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 and Parties

COURT FILE NO.: FC-19-00000188-0000 DATE: 20241007

ONTARIO SUPERIOR COURT OF JUSTICE, FAMILY COURT

BETWEEN: Highland Shores Children’s Aid Society Applicant

COUNSEL: Jane Howlett, for the Applicant

– and – A.N Respondent L.D Respondent

Self-represented Jeffrey Van de Kleut

HEARD: April 2-5, 2024

REASONS FOR JUDGMENT

JUSTICE EDMUNDSON

[1] This summary judgment motion, brought by the Highland Shores Children’s Aid Society (the “Society” or the “CAS”), is about the child L.K.D. aged twelve. His mother is A.N., his father is L.D. and his stepmother is O.D. L.K.D. lives with his father and stepmother in England pursuant to a temporary supervision order in favour of his father made by Justice Malcolm dated October 16, 2019. L.K.D. is not a First Nations, Inuit or Metis person.

[2] On November 7, 2019, Justice Malcolm found L.K.D. to be a child in need of protection following a summary judgment motion on that issue. The current summary judgment motion brought by the Society addresses the disposition and seeks an order placing L.K.D. in the custody of his father pursuant to s.102 of the Child Youth and Family Services Act, 2017 (“CYFSA”) with access to his mother in the discretion of his father and consistent with the views and preferences of L.K.D.

[3] The Society relies upon the following affidavits in addition to those filed by the father: a. affidavit of Angela Algar, sworn January 12, 2024; b. affidavit of Jennifer Green, sworn January 12, 2024; c. affidavit of Jesse Meating, sworn January 26, 2024; d. the affidavit of Karen Chen from the Office of the Children’s Lawyer (OCL), sworn January 9, 2024.

[4] The father, L.D., consents to and supports the Society’s motion. He relies upon the following affidavits in addition to those filed by the Society: a. affidavit of L.D., sworn January 22, 2024; b. affidavit of O.D., sworn January 22, 2024; c. affidavit of Andrea Hughes, sworn January 23, 2024.

[5] The mother filed no affidavit evidence for use on the summary judgment motion. She gave viva voce evidence at the hearing pursuant to Family Law Rule 16(6.2).

[6] It is not necessary for me to make a finding in need of protection as that finding has already been made. Given the lengthy period of time between the finding and the disposition, I have considered whether L.K.D. continues to be a child in need of protection and based on the evidence presented on this motion, I find that if it was necessary for me to make the finding now, I would do so.

[7] For the reasons that follow, I find that there is no genuine issue requiring a trial on the issue of disposition and the child, L.K.D. is ordered into the custody of his father, L.D. Additionally, I find that there is no genuine issue requiring a trial on the issue of the mother’s access which is ordered to be at the discretion of L.K.D.’s father, L.D., and consistent with the views and preferences of L.K.D.

THE PROCEDURAL HISTORY

[8] In July of 2018, A.N. left Prince Edward County where she had been ordinarily resident with L.K.D. for the United States. She took L.K.D. with her. While in the US, L.K.D. was in foster care in Indiana and in Alabama and before the Courts in both States due to concerns about his welfare.

[9] When the Society’s application was commenced in December 2018, A.N. and L.K.D. were in the state of Alabama. A.N. was living in a shelter and L.K.D. was in foster care.

[10] On May 7, 2019, Judge Powell in the Alabama court found L.K.D. to be a dependent and ordered him to remain in the care of the Alabama Department of Human Resources, Family Services (“ADHR”), but directed that the child should be returned to Canada with coordination of services between ADHR and Highland Shores Children’s Aid Society.

[11] L.K.D. returned to Canada on July 8, 2019, after almost a year in the US, with most of that time in the care of the Alabama Department of Human Resources. An order was made for him to be placed in the temporary care and custody of HSCAS who implemented a kin-in-care placement.

[12] A temporary care and custody hearing was heard on October 11 and 12, 2019. L.K.D. was placed in the care of his father at the conclusion of that hearing. Mr. L.D. was permitted to return to the United Kingdom with L.K.D. as set out in the order of the Honourable Justice Wendy Malcolm, dated October 16, 2019.

[13] A motion for summary judgment on the finding in need of protection was heard on September 19, 2019. The Judgment of the Honourable Justice W. Malcolm (HSCAS v. A.N and L.D., 2019 ONSC 6473) dated November 7, 2019, found L.K.D. to be a child in need of protection on the following grounds: a. L.K.D. was at risk of physical harm because of the mother's failure to care for, provide for or protect him. b. L.K.D. was in need of protection due to physical harm in that he required treatment to alleviate his physical suffering, namely his vomiting and upset stomach while traveling in the car. c. L.K.D. suffered emotional harm as demonstrated by his serious anxiety, aggressive behaviour and delayed development due to his mother's not returning to Canada, continuing to sleep in the car and parking lots, feeding her son food that disagreed with him and frightening him with stories of his father and Canada being unsafe.

[14] A.N. was previously represented by Ms. Heather Smith-McGurk. After the Temporary Care Hearing, A.N. filed a Notice of Change of Representation to represent herself. A.N. later brought a motion for the Court to appoint state-funded counsel, which was successful. On May 5, 2021, Mr. David Miller advised Society counsel that he had been retained by Ms.Nagy.

[15] The Office of the Children’s Lawyer became reinvolved for the second time when A.N. indicated that she intended to bring a motion compelling L.K.D.’s play therapist to provide her notes to A.N.. L.K.D. was previously represented by the late Betty-Ann Predinchuk, who was not replaced as counsel on her death. Ian Ross for the OCL more recently acted for L.K.D. on the disclosure or production issue and provided an affidavit by Karen Chen dated January 9, 2024, regarding the impact of these proceedings on L.K.D., his response to his mother’s plan to seek his counseling records and his views and wishes about his placement and access.

[16] In her endorsement of December 14, 2023, Justice Tellier set out a detailed schedule for the serving and filing of documents for the mother’s proposed motion for production of L.K.D.’s counseling records and for this summary judgment motion on disposition. If the mother decided to pursue the production of the child’s counseling records, she was to serve and file her motion materials no later than January 12, 2024, with a schedule for the CAS, the OCL and the father to respond and the motion was to proceed on January 30, 2024. If no productions motions were brought than the January 30, 2024, date was to be used as a check in to consider any other issues that needed to be addressed for the summary judgment motion which was scheduled to be heard on January 31, 2024, and February 2, 2024.

[17] Counsel for A.N. served and filed a motion for production of counseling records dated January 12, 2024. On January 23, 2024, A.N. served and filed a notice of withdrawal of that motion completely. Also on January 23, 2024, a notice of change in representation stating that A.N. was acting in person, was served on the other parties and subsequently filed.

[18] At the check in appearance on January 30, 2024, A.N. confirmed that she intended to represent herself and would not be seeking to retain new counsel.

[19] OCL counsel, Ian Ross, was present and confirmed that the OCL had filed an affidavit setting out Liam’s wishes on disposition, as he had been asked to do if it was possible. Mr. Ross was excused as his appointment had ended with the withdrawal of the mother’s records motion.

[20] I learned that A.N. had served on all parties a Notice of Motion with a document referred to as an “affidavit/factum” (147 pages) in which she sought an order that the Order of Justice W. Malcolm dated November 19, 2019, containing the finding that Liam is a child in need of protection, be set aside under Family Law Rule 25(19). Neither document was signed and neither had been accepted for filing.

[21] I granted A.N. leave to bring her motion under Rule 25(19) subject to a litigation schedule and specified that the motion shall only deal with her claim under Rule 25(19) and shall proceed in writing. The balance of my endorsement stated: The parties agreed on the following litigation schedule:

1. The mother shall have until February 6, 2024 to serve and file her signed Notice of Motion and supporting affidavit.
2. The parties responding to this motion shall have until February 29, 2024, to serve and file responding affidavits, if any. Written submissions and facta are also to be filed by February 29, 2024.
3. A.N. shall have until March 6, 2024, to serve and file her factum and any written submissions.

I anticipate releasing my decision on the Rule 25 motion on or before March 25, 2024.

This SJM is adjourned to April 2, 2024 at 10am with time reserved for two full days on April 2 and 3, 2024 and the afternoon of April 5, 2024. If the mother is successful on her Rule 25 motion, the SJM will proceed on both the finding in need of protection and the disposition; if she is not successful then the SJM will proceed on the disposition only. The SJM motion is marked peremptory as against A.N.. Parties and counsel are to attend in person except for L.D. who may attend by Zoom as he is in the UK.

A.N. missed her filing deadlines as set by Justice Tellier for the SJM which was to proceed today. On consent of A.N., her affidavit which is to be served and filed by February 6, 2024, shall also be used on the SJM. A.N. confirmed that she believes that that affidavit will cover all the relevant facts to meet her case on the SJM.

This matter is adjourned to March 26, 2024, at 11am (two time slots on the tbst list) for a check-in by Zoom regarding the SJM on April 2, 2024.

Costs for today and costs for the Rule 25(19) motion in writing are reserved to the SJM.

[22] I varied the above litigation schedule when A.N could not satisfy the timelines. She still did not file her motion or affidavit. As no motion was brought by A.N., no decision was released by me on the issue of setting aside the order of Justice Malcolm dated November 19, 2019. The “check-in” for this summary judgment motion took place on March 26, 2024. A.N. had not filed an affidavit for the summary judgment motion. I gave her leave to file her factum which all parties agreed that she had served on or about March 14, 2024 and directed that she could make submissions based on the evidence filed. I also alerted all parties that they should be prepared in the event that I determined that oral testimony might be necessary on one or more issues under Rule 16 of the Family Law Rules (FLR).

BACKGROUND FACTS

[23] The decision of Justice Malcolm on the finding in need of protection dated November 7, 2019, (reported at 2019 ONSC 6473) makes factual findings on which I rely for the background facts prior to that date. These facts set the scene for the events that have followed and shed some light on L.K.D.’s subsequent reactions.

[24] A.N. and L.D. are the biological parents of L.K.D. They separated in 2014 and L.D. returned to England. They entered into a separation agreement which provided that A.N. was the primary caregiver for L.K.D. following the separation. On July 29, 2018, A.N. left Prince Edward County, where she and L.K.D. had been living. Eleven days earlier, she had suffered stroke-like conditions and was advised not to drive for 30 days by the doctor who assessed her.

[25] L.K.D. was told by his mother that the reason for the trip to the U.S. was that they were running from something and that they were in danger. L.K.D. was five years old. They left their five cats at home in Prince Edward County but took their dog, Augie, with them and traveled by car to the U.S. Augie died in in the car when they were in Kentucky. A.N. left the dog on the side of a road or parking lot, wrapped in a blanket. L.K.D. was very upset at the death of his dog; A.N. did not use good judgement or support his emotional needs.

Kentucky

[26] On August 7, 2018, L.K.D. and A.N. were taken to hospital in Kentucky after A.N. was found in a confused state at a used car dealership in that State. There were concerns that she had been having “migraines or stroke-like conditions”, similar to those she had displayed in Ontario prior to leaving Canada.

[27] L.K.D. was seen at a hospital in Kentucky on August 11, 2018. He had been vomiting for several days while in the car. He and his mother had been experiencing diarrhea and upset stomachs for two weeks. A.N. described L.K.D. as having “outbursts such as extreme screaming”.

[28] On or about August 17, 2018, A.N. sideswiped a car while still in Kentucky. She said that she may have blacked out during this incident.

Indiana

[29] On August 18, 2018, L.K.D. and his mother were driving in Indiana and a report was made about her erratic driving on the highway. The police intervened twice and took A.N. to the hospital by ambulance at her request. The admitting doctor recommended a psychiatric evaluation for “paranoid features”. L.K.D. was taken into care on that date by the child protection authorities in Indiana and placed in foster care.

[30] L.K.D. remained in foster care in Indiana for approximately two weeks. The court application in Indiana was dismissed on the basis that the mother and child were returning to Canada. After the child was returned to her care, A. N. drove with him to Alabama instead of returning to Canada.

Alabama

[31] While in Alabama, A. N. ran out of money. She and her son were sleeping in the car in the parking lots of the University or banks and spending their days in libraries or parks. Alabama child protection authorities advised A. N. to go to a shelter; when she did not do so an alert was sent to the police.

[32] When interviewed by child protection authorities in Alabama, L.K.D., then six years old, said that: a. He was in danger in Canada, and it was “really bad.” He said that the “GPS told them.” He also said that the “strange people were going to kill them.” When asked who the strange people were, he growled and screamed and threatened the workers. b. He and his mother left Canada because “things keep dying.” c. His father was mean and was “killing and killing and killing of the preschool” and his father got a “big gun” and shot him in the leg. d. Someone called “Judith” hurt him and Judith has “cruel ears, long hair that goes up to the sky and long arms to punch with”. He also said that Judith had shot a gun. A.N. had been aware of L.K.D previously speaking about “Judith”, but she did not have him seen by a psychologist because she did not want him “medicated” or “labelled.”

[33] While in foster care in Alabama, L.K.D. (at age 6) had to be hospitalized for seventeen (17) days because of emotional issues, including “extreme upset and out of control behaviours.”

[34] L.K.D. was in care in Alabama for eight and a half months and previously in care in Indiana for seventeen days – a total of over nine months prior to his return to Ontario on July 8, 2019, when he was placed in the care of Highland Shores Children’s Aid Society. On July 11, 2019, a place of safety hearing was held and he was placed in the temporary care of the Society who placed him with previous caregivers.

[35] L.D.’s evidence, which I accept, is that he and A.N. separated in December, 2014, when L.K.D. was two and that he went to England the same month to care for his aging parents and his brother; that he had contact with L.K.D. by way of phone, email and skype until February 2018 when emails were returned and the phone was no longer working. L.D. states that he was the primary caregiver for his son prior to the parents’ separation. He remained in the U.K. until he returned to Canada in 2019 prior to the care and custody hearing.

[36] In January, 2019, L.D. had started skyping with L.K.D. once a week or more. He and O.D. were assessed by local child protection services (Calderdale) as to their suitability to parent L.K.D. with a positive report that was completed in February 2019. L.D. and O.D. also completed a thirteen-week parenting course called “Strengthening Families, Strengthening Communities, Inclusive Parenting Program. They attended in Ontario to unite, or in L.D.’s case to reunite with L.K.D. prior to the temporary care hearing.

[37] L.K.D. was placed in his father’s care on October 16, 2019, subject to the supervision of the Society and remains living with his father and step-mother, initially in Lancashire and more recently in Devon in the U.K.

[38] As set out above, L.K.D. was found to be a child in need of protection on November 7, 2019 following a summary judgment motion on that issue.

POSITIONS OF THE PARTIES

[39] The Society’s position is that there is no genuine issue requiring a trial regarding the disposition of this matter, that L.K.D.’s best interests are met by placing him in the custody of his father, L.D., in accordance with s.102 of the Child, Youth and Family Services Act, 2017 (“CYFSA”) The Society’s position on access for the mother, A.N. is that access should be at the discretion of L.D. and consistent with the views and preferences of L.K.D. pursuant to s.104 of CYFSA.

[40] The father consents to and supports the Society’s position that an order for custody to him under s.102 is in L.K.D.’s best interests. His position on access is that any access should be at the father’s discretion while taking into account L.K.D.’s wishes.

[41] The mother filed no affidavit for this SJM despite many accommodations to assist her to do so. Her factum did not present a plan but reiterated her position that disposition cannot be decided unless the finding in need of protection is overturned. As set out above she did not proceed when given an opportunity to argue that issue before the court. The amended answer and plan of care signed by A.N. on October 7, 2019, seeks the return of L.K.D. to her care. She was unable to articulate a clear plan for L.K.D. at the hearing. She did not present a plan for access in the event that L.K.D. is placed in the care of his father rather she stated that there should be an approach to arriving at a plan.

ANALYSIS

The Law of Summary Judgment

[42] Summary judgment motions are governed by Rule 16 of the Family Law Rules. The subrules that are relevant and applicable in this case are set out below

Summary judgment

When available

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. O. Reg. 114/99, r. 16 (1).

Available in any case except divorce

(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. O. Reg. 114/99, r. 16 (2).

Evidence required

(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. O. Reg. 114/99, r. 16 (4).

Evidence of responding party

(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. O. Reg. 91/03, s. 5.

Evidence not from personal knowledge

(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. O. Reg. 114/99, r. 16 (5).

No genuine issue for trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

Powers

(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. O. Reg. 69/15, s. 5 (1).

Oral evidence (mini-trial)

(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. O. Reg. 69/15, s. 5 (1).

Only issue question of law

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. O. Reg. 114/99, r. 16 (8).

Order giving directions

(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). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

[43] In The Children’s Aid Society of Ottawa v. S.P., and K.L, 2019 ONSC 5624, the court set out the post- Kawartha-Haliburton Children’s Aid Society v, M.W, (2019) ONCA 316, 432 D.L.R. (4th) 49 (hereinafter “Kawartha”) approach to summary judgment within the context of child protection proceedings 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).

[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)

[44] Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. (emphasis added)

[45] Subrule 16 (6.1) provides that in determining if there is no 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 only exercised at trial:

1. Weighing the evidence
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[46] Subrule 16 (6.2) states that the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[47] 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. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak - paragraph 49).

[48] As the Supreme Court stated, at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (Kawartha, paragraph 63).

[49] As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits (Kawartha, paragraph 76).

[50] 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 exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (Kawartha, paragraph 1 of paragraph 80 and paragraph 64).

[51] The court in Hryniak also set out the following: a) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24). b) The Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a “genuine issue for trial” to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43). c) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

[52] The questions which I must answer in this case are

1. Is there a genuine issue requiring a trial regarding which disposition is in the best interests of the child, L.K.D.?
2. If there is no genuine issue requiring a trial for disposition, is there a genuine issue requiring a trial regarding access to L.K.D?

[53] In conducting this summary judgment motion, I heard the submissions of the Society followed by those of the respondent father and then turned to the mother. She was unable to make submissions without attempting to introduce facts not in evidence. Her factum was almost entirely dedicated to alleged mistakes made in her case in the U.S. and in Canada, including the finding in need of protection made by Justice Malcolm. Being cognizant of the obligations to provide judicial assistance for self-represented litigants as referenced in Kawartha, as well as the provisions in Subrules 16(6.1) and 16(6.2), I allowed the mother to give oral evidence. I gave her a time limit of one hour and explained that I wished to hear her evidence on: a. her plan for L.K.D., b. the steps she has taken to address the protection concerns, including whether she has any diagnoses and any psychological assessment or treatment, c. her plan for access if I make an order for custody of L.K.D. to LD, d. her plan for L.K.D.’s access with his father if I make an order placing L.K.D. with her.

[54] The mother, A.N., completed her testimony including cross-examination on the first day and on the following day she made submissions. I heard brief additional submissions from the Society and father’s counsel, limited to the testimony of the mother.

Question #1

[55] To answer the first question, I must consider a. the pathway or hierarchy of orders under s.101 and s.102 of CYFSA b. the factors set out in s.74(3) of CYFSA in determining the best interests of L.K.D.

[56] The first statement in the Preamble to the CYFSA is that the Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard.

[57] The paramount purpose of CYFSA as set out in s.1 is to promote the best interests, protection and well-being of children.

[58] The interplay between sections 101 and 102 of CYFSA results in a hierarchy of orders that the court can make once the court has found a child to be in need of protection, with a requirement that the least disruptive alternative which is in the best interests of the child be preferred. The test is that of the best interests of the child. The possible final orders in ascending order are:

1. an order for custody to one or more persons with their consent and excluding foster parents and, as this order is deemed to be a parenting order under the Children’s Law Reform Act, only if there is no pre-existing parenting order under the Divorce Act, (s.102);
2. an order placing the child in the care and custody of a parent or another person, subject to the supervision of the society for a period of at least three months but not more than twelve months (s.101(1)1.);
3. an order placing the child in the interim society care for a period up to a total of twelve months (s.101(1)2.);
4. an order for interim society care for a specified period of time followed by a return to a parent or another person under a supervision order for a total period not to exceed twelve months (s.101(1)4.); and
5. an order for extended society care (s.101(1)3.).

[59] Section 74(3) of the CYFSA sets out the factors to be considered in determining the best interests of a child:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; (b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection. 2017, c. 14, Sched. 1, s. 74 (3).

The child’s views and wishes

[60] L.K.D. has consistently stated that he wants to live with his father. Those were his wishes when he was placed with his father under a temporary supervision order in 2019 and those views and wishes have remained constant and consistent.

[61] L.K.D. is now twelve. His views and wishes are set out in the affidavit of Karen Chen, articling student at the OCL, dated January 9, 2024. Ian Ross, counsel at the OCL was assigned to represent L.K.D. on the motion for disclosure of his counselling records brought by A.N. Despite not representing him in the broader proceedings, the OCL was asked and agreed to provide evidence as to L.K.D.’s views and preferences for the summary judgment motion. Mr. Ross and Ms. Chen met with L.K.D. over Zoom twice, on October 4, 2023 and on October 6, 2023.

[62] Ms. Chen’s affidavit sets out the content of that meeting as follows: a. When the October 4, 2023, Zoom meeting started, L.K.D. was sitting with his step-mother, O.D. She introduced him and he became visibly distressed. He was crying and screaming very loudly, saying that he did not want O.D. to leave him alone, that he did not want to speak to Mr. Ross. He yelled “I don’t want to talk to this stranger”, that Mr. Ross was on “A….’s side”. O.D. comforted him, explained that Mr. Ross was not on “A….’s side” and that he was there to help him. She explained that she could not be in the room while he met with Mr. Ross and left the room. b. Throughout the private meeting, L.K.D. was screaming, crying and visibly distressed. He was often so loud that the microphone cut out and failed to pick up what he was saying. When he spoke calmly and slowly the microphone picked up his voice. c. L.K.D. confirmed that he did not want his mother, or anyone else, to see his therapy notes. He stated “I hate her. I don’t want A…. to see them, okay? I don’t want anyone to see them” and then broke down crying again. d. When asked how he would feel if she saw them he said “I hate her. I don’t want to speak to her ever again and I hate her”, then in a raised voice “And I’m telling that from my own brain.” e. Mr. Ross told L.K.D. that they did not want to upset him and that he did not have to speak to them again if he does not want to. In response he yelled “I don’t want to speak to you ever again. I don’t want to speak to a Canadian ever in my life.” f. He was told to go and tell O.D. that they were finished their meeting. g. Mr. Ross and Ms. Chen decided against having a second meeting due to L.K.D.’s negative reactions during the meeting. However, later that day O.D. contacted the OCL to advise that L.K.D. had calmed down and was prepared to meet again. h. The second Zoom meeting was on October 6, 2023. O.D. was present at the start of the meeting but left shortly after the video was set up. i. L.K.D. spoke about his feelings about his mother saying “I hate her, I really do.” When asked why, he said “because she put me in danger, she nearly got me killed, and she did lots of horrible things to others. She left five cats in the house – that was unacceptable and very upsetting to me, and she took me on a three-month car drive with me to America and it was horrible.” j. When asked if there was anything else that he wanted to say he said “I actually think she doesn’t love me. When she said ‘I love you’, I think she’s lying about that. I think she doesn’t care about me and she doesn’t love me. She thinks she loves me and she doesn’t. And I hate her. I hate her very much.” k. He also said that “I have a really happy life here. I have a very, very, very happy life away from A….. And because A….’s not here, I’m very happy and very pleased. And I don’t want to hear A….’s voice ever again. And I’m speaking from my heart”. l. After discussion with his therapist and given his reactions, the OCL decided not to conduct further interviews with L.K.D.

[63] L.K.D.’s views are clearly communicated in both his words and his behaviour. He has experienced trauma and is reacting accordingly. He not only wishes to stay with his father and stepmother but he also is adamant that he wishes not to be with his mother. His views are given weight appropriate to his age and stage of development; they are consistent with the other evidence. He is twelve years old and has been involved with the child protection authorities in three countries over the past six years; his voice needs to be heard.

[64] His views may change as he matures and his ongoing counseling will allow him to explore those feelings if he has them. Any order for access with his mother shall allow him to have some degree of control over that relationship.

[65] I now turn to the other factors set out in s.74(3)(c).

[66] The evidence of the workers and of O.D. and L.D. is that L.K.D. is thriving in the care of his father and stepmother. They have ensured that he has had counseling services both in Lancashire and in Devon after their move last year.

[67] O.D. is a retired school teacher and has been very active in advocating for L.K.D.’s educational needs although both she and L.D. are involved with his homework and the school. When they moved to Devon from the north of England, L.K.D. was registered in a small school with dedicated special education supports. When he arrived in the U.K. he was behind his peers academically; he is now ahead of them. He has a structured, secure life with his father.

[68] L.D. has arranged for therapy for L.K.D. First he was seeing Dr. Christine Chester, a child psychotherapist. He then saw Catherine Croll, a play therapist, which continued until the fall of 2023 when the family moved to the south of England. He has been seeing psychotherapist Maria Julian since then.

[69] L.K.D.’s physical, mental and emotional needs are met in his father’s care. He is registered with a doctor’s practice, a dentist, and has had eye tests. L.D. and O.D. have prioritized L.K.D.’s mental health. He is affectionate and seeks comfort from them. He has strong ties to extended family there, has friends and participates in extra-curricular activities. L.D. has facilitated access for L.K.D. while being protective. He supports ongoing access if done safely.

[70] Access has been supervised by four different supervisors. It has not been successful from the perspective of the child. The father has persisted in seeking out assistance to facilitate the access. Since July 11, 2023, L.K.D. has refused video access. I understand that letters and pictures may still be acceptable.

[71] The father’s evidence is that L.K.D. has not seen the court documents and that they are locked away. I accept that evidence. L.K.D. was present when his father looked up the name of the town where he was taken to the hospital in the U.S. in response to L.K.D. asking for the name. This is part of L.K.D.’s life story and he is entitled to that information. L.K.D. is secure and protected in his father’s home.

[72] Angela Algar was the worker following the finding in need of protection up until her retirement on October 31, 2023. Ms. Algar is an experienced child protection worker who returned to provide evidence for this hearing. She provided an extensive affidavit of her attempts to engage A. N. to assist her to address the protection issues. The society has an affirmative obligation to attempt to mitigate any child protection concerns based on acknowledgment or observation. Ms. Algar explained that she and A.N. did not need to agree but did need to work together to improve her parenting relationship with son. Ms. Algar’s experience with the mother was that she was unable to move forward to address L.K.D.’s needs and best interests.

[73] Ms. Algar was only able to meet with the mother once in person on December 3, 2019. That meeting took place in Kingston with her society supervisor present as well as the support person that the mother had requested be present. The mother was not prepared to engage in phone conversations or to meet in person. The pandemic was occurring at that time but that does not appear from the evidence to have been the reason for the mother’s decision to limit communication in this way as she also refused to engage by phone. Ms. Algar reluctantly accepted the mother’s restrictions.

[74] Ms. Algar did not engage with the mother on issues that preceded her involvement with the family’s file as she did not think it would be helpful in assisting the mother to move forward. She notes however that the mother implored her several times to again review the file; she describes the mother as being focused on the mistakes that she perceived had been made by others in the child protection proceedings in Indiana, Alabama and Ontario. Despite the fact that Ms. Algar had completely reviewed the file, the mother often said that if Ms. Algar “had bothered to actually read what was in the file” then she would reach the same conclusions. She was insistent about L.D’s mental health struggles, alleging abuse of her, stalking and sexual abuse of Liam while Liam was in a foster home in Indiana as well as his interference with the outcomes of child protection proceedings and undue influence over professionals involved with the family, none of which have been established and about which Justice Malcolm made findings in her decision regarding the finding in need of protection made in November of 2019.

[75] The one meeting that did occur in person was on December 3, 2019 and Ms. Algar notes that the meeting was not very productive, that the mother was focused on the events that led to the child’s placement with his father and of Justice Malcolm’s finding that L.K.D. is a child in need of protection. She denied many of the findings of fact and described the child’s time in the United States as being fun and safe and insisted that he was happy while they were there. The evidence does not support her assertion.

[76] Ms. Algar arranged a meeting to occur virtually with Dr. Christine Chester on May 22, 2020. The purpose of the meeting was to develop a plan for access between L.K.D. and his mother as L.K.D. was refusing contact. Dr. Chester is a child and adolescent psychotherapist who was at that time working in a child and parent mental health service north of Manchester, England.

[77] Positive feedback or strengths that were highlighted in the relationship between the child and his mother were met with approval while positive information or feedback about how things were going in England was dismissed by the mother on the basis that the father was deceiving or fooling people or that L.K.D. was behaving in a particular way because he was being abused and was fearful of his father.

[78] A.N. did not meet further with HSCAS and if she engaged in any steps to address the protection concerns, she did not tell the Society about them.

[79] Jennifer Green is the child protection worker assigned to this case on October 31, 2023, when Ms. Algar retired. L.K.D. was reluctant to speak to Ms. Algar but has been willing to speak to Ms. Green via video. She describes how proud he is of his room, his home, and his school uniform, all of which he has shown her through the video connection. She has spoken regularly with L.D. and O.D. and confirmed that L.K.D. is doing well. She has no protection concerns for L.K.D. in his father’s care.

[80] Ms. Green has not been able to meet with A.N. as a result of the mother’s insistence on email communication only. Ms. Algar did introduce Ms. Green by email, in lieu of the usual transfer meeting which would have involved both workers and the mother in person. Ms. A.N. has not reached out to Ms. Green. Ms. Green has only “met” the mother on one occasion on the Zoom screen for a court appearance.

[81] The mother does not have a specific plan. In her testimony she stated that there should be an “approach” and that she does not have a plan yet. She seeks to have the Society pay for her to go to England and then hopes that L.K.D. will decide that he wants to be with her. She was not clear on where she intends to live; she has refused to divulge her current residential address to the court except to say that she lives in Kingston, Ontario. She testified that she might move to the U.K. or somewhere in Europe such as France. It was all very vague.

[82] A.N. testified that she would attempt to rebuild the parent child bond which has been severed. She referred to not being allowed to mourn the passing of their beloved pets and being concerned because she believed that L.K.D. has been allowed to read the court documents.

[83] She stated that she has a good support in Tabitha McGinnis, a children’s mental health therapist with the Maltby Center. Her proposal is to involve Ms. McGinnis in assisting her to rebuild the bond with her son. This proposal had not previously been relayed to any of the other parties or to the court. Her last contact with Ms. McGinnis was “a couple of months” prior to the hearing and was conducted by video or phone. A.N. had seen her roughly five times and said that she was present during her meetings with Ms. Algar. A.N. presented no evidence on the qualifications of Ms. McGinnis, has not provided affidavit evidence from her and Ms. McGinnis was not present. She acknowledged that she does not have a counseling relationship with Ms. McGinnis because Ms. McGinnis does not do that when A.N. currently does not have access. There was no evidence that Ms. McGinnis knows about this proposal.

[84] Ms. McGinnis had given her suggestions on how to write to L.K.D. She would intend to meet with her and get her recommendations; she would like to schedule several trips to the U.K. and see him in person; her plan would be to work this out with L.D.; she would not force L.K.D. to leave unless he was unsafe. A.N. confirmed that in order to go to the U.K. she would need funding which she proposes that the society provide. Even if the court was inclined towards such an arrangement there is no jurisdiction to make such an order.

[85] When asked by counsel for the society what assessing the safety of L.K.D. would look like and what factors A.N. would consider, her response was that that was a very good question and that she would have to give that some thought. She said that she would first have to talk to her son and that she doesn’t know her son anymore.

[86] She was asked about the events of 2018 when she considered that she and L.K.D. were not safe and subsequently fled to the U.S. which resulted in L.K.D. spending nine months in care in Indiana and Alabama. She did not acknowledge the flaws in her decisions at that time.

[87] Father’s counsel asked A.N. if she thought that L.K.D. was not doing well in his father’s care. She said that she didn’t know the answer to that despite the third-party reports and affidavits filed with the court which she acknowledged that she had read. She was unable to agree that L.K.D. is doing well in school in the face of positive school reports.

[88] When asked if her position today is that L.K.D. should be removed from his father’s care and placed with her, she responded “not necessarily” and then that she would not want to traumatize her son.

[89] When asked if she has any parenting deficits she said that she does not and that she responded to crisis when she fled and helped her child when no-one else would.

[90] A.N. did not identify any programs or treatment since the finding in need of protection was made in 2019. She referred to her dissertation as providing a form of therapy for her.

[91] During her submissions on the second day of the hearing, A.N. asserted that the affidavit of Ms. Algar dated January 12, 2024, contained fraudulent statements and credibility issues. I asked her to identify these statements and to distinguish between fraud and disagreement. She was granted a recess to read the affidavit again in that light. When she returned I asked her to go through the affidavit paragraph by paragraph. Her claims of fraudulent statements dwindled when directed to identify those claims. I find that she was unable to identify any credibility issues or fraudulent statements.

[92] A.N. submitted that Ms. Algar spoke of A.N.’s feelings when they were not feelings but facts. She submitted that there were numerous statements that needed “cues of context”. She acknowledged when it was pointed out to her that Ms. Algar noted where A.N. did not agree.

[93] A.N. acknowledged that she had not filed an affidavit setting out a different version of events and said that was because her computer was hacked “as it always is when documents are due”. There is no evidence of A.N.’s computer being hacked. The day before her responding materials were first due, A.N. brought a complaint proceeding against the HSCAS and emailed to them a possible motion seeking an extension of time to appeal the finding in need of protection. As set out above she was provided with extensions of time to allow her to file an affidavit in this proceeding. She did not do so.

[94] Also in submissions A.N. stated that she does not want to traumatize L.K.D. by removing him from his father’s care but she does want the court to order joint decision-making and support for reunification and reestablishing the parent child bond.

[95] The difficulty with the mother’s position is that it is not supported by the evidence.

[96] The court is very cognizant of the cautionary approach required in deciding whether an issue requires a trial but that caution must be exercised in the best interests of the child.

[97] I find that the mother is distrustful of the society and of professionals when they do not agree with her. Her persistent rumination about the finding in need of protection decision as well as the decision made in Alabama limited her ability to seek or to accept help.

[98] She is an intelligent person but has no insight into her own behaviour, either as it relates to her child or to third parties involved with the family. The mother has no insight into her role in causing the emotional harm to L.K.D. which I find has continued.

[99] Justice Malcolm found that A.N.'s decision-making and poor judgement while in the US detrimentally impacted her child and her and that she externalizes all responsibility for harm suffered by L.K.D. Ms. A.N. denied that she had made any errors, bad decisions or exhibited poor judgement. No progress has been made by A.N. on this front since the decision of Justice Malcolm.

[100] L.K.D. was removed from his mother’s care. I have considered the ability of the mother to care for the child and whether there is an issue requiring a trial about whether it would be in his best interests to be returned to her care either with or without a supervision order. I find that there is no such issue. I find that returning L.K.D. to his mother’s care would be likely to cause him harm as would removing him from L.D’s care.

[101] There has been considerable delay in bringing this matter before the court for a final order. The court understands that a number of factors have contributed to that delay, including the global pandemic, the co-ordination of services between Canada and the U.K., the changes in access supervisors and the focus on trying to repair the relationship between the mother and child so that access could resume in a safe way for the child. That delay in itself is not in the child’s best interests as he is left in a state of limbo, not knowing with certainty where he will live. That uncertainty has to end.

[102] I find that there is no issue requiring a trial about whether it is in L.K.D.’s best interests for him to remain with his father under a s.102 custody order. I find that such an order is in the child’s best interests. I have considered both L.K.D.’s views and wishes as well as the other relevant factors under s.74(3)(c) of CYFSA. The child is receiving the appropriate care or treatment to meet his needs and in accordance with his physical, mental and emotional level of development; he has developed a positive relationship with his father and stepmother and has a secure place as a member of their family which includes other members of his extended family and his community; the continuation of his placement with his father ensures continuity in his care and guards against the inevitable disruption of that continuity; it insulates the child from further delay in a case where there has been far too much delay; there is a strong risk of the child suffering harm if removed from his father’s care; and the degree of risk that justified the finding in need of protection remains high given the mother’s lack of insight.

Question #2

[103] To answer the second question, I have considered a. section 104 of CYFSA b. the factors set out in s.74(3) of CYFSA in determining the best interests of L.K.D.

[104] All parties have struggled to maintain some form of access for the mother.

[105] In 2019 when L.K.D. was first in the U.K., the father arranged a phone call for him with his mother. The call upset L.K.D. because of the number of questions his mother asked him. L.D. attempted to institute other phone calls but L.K.D. did not want to and was too distressed.

[106] On the advice of Dr. Chester, contact was maintained indirectly through letter and then videos. Sometimes letters were long and sometimes the letters and videos sent by A.N. were not appropriate, as assessed by Dr. Chester.

[107] The father states that they eventually persuaded L.K.D. to talk to his mother via video link. As part of this process four different mediators were used. The first was Sonia Minster who was proposed by mother’s counsel. The father found Ms. Minster to be ineffective and unresponsive to the child’s needs. He also noted that A.N. asked intrusive, repetitive and constant questions of the child while not responding to his questions.

[108] The father contacted Yorkshire Family Mediation Service and completed his portion of the intake. The service refused to continue further with mediation after contacting A.N.

[109] The father then contacted Pro Contact. After five sessions which HSCAS paid for, the company’s report alleged some influence by the father which he denied. The father suggested that the access move to the contact centre which was refused by Pro Contact. He suggested that a neutral third party be in the room with L.K.D. and that he would not be present. Contact was ended by Pro Contact without the father’s knowledge or consent.

[110] The most recent supervisor of L.K.D.’s video access with his mother is Angela Hughes. Ms. Hughes is a retired counselor psychotherapist who was retained by L.D. to oversee the access visits. Ms. Hughes has provided an affidavit attesting to her observations and opinion. I accept her evidence on her observations but not her opinion as she was not tendered or qualified as an expert.

[111] The five visits took place on a fortnightly basis (every two weeks) between May 23, 2023 and July 11, 2023. She describes the video calls starting well and notes that at times L.K.D. was happy to see his mother and engaged with her. When the topics of conversation were “safe” ones for L.K.D. he was engaged and enthusiastic, particularly when they were talking about Christmas inflatables, and there was laughter and smiles. However, when A.N. started to question L.K.D. he would become upset and ended the visits. He was resistant to talking about school and to other repetitive questions. A.N. did not recognize what upset her son and persisted until he ended the call. At times A.N. used adult language which her son did not appear to understand as evidenced by his demeanour in resorting to monosyllabic yes and no answers.

[112] The last visit occurred on July 11, 2023. A.N. was talking to L.K.D. about flossing his teeth and when he said that he was not allowed to use floss yet, she called him a fibber. He strongly reacted by becoming upset to the point of distress and leaving the room. He did return and continued. Ms. Hughes went to the hallway for a brief conversation with O.D. out of earshot of L.K.D. and did not hear the balance of their conversation. L.K.D. came out of the room shortly afterwards and stated that his mother told him that CAS are lying, that they kidnapped him and that he and his mother were a normal family before that. L.K.D. maintained that he did not want to see or talk to his mother again and that he was not going to change his mind. Ms. Hughes did not hear these comments and I rely on them not for the truth of their contents but for the child’s state of mind thereafter.

[113] L.K.D’s views and wishes about contact with his mother contained in the affidavit of Karen Chen for the OCL are set out above.

[114] I find that the father has continued to attempt to facilitate access through difficult situations and has persisted when it might have been easier for him not to do so. He explains that this is because he knows the importance of safe access for his son.

[115] A.N. alleges that L.D. has sabotaged the access. I find no evidence of sabotage by the father and stepmother. I find lack of insight on the part of the mother in considering her role in the failure of the many attempts at access.

[116] The father remains open to L.K.D. having contact with A.N. but wishes for L.K.D. to have his wishes taken into account. It is clear that if L.K.D.’s wishes are not taken into account then access results in extreme distress for the child.

[117] L.K.D. and A.N. continue to exchange letters, cards and gifts and so long as these are appropriate, this shall continue.

[118] I have considered whether access should terminate but find that access can be managed so long as it is supervised and the child agrees to it. As L.K.D. matures, he may become better able to manage his mother’s expectations and his own reactions but at this time that remains to be seen. I find that the father is best placed to make that future determination in L.K.D.’s best interests.

[119] I find that there is no issue requiring a trial in determining the issue of access between A.N. and the child, L.K.D, and that it is in the best interests of L.K.D. for access to his mother to be at the discretion of the father, L.D. and in accordance with L.K.D.’s wishes. Supervision of that access shall also be at the discretion of and as arranged by L.D.

ORDER

[120] For the above noted reasons, there shall be a final order as follows:

1. The father, L.D. is granted custody of the child, L.K.D. born xxxx xx, 2012, in accordance with s.102 of the Child Youth and Family Services Act, 2017. This order is deemed to be a parenting order under s.28 of the Children’s Law Reform Act and therefore the following terms are also made: a. Primary residence of the child shall be with L.D. b. L.D. shall have sole decision-making authority in relation to the child, including decisions about the following and without the consent of any other party: i. Education; ii. Health care (including medical and dental) iii. Emotional and/or psychological needs iv. Religion v. Recreational activities c. L.D. shall be entitled to obtain: i. any and all governmental documents, including but limited to a birth certificate or passport for the child, and ii. to apply on behalf of the child for any benefits and rights including education, medical and health insurance benefits for the child without any other person’s consent and/or signature. d. L.D. shall be able to travel with the child internationally without any other person’s consent or signature. e. L.D. shall be able to relocate with the child without the consent of any other person or party but he shall advise the mother, A.N. of such relocation and provide contact information to her for the child.

2. There shall be supervised access between the child, L.K.D. born xxxx xx, 2012, and his mother, A.N. at the discretion of L.D. and in accordance with the views and preferences of the child in accordance with s.104 of the Child, Youth and Family Services Act, 2017. This order is deemed to be a parenting order under s.28 of the Children’s Law Reform Act.

[121] There shall be no order for costs.

“N. Edmundson, J”

Released: October 7, 2024

COURT FILE NO.: FC-19-00000188-0000 DATE: 20241007 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Highland Shores Children’s Aid Society

• and - A.N. L.D. REASONS FOR JUDGMENT N. Edmundson J. Released: October 7, 2024