Court File and Parties

Court File No.: FC-22-CP69-2
Date: 2025/02/20
Court: Superior Court of Justice - Ontario

Applicant: The Children’s Aid Society of Ottawa
Respondents: S.B.-M., J.D., T.R.

Before: Justice K.A. Jensen

Counsel:

• Mark Hecht, for the Applicant
• Jean-Claude Dubuisson, for J.D. and T.R.
• Maryn Marsland, for S.B.-M.

Heard: 2025-02-19

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.

Ruling

Introduction

[1] This is a decision on a summary judgment motion, heard on February 12, 2025. The matter before the court relates to the child, AM. SB-M is the biological mother of the child. JD is her biological father.

[2] AM was removed from the care of her mother the day following her birth. At that time, she was placed in the care of the Children’s Aid Society of Ottawa (the “Society”). In April 2024, the Society amended their application and AM was placed in the care of her father JD along with his partner, TR, on a temporary, without prejudice basis. TR was added as a party at that time as she then became a caregiver for the child.

[3] In September 2024, the Society amended the Application for a second time to request a Custody Order s. 102(1) of the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1 (CYFSA) to the father and TR. However, in November 2024, as a result of the Father’s relapse and subsequent involvement with Criminal Court, the Society amended the Application for a third time to request a s. 102(1) Custody Order to TR.

[4] The Society alleges current protection concerns relating to the Mother’s substance abuse; general neglect of the older children and lack of parental capacity; and on-going domestic conflict with the older children’s Father.

Summary Judgment Motion Principles

[5] The Court has jurisdiction to deal with a child protection matter by way of summary judgment. The test for granting summary judgment is set out in Rule 16 of the Family Law Rules.

[6] The general principles applicable to summary judgment motions are well established by Hryniak v. Mauldin, 2014 SCC 7 (Hryniak), where the Supreme Court of Canada determined that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.

[7] The Ontario Court of Appeal has also reviewed the long-standing test for summary judgment in child protection matters in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 (Kawartha-Haliburton). In that case, the court noted that, 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.

[8] A cautious approach is essential. This is particularly true when the outcome sought is for a final order, particularly one that fully removes a child from the care of her parents and dramatically restricts her access with them, as is the case here. This has monumental and lifelong impacts on the child, the parents, and their relationship: Kawartha-Haliburton, at paras 65, 76.

[9] As noted by the Ontario Court of Appeal in Kawartha-Haliburton:

“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 foregone conclusion’ or where there is ‘no realistic possibility of an outcome other than that sought by the applicant’.” [^1]

Analysis

[10] The present matter is an initial protection application where there has been no finding in need of protection and only a temporary, without prejudice order in place. The Society is therefore required to demonstrate that the child is in fact in need of protection and, if so, on what basis.

[11] If that is established on the evidence before the court, the Society must then provide sufficient, admissible evidence to support a determination of the disposition they seek and that there are no triable issues as to whether the orders sought should be made.

[12] I agree with the mother, SB-M, that the Society has failed to discharge their burden on the motion for summary judgment. There is a lack of admissible evidence available at this stage to reach the necessary conclusions. Further, there are competing plans before the court such that it is not one of the “clearest cases” where there is “no realistic possibility of an outcome other than that sought by the applicant.”

[13] Firstly, on the issue of Statutory Findings, the Father provided unsworn evidence that he identifies the child as First Nations although neither he nor the child are affiliated with a Band or a community. In contrast, the Society stated in its factum that there should not be a finding of First Nations status for the child. At the hearing of the motion, the Society changed its position and stated that the father’s partner, TR, accepts that the father and the child identify as First Nations. Given that the Father has identified the child in an unsworn statement, a finding of First Nations status for the child would be in order, in the Society’s view.

[14] The Society’s approach is not consonant with the developing case law in this area. In CCAS v. M.P. et al., 2021 ONSC 6788, Justice Bale joined with others in calling for a solid evidentiary basis before determinations of Indigenous identity are made. As Justice Bale stated at paragraph 49:

It would be offensive to Indigenous people to permit non-Indigenous persons to appropriate the considerations and safeguards under the CYFSA that are intended to acknowledge historic injustices and redress present-day disadvantages that they do not share. Surely, something more than a simple self-declaration of identity is needed. [^2]

[15] The definition of a First Nations, Inuk or Métis child is contained in s. 1 of Ontario Regulation 155/18, under the Child, Youth and Family Services Act, 2017. This definition includes a child whose parent identifies them as a First Nations, Inuk or Métis child.

[16] In CCAS v. M.P., Justice Bale stated that the court must assess whether an individual’s self-identification as First Nations, Inuk or Métis is “a good faith claim, grounded in persuasive and reliable information, before making such a finding”. Although the threshold for a finding of First Nations, Inuit or Métis identity under the CYFSA is low, it is nevertheless important that the court have sufficient evidence to make that statutory finding.

[17] In the present case, I find there is an insufficient evidentiary basis for making a statutory finding of First Nations or Métis status. This is a very important determination because once that determination is made the Federal Act called An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 ("the Federal Act") will apply to the analysis of the appropriate disposition if the child is found to be in need of protection. In Kawartha-Haliburton Children’s Aid Society v. M.W., the Ontario Court of Appeal stated at paragraph 60:

…the court in a child protection proceeding is required to determine if the child is First Nations, Métis or Inuit. This finding, which must be made before the court determines whether the child is in need of protection, is important because it ushers in a series of special considerations including the provision of services and decisions that recognize the importance of the child’s culture, heritage, and connection to community. (emphasis added)

[18] While it might have been possible for me to do as Justice Bale did in CCAS v. M.P. and hold a mini-hearing, pursuant to subrule 16(6.1) of the Family Law Rules on the child’s First Nations status, I find there are several other reasons for sending this matter for trial. The issue of whether the child is a First Nations child may be addressed at trial along with the other issues in this case.

[19] The second issue that prevents me from granting summary judgment in this case relates to the Society’s proposed disposition. The mother has presented an alternative kinship plan that has not been fully assessed or considered by the Society. This competing plan requires consideration by the Court. This is a significant triable issue.

[20] In the Society’s affidavit evidence, Child Protection Worker Michelle Tyrell stated on March 28, 2024, that after the child’s birth, the mother presented a kinship plan with her parents. This plan was assessed by the Society's Kinship Department and was not approved. The maternal grandparents then indicated that they would be willing to present a plan on their own. It was clarified by the kinship worker that there were other concerns identified during her assessment besides the mother residing in the home. The kinship worker reviewed these concerns with the maternal grandparents and provided them with some recommendations to help address the worries and mitigate the concerns. Although the maternal grandparents were in the process of following through with some of the recommendations, the Society closed the kinship assessment because it was deemed to be no longer required given that the father and his partner TR had indicated they were willing to have care and custody of the child.

[21] When the father relapsed and was charged criminally, the application was amended to remove the father. Then, it became only the father’s partner, TR, who was to have care and custody of the child.

[22] I find that it is a triable issue as to whether the maternal grandparents should have been given another opportunity to present a kinship plan after working on the issues raised by the Society in the first assessment and whether placing the child with them would be in the child’s best interests.

[23] Thirdly, the mother has raised a triable issue as to whether the care plan of the father’s partner, TR, is in the child’s best interests. The Society is seeking a final order granting decision-making responsibility for the child to TR. As the person with the decision-making responsibility for the child, TR would be permitted to travel domestically and internationally with the child. Furthermore, as the person with the decision-making responsibility for the child, TR would be permitted to obtain or renew government documents such as passports, health cards, social insurance number (SIN), citizenship cards and birth certificates for the child without any requirement for other consents or authorizations. The mother and father are permitted access to the child only at the discretion of TR.

[24] The mother argues that if this order is granted, there would be nothing to prevent TR from taking the child to live with her permanently in another country and denying both the father and the mother access to the child. Arguably, if the child is found to be a First Nations child, this may not be in keeping with the Federal Act, which places a priority on both family placements and community connections for First Nations children.

[25] Moreover, there is contradictory evidence as to whether TR will support the child’s relationship with her mother or with the maternal family. For example, the maternal grandfather provided affidavit evidence stating that he and the maternal grandmother have asked to see the child, making requests both to TR directly and to the Society. However, access has not been arranged. The maternal grandfather stated that the plans have always been cancelled by TR. He alleges that TR has told him that if the maternal grandparents opposed her plan in court, she would ensure that they never see the child again, so they have been hesitant to push too much.

[26] In contrast, TR asserts that she is willing to promote the relationship between the maternal family and the child. The evidence on this issue does not permit me to make a finding. I find that there is a triable issue as to whether TR will support the child’s relationship with the mother and the maternal family.

[27] In addition, the mother asserts that the relationship between the father and TR is not healthy and it is not in the child’s interests to be in their care. According to the mother, despite her statements to the contrary, TR permits the father to be in the home while he is still actively struggling with his addictions and his mental health. The relationship is not stable, according to the mother, and it is not healthy for the child to be in that environment.

[28] The Society’s evidence is that they have no concerns about the care being provided by TR and that she is protective of the child around the father.

[29] Although I have fact-finding powers and can resolve contradictions in the evidence, even when they involve credibility determinations, I am not convinced that doing so in the present case would be advisable. The allegations are serious, and the stakes are very high on this application. I agree with the mother that a trial is required to determine whether the proposed plan is capable of being safe, stable, and in the child’s best interests and whether there are other plans that might better meet the child’s best interests.

[30] Finally, on the issue of the mother’s access to the child, the Society’s application asks that the decision about whether the mother will have access to the child be delegated to TR. The mother has raised a triable issue as to whether the decision regarding her access to her child should be delegated to TR.

[31] The Divisional Court in JSR v. Children’s Aid Society of Ottawa, 2021 ONSC 630, para 51, held that if some ongoing contact with a parent would be in the child’s best interests, the CYFSA puts an obligation on the court to make a specific order with respect to that access and not leave it to the discretion of one of the litigants.

[32] The mother argues that TR has demonstrated animus towards her and an unwillingness to provide her with access to the child. I cannot, on the basis of the evidence provided on this issue, make a determination as to whether this is a fact. There is competing affidavit evidence on this point that cannot be resolved using the enhanced fact-finding powers. A trial is needed to make a determination on this point.

[33] For these reasons, I am dismissing the Society’s motion for summary judgment. The parties are to appear before the court on March 5, 2025, to speak to the next step in the process.

Justice K.A. Jensen
Date: 2025-02-20

[^1]: Simcoe Muskoka Child, Youth and Family Services v. M.H., 2021 ONSC 7114, at para. 10. [^2]: CCAS v. M.P. at para 58.