WA R N I N G

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-2023-7 DATE: 2024/01/15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Valoris for Children and Adults of Prescott-Russell, Applicant – and – P.B., Respondent – and – M.O., Respondent – and – C.O. and M.S., Respondents – and – S.O. and S.D., Respondents Office of the Children’s Lawyer for B.J.M.O.

COUNSEL: Sophie Côté Langlois, for the Applicant Respondent, Self-Represented (P.B.) Respondent, Self-Represented (M.O.) Emma M. Dupuis, for the Respondents (C.O. and M.S.) Emma M. Dupuis, for the Respondents (S.O. and S.D.) Judith Millard, agent for the children (B.J.M.O.)

HEARD: December 11, 2023

REASONS FOR DECISION

MOTION FOR SUMMARY JUDGEMENT

HOLOWKA J.

Overview

[1] The Applicant, Valoris for Children and Adults of Prescott-Russell (“the Society” or “Valoris”), brings a motion for summary judgment. In doing so, the Society submits that there is no genuine issue for trial.

[2] A finding has previously been made that the child at the center of this motion is in need of protection. As such, the Society seeks a final order that the child be placed in extended society care for the purpose of adoption, with access to their siblings and parents.

[3] The respondent parents dispute the motion and take the position that there are genuine issues requiring a trial in this case, on both the finding that the child is in need of protection and the disposition that is in this child’s best interests.

Procedural Background

[4] The respondents, P.B. (“the mother”) and M.O. (“the father”) are the biological parents of the child, B.J.M.O. (“the child”). The child was born in 2016 and is eight years old. The child is gender fluid and will be referred to as “they” in these reasons for decision.

[5] The parents have eight other children. The eldest seven of these children were involved in court proceedings. Final orders were granted regarding these children. The youngest child was separately involved in child protection proceedings that are now over.

[6] The other children are as follows:

1. C.J.H. (born in 2006);
2. K.C.B. (born in 2006);
3. H.M.C.O. (born in 2007);
4. L.L.C.O. (born in 2007);
5. B.J.G.B. (born in 2008);
6. G.A.S.O. (born in 2012);
7. M.M.T.O. (born in 2014); and
8. R.K.L.O. (born in 2020).

[7] On November 1, 2019, the Family and Children’s Services of Frontenac, Lennox and Addington (“FACSFLA”) commenced a child protection application. The application was initiated after FACSFLA removed the eight children who were born at that time from the mother’s care. The father had already agreed to move out of the family home after being charged with assault towards three of the children: B.J.G.B., K.C.B., and M.M.T.O. FACSFLA placed G.A.S.O., M.M.T.O., and B.J.M.O. in Valoris’ jurisdiction, and sought a six-month supervision order, placing them with their aunt and uncle, C.O. and M.S. Valoris had become involved as an agent for FACSFLA.

[8] The temporary order was varied on December 3, 2020 because of a request from C.O. and M.S. G.A.S.O. and M.M.T.O. were placed under the care of their aunt and uncle, S.O. and S.D., subject to the supervision of FACSFLA.

[9] The parents consented to final orders declaring K.C.B., H.M.C.O., L.L.C.O., and B.J.G.B. children in need of protection between June 2021 and January 2022. Custody was granted to either their mother or maternal grandparents. The parents signed a statement of agreed facts for B.J.G.B.’s order to be granted.

[10] A final order granting custody of C.J.H. to his mother was also made on December 15, 2022.

[11] Final orders declaring B.J.M.O., G.A.S.O., and M.M.T.O. children in need of protection were made on February 3, 2022. The order placed them with their kin for nine months, subject to the Society’s supervision.

[12] FACSFLA initiated its status review application on September 30, 2022. The Society requested that custody of B.J.M.O. be granted to their aunt and uncle, C.O. and M.S. As a result of this application, an order was made in Kingston transferring the child protection proceedings concerning B.J.M.O., M.M.T.O., and G.A.S.O. to the jurisdiction of Valoris on December 1, 2022. The placement of the three children with their respective kin was confirmed.

[13] Valoris amended the status review application on January 19, 2023 to reflect the new style of cause and first appearance date. The four kin caregivers, C.O., M.S., S.O., and S.D., were added as parties to the legal proceedings.

[14] The Society further amended the status review application on September 7, 2023, as C.O. and M.S. were seeking to adopt the children instead of obtaining custody.

[15] The parents served their answer and plan of care on September 15, 2023. The parents, in the answer and plan of care, sought for custody of B.J.M.O. to be granted to C.O. and M.S. The parents asked that custody of M.M.T.O. and G.A.S.O. be granted to S.O. and S.D.

[16] The parents, the kin caregivers, and the Society consented to an order on September 20, 2023 declaring that B.J.M.O. remained a child in need of protection.

[17] The parents, the kin caregivers, and the Society signed a statement of agreed facts concerning G.A.S.O. and M.M.T.O. on September 20, 2023. As a result, a final order was issued granting custody of G.A.S.O. and M.M.T.O. to respondents S.O. and S.D.

[18] B.J.M.O. is the only sibling with outstanding legal proceedings. The other siblings were finalized with various final custody orders.

Issues and Positions of the Parties

[19] The three issues to be determined by the court are as follows:

1. Is there a genuine issue requiring a trial to determine whether there is a disposition that is in the best interest of the child that is less intrusive than an order for extended society care?
2. Is there a genuine issue requiring a trial to determine whether access to the parents is in the child’s best interests?
3. Is there a genuine issue requiring a trial to determine whether access between B.J.M.O. and their siblings is in the child’s best interests?

[20] The Society seeks a final order, as per section 101(1) 3 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”), placing B.J.M.O. in extended society care with access to their siblings and parents. The Society takes the position that B.J.M.O. cannot return to the care of their parents. The Society cites serious concerns concerning B.J.M.O.’s need for protection should B.J.M.O. be returned to their care. The Society cited concerns including physical harm, risk of physical harm, risk of sexual harm, and risk of emotional harm. The Society notes that there is a criminal no-contact condition prohibiting the parents from contacting B.J.M.O. and, as such, preventing the court from returning B.J.M.O. to their care.

[21] The position of the parents is as follows:

1. The parents dispute the finding that B.J.M.O. is a child in need of protection;
2. The parents request the dismissal of the motion for summary judgment until the pending criminal proceedings are complete; and
3. The parents submit that there is a genuine issue for trial and that the court should grant custody to the respondents C.O. and M.S.

[22] At the commencement of the hearing for summary judgment, the parents sought to introduce an alternative position. In support of this, they sought to file a new notice of motion and affidavit evidence outside of the clear and detailed timelines established by Justice Desormeau and set out in the endorsement of September 20, 2023.

[23] The parents’ notice of motion seeks an order stating that there is a genuine triable issue in the matter in relation to the following claims:

1. The respondents, C.O. and M.S., shall have custody of B.J.M.O. In the alternative, if C.O. and M.S. do not want custody, then T.C. and K.C. can care for B.J.M.O.
2. The respondent parents, P.B. and M.O., shall have interim supervised access to the child once per week, at a supervised access centre, pursuant to the child’s wishes and the respondents’ criminal conditions. Following the result of the criminal trial, they shall have access pursuant to a set schedule in the best interests of the child.
3. The court shall grant leave to the respondent parents to bring a motion to change, pursuant to the Family Law Rules, O. Reg. 114/99, should the result of the criminal law trial constitute a material change in circumstances.

[24] The Society and the respondent kin did not consent to the late filing of the notice of motion but did consent to the late filing of affidavit evidence. The Society, the kin caregivers, and the Children’s Lawyer all made a submission that, given the extensive passage of time and need for finality and stability for B.J.M.O., the motion should proceed as scheduled.

[25] For reasons provided orally on the record, the notice of motion was not received by the court. The issues of whether there was a genuine issue for trial in relation to disposition, access by the parents, and access by siblings were already before the court.

[26] The late-filed affidavit material was received by the court in this motion for summary judgment. The court considered the contents of these affidavits.

Legal Framework for Summary Judgement Motions

[27] The court has jurisdiction to deal with a child protection matter by way of summary judgment. The test enunciated is found in Rule 16 of the Family Law Rules and requires the moving party to demonstrate by way of affidavits or other evidence that there is no genuine issue requiring a trial.

[28] The relevant provisions of Rule 16 are as follows:

16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

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

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

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

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

(6.1) 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.

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

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure). [Marginal notes omitted.]

[29] The general principles applicable to summary judgment motions are well established by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. There is no genuine issue requiring trial when the judge can reach a fair and just determination on the merits on a motion for summary judgment. In Hryniak, the court provided the following roadmap for judges to follow to determine whether summary judgment ought to be granted, at paras. 66-68:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

Inquiring first as to whether the use of the powers under Rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution. As well, by first determining the consequences of using the new powers, the benefit of their use is clearer. This will assist in determining whether it is in the interest of justice that they be exercised only at trial.

While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate. There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense. In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above. [Footnotes omitted.]

[30] Hryniak emphasizes that there 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.

[31] The Court of Appeal has held that the summary judgment test applied in child protection cases is, at its core, the same as in other cases: see L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 52. However, the test must be applied with an eye to the specific context and to the particularly high stakes and the rights of parents and children under the Canadian Charter of Rights and Freedoms in child protection proceedings: see L.M., at para. 52; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 76. The Court of Appeal has maintained a consistent approach, both before and after the Hryniak decision, that summary judgment in child protection cases remains highly cautionary: L.M., at paras. 47-48.

[32] However, such caution does not prevent summary judgment from being appropriate in certain child protection proceedings, provided that summary judgment can “ensure a fair and just determination in a prompt and proportionate manner”: L.M., at para. 51.

[33] The Court of Appeal for Ontario usefully summarized the proper approach to summary judgment in child protection proceedings in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80, 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.
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.

[34] “A party answering a motion for summary judgment must put their ‘best foot forward’ in responding to the case for the moving party and when faced with a prima facie case for summary judgment, they must provide evidence of ‘specific facts showing that there is a genuine issue for trial’”: see Children’s Aid Society of Haldimand and Norfolk v. S.V., 2015 ONCJ 147, at para. 36.

[35] Mere allegations or blanket denials contained in self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial are insufficient to defeat a claim for summary judgment: see Children’s Aid Society of the Regional Municipality of Waterloo v. V.L., at para. 48; Children’s Aid Society of Toronto v. T.(K.), at para. 10.

[36] The Ontario Court of Justice stated the following in S.V., at para. 38:

The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material to the determination of the trial. A disputed fact, the existence or non-existence of which will not affect the outcome of the trial, does not raise a genuine issue requiring a trial.

[37] “No genuine issue for trial” has been equated with “the outcome is a foregone conclusion” and “there is no realistic possibility of an outcome other than as sought by the applicant”: see Catholic Children’s Aid Society of Metropolitan Toronto v. O.(L.M.) (1996), 139 D.L.R. (4th) 534 (Ont. Gen. Div.), at p. 559; Children’s Aid Society of Hamilton v. C.R., at para. 54; Children’s Aid Society of the County of Simcoe v. C.S., [2001] O.J. No. 4915 (Ont. S.C.), at para. 5; and Children’s Aid Society of the Niagara Region v. S.C., at para. 43.

[38] In a child protection proceeding, the genuineness of an issue must arise from 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 he or she faces some better prospects than what existed at the time the Society removed the child from their care and that they have developed some new ability as a parent: see Children’s Aid Society of London and Middlesex v. L.A., at para. 14; Children’s Aid Society of Toronto v. R.H., at p. 4.

[39] In Children’s Aid Society of Ottawa v. C.B., 2010 ONSC 6961, the court granted summary judgment and ordered that a child, who was approximately seven months old, become a Crown Ward (as it was then known) without access for the purpose of adoption. Justice Linhares de Sousa stated the following, at para. 57, with respect to permanency planning:

B.W. is a very young child that needs and is entitled to permanency planning. It is clearly in the child’s best interests to have the decision of her future decided quickly. The protection concerns, Ms. B.’s behaviour and response have been consistent throughout all of the previous child protection proceedings and in these protection proceedings. Given the attitude and position taken by Ms. B. toward these proceedings, there is no evidence that her situation will change soon.

[40] In C.S., Justice MacKinnon stated the following at para. 24:

I again use the evidence of past parenting to assist with the disposition finding. I have considered the previous services that have been provided to C.S., the unlikelihood of her significant and permanent rehabilitation as parent to the extent that she could provide for the baby in a safe and nurturing environment, her inability to parent, and the lack of any plan that has been presented by any other family members. The only realistic disposition available is that of crown wardship with no access, for the purpose of placing the child S.S.(3) for adoption, and I so order. S.S.(3) should not have to wait for a trial decision many months hence. Like her biological parents, she too has rights, including the right to security of her person. She is entitled to move on in her own life. On the unique record before me, the trial result is beyond question. The Society’s application is overwhelming.

Analysis

Child in Need of Protection

[41] Despite the submissions of the respondent parents, the issue of whether B.J.M.O. is a child in need of protection is not before the court.

[42] As noted above, the motion for summary judgment before the court is in the context of a status review. B.J.M.O. has already been declared in need of protection.

[43] Any issue regarding this finding was resolved on September 18, 2023 at a Last-Minute Settlement Conference/Trial Management Conference. The endorsement of Justice Desormeau from that date states “On the record today, the parents concede to a continued finding that the three children are in need of protection. The only issue at trial will be disposition (custody to kin versus extended society care).”

[44] The Last-Minute Settlement Conference/Trial Management Conference continued on September 20, 2023. The endorsement of Justice Desormeau from that date reiterated the concession regarding the finding that B.J.M.O. was a child in need of protection and set the summary judgment motion for the outstanding issues. The endorsement sets out detailed directions to the parties regarding timelines as well as the nature and scope of materials to be filed.

[45] The only remaining question for this summary judgment motion is disposition – what order should be granted in the best interests of the child?

Disposition: Best Interests of the Child

[46] Pursuant to s. 101(1) of the CYFSA, where a court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, as I do, it must then decide which disposition in the best interests of the child is the least disruptive: a custody order, a supervision order, an interim society care order, or an extended society care order.

[47] Based on the evidence before me, I find that an order should be made placing B.J.M.O. in the Society’s extended care as the only possible order that would be in the best interests of the child. I find that I can reach this conclusion based on the evidence before me without the need for a trial, and without the need to use the new fact-finding powers set out in Rule 16. The evidence before me overwhelmingly supports this conclusion. The evidence presented by the parents in response to the Society’s motion does not alter my conclusion in this regard at all.

[48] In arriving at this conclusion, I have applied the law concerning the status review application, summarized in Catholic Children’s Aid Society of Hamilton v. B.L.S., 2014 ONSC 5513, para. 83:

a. In a Status Review Hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made. b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection. c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 (S.C.C.)) d. Secondly, the court must consider the best interests of the child. e. The analysis must be conducted from the child’s perspective.

[49] I have also considered subsections 101(3) and 101(4) of the CYFSA, which provide that a court must look at what is the less disruptive alternative if the child is not returned to the person having care of the child immediately before the removal, which should be with a relative, neighbour, or member of the extended family when possible.

[50] As noted above, there are four possible dispositions:

1. An order returning B.J.M.O. to the care of their parents, subject to the supervision of the Society;
2. An order placing B.J.M.O. in the Society’s interim care for a period not exceeding 12 months;
3. An order granting custody of B.J.M.O. to their aunt and uncle, C.O. and M.S.; and
4. An order placing B.J.M.O. in the extended care of the Society.

[51] The option of returning B.J.M.O. to the care of their parents, subject to the supervision of the Society, is not possible. Indeed, it is not sought by the respondent parents.

[52] The respondent parents remain bound by criminal court conditions prohibiting them from having contact with the child.

[53] The respondent parents have not had contact with B.J.M.O. since February 2021.

[54] The criminal trial was recently adjourned with new dates in February and April 2024. It is not possible to predict when the criminal proceedings will be concluded.

[55] Regardless of the outcome of the criminal trial, the child protection concerns are independent of that outcome and would prevent the return of the child to the parent at this time. I am of this view considering the following:

1. In August 2019, when allegations of physical abuse were made against the father in relation to B.J.G.B., K.C.B., and M.M.T.O., the children were examined at the hospital. The following injuries were observed: B.J.G.B. had a small bruise on the back of his head and M.M.T.O. had bruising on her back. The mother disclosed that the father had caused their bruises.
2. In October 2019, FACSFLA removed the eight children from their mother’s care as she was facing charges of criminal negligence causing bodily harm and failure to provide the necessities of life in relation to the children. FACSFLA then initiated child protection applications in relation to the eight children. The children were placed with various kin.
3. As the parents’ criminal conditions allowed for supervised visits with the children, if FACSFLA accepted, visits were organized after a few months. Two visits occurred in February 2020 between the parents and B.J.M.O., M.M.T.O., and G.A.S.O.
4. FACSFLA stopped the visits because the children’s behaviour regressed. C.O., M.S., some officials from the girls’ school, and B.J.M.O.’s daycare reported that the children had resumed violent behaviours, were caught masturbating more often, were soiling themselves (urine and feces) more often, were sucking their thumbs, and were no longer sleeping through the nights. Furthermore, the children made further disclosures of abuse.
5. In November 2020, telephone calls were put in place between B.J.M.O., G.A.S.O., and M.M.T.O. and the respondent parents. Both aunts and uncles reported that the children’s problematic behaviour recommenced.
6. The calls ceased in late January 2021 as G.A.S.O. and M.M.T.O. started to disclose sexual abuse by the parents. There was no further contact between the parents and the eight children in light of the new sexual assault charges and the re-imposition of the criminal no-contact provision.
7. The parents have had no contact with the eight children since February 2021. In August 2021, further sexual assault charges were laid against the parents in relation to M.M.T.O., G.A.S.O., and K.C.B. A no-contact condition was imposed in relation to the eight children and remains in place today.
8. B.J.M.O. has been living with C.O. and M.S. since November 1, 2019. They are members of the father’s extended family.
9. Removing B.J.M.O. from the aunt and uncle could be detrimental to their well-being and would cause them trauma.
10. The relationship between B.J.M.O. and the parents is broken. The parents have declined to attend therapy sessions aimed at rebuilding their relationships with B.J.M.O., G.A.S.O., and M.M.T.O. In this regard, I have reviewed the affidavit of Child Protection Worker Cousineau dated October 20, 2023, at paras. 20-24, 27-29, and the affidavit of Child Protection Worker Marcheterre dated October 23, 2023, at paras. 44, 57.

[56] The second possible disposition is an order placing B.J.M.O. in the Society’s interim care for a period not exceeding 12 months.

[57] The Society is opposed to this disposition being made for the following reasons:

1. B.J.M.O. has already been placed under a supervision order with C.O. and M.S. for over four years. While the delays contemplated in section 122(1) of the CYFSA are not applicable as the child was never placed under the Society’s care, the court should nevertheless impose time limits when a child is removed from their parents’ care for a very long period of time.
2. In the alternative, the Society submits that placing B.J.M.O. in the Society’s interim care is not in B.J.M.O.’s best interests as they have already been involved in child protection proceedings for four years. This order would require the parties to return before the court at the end of the interim society care order. In the submission of the Society, B.J.M.O. deserves finality as per their best interest.

[58] While the respondent parents, in written documentation, proposed that an order be made placing B.J.M.O. in the custody of C.O. and M.S., in oral submissions, the father submitted that a 12-month interim supervision order be made. I took him to mean that a 12-month order for B.J.M.O. to be in the interim care of the Society should be made. He argued that the COVID-19 pandemic delayed proceedings and that the criminal and family proceedings should have been dealt with long before this. The father’s affidavit materials do not address this submission regarding delay. Additionally, the father’s submissions do not address the best interests of B.J.M.O. in relation to the issue of delay.

[59] Section 74(3) (c)(ix) of the CYFSA requires me to consider the effects on the child of delay in the disposition of the case.

[60] The court stated the following in R.H., at p. 4:

Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent’s chance to correct parenting inadequacies must be balanced with a child’s right to appropriate development within a realistic time frame, if damage to the child is to be minimized.

[61] In my view, given the long passage of time, it is not in B.J.M.O.’s best interests to prolong these proceedings by granting an order for B.J.M.O. to be placed in the Society’s interim care. A degree of stability and finality is required in the best interests of the child. In coming to this conclusion, I have considered the factors regarding the best interest of the child outlined in s. 74(3) of the CYFSA.

[62] The third possible disposition is an order granting custody of B.J.M.O. to C.O. and M.S.

[63] The answer and plan of care of the respondent parents dated September 15, 2023 requests an order pursuant to section 102 of the CYFSA placing B.J.M.O. in the care and custody of C.O. and M.S.

[64] Much of the affidavit material filed by the respondent parents is critical of the aunt and uncle and seeks to undermine the quality of the care they provide for B.J.M.O. Additionally, the respondent parents claim that the kin caregivers have conspired to put ideas in the children’s heads, resulting in the criminal allegations against them. Much of the allegations are based upon inadmissible hearsay evidence or is unsourced. The admissibility question aside, it appears that the allegations made by B.J.G.B., K.C.B., and M.M.T.O. were disclosed before any of the children were residing with the respective kin. It is not possible that the kin caregivers conspired to put the allegations in the children’s heads.

[65] This disposition is not available to the court. Section 102(1) requires that a party consent to a custody order being made in their favour: see Children’s Aid Society (Ottawa) v. A.-D., 2018 ONSC 7466, at para. 53. C.O. and M.S. do not consent to this order being made as they wish to adopt B.J.M.O.

[66] The final disposition available is for an order placing B.J.M.O. in the Society’s extended care.

[67] It is the position of the Society that this is the only order available to the court that is in B.J.M.O.’s best interest.

[68] The position of the Society is supported by C.O. and M.S., who wish to adopt B.J.M.O. They submit that there is no genuine issue for trial in relation to either disposition or access. They submit that the disposition sought by the Society is in the best interest of the child. They point to the considerable progress that B.J.M.O. has made in his development since he has been in their care. They also point to the considerable harm that would befall B.J.M.O. should they be removed and another disposition made.

[69] The position of the Society is also supported by respondents S.O. and S.D., who have custody of M.M.T.O. and G.A.S.O. It is also supported by the Children’s Lawyer representing B.J.M.O.’s interest.

[70] I am of the view that there is no genuine issue for trial regarding disposition. The material before me permits me to reach a fair and just determination on the merits: Hryniak, at para. 49.

[71] I find that an order placing B.J.M.O. in the extended care of the Society is in their best interests for the following reasons:

1. It respects B.J.M.O.’s wishes: CYFSA, s. 74(3)(a). While they are only eight years old, B.J.M.O. has repeatedly told his Child Protection Worker, Claudelle Marcheterre, that they feel safe and loved by their aunt and uncle and that they wish to remain with them as they take care of them and do not hurt them. B.J.M.O. will sometimes refer to the aunt and uncle as “mom” and “dad”, but also as “uncle M.S.” and “aunty C.O.”.
2. It addresses B.J.M.O.’s mental and emotional needs as well as their level of development: CYFSA, s. 74(3)(c)(i). In November 2019, B.J.M.O. was extremely difficult to understand. They would growl at times instead of using words. They had delays with their communication, problem-solving, and social skills. B.J.M.O. had challenges managing their emotions: they would burst into anger, screaming, crying, and hurting people around them. B.J.M.O. would demonstrate sexualized behaviour: they would hump vigorously and excessively during downtime. They had challenges with their sleep patterns: they would have nightmares about their father coming to get them. Presently, the situation is dramatically different. They are caught up with their developmental delays. Their speech is clear and diverse. They have many friends at school and are able to respect boundaries and establish their own boundaries. They have gained weight and are becoming more self-confident. B.J.M.O. is now able to identify their emotions and work through them – sometimes with the assistance of their caregivers. They no longer display humping behaviour and sleep disruption is not an issue most nights. B.J.M.O. is now in a regular classroom.
3. It respects B.J.M.O.’s race, origins, sexual orientation, gender identity, and gender expression: CYFSA, s. 74(3)(c)(iii). C.O. and M.S. are B.J.M.O.’s extended family. It is also important to note that B.J.M.O. presents with signs of gender dysphoria and is gender fluid. Sometimes they identify as a girl, other times as a boy. I am satisfied that C.O. and M.S. and their immediate family are open and accepting of B.J.M.O.’s gender fluidity. They follow B.J.M.O.’s cues and are supportive of B.J.M.O.
4. It ensures B.J.M.O.’s positive and stable relationship with their aunt and uncle, C.O. and M.S. It provides for a secure place as a member of a family: CYFSA, s. 74(3)(c)(vi) and (vii). The evidence establishes that B.J.M.O. feels accepted by their aunt and uncle and their family.
5. It promotes B.J.M.O.’s ongoing close relationship with their siblings G.A.S.O. and M.M.T.O. as well as their other siblings: CYFSA, s. 74(3)(c)(vi) and (vii). Their aunt and uncle frequently visit with G.A.S.O. and M.M.T.O.’s caregivers. Additionally, the aunt and uncle ensure that B.J.M.O. has contact with the other siblings.
6. It ensures the continuity of B.J.M.O.’s care with C.O. and M.S. B.J.M.O. has been with them for most of their life. It also ensures that B.J.M.O. does not suffer harm from being removed from them. I am satisfied that the evidence establishes that B.J.M.O.’s well-being requires consistent, predictable, and secure care and that removing B.J.M.O. from the present care would cause significant trauma to the child, likely resulting in emotional and behavioural issues. The order would allow for an application for the adoption of B.J.M.O., as is the clear intent of the Society: CYFSA, s. 74(3)(c)(viii).
7. It protects B.J.M.O. as there remains a high degree of risk if B.J.M.O. were to return to live with their parents: CYFSA, s. 74(3)(c)(x).
8. It addresses the concern regarding the delay in the proceedings and ensures no further delays occur, therefore permitting B.J.M.O. to be adopted in a timely manner: CYFSA, s. 74(3)(c)(ix).

[72] Pursuant to section 74(3) (c)(viii) of the CYFSA, the court is to consider the merits of a plan for the child’s care proposed by the Society compared with the merits of the child remaining with or returning to a parent. The parents’ answer and plan of care asserts that an order granting custody of B.J.M.O. to C.O. and M.S. should be made. As discussed above, this order cannot be made.

[73] As noted above, the respondent parents sought to file a notice of motion, which provided for T.C. and K.C. to care for B.J.M.O. if C.O. and M.S. declined to consent to a custody order of B.J.M.O. being made in their favour. This late filing was not permitted, but the late-filed affidavits were considered insofar as they related to the issues properly before the court.

[74] I have considered the late-filed affidavits of T.C., B.K., J.O., and L.O. provided by the respondent parents. The affidavits largely consist of the expressions of opinion regarding the good character of the respondent parents. Some affidavits also provide a view of the flawed character or conduct of respondents C.O. and M.S. Significant portions are based on inadmissible hearsay. The affidavits also contain the views of the deponents about the proper outcome of this motion. The affidavit material does not support the alternative proposal of care being provided by T.C. and K.C. After carefully reviewing and screening these affidavits, I remain of the view that there is no genuine issue for trial.

[75] I have considered the affidavits and submissions of the parents. Much of the information contained in the affidavits and in the submissions are criticisms of the way the Society has conducted itself, especially in relation to access to the children, despite the criminal court release conditions that prohibit contact and that remain in place. The affidavit also contains criticism of the respondents C.O. and M.S., although they also request that the court order that custody of B.J.M.O. be provided to them. I note that the basis of much of the criticism is based on inadmissible hearsay evidence.

[76] Portions of the submissions and affidavit evidence of the respondent parents are a plea for a delay of the family court proceedings regarding B.J.M.O. until after the criminal proceedings, giving them a chance to prove the truth. They submit that they will seek to retain a lawyer. As discussed above, a party answering a motion for summary judgment must put their “best foot forward” in responding to the case for the moving party and when faced with a prima facie case for summary judgment, they must provide evidence of “specific facts showing that there is a genuine issue for trial”. The parents have not presented specific facts showing that there is a genuine issue for trial in relation to the disposition to be made. The issue of disposition can be determined in a fair and just manner on this motion for summary judgment.

[77] Given the conclusion of the court that an order should be issued for B.J.M.O. to be placed under the extended care of the Society, the question of access must be determined.

Access to the Child

[78] The Society requests that B.J.M.O. be granted the same kind of access to their parents as their siblings, G.A.S.O. and M.M.T.O. The Society submits that this is in the best interests of the child as this proposal is child-oriented and based on the child’s wishes.

[79] The kin caregivers support the position of the Society. They stress the importance of respecting B.J.M.O.’s wishes and the recommendations of health professionals regarding access.

[80] The Children’s Lawyer representing B.J.M.O. adopts the position of the Society.

[81] The respondent parents seek weekly access at a supervised access centre according to the child’s wishes and their criminal conditions. They also seek that, following the result of the criminal trial, they shall have access pursuant to a set schedule in the best interest of the child. They submit that they seek the opportunity to show their parenting abilities. They assert that they will do whatever it takes.

[82] At present, criminal court release conditions prohibit contact by the respondent parents with eight of nine children.

[83] With respect to the issue of access, there is no genuine issue for trial. A fair and just determination may be made on this motion for summary judgment.

[84] Having considered the circumstances, I conclude that it is in the best interests of the child that an order shall issue providing that any access between B.J.M.O. and their parents shall be at the discretion of the Society and in accordance with B.J.M.O.’s wishes, if they can be ascertained, and after receiving input of the medical health providers providing care to the child.

[85] Because of the factors already discussed in these reasons for decision, it is not in the best interests of the child to order weekly visits between the parents and the child. The criminal court release conditions presently prohibit this, and the parents have not had contact with B.J.M.O. since 2021. It is in B.J.M.O.’s best interest that the Society have the discretion sought regarding the parents’ access to the child.

Other Orders Requested

[86] The Society also seeks the following orders:

1. B.J.M.O. should be granted access to their siblings in a fashion consistent with the manner in which the siblings have access to B.J.M.O.
2. Should the parents be provided with documents, media, information, or pictures of the child, they will not publish these on any form of social media without the prior written consent of the Society.
3. The Society can obtain B.J.M.O.’s official documents, such as their birth certificate, health card, and passport. The parents’ consent is not required to obtain these documents. Furthermore, the child is free to travel with the Society for vacation purposes outside Ontario or Canada without first obtaining the parents’ consent.

[87] These orders were not the subject of extensive oral argument. The respondent mother did reference her past behaviour of making social media posts regarding B.J.M.O. and the child protection proceedings. In oral argument, she submitted that such conduct has not reoccurred since 2021.

[88] There is no genuine issue for trial in relation to any of these orders requested.

Order

[89] There shall be a final order on summary judgment as follows:

1. There is no genuine issue, as contemplated in section 16 of the Family Law Rules, requiring a trial in relation to the Society’s notice of motion dated October 26, 2023.
2. In their best interest, the child, B.J.M.O., will be placed under the extended society care of Valoris for Children and Adults of Prescott-Russell.
3. B.J.M.O. will have access to their siblings as determined by the Society and subject to the wishes of B.J.M.O., if they can be ascertained, and the circumstances of each of the siblings. The siblings referenced here are the following: M.M.T.O. (born in 2014), G.A.S.O. (born in 2012), H.M.C.O. (born in 2007), L.L.C.O. (born in 2007), C.J.H. (born in 2006), K.C.B. (born in 2006), B.J.G.B. (born in 2008), and R.K.L.O. (born in 2020). a) The access holder is B.J.M.O. The access recipients are the above-named siblings of B.J.M.O.
4. Any access between B.J.M.O. and their parents, P.B. and M.O., shall be at the discretion of the Society and in accordance with B.J.M.O.’s wishes, if they can be ascertained, and after receiving input of the medical health providers providing care to the child. If access is to occur, the caregivers will have the discretion regarding frequency, duration, and supervision of the visits. a) The access holder is B.J.M.O. The access recipients are the parents.
5. Should the parents be provided with documents, media, information, or pictures of the child, they will not publish these on any form of social media without the prior written consent of the Society.
6. The Society can obtain B.J.M.O.’s official documents, such as their birth certificate, health card, and passport. The parents’ consent is not required to obtain these documents. Furthermore, the child is free to travel with the Society for vacation purposes outside Ontario or Canada without first obtaining the parents’ consent.

Holowka J. Released: January 15, 2024

COURT FILE NO.: FC-2023-7 DATE: 2024/01/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Valoris for Children and Adults of Prescott-Russell Applicant And P.B. Respondent And M.O. Respondent And C.O. and M.S. Respondents And S.O. and S.D. Respondents

REASONS FOR DECISION ON MOTION FOR SUMMARY JUDGMENT Holowka J. Released: January 15, 2024