Children’s Aid Society of the Region of Waterloo v. S.D., B.C., and A.S. (2021 ONSC 990)

Key Issues

1. Custody and Access of the Child (A.D.-C., born 2014):

   • Whether custody should be granted to the mother, father, or jointly.

2. Supervised or Unsupervised Access:

   • Whether parental access should be supervised or unrestricted.

3. Child Protection Concerns:

   • Whether the child remains in need of protection and, if so, under what terms.

Legal Framework

1. Child Custody and Access – Best Interests of the Child

• Child, Youth and Family Services Act (CYFSA), 2017, S.O. 2017, c. 14, s. 102

  • The court must consider whether a child is in need of protection and determine appropriate custody and access arrangements.

• Children’s Law Reform Act (CLRA), R.S.O. 1990, c. C.12, s. 24(2)

  • The primary consideration in custody and access cases is the best interests of the child, which includes:

    • The child’s physical, emotional, and psychological well-being.

    • The child’s relationships with each parent and extended family.

    • Any history of family violence or substance abuse.

    • The ability of each parent to provide stability and care.

• Case Law:

  • Gordon v. Goertz, [1996] 2 S.C.R. 27

    • Established that the best interests of the child must be assessed from a forward-looking perspective, considering stability and the child’s relationship with each parent.

  • Van de Perre v. Edwards, 2001 SCC 60

    • Reinforced that parental conduct is only relevant to custody if it affects the child’s well-being.

2. Child Protection – Exposure to Domestic Violence

• CYFSA, s. 74(2)(b)

  • A child is in need of protection if they have been harmed or are at risk of harm due to exposure to domestic violence.

• Children’s Aid Society of Ottawa v. P.Y., 2007 CanLII 14325 (ONSC)

  • Found that chronic exposure to parental conflict can cause long-term emotional harm to a child.

3. Substance Abuse and Parental Capacity

• CYFSA, s. 74(2)(c)

  • A child is in need of protection if a parent’s substance abuse prevents them from meeting the child’s needs.

• Catholic Children’s Aid Society of Toronto v. E.S., 2016 ONCJ 279

  • Ruled that a parent’s denial of substance abuse issues and failure to seek treatment supports a finding of child protection concerns.

4. Supervised Access – Risk of Harm

• CYFSA, s. 104(6)

  • The court may order supervised access if there is a risk that unsupervised access would endanger the child’s physical or emotional well-being.

• Jewish Family and Child Service of Greater Toronto v. Ki. Sl., 2017 ONCJ 447

  • Held that a parent’s lack of insight into their issues justifies supervised access to protect the child from potential harm.

Findings & Key Evidence

1. Mother’s Mental Health and Substance Abuse Issues:

   • Witness testimony described the mother as having extreme mood swings, depressive episodes, and a history of anxiety.

   • She was prescribed medication but did not take it consistently.

   • The court found that she misrepresented her mental health history in an assessment with a psychiatrist.

   • She had a history of alcohol abuse and impaired driving.

2. Domestic Violence and Parental Conflict:

   • S.D. alleged that B.C. was abusive, but the court found inconsistencies in her statements and determined that she was the primary aggressor.

   • The child was exposed to frequent parental conflict, including verbal and physical altercations.

3. Impact on the Child:

   • The child exhibited signs of distress, such as fear of overnight visits and toileting accidents.

   • She told CAS workers that she witnessed her mother screaming and hitting her father.

   • Both parents agreed to counseling for the child.

4. Mother’s Non-Compliance with Court Orders:

   • She violated orders prohibiting her from driving with the child while her license was suspended.

   • She failed to complete addiction treatment and parenting programs recommended by CAS.

   • She continued engaging in conflict with the father despite court orders to disengage.

Court Decision

• The court ruled that S.D. lacked credibility regarding her mental health, substance abuse, and allegations against the father.

• Sole custody of the child was awarded to B.C.

• S.D.’s access to the child was ordered to be supervised due to ongoing concerns about her emotional stability and substance use.

• The court emphasized that the child’s safety and well-being were the primary considerations in making its decision.

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The Children’s Aid Society of Ottawa v. C.R., 2019 ONSC 5411

Background Facts

The case concerns the child, H.B.R., born in 2018, and her mother, C.R. The Children’s Aid Society of Ottawa (the “Society”) brought a summary judgment motion seeking an order to place H.B.R. in extended society care, while the mother opposed this and sought the return of her child.

The Society became involved before H.B.R.'s birth due to concerns about the mother’s ability to care for a child, given her developmental and mental health challenges. Upon birth, the child was placed in foster care, where she remained throughout the proceedings. The mother had supervised access, but her challenges in parenting, including difficulties in self-care and independent living, were raised as concerns.

Legal Framework

Legislation Applied

The case was adjudicated under the Child, Youth and Family Services Act, 2017 (CYFSA), S.O. 2017, c. 14, Sched. 1, which governs child protection matters in Ontario.

• Section 74(2)(b)(i) and (ii) CYFSA – Defines a child in need of protection due to a risk of physical harm.

• Section 87(8) & (9) CYFSA – Prohibits the publication of identifying information about the child, the parents, or foster parents.

• Section 142(3) CYFSA – Specifies penalties for violating publication bans.

• Section 105(4)-(7) CYFSA – Governs access orders in cases where a child is placed in extended society care.

Case Law Considered

• Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 – Establishes the test for summary judgment, requiring courts to determine if a trial is necessary by weighing evidence, evaluating credibility, and drawing inferences.

• Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 – Emphasizes caution in granting summary judgment in child protection cases due to their impact on fundamental rights.

• Children’s Aid Society of Hamilton v. M.N., 2007 CanLII 13503 – Places the onus on the Society to prove that no genuine issue for trial exists in summary judgment motions.

• Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 – Requires parents to demonstrate an improvement in circumstances for the court to consider a return of the child.

• Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678 – Discusses how access orders may impact adoption opportunities.

Analysis

The court found that:

1. The mother had not demonstrated sufficient improvement in her parenting abilities despite support.

2. The child had significant medical needs, including heart defects, requiring consistent and attentive care.

3. The mother’s cognitive and emotional challenges prevented her from independently meeting the child’s needs.

4. The statutory timelines for permanency under the CYFSA necessitated a final determination in the child’s best interests.

Given this, the court concluded that no genuine issue required a trial, and it was in the child’s best interests to be placed in extended society care.

Access

The court recognized the mother’s bond with the child but determined that access should be left to the discretion of the Society to avoid interfering with potential adoption plans. The court emphasized that the mother’s history of instability and interactions with police raised concerns about her ability to support the child’s future placement.

Conclusion

The court granted the Society’s motion for summary judgment, placing the child in extended society care with discretion for access arrangements.