CITATION: Kawartha-Haliburton Children’s Aid Society v. A.K., 2016 ONSC 586

DIVISIONAL COURT FILE NO.: 516/15

DATE: 20160208

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Kawartha-Haliburton Childen’s Aid Society, Applicant /Appellant

AND:

A.K. and b.a., Respondents

COUNSEL: Belinda Jesudasan, for the Appellant

Christopher Spear, for the Respondent A.K.

Aaron Anderson, for the Respondent B.A.

BEFORE: Kruzick, Sanderson & Sproat JJ.

PUBLICATION RESTRICTION NOTICE

Pursuant to [s]ubsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. Accordingly initials are used and substituted for the real names in the decision.

COUNSEL: Belinda Jesudasan, for the Applicant/Appellant

Christopher Spear, for the Respondent A.K.

Aaron Anderson, for the Respondent B.A.

HEARD at Toronto: November 13, 2015

Kruzick J.

NATURE OF THE PROCEEDING

[1] This is an appeal by the Kawartha-Haliburton Children’s Aid Society (“appellant”/ “Society”) of a decision of Sutherland J. made on June 25, 2015. The Society sought summary judgment in a child protection proceeding where the respondents were A.K. and B.A. (“respondents”/“Ms. K.”/“Mr. A.”). The Society requested an order that the children be found in need of protection pursuant to s. 37(2)(b)(i) and (ii) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”).

[2] The motion was dismissed and a trial was directed.

[3] The Society seeks an order in this court that the order of the motions judge be set aside and that the children be found to be in need of protection and made Crown Wards for the purpose of adoption. The respondents opposed the relief requested by the Society.

[4] While the issues remains the same, we have no doubt that the case as presented in this court was argued differently. For the reasons set out below, we agree with the Society and order that summary judgment be granted, as sought.

[5] The Society commenced the application that is the subject of this proceeding in 2013 pursuant to Part III, s. 40 of the CFSA, which provides that a Society may apply to the court to determine whether a child is in need of protection. Once a Society commences an application under s. 40, the court is required by virtue of s. 47 of the Act to hold a hearing to determine the issue and make an order under s. 57 of the act relating to placement of the child. The legal principles and the stages applicable in a child protection application are thoroughly reviewed by Chappel J. in Catholic Children’s Aid Society of Hamilton v. M.A., 2012 ONSC 267, [2012] O.J. No. 223.

[6] Pursuant to s. 37(2) the court must determine if further intervention through a court is necessary to protect the child in the future and then make a determination regarding placement and access.

BACKGROUND:

[7] C.M.A. (“C.”), born […], 2013, and J.M.A. (“J.”), born […], 2014 are the biological children of the respondents.

[8] Ms. K. and Mr. A. were in a common-law relationship from 2011 to July 28, 2014. Ms. K. is in a new relationship. She is pregnant with a third child, due in June 2016. Mr. A.is not the biological father of her third child. Mr. A. now lives alone.

[9] Both respondents have developmental issues or cognitive difficulties. Mr. A. has also been diagnosed as schizophrenic for which he takes prescribed medication.

[10] The Society first became involved with the respondents in January 2013 when Ms. K. was pregnant with C. A social worker reported concerns with the respondents’ cognitive abilities and their ability to safely care for an infant.

[11] In April 2013, the Society informed the couple of its guardianship role and need to assess their capacity to care for a child. There were no satisfactory kinship options for C. (i.e.) extended family to care for her. Ms. K. refused to attend a “mothering” programme that was offered. Several home visits took place from this first meeting to C.’s birth which led the Society to conclude that she was in need of protection.

[12] The parties signed a Temporary Care Agreement (“TCA”) for C. The TCA was for three month period. C. was placed in the Society’s care upon discharge from the hospital with a plan that the parents would work on their parenting skills. When the three-month term came to an end, in September 2013, the Society was not satisfied with the respondents’ care plan and C. was apprehended.

[13] On September 19, 2013, Hatton J. made an order that C., on a temporary without prejudice basis, be place in the care of the Society. The order provided for a minimum of four hours of supervised access each week to the respondents. C. remains in the care and custody of the Society.

[14] In 2013, Ms. K. became pregnant with the second child, J.. A nurse practitioner alerted the Society to the pregnancy in February 2014. When J.was born on […], 2014, she was apprehended by the Society. The apprehension order was made by Scott J. on May 26, 2014 and the court ordered that she remain in the care and custody of the Society. Since then, J. remains in the Society’s care.

[15] In examining the record, there appears to be no formal findings that the children were in need of protection however the children came before the court on protection applications and remained in care on that basis. At November 13, 2015, the date of hearing, C. has been in the Society’s care for 881 days. J. has been in care for 542 days. They have never lived with the respondents.

[16] On April 24, 2014 (just before J.’s birth), Hatton J. made an order for a parenting capacity assessment (“assessment”), in part to identify “any community supports that could assist the family” pursuant to s. 54 of the CFSA.

[17] The assessment was conducted by the Kawartha Family Court Assessment Service over a period of time and is dated October 14, 2014. The assessment is based on two joint social work assessment sessions with both of the respondents on May 9 and June 5, 2014; a play observation session with Mr. A. on July 28, 2014 and a psychological component that Mr. A. completed. Ms. K. did not attend the play observation session, nor did she complete the psychological component of the assessment.

[18] The respondents ended their common-law relationship on July 28, 2014, the day of the play observation session which Mr. A. attended alone.

[19] On June 25, 2015, pursuant to Rule 16 of the Family Law Rules, R.R.O. 1990, O. Reg. 114/99 (“FLR”), the Society sought summary judgment for Crown Wardship. The respondents opposed the motion.

[20] Mr. A. put forward a plan for the care of the children where they will live with him and a friend, Mr. D.M., who will assist him with parenting. Mr. M. filed an affidavit in March 2015 in support of Mr. A.’s plan, but has not put himself forward to the Society and the Society has not conducted an independent assessment of Mr. M. or the proposed parenting plan.

The Assessment Report

[21] The assessment report merits some further review. As set in the report (at page 1) it was court ordered to assess the capabilities of the respondents to provide adequate, safe and stable care of the two children. This was a s. 54 CFSA assessment. Section 54(1) reads:

54. (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

55. The child.

56. A parent of the child.

57. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child.

[22] The 23 page Report, which forms part of the court record, is detailed, thorough and focuses on the best interests of the children. While child focused, the children were not assessed psychologically due to their young ages. The Report does, however, assess the needs of the children given their respective ages and addresses the children’s relationship and emotional ties to the respondents. Based on the access history of the respondents and their interaction with the children during the visits they attended, the assessors conclude neither child has formed any attachment to the respondents. At page 21, the report reads:

c) The nature of the child's attachment to a proposed participant in the child's plan of care and the possible effects on the child of continuing or severing that relationship.

[C.] is only 15 months old and has never been in [B.A.] or [A.K.]'s care on a sufficiently consistent basis or for significant long periods of time for any attachment to even begin to develop. There would be no adverse implications for [C.] if her relationship with [B.A.] and [A.K.] would be severed.

[J.], at 4 months of age, has not developed or even begun to develop any attachment to her parents, [B.A.] and [A.K.]. There would be no adverse implications for [J.]'s development if relationship with [B.A.] or [A.K.] were to be severed.

A Continuation of the highly inconsistent access, as well as both [C.] and [J.]'s exposure to poor parenting when and if visits occur, would have adverse implications for the children.

[23] The assessment report expresses concerns with: (1) Ms. K.’s inconsistent compliance with the assessment process, (2) Mr. A.’s mental health issues, (3) the level of conflict between the respondents’ in their own relationship (now ended), (4) the lack of and minimal contact between the children and the respondents and, (4) Mr. A.’s inability to care for himself.

[24] One of the factors listed in s. 37(3) is the importance for the child’s development of a positive relationship with a parent. The assessment found (at p. 20) that Mr. A. does not have the parenting capability to provide adequate care for any child or children so that there appears to be no prospect of a positive relationship. As for Ms. K., she presented with significant intellectual limitations and did not demonstrate the willingness and determination that would be demanded of her so that there could be a positive relationship with the children.

[25] In the observation of Mr. A. with the children the Report, at page 8, states that “the assessors were so concerned about [Mr. A.’s] care (or lack of care) of the children that three assessors were used in the observation session; one to keep notes, one to visual observe and the other to intervene as necessary. The primary assessor was so concerned in this session that she contacted the Society and expressed that Mr. A.’s access with the children should be “directly supervised”.

[26] In the end, the assessment recommended that C. and J. “be made Crown Wards with no access” by the respondents. Furthermore, the assessment recommends the children be made available for adoption.

Positions Regarding Genuine Issue for Trial

[27] The respondents ask that Sutherland J.’s decision be upheld on the basis that there are genuine issues that cannot be addressed through a motion for summary judgment.

[28] The respondents maintain they were not advised of their legal rights or given the opportunity to consult with legal counsel when they enter the TCA. Mr. A. maintains he did not sign the TCA voluntarily, nor did he appreciate the contents of the agreement.

[29] Ms. K. argues that even if this court finds that the motions judge was incorrect, there are other genuine issues such as violations of various statutes and the need to respect the rights of persons with disabilities.

[30] Mr. A. argues the assessment that the Society relies upon did not properly consider the needs of the respondents as persons with disabilities and failed to address community support for the respondents.

[31] The Society submits that the issues addressed by the respondents ignore the central issue being the best interests of the children which are clear and do not give rise to any genuine issues requiring a trial.

COURT’S JURISDICTION:

[32] The parties do not disagree with this court’s jurisdiction to hear this matter. The Family Court branch of the Superior Court has jurisdiction to hear motions brought under s. 37(2)(g) of the CFSA. Section 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 mandates that appeals of certain decisions of the Family Court lie to the Divisional Court.

Standard of Review

[33] While there was some contention in the facta with respect to the standard of review, in the end and at the hearing, the parties appear to agree, that given the issues, the standard of review for summary judgment orders is correctness. In support of this proposition, the Society cites C.J. v. K.E., [2013] O.J. No. 7, at para. 18. If a palpable and overriding error is found, this court can make an order for Crown Wardship under s. 57 of the CFSA. See: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. S.G., [2011] O.J. No. 3363, at para. 21; Children’s Aid Society of Niagara Region v. J.C., (2007) 2007 8919 (ON SCDC), 36 R.F.L. (6th) 40 (Ont. Div. Ct.). See also: Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 and this court’s decision in SN-D v. Children’s Aid Society of Ottawa, [2012] O.J. No. 1418 (Div. Ct.).

ISSUES

[34] The issues before this court are as follows:

1. Did the motions judge err in determining that there are genuine issues for trial?

2. Did the motions judge err in determining that the fact-finding powers under Rule 16 of the FLR were insufficient to address the genuine issues without trial?

Analysis

Overview

[35] In our opinion, the evidence on the summary judgment motion demonstrates that the respondents are not capable of providing and caring for their two biological infant children. We agree, as argued by the Society, that the motions judge erred by not granting judgment as sought given the fact-finding powers of Rule 16 of FLR.

[36] The Society sought a finding pursuant to s. 37(2)(b)(i) and (ii) of the CFSA, which provides:

(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(1) Did the motions judge err in determining that there are genuine issues for trial?

[37] The motions judge concluded there were three genuine issues that required a trial. In paragraph [63] of the reasons, the motions judge set out the following:

(a) The circumstances under which the TCA was signed and the effect of that agreement on the proceeding.

(b) The assessment did not respect the specific request of Hatton J. that it consider any community supports available to the respondents.

(c) The developmental intellectual issues of the respondents and, whether help can be provided to "give support to the autonomy and integrity of the family unit.” (s. 1(2) of the CFSA).

[38] We turn to a review of each of these issues.

(a) Circumstances of the TCA

[39] The Society acknowledges that the respondents did not have independent legal advice when the agreement was signed. This was an oversight and, perhaps, a violation of the respondents’ rights. The Society, however, takes the position that had the agreement not been entered into, the child would have been apprehended by the Society. Clearly, the TCA that the parties entered into has now expired. The Society argues, and we agree, that given the passage of time and the present circumstance, the concerns about the signing of the TCA are now moot. In any case, the TCA when entered into by the parties, applied to only to the first child. Since then, the second child was born. The Society apprehended the second child without the need of a TCA.

[40] What is significant is that the respondents did not challenge the TCA after it was signed by them and only raise it as an issue in the context of the summary judgment motion. While we acknowledge the motions judge’s concerns surrounding the circumstances of the TCA, we are of the view the TCA has no bearing on the central issue on the summary judgment motion, being what is in the best interests of the children.

(b) Community Supports Were Not Covered in the Assessment

[41] We agree with the motions judge that part of the assessment, as ordered was to investigate community support for the respondents. We are of the view that while the assessment did not numerically, or specifically, direct the respondents to community resources, the report did address the issue of community supports. More importantly, and as the Society argues, the assessor concluded that the respondents “cannot parent, even with supports”. We therefore agree that, even with support, the respondents were not able to parent. It is also important to note that Ms. K. did not participate in the assessment nor pursue the community support that had been offered to her before the birth of the first child.

[42] Sadly, and as the Society submits, the respondents do not recognize their own limitations or need for parenting help and the supports that are, or could be available to them. When supports are offered or suggested, the respondents do not follow up with them.

(c) Developmental Issues of the Respondents Were Not Addressed in the Assessment

[43] In the assessment report the developmental issues of the parties were thoroughly reviewed in Section 2.0 (pp.9-20).

[44] As the Society argues, we find that the assessor did address the respondents’ developmental issues at length, even in light of Ms. K.’s non-participation in that part of the process. Both Ms. K. and Mr. A. have significant developmental and intellectual issues. These are thoroughly addressed and reviewed in pages 9 to 20 of the assessment. The Society highlights the respondents’ lack of perception concerning their parenting capacities and their limitations. The Society was not able to help the respondents because they were not receptive to what was offered. The Society concludes that given Mr. A.’s limitations, and his own acknowledgment that he is unable to provide care for the children on his own, the plan that he puts forward to support him in parenting the children is simply not realistic. We concluded that a trial on the community support issue would serve no useful purpose.

[45] The paramount purpose of the CFSA, as set out in s. 1(1) is to promote the best interest, protection and well-being of the children. The issues raised by the respondents, which were the focus of the motions judge, derailed him from addressing the central issues: the best interests of C. and J. and the respondents’ ability or inability to parent them.

[46] While the motions judge was aware of the best interest principle, the evidence of the Society, as summarized in paragraphs [6] to [14] of his reasons demonstrates that the respondents do not have the necessary level of parenting skills to care for two infant children so as to meet the test. As argued by the Society, the motions judge does not appear to take issue with the evidence put forward by the Society on the motion. He simply fails to address that evidence.

[47] In that regard, we are of the view that the motions judge erred where he failed to consider the circumstances of this case. Ms. K. has not seen or had contact with the children since July 2014. The quality of Mr. A.’s access also must be examined.

[48] In the access exercised by Mr. A., he has never been alone with the children. The access has always been supervised. The motions judge did not reference evidence of the lack of attachment of the children or the quality of access visits. It is not denied that during an access visit in March 2014, when Mr. A. was directed to safely secure the younger child to the change table, Mr. A. lost self-control. In the presence of the child, he swore, kicked a door and yelled at the staff. Given the respondents’ access history and out of concern for the children, Ingram J., on September 8, 2014 ordered restricted access to the parents which was to be at the discretion of the Society. More than a year has passed since access was restricted, and, neither Mr. A. nor Ms. K. has brought a motion to change or increase access.

[49] We conclude that the evidence with respect to the respondents’ developmental issues and personal limitations, as presented on the summary judgment motion, amply supports a finding that the children should be made wards of the Crown and requires no further review.

(2) Did Sutherland J. err in determining that the fact-finding powers under Rule 16 of the FLR were insufficient to address the genuine issues without trial?

[50] Rule 16 (1) provides for a party to bring a motion for summary judgment for a final order without a trial. Pursuant to Rule 16 (2), with the exception of divorce, summary judgment is available on any case, including a child protection case. Under Rule 16, the court has fact finding power on the affidavit evidence. On the summary judgment motion, the Society’s position on placement is that the children should be made Crown Wards. The respondents have filed affidavit evidence setting out their positions and assert there is a genuine issue for trial. Mr. A. asks that the children be placed with him.

Placement

[51] The starting point for determining placement is s. 1(1) of the CFSA, which stipulates that the primary purpose of the Act is “to promote the best interests, protection and well-being of the children.” The court is required to advance this purpose taking into account the other purposes of the Act as set out in s. 1(2).

[52] The purposes set out in s. 1(2) indicate that in carrying out its duties under the CFSA, the court is required to analyze the best interests of the children with an eye to the importance of supporting the family, maintaining the family intact if possible and accessing community supports if appropriate to promote the best interests of the children and the integrity of the family unit. The principles set out in s. 1(2) are not aimed at the rights of the parents, but rather founded on advancing the best interests of the child.

Best Interests

[53] The best interest test as set out in s. 37(3) of the CFSA requires the court to take into consideration the circumstances of the case that are relevant to promoting what is best for the children. It reads:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The child’s cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child’s views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[54] In carrying out our best interests analysis, we considered those factors. Where the evidence sets out specific facts showing that in the best interests of the children that there is no genuine issue for trial, given a finding that the children are in need of protection, the court has the power to make a Crown wardship order.

[55] In our view of the applicable factors there was ample and compelling evidence on the summary judgment motion for a finding that the respondents lacked parenting skills, even with support, so that they would be unable to address the physical, mental and emotional needs of the children.

[56] Ms. K. does not put forward a plan and fails to address providing for the physical, mental and emotional needs of the children. With respect to Mr. A., the evidence before the court is that there is risk that the children will suffer harm if returned to or allowed to remain in his care. The degree of risk, according to the Society, justifies the finding that the children are in need of protection because he is not able to meet the physical, mental and emotional needs of the children.

[57] As set out in the material before this court, these concerns and risks include and can be summarized as follows:

(a) Mr. A.’s mental health and anger issues;

(b) the respondents’ personal struggle with their own personal care;

(c) the respondents’ failure to cooperate with the request of the Society to ensure that the best interest of the children are met;

(d) the respondents’ lack of commitment to the children by failing to attend visits or where their own needs take precedence over the needs of the children;

(e) the respondents’ demonstrated lack of ability to care for the children when they visit with them;

(f) the acknowledged cognitive difficulties of the respondents; and

(g) the respondents’ inability to understand why the Society has concerns for the children.

Relationship and Emotional Ties

[58] Pursuant to s. 37(3) of the CFSA, the best interests test sets out taking into consideration the relationship and emotional ties to a parent, siblings and other members of the extended family. The respondents’ commitment to access as provided in the access order of Hatton J. has been less than dedicated.

[59] Ms. K.’s last access visit with the children was on July 25, 2014. From C.’s birth up to the July visit, Ms. K. missed at least 13 of the arranged weekly visits. Mr. A. missed seven access visits during this same period.

[60] From July 29 to December 5, 2014, Mr. A. did not attend any of the access visits.

[61] On September 8, 2014, Ingram J. limited access and ordered that access visits should take place at the discretion of the Society.

[62] According to Ms. K., she missed visits because the access provision ordered by Hatton J. imposed unreasonable restrictions and that some absences were due to sickness during her pregnancy with J.

[63] Mr. A. explains his missed visits between July 29 and December 5, 2014 due to a move and a subsequent bout of sickness. In looking at the access opportunities that were available to the respondents and then their time with the children there is no evidence that a relationship and/or emotional ties exist with the respondents or their extended family members. It is the siblings who have a relationship with one another because they are and have been in the same foster family all of their young lives.

Plan of Care

[64] In the determination of best interests of the children, the merits of a plan for the care of the children should be taken into consideration. Given their positions seeking that the children be placed in their care, the respondents were asked to put forward a plan of care for the children. It appears that Ms. K. did put forward a plan, but then, according to the endorsement of Hatton J., dated April 24, 2014, that plan of care as put forward by Ms. K. was withdrawn.

[65] In March 2015, Mr. A. put forward his own plan of care. It is clear from the evidence and admitted by Mr. A. that he himself cannot care for the children. The main component of his plan, given this impediment, is to enlist the aid of a friend, D.M. (“Mr. M.”). The Society has concerns with this proposal in that it appears to be neither realistic nor reliable.

[66] One of the Society’s main concerns with Mr. A.’s plan is that Mr. M. lacks parenting experience and, more specifically has never met the children. Mr. M. is 53 years old, lives in Peterborough and knows Mr. A. since 2011. He is a bookkeeper by profession and is now in receipt of an income from Ontario Works due to his arthritis and severe injuries from a motor vehicle accident.

[67] With respect to Mr. M.’s childcare experience, he has no children of his own but sets out that he has experience looking after his sibling (a sister 3 ½ years younger) when he was a child. Mr. M. also relies on his contacts with children when he volunteers at the Ontario Science Centre. While Mr. M. may be a person of good character, he has no kinship ties to the children, has never met them and there is no evidence or assurance that this arrangement is one that is realistic or of any permanence so that it satisfies the test that is in the best interest of the children.

[68] As expressed, Ms. K. has not submitted a recent and updated plan of care for the children. The only plan put forward by her is dated October 15, 2013, before J. was born and before her relationship with Mr. A. ended. In the Assessment Report (p. 9) while the assessment of her was limited, because of her failure to be there, the concerns were with “her ability to follow through at any level with consistent demands of caring for one and then two children.” In the end, there is no proposal, or possibility that the children could be returned to Ms. K.

[69] The only remaining plan put forward is by Mr. A. Following the observation of Mr. A. with the children, the Assessment Report (p. 9) concludes and finds very significant and serious risks with Mr. A.’s plan of care. The assessment concludes that Mr. A. during the play observation session demonstrated his incapacity to parent and to manage the demands and the needs of the two infants; Mr. A. was simply unable to do so and the play session had to be ended due to safety concerns. A detailed account of the play session is in the psychological portion of the Report.

[70] We therefore conclude the plan of Mr. A. is not realistic and does not meet the best interests of the children.

[71] These are important factors established by the evidence which lead us to conclude that given their own circumstances, the respondents cannot provide for the physical, mental and emotional needs of these children.

[72] In our view, the evidence as put forward by the respondents in this case, directs us to conclude that a trial would not best serve the interests of the children. In assessing the evidence (which to a large degree is not in dispute) and specifically bearing in mind the ages of the children; the strong assessment report which assessed the parties and the children; the quality of the relationship of the parties to the children; the non-existing emotional ties of the children to the respondents; and the failure of the respondents to put forward a realistic plan of care, we are of the view that in the best interests of the children they should be made wards of the Crown.

Children Under the age of 6 years

[73] The children in this case are both under the age of 6 years. Section 70 of the CFSA sets out strict time limits for children less than 6 years of age. This section imposes a 24 month maximum on the duration of a society wardship order; including the time spend in temporary care or under a temporary order.

[74] Given the ages of these children and their time in care, in considering their best interests, time is of the essence.

Access

[75] Turning to the issue of access, given that we have determined that this is a case for a Crown Wardship order, the onus is on the respondents to adduce evidence that their relationship with the children is beneficial and meaningful for the child. The evidence of the Society has been to the contrary. As set out above, the respondents have missed many visits and have not seen the children for long periods of time. Ms. K. has not seen the children since last summer. Based on the evidence, we are of the view that the respondents have no chance of success on the access issue, and therefore, we are of the view that there should be no order for access.

Conclusion

[76] The power to grant summary judgment is pursuant to the FLR. As set out in rule 16(6) if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [Emphasis Added]. As expressed by the motions judge, Crown Wardship cases are particularly difficult and courts must be extremely careful to exercise care and caution. In this case, Hatton J. made a finding pursuant to s. 37(2) of the CFSA that the children were in need of protection and made them Society wards under s. 57. On the summary judgment motion, the Society sought a disposition for Crown Wardship. Where it is apparent there is no genuine issue for trial, the court is mandated and has the power to make the order as sought. In our review of the evidence before the court, this is one of those cases where the disposition as sought should be made.

[77] Pursuant to rule 16(8) there is a duty to promote the primary objective of the rules:

If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

[78] In Catholic Children’s Aid Society of Hamilton v. T.B., 2013 ONSC 6300, [2013] O.J. No. 4592, a clear and comprehensive summary of the principles which guide this court are set out. We specifically refer to paragraphs [38] to [41] as follows:

38 In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine whether -- in that evidence -- there are specific facts to support a triable issue in any of the determinations required to be made by the court. (Children's Aid Society of Waterloo (Regional Municipality) v. S. (R.), 2000 22902 (ON CJ), [2000] O.J. No. 4880 (Ont. C.J.) (page 8)). The court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. (Children's Aid Society of Waterloo (Regional Municipality) v. S. (T.), 1999 14252, (1999), [1999] O.J. No. 5561, 1999 CarswellOnt 4859 (Ont. C.J.)).

39 The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence; this is reserved for the trier of fact: (Children's Aid Society of Nipissing (District) v. M. (M.) 2000 22922, [2000] O.J. No. 2541, 2000 CarswellOnt 2372 (Ont. S.C.J.)). However, the court can and should examine the evidence to decide whether it meets the threshold test of reliability: (Children's Aid Society of Toronto v. D. (C.), [2004] O.J. No. 2461 (Ont. C.J.)).

40 In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration which might be available for trial. The court must rely on -- and evaluate -- the sufficiency of the evidence as disclosed by the affidavits. (Children's Aid Society of Toronto v. H. (C.), 2004 ONCJ 224, [2004] O.J. No. 4084, 2004 CarswellOnt 4076 (Ont. C.J.)).

41 The court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the applicant to show that there is no genuine issue for trial (Children's Aid Society of Hamilton v. N. (M.), 2007 13503 (ON SC), [2007] O.J. No. 1526 (Ont. S.C.J)).

[79] In determining whether there is a triable issue, the court must not speculate as to the possible evidence, but rather rely on the evidence in the record. The test for summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. We are satisfied that, with respect to the disposition sought there is no genuine issue for a trial.

[80] Based on all the material before this court, we conclude that based on the finding that the children are in need of protection summary judgment making them Crown Wards should be made.

Disposition

[81] The record before this court is the same record that was before the motions judge. This court therefore has the jurisdiction to not only hear this appeal as discussed, but also to make the order sought. The order of the motions judge is set aside and the children, found to be in need of protection, are made Crown Wards for the purpose of adoption.

[82] Given agreement of counsel there will be order as to costs.

E. Kruzick J.

Sanderson J.

Sproat J.

Date: February 8, 2016