Court File and Parties

COURT FILE NO.: FC-22-CP3-1 DATE: 2024-02-14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Children’s Aid Society of Ottawa, Applicant AND E.K., O.K., D.L., Respondents

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Ben-David Ulster, Counsel for the Applicant John Allan, Counsel for the Respondent E.K. Francis Aheto-Tsegah, Counsel for the Respondent O.K. Vasu Naik, Counsel for the Respondent D.L.

HEARD: February 6, 2024

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.

Reasons for Judgment

M. Smith J

[1] The Children’s Aid Society of Ottawa (“Society”) brings a motion for summary judgment seeking, amongst other things, an order that the child, K (born…2021) shall be placed in the custody of her paternal great-grandmother, D.L., pursuant to section 102(1) of the Child, Youth and Family Services Act, S.O. 2017, c. 14 (“CYFSA”), with access specified.

[2] K’s parents are E.K. (“Mother”) and O.K. (“Father”), who both oppose the motion.

[3] D.L. supports the Society’s motion.

[4] For reasons that follow, the Society’s motion for summary judgment is granted.

Legal principles

[5] The paramount purpose of the CYFSA is to promote the best interests, protection, and well-being of the child. The focus of any case must be on the needs and interests of the child. Additionally, one must consider the least disruptive course of action that is available and appropriate in the circumstances, but only to the extent that they are consistent with the best interests, protection, and well-being of the child.

[6] Rule 16 of the Family Law Rules, O. Reg. 114/99 provides that the court has the jurisdiction to deal with a child protection matters by way of summary judgment.

[7] Section 114(d) of the CYFSA provides that in a Status Review Application, the court may make a custody order.

[8] A custody order is made pursuant to section 102(1) of the CYFSA where it would be in the child’s best interest to grant custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[9] The determination of the child’s best interest is made by considering the factors that are set out in section 74(3) of the CYFSA.

[10] In the decision of Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at paras. 65-76, 80, the Ontario Court of Appeal has provided the approach to be followed with respect to summary judgment matters in child protection proceedings. In applying the test for summary judgment that is set out in the decision Hryniak v. Mauldin, 2014 SCC 7, the court has established principles to follow, which includes, amongst others: (a) the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child; (b) the burden of proof is on the moving party and the court must be satisfied, on the evidence before it, that the moving party has established that there is no genuine issue for trial; (c) the court must conduct a careful screening of the evidence to eliminate inadmissible evidence; (d) judicial assistance must be provided for self-represented litigants.

[11] On a summary judgment motion within the context of a Status Review Application, where little has changed since the previous order, and where the conditions of likelihood of harm to the children remain present, there is no genuine issue for trial: C.A.S. v. M.W. & M.S. 2020 ONSC 1847 (SCJ) at para. 84.

Analysis

[12] The Society relies upon the following two affidavits: (a) D.J., child protection worker, sworn on January 25, 2024; and (b) M.L., child and youth counsellor, sworn on January 25, 2024.

[13] The Father filed an affidavit sworn on January 30, 2024, and he was present at the motion.

[14] The Mother did not file any responding materials, and she was not present at the motion.

[15] D.L. relies upon the following three affidavits: (a) her own affidavit, sworn January 30, 2024; (b) K’s aunt, sworn January 29, 2024; and (c) K’s great great grandmother, sworn on January 30, 2024.

[16] On August 8, 2022, Pelletier J. made statutory findings that K is not a First Nations, Inuk, or Métis child. He also found K to be a child in need of protection and placed her with D.L. under a four-month Supervision Order.

[17] At the time that Pelletier J. made the order, the protection concerns included the parents’ inability to meet K’s needs, maintaining a safe and stable home environment, and lack of supervision.

[18] K has been diagnosed with “absence epilepsy” and she is closely followed by a physician at Children’s Hospital of Eastern Ontario (“CHEO”). She experiences very short seizures that last between 5 to 8 seconds, and they occur between 8 to 12 times per day. These short seizures also occur when she is sleeping.

[19] K has been prescribed medication in an attempt to control the seizures. There are strict instructions to follow regarding the dosage and administration of medication, such that it must be taken at the same time everyday, twice per day. If the medication dosage is missed, the seizures will increase.

[20] K is required to attend follow-up sessions regularly at CHEO.

[21] Suffice it to say that K’s medical condition is serious, and it requires someone that is very attentive to her special needs.

[22] The evidence before me does not demonstrate that the parents have made any significant progress to address the Society’s protection concerns, and those concerns remain unresolved. I do not find that the parents would be capable of having K return to their care in a suitable, stable, and hygienic home environment, especially when one considers K’s special needs.

[23] As noted earlier, the Mother has not filed any materials. It is well known that in summary judgment motions, a party must put their best foot forward, or risk losing. The Mother continues to struggle in managing the simplest tasks in her life, she has been extremely inconsistent in her visits, and more importantly, her current whereabouts are unknown, and she has not been seen by the Society since October 2023.

[24] The Father’s situation is better than the Mother’s, but it is still not sufficient. He says that he attended the Bethany Hope for my Couples Counselling and Parenting Program and attaches a letter from this program. However, this letter speaks about the centre and very little is provided regarding the Father’s own progress.

[25] During argument, counsel for the Father walked me through various notes taken by Society workers during his visits. He argues that there has been a progressive trend upwards and that the concerns noted in the notes are minimal and not extensive, in comparison to the positive comments made by the Society worker. It is submitted that the Father is engaged in a meaningful way, he is doing better, and with time and more practice, he will require less intervention.

[26] The Father also says that the issue of access is important and raises a specter that should properly dealt with, and it is inappropriate to deal with it summarily.

[27] I am not persuaded by the Father’s submission that he has made any concrete or meaningful progress. While the Society’s notes do show that there are certain things that are working well with access, there are still many things that are concerning. During access, the Father is observed to be disengaged, unresponsive, and must be cued at times, which is problematic behaviour. It is also noted that the Father finds that an hour visit is too long. The Father has not been regularly exercising access, having missed almost 60% during the past two years.

[28] Although the Father may have a genuine and heartfelt desire to care for K, his evidence is lacking regarding the progress that he has made since the order of Pelletier J. Conversely, the Society’s evidence overwhelmingly demonstrates that the Father is still struggling, and he would not be able to provide for K consistently and safely.

[29] Moreover, other than broad statements in his affidavit that he will ensure that K’s “… physical, emotional, medical/dental, educational/development needs are met in a safe, stable and nurturing home environment”, the Father has not presented a plan of care that sets out how he would achieve these objectives.

[30] On the evidentiary record before me, little has changed since the order of Pelletier J. and the likelihood of harm to K still exists. I find that the Society has established that there is no genuine issue for trial.

[31] Turning to whether it is in K’s best interest that she be placed in the care and custody of D.L., the evidence clearly establishes that it is in her best interest. I say so for these reasons:

a. When K was in the care of her parents, her physical, mental, and emotional needs were not being met. In contrast, K has now been in the care and custody of D.L. for most of her life, and since then, all her needs, including her special needs are being met. D.L.’s evidence clearly shows the rigid routine that she follows with K to ensure that is receiving the appropriate care. b. K finds herself with a family member which is the less intrusive order. Not being with strangers, K will have the opportunity to fully explore her heritage. c. Regarding access, the Father is concerned that if a custody order is granted to D.L., the Society will no longer be supervising, and it may impede on his time with K. I disagree and I am not persuaded by his argument. The evidence filed by D.L., which I accept, shows that she has supported access, as best she can, despite the difficulties that she encountered because of the parents’ behaviour. I am convinced that D.L. will continue to support access with the parents and she will also ensure that K continues to develop relationships with her extended family. d. K has been thriving, is meeting all milestones, and has developed emotional ties while in D.L.’s care. This positive outcome is due to D.L. being able to offer a secure, stable, and caring environment. K has finally settled in a home where she can receive continuity of care. The parents were previously not able to offer this to their child, nor have they filed any persuasive evidence that they would be able to offer it at present. e. D.L. has set out a detailed plan of care for K. It is reasoned, it speaks to maintaining family connections and it is child focus. Conversely, no such plans exist from the parents. It is noted that while the Father filed a plan of care at the commencement of the proceedings, it is no longer relevant because the parents are no longer together. No updated plan of care has been provided. f. D.L. has built a strong support network that includes professionals such as a family doctor, many family members, neighbours, and friends who are ready and willing to assist her in caring for K as and when required. There is no doubt in my mind that D.L.’s support system will be able to assist K. g. Counsel for the Mother queries as to whether D.L. is able to care for K on her own. He points to the affidavits of K’s aunt and great great grandmother arguing that D.L. relies extensively on their support to parent K. This argument has no merit. There have been no major concerns noted by the Society with respect to K’s kin placement with D.L. Furthermore, D.L.’s evidence is very impressive as to the level of care that she provides to K. There is no evidence before me that would raise any concerns regarding D.L.’s ability to care for K. h. The degree of risk that existed at the time of the order of Pelletier J. still exists today. There has been little or no change to the protection concerns. Any improvement noted by the parents is very limited. The parents have failed to persuade me that sufficient progress have been made to correct and address the initial protection concerns.

[32] On the totality of the evidence before me, I find that it is in K’s best interest that she be placed in the care and custody of D.L. K is doing well in D.L.’s care. A custody order to D.L. will not only ensure that K will be in a safe, secure, and stable environment, but it will also ensure continuity of care and culture.

[33] For all these reasons, the Society’s motion is granted. Order to issue as per the relief sought in the Society’s Notice of Motion.

M. Smith J

Released: February 14, 2024