Family and Children’s Services of Frontenac, Lennox and Addington v. P.R. and W.R., 2018 ONSC 1144

Nature of the Case

The applicant, Family and Children’s Services, filed a motion for summary judgment in a status review application. The motion sought to:

1. Declare that B. remains a child in need of protection.

2. Place B. in the custody of kin caregivers, A.M. and M.M.

3. Grant A.M. and M.M. full discretion over the parents' access to B.

4. Require any custody or access changes to be served on the Society.

Legal Framework

• Section 37(2)(g) of the Child and Family Services Act

• Sections 65(1) and 57.1 of the Child and Family Services Act

• Sections 58 and 59(1.1) of the Child and Family Services Act

Background and Evidence

• B. was placed with kin caregivers in January 2016 due to parental concerns.

• The mother, P.R., has a long history of involvement with child protection services, dating back to 2006.

• Key concerns include domestic violence, drug use, and instability.

• The father, W.R., has been in and out of jail, violating probation orders related to his contact with P.R.

• Both parents failed to consistently attend access visits. P.R. also refused drug screenings, with past positive results for opioids, methamphetamines, and fentanyl.

• B. has been in stable kinship care for over two years, with no concerns about his well-being.

Court’s Analysis and Decision

• The court determined that there was no genuine issue requiring a trial.

• Given the parents’ lack of a viable care plan, continued instability, and the child’s need for permanence, the court granted the motion for summary judgment.

• B. was placed in the custody of A.M. and M.M., with access to the parents at the caregivers' discretion.

• The decision prioritized B.’s best interests, stability, and well-being.

Final Order

1. B. remains a child in need of protection.

2. Custody is granted to A.M. and M.M.

3. Parental access is at the discretion of the custodial caregivers.

4. Any modifications to custody or access require notice to the Society.

Conclusion: The court prioritized the child's stability and safety, granting permanent kinship custody and denying further parental claims due to ongoing concerns.

​

Simcoe Muskoka Child, Youth and Family Services v. A.M.B. and N.M, 2020 ONSC 795

Facts of the Case

• The case concerns the status review and placement of three minor children, Li., D., and Lu., aged 8, 6, and 3.

• The children had been in the care of Simcoe Muskoka Child, Youth and Family Services since February 2019, following a previous finding that they were in need of protection under s. 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act, 2017 (CYFSA).

• The Applicant Society sought an order for extended care of the children without parental access, arguing that the parents had failed to demonstrate adequate improvement in their ability to meet the children's needs.

Procedural History

• The proceedings originated as a status review request, which was later amended by the Society to seek an order for extended care without access.

• A prior ruling in 2018 had found the children in need of protection under the former Child and Family Services Act (CFSA), now replaced by the CYFSA.

• The matter proceeded as a motion for summary judgment under Rule 16 of the Family Law Rules (O. Reg. 114/99), seeking to dispense with a full trial.

Legal Framework

Statutory Provisions Cited

1. Child, Youth and Family Services Act, 2017 (CYFSA)

   • s. 74(2)(b)(i) & (ii): Defines a child in need of protection where there is a likelihood of suffering physical harm due to parental failure to provide adequate care or a pattern of neglect​.

   • s. 74(3): Sets out factors to determine a child's best interests, including physical, emotional, and cultural considerations​.

   • s. 79(1): Addresses notice and participation rights for Indigenous bands and communities​.

   • s. 90: Governs statutory findings that must be made in child protection matters​.

   • s. 100: Requires a Plan of Care to be filed in child protection proceedings​.

   • s. 101(1): Governs orders for extended care placement​.

   • s. 105(5) & (6): New access provisions for children in extended care, applying a "best interests" standard instead of the previous "meaningful and beneficial" test​.

2. Family Law Rules (O. Reg. 114/99)

   • Rule 16: Outlines summary judgment procedures, allowing courts to grant final orders without a full trial if there is "no genuine issue requiring a trial"​.

Key Case Law Cited

1. Hyrniak v. Maudlin, [2014] 1 S.C.R. 87

   • Established the modern test for summary judgment, emphasizing access to justice and efficiency while ensuring fairness​.

2. Children’s Aid Society of Ottawa v. C.(S.), 2003 CarswellOnt 9373 (S.C.J.)

   • Emphasized the importance of statutory timelines in child protection cases, stating that delays should not be used to "buy time" for parental improvement​.

3. C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357

   • Discussed the serious consequences of extended care orders, sometimes referred to as the "capital punishment" of child protection cases​.

4. Children’s Aid Society of Toronto v. R.C., 2016 ONCJ 335 at para. 90

   • Addressed the high evidentiary threshold required for summary judgment in child protection matters​.

5. Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316

   • Discussed the requirement to consider a child’s Indigenous heritage and the importance of Indigenous community involvement in child protection decisions​.

6. Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415

   • Clarified that there is no longer a presumption against parental access in extended care cases under the CYFSA​.

Court’s Analysis and Decision

• Summary Judgment on Extended Care:

  • The court found that the Society had met its burden under Rule 16, demonstrating that there was "no genuine issue requiring a trial" regarding the need for extended care​.

  • The court accepted that the parents had not shown sufficient improvement in their parenting abilities and that the best interests of the children required permanency through extended care​.

• Access to the Parents:

  • Unlike the extended care decision, the court found that there was a genuine issue requiring a trial regarding parental access​.

  • The CYFSA's revised access provisions (s. 105(5) and (6)) require a "best interests" analysis rather than the previous presumption against access​.

  • Given the parents’ continued involvement with the children, the court determined that access should be reviewed at a focused trial​.

• Final Order:

  • The court ordered extended care of the children with the Society​.

  • A focused trial on parental access was scheduled for 2021​.

  • Until the trial, status quo access (as determined by the Society) would continue​.

Conclusion

This case highlights the evolving legal landscape in Ontario child protection law, particularly the shift in access determinations under the CYFSA. The ruling reflects the court’s caution in granting summary judgment in extended care cases while recognizing the importance of parental access in determining a child's best interests.