WARNING

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

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

(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.: 548-22

DATE: 2024/10/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CCAS of Hamilton

Applicant

– and –

Z.C

Respondent

Sarah Edwards, Counsel, for the Applicant

David P. Miller, Counsel, for the Respondent

Office of the Children’s Lawyer

Kathryn Junger

HEARD: September 16, 17, 20, 2024

JUDGMENT

THE HONOURABLE MADAM JUSTICE L. BALE

OVERVIEW

[1] This is a summary judgment motion brought by the Catholic Children’s Aid Society of Hamilton (the “Society”), in the context of a Status Review Application, regarding the three subject children, N (age 15), and B and K (twins, both age 10).

[2] The Society seeks an order for extended society care for all three children, with specified terms of access with the Respondent mother (a minimum of two times per year, virtually or in person, in the discretion of the Society), and between siblings (a minimum of 12 times per year, virtually or in person, in the discretion of the Society with a minimum expectation of six in-person visits).

[3] The Respondent mother and the Office of the Children’s Lawyer (“OCL”) are opposed to the motion, in differing forms:

a. The Respondent mother argues that there are genuine issues for trial relating to disposition and access for all three children.

b. The OCL argues that there are genuine issues for trial relating to disposition regarding N, and genuine issues for trial relating to access for all children. The OCL takes no position with respect to the child B, on the basis that his views and preferences are not ascertainable on account of his special needs.

[4] The Respondent father no longer resides in Canada and has not participated in this case.

[5] The Respondent mother and the OCL concede that the children continue to be in need of protection, pursuant to s. 74(2)(b)(i), s. 74(2)(b)(ii) and s. 74(2)(e) of the Child, Youth and Family Services Act, 2017, c. 14, Sched. 1 (“CYFSA”), and that intervention through a court order remains necessary for their protection in future.

BACKGROUND

[6] The three subject children have been in the care of the Society since May 25, 2022, a period of approximately 29 months.

[7] On October 31, 2022 Chappel J. granted a Final Order which:

1. Made statutory findings, including a finding that the children are not First Nations, Inuk or Métis;

2. Found the children to be in need of protection pursuant to:

a. Section 74(2)(b)(i);

b. Section 74(2)(b)(ii); and

c. Section 74(2)(e) of the CYFSA;

3. Placed the children in Interim Society Care for a period of six months;

4. Granted access between the children and the Respondent parents in the discretion of the Society;

5. Granted access between the siblings a minimum of once per week (best efforts); and

6. Granted access between the children and their non-party older siblings a minimum of once per month (best efforts).

[8] The hearing before Chappel J. on May 25, 2022 proceeded on an uncontested basis. Justice Chappel made the following findings of fact:

a. The Respondent mother attended court, but did not remain, which was “typical” of her behaviour at past court attendances.

b. At prior court attendances the mother was repeatedly provided with information regarding legal aid and duty counsel, and was encouraged by the court and the Society to access these services. She did not.

c. The Respondent mother was granted an extension of time to file an Answer, and was later advised of the process for obtaining a further extension of time. The mother took no steps to do so, and the matter ultimately proceeded on an uncontested basis.

d. The Society had been involved with the family for many years preceding formal child protection intervention.

e. At the time the children were brought into care on May 25, 2022, there were very serious concerns regarding the safety and wellbeing of the children, which placed the children at significant risk of emotional and physical harm, including:

a. Family violence;

b. Food insecurity;

c. School absenteeism – the children had not attended school since early 2022 and had been “demitted”;

d. Conditions of the home – which in May 2022 were “deplorable”, including a bathtub clogged with “very unsanitary things”;

e. Significant medical neglect of the children, including a medical concern that the two youngest children were suffering from ‘failure to thrive’;

f. Significant dental neglect of the children, including that several of the children’s teeth were falling out;

g. Hygiene, including a failure to bathe the children, potentially arising from lack of water supply;

h. Major concerns about the father’s mental health and violence, including that he had been arrested and incarcerated for six months for making death threats and brandishing a knife in a threatening manner at the family;

i. Non-compliance with the father’s terms of release, including the Respondent mother’s failure to comply with a court-imposed non-contact order, and directions by the Society to prohibit the father’s contact with the children;

j. Immigration insecurity – both parents were at risk of deportation, with the father ultimately being deported back to the Czech Republic.

k. The child B has been diagnosed with Autism, and has very special needs;

l. Access visits between the children and the mother were “very problematic”, “very disruptive”, and “chaotic”. The mother and the children’s oldest sibling, M.B., displayed aggressive outbursts, which at times required police intervention;

m. The Respondent mother demonstrated no insight into the Society’s concerns, blaming all of her struggles on the Society itself, notwithstanding Herculean efforts on the part of Society worker, Ms. Maynard, to support the family;

n. The Respondent mother was charged criminally (assault) for spitting on a previous Society worker, engaged in angry outbursts with Society workers, calling them “terrible names” and on one occasion brandishing a knife. She was routinely reactive with workers, frequently hanging up or not answering telephone calls;

o. The Respondent mother was consistently late to or absent from visits with the children; and

p. At the time of the hearing, the Respondent mother had been evicted from her home, was in hiding from immigration authorities and was facing charges for trafficking.

THE LAW AND ANALYSIS

[9] In considering any case under the CYFSA, the court must take into consideration the paramount purpose of the Act, as articulated in s. 1(1), which is to promote the best interests, protection and well-being of children. To the extent that they are compatible with this paramount purpose, the court must also consider the additional purposes articulated in s. 1(2) of the CYFSA.

Summary Judgment

Summary Judgment Motions Generally

[10] Rule 16 of the Family Law Rules, O. Reg. 114/99 governs summary judgment motions in family proceedings. There is a two-step process on a summary judgment motion:

1. If there is no genuine issue for trial, summary judgment must be granted;

2. If there is a genuine issue for trial, the court must determine whether a trial can be avoided by using the expanded powers available under r. 16(6.2).

C.A.S. v. R. F. and V.C., 2019 ONSC 5224, at para. 30.

[11] The leading case regarding summary judgment principles, generally, is the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. In short, there will be no genuine issue requiring a trial when a 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 on the record before him;

(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, at para. 49.

[12] The summary judgment process is an appropriate mechanism for reaching a just determination on the merits of this case. Very few material facts are in dispute in this case. I am confident that there is a sufficient and reliable body of evidence before the court to make necessary findings of fact, and to apply the law to those facts in a manner that is fair to all parties.

Summary Judgment in Child Protection Proceedings

[13] Summary judgment jurisprudence in child protection proceedings adopts a highly cautionary approach: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 71. The court in Kawartha summarized and clarified the approach that the courts should take to summary judgment in child protection matters, at para. 80:

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.

[14] This case does not involve the rights or interests of Indigenous parties or children, however, this court recognizes that fairness demands an understanding of the unique dynamics of the child protection litigant: women, particularly single mothers are disproportionately and particularly affected by child protection proceedings; parents are often poor, uneducated, or members of minority groups; and even when parents are represented by counsel, a power imbalance often exits: Kawartha, at paras. 68-69.

[15] The Respondent mother fits squarely within this description of a vulnerable child protection litigant. She is an impecunious, homeless, single mother, with a very limited understanding of the English language. Accordingly, at the outset of this summary judgment motion the court raised concern with the excessive volume of material contained within the Society’s Affidavits. The Society’s summary judgement materials, in excess of 1200 pages, were daunting even for this court. It is easy to imagine how overwhelming they appeared to the Respondent mother. I commend the mother for her resilience, and I commend counsel for the Respondent mother and the OCL for their efforts to synthesize this incredible body of material into meaningful responses.

[16] Nevertheless, to ensure fairness to the Respondent mother and the children, at the outset of the motion the court advised that (a) no reliance would be placed on evidence not drawn to the court’s attention in oral submissions, (b) the court would consider any objections raised as to the admissibility of the evidence brought to the court’s attention at that time, and would not rely upon any evidence deemed inadmissible, and (c) at the conclusion of the Society’s case, the court would permit oral evidence in response, if requested by responding counsel. This opportunity to present oral evidence, expressly permitted by r. 16(6.2) of the Family Law Rules, was declined.

No Genuine Issue for Trial

[17] Rule 16(6) is mandatory. If the court finds that there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[18] The Court of Appeal in Kawartha endorsed the comments and cautionary approaches of Zisman J. in Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 212 and McDermot J. in F. v. Simcoe Muskoka Child, Youth & Family Services, 2017 ONSC 5402 with respect to the ‘no genuine issue for trial’ threshold:

In assessing whether or not a society has met its obligation of showing there is no genuine issue requiring a trial, courts have equated that phrase with “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed”, and “where there is no realistic possibility of an outcome other than that sought by the applicant”: 2017 ONCJ 212, at para. 66.

The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is forgone conclusion” or “where there is no realistic possibility of an outcome other than that sought by the applicant”: 2017 ONSC 5402, at para. 23.

[19] The onus to prove that there is no genuine issue for trial, on any relief sought by the Society, falls squarely and at all times upon the Society. Although the genuineness of an issue ‘must arise from something more than a heartfelt expression of a desire to resume care of the children’, the burden of proof never shifts to the Respondent parent: see Catholic Children’s Aid Society of Hamilton v. V.C. et al., 2017 ONSC 5557, at para. 61.

Status Review Applications

[20] This Summary Judgment Motion arises in the context of a Status Review Application.

[21] Status Review Applications are specifically governed by ss. 113 and 114 of the CYFSA, the relevant portions of which are produced as follows:

113 (1) This section applies where a child is the subject of an order made under paragraph 1 or 4 of subsection 101 (1) for society supervision or under paragraph 2 of subsection 101 (1) for interim society care.

Society to seek status review

(2) The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child’s status;

(b) shall apply to the court for a review of the child’s status before the order expires, unless the expiry is by reason of section 123; and

(c) shall apply to the court for a review of the child’s status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision.

Court may vary, etc.

114 Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 101; or

(d) make an order under section 102.

[22] The two-part process for determination of status review applications, established thirty years ago in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 at p. 199, remains good law.

[23] First, the court must first determine whether the subject-child continues to be in need of protection and as a consequence requires a court order for his or her protection. In this respect:

i. The original order is presumed to be correct. This is not a re-hearing of a previous order made.

ii. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist.

iii. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection, or from circumstances which have arisen since then.

[24] Secondly, the court must consider the best interests of the child, conducted from the child’s perspective.

STEP ONE: The Final Order of Chappel J. dated October 31, 2022

[25] The starting point in this case is the Final Order of Chappel J. dated October 31, 2022, wherein the children were found to be in need of protection pursuant to s. 74(2)(b)(i), (ii), and (e) of the CYFSA.

[26] It is not the function of the court at a status review hearing to retry the original need for the protection order. The findings of the court, made at that time, are presumptively correct. I pause here to note that hundreds of the pages of Affidavit material filed by the Society on this motion would have been unnecessary had the Society ordered the transcript of the reasons for decision of Chappel J., before preparing their materials. There is no need to re-litigate a fact which has already resulted in a judicial finding.

[27] In this case, the Respondent mother and OCL appropriately acknowledge that the children continue to be in need of protection and that intervention through a court order remains necessary for their protection in future. However, notwithstanding this concession, it is important to compare the circumstances of the family as they existed in October 2022, as against the circumstances of the family today:

1. The Respondent mother is now participating in the court proceeding, consistently and respectfully. She has retained counsel, filed an Answer, attended court (with frequent reminders from her worker), and has responded to this summary judgment motion. She is dealing with this litigation responsibly.

2. Family violence has not been a concern for the Society since the father was deported in August 2022. However, in April 2024 the Respondent mother was observed by Society workers to have two black eyes and a bruised cheek. She indicated that she was punched in the face by “some guy”, but offered little elaboration and did not report the incident to the police. At times she has indicated residing with her friend “M”.

3. The Respondent mother has now been homeless for two years. She has reported staying with friends and residing in a tent at times. In March 2024, with the Society’s assistance, she secured a shelter bed, but was discharged from the program for not following curfew rules. She has since declined to pursue a shelter placement and indicated that she is not open to shared accommodation in a shelter. The Respondent mother’s stated plans to secure housing (e.g. location) have been inconsistent, which concerns the Society given the advantages of close proximity to the children’s placements.

4. The medical, dental, and educational circumstances of the children have all dramatically improved, but this is not as a result of the efforts of the Respondent mother. The Society does however have concerns regarding the Respondent mother’s ability to manage her own physical and mental well-being. For example:

i. The Respondent mother has for many months complained about stomach pain, fatigue, kidney and thyroid issues, and a lack of mental focus. At times she has been observed to be in evident pain, and at other times she falls asleep in the presence of the children and/or workers. Despite repeated reminders and support from the Society in scheduling appointments (even entering the appointments into the mother’s telephone calendar), the mother has missed multiple scheduled appointments for assessment, ultrasound, etc., and has yet to address the issues;

ii. The Respondent mother has been repeatedly asked by the Society, for many months, to pursue a mental health assessment. The Respondent mother always agrees with these requests, but has missed multiple appointments relating to same. She continues to date to express that she is willing to take this step, but cannot seem to execute the plan; and

iii. It is the Society’s understanding that the Respondent mother has been prescribed medication for anxiety. However, she is noncommittal about following her doctor’s advice.

5. The Respondent mother’s immigration issues have stabilized, and she is no longer at imminent risk of being deported.

6. The drug charges against the Respondent mother were withdrawn, however, the Respondent mother did not attend her scheduled criminal trial in April 2024 and a warrant was issued for her arrest. That warrant was executed at court, and the mother was taken into custody on the final day of argument of this summary judgment motion. It appears that this unresolved issue will now be addressed.

7. The mother now acknowledges that she has abused drugs (e.g. including crystal methamphetamine and oxycodone) in the past, and as recently as July 2023. While the Society does not assert that they have observed any signs of illicit drug use by the Respondent mother since that time, the Society is concerned that the Respondent mother’s abstinence is not supported by any treatment or relapse prevention programs. The Society has requested that the mother attend addiction therapy appointments to support her sobriety, however the Respondent mother has not attended scheduled appointments and is not receiving supporting services through her family doctor or any other known provider.

8. The Respondent mother’s relationship with the Society has made dramatic improvements since December 2023. Since that time, the mother has gained control of her emotions; has not engaged in angry outbursts of a verbal or physical nature; has participated in meetings with society workers and has demonstrated a greater willingness to share information and work cooperatively with the Society.

9. The Respondent mother’s insight into the protection concerns appears to have improved. She no longer demonstrates the level of denial and blame that she previously exhibited.

10. Access visits:

i. Following the Final Order of Chappel J., the Respondent mother was reluctant to engage with the Society. She did not see the children until June 2023. Initially the visits were positive.

ii. In July 2023 a visit occurred wherein the Respondent mother became dysregulated in the presence of the children, yelling at Society workers, and ultimately banged violently on the window of the car that the child K was inside with her fists. The children were upset. The Respondent mother acknowledges that she was intoxicated, but offers little detail as to the substance(s) she was under the influence of, or the circumstances that led to her intoxication.

iii. A period without access between the Respondent mother and children followed.

iv. Since December 2023:

1. The Respondent mother has consistently attended access visits with the children;

2. The Respondent mother has come to visits prepared with appropriate food, activities, and clothing for the children;

3. The Respondent mother’s access visits are consistently child-focused, and she is loving and attentive towards the children. The mother is adept at caring for B and addressing his special needs in an interactive and appropriate manner; and

4. The only issues raised by the Society regarding the Respondent mother’s visits are that she is regularly late for visits, and at times she is very tired and appears to be falling asleep. The Respondent mother’s lateness sometimes results in B becoming dysregulated and upset.

[28] It is evident that the very troubling circumstances which existed in October 2022 have improved in some areas, but there are a number of remaining circumstances which pose risk to the children.

STEP TWO: Determining the best interests of the children

[29] In determining the best interests of a child under the CYFSA, both in assessing plans under s. 101, and in determining access under s. 104, the court must consider the enumerated factors contained within s. 74(3):

Best interests of 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.

Disposition

[30] When considering the appropriate disposition on a status review application, the court must consider the least disruptive alternatives available for each child, and must consider available options for community placement before making an order for extended society care: ss. 101(3) and 101(4).

[31] However, the court is also bound by the time limits prescribed by s. 122(1) of the CYFSA:

122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding,

(a) 12 months, if the child is younger than 6 on the day the court makes the order; or

(b) 24 months, if the child is 6 or older on the day the court makes the order.

(5) Subject to paragraphs 2 and 4 of subsection 101 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so.

[32] In this case, there are no persons advancing a claim for custody under s. 102 of the CYFSA. No other viable individual or community placement options have been presented. The children have already been in society care for a period of approximately 29 months. The court’s discretion to extend the timelines for interim society care under the CYFSA would be limited to November 24, 2024 (only a further one-month extension). The only remaining options available to this court for disposition at trial will therefore be:

1. An order placing the children in the care of the Respondent mother, pursuant to terms of supervision: CYFSA, s. 101(1)1; or

2. An order placing the children in extended society care: CYFSA, s. 101(1)3.

Views and preferences of the children

[33] The child N is now 15 years of age and holds very strong and consistent views. He does not want to be placed in extended society care, he does not want to be adopted, he wishes to reside with his mother or older sister. He is upset that he does not reside in close proximity to them. He has threatened to absent himself from foster care if he cannot be with his family. N’s views are entitled to a significant level of deference, given his evolving maturity.

[34] K also presents as having a strong bond with her biological family, and is very loyal to them. However, K agrees that her needs are better being met in the care of the Society, and she wishes to remain in her present placement.

[35] B’s views and preferences cannot be obtained as result of his special needs.

Physical, mental and emotional needs of the children and requisite level of care

[36] N, by age 12, had barely attended school and was academically very far behind when brought into care. A psycho-educational plan is in place. With the exception of a brief period of interruption in May 2024, N has been in the same placement home in Brampton since January 2023. He has found a mentor within the home who he has developed a connection with.

[37] K was diagnosed with severe malnutrition, dental decay and academic delays when she was initially brought into care in May 2022. She has been in the same therapeutic treatment foster home since being brought into care. K receives significant one-on-one attention in her foster home and has complex emotional needs arising from her past trauma.

[38] B was also diagnosed with severe malnutrition and dental decay when brought into care. Further, he has a diagnosis of Autism Spectrum Disorder, and has serious developmental and behavioural issues. He was initially placed in a specialized treatment facility, and was later transferred into a family foster home. Since May 2022, B has progressed from being largely non-verbal to building a small vocabulary and using assistive devices to communicate. He can now count to twenty, identify colours, and write some letters. He is now largely toilet-trained during waking hours. B receives regular occupational and behavioural therapy, and has special school programming. He requires constant supervision due to his capacity issues and requires daily assistance with day-to-day life skills, although his incidents of tantrums and self-injury have decreased with time. He thrives in a calm and predictable environment.

Ancestry, culture and heritage

[39] The children are of a Czech, Roma, and Catholic background. K attends Czech virtual school weekly and enjoys learning her original language.

Plans of the Parties

[40] The Respondent mother seeks the return of the children into her care. However, without a home she not able to provide many particulars of her plan (i.e. she cannot identify an address, school, programs or activities for the children, etc.). The mother has made no progress in relation to housing since the October 2022 Final Order. This does not appear to be solely as a result of the current housing crisis. Rather, the Respondent mother does not appear to have been willing to accept the guidance of Society regarding navigating the shelter system in a fashion that could lead to permanent housing and has been unfocused in efforts. The Respondent mother was unable or unwilling to follow the Society’s suggested pathway to stable housing. This was not as a result of a want of encouragement or assistance from her worker, Ms. Maynard.

[41] Within the Respondent mother’s materials, she does not provide any opinion or commitment regarding the need for ongoing services and supports for the children. She does not comment upon how she would organize and effect the continuity of those services without transportation, an income, etc. She has not been able to organize and attend services to attend to her own health-related issues, despite significant logistical assistance, support, and encouragement from her worker.

[42] I am mindful that in assessing the Respondent mother’s plan, the question is whether the parenting that she could provide to the children is below the minimum standard tolerated by the community – not whether the children will be “better off” with parents other than their own: Family & Children’s Services of St. Thomas and Elgin v. A.C., 2013 ONCJ 453, at para. 158. The mother’s plan is not to be judged against “middle class yardstick”: Children’s Aid Society of London and Middlesex v. J.D., 2018 ONSC 6193, at para. 79; Catholic Children's Aid Society of Hamilton v. J.I., 2006 CanLII 19432 (ON SC), [2006] O.J. No. 2299, at para. 38. However, in this case, I am not confident that the Respondent mother has the capacity or stamina to implement a parenting plan for the children on a consistent daily basis, even with intensive support from the Society.

[43] The children’s needs are complex. The Respondent mother’s needs are also likely complex. Despite the Respondent mother’s great love for these children, she has not demonstrated the requisite ability to organize and manage her daily affairs in a manner that could provide the stable and consistent support these children need. Her plan is not tenable. The risk that the lives of the children would fall back into the deplorable conditions they were subject to at the time they were brought into care remains extremely high at the present time and the risk cannot be adequately mitigated by terms or conditions of supervision.

Conclusions regarding disposition

[44] Despite the Respondent mother’s genuine and heartfelt desire to care for the children, she is simply not in a position to adequately do so. Even with robust support in place from the Society, it is extremely unlikely that the mother could provide for and maintain the children’s basic needs (i.e. shelter, food, medical care and attention, education, etc.) either individually or in combination. A trial is not going to change these deficiencies. The protection concerns have persisted for many years. It is plain and obvious that the mother’s request for the return of the children into her care cannot succeed at trial.

[45] The OCL suggests that perhaps the children’s oldest sibling, M.B., could advance a plan on their behalf, or on behalf of N alone. There is no evidentiary support for this suggestion. Notably the Respondent mother has not advanced her young adult daughter as a potential caregiver for any of the children. The limited information before the court is that M.B. has had her own traumatic past and has recently transitioned from a youth shelter into her own housing with the support of ODSP. However, even in the context of a summary judgment motion, it would be wrong for the court to (a) assume that M.B. wishes to assume the role of caregiver, (b) speculate as to the potential merits of the plan, and (c) hope “that some helpful evidence will surface at a trial” with respect to this prospect: see Catholic Children’s Aid Society v. V.C. et al, 2017 ONSC 5557, at para. 165. The Society has a continuing obligation to assess and update all viable plans presented to care for the children, even when children are placed in extended society care. If M.B. wishes to present herself as a potential care provider for any of the children, she may do so, and her plan will be assessed.

[46] The OCL also notes that in one year, N will be of an age where he could potentially enter into a voluntary youth services agreement (“VYSA”). The difficulty is that N presently does not qualify for a VYSA. This court proceeding cannot be adjourned for a year to open another door. The strict timelines under the CYFSA prevent this. The court must assess the appropriate disposition now.

[47] The decision on disposition regarding N is admittedly difficult. N, given his age and evolving level of maturity, is entitled to a degree of deference and respect for his own decision-making autonomy. He will be disappointed with this result. However, the court cannot delay the court proceeding, where no other viable alternatives are available, based only upon his wishes. It is hoped that this unfortunate reality will be explained to N as delicately and sensitively as possible, and that his attention will be drawn to the possibility of a status review application if circumstances change in future. I stress that N’s voice has been heard and respected, and will weigh heaving in the decision on access which follows.

[48] On the basis of the above, I am satisfied that there is no genuine issue for trial regarding disposition in this case. The material before the court is sufficient to permit the court to make necessary findings of facts, apply the law to those facts, and reach a just result. The Society’s motion for summary judgment on the issue of disposition is granted, and the subject-children shall be placed in extended society care.

Access

[49] If an order is made for extended society care, any existing orders for access are automatically terminated: CYFSA, s. 105(4). However, the court may make a further order for access if such an order is determined to be in the child’s best interests: CYFSA, s. 105(5). In determining whether an access order is in the children’s best interests, the court must consider (a) whether the relationship under review is beneficial and meaningful to the child, and (b) whether the ordered access will impair the child’s future adoption opportunities: CYFSA, s. 105(6).

[50] To be clear, the ‘best interests’ criteria, as defined under s. 74(3) must all still be considered in assessing access for children placed in extended society care, along with the two additional criteria enumerated in s. 105(6) – a beneficial and meaningful relationship and implications for future adoption. A holistic and comprehensive analysis is required: Children's Aid Society of Toronto v. J.G., 2020 ONCA 415, at para. 46.

[51] The Society’s position on access (minimum visits of once per month between siblings, and twice per year with the Respondent) is a significant departure from the existing status quo access arrangement wherein:

1. All three children visit with the Respondent mother (together) every Friday;

2. K and B each have an individual visit with the Respondent mother on alternating Wednesdays;

3. All three children have one visit per month with their older sibling, M.B.; and

4. N and the Respondent mother have regular (unrestricted) telephone access.

[52] The Society argues that the prescribed access they are proposing sets out minimum expectations for access, and that in reality, it is likely that far more access would be arranged between the Respondent mother and children, in the discretion of the Society. This position is problematic for a number of reasons, particularly in the context of a summary judgment motion:

1. The Society’s position suggests that they recognize not just the possibility, but rather the probability that a reduction in visits between the children and the mother from approximately 52 visits per year to 2 visits per year may not be in the children’s best interests. Again, this is a summary judgment motion. The Society bears the burden of establishing that there is no other outcome, other than their proposed plan, that could possibly result after a trial. The request for a court-ordered minimum term of access that the Society themselves acknowledges would likely be expanded in the specific circumstances of this family, is at odds with their burden of establishing that the Respondent mother’s position on access has no chance of success at trial.

2. Finality is an important consideration where the rights of children are an issue. A child should not be unsure of his or her home or status for prolonged periods of time: Van de Perre v. Edwards, 2001 SCC 60, at para. 13. This concept is particularly important in child protection proceedings: see Children’s Aid Society of Toronto v. E.S., 2013 ONCA 77, at para. 5; Children’s Aid Society of Durham (Region) v. W.(C.), 1992 CanLII 4096 (ON CA), [1992] O.J. No. 265, at para. 6; Children’s Aid Society of the Regional Municipality of Waterloo v. S.S., 2010 ONCA 630, at para. 9; and C.M. v. Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612, at para. 35. The Society’s position on access between the children and their mother – which is essentially that ‘there will be a minimum of two visits per year, …maybe only virtual, …but probably more than two, …and probably in person’, does very little to inspire certainty and finality for these children with respect to their future relationship with their mother. In fact, in the particular circumstances of N, who is most forceful in his views regarding the importance of his ongoing relationship with his biological family, a Final Order of this nature could impose a chronic, and potentially tortuous, state of uncertainty upon him.

3. Finally, the Society’s position appears to be more akin to a very low-ball estimate of the amount of access that would be in the children’s best interests, with a great deal of discretion for variation and upwards adjustment. This request, where a Final Order is sought, comes too close to a request for complete delegation of the court’s authority to a nonjudicial actor to be lawful: see J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630, at para. 5. While I accept that the court may delegate discretion over more minor logistical matters, discretion over the frequency of minimum access is not appropriate.

[53] In the context of the extremely positive reports regarding the mother’s access time with the children since December 2023, I do not accept that the Society’s position on access is a foregone conclusion. I do not accept that there is ‘no realistic possibility’ of an outcome on access other than that sought by the Society. In fact, in the circumstances of this case, I find the reverse to be true: there is very little chance that the Society will be successful at trial in their position of restricting access between these children and their mother to two visits per year. Access is a genuine issue for trial.

Expanded Powers

[54] If there is a genuine issue for trial, the court must determine whether a trial can be avoided by using the expanded powers available under r. 16(6.2): C.A.S. v. R. F. and V.C., 2019 ONSC 5224, at para. 30. In this case, it appears that all parties agree that the record is sufficient to make a final determination on the issue of access. There are very few factual issues in dispute, and the court is not asked to make any credibility findings with respect to the Affidavits filed by either side.

[55] It is common ground that:

1. The children all have a beneficial and meaningful relationship with one another and with the Respondent mother.

2. The children are individuals with rights to be respected and voices to be heard:

a. The articulated views and wishes of N and K support regular ongoing access with each other and with their mother.

b. N asks for more time with his biological family – he presently sees them all together once per week and is situated in a foster placement outside of the city where his family resides. He is very vocal about his unhappiness with this arrangement and has threatened to remove himself from care.

c. K has expressed a desire that her access visits continue.

d. B is unable to verbally articulate his views on this subject, but his body language and presentation suggests that he very much enjoys his access time with his siblings and the Respondent mother.

3. The Respondent mother promotes a connection for the children to their Czech Roma heritage, through language, song, dance and narrative shared at access visits.

4. The Respondent mother is sensitive to the very different needs of the children. She engages in appropriate dialogue with each of them and effectively calms and redirects the children if they become aggressive or upset. She comes to visits prepared with healthy snacks and enjoyable activities. The biggest problem with access is the Respondent mother’s lateness; although when the children are late the Respondent mother is flexible and understanding.

5. The children enjoy their visits with each other and with the Respondent mother. The visits are positive, affectionate, and playful. The family greets each enthusiastically and interacts well with one another.

6. The children find security as members of their biological family and any future adoption plan advanced on behalf of the children will include openness provisions between the siblings and with the Respondent mother.

[56] The thrust of the Society’s justification for a significant reduction in access from weekly to monthly (between the siblings), and from weekly to bi-annually (between the children and the Respondent mother) appears to focus on two objectives:

1. To remove potential roadblocks to a future adoption by a new family; and

2. To allow the children the ability to more easily transition into a new life, if and when an adoptive family is found.

Impediments to Adoption

[57] The evidence before the court regarding 15-year-old N is clear: he does not want to be adopted. His consent would be required for an adoption, and it does not appear likely that it will be forthcoming. Access with his mother and siblings therefore cannot be seen as an impediment to permanency planning.

[58] With respect to K and B, K’s foster family is prepared to present a plan to adopt her, but is unable to present a plan for her special needs twin, B. B’s foster home will continue to offer him a long-term placement, but does not intend to advance an adoption plan on his behalf. The Society has filed an adoption feasibility study which concludes that, while there is presently no match family for them both on the Society’s internal adoption waiting list, it is ‘likely’ that a match family could be found through a broader provincial search.

[59] Notwithstanding the Society’s desire to place K and B together, it appears that the Society intends to pursue K’s adoption by her foster family, which conforms with K’s wishes. K’s foster family has been honouring the access arrangements with her siblings and mother for many years. They are presumably familiar with and respectful of K’s connection to her biological family. Any order that this court makes regarding K’s access to her siblings and mother may be short-lived: it only remains in place until her placement for adoption, at which time the discussion turns to openness. There is no evidence that an order for ongoing access between K and her family, in the intervening period of time between the release of this court’s decision and K’s official placement for adoption, would cause a disruption to this adoption plan.

[60] What remains for consideration is therefore whether an order for access between B and his family would cause potential disruptive effects to the likelihood of his adoption, and the overall impact of that effect on B’s best interests. Notwithstanding the adoption feasibility study, it is possible that B’s adoption, as a special needs child, could prove challenging. A very special family may be found within the larger databank, but there is also a possibility that one may not. This court must be sensitive to the possibility that the access order this court imposes has the potential to be a very long-term order.

[61] Though he may not be able to articulate his sentiments through words, I accept that B shares an important bond and connection with his mother and his siblings. His family has been a constant and important presence in his life for 10 years; his bond with K commencing in utero. The Respondent mother loves and nurtures B – he derives benefit from that relationship. The Society’s adoption feasibility study acknowledges that an openness plan will be “imperative” to B’s long-term best interests. Any potential adoptive family for B must understand that requirement. I find that a disruption to the regular contact that B has with his biological family, pending potential adoption, could cause him real harm. I do not accept that the possibility of impairment to B’s adoption prospects is sufficient to override that risk.

[62] The Society argues that the Respondent mother displays some of the attributes that courts have opined can be problematic in terms of achieving adoption for children; for example (a) aggression, anger and impulse control, (b) lack of support for alternate caregivers, (c) dishonesty and secrecy, (d) propensity to be litigious: Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, at paras. 165-169. While this may have been true in October 2022, I do not accept that such a description of the Respondent mother’s conduct and character remains true today. The Respondent mother has now demonstrated an ability to work cooperatively with the Society for an extended period of time, has supported the children’s placement in care (in particular, in relation to N, who has struggled), and has demonstrated appropriate restraint and impulse control. The Respondent mother has never been ‘litigious’ and has behaved as a responsible litigant in this status review proceeding. While some of the Respondent mother’s characteristics and behaviours have been very concerning in past, I do not accept that these factors presently impact the best interests analysis in any material way.

Transition into new life

[63] The Society notes that there are qualitative differences between the nature of access before and after placing a child in extended society care. That is, the extended care order presumes that the child and access seeker will not be re-united in one family: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H., 2018 ONCJ 453, at para. 24. After an extended society care disposition, the purpose of an access order is to preserve a form of the relationship that is found to have shown a positive benefit for the child, which involves striking a balance between the preservation of the relationship and the transition to permanency in an adoptive home: Family & Children’s Services v. B.S., 2019 ONSC 6577, at para. 74.

[64] The evidence before the court regarding 15 year-old N is clear: he does not want to be adopted. He does not want any reduction in the limited time he has with his mother or his siblings. In fact, he is dissatisfied with the once per week visit presently in place. It matters not to N what the objective purposes of an access order are before and after being placed in extended society care. N will not consent to an adoption, and the Society has no plans to change his existing placement. He will be transitioning into adulthood, not into a new family. In these circumstances, it is difficult to identify or justify any basis upon which to reduce the amount of time N spends with his biological family.

[65] There is evidence within the Society’s materials that K is content with the present access arrangement, but at times requires flexibility to attend various camps and activities. Likewise, K is progressing well in school, and the timing of the visits requires her to be absent. The mother has been understanding when K has missed visits to attend other events and opportunities. With respect to K, achieving the balance between preserving a relationship with her biological family, while at the same time facilitating a transition into her adoptive family’s home is less obvious. It is clear that she needs some ongoing access with her siblings and mother; the question become a matter of frequency.

[66] With respect to B, there is no immediate identified pathway to his adoption. As a special needs child, B’s attachment to his caregivers, stability, and routine are of particular importance. The Respondent mother is one of his caregivers. B derives comfort and security from his weekly visits with his family. In his unique circumstances, disruption to B’s schooling carries less weight. I find that it would be more disruptive and more destabilizing to B to reduce his time with his family.

[67] The mother acknowledges that her punctuality is a weakness. She is frequently late to visits. She was late to court each day. However, I find merit in her counsel’s suggestion that being homeless affects every aspect of the mother’s life: planning transportation and travel times from different/unknown locations every day, the logistics of charging a phone/setting an alarm, developing a consistent routine, etc., all compound the problem. But in the context of the children’s best interests, late visits are preferable to no visits. The Society is commended for their ‘behind the scenes’ efforts to confirm visits with the mother. It is hoped that their commitment to this cause will continue.

[68] The Society asserts that the caselaw suggests that an average of access six visits per year is the norm for children in extended society care. I reject the argument that ‘ranges of access’ relating to children in other cases is a factor to be considered. There is no longer a presumption against access for children in extended society care under the CYFSA: Kawartha, at para. 31, and J.G., at para. 58. Likewise, under the CYFSA there is no presumption for reduced access for children who are placed in extended society care. Each case must be determined on its own unique facts: “case-by-case consideration of the unique circumstance of each child is the hallmark of the process”: Van de Perre, at para 13.

Access holders

[69] In this case, I agree with all parties that the Respondent father should have no access to the children. He would therefore not receive any notice of the children’s placement for adoption. However, there does not appear to be any basis for the Society’s request that the Respondent mother not be a holder of access under s. 105(7) of the CYFSA. I agree with Sherr J. that, unless it is found to be contrary to the best interests of the children, it is always the court’s preference to make the parents access holders: Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489, at para. 362. In this case it is entirely appropriate that the Respondent mother have a say in her post-adoption contact with the children, if and when they are placed for adoption.

[70] The court is aware that the children have an access visit with M.B. once per month, but do not presently have access with B.B. due to his incarceration. The Society advises that they intend to continue to encourage the present level of contact between the children and M.B., however, no party has requested an order for access between the children and their adult siblings. Accordingly, they will not be access holders.

Conclusions regarding access

[71] I have carefully considered the best interests of each individual child. I have weighed all of the best interests factors enumerated under the CYFSA as against each child’s individual needs and circumstances as discussed above.

[72] I find that N’s age and stage of development, in combination with the strenuous and consistent views he has articulated, necessitates an increase in his access time with the Respondent mother. His voice is loud and clear. He requires more one-on-one time with his biological mother. To ignore N’s opinion could have deleterious effects. Given N’s age and abilities, the Society should consider whether such parenting time could be semi-supervised, on a check-in/check-out basis at the Society as he transitions into adulthood and moves towards independence. I find it to be in N’s best interests to have a ‘family’ access visit once per week, and a one-on-one access visit with the Respondent mother on an alternating weekly basis. N shall continue to have unrestricted telephone access with the Respondent mother in his discretion.

[73] With respect to K, whom it appears will soon be transitioning from a foster placement into an adoptive placement, I find it appropriate to maintain regular but somewhat reduced contact with her family of origin. K derives a strong positive benefit from her relationships with her twin, her mother, and her older brother. These are relationships that must be preserved. However, it is also important to respect and promote K’s transition into her permanent placement with her proposed adoptive family. That family unit requires the ability and autonomy to enroll K in structured activities, attend events that they deem important, etc. I find that striking the ‘right balance’ between these important objectives of preserving K’s bond with her family of origin and allowing her the freedom to be integrated into her new family unit pending her placement for adoption, can be achieved by access with her mother and her siblings a minimum of three times per month.

[74] For B, for whom the nurturing care by consistent and stable caregivers is of heightened importance, I do not accept that any change to his present level of access is in his best interests. The frequency of B’s contact with K will be reduced by necessity of her own access schedule, however pending his own placement for adoption, he shall continue to have ‘family’ visits on a weekly basis, and one-on-one visits with the Respondent mother on an alternating weekly basis.

[75] The Society is not seeking an access order between the children and their older siblings, M.B. and B.B.. However, they advise that they are committed to ongoing contact.

[76] The Society shall have discretion over minor logistical matters, in consultation with the Respondent mother and the children, including discretion over:

1. The location and duration of visits;

2. Visits in excess of the court-prescribed minimum access and on special occasions;

3. Whether any other third parties should be permitted to attend the children’s access visits (e.g. older siblings, family friends, etc.);

4. Terms of supervision regarding the visits, including whether all or any portion of the access visits may be semi-supervised or unsupervised;

5. Any reasonable terms regarding confirmation of visits and advance check-in by the Respondent mother;

6. Additional communications in the form of letters, cards, emails, photographs, social media, etc. between the siblings and/or with the Respondent mother.

ORDER

[77] On the basis of the above, there shall be a Final Order to go as follows:

1. The children N, B, and K, shall be placed in the extended society care of the Catholic Children’s Aid Society of Hamilton.

2. The Respondent father, K.B., shall have no access to the children.

3. The children shall have in-person access to each other and to the Respondent mother as follows:

a. The child N shall have minimum access as follows:

i. One joint family access visit per week with his sibling(s) and the Respondent mother;

ii. One individual one-on-one access visit with the Respondent mother on an alternating weekly basis; and

iii. Regular telephone contact with the Respondent mother in the discretion of N.

b. The child K shall have minimum access as follows:

i. Three joint family access visits with her siblings and the Respondent mother per month.

c. The child B shall have minimum access as follows:

i. One joint family access visit per week with his sibling(s) and the Respondent mother; and

ii. One individual one-on-one access visit with the Respondent mother on an alternating weekly basis.

4. The Respondent mother shall have minimum access to the children, collectively and individually, as per paragraph 3 above.

5. The children and the Respondent mother are each persons who have been granted the right of access pursuant to s. 105(7) of the Child, Youth and Family Services Act and are all individual holders of access.

6. The Society shall have discretion over minor logistical matters relating to access, in consultation with the Respondent mother and the children, including:

a. The location and duration of access visits;

b. Access visits in excess of the court-prescribed minimum access and on special occasions;

c. Whether any other third parties should be permitted to attend the children’s access visits (e.g. older siblings, family friends, etc.);

d. Terms of supervision regarding the visits, including whether all of any portion of the access visits may be semi-supervised or unsupervised;

e. Any reasonable terms regarding confirmation of visits and advance check-in before visits; and

f. Additional communications in the form of letters, cards, emails, photographs, social media, etc. between the siblings and/or with the Respondent mother.

Bale J.

Released: October 25, 2024

COURT FILE NO.: 548-22

DATE: 2024/10/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CCAS of Hamilton

Applicant

• and -

Z.C.

Respondent

REASONS FOR JUDGMENT

Bale J.

Released: October 25, 2024