WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: 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.

45.— (9) Idem: order re adult.

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.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.

Court Information

Court File No.: Toronto C48509/09

Date: 2012-03-30

Ontario Court of Justice

Between:

Children's Aid Society of Toronto, Applicant

— AND —

B.S. and J.P., Respondents

Before: Justice Marvin Zuker

Heard on: March 12, 2012

Reasons for Decision on Summary Judgment Motion released on: March 30, 2012

Counsel

Nancy Thompson ........................................................................................ for the applicant society

Edward A. Rice ....................................................................................... for the respondent mother

B. Keyshawn Hyacinth .................................................................. for the respondent father of C.S.

Herbert Stover .............................................................................. for the paternal grandmother, S.P.

ZUKER J.:

[1] Introduction

This is a motion for summary judgment wherein the Society is seeking an order pursuant to Section 57.1 of the Child and Family Services Act that the child, C.S., born in 2009, be made a ward of the Crown and placed in the care and custody of the Children's Aid Society of Toronto. This is an amended early status review application dated October 8, 2010. Mr. J.P. has not filed a reply. Ms. B.S. has filed a reply in the form of a summary judgment motion brief.

[2] Society's Position

The Society submits that there is no genuine issue requiring a trial with respect to the dispositional order it is seeking.

[3] Legal Framework

Rule 16(6) of the Family Law Rules is mandated to make a final order on summary judgment where there is no genuine issue requiring a trial. With respect to the Child and Family Services Act, Section 57(1) states that where a court finds that the children or a child is in need of protection and is satisfied that intervention through court order is necessary to protect the children, the court shall make one of the orders set out therein or an order under 57.1 in the child's best interests. Section 57(3) requires the court to consider alternatives that are the least disruptive if the child must be removed from the parents' care. Section 37(3) deals with the child's best interests, as this is a status review application.

[4] Access and Burden of Proof

If the court finds there is no genuine issue for trial, and makes the order sought, the respondent mother bears the burden pursuant to Section 59(2.1) to satisfy the court that an access order should be provided.

[5] Background: Child C.S.

C.S. was apprehended at birth and came into care. She was born in 2009. She has been in the Society's care since that time. On April 15, 2010, she was found to be in need of protection pursuant to Section 37(2)(b)(1). The order was made on consent.

[6] Mother's History with Society

C.S. has never been in her mother's care. Ms. B.S. has five children. She is expecting a sixth. None of the children are in her care. The Society has worked with the mother since 1998.

[7] First Child - K.S.2 (1998)

On in 1998, the Society received a referral from Branson Hospital with respect to the care that Ms. B.S. was providing her newborn baby, K.S.2. The concerns noted by the Society included Ms. B.S.'s lack of co-operation with the Public Health Nurse, mother's apparently low intellect and her inability to parent effectively without appropriate resources in place.

[8] K.S.2 Placement

K.S.2 remained in the Society's care until February 28, 2000, at which time she was placed in the care of her paternal grandmother pursuant to an order of supervision. On September 12, 2000, the supervision order was terminated, as F.P., paternal grandmother, and K.P.2, paternal aunt, were awarded custody of K.S.2.

[9] Early Intervention Services

On June 29, 1999, the Society was advised that services at Surrey Place Centre for Ms. B.S. would be terminated because Ms. B.S. was not able to engage or benefit from the sessions. Ms. B.S. and Mr. J.P. completed a parenting assessment at Thistletown Regional Centre ("Thistletown"). The recommendation from Thistletown was that the parents could not provide a safe long-term placement for K.S.2.

[10] Second Child - A.S.2 (2003)

The Society re-opened its file on December 31, 2003. Ms. B.S. had given birth to her second child, A.S.2.

[11] Assault Allegation (2009)

On April 6, 2009, a report was received from A.S.2's daycare. A.S.2 had disclosed that Ms. B.S.'s boyfriend, Mr. J.P., had hit him on the head, leaving a red and blue mark on his forehead.

[12] Domestic Incident

On May 6, 2009, there was a domestic incident at Ms. B.S.'s home between Ms. B.S. and Mr. J.P.

[13] Mr. J.P.'s Criminal Conviction

Mr. J.P. was charged with assault and was incarcerated at Maplehurst Correctional Institute. He remained in custody until on or after July 14, 2009. He was subsequently convicted and sentenced to house arrest and eighteen months of probation.

[14] Temporary Supervision Order (July 2009)

On July 31, 2009, the court made a temporary without prejudice order placing the children, A.S.2 and A.S.1, in the care and custody of their mother, B.S., subject to the supervision of the Society with terms and conditions, one of which prohibited Ms. B.S. from allowing Mr. J.P. to attend her home or have contact with her children.

[15] Breach and Apprehension (August 2009)

On August 4, 2009, Mr. J.P. was in the home as was A.S.2. A.S.2 was apprehended from the home and A.S.1 was subsequently apprehended from her daycare.

[16] Kinship Placement

A.S.2 and A.S.1 went to the kin home of Mr. and Mrs. K.S.1 on an extended access visit on March 15, 2010.

[17] Protection Order (April 2010)

On April 15, 2010, the Honourable Justice Brownstone found that A.S.2 and A.S.1 were children in need of protection pursuant to section 37(2)(b) of the Child and Family Services Act and ordered they both be placed in the care and custody of K.S.1 and J.S., subject to terms and conditions of Society supervision.

[18] A.S.2 Returns to Care

A.S.2 was subsequently brought back into Society care and placed in his former foster home, where his sister C.S. was also residing.

Therapeutic Access Program

[19] TAP Participation

Between November 2009 and May 2010, Ms. B.S. participated in the Society's Therapeutic Access Program ("TAP"). In November 2009, after C.S.'s birth, Ms. B.S. and the children commenced the TAP. Access visits were initially twice per week for four hours per visit. Visits were reduced to two hours. Ms. B.S. was also provided with time, alone with C.S.

[20] TAP Assessment Results

Ms. B.S.'s involvement with the TAP ended in May 2010. At the completion of the TAP program, the staff assessed that Ms. B.S. appeared to be unable to meet the children's needs on a consistent basis. I find that this is not a triable issue.

[21] Intellectual Disability

As a child, Ms. B.S. had been diagnosed with a mild intellectual disability. The Society submits in part that this disability has affected and continues to affect her ability to learn and to implement effective parenting techniques with her children.

Mr. J.P.

[22] Ongoing Relationship

Ms. B.S. continues to maintain a relationship with Mr. J.P., who, as indicated, was convicted of assaulting her and who physically assaulted A.S.2 in 2009.

[23] Inability to Protect Children

The Society submits that Ms. B.S. continues to demonstrate she is either unwilling and/or unable to make decisions that would protect her children from Mr. J.P. She became pregnant with Mr. J.P.'s child, Z.S.

[24] Mr. J.P.'s Lack of Progress

Mr. J.P. has not addressed his anger and violence despite clear recommendations from the Society to do so since 2009. Mr. J.P. has been aggressive and threatening towards workers on numerous occasions since 2009. This is what the Society submits.

[25] Suspension of Access

Mr. J.P.'s access visits with C.S. and Z.S. were suspended on June 20, 2011, pending his completion of an anger-management and/or parenting program.

[26] Paternal Cousin's Plan

On February 7, 2011, Mr. J.P. advised that his cousin, K.P.1, was interested in presenting a plan to care for C.S.

[27] Paternal Grandmother Access

On April 18, 2011, Justice Brownstone ordered access visits between Ms. S.P. and C.S. twice per week at the Society's office.

Summary of Children's Status

[28] Mother's Five Children

To summarize, Ms. B.S. is the mother of five children and soon the mother of six.

[29] K.S.2 - First Child

K.S.2, born in 1998, lives with her paternal grandparents in Angus, Ontario.

[30] A.S.2 - Second Child

A.S.2, born in 2003, was made a Crown ward. He was adopted by his foster parents, T.H. and H.H. A.S.2 is in the process of being returned to the Children's Aid Society.

[31] A.S.1 - Third Child

A.S.1 was born in 2006. She is in the custody of mother's brother K.S.1 and his wife J.S., who live in Keswick, Ontario.

[32] C.S. - Fourth Child

C.S. was born in 2009. C.S. has lived with T.H. and H.H. since her birth. They had wished to adopt her.

[33] Z.S. - Fifth Child

Z.S. was born in 2010. She went to live with mother's brother and sister-in-law, K.S.1 and J.S. Z.S. has come back into care.

Mother's Evidence

[34] Affidavit - Separation from Mr. J.P.

Ms. B.S. deposes that:

"For the majority of 2010, I was not partnered with Mr. J.P. and I was working on my own and attempting to get my children back. Unfortunately, hearts and hormones got in the way [court's emphasis] and Ms. Ugwu stopped assisting me when Mr. J.P. came back on the scene.

"After Z.S. was born in 2010, Mr. J.P. re-emerged on the scene. He again professed his love and affection for me. He convinced me that he had dealt with his criminal problems and his anger control problems and asked if I would partner with him in raising our children.

"…I have not seen Mr. J.P. since Thanksgiving 2011 nor am I inclined to give him another chance to parent the children with myself. I am now planning to parent alone.

"I have lived in my current apartment since 2004 and have successfully parented both A.S.2 and A.S.1 there. The reason I am currently looking to move is so that I can obtain an accommodation in which Mr. J.P., should he ever be inclined to do so, would not be able to locate me.

"C.S. benefits significantly from her relationship with me and there is a significant difference between parenting her one on one and parenting her with other children while knowing your every move is being watched.

"It is also true that Mr. J.P. has assaulted me and other women in the past. However, I have within the recent history attempted to put that behind us since we have two children. It had been my plan to work through our issues and parent together. This was in part because, as part of his incarceration and after his release, he had taken an anger control program. I [have] been under the impression that his anger was under control. Currently, I am not sure that he can control his anger and it is not my intent to continue with a plan to parent any children with Mr. J.P.

"It also turns out that my attempt to reconcile and to plan with Mr. J.P. was a failure. His anger control courses do not appear to have worked and we are again separated and it is not my intent to give him a third chance but rather try to develop my life in a way that will allow me to come back into my children's life in a positive and meaningful way in the future."

[35] Earlier Affidavit - Plan to Parent Together (March 2011)

On March 1, 2011, Ms. B.S. deposed that:

"Mr. J.P. and I are planning to put forward a plan to parent our two biological children together. Accordingly, we are arranging to have a residence that would be suitable for us both to live in and for them both to be with us. I expect that to happen soon and I would like to be free to bring my own motion to have both Z.S. and C.S. placed with us when that occurs."

Special Needs

[36] Mother's Plan

The Society submits that Ms. B.S.'s plan is to parent alone.

[37] Global Developmental Delay and FASD

C.S. has been diagnosed as having a Global Developmental Delay by the Society's physician, Dr. Susan Cohen. There are concerns that C.S. may suffer from Fetal Alcohol Spectrum Disorder ("FASD"). She "may" have been exposed to alcohol prenatally. C.S. has facial features consistent with FASD.

[38] FASD Assessment Timeline

A formal assessment and diagnosis of FASD cannot be made until C.S. is six years old.

[39] Speech and Motor Delays

Dr. Cohen has diagnosed a global developmental delay as C.S. was behind in her speech and language and gross motor skills. Information pertaining to C.S.'s diagnosis is provided in Ms. Kalpa Patel's affidavit.

[40] Current Services

C.S. has received current foster placement services, including speech and language services, physiotherapy and occupational therapy.

[41] Kinship Caregiver Rejection

On October 18, 2011, the Society's kinship department indicated it would not approve Ms. S.P. as a kinship caregiver for C.S.

[42] Overnight Access Reinstated

On October 31, 2011, Justice Brownstone made an order reinstating overnight access visits between paternal grandmother Ms. S.P. and C.S.

[43] Overnight Access Suspended

Following C.S.'s access visit ending November 21, 2011, the Society determined that it would be unsafe for C.S. to continue having overnight visits with Ms. S.P.

Respondent Mother's Arguments

[44] Alternative Dispositions

Mr. Rice submits, on behalf of the mother, that the court is not limited to Crown ward or care and custody to mother. The court, he submits, could make an order of short-term Society wardship followed by transition to mother. Section 70(4) of the CFSA provides for an extension of the appropriate order.

[45] Triable Issues - Intellectual Capacity

Is there a triable issue in terms of Ms. B.S.'s intellectual ability? Is she functioning intellectually because she's a client of the community living association and she has an adult who helps her? Has anyone assessed exactly how great that deficit is? Mr. Rice submits there are triable issues.

[46] TAP Assessment Context

According to Mr. Rice, Ms. B.S. has not minimized the TAP assessment. Her life at the time was quite volatile because Mr. J.P. was reintroducing himself to her, she had just given birth to C.S., and there were three children involved in that assessment, not just one, so she has therefore asked for a follow-up assessment.

[47] Community Living Support

Attached to Ms. B.S.'s affidavit is a letter from the community living worker who is now her new worker who states that they would provide assistance and that they would partner with the Society to see what assistance would be available. He submits that the Society has failed to partner with Ms. B.S. or even her previous worker when her previous worker was available and was actively trying to find alternate housing and other things for her.

[48] Prior Successful Parenting

Mr. Rice submits there is the necessity of placing considerable emphasis on permanent planning and the integrity of the family. Ms. B.S. had all of these children. Her first opening with the Society was in 1998 when the child of her youth, K.S.2, was born. There was a long hiatus between then and the Society's next involvement. When the Society came in 2009, Ms. B.S. had two children, one who was six-and-a-half years of age, one three years of age, so arguably, Ms. B.S. was parenting successfully. Why was she able to parent successfully for that period of time and not able to parent now?

[49] Father's Involvement

The other triable issue, Mr. Rice submits, is the involvement of the father.

[50] Timeline of Events with Father

Ms. B.S. says she was involved with Mr. J.P. at the time of the first apprehension of A.S.1 and A.S.2. She came before the court in July 2009, where there was an order returning those two children to her under terms of supervision. The term that has become paramount is the one that said Mr. J.P. is not to be there. Her evidence is that two days later, the Society workers arrived unexpectedly. They happened to arrive within five or ten minutes of when Mr. J.P. had come to get his personal belongings and so the children came back into care.

[51] Father's Plan and Conditions

They have been in care since then. After they came into care, Ms. B.S. was pregnant with C.S. She said that Mr. J.P. had put forward a plan that he wanted to parent with her. This was November, 2009. She said, "Since formulating my plan to look after the children myself, Mr. J.P. wants to parent the children with me." She said, "I would embrace that plan only after it has been fully sanctioned by the Society and also only after Mr. J.P. has completed the following: (a) he has obtained a lawyer and put his plan of care in writing before the court, which he's done; (b) he has taken anger control programs, which he did, and (c), completed couple's counselling that the CAS finds appropriate and...".

[52] Status of Plan

This quote is found in the answer and plan of care. It is not evidence.

[53] Mother's Evidence on Timeline

Mr. Rice submits that what is sworn by Ms. B.S. is that, despite that, she didn't reconnect with Mr. J.P. until she met him at the hospital at the birth of Z.S., which would be in 2010. Ms. B.S. submits that she didn't see him between November 2009 to February after the children came into care. She saw him "for a bit" because they contacted the Society, but then not till Z.S. was born in 2010. She has not been with him since November 2011. That is her evidence. During that one year that she had tried to plan with him, the Society was aware. They weren't keeping that a secret from them because they were having some access together.

[54] Triable Issue on Father's Involvement

It is a triable issue, according to Mr. Rice, to see whether or not that could happen.

[55] Comprehensive Argument

This is a woman, Mr. Rice submits, who was working co-operatively with the Society. Fetal alcohol syndrome is a complete impossibility because she neither takes drugs, drinks nor does any of those things. Her only problem is the so-called intellectual disability. Her two problems with the Society have been intellectual disability and her relationship with Mr. J.P. C.S. was placed with Mr. and Mrs. H.H., who had already expressed their willingness to adopt A.S.2, the older child, and who had provided Ms. B.S. with an openness agreement. Everybody knew that if C.S. went to the H.s, she would get to have some access to C.S. The alternative plan for C.S. might have been a custody order to K.P.1, a paternal aunt. She would have had access in that event. So, that issue of access, up until December, was a given but now the court, Mr. Rice further submits, is being asked to make a wardship, or a Crown wardship order that would rule out access.

Positions of Other Parties

[56] Paternal Grandmother's Position

Mr. Stover, on behalf of S.P., supports mother. Ms. S.P. would like to have access.

[57] Father's Position

Mr. Hyacinth, on behalf of Mr. J.P., supports mother's position. Mr. J.P., in the event that the court decides to dismiss the summary judgment motion, supports Mr. Rice's motion that the child be placed into the temporary care and custody of his mother.

[58] Society's Response

Ms. Thompson submits that neither Mr. Stover's client nor Mr. Hyacinth's client have materials or evidence before the court.

[59] Society's Argument on Sufficiency

Ms. Thompson submits that Ms. B.S.'s plan is to parent alone. That is wholly insufficient, given the multitude of concerns put before the court. The TAP assessment, ending in 2010, is not even two years old. It was a lengthy TAP assessment. A further assessment is not necessary.

[60] Access Test

The Society argues that Ms. B.S. has not met the test, as set out at Section 59(2.1), for access. The test for access is very clear. When a Crown wardship order is made that any access order is terminated, a court shall not make or vary any access order made under Section 58 with respect to a Crown ward unless the court is satisfied that the relationship between the person and the child is beneficial and meaningful and the ordered access will not impair the child's future opportunities for adoption.

THE LAW

[61] Summary Judgment in Child Protection Cases

The court's jurisdiction to grant summary judgment in child protection cases is only to be exercised in the clearest of cases and with extreme caution. It is in the best interests of children to have issues resolved quickly. In family law cases of Crown wardship, the court must review all the evidence to determine if there is a basis for the final order sought. A proper consideration of a full evidentiary record is necessary to determine the evidence on the motion. The court must then determine whether there are specific facts to support a triable issue.

[62] Burden on Responding Party

The responding party(s), faced with a prima facie case for summary judgment, must provide evidence of specific facts showing there is a genuine issue requiring a trial. Mere allegations or blanket denials or self-serving affidavits, not supported by specific facts showing there is a genuine issue for trial, are insufficient to defeat a claim for summary judgment. A party answering a motion for summary judgment cannot rest on bald denials. They must put their best foot forward.

[63] Credibility and Evidence

The court is not to assess credibility, draw inferences from conflicting affidavits or weigh evidence on a summary judgment motion.

[64] Family Law Rules - Rule 16

Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant to this case:

When Available

16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

Evidence Required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring trial.

Evidence of Responding Party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

Evidence Not From Personal Knowledge

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

No Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[65] Mandatory Nature of Rule 16(6)

Rule 16(6) is mandatory: If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[66] Onus on Society

On a motion for summary judgment, 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 society to show that there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N..

[67] Statutory Framework and Timelines

In interpreting Rule 16, the court must have regard to the strict timelines that govern child protection proceedings. Subsection 1(1) of the Child and Family Services Act states that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. Rule 2 of the Family Law Rules provides that the primary objective of the rules is to deal with cases justly.

[68] Statutory Timelines for Young Children

Subsections 70(1) and (4) of the Child and Family Services Act mandate that a child under the age of six years shall not be in the care of a society for longer than 12 months, subject to a six-month extension if it is in the child's best interest to do so. I find that it is not in C.S.'s best interests to wait any longer.

[69] Best Interests Test - Dominant Consideration

The dominant consideration of the best interests test is the welfare of the children. See Re McGrath (infants), [1893] 1 Ch. 143, cited with approval in Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M..

[70] Welfare - Broad Definition

The welfare of the child is "not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense." See Re McGrath (infants).

[71] Wide Focus of Best Interests Test

The best interests test has a "wide focus." This means that the "entirety of the situation" must be examined in order to determine a child's best interests. See Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M.

[72] Evolution of Best Interests

The best interests of a child continuously evolve. See Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M. This means that different solutions may be required over different periods of time.

[73] Priority of Child's Interests

The best interests of a child take priority over the desires and interests of the parent. See Young v. Young. The factors that must be taken into account when determining the best interests of a child are listed in subsection 37(3) of the Act.

[74] Non-Exhaustive Factors

This list is not exhaustive, as one of the factors to be considered under subsection 37(3) of the Act is "any other relevant circumstance." See also L.C. and G.C. v. Catholic Children's Aid Society of Metropolitan Toronto (1993), 41 A.C.W.S. (3d) 1166.

[75] Balancing Factors

The relevant factors must be considered and balanced in order to determine the child's best interests. See L.C. and G.C. v. Catholic Children's Aid Society of Metropolitan Toronto; and Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M.

[76] Summary Judgment and Best Interests

Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future. Jewish Child and Family Services of Toronto v. A.(R.), 2001 O.J. No. 47 (SCJ).

[77] Narrow Role of Court on Summary Judgment

The court's role on a summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material requiring a trial. Because summary judgment is now explicitly contemplated by Rule 16, this may "broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment." Children's Aid Society of the Regional Municipality of Waterloo v. T.S..

[78] Test for Summary Judgment

A party answering a motion for summary judgment cannot just rest on bald denials. They must put their best foot forward, showing that there is a genuine issue for trial. The test for granting 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. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. Children's Aid Society of Toronto v. T. (K.).

[79] Evaluation of Evidence

The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits. See Catholic Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224; Children's Aid Society of Hamilton v. C.R..

[80] Interpretation of Rule 16

In interpreting Rule 16, rule 2 of the Family Law Rules must be considered. As well, reference to subsection 1(1) of the CFSA – which provides that the paramount purpose of the Act is to promote the best interest, protection and well-being of children – is necessary to the interpretations of the Act. See Children's Aid Society of Hamilton v. M.W..

[81] Permanency Planning and Parental Change

A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the evidence that the child faces some better prospects than existed at the time of the Society's removal of the child from their care and that they have developed some new ability as a parent. See Children's Aid Society of Toronto v. R.H..

[82] No Realistic Possibility of Alternative Outcome

As Justice Pazaratz stated at para. 43 of Children's Aid Society of the Niagara Region v. S.C.: "No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."

[83] Good Intentions Insufficient

Good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that, in giving the parents another chance, the child would have one less chance. See Children's Aid Society of Winnipeg (City) v. R.. There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. See Children's Aid Society of Brockville, Leeds and Grenville v. C.

[84] Decision on Summary Judgment Motion

The motion for summary judgment is granted. Ms. B.S. and Mr. J.P. have failed to show a genuine issue for trial.

[85] Access Considerations

Although I find that the access exercised is generally positive, by granting the summary judgment motion, the issue of C.S.'s future can more readily be decided.

[86] Preservation of Emotional Bonds

If there are emotional bonds between C.S. and her mother, they should be preserved, so long as that is not contrary to the other interests of the children such as security or psychological health (New Brunswick (Minister of Health and Community Services) v. B.D.). A child and a parent who are not attached to each other may not be granted access if the effect of doing so would be to disturb the child (New Brunswick (Minister of Health and Community Services) v. S.G.).

[87] Prospective Nature of Best Interests Proceedings

Most litigation is retrospective. For example, in a criminal case the court must decide at the adjudication stage what happened in the past. "Best interest" proceedings are paradigmatic examples of prospective litigation. Although as assessment about the future is based on a consideration of what has happened in the past, in child related proceedings, courts are asking the question, 'What will be in the child's best interest?' This is inherently a predictive and uncertain exercise. The circumstances of a child and a parent(s) will inevitably change and a judicial "best interest" decision is also subject to variation to reflect changes in circumstances.

[88] Parental Rights and Constitutional Protection

There are several Supreme Court of Canada decisions dealing with parental rights, particularly in the area of child protection legislation. In Richard B. and Beena B. v. Children's Aid Society of Metropolitan Toronto, the Supreme Court of Canada accepted that the parent-and-child relationship is worthy of constitutional protection as an important aspect of liberty and security of the person. That decision emphasized the importance of procedural rights of parents in proceedings where their relationship with their child is threatened and indicated that, in the final weighing of evidence, the concept of parental rights cannot be invoked to harm their child.

[89] Best Interests from Child-Centered Perspective

In Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., Justice Claire L'Heureux-Dubé stated at page 201 [S.C.R.]:

The wide focus of the best interest test encompasses an examination of the entirety of the situation and thus includes concerns arising from the emotional harm, psychological bonding and the child's desires.

The best interests of a child, according to Young v. Young, must be the best interests of the child assessed from a child-centered perspective.

[90] Volatility and Domestic Violence

The relationship between Ms. B.S. and Mr. J.P. has been one of volatility and conflict. Ms. B.S. is a victim of physical abuse at the hands of Mr. J.P. There is no triable issue in this regard.

[91] Expert Testimony on Domestic Violence

The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Expert testimony on the psychological effects of battering have been admitted in American courts in recent years. In State of New Jersey v. Kelly (1984), 97 N.J. 178, 478 A.2d 364, the New Jersey Supreme Court commented on the value of expert testimony in these terms:

It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge.

The court concludes that the battering relationship is "subject to a large group of myths and stereotypes." As such, it is "beyond the ken of the average juror and thus is suitable for explanation through expert testimony."

[92] Spousal Violence and Child Abuse

Spousal violence is rarely the only factor operative in protection proceedings, but rather is often combined with a family environment involving other types of child abuse or neglect. When there is a high degree of spousal abuse, the abusive partner is often abusive towards the child(ren) and the parenting capacity of an abused person often suffers.

[93] History as Predictor of Future

The past is often useful as a prediction of the future. In Children's Aid Society of Hamilton-Wentworth v. Barbara M., Justice Thomas A. Beckett addressed the subject of history as follows:

I think it is important that I go over that history because this case is based on history.

[94] Relevance of Past Parenting Evidence

In Children's Aid Society of Simcoe County v. Cecile S. and Scot S. (2001), the same issue is addressed by Justice Lydia M. Olah:

[9] The real relevance of "past parenting" evidence is the extent to which it provides a reliable backdrop against which to measure the extent to which the parents' abilities and circumstances have changed.

[95] Harm to Other Children as Evidence of Risk

And in Children's Aid Society of Peel Region v. Dianna K. and Stephen K., Provincial Judge A. Peter Nasmith observed:

In the uncertain and unscientific world of making predictions about harm to children, there is probably no more compelling evidence of risk than harm that has befallen other children in the same parents' care.

[96] Balancing Parental and Children's Rights

Justice L'Heureux-Dubé in Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., at page 191 [S.C.R.], reminded us that, in order to fulfill the objective of the best interests of the child, the Act "carefully seeks to balance the rights of parents and, to that end, the need to restrict state intervention with the rights of children to protection and well-being." Further on in the same paragraph, she remarked:

Thus the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent.

[97] Risk Assessment and Crown Wardship

If C.S. is to be parented by her mother, the risk to this child would be overwhelming. These parents require extended therapy to address their long-standing issues. It is not in C.S.'s best interests to wait to see whether her mother, in particular, acquires the skills necessary to parent her. I find specifically in this regard there is no triable issue.

[98] Permanency and Stability

The risk to the child remains substantial. It is in C.S.'s best interests to be made a Crown ward to enable her to move on with her life. The child's opportunities for a permanent and stable placement cannot await the time that would be required for the mother to establish that she had acquired the stability and necessary parenting skills and that the risk to the child was satisfactorily addressed.

ORDER

[99] Final Order

An order to go pursuant to section 57.1 of the Child and Family Services Act that the child, C.S., born in 2009, be made a ward of the Crown and placed in the care and custody of the Children's Aid Society of Toronto.

Released: March 30, 2012

Signed: Justice Marvin Zuker