Windsor-Essex CAS v. J.G., 2018 ONSC 4137

Court: Ontario Superior Court of Justice

Date of Decision: June 29, 2018

Citation: 2018 ONSC 4137

Background

This case involved a child protection proceeding concerning the placement and custody of a child, S.S.-G., who is a member of the Aamjiwnaang First Nation. The Windsor-Essex Children’s Aid Society (the "Society") was the respondent in the appeal, while the biological father, J.G., was the appellant. Other parties included A.S. (the maternal grandmother and caregiver) and the Aamjiwnaang First Nation.

The case arose after the child’s biological mother, B.S., passed away, and the trial court had to determine the most suitable placement for the child, considering his Indigenous heritage, parental fitness, and best interests.

Issues on Appeal

J.G. appealed the trial judge’s decision, arguing that:

1. The trial judge erred in assessing his ability to care for the child.

2. The judge gave undue preference to the child's non-Native maternal grandmother over the biological father.

3. The decision failed to adequately consider the importance of raising the child in his Indigenous community.

Key Findings of the Trial Court

• The trial judge found that S.S.-G. was "in need of protection" under Section 37(2)(i) of the Child and Family Services Act (CFSA) due to the death of the child’s mother.

• The court considered various factors, including the child's Indigenous status, the father’s criminal record, his history of domestic violence, and his lack of consistent involvement in the child's life.

• The trial judge ruled in favor of granting custody to A.S., emphasizing the stability, emotional well-being, and proper care she had provided to the child.

Decision on Appeal

Justice Verbeem dismissed J.G.’s appeal, concluding that:

• The trial judge correctly exercised discretion in making factual findings and credibility assessments.

• The decision properly accounted for the child’s Indigenous heritage and the CFSA’s provisions regarding the placement of Native children.

• The fresh evidence submitted did not significantly alter the facts of the case or justify a different outcome.

• There was no error in the trial judge’s ruling on J.G.’s access rights.

The court declined to award costs but allowed parties to submit requests within 21 days if they wished to argue otherwise.

Conclusion

This case reaffirmed the principle that the best interests of the child take precedence in custody decisions. While the court recognized the importance of preserving the child’s cultural identity, it found that placement with the maternal grandmother was the most stable and beneficial option given the circumstances.

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Catholic Children’s Aid Society of Toronto v. O.P., 2020 ONSC 3011
Court: Ontario Superior Court of Justice
Date of Decision: May 20, 2020
Citation: 2020 ONSC 3011

Background

The case concerns an appeal by O.P., the mother, from a decision of Justice Carol Curtis, dated April 8, 2019, which granted summary judgment in favor of the Catholic Children’s Aid Society of Toronto (CCAST). The decision placed the children in extended society care for adoption planning, with access to the parents at the discretion of the Society. The mother appealed the decision, arguing that the motion judge erred in the legal test applied and in the evaluation of evidence.

Legal Framework

The case is governed by the Child, Youth and Family Services Act, 2017 (CYFSA), S.O. 2017, c. 14, which replaced the Child and Family Services Act (CFSA). Key provisions cited include:

• Section 74(2) – Defines when a child is in need of protection, including failure to provide necessary care, education, or medical treatment.

• Section 74(3) – Outlines factors the court must consider in determining a child's best interests, including the child’s views and risk of harm.

• Section 105(4) – States that an existing access order terminates when a child is placed in extended society care.

• Section 105(5)-(6) – Requires courts to determine whether continued access is in the child’s best interests and whether the parent-child relationship is beneficial and meaningful.

• Rule 16 of the Family Law Rules, O. Reg. 114/99 – Governs motions for summary judgment, requiring that a final order be made if there is no genuine issue requiring a trial.

Relevant case law applied:

• Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 – Established the legal framework for summary judgment in child protection cases, requiring a cautious approach.

• L.M. v. Children’s Aid Society of the Region of Peel, 2019 ONCA 841 – Clarified that courts must assess whether a child’s relationship with a parent is beneficial and meaningful before deciding access in extended society care cases.

• Hryniak v. Mauldin, 2014 SCC 7 – Established principles for summary judgment in civil cases, emphasizing access to justice and proportionality.

Key Issues and Decision

1. Did the motion judge apply the correct test for summary judgment?

   • The appeal court found that the motion judge erred in applying the Divisional Court's decision in Kawartha-Haliburton instead of the Court of Appeal’s revised test. However, since the record was sufficient, the appellate court applied the correct framework instead of remanding the case.

2. Should the order for extended society care be upheld?

   • The court affirmed that the children remained in need of protection under s. 74(2) CYFSA due to severe neglect before apprehension.

   • The parents had not sufficiently addressed the conditions that led to the children’s removal, including transience, lack of education, medical neglect, and minimal follow-through with required services.

   • The appeal was dismissed, and extended society care was upheld in the children’s best interests.

3. Was the access order properly determined?

   • The appellate court found that the parents' relationship with the children was beneficial and meaningful, but concerns existed about the potential for conflict with the kin caregiver.

   • The court upheld the order for access at the discretion of the Society, noting that supervised access was necessary to ensure stability for the children.

Conclusion

The appeal was dismissed, with the court affirming that summary judgment was properly granted based on the children’s best interests under the CYFSA. The legal framework established in Kawartha-Haliburton and L.M. was applied, confirming the children’s need for permanency and stability through extended society care.