WARNING

The court directs that the following notice shall 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.

(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.

(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 C43488/08

Date: 2013-07-31

Ontario Court of Justice

Between:

Children's Aid Society of Toronto

Applicant

— And —

I.H. and K.O.

Respondents

Before: Justice Curtis

Heard on: 9 July 2013

Reasons for Judgment released on: 31 July 2013

Counsel:

Martha Chamberlain . . . . for the applicant Children's Aid Society of Toronto

Colin Tobias . . . . . . . . . . . . . . . . . . . for the respondent I.H.

. . . . . . . . . . . . . . . No-one appearing for the respondent K.O.

CURTIS, J.:

INDEX

1. Over-view
2. Background
3. Litigation History
4. The Law on Summary Judgment
5. The Protection Finding
6. Disposition
7. The Summary Judgment Request
8. Access
9. Orders

1. Over-view

This is the decision in a motion for summary judgment brought by the Children's Aid Society of Toronto ("C.A.S.T.") in an amended protection application, regarding both the protection finding and disposition. C.A.S.T. is asking for an order that the child T.H. is in need of protection and that he be made a crown ward, without access, for the purposes of adoption.

The mother filed an Answer to the protection application, opposed the summary judgment motion, and filed material on the motion. She seeks the return of the child to her care. She wants a trial regarding the protection finding and the disposition of crown wardship, and argues that her plan presents a genuine issue for trial.

The father did not file an Answer to the protection application, and did not file any material in response to the summary judgment motion. He consented to the protection finding and to the order for crown wardship without access.

The issue for the court to determine is whether there is a triable issue regarding the orders that C.A.S.T. seeks.

2. Background

The mother is I.H. ("the mother"), born 1980 (now 32 years old). The father is K.O. ("the father").

The child is T.H., born 2012.

The parents were not married to each other, and did not live together.

The mother has two other children who were also removed from her care through the child protection system, neither of whom lives with her, and both of whom reside elsewhere, permanently, namely:

• C.A., born 1998 (now almost fifteen years old); and,
• T.O., born 2007 (six years old).

C.A. and T.O. were apprehended on 9 March 2008 and stayed in foster care until October 2010, when they were placed with the maternal grandmother. Both children are still living with the maternal grandmother, under court orders for their care (for C.A., an order under the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended, for custody to the maternal grandmother, by order of Waldman, J. made 13 December 2011; for T.O., an order under s. 57.1 Child and Family Services Act, R.S.O. 1990, c. C.11, as amended ("C.F.S.A."), for custody to the maternal grandmother, by order of Spence, J. made 22 March 2012).

3. Litigation History

On 28 September 2011, C.A.S.T. received a referral that the mother was pregnant. A public health nurse met the mother in a prenatal group and contacted C.A.S.T. on 6 October 2011, to report that the mother appeared to be cognitively delayed, and the mother admitted she was concealing her pregnancy from C.A.S.T. and from her doctor. The C.A.S.T concerns then were the mother's inappropriate housing, her limited cognitive ability, her alcohol use, the lack of supports for her, and her lack of planning for the child.

The child was apprehended at birth, on 2012, over sixteen months ago, and has remained in care since then. This time frame is long past the statutory timelines permitted by law for a child of his age under s. 70(1) C.F.S.A.

C.A.S.T. amended the protection application to seek crown wardship on 22 January 2013, and made a further amendment on 13 February 2013 to seek no access.

4. The Law on Summary Judgment

A party may make a motion for summary judgment under Rule 16 of the Family Law Rules, O. Reg. 114/99, as amended ("the Rules"). These are the portions of rule 16 that 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.

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..

Summary motions require the court to take a hard look at the merits of a case to determine whether there is a genuine issue to go to trial. In essence, the motion, if successful, yields a final order on all or any part of a claim or defence without a trial: Children's Aid Society of Toronto v. R.H. and M.N., para. 9.

The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court is required to make a final order and grant summary judgment: F.I. v. K.F., 2000 CarswellOnt 455 (Ont. Sup. Ct.).

In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine whether -- in that evidence -- there are specific facts to support a triable issue in any of the determinations required to be made by the court: Children's Aid Society of Waterloo (Regional Municipality) v. S. (R.), p. 8.

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..

The jurisdiction given to the court in this process for summary judgment is not a jurisdiction to be exercised lightly. In motions seeking summary adjudication of an application for Crown wardship without access, it is a remedy that ought to be confined to the clearest of cases. A Crown wardship-no access order visits profound consequences on both the child and his birth family. It frees that child for adoption planning. Adoption is the statutory guillotine of the biological relationship: Catholic Children's Aid Society of Metropolitan Toronto v. L.M.O. and M.P.; affirmed at ; further affirmed at .

The adjudication of whether there is a genuine issue for trial must be undertaken with extreme caution. Under these rules, if the motion evidence does not disclose a genuine issue requiring a trial, the court must make a final order in the application. The motions judge has no discretion to do otherwise, even if the motions judge feels that a party should have his or her day in court. Children's Aid Society of Toronto v. R.H. and M.N., para. 14.

When the court looks at whether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party's position, but rather whether the evidence is sufficient to require a trial: Children's Aid Society of the County of Dufferin v. J.R..

In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration which might be available for trial. The court must rely on -- and evaluate -- the sufficiency of the evidence as disclosed by the affidavits: Children's Aid Society of Toronto v. H. (C.), 2004 ONCJ 224.

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 Family and Child Services of Toronto v. A.(R.).

Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing there is a genuine issue for trial: Native Child and Family Services of Toronto and D.C., 2010 ONSC 1038 (Ont. Sup. Ct.), para. 6.

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: Children's Aid Society of Toronto v. K.T..

The court must assume that a responding parent has put their best foot forward in their responding material and that this is the most they have to offer at that stage. The question becomes, how long is it reasonable to leave the children on hold and in limbo while it is determined whether another attempt to change the behaviour of the parent(s) will succeed?: Kawartha-Haliburton CAS v. W.M..

Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact: Children's Aid Society of the Regional Municipality of Waterloo v. H. (T.L.), 2005 ONCJ 194.

Summary judgment is a tool to control a child's drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child's needs. 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 discernible from the parent's evidence that she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent: Children's Aid Society of Toronto v. R.H., para. 18.

In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion: Children's Aid Society of Ottawa v. C. (S.).

Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized: CAS of Toronto v. R.H., para. 16.

It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children: Worthington v. Worthington.

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 claims of the parties: CAST v. S.N. and J.S., 2013 ONCJ 345 (Ont. Ct.), para. 32.

"No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed": Children's Aid Society of Oxford (County) v. J. (J.); when the "outcome is a foregone conclusion": Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.).

No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant: Children's Aid Society of the Niagara Region v. S.C., para 43; Children's Aid Society of Simcoe (County) v. S. (C.).

5. The Protection Finding

C.A.S.T. is seeking protection findings pursuant to s. 37(2)(b) of the C.F.S.A.:

Child in need of protection

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

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

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

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

The evidence supports a finding that T.H. is in need of protection for these reasons:

• the mother's cognitive ability is limited;
• the mother has a limited ability to care for the child independently;
• the mother has difficulty with instrumental care of the child during visits; and,
• the mother struggles to meet her own needs and demonstrates only a marginal ability to care for herself.

Evidence Regarding the Protection Findings

The Mother's Cognitive Ability is Limited

The mother's cognitive ability was assessed by Dr. Valerie Temple, a clinical psychologist, and a psychological assessment report dated 9 July 2012 was filed as evidence. These are some of the findings:

a. The mother's intellectual skills are below the first percentile, and qualify her as being in the moderate range of disability;

b. The mother's visual and fine motor co-ordination is below the first percentile;

c. The mother's reading is at a grade 2-3 level. She will require assistance to read and understand complex correspondence such as banking, tax information, government documents, or legal information;

d. The mother's math is at a grade 1-2 level. She will require support to manage money and daily finances;

e. The mother's adaptive daily living skills are limited. She has deficits in several areas of daily living skills, including using money, telling time, and reading instructions; and,

f. All areas for the mother were equally developed.

The mother acknowledges that she has cognitive delay, but she disputes that this will prevent her from caring for the child. She makes this assertion, yet provided no evidence in support of this statement.

The psychological assessment report recommended that the mother apply for an Adult Protective Services Worker to assist with managing her finances and finding vocational and recreational activities. Although recommended one year ago, at the time of the summary judgment motion, the mother has just recently taken steps to do this, and had met with an intake worker. There was no confirmation or information from the worker that the mother had made this connection.

The Mother's Instrumental Care of the Child

These are the findings about the mother's care of the child during access, from the evidence of the C.A.S.T. workers:

• The mother requires basic instructions about child care, such as constant reminders to support the child's head and neck while holding the child;
• The mother changes the child's diaper on her lap instead of using the change table;
• The mother could not properly prepare the baby formula. She argued with the social worker at access about preparing formula, saying she will make it "her way", despite explanations about the need to follow the manufacturer's instructions and the importance of this, as this was the only source of nutrition for the infant during this stage;
• the mother refused to follow instructions and got angry; and,
• the mother missed the child's cues (for example, that the child was not hungry when rejecting the meal, or showing disinterest in the bottle).

The mother was involved with the Therapeutic Access Program ("T.A.P.")[^1] from 11 September to 5 December 2012, for a total of 92 hours of parenting and teaching time. She asked to be referred to T.A.P., as she had been in the program with her two older children in 2008, and then again in 2009. The program facilitator had then terminated the mother's involvement when she was reluctant to receive any teaching from staff, would not accept interventions, was unwilling to engage in the teaching portion of the program, had a difficult time containing her own emotions to protect her children, was unable to follow through on safe physical and emotional care for her children, and had a generally negative attitude towards the program.

After a meeting in 2012 between the mother and the program facilitator, the program accepted the mother back. At that time, the concerns identified by C.A.S.T. included her ability to attend to the child's day-to-day care, to prioritize his needs above her own, to regulate her emotions safely, to accept interventions and follow directions, and concerns about her lifestyle and routines.

These are the findings regarding the mother's ability to care for the child, from the evidence of the T.A.P.:

• The mother continues to struggle with the child's instrumental care, for example:

  • The mother was unable to prepare the child's formula properly, and became argumentative when the workers gave her redirection;
  • The mother was given instructions about what food to bring for the child, but often brought the wrong ones, insisting it was okay for him to eat whatever she brought him;
  • The mother was unable to follow instructions to put the child to bed;
  • The mother was unable to understand the need to only gradually introduce solid foods to the child's diet;

• The mother had difficulty adapting her parenting in a way that would have helped the child develop and grow, and struggled to stimulate his learning, for example:

  • The mother got on the floor with him, smiled at him and repeated his noises, but needed prompting to engage him with toys and speak to him with words;
  • The mother was able to engage the child in a playful manner, by kissing, tickling and cuddling, but was unable to expand any further on this, despite being given information about how to stimulate his direction (such as tummy time, talking to him, and using specific toys);
  • While the mother often put the child on the floor, she did not appear to know what to say to him, other than repeating his noises;

• The mother's limited cognitive abilities made it difficult for her to process new or changing information, in ways which would put the child at risk of physical harm, if she were unable to adapt to changes in his development and to problem solve day-to-day changes without supervision, for example:

  • She stated she could not find his formula to purchase, and later it was learned that this was because the label on the can had changed;

• The mother had difficulty putting the child's needs ahead of her own, particularly when her own needs or feelings were heightened, but also when she was calm, for example:

  • The mother often interrupted the child when he was settling to sleep because she wanted to cuddle him, instead of letting him soothe himself, as his development called for;
  • She became agitated at a visit as a result of a phone call from the father, and was distressed and withdrawn for the remainder of the visit, and as a result, did not engage the child actively and had difficulty calming herself, even with staff intervention;

• The mother continued to struggle with making healthy lifestyle choices, for example:

  • The mother was unable to understand that part of demonstrating that she could care for the child was to be able to care for herself;
  • The mother often came to visits in clothing that was not appropriate for her role as mother and that did not allow her to move and attend to the child with modesty;
  • The mother struggled to remember appointments with the worker in her home;
  • When the mother was late for visits she was unable to identify how she could have prevented this;

• When being observed, the mother would focus directly on the child, but would become distracted and stop engaging with the child when she no longer felt she was being observed;

• The mother resisted the teaching and intervention offered to her, leaving the service team concerned about her parenting and her ability to accept the support she and the child would need as he grew, for example:

  • The mother reacted to suggestions to her by disputing them, saying she had not done anything wrong, that she would give the child what she wanted, or question why intervention was being provided;
  • The mother was unable to later implement a direction she had received earlier;

• The mother was unable to accept directions and suggestions to make changes to her parenting to ensure that the child had support, for example:

  • The mother became increasingly agitated and ignored workers when they offered assistance to engage the child;
  • The mother either ignored suggestions or was argumentative with the workers, and she continued to assert that she was going to do things her way;
  • The mother was unwilling to admit that her disability may have been impacting her ability to acquire new skills;

• The mother was unable to attend to the child's changing development accurately, and had difficulty recognizing and prioritizing his needs, for example:

  • The mother was unable to demonstrate an understanding of the child's growth and development stages, for example, by consistently re-using equipment that the child was clearly beyond developmentally;

• No improvements were noted in her parenting over the course of the 11½ weeks of participation in the program;

• The mother continued to have difficulty working with supports, leaving the child at risk of the limitations identified in her parenting;

• The mother remains unable to stimulate the child's development, recognize or adapt to what he needs, problem solve day-to-day parenting dilemmas, work with supports, cope with her own feelings and stresses, in a way that would keep the child safe from harm; and,

• The program was terminated as the team determined that the mother was not willing to learn new parenting skills, or strategies, was unable to demonstrate any learning from one visit to the next, was not open to discussion or intervention during visits.

The Mother's Ability to Meet Her Own Needs

The mother struggles to meet her own needs and shows only a marginal ability to care for herself. She has not managed her own health care needs appropriately. She is unable to effectively budget for herself. She is unable to maintain housing appropriate for the child. She repeatedly answered the door to the social worker half asleep, disoriented and scantily clad.

The mother's home was cluttered, and dirty, with garbage strewn throughout:

• The floors were crusted with dirt, dried stains on the floor where liquids had been spilled and left to dry, a brown film over the floor, crumbs, paper, garbage and sundry particles over it;
• clothes covered the furniture, and the living areas were disorganized and in disarray;
• There were dirty dishes all over the counter, and the kitchen sink was full of dirty dishes. There was old food and garbage on the floor and counters around the sink. There was a strong musty smell in the apartment;
• The garbage receptacles were overflowing;
• There were prescription medicine bottles sitting on the top of the side table next to the couch;
• There was a putrid smell coming from the kitchen, and a garbage bag on the floor with rotting garbage; and,
• There was little food in the house.

The social worker spoke to the mother about the safety hazards and standard of hygiene in the home and about how this relates to the mother's ability to care for her son, as the child's then state of development was that he was at the exploration stage of development, crawling and putting everything in his mouth.

The state of the home reflected the social worker's concerns about the mother's life management and self-care skills, her organization and her time management.

The Mother's Strengths

It is clear that the mother loves the child and wants to care for the child.

The evidence from the T.A.P. identified these strengths in the mother:

a) The mother presented as committed to the child, mostly coming to visits on time and prepared;

b) The mother always greeted the child affectionately and seemed to enjoy playing with him;

c) She played well with the child, which both of them appeared to enjoy; and,

d) She was able to establish a routine for the child that included feeding him and settling him for a nap.

The Mother's Evidence

The mother's evidence on the summary judgment motion was brief, not detailed, and rather spartan. She disputes some of the evidence of C.A.S.T., but provides little or no evidence in support of her statements, which are mostly bald denials.

The Protection Finding

There is substantial evidence to support the protection findings sought by C.A.S.T., and T.H. is found to be in need of protection under s. 37(2)(b) C.F.S.A.

The same concerns that existed regarding the mother at the time of T.H.'s apprehension continue to exist. The mother has not demonstrated any differences or better ability to parent which would give rise to a triable issue on the protection finding.

6. Disposition

Disposition Legal Principles

Once a finding is made that the child is a child in need of protection, the court must determine what order for his care is in his best interests.

Section 57(1) of the C.F.S.A. sets out the types of orders available to the court after a child is found to be in need of protection:

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child's best interests:

Supervision order

1. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 or a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

The decision process on a disposition hearing, following a finding that the child is in need of protection, has been set out by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 (Ont. Sup. Ct.), para. 25, as follows:

1. Determine whether the disposition that is in the child's best interests is a return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

Section 57(1) is limited by section 70 of the C.F.S.A., which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, unless the time is extended as provided in section 70(4) of the C.F.S.A.

The child is under six years old and has been in care for more than one year. An order for society wardship is not available for him, unless the court makes an order extending the time period allowable under s. 70 C.F.S.A. No-one asked for such an order. The court can only make such an order if it is in the best interests of children to do so. This child needs certainty, finality and permanence. It is not in the best interests of this child for his status to continue to be unresolved. The only options now available for the child is to return him to the care of one of the parents (or someone else's care) under a supervision order, or a crown wardship order.

Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. C.A.S.T. has been involved with this mother for many years, through her parenting of her two older children and now T.H., her youngest child, none of whom is currently in her care, and all of whom were removed from her care through the child protection justice system. She has participated several times in the T.A.P., and has received many hours of teaching and training about parenting.

Section 57(3) of the C.F.S.A. requires the court to consider less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For reasons articulated below, returning the child to the mother, even with a supervision order, would not be adequate to protect the child in this case and would not be safe.

Section 57(4) of the C.F.S.A. requires the court to look at community placements, including family members, before deciding to place a child in care. No alternative plans were proposed at the motion for summary judgment.

In applying these provisions, the court must determine what is in the best interests of the child. The criteria to determine the child's best interests are set out in s. 37(3) of the C.F.S.A.:

Best interests of child

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

a) The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

b) The child's physical, mental and emotional level of development.

c) The child's cultural background.

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

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

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

g) The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

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

i) The child's views and wishes, if they can be reasonably ascertained.

j) The effects on the child of delay in the disposition of the case.

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

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

m) Any other relevant circumstance.

A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J), 1997.

In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective: Catholic Children's Aid Society of Metropolitan Toronto v. C.M..

The significance of the child-centered approach is that 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: 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: Children's Aid Society of Brockville, Leeds and Grenville v. C..

An order for crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of the child who becomes a crown ward, and it changes forever the life of the parent. No one in the family is untouched by this order, and no one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all the options available for the child. Crown wardship is the capital punishment of family law. It is a decision that is the most serious and important decision any court can make.

Analysis re Disposition

Disposition Options

These are the options available regarding disposition for the child:

a) returned to the care of the mother, with or without a supervision order;

b) placed with other family or community members; or,

c) an order for crown wardship.

The Mother's Plan for the Child

The mother's plan was set out in her short affidavit on the summary judgment motion. Her plan was very brief and without detail. She lives in a one bedroom apartment. She is now engaged to K.W. ("K.W."), who lives with her. They met in February 2013. They plan to marry in August or September 2013. He works in construction, and is aware of her involvement with C.A.S.T, and the removal of her two older children from her care by C.A.S.T. They plan to get a larger apartment if T.H. is returned to her care.

The mother first told the C.A.S.T worker that she was no longer planning with the father only two weeks before the summary judgment motion. At that time, she told the worker that she and the father were no longer together.

The mother first told the C.A.S.T. worker that she was engaged to K.W. and was planning with him two weeks before the summary judgment motion. When she told the worker this news, she did not know K.W.'s surname, although she told the worker they were engaged to be married.

K.W. has not contacted C.A.S.T., and has never met with the social worker. He has never met the child, and has not accompanied the mother on her access to the child. He provided no evidence at the summary judgment motion and did not attend court.

The mother described her supports as her mother and her aunt, along with K.W.'s parents. She provided almost no information about these supports, other than their names and a bald statement that they would help her. There were no details of what support would be provided. As well, her mother is caring for the two older children (now 14 and 6 years old), and has been clear that she is not able to care for T.H.. There was no evidence from any of these people at the summary judgment motion, and none of them came to court.

The Mother's History

The mother has been working with C.A.S.T. regarding the care of her children since 2008. The two oldest children were placed with her mother in 2010, and final orders placing them permanently with the maternal grandmother were made in December 2011 and March 2012. T.H. was apprehended at birth in 2012. The mother has been involved in child protection litigation for five years, regarding all three of her children. The mother is an experienced child protection litigant.

The mother ought to have taken steps in the recent 13 months since T.H.'s apprehension to address the protection concerns. She has had 13 months with a clear indication of the problems she needed to address to regain her child. She has had five years since C.A.S.T. first removed her older children from her care. There is an onus on the mother to show the court what has changed since the two older children were removed permanently from her care, and since T.H. was removed from her care.

On the summary judgment motion the mother did not demonstrate any understanding of or insight to the child protection concerns, the reasons her three children were removed from her care, or the reasons her two oldest children are permanently placed with someone else. Since the mother's first involvement with C.A.S.T. regarding her two older children, she has had ample time and opportunity to work on these issues, but has not provided C.A.S.T. or the court with information related to the protection concerns, and has not addressed these serious protection concerns.

The same concerns that existed regarding the mother at time of the apprehension of T.H. continue to exist at the summary judgment motion. The mother has not demonstrated any differences or better ability to parent which would give rise to a triable issue.

Analysis of the Mother's Plan

All of the evidence and the submissions presented by the mother on the summary judgment motion were taken into account by the court. Neither the mother's Plan of Care nor the mother's evidence specifically nor adequately addressed the protection concerns raised.

The mother's evidence in the summary judgment motion was very sparse. There were no details of her plan of care for the child. Essentially, there was no evidence regarding the mother's plan. She told the court that she was planning with K.W., but no additional information was provided.

The fact that the mother has changed plans in recent weeks suggests that she does not have a viable or even suitable plan for the care of the child. Her new plan with a new and unknown partner is evidence of her engaging in risky behaviour. In fact, this plan actually does not help the mother in her claim for the return of the child, but rather, it hurts her.

The mother does not acknowledge that she requires a high level of support to be able to parent the child. The mother is not involved in supportive psychiatric or psychological services of any kind, or counselling. There was no evidence, letter, or report from any service provider regarding the mother's participation, and nothing which would support her plan. The mother lacks insight into her situation, which suggests she is unlikely to be able to change and that she is unable to be able to reduce the risk to her child.

The mother's current plan is not a plan with an air of reality, given her history and the level of support required. The plan is not a viable, responsible or suitable plan. This plan is not realistic and has no chance of success at trial. This plan does not raise a triable issue.

Alternative Plans for the Care of the Children

At the motion for summary judgment there were no alternative plans, from family or community, for the care of the child.

Why Not a Supervision Order?

One option is to return the child to the mother, subject to a supervision order. That is not a suitable option as the child would not be safe with the mother under a supervision order.

The child is entitled to certainty, finality and to grow up in a safe and stable family, where he is valued and protected from harm. He will not have this if he is returned to the mother.

7. The Summary Judgment Request

The court has all the necessary material facts to determine the disposition issue. There is little dispute about the material facts in this motion, and very little evidence offered by the mother in response to the motion.

The question for the court on a motion for summary judgment is not whether there is any evidence to support the mother's position, but rather whether the evidence is sufficient to require a trial. There is not sufficient evidence to require a trial in this case.

The real issue was what decision the court should make based on the facts. This is a question of law. In such circumstances, rule 16(8) of the Rules applies: if the only genuine issue is a question of law, the court shall decide the issue.

The mother's desire at this time to resume parenting of the child does not, in itself, constitute a genuine issue for trial.

If the mother's evidence on the motion is her "best foot forward", it discloses no genuine issue for trial. There is no realistic possibility of an outcome other than that sought by C.A.S.T.

It is entirely clear, at this time, and on the basis of the affidavit evidence alone, what the outcome of this trial would be. The court should not be required to spend the valuable resource of trial time and impose the stress and trauma of a trial on the child, and on the mother, when the outcome is a foregone conclusion.

There is no need to have a trial judge decide this issue. The outcome of this trial is a foregone conclusion. The motion for summary judgment is granted.

It is not in the best interests of this child to delay his permanent placement any longer. The proper disposition for him now is clear. The mother is not capable of caring for this child and he should not be returned to her care.

It is not in the child's best interests, in these circumstances, for the court to choose a disposition that is in any way uncertain or not final. The only option that meets these criteria is crown wardship.

8. Access

Access Legal Principles

The test for access to crown wards is set out in s. 59 (2.1) of the C.F.S.A.:

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

The process for a decision regarding access, following a decision that the child should be made a crown ward, was also set out by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 (Ont. Sup. Ct.), para. 25, as follows:

1. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1) (a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

2. Determine whether the access would impair the child's future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.

3. Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58).

Once there has been an order for crown wardship, the legislation reflects an intention to shift the focus away from providing services to facilitate the re-integration of the child back to the natural family, towards a focus on long-term, permanent placement, preferably through adoption: Children's Aid Society of Ottawa v. R.L.; Children's Aid Society of Niagara Region v. C. (J.), para. 22.

There is a presumption against court ordered access for a crown ward in order to facilitate permanency planning: Children's Aid Society of Niagara Region v. C. (J.), para. 22.

Once the decision is made in favour of crown wardship, the burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is an extremely difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children's Aid Society of Toronto v. M.(C.); Children's Aid Society of Toronto v. D.P..

Access is the exception and not the rule in the context of a crown wardship order. Section 59(2) of the C.F.S.A. creates a presumption that any right of access is revoked: Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. L. (M.), para. 44.

The onus is on the persons seeking access to a crown ward to prove on a balance of probabilities that:

(1) the relationship between the person and the child is meaningful to the child;

(2) the relationship between the person and the child is beneficial to the child; and,

(3) access will not impair the child's future opportunities for a permanent or stable placement.

The parent has the onus of establishing all three portions of the test in section 59 (2.1) of the C.F.S.A. This is a very difficult test for the parent to meet: Children's Aid Society of Niagara Region v. C. (J.).

The meaning of the phrase "beneficial and meaningful" was considered in Children's Aid Society of the Niagara Region v. M.J., para. 45-47:

What is a "beneficial and meaningful" relationship in clause 59 (2) (a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

I read clause 59 (2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

The test focuses on the child's, and not the parent's, experience of the relationship in the assessment of whether it is beneficial and meaningful: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850.

The decision about access to a crown ward is not to be made lightly. The court must still be satisfied that the relationship is beneficial and meaningful for the child. An access order cannot be merely a consolation prize for disappointed adults: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 440, para. 215.

Even where the access visits are generally enjoyable for the child, it is open to the court to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family: Children's Aid Society of Toronto v. M.A..

The second component of the s. 59(2.1) test places a burden on the person seeking access to show that an access order would not impair a child's future ability to be adopted. There is no onus on a Society to prove that a child for whom Crown wardship is sought is adoptable: Children's Aid Society of Ottawa v. W. (C.); Children's Aid Society of Niagara Region v. C. (J.).

An access order for a crown ward no longer prevents an adoption order being made. Until recent amendments to the C.F.S.A., a society was unable to place a crown ward for adoption if there was an outstanding access order. Crown wards with access were not eligible for adoption. Section 141.1 has now been amended to allow societies to place crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption: Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803, para 145.

Section 141.1 opens the door slightly. But it does not change or even reduce either element of the conjunctive test in s. 59(2.1). The court must still be satisfied that "access will not impair the child's future opportunities for adoption". The operative words of s. 59(2.1)(b) — "will not impair" — place an onus on the parents to satisfy the court that access to the crown ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption. The onus on parents remains high: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850, para. 419-421, 427; Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803, para 145.

Section 59(2.1) speaks of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while her mother learns how to be a responsible parent: Huron-Perth Children's Aid Society v. J.F., para. 77, 80.

Access Analysis

The Mother's Access to the Children

The mother's evidence did not provide any information which would give rise to a genuine issue for trial regarding access.

There is no evidence that the mother's access is beneficial or meaningful from the child's perspective. While the access may be enjoyable, there is insufficient evidence that there is a bond between them that is important to the child. The access and the relationship to the mother are not significantly advantageous to the child.

Even if the court were to conclude that the access visits are generally enjoyable for the child, whatever benefits and meaning may accrue to the child from the visits does not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family.

Even if the access were beneficial and meaningful to the child, the court must be satisfied that access will not impair the child's future opportunities for a permanent placement. Given the child's age, the mother cannot establish that access would not impede a permanent adoption plan for him.

The mother has not met the onus on her to rebut the presumption against access to a crown ward outlined in subsection 59(2) of the C.F.S.A. The mother cannot meet the onus in s. 59(2.1) C.F.S.A. regarding access to the child.

The mother's claim for access to the child is dismissed. There shall be an order for no access to the child.

9. Orders

There is no genuine issue for trial in this matter.

These are the statutory findings about the child: T.H. was born 2012. His mother is I.H.. His father is K.O.. His religion is not Catholic and not Jewish. His status is not Indian and not Native. He was apprehended on 2012 in Toronto, Ontario.

There will be an order finding that T.H. is in need of protection under s. 37(2)(b) of the C.F.S.A.

T.H. shall be made a crown ward without access.

Released: 31 July 2013

Justice Carole Curtis

[^1]: The Therapeutic Access Program is operated with a focus on teaching and assessment. It offers access in a therapeutic setting, with individualized parenting instruction, and also offers separate training courses for parents to attend.