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 File and Parties

Court File No.: Toronto CFO-10-00011099-0000

Date: 2013-05-27

Ontario Court of Justice

Between:

CHILDREN'S AID SOCIETY OF TORONTO

Applicant,

— AND —

S.N. and J.S.

Respondent Parents

Before: Justice H.L. Katarynych

Motion Hearing: April 30, 2013

Decision on Summary Judgment motion released on: May 27, 2013

Counsel:

Ms. Sharon Greene — for the applicant society

Ms. S.N. — the respondent mother

Decision

Introduction

[1] Before this court for adjudication is the society's motion seeking a summary judgment of its amended amended protection application for the child E.M.S., born […], 2008. She is the now five year old daughter of the respondent parents.

[2] This application seeks, as did the initial application first before the court on December 10, 2010 and the amended application first before the court on December 24, 2010, a finding that E.M.S. is in need of protection under s. 37(2)(b) of the CFSA.

[3] This application also seeks a Crown wardship disposition under s. 57 of the Child and Family Services Act to free the child for a long term parenting plan through adoption under Part VII of the Act.

[4] This amended amended application has been before the court since January 24, 2012, together with the society's amended amended Plan of Care dated January 30, 2012. The plan for the child is adoption.

[5] Although the mother's Answer was in the continuing record on or about March 1, 2012, and made plain that she opposed the Crown wardship recommendation and wanted the child returned to her custody and care, she made no response to the society's motion.

[6] The father also failed to respond to the society's summary judgment motion.

[7] Both parents had been properly served, and had had experienced counsel through the course of judicial case management.

[8] The father made no appearance in this motion hearing. His counsel was released as counsel of record for him on the morning of the hearing, on her unopposed motion and for reasons given.

[9] The mother appeared on the morning of the hearing, but was unprepared for it. She had brought nothing with her to court to assist her in the hearing, and requested adjournment to enable her to be prepared for it.

[10] Counsel who had represented her through the judicial case management process had "resigned" from her case, as she characterized it. On her submission, she had found a new lawyer who had apparently agreed to represent her, already had her legal aid certificate for that representation, and the lawyer had apparently told her that he first needed to "get disclosure" of the society's case; hence the request for adjournment of the motion.

[11] Although I understood from her that this turn of events had been a recent development, the Notice of Change in Representation in the continuing record had been filed on March 8, 2013 and plainly stated that she was proceeding on a self-represented basis from that point forward.

[12] Neither the proposed lawyer nor any agent on his behalf had come to court, nor did I expect that in the circumstances. Information provided by duty counsel was sufficient to satisfy the court that there was indeed a lawyer in the wings who could be available for the motion hearing sometime in June, 2013. That timeframe reflected the society's position that it would not oppose her adjournment request if the hearing could be quickly rescheduled.

[13] The court denied the request for adjournment. On the court's review of the motion record in preparation for argument on it, this much was plainly evident:

1. The hearing had been marked "peremptory" on all parties by endorsement of the assignment court judge who, on March 20, 2013, had scheduled this motion for hearing.

2. There was a context for that "peremptory" direction that could not be ignored.

   The amended amended protection had actually been sent into the assignment court after a trial management meeting on November 26, 2012, for the scheduling of an eight day trial. The trial management endorsement inscribed the expected unfolding of the cases for each party, as the situation stood at that time.

   When the case reached the assignment court on March 20, 2013, the mother's whereabouts had been unknown to the society for some considerable time. She had been absent from the January 2013 court appearance. She had not been appearing for mother-child access scheduled for her. Her lawyer was reportedly also unable to make contact with her. There has been various attempts to contact her, but none had been successful.

3. The society's protection case had been before the court for an inordinately long period of time.

   This now five year old child had been in the temporary care of the society for some two years, three months. The statutory cut-off is an accumulation of 12 months, with discretion to the court to extend that maximum for a maximum six months on certain criteria stipulated by the Act. See CFSA s.70.

4. There was no real likelihood that a "short" adjournment into June 2013 would be sufficient for what was needed, and every likelihood that it would reactivate the pattern of adjournments that had already resulted in such protracted "temporary" foster care.

   The court was told that the lawyer's availability for the month of June 2013 was conditional on his ability to obtain "disclosure" of the case from the society. As a matter of common sense, he then needed reasonable opportunity to obtain leave to permit a late filing of her response. If successful in that regard, he then needed to coordinate a motion hearing date with other counsel that could accommodate the court's scheduling.

   He also needed a client readily available to him. The mother was heavily pregnant when she appeared in court, and indicated, in answer to the court's question, that she was expected to deliver on May 30, 2013.

   These features made a readiness for hearing in June 2013 a wishful thinking at best.

[14] If there was a genuine issue for trial, it needed to be identified without further delay, and the needed trial expedited. So it was that the hearing went forward as scheduled.

[15] The mother was given opportunity, through stand-down of the court to have her materials brought to her at the courthouse, and then further stand-down after the society's submissions, to enable her to prepare and give the society and the court her response to the motion. Her handwritten response, duly sworn in the course of the hearing, was received in evidence in the motion.

[16] To assist her to have her "best foot [put] forward" in the motion, the court brought into the motion record for consideration what had been filed on her behalf to that point in the litigation. It was thus reasonable to believe that this mother's "best foot forward" would emerge from what was already before the court in response to the society's claims. Her former counsel regularly represents parents in this court in these proceedings.

[17] The society was given brief and quite rudimentary opportunity to make reply.

[18] It was hardly an optimum course in a motion of this nature. It was, however, a necessary route, if the child was to have a decision on the merits of the society's motion without further delay. Pertinent in this regard is the primary objective of the Child and Family Services Act that all decision makers in these cases align themselves with the primary objective of the statute to promote the child's best interest, protection and wellbeing. See CFSA s. 1. No exemption from that primary objective is given for motions brought to ascertain whether there are genuine issues requiring a trial in a disputed protection case.

The Legal Principles Brought to Bear on the Motion

On the Purpose of Summary Judgment Adjudication

[19] The summary judgment motion under Rule 16 of the Family Law Rules has, as its objective, a weeding out of the litigation landscape those claims or defences that are shown to be without merit.

[20] Important context for it is the duty of litigants, their counsel and the court itself to promote the primary objective of the Family Law Rules to deal with cases "justly". The Rules make plain that dealing with a case "justly" includes "ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity, and giving appropriate court resources to the case while taking account of the need to give court resources to other cases". See FLR 2.

[21] Parties in a child protection case are not exempted from this duty, nor is the court.

[22] It is a particular important duty in child protection cases. There is a child at the centre of this litigation, and claims in the case that must be decided within the requirements of a child protection statute that pronounces a particular approach and philosophy for decision making in these cases. The parties and their counsel cannot arrogate to themselves a different, less onerous or more pleasing approach to the case, nor can the court.

[23] The Family Law Rules stipulate that it is the moving party who bears the onus to prove, on a balance of probabilities, that there is no "genuine issue" requiring a trial to fairly dispose of the claims of either the moving party or the respondent party. See FLR 16.

[24] The jurisprudence has long required that what is a "genuine" issue must relate to a "material" fact; in short, whether the result of the proceeding turns on the existence or non-existence of any particular fact or constellation of facts advanced by a party as "real". If the fact is not required to properly decide the claim; - in short, if the facts in dispute will not affect the outcome of the case, it has no bearing on the issue of whether there is a genuine issue for trial.

[25] The affidavit or other evidence advanced by the applicant in a summary judgment motion is required to "set out specific facts showing that there is no genuine issue for trial. See FLR 16(4).

[26] Jurisprudence has long interpreted that to mean that the moving party's duty is to present a case capable of being decided on the paper record before the court.

[27] The duty of the party responding to the motion is to set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party may not rest on mere allegations or denials. See FLR 16(4.1).

[28] A response to the motion, in order to make out a genuine issue for trial, needs to be more than an assertion that "I'm ready now to have my child returned to my care", or "I will be ready by the time of the trial".

[29] The motion judge is not permitted to speculate about what the evidence of either party might be in a future trial. The respondent's task is to put her "best foot forward" in the response itself, and focus in the response on the existence or non-existence of material facts required for a proper disposition of the application.

[30] If no genuine issue requiring a trial of a claim or a defence is found after close scrutiny of the record before the court in the summary judgment motion, the court "shall make a final order accordingly". See FLR 16(6).

[31] Child protection jurisprudence yields various expressions of what that end point looks like. For some courts, to say that there is no genuine issue requiring a trial is to say that, on the civil standard of proof required in the claims, the "likelihood is no chance of success at a trial" within the criteria for decision making required by the Child and Family Services Act. For others, it is to say that it is "plain and obvious" that the case cannot succeed", or that "the outcome is a foregone conclusion".

[32] However expressed, the bottom line is this: the motion judge must be satisfied that the motion record is sufficiently safe on its face to ensure a "just" result without a full trial of the claim(s) of the parties.

On the Relevance of the "Full Appreciation" Approach to this Summary Judgment Adjudication

[33] In getting to that "bottom line", it can be helpful to ponder certain points made by the Ontario Court of Appeal about the duty of a motion judge in summary judgment adjudication (see Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764), - but not with the objective of importing into this adjudication the revised Rule 20 of the Civil Procedure Rules or its evolving jurisprudence. In that regard, this court adopts the approach of Superior Court Justice R. Mesbur on appeal from a child protection decision of our court that there is no lacuna in our Family Law Rules that would require extensive jurisprudence under the Rules of Civil Procedure to be imported into our Rules. See Children's Aid Society of Toronto v. T.H. and R.A.R., 2012 ONSC 3916, [2012] O.J. No 3032 (S.C.). See also CAS of London/Middlesex v. K.B.P., 2013 ONSC 5, [2013] O.J. No 75 (S.C.) and CAS of Simcoe County v. O.P., [2012] O.J. No. 1656 (S.C.)

[34] The objective is a drilling down to the bedrock of the summary judgment process that is embedded in the Combined Air judgment.

[35] It is a place beneath the particular Rulemaker "casting". Shine light on it and what is kept visible is a particular perspective that is not dependent on the "form" of the Rules (and I paraphrase):

[36] Both the summary judgment motion and a full trial are processes by which cases may be adjudicated in the interest of justice. The procedural fairness of each of these two processes depends upon the nature of the issues posed and the evidence led by the parties.

[37] It is the "interest of justice" that in the end determines whether a summary judgment motion can serve as an adequate substitute for the trial process.

[38] So it is that the purpose of summary judgment adjudication is not to eliminate all trials, but to eliminate unnecessary trials.

[39] It has always been essential to justice that a dispute on facts or law material to proper decision making in the case proceed to trial. These are cases where a summary judgment motion cannot serve as an adequate substitute for the trial process; or put another way, a just result use of the summary judgment motion would be unfair process and produce an unjust result.

[40] The motion judge must determine "whether it is " safe " - or not safe - to determine the matter on a motion for summary judgment.

[41] That safety emerges if the motion judge can achieve the full appreciation of the evidence and issues that is required to make dispositive findings on the basis of the record alone. If not, the claim requires the powers that can only be exercised within a trial forum. There is "safety" where the record before the court is sufficient to ensure that a just result can be achieved without the need for a full trial".

[42] It is a particularly useful pondering when the summary judgment motion before the court relates to an outstanding protection application under the Child and Family Services Act.

[43] The reality of a child protection case is that there are facts alleged as "material" that have been drained of any materiality by the sheer passage of time.

[44] There is also this, when a summary judgment motion is set in the context of the substantive law governing a child protection application:

[45] In a child protection case, understanding of what is in the "interest of justice" must reach beyond attention to the adult parties. There is a child at the centre of the case, a child also overarched by the fundamental guarantees contained in the Canadian Charter of Rights and Freedoms, and one who, if lost in the analysis, is deprived of the focus required for decision making by the Child and Family Services Act.

[46] There is a cost to a child in protracted litigation. This is not "cost" spelled out in currency. It is the expenditure of time.

[47] Matters affecting children have long called for "speedy resolution", as Supreme Court Justice L'Heureux Dube characterized it almost 20 years ago in Catholic Children's Aid Society of Toronto v. C.M., [1994] S.C.J. No 37. "The Act requires it and common sense dictates it", she added, and this timeliness in decision making must be considered from a child's needs and perspective.

[48] The legislation itself stipulates what is "fair" in terms of time to deal with litigation of this nature.

[49] Years ago, the lawmakers injected into the Child and Family Services Act itself a particular measurement of the "cost" of protracted litigation for a child in continuous foster care. The legislature fixed the maximum time allowable for that "temporary" foster care. See CFSA s.70. It did not provide "exemption" for a child who has exhausted that maximum time period but is still caught in an unresolved court case.

[50] The message to those adults who hold the key to closure was to "get on with it" - manage the case in a manner that recognizes well in advance, so there are no surprises - first, that there is a statutory ceiling, and secondly, when precisely the child will hit it. The duty is to work within the available time to deliver a long-term plan for the child, whether it be a return to family or a release for adoption planning.

[51] Too casual a regard for time has the insidious effect of consequences that cannot be undone. A parent may position herself in a "no chance of success" zone. To be too tardy is to create a gap that may be too wide to be bridged within the legislative criteria that governs determination of the application as a whole. See CAST v. F.C. [2012] OJ. No1079

[52] So it is that when the summary judgment remedy is invoked to dispose of a protection application under the CFSA, the "proportionality" touchstone in the Rules must be a particularly nuanced cost/benefit scrutiny.

[53] There can be a real injustice to the child if a claim that has no real chance of success is nonetheless sent on to a trial for the sake of giving the parent her "day in court". Trial scheduling may await several months (in this case the next Assignment Court is in September 2013), and may or may not be reached in that first scheduling. Trials themselves can grow like Topsy when time estimates are not sufficiently exacting to complete the trial as scheduled, continuation dates are not readily available and the parties then need to provide "updating" evidence about the child or parent, if the adjudication is to encompass the most recent evidence pertinent to the claims.

[54] Protracted litigation is more than an inconvenience for a child. A child who sits waiting in litigation at the mercy of those controlling the pace of the case does not stand still. Growth and development go forward. What is missing is any idea about what the long term is to look like, and where it is to unfold. That can be tough uncertainty for a child.

[55] So it is that the statutory maximums for "temporary" foster care of a child are legislative warning to both the child protection authorities and the parents who have had their child placed in foster care that they do not have unlimited time or unlimited opportunity to litigate disputed claims.

[56] So it is that the effects of delay in the adjudication of an outstanding application on the child who is already lingering in litigation drift weigh in, not just as one of the "best interests" factors to be addressed in the adjudication, but as part of the "bedrock" in plain sight when the drilling reaches the "interests of justice" that rest there.

[57] That does not mean that there is a rush to judgment in either direction. The society quite rightly points to the warning of Justice Pazaratz in CAS v. R.S. that it is not appropriate to bypass a hearing just to ensure a speedy resolution.

[58] This drilling deep is not about bypassing. It is about reaching beyond the interests of the adult parties when applying the principle of proportionality in the interest of justice.

[59] It is a consideration distinct from any weighing of the evidence, assessment of credibility, or inference-drawing. It is an assessing of the quality and cogency of the evidence through a particularly acute lens in determining whether there is a genuine issue for trial.

[60] With that backdrop, I move to what this motion yielded in terms of "sufficiency" for summary judgment adjudication.

Analysis

On the Substantive Law Brought to Bear on the Summary Judgment Motion

[61] The outstanding claims in this amended amended protection application are the following:

1. the society's claim for a "need of protection" finding under s. 37(2)(b) of the Act;

2. the society's claim for a Crown wardship disposition of that application under s. 57 of the Act, for the purpose of releasing the child for permanency planning through adoption;

3. the mother's claim for a return of the child to her custody and care.

[62] The legal criteria brought to bear on these claims is contained within the scheme for decision making set out in Part III of the Child and Family Services Act. That scheme must be read set in the context of the objectives of the Act set out in s. 1 of the Act, the primary one of which is the promotion of the best interests, protection and wellbeing of the child. Other objectives identified in s.1 of the Act weigh in, but "decide" the case only if the implementation of the "other" objectives do not undercut the Act's primary objective. That positioning includes the objective of trying to protect children within their families.

[63] Overarching the whole are the fundamental guarantees set out in the Canadian Charter of Rights and Freedoms, with particular attention to s. 7 of the Charter.

These requirements percolated throughout the "sufficiency" analysis.

On the Expansion of the Record for the Hearing

[64] As indicated earlier, the society's motion case had stood essentially undefended and constituted the entire record to be considered in the summary judgment adjudication. That was so, even though the mother had been properly served with the motion and given ample time for response.

[65] The base for the "sufficiency" analysis was expanded in the course of the hearing itself, as part of the court's duty to assist the unrepresented party to have her "best foot forward" in the motion hearing.

[66] It was not to be understood as licence for any responding party to go forth in the belief that, absent response to the society's motion, the court will find that anything short of a trial is "unjust". A failure to make response or the inadequacy of a quickly cobbled together response does not make the entire record before the court "insufficient" for summary adjudication. Leaving the motion unanswered is not an EZpass to a trial.

[67] It was also not a casting aside as irrelevant the respondent's duty under Rule 16 to either make proper response or bear the consequences. I was also mindful that a hastily cobbled together response to meet the court's expectation that a party put her "best foot forward" on the day of the hearing, gives the society no fair opportunity to make reply.

[68] That said, the duties placed on the responding party can be a stretch for the unrepresented, and the claims in this motion are very serious business.

[69] So it was that the motion record was augmented that day by the response prepared by the mother during the court's stand-down, and then sworn by her so that it would be in evidence in the motion.

[70] So it was that the court itself reached to the continuing record in search of what had been placed before the court on behalf of the mother in the course of the judicial case management process that might reasonably be viewed as her "best foot forward". This mother had had experienced counsel while the continuing record was being laid down, and it was reasonable to expect, in looking for her "best foot forward", that any factual or legal issue requiring a trial for its fair and just resolution would be identified there.

[71] In her response, this mother displayed a fine ability to articulate what she wanted, and what aspects of the case were in her favour.

[72] When I set her response in the context of what had been filed on her behalf in the continuing record, it was readily apparent that her response echoed in large part what her then counsel had made the concentration of focus in her Answer to the protection application.

On the Approach Taken to the Record

[73] It was a "sifting of the wheat from the chaff" sort of endeavour.

[74] Important to keep in mind is the reality that not all disputed facts in a case constitute material facts requiring a trial. What must be ascertained is whether there is a triable issue with respect to the application. Other issues raised by the parties are not in themselves a basis for sending any claim into the trial forum. See Children's Aid Society of Halton Region v. K.L.A., [2006] O.J. no 3958 at para 25.

[75] It began - and ultimately ended, - by an extraction from the whole of what in relation to the claims in the protection application was not in dispute.

[76] The attitude taken to the society's materials was that suggested by Mme. Justice Sharman Bondy in Windsor Essex Children's Aid Society v. S.M.D., 2011 ONCJ 311 as proper in these motions; specifically, that the level and quality of the evidence advanced in a summary judgment motion should be such as to be likely able to withstand the rigour of a trial.

[77] So it was that information included in the society's affidavits that came to the deponent from another source was given regard only if the information emerged as undisputed or not reasonably capable of dispute, or the source had provided its own affidavit or properly admissible report containing the information.

[78] The court used its discretion to draw conclusions unfavourable to a party who relies on information that is not within the deponent's personal knowledge (see FLR 16(5)), to disregard information, conclusions and opinions of unnamed sources.

[79] Information that had been rendered only peripherally relevant by the passage of time was also disregarded.

[80] When what was left was the "wheat" of the case, there was actually little dispute on material facts to be brought to bear on determination of any of the claims in this amended amended protection application within the requirements of the Child and Family Services Act.

[81] A finding on any of the "he said/she said" aspects of the case - and it was carefully considered, whether within the mother's response or within the society's evidentiary record - did not require the sorts of findings of credibility or reliability that ordinarily require a trial forum, essentially because the passage of time had sent the particular controversy to the periphery of considerations relevant to the "sufficiency" task.

[82] With this backdrop, I move to the "sufficiency" findings that emerged from the "good hard look" at the whole of the record:

Findings

On the Identification Particulars Required by the CFSA

[83] I address these particulars, even though the society did not identify them as a claim in the motion, because the Act requires them to be stipulated and I found no endorsement determining them.

[84] There is no genuine issue requiring a trial to establish the identification particulars required by s. 47 of the CFSA. None of the required findings is in dispute.

[85] Paternity of the child was established by DNA analysis and became undisputed fact as at May 4, 2011 (if it was ever in contest).

On the Society's "Need of Protection" Claim

[86] Not in dispute in relation to the mother from whom she was removed, is the fact that this child's "need of protection" is lodged squarely in her mother's drug abuse problem; specifically, cocaine.

[87] The mother admits the drug problem in the course of her Answer.

[88] Not in dispute is the fact that this mother has tried over the entire course of this litigation to get a grip on that problem.

[89] But for small discrepancies that emerged as innocuous in the overall scheme of things, the recitation of this mother's various attempts to deal with this drug problem laid out in her Answer parallel for all intents and purposes the recitation of the society in its motion record. It is plainly evident that she has utilized a number of drug treatment resources both inside the Greater Toronto Area and beyond those borders over the course of this litigation to come clean and stay clean of drugs.

[90] It is not a situation where the mother does not try.

[91] It is not disputed that her attempts to get clean and stay clean of cocaine use and exposure reach back to at least the fall of 2010, when she attempted to make a safety plan for E.M.S. by giving custody of E.M.S. to her own mother by a hand written notes.

[92] The grip of the drug habit has been alive in the months leading up to this motion hearing. On what the mother asserts in this motion to explain her erratic contact with the society after the child's most recent removal from her mother's care in September 2012, persons from her past had re-entered her life and contributed to her relapse. She also asserts that she had been recovering from the trauma of a rape.

[93] In relation to the dispute between the mother and the society about the interpretation to be given to drug screens in evidence in the motion, in the end, no genuine issue requiring a trial emerged from this feature of the case.

[94] The purportedly "competing" opinions between the MotherRisk analyst obtained by the society and the mother's analyst, closely regarded, yielded no real discrepancy. The MotherRisk analysis is hair strand analysis. The other analysis is urine screen analysis. On the hair strand analysis, the cocaine was in the mother's system for a much longer time than the captured by the urine screens. The MotherRisk analyst took into account the positive screens and provided explanation for what, on the surface, might appear to a lay person to be discrepancy.

[95] Not in dispute is the fact that this mother has managed to achieve short term gain in her quest to rid herself of relapse problems. It is the longer term sobriety and drug-free lifestyle that has eluded her, and kept alive the child's need for protective intervention over the course of this litigation.

[96] Not in dispute is the fact that to date, she has not been able take the short term gain, build on it step by step and display the sort of long term gain that provides reasonable confidence that her own stability – and by extension, the stability for E.M.S., is strengthening over time.

[97] No trial is needed to determine that this child's need of protection has been grounded over the whole of this protracted litigation in her mother's inability to date to stay clean of drugs over the timeframe needed to give security and stability to E.M.S., - the sort of rootedness in a parenting that can be counted on to be there for her not just sometimes, but all the time.

[98] The record is sufficient on its face for a summary determination of this child's entitlement to a finding of her need for protection under s. 37(2)(b) of the Act.

On the Society's Claim for a Crown Wardship Disposition

The Approach to be Taken to Crown Wardship

[99] It helps to bear in mind that the Crown wardship claim for this child was first filed on January 24, 2012, some two years after the initiating protection application and some months after the society's plan to entrust E.M.S. to her father's custody and care fell apart. This amended amended protection application had actually been sent forward for the scheduling of an eight day trial at the close of a trial management meeting on April 19, 2012.

[100] The trial never went forward. The society had opted instead for a graduated return of E.M.S. to her mother under a court-ordered supervision.

[101] It was after that breakdown in planning that the society reached to the summary judgment motion process.

[102] It is a fundamental principle of child protection law that the disposition of a child's judicially found need for protection be held proportionate to the identified need. Crown wardship is the remedy of last resort under the CFSA. The good hard look at the record required in a summary judgment motion requires the motion judge to be on the look-out for a genuine issue for trial in relation to a less intrusive option.

[103] A good hard look at the record as a whole yielded the following in relation to less intrusive options for E.M.S.

On the Availability of Society Wardship or Further Adjournment

[104] As a matter of common sense, the laying down of a strong foundation of sobriety and drug free lifestyle requires not just hard work and programming designed to combat the drug habit, but also the passage of time.

[105] No trial is needed to determine whether more time can be given to this mother through a society wardship for E.M.S. The passage of time has eliminated that as a option.

[106] No trial is needed to ascertain whether more time can be given through adjournment of the disposition decision making.

[107] The legislation takes a particular approach to the passage of time. Neither the society nor the court has a right, in circumstances where time long ago ran out, to "buy" further time – either a little or a lot – for this mother to lay down a longer period of sobriety and drug-free lifestyle.

[108] The legislative "cut-off" for the "temporary" is deaf and blind to argument that the parent, when not impaired by drug use and lifestyle, provides good parenting of the child, equally blind and deaf to argument that the child and mother have a meaningful relationship.

[109] It is also deaf and blind to the argument that time got used up because the mother was entering and re-entering residential treatment. The legislature did not extract from its calculation of the maximum time for a child's temporary foster care, those timeframes when the parent was unavailable to the child because that parent was engaged in treatment.

[110] The bottom line for the child in "temporary" foster care is that the Child and Family Services Act does not give a parent who has already been given more than two years, an unlimited time and unlimited opportunity to resolve a recurring drug habit. That is reality for both E.M.S. and her mother.

[111] No trial is needed to determine that there can be no reach to a society wardship option for E.M.S. to given her mother more time.

On the Option of Return of E.M.S. to her Mother

[112] I paid particular attention to this option. It is a claim that the mother asserts as one requiring a trial, if the adjudication is to be fair to her and E.M.S.

[113] It is also an option of choice under the law governing the case, if it is shown to be an option likely to promote E.M.S.'s best interests, protection and wellbeing within the meaning of s. 1 of the Child and Family Services Act.

[114] A good hard look at the whole of the record to ascertain whether there is a genuine issue for trial on this option yielded the following:

[115] It is not in dispute that when this option has been given to E.M.S., it has not delivered what was expected for E.M.S.

[116] It is not in dispute, when the entire context of these attempts is carefully considered, that mother's relapse into drug use and/or drug associations was at the core of E.M.S.'s most recent return to foster care in September 2012.

[117] It is not in dispute that at that time, the mother, having received the child in her care on September 5, 2012, had placed the child with her sister, so that she could deal with the deterioration in her circumstances.

[118] Past conduct is relevant to decision making under this legislation. See CFSA s. 50

[119] So it is that this option of parenting by mother is not an untested one.

[120] It is not in dispute that this deterioration happened when the child was subject to a court-ordered supervision of her mother's parenting of her, on conditions that required the mother to steer clear of drugs and the drug lifestyle, and that she has not shown herself able to keep herself aligned with conditions imposed on her by the court in that regard. The relapsing is frank testament to that. Drug screens positive for cocaine are frank testament to that, even if interspersed with some negative screens.

[121] It is amply plain on a tracking of the record that the mother's resumption of parenting responsibility is followed soon after by a relapse into drug use and culture.

[122] In considering whether there is a genuine issue for trial on disposition, options "less intrusive" than a Crown wardship need to be both available and appropriate for the child.

[123] A good hard look at the record yielded the following findings on whether a trial is needed to determine whether a return of the child to her mother is "appropriate" within the criteria of the Child and Family services Act that must be brought to bear on the issue of "appropriateness".

[124] What is "appropriate" is what keeps the child stable in the parenting that is the selected option.

[125] The issue at this point in time, after such protracted "temporary" foster care of this child, is not whether the mother has produced some recent "clean" screens for inspection.

[126] It is a span of clean screens and successfully completed drug treatment initiatives over the course of E.M.S.'s "temporary" foster care that has been instrumental in the decisions to return E.M.S. to her mother's care.

[127] The bottom line is that returns under court-ordered supervision and conditions designed to secure and grow the child in her mother's parenting have not provided stability for E.M.S. That instability reaches back to 2010.

[128] It is not disputed that E.M.S. was in her mother's care under the interim protection of a court ordered supervision when the society removed her from that care in December 2010.

[129] When another attempt was made to reunite mother and child in September 2012, E.M.S. was launched on a path that was unstable within two weeks of that launch.

[130] It is not in dispute that as 2012 went forward, and with its Crown wardship claim still before the court, the society opted for another attempt to place E.M.S. in her mother's care and custody.

[131] It is not in dispute that the mother at that time appeared to be doing well after completion of a residential treatment program. In early 2012 she had had clean screens for a continuous two month period. Mother herself asserts these successes in her case in this motion.

[132] It is not in dispute that by September 5, 2012 the society had the court's endorsement to return the child to her mother on a temporary supervision order with specific conditions, to implement a plan that would grow that plan into a permanent plan, and that the return was timed to have E.M.S. in her mother's parenting for the start of the school year.

[133] It is not in dispute that this child at that time had been in the society's continuous foster care since December 22, 2010.

[134] It is not in dispute that less than two weeks later, E.M.S. was back in foster care, and that the case management court ended its temporary supervision order, in the presence of counsel, and endorsed interim foster care for E.M.S. on September 24, 2012.

[135] It is not in dispute that the mother had relapsed again.

[136] It is not in dispute that, once again, the mother took herself into programming and treatment.

[137] It is not in dispute that E.M.S. has continued in foster care ever since that readmission.

On the Need for a Trial to Properly Assess the Appropriateness of the Child's Return to her Mother

[138] As a matter of law, the availability of a particular option is not the sole consideration. The appropriateness of the option is an equally important consideration.

[139] It is not in dispute that the option of a return of this child to her mother is an available option under the legislation.

[140] It is not disputed that this mother, when her life is not impaired by her drug habit, provides a good parenting to this child. The society's evidence is replete with both first hand observation of that parenting, and hearsay account from trustworthy and reliable sources.

[141] It is not disputed that what plays out in access visiting is a mother-child relationship that is meaningful to both of them.

[142] It is not disputed that it is both the good parenting ability and recognition of the mother-child relationship that, in addition to the mother's successful completion of drug treatment endeavours, has fuelled the society's repeated attempts to restore this child to her mother's care under court-ordered supervision.

[143] On decision making that must focus on whether there is a genuine issue for trial on the disposition of E.M.S.'s need for protection, the issue at this point in time, after such protracted "temporary" foster care of this child, is not whether the mother has provide this good parenting episodically.

[144] E.M.S. needs good parenting all the time.

[145] It is the whole of the span of time that this rehabilitation effort has been underway that yields the finding about the sufficiency of the society's motion for summary adjudication of the disposition of its protection application.

[146] Not in dispute is the chronology of the society's intervention. It tracks the variations made to the level of intervention to try to keep the degree of intervention proportionate to the child's need for it. What emerges is a circling of E.M.S. from mother's care to society foster care to father's care, to society care, to yet another attempt in the care of mother, and then a return to foster care. No trial is required to find that in that circling, a dizzy lifestyle for a child now just five years old.

[147] Some recent "clean of drugs" screens that the mother produced for the court's inspection and her reach again to drug treatment programs, although commendable, do not in themselves generate a genuine issue requiring a trial to determine the disposition of this protection application.

[148] Relevant, on the issue of whether there is a genuine issue for trial on disposition, is what happened each time that this child was returned to her mother's care and custody.

[149] It is not in dispute that it has been a span of clean screens and successful completion of drug treatment initiatives that has fuelled return of the child to mother's care over the course of this litigation, only to be followed by breakdown in the plan.

[150] It is not in dispute that he security and stability that was thought to be there did not unfold as expected.

[151] The recent stability that mother asserts, taken at its highest and assuming for the purposes of this adjudication that it is not dislodged by a testing of her case at a trial, is a relatively recent acquisition.

[152] Although the mother has had some success in staying clean of illegal drug use and on more than one occasion, – and quite rightly focused in her submissions on proof of "clean" screens in evidence in the case – she has not been able to date to stay clean over any extended period of time consistent with this child's need for her to be in a clean and child-focused condition over the longer term.

[153] That is so, even though she has engaged in a number of drug treatment and after-care programmes in a number of resources made available to her since the launch of the initial protection application in this case in 2010.

[154] That is so, even though the child herself has been transported to her mother's place of drug treatment at an earlier stage in this litigation for access and programming with her mother in that setting.

[155] That is so, even though the child has made visible to both her mother and others responsible for her, both in her words and her actions, that this on again off again plan for a return of her to her family is chipping away at her ability to figure out where she will be doing her growing up.

[156] That is so, even though the child's father has abandoned his own plan to be this child's primary parent - a circumstance that ought to have sounded the alarm to this mother in the fall of 2011 that if she did not keep herself clean of drugs, she would be positioning this child for a loss of her as well.

[157] The bottom line is that prior attempts to trust the mother's foundation of sobriety have not given E.M.S. to date any lengthy period of parenting by her mother. As it plays out for E.M.S., she is geared up for a return to her mother through extended access, led to believe that she is going "home" to her mother, placed in her mother's care and then returned to foster care.

[158] Revisiting the reasons for that back and forth through a trial is not productive at this point. What has happened, has happened. There is no utility for this child in a re-visiting of what has happened and why, and who is to blame and what got in the way of success. The bottom line is that the plan has fallen through each time, and the child has been left to dangle in litigation.

[159] If the mother's case is taken at its highest, her most recent attempt to keep clean of drugs spans, by my calculation, some eight months.

[160] Keeping in mind that the mother's stability spans approximately eight months at its highest at this point in time, whether there is a genuine issue for trial to determine a proper disposition of this protection application must consider what awaits E.M.S. and her mother "on the ground" at this time.

[161] It is not in dispute that the transition of E.M.S. to her mother's care would be unfolding simultaneously with the arrival of a newborn into the life of both of them.

[162] It is reasonable to expect that a child who has had her primary parenting from persons other that her mother, will need to have priority in her mother's life not just some of the time, but all the time as they set about to close the gap of the last two years, three months. Whether the mother is able to deliver that immediacy to E.M.S. and at the same time manage a responsible care of the newborn and manage her sobriety and drug-free lifestyle is an unknown at this time. The infant is not yet born.

[163] It is not in dispute that the supports identified by the mother for herself and E.M.S. are essentially the supports that she has identified throughout this litigation; her sister, her father, certain friends. None of those supports have been sufficient to keep her from relapsing into the drug culture.

[164] It is not in dispute that, unless and until some bridging work is done to reunite E.M.S. and her father, this mother cannot look to E.M.S.'s father for hands-on, available on short notice, support. He withdrew his contact with E.M.S. in October 2011, for reasons of his own. He lives in a community some distance from Toronto. He and his partner have a child of their own.

[165] It is not in dispute that this mother cannot look to her own mother to provide responsible back-up care. The maternal grandmother herself has a drug problem that, on the assertions of this mother, reaches back into this mother's childhood and adolescence.

[166] It is possible, if a motion judge could speculate on such things, that the time waiting for a trial would give mother opportunity to strengthen her case for a return of the child to her, given the length of time that it takes in this court to schedule and then complete a trial. Speculation, no matter how enticing, cannot be brought to the analysis.

[167] No trial is needed for a finding that the mother has been "on notice" that her illegal drug use is the reason that E.M.S. has been given protective intervention and that this is the problem that must be overcome, not just on an episodic basis, but on a long-term basis if this child is to have security and stability in her mother's parenting.

[168] Also to be considered is what has unfolded in the months leading up to this motion hearing.

[169] This mother, who has a track record for disappearing from the society's sight for periods of time, leaving her absence a mystery for both the society and the child until she resurfaces, has only recently come forward again.

[170] It is not in dispute that in early 2013, both the society and her counsel lost contact with this mother.

[171] The supervision order option under this legislation is effective and adequate protection for the child if the parent entrusted with custody of the child can be counted on to be both available for the monitoring of the parenting required by the order, and compliant with the conditions imposed by the court.

[172] The record is plain that this underpinning is not there in this case.

[173] The endorsement record in the case also reflects a pattern of unavailability when availability is needed and expected. I noted, for example, that the mother's first appearance in this case waited until February 1, 2011, even though she had been served with the society's protection application on December 13, 2010. She was a "no show" in the first appearance of December 17, also a no show in the appearance of December 24, 2010, and a further no show on the return date of January 7, 2011.

[174] She has been a "no show" at other times in this litigation when a parent is expected to be at the conferencing table. Sometimes she is in drug related programming that precludes her attendance. Other times, the reason for her absence is mystery.

[175] The mother points out that she has stable housing. The issue is not whether the mother has housing. It is not in dispute that the mother has stable housing.

[176] On a good hard look at the record in this case, and with the benefit of hindsight, this young child's needs have been back-burnered time and time again to give prominence to the mother's need for yet another chance to free herself from illegal drug use and associations

[177] Whatever the reason, to date this mother has not been able to gain sufficient traction in her rehabilitation efforts to keep her going forward without relapse.

[178] She needs more time.

[179] The child has no more time. The time for "road-testing" the mother's ability to stay clean of drugs has long passed. This child cannot afford another road-testing.

[180] No trial is needed for a proper determination of the disposition of this protection application.

[181] This child, at this time in her life and having waited so long, is entitled to have the security of a parenting that is not circling around her parent's recurring slides into illegal drug use.

On Alternatives to Crown Wardship

[182] No trial is required to determine that, apart from her mother's plan, there are no other family or community based plans for this child.

[183] It is not in dispute that the father abandoned his plan and contact with this child and his participation in the litigation back in October 2011, although his counsel stayed in place until the hearing date of this motion in the event that he might resume his planning.

[184] It is also not in dispute between the mother and the society that shortly before that withdrawal of himself, this father had placed this child in a situation of risk, and at a time when the child was being prepared through extended access visiting for his full time care and custody.

[185] He made a choice to drive while intoxicated. This child was a passenger in his vehicle. He crashed the vehicle into a ditch.

[186] Not disputed is the fact that this child was bruised around her torso in that car crash. Also not in dispute is the fact that she was preoccupied by what had happened for a significant time after that incident.

[187] Also not disputed is the fact that he was prosecuted and found guilty of both driving and drinking offences as a result of that car crash.

[188] There is no extended family plan before the court.

[189] Parenting by maternal grandmother is not an alternative even if it were available for consideration. It is undisputed that she herself has had a chronic drug problem

[190] It is not in dispute that the mother's sister, who did have E.M.S. in her care for a brief time at the mother's request, although prepared to be an occasional help, is not able to take on long term full time parenting of this child. The maternal grandfather is similarly situated.

[191] It is not in dispute that the mother herself more recently and with the Crown wardship claim of the society bearing down on her, has tried to generate a long term parenting plan through others in her life who have been helpful to her in other ways. That included her suggestion that her boyfriend's mother be considered as an alternative. That woman never came forward. At least two individuals did come forward to the society expressing interest in adopting the child so that she could keep contact with her mother. They obtained information about the process, but never returned for further exploration.

On the Crown Wardship Option

[192] It is in the context of finding no genuine issue to send on to trial for any other available and less drastic disposition that the child's entitlement to a Crown wardship order emerges.

[193] The mother has been on notice from the beginning stages of this litigation that it is her consumption of drugs and its impact on E.M.S. that needed to be resolved. That message is clear and repeated sounded through the record.

[194] What was needed from her could only be accomplished by her. Whatever got in the way does not alter the impact on E.M.S.

[195] It is the inability to resolve that problem with E.M.S. in her care that resulted in this child's accumulation of two years, three months in foster care. No trial is needed to determine that the time to throw off this drug problem long ago ran out.

[196] No trial is needed to determine that this child is statutorily entitled to have stopped, these repeated attempts to give her a parenting plan that is beyond her mother's reach, - and grasp.

[197] She is entitled to a Crown wardship to broaden planning options for her that are likely to achieve that goal, including the adoption planning that is given pride of place in this legislation when the issue is long term planning for Crown wards.

[198] So it was that the record yielded no genuine issue in this amended amended protection application and no claim of the mother's that requires a trial to determine the disposition of this protection application within the criteria of the CFSA for disposition decision-making.

On Consideration of the Value of the Mother-Daughter Relationship

[199] As indicated earlier, it is not disputed that this mother-child relationship is meaningful to both of them.

[200] "Meaningful" relationship is only one facet of the analysis.

[201] No trial is required to determine in this case that the court is prohibited from attaching an access order to a Crown wardship for this child unless the relationship between the person and the child is also beneficial to the child; and that the access will not impair the child's future opportunities for adoption. See CFSA s. 59 (2.1)

[202] The person seeking the contact bears the onus of proof in that regard. See the Ontario Divisional Court's approach to both the onus and the factors that must be met to permit a post Crown wardship access in Children's Aid Society of Niagara Region v. C.J., [2007] O.J. No 1058.

[203] This child's priority need is a stable, long term parenting that she can depend on to be there for her over the long haul. The society has both responsibility and ability through its bank of approved adoptive parents to produce that security for her.

[204] To give priority to any other consideration at this time, after such protracted foster care, does mischief to this child.

[205] I also took into account that although the court is constrained in its ability to attach access to the Crown wardship, the society is not similarly constrained. It is given discretion, to be exercised in a manner that does not undermine the primary parenting of the child, to provide contact or communication between this child and those who seek to maintain contact with her. See CFSA s. 59 (4). It also has available to it the openness adoption provisions of Part VII of the Act.

[206] Whether this child will be considered suitable for an open adoption is a decision that rests with the society under Part VII of this legislation. A society that has shown such keen effort to preserve this mother-child relationship is not likely to lose sight of the meaningfulness of this mother-child relationship in the selection of an adoptive family for this child.

Conclusion

[207] The society's motion succeeds. There is no genuine issue requiring a trial of any of its claims.

[208] Under Rule 16, with the sufficiency of the record found, the court is required to make final orders disposing of the outstanding claims.

Final Orders Today

[209] For all the foregoing reasons, the temporary orders made in this case are ended and replaced with today's findings and orders:

Identification Particulars

[210] This child is properly identified within the requirements of this legislation as follows:

Name: E.M.S. (specified in formal decision)

Birth date: […], 2008

Biological Mother: S.N. (specified in formal decision)

Biological Father: J.S. (specified in formal decision)

She has neither Indian nor native status within the meaning of the CFSA. Her religious faith is neither Roman Catholic nor Jewish for the purposes of the CFSA.

Finding of Need of Protection

[211] This child is in need of protection within the meaning of s.37(2)(b) of the CFSA.

Disposition of the Need of Protection

[212] This child is made a ward of the Crown and entrusted to the continuing care and custody of the Toronto Children's Aid Society for the purpose of adoption.

Direction

[213] This decision is to be released to counsel of record and to the mother today, and the original made part of the Endorsement record in the case.

Released: May 27, 2013

Signed: "Justice H.L. Katarynych"