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 Family 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.

(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 NO.: FC-22-CP69-1 DATE: 2024/10/02

ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF M.M.T.B., S.W.B., born, and Z.J.J.B.

BETWEEN:

The Children’s Aid Society of Ottawa, Applicant

AND:

S.B-M., Respondent D.M.B., Respondent L.Z., Respondent

Counsel: Mark Hecht, Counsel for the Applicant Society Maryn Marsland, Counsel for the Respondent Mother Kristen Robins, Counsel for the Respondent Father Deborah Bennett, Counsel for the Respondent Paternal Grandmother Deanna Paolucci, Counsel for the OCL

HEARD: March 7, 2024 REHEARD: September 26, 2024

REASONS FOR JUDGMENT

JUSTICE ENGELKING

[1] On March 7, 2024, Summers J. heard a SJM brought by the Children’s Aid Society of Ottawa. Summers J. reserved her decision on this motion. Due to her being on an extended medical leave at this time, and on consent of the parties, I listened to the recording of that day’s hearing, reviewed the evidence filed by the parties, and this is my decision on the motion.

[2] This SJM brought by the Children’s Aid Society of Ottawa (hereinafter “the Society” or “the CAS”) pertains to the children M.M.T.B., S.W.B., and Z.J.J.B. The children’s mother is S.B-M. The father of the children is D.M.B. The paternal grandmother of the children is L.Z. The children are represented by Ms. Paolucci on behalf of the Ontario Children’s Lawyer.

[3] The Society’s Notice of Motion seeks an order finding that there is no genuine issue in this matter requiring a trial and placing the children in the custody of their paternal grandmother pursuant to section 102 of the Child, Youth and Family Services Act (“CYFSA”) with certain parenting time for the mother and the father.

[4] The children’s father, D.M.B. is in support of the Society’s motion, and consents to the order being requested.

[5] The children’s paternal grandmother, L.Z. is also in support of the Society’s motion, and she consents to a custody order to herself. The grandmother has also filed her own Notice of Motion requesting an order relating to a change of the child, Z.J.J.B.’s surname.

[6] The children’s mother, S.B-M. opposes the Society’s motion and seeks an order of shared decision-making authority and shared parenting with Ms. Z. She also opposes the grandmother’s motion.

[7] In support of its motion, the Society relied upon the following materials:

1. Notice of Motion dated February 23, 2024;
2. Affidavit of Michelle Tyrrell sworn on July 28, 2023;
3. Affidavit of Kyle Driscoll sworn on February 23, 2024; and,
4. Affidavit of Michelle Tyrrell sworn on February 24, 2024.

[8] In support of the motion, Mr. B. relied upon his affidavit sworn on February 28, 2024.

[9] In support of the Society’s motion and her own motion, Ms. Z. relied upon her affidavit sworn on February 27, 2024, and reply affidavit sworn on March 4, 2024.

[10] In defence of the motions, Ms. B-M. relied upon her affidavit sworn on March 1, 2024.

[11] For the reasons that follow, I find that there is no genuine issue in this matter which requires a trial. I find additionally that the children continue to be in need of protection, and I grant summary judgment as per the Society’s Notice of Motion dated February 23, 2024, with certain amendments as outlined below. I dismiss the paternal grandmother’s motion.

Background Facts

[12] The Society has been involved with this family since 2020. The family also had previous involvement with the Edmonton Region Child and Family Services while they were living in Alberta between 2015 and 2019. The presenting issues are, and have always been, substance abuse by both parents, mental health concerns of Ms. B-M., which may be exacerbated by substance use or abuse, poor parenting skills of the parents, particularly in managing the children’s behaviours, and domestic violence between the parents and/or mother’s subsequent partners and exposure of the children to same.

[13] The parents were in a relationship between 2010 and 2022. As indicated, they were in Alberta from 2015 to 2019. After their respective returns from Alberta, the relationship continued on an off and on-again basis until 2022. The three subject children of this application were born of the relationship. Ms. B-M. has subsequently had another child, A.A.M. with J.D. Mr. B has also had another child with a new partner, born just before this motion was first heard in March of 2024. These latter two children are not the subjects of this application. A.A.M. is the subject of a separate protection application; she was removed to a Place of Safety on November 10, 2023, and at the time this motion was originally heard was in the temporary care and custody of the Society. Mr. B’s son remained is in his care.

[14] Due to the identified protection concerns around Ms. B-M.’s substance use and mental health issues, a safety plan was developed in August of 2022 wherein Ms. B-M. was not to be alone with the children. She was then living in the home of the maternal grandmother, J.M., who, along with a friend of Ms. B-M., formed part of the safety plan. The Society discovered later in the fall of 2023 that the agreed upon safety plan was not being followed, and M.M.T.B., S.W.B. and Z.J.J.B. were removed to a Place of Safety on November 28, 2022.

[15] On December 1, 2022, the court granted a temporary without prejudice supervision order placing the three children in the care and custody of their paternal grandmother, Ms. Z. They have continued to reside with Ms. Z. since that date. On March 6, 2023, Justice Blishen granted a final order on consent of the parties making statutory findings for the children, finding them in need of protection pursuant to subsection 74(2)(h) of the CYFSA, and placing them in the care and custody of Ms. Z. for a period of five months subject to the supervision of the CAS on certain terms and conditions.

[16] In July of 2023, the Society filed its Status Review Application seeking an order terminating the existing order of Justice Blishen “upon the Parties negotiating a Parenting Agreement, with the Children’s primary residence and final decision-making remaining with the Paternal Grandmother, [L. Z.].”

[17] The father and the paternal grandmother were able to negotiate a parenting agreement at mediation, and the father is consenting to the terms outlined in the Society’s Notice of Motion, which include that the children shall reside with Ms. Z., that she will be the sole decision-maker for them, after consultation with the father as set out, and that Mr. B. will have parenting time with the children a minimum of once a week with the level of supervision at the grandmother’s discretion, as well as at active extra-curricular activities of the children once per month.

[18] The mother did not reach an agreement in mediation with the father and grandmother. As indicated, she seeks an order for joint decision-making authority with the grandmother and shared parenting.

Analysis

[19] The most significant presenting issue in this case is the mother’s use and/or abuse of substances, which use may exacerbate both her mental health issues and her struggles in adequately parenting the children.

[20] At the time of Justice Blishen’s order in March of 2023, Ms. B-M. was clearly struggling with substance use/misuse, as well as with her mental health status, but she was advising the Society that she was engaging with services. On March 8, 2023, Ms. B-M. advised Ms. Tyrrell that she had not used any hard drugs since the end of November 2023, but that she did still use marijuana before going to bed. [1] Ms. B-M. indicated that she continued to be connected with Recovery Care and that she was seeing a psychiatrist at the Royal Ottawa Hospital (“ROH”) while she awaited a bed at the ROH for residential treatment, to which she continued to be committed. [2] Ms. B-M. acknowledged ongoing difficulties with managing the children’s behaviours at access, and her visits were shortened and their location was changed to address this. [3]

[21] On April 28, 2023, Ms. B-M. advised Ms. Tyrrell that she was being investigated by the police for fraud related to the theft of a trailer. [4] She again stated that she had been clean since the children were removed from her care in November. Ms. B-M. indicated to Ms. Tyrrell that she was no longer receiving services from the ROH, but that she was doing counselling through Rideauwood Addiction and Family Services (“Rideauwood”). [5]

[22] On May 16, 2023, Ms. B-M. advised Ms. Tyrrell that her home was broken into on April 9, 2023, by a male she had been dating. [6] A discussion was had regarding concerns the Society had with the people with whom Ms. B-M. was involved and the chaotic nature of her lifestyle. Ms. B-M. confirmed with Ms. Tyrrell that she was not being charged for fraud. She also advised that she was pregnant with her new boyfriend’s child, but she wasn’t sure if she was going to keep the child. [7] Ms. B-M. again confirmed that she had not used any hard drugs since November of 2022. She again stated she was committed to completing residential treatment and that she continued to be on a waiting list. [8] Ms. B-M. also admitted to having continued difficulties in managing the children during access. [9]

[23] On June 19, 2023, the Society received some information from an Emergency Room physician which Ms. B-M. had attended because of a car accident. Ms. B-M. objects to the inclusion of this information in paragraph 33 of Ms. Tyrrell’s affidavit sworn on July 28, 2023, on the basis that it is hearsay and inadmissible. I concur with Ms. B-M. that this evidence is inadmissible for the truth of its contents, as is that contained in paragraphs 34 and 48 of the same affidavit. I do not admit the evidence contained within those paragraphs.

[24] Regardless of its inadmissibility for the truth of its contents, the information Ms. Tyrrell received caused her to have a conversation with Ms. B-M., along with the CYC Mr. Driscoll, on June 20, 2023. In that conversation, Ms. B-M. admitted to “not handling life right now” and not being in a good state. Ms. B-M. advised that she had been having seizures for quite some time, which she related to stress. [10] Ms. B-M. advised that she was eighteen weeks pregnant, and that her boyfriend caused her a lot of stress. [11] Ms. B-M. admitted to using drugs and testing positive for opiates and cocaine. [12] Ms. B-M. stated she had used four days prior and described it as a one-time mistake. Ms. B-M. indicated she used cocaine and dilaudid, which is drug she had also been using in the summer/fall of 2022. [13]

[25] Ms. B-M. also takes issue with the admissibility of certain evidence contained in Ms. Tyrrell’s affidavit sworn on February 23, 2024. For example, paragraph 20 of that affidavit refers to the same information which was contained in paragraph 33 of Ms. Tyrrell’s affidavit of July 28, 2023, which I have already ruled inadmissible.

[26] Ms. B-M. also objects to paragraphs 21 and 22 of Ms. Tyrrell’s February 23, 2024, affidavit, wherein she refers to information she received from the father of A.A.M., J.D., regarding Ms. B-M.’s drug use, also on the basis that it is hearsay. While this may be the case, Mr. J.D. has also sworn an affidavit in this matter, which is attached as Exhibit “A” to the affidavit of the children’s father, D.B., sworn on February 28, 2024, and which provides similar admissible information, more about which I will speak later.

[27] On November 10, 2023, Ms. Tyrrell had a telephone conversation with Ms. B-M. in which Ms. B-M. confirmed that post-birth of A.A.M she was prescribed suboxone, an Opiate Replacement Therapy, and that prior to birth she had been buying suboxone and cocaine off the street. [14]

[28] On December 1, 2023, the CYC Mr. Driscoll received information from the paternal grandmother, Ms. Z. that Ms. B-M. may have suffered an overdose on November 30, 2023. J.D. has also provided his direct information about this incident, which Ms. B-M. denies, in his affidavit sworn on February 28, 2024.

[29] In December of 2023, Ms. Tyrrell scheduled three drug screens for Ms. B-M., none of which she attended. [15]

[30] On December 21, 2023, Ms. B-M. advised Ms. Tyrrell that she had declined two opportunities to attend residential treatment due to wanting to spend the holidays with her children and taking care of her boss from work. [16] According to Ms. Tyrrell, Ms. B-M. indicated that she was still intending to attend residential treatment in the new year. At that time, Ms. B-M. was living in an AirBnB, and indicated she had spent all her money. [17]

[31] Ms. B-M. advised Ms. Tyrrell that she would not pass a drug test on that date, indicating that she had used coke on the weekend. [18] She denied using opiates but said she was taking suboxone.

[32] During this same period, Mr. Driscoll noted several concerns during Ms. B-M.’s access visits with the children. These included Ms. B-M. missing visits or being late for check-ins such that the visits needed to be cancelled [19], Ms. B-M. engaging is conflict with the maternal grandmother in front of the children, [20] Ms. B-M. struggling to maintain structure and routine for the children and/or manage their behaviours, [21] Ms. B-M. not fully engaging and leaving the parenting to the maternal grandparents, [22] and Ms. B-M. falling asleep during the visits. [23]

[33] Mr. Driscoll indicates that between January 25 and February 1, 2024, Ms. B-M. missed five scheduled visits in a row, with either all four children or A.A.M. due to her not making the check-in for four and being late for the fifth. Further, Mr. Driscoll evidence is that on the February 8, 2024, visit, Ms. B-M. appeared to be under the influence in that she was not able to keep her eyes open, nodded off and fell into a deep sleep. Ultimately, the police were called on this occasion out of concern for Ms. B-M.’s state. Ms. B-M.’s access visits were put on hold after this visit, and as of the date of the swearing of Ms. Tyrrell’s affidavit, or February 23, 2024, Ms. B-M. had not reached out to her to reinstate her access.

[34] In addition to these direct admissions made by Ms. B-M. to Ms. Tyrrell and Mr. Driscoll, as well as Mr. Driscoll’s direct observations, Mr. D.B. and Mr. J.D. have both provided their own evidence as to Ms. B-M.’s history of drug use/abuse.

[35] In his affidavit sworn on February 28, 2024, Mr. B. has indicated that he and Ms. B-M. used drugs together, primarily cocaine, for the majority of their relationship, but they also started using opiates together in approximately 2022. [24] They were in an on and off relationship between 2020 and 2022 (after they both returned to Ottawa from Alberta), during which they continued to use drugs together, primarily cocaine. [25] Mr. D. indicated that drug use fueled physical altercations between them.

[36] In 2021, Mr. D. was charged with assaulting Ms. B-M. and was subject to conditions not to be in contact with her. Notwithstanding those conditions, they reconciled again, and they used drugs together again. [26]

[37] Mr. D. indicates in his affidavit that he was incarcerated on August 11, 2022, and released on April 9, 2023. Mr. D. indicates further that he reconnected with Ms. B-M. shortly after his release from custody and they used crack cocaine together for about a week. [27] This, of course, coincides with a time during which Ms. B-M. was indicating to Ms. Tyrrell that she had not used hard drugs since November.

[38] Mr. J.D. indicates in his affidavit sworn on February 28, 2024, that he was in a on and off relationship with Ms. B-M. between September of 2022 and December of 2023. Shortly after their relationship started Ms. B-M. introduced Mr. D. to smoking crack cocaine and sniffing dilaudid opioid pills. [28] By January of 2023, Mr. D. and Ms. B-M. had “both been using an extensive amount of drugs on a daily basis”. [29] According to Mr. D., they were using drugs throughout Ms. B-M’s pregnancy, approximately 7 grams of crack cocaine per day, as well as 5 to 10 dilaudid pills per day. [30] Mr. D. indicates that he witnessed Ms. B-M. smoking crack cocaine in the car on her way to visits with the children, because he drove her there. [31]

[39] Mr. J.D. also described finding Ms. B-M. unresponsive after smoking Fentanyl in a glass bong on November 30, 2023, and administering Narcan to her twice nasally, to which she eventually responded. [32]

[40] In her affidavit sworn on March 1, 2024, Ms. B-M. acknowledges not having attended for residential treatment in the previous year and a half, however, she stated that she “faced many roadblocks in getting this done”. [33] Ms. B-M. does not specify what those “roadblocks” were, but for in relation to the Portage Treatment Centre in Montreal, which she says required her to be a resident of Quebec for coverage of its costs. Ms. B-M. states that she reached out to RAAM Clinic at the Ottawa Hospital, the Portage Treatment Centre in Montreal, the Pinewood Women’s Residential Treatment Program in Whitby, and Rideauwood Addiction and Family Services in Ottawa. Ms. B-M. does not provide any evidence as to what the results of reaching out to these services was, again but for her information about Portage, nor does she provide any correspondence or confirmation of her efforts from any of these services.

[41] In response to Ms. Tyrrell’s evidence that she had declined two residential treatment options in December of 2023, Ms. B-M. states that she only declined a detox spot in Kingston because she did not want to disappoint her children over Christmas. She was also hesitant to travel outside of Ottawa for a short-term spot without a longer-term option being lined up. [34]

[42] Ms. B-M. indicates that she additionally had hesitance to access non-residential programing, but that once she realized she would need to maintain her sobriety on her own, she started “on an immediate basis” attending virtual sessions of SMART Recovery. Ms. B-M. did not indicate in her affidavit on what date she commenced participating in these sessions, or how often she was doing so, beyond saying that they occur weekly by Zoom and she has attended “several times”. She did not provide any confirmation from SMART Recovery of her involvement with that service.

[43] Ms. B-M. denies that any of the evidence provided by Mr. J.D. is true and infers that he (along with his on-and-off again girlfriend, T.R.) simply wants to make trouble for her. She denies overdosing on November 30, 2023, and states that someone simply took a picture of her napping. She does not address Mr. D.’s information of having administered Narcan to her twice on that date.

[44] Ms. B-M. denies being under the influence in any of her access visits and states that she was not sleeping well in the weeks leading up to the motion due to her daughter having been removed from her care and the stress caused by her involvement with the CAS. She, therefore, struggled keeping up her energy. Additionally, when A.A.M. would sleep on her chest during visits, this would cause her to feel sleepy as well. Ms. B-M. did not address the police being called to her February 8, 2024, visit.

[45] Ms. B-M. also denied engaging in conflict with the maternal grandmother in front of the children, stating that they would talk on the phone before the visit or in person after the visit ended. Ms. B-M. relied on Mr. Driscoll’s observation note of the visit of January 12, 2024, to demonstrate that the conflict did not occur in front of the children. It indeed appears that the conflict between Ms. B-M. and the maternal grandmother was occurring prior to the children arriving for the visit on that date. However, Mr. Driscoll also noted such conflict to be occurring in front of the children on December 22, 2023, January 2, 2024, and January 11, 2024, as well. Ms. B-M. did not provide observation notes for those dates which would demonstrate otherwise.

[46] Ms. B-M. states in her affidavit that Mr. B. was physically and emotionally abusive to her throughout their relationship, eventually being charged with and convicted of assault, unlawful confinement, mischief, and breach of his non-contact conditions. [35] Ms. B-M. did not address or deny Mr. B.’s evidence of their drug use together.

[47] Ms. B-M. has also indicated that Mr. D. was emotionally abusive towards her, which has been difficult for her in the “context of my history of abusive relationships”. [36] But for her denial of overdosing on November 30, 2023, Ms. B-M. did not address the specifics of Mr. D.’s evidence of their drug use together. She simply made a blanket statement that none of his evidence was true.

[48] Ms. B-M. did acknowledge that A.A.M. was experiencing symptoms of withdrawal after her birth but stated that it was from her use of suboxone (from the street), which she was taking “to keep her safe from risk of relapse on my part”. [37]

[49] With respect to her involvement in services, Ms. B-M. was involved with the Oracle Midwives program when A.A.M. was born. Ms. B-M. was also able to get a prescription for Suboxone while at the hospital when she gave birth to A.A.M. As indicated above, she has connected with the SMART Recovery group program, which she attended “several times”. Ms. B-M. indicates that she has a doctor through Recovery Care. Ms. B-M. indicates that she has personal support from her parents, who are presenting a plan for A.A.M., and her friends, Jeff and Melissa.

[50] The paternal grandmother, Ms. L.Z.’s evidence is that she has assisted the children’s parents over the years, and specifically Ms. B-M. Historically, Ms. Z. travelled to Alberta twice to care for the children. Once was due to conflict between Ms. B-M. and her mother which involved the RCMP at their home in Grimshaw, and once was to care for M.M.T.B. in the hospital in Edmonton during his cancer treatment, as Ms. B-M. and her mother were removed from the Ronald McDonald House at the Stollery Children’s Hospital. [38]

[51] Ms. Z. noted several issues with Ms. B-M.’s care of the children. These included Ms. B-M. not being able to manage the children’s behaviours, the children being left alone in the community, and M.M.T.B. being medicated for ADHD without a diagnosis. [39] Ms. Z. was providing care to the children frequently prior to them being removed from the mother’s care in November of 2022. When the children came into her care fulltime, Ms. Z. noted that they were unable to regulate their emotions, and that they acted out behaviourally and used poor language. [40] Ms. Z. has implemented structure and routine for the children and their behaviours have dramatically improved. Additionally, M.M.T.B. is not on medication.

[52] Ms. Z. notes that Ms. B-M.’s lifestyle is chaotic, and she worries very much about the impact of her lack of stability on the children. She notes that the children return from access visits with Ms. B-M. “unsettled”, and that it takes several days to get them back on track. [41] She also notes that it is very hard on the boys when Ms. B-M. disappoints them, either by missing visits, not following through with promises, or not answering their twice weekly phone calls.

[53] The boys are registered and participating in various extra-curricular activities, and M.M.T.B. is currently seeing a counsellor through CHEO about his mental health. S.W.B. is on a waitlist at CHEO for services relating to sexualized behaviour, which has been noted to be inappropriate for his age.

[54] In respect of Ms. B-M.’s parenting time, the Society’s Notice of Motion requests an order that it be at the discretion of the paternal grandmother. Ms. Z. proposes that Ms. B-M.’s parenting time with the children be a minimum of every second week supervised at the Supervised Access Program (“SAC”) of Family Services Ottawa. She suggests that until such time as a place is available at the SAP, the Society provide supervised access twice monthly to “fill the gap”. The Society indicates that it is agreeable to this suggestion.

[55] Although the Notice of Motion is silent in this regard, Ms. Z. has proposed in her submissions that telephone access to the children by Ms. B-M. be either at her discretion, or once weekly with a provision that it revert to her discretion if Ms. B-M. misses two telephone calls in a row.

The Law of Summary Judgment

[56] Justice Corthorn canvassed the post- Kawartha-Haliburton Children’s Aid Society v. M.W., (2019 ONCA 316, 432 D.L.R. (4th) 49), approach to Summary Judgment in child protection matters at paragraphs 29 through 35 of The Children’s Aid Society v. S.P. and K.L., 2019 ONSC 5624 as follows:

Summary Judgment

a) General Principles

[29] It is well-established that a summary judgment motion may be brought in a proceeding under the Act. The governing two-part test was articulated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. First, the judge must determine, based only on the evidence in the record, if there is a genuine issue requiring a trial. Resort to additional fact-finding powers is not permitted at this first stage. If there is no genuine issue requiring a trial, then the matter may be summarily determined.

[30] If there appears to be a genuine issue requiring a trial, then the second step requires the judge to look beyond the evidence in the record. At this stage, the judge determines whether the need for a trial can be avoided by utilizing the additional fact-finding powers available to the judge under the relevant procedural rules. If it can, then the matter may, at the discretion of the judge, be summarily determined. If not, then summary judgment is not granted (Hryniak, at para. 67).

[31] Rule 16 of the FLR governs motions for summary judgment. The additional fact-finding powers are set out in r. 16(6.1). Those powers permit the judge hearing a motion for summary judgment to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interests of justice that such powers be exercised only at trial.

[32] Pursuant to r. 16(4), the burden of proof rests with the moving party to set out “specific facts showing there is no genuine issue requiring a trial.” A party responding to a motion for summary judgment is not entitled to “rest on mere allegations or denials” (r. 16(4.1)). A responding party is required, through affidavit or other evidence, to set out specific facts that demonstrate there is a genuine issue requiring a trial. In summary, each party on a motion for summary judgment is required to put their best foot forward.

b) Child Protection Matters

[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 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.

[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).

[57] I, thus, recognize the court’s obligation to take a highly cautious approach to this matter. Additionally, as is noted in Kawartha-Haliburton, the ultimate burden of proof in a motion of summary judgment is not shifted to the Respondents once a prima facie case has been made out by the moving party. Rather, the court must be satisfied on the evidence before it the moving party has established that there is no genuine issue requiring a trial. In this case, I am so satisfied.

[58] Notwithstanding Ms. B-M.’s position, the underlying concern in this case continues to be her untreated addiction to drugs, specifically cocaine, including crack, and opiates, and the effects her addiction has on her mental health and on the well-being of the children. I concur with counsel for Mr. B. that there is extensive admissible evidence available to the court, including Ms. B-M.’s own evidence, which points to this fact. Ms. B-M. has been acknowledging for almost two years that she requires residential treatment. However, based on the evidence of Mr. B., which Ms. B-M. did not refute, it appears that her problem is much longer standing. No evidence has been provided which demonstrates that she has to date undertaken such treatment.

[59] Additionally, and although the burden of demonstrating that there is no genuine issue requiring a trial is the Society’s, Rule 16(4) of the Family Law Rules provides that the party responding to a motion for summary judgment 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”. Ms. B-M. has not set out such specific facts. Indeed, in her affidavit, Ms. B-M. either deflects blame for her issues onto others (the CPW, Mr. B., Mr. D. or Ms. Z.) or simply denies what the other witnesses are stating, much of which is corroborative one of the other.

[60] I am satisfied that there is no question that the children remain in need of protection in this case. The main issue which necessitated the Society’s involvement has not changed. The secondary issue, that of Ms. B-M. being subject to domestic violence also appears to be an ongoing theme for her. I find that there is no genuine issue requiring a trial as it relates to a continuing finding of in need of protection.

[61] Similarly, as it relates to the disposition being requested, I find there is no genuine issue requiring a trial. Until Ms. B-M. addresses her addiction in a meaningful way, she will not be able to parent, or even co-parent the children, as she proposes. First, Ms. B-M. is significantly hampered by her addiction, and her decision-making ability is negatively impacted by it. One example of this is Ms. B-M.’s decision to use immediately before exercising access with the children, which she denies but which, on the evidence of Mr. D. and Mr. Driscoll, I find on a balance of probabilities likely occurred. Another is her decision to forego detox to be close to the children over Christmas. While this decision may have seemed reasonable to Ms. B-M. in the short term, its long-term implication was and is extremely negative, both for her and for the children. These do not evince an ability on Ms. B-M.’s part to make decisions that are in the best interests of her children.

[62] Second, Ms. B-M’s lifestyle is chaotic, and the chaos of it impacts the children, even when they are not residing in her care. There is not only extensive evidence regarding drug use/misuse, but also repeated episodes or patterns of Ms. B-M. involving herself in emotionally and/or physically abusive relationships, the fall out of which impacts the children.

[63] Third, Ms. B-M. does not trust or get along well with the paternal grandmother. Indeed, Ms. B-M. accuses Ms. Z of many things in her affidavit; to impose any kind of shared decision-making regime on the two of them would be unworkable and not in the children’s best interests. Moreover, section 102 of the CYFSA provides that the court may make an order “granting custody to one or more persons, other than a foster parent of the child, with the consent of the person or persons”. In my view, this language raises a question as to whether Ms. Z.’s consent would be required for Ms. B-M. to have shared custody (decision-making authority and/or parenting time) with her. Regardless, I find that a trial is not required to determine what disposition is in the best interests of the children. M., S. and Z. having been living with their paternal grandmother for almost two years at this point. Ms. Z. provides them with routine, structure and stability, all of which they appear to have been lacking prior to them coming into her care in November of 2022. Their behaviours have immensely improved. The boys are involved in extra-curricular activities to enhance their social skills. In short, the needs of this children are being met by Ms. Z., and I find that there is no triable issue to determine whether a custody order to her pursuant to section 102 of the CYFSA is in their best interests.

[64] Ms. B-M. submits that in the very least, Ms. Z. should be required to consult with her about major decisions for the children, as she is required to consult with Mr. B. She submits further that this is an issue which requires a trial. However, the evidence is that Mr. B. is aware of his deficiencies, that he trusts Ms. Z. and that he supports the children being in her care and Ms. Z. having final decision-making authority over them, none of which applies to Ms. B-M. Additionally, Mr. B. and Ms. Z. have consented to the wording proposed in the Notice of Motion. Whether a duty to consult Mr. B. would have been imposed on Ms. Z. absent such agreement is, in my view, unlikely, again given the wording of s. 102 of the CYFSA. While the parties made certain submissions referencing s. 24 of the Children’s Law Reform Act (“CLRA”), the reality is that this motion is being decided under the CYFSA, not the CLRA. Whether a final order should contain similar language regarding a duty by Ms. Z. to consult Ms. B-M. before making a final decision is not, therefore, in my view, a genuine issue which requires a trial in this proceeding.

[65] Ms. B-M. submits finally that the issue of her access to the children is one which requires a trial. There is no question, indeed it is conceded by all parties, that the children want to have a relationship with their mother. The OCL took no position on the Society’s motion, except to confirm that this is so. When making a decision in the best interest of a child, a primary consideration for the court is “a child’s views and wishes, giving due weight to the child’s age and maturity”. Little evidence was provided about the views and preferences of the children, beyond that they want to see and talk to their mother. However, again, until Ms. B-M. has taken the requisite steps to address her addiction, the children’s views and wishes may not matter.

[66] The evidence is that Ms. B-M. did not consistently exercise the access she had with the children, and that ultimately it was put on hold prior to the motion. Ms. B.-M. faults the Society for this, because they did not afford her leniency when she was late for the required check-ins. However, check-ins were put in place to avoid the children being brought in for access when Ms. B-M. did not show; they were meant to be followed so that Ms. B-M. could demonstrate that she could attend consistently and on time. She did not do so, and rather than take responsibility for this or leave earlier to arrive earlier, Ms. B-M. blamed the Society for cancelling her scheduled visits if she was late for the check-ins, particularly if it was only by a few minutes. On her last visit with the children before it was put on hold, Ms. B-M. was in such a state of non-function that the police were called to check on her status. While Ms. B-M. attributes this to the birth of her child three months earlier, as well as the stress of dealing with the CAS and not sleeping well, I find, again on a balance of probabilities based on the evidence of Mr. D. and Mr. Driscoll, that Ms. B-M. was likely using during this period, to the point that it was affecting her ability to be fully present for the visits.

[67] I do not consequently find the issue of Ms. B-M’s access to the children to require a trial at this time. This would very much be different if Ms. B-M. completed the residential drug treatment to which she states she has been committed since late 2022. Ms. B-M. submitted that the court needs to be satisfied that the access being requested by the Society would be a foregone conclusion at trial to find that it is not a genuine issue requiring a trial. The test, however, once the Society has made out a prima facie case, is whether the mother has provided specific facts which show that there is a genuine issue requiring a trial. She has not, and, in fact, the evidence leads to the conclusion, on a balance of probabilities, that Ms. B-M. is struggling with a very serious, untreated addiction to cocaine and opioids which impacts her mental health and her ability to care for or make good decisions for the children. Ms. B-M’s access to the children falls within this rubric, and I find that there is currently no genuine issue requiring a trial in this regard.

[68] Ms. B-M. has submitted that access in the discretion of the grandmother cannot be ordered without a minimum, and she relies on J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 in support of the proposition that such an order would be an “impermissible delegation of judicial authority”. JSR, however, was a case dealing with crown wardship (now extended society care) and not a deemed CLRA order under s.102 of the CYFSA. In paragraph 54, the Divisional Court was very clear in noting that granting discretion to a Society without a minimum stipulated where children are in its care is an inappropriate delegation of the court’s role to determine access. In this case, it is not discretion to the Society that is being requested; it is discretion to the custodial parent of the children. JSR is distinguishable for this reason. Ms. Z. will be responsible for the safety and well-being of the children, and it is not, in my view, an impermissible delegation of judicial authority for her to decide whom they may safely see and how.

[69] There will, thus, be an order providing that Ms. B-M.’s access to the children will be at the grandmother’s discretion with a minimum of twice monthly at the SAP of FSO. While it will not form part of this order, it is understood that supervised access of the same frequency will be provided by the Society until a spot at FSO is available. If Ms. B-M. misses two consecutive visits, access will revert to the grandmother’s discretion. There will also be an order for telephone access by Ms. B-M. to the children once weekly, which will revert to the grandmother’s discretion if Ms. B-M. misses two consecutive telephone calls.

[70] The OCL took the position on behalf of the subject children of this application that there should be an order for sibling access which included A.A.M. and Mr. B.’s newborn son. However, these two children are not subjects of this proceeding, and A.A.M.’s father and Mr. B.’s son’s mother are not on notice of this request. While it is likely that Mr. B’s son will have a relationship with the children through his access to them, I am unaware of what, if any, arrangements have been made for access between the subject children of this application and A.A.M. While I can encourage, and I do, that the paternal grandmother facilitate contact between these boys and A.A.M., I do not have the jurisdiction to make an order for same under these circumstances.

[71] Regarding Ms. Z.’s motion seeking a change of name for Z.J.J.B., the identified issue is that Ms. Z. has been unable to obtain OHIP coverage for the child. The difficulty is that Z. was born in Alberta, and Ms. Z. indicates that his birth registration indicates that his name is Z.J.J.M., using the last of Ms. B-M.’s hyphenated surname. However, the child’s Alberta health card is issued under the name Z.J.J.B., using the father’s surname. Ms. Z. would like to correct his birth registration so that she can obtain Z.’s birth certificate and OHIP card. Ms. Z. obtained the consent of Mr. B. and Ms. B-M. for this change, but when she presented the Alberta Government form to them for signature, Ms. B-M. had changed her position to be agreeable to the name being changed to Z.J.J.M-B., using a hyphenated last name with the father’s surname first, and the last name of the mother’s hyphenated surname last. The issue had, therefore, not been resolved by the time of the motion.

[72] However, in the interim, while awaiting the reserved decision from Justice Summers, a Form 14B motion was submitted by Ms. Z. for Justice Summer’s consideration pending the release of her decision. In the absence of Justice Summers, that Form 14B motion was directed to my attention as LAJ of Child Protection. Ms. Z. sought an order on consent of Mr. B. and on notice to Ms. B-M., requiring the Government of Alberta to release the statement of live birth of Z.J.J.B. to her counsel so that the Government of Ontario could issue an OHIP card for him, which order I granted on September 16, 2024. Given that this was the primary reason Ms. Z. was seeking a change of name for the child, the matter is, in my view, moot. I, therefore, dismiss her motion.

Order

[73] For the above reasons, there shall be a final order as per:

1. Paragraphs 1 through 5, 7 and 8 of the Society’s Notice of Motion dated February 23, 2024.
2. Paragraph 6 shall read: “The Mother, S. B-M.’s parenting time shall be at the discretion of the Paternal Grandmother but shall be a minimum of once every second week to be supervised by the Supervised Access Centre of Ottawa Family Services. If the Mother misses two consecutive visits, access will revert to the Paternal Grandmother’s discretion. The Mother shall also have one telephone/video call per week with children, with the day and time to be agreed upon by the Mother and the Paternal Grandmother. If the Mother misses two consecutive telephone/video calls, telephone/video calls will revert to the discretion of the Paternal Grandmother.”
3. The Paternal Grandmother’s motion is dismissed.
4. There is no order of costs.

Engelking J.

Released: October 2, 2024

COURT FILE NO.: FC-22--CP69-1 DATE: 2024/10/02 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF M.M.T.B., born […], 2013, S.W.B., born […], 2016, and Z.J.J.B., born […], 2019 BETWEEN: Applicant The Children’s Aid Society of Ottawa S.B-M. Respondent and D.M.B. Respondent and L.Z. Respondent Reasons for Judgment Engelking J. Released: October 2, 2024

[1] Affidavit of Michelle Tyrrell sworn on July 28, 2023, paragraph 19 [2] Ibid., paragraph 20 [3] Ibid., paragraph 21 [4] Ibid., paragraph 24 [5] Ibid., paragraph 25 [6] Ibid., paragraph 27 [7] Ibid., paragraph 28 [8] Ibid., paragraph 30 [9] Ibid., paragraph 31 [10] Ibid., paragraph 37 [11] Ibid., paragraph 38 [12] Ibid., paragraph 39 [13] Ibid., paragraph 40 [14] Affidavit of Michelle Tyrrell sworn on February 23, 2024, paragraph 25 [15] Ibid., paragraph 29 [16] Ibid., paragraph 30 [17] Ibid., paragraph 31 [18] Ibid., paragraph 33 [19] Affidavit of Kyle Driscoll sworn on February 22, 2024, paragraphs 8 and 9 [20] Ibid., paragraph 11 (December 22, 2023), 12 (January 2, 2024), 14 (January 11, 2024) and 15 (January 12, 2024) [21] Ibid., paragraphs 11 (December 22, 2023) and 17 (January 18, 2024) [22] Ibid., paragraphs 12 (January 2, 2024) and 13 (January 5, 2024) [23] Ibid., paragraphs 11 (December 22, 2023), 15 (January 12, 2024) and 19 (February 8, 2024) [24] Affidavit of D.B. sworn on February 28, 2024, paragraph 4 [25] Ibid., paragraphs 7 and 9 [26] Ibid., paragraph 11 [27] Ibid., paragraph 16 [28] Affidavit of J.D. sworn on February 28, 2024, attached as Exhibit “A” to the affidavit of D.B. sworn on February 28, 2024, 1st paragraph [29] Ibid., 2nd paragraph [30] Ibid., 2nd paragraph [31] Ibid., 3rd paragraph [32] Ibid., 4th paragraph [33] Affidavit of S.B-M. sworn on March 1, 2024, paragraph 19 [34] Ibid., paragraphs 16 and 26 [35] Ibid., paragraph 55 [36] Ibid., paragraph 57 [37] Ibid., paragraph 23 [38] Affidavit of L.Z. sworn on March 4, 2024, paragraph 3 [39] Affidavit of L.Z. sworn on February 27, 2024, paragraph 17 [40] Ibid., paragraph 19 [41] Ibid., paragraph 22