the mother. If she is prepared to pay for the costs of supervision in Ottawa (at Family Services Ottawa those costs are geared to the income of the paying party), the aunt is prepared to drive to Ottawa for the visits. Requiring the mother to travel, or to pay for the supervised visits in Ottawa has the added benefits of providing a further incentive to the mother to actually attend the visits when they are planned, and of minimizing the risk of the aunt and L.S. traveling for a visit that the mother will not attend.

[30] I am of the view that there is no genuine issue requiring a trial on the issue of access. Further, the order I make today is a custody order which will be subject to variation before the Family Court in the event of a material change in circumstances.

Order

[31] As a result, the following final order is made:

1. The child, L.S., shall be placed in the custody of the paternal great-aunt pursuant to s.102 of the CYFSA.
2. As the Legal Guardian of the child, the paternal great-aunt shall have the full authority to apply for and retain a passport for the child without any requirement for the other consents or authorizations. The paternal great-aunt shall also be entitled to travel domestically and internationally with the child without restriction or requirement for other consents or authorizations.
3. As the person with decision-making responsibility for the child, the paternal great-aunt shall be permitted to obtain or renew government documents such as passports, health cards, social insurance number (SIN), citizenship cards, and birth certificates for the children without the consent of any other party.
4. Access to the mother shall occur on a supervised basis at the discretion of the paternal great-aunt a minimum of once a month subject to the following conditions: a. Subject to the mother completing the intake process: b. Access shall occur at the Supervised Access Centre in Pembroke, Ontario. In such a case, the paternal great-aunt shall bear any fees associated with the Supervised Access Center as well as the costs of transporting L.S. to the Supervised Access Center. c. Alternatively, at the Supervised Access Centre, Family Services Ottawa (SAC FSO). In such case, the mother shall bear any fees associated with Supervised Access Centre and the paternal great-aunt shall beat the costs associated with transporting L.S. to Ottawa once a month. d. The mother shall confirm her attendance by email 24 hours prior to the scheduled visit. Failure to confirm her attendance will result in the visit being cancelled. e. Should the mother miss two visits without a reasonable explanation, the frequency of access shall occur at the paternal great-aunt’s discretion. f. Should the Pembroke Supervised Access Centre or SAC FSO close their file due to the mother’s inconsistent attendance at access, any further access shall occur in the Pembroke area with frequency and level of supervision of the mother’s access with L.S. remaining at the paternal great-aunt’s discretion.

Justice J. Audet

Released: January 15, 2024