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 45 (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 Information

Court File No.: C53657/11

Date: 2014-10-08

Ontario Court of Justice

In the Matter of an Amended Amended Status Review Application Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of M.F., born on […], 2005 and G.A., born on […], 2007.

Parties

Between:

Catholic Children's Aid Society of Toronto

Rachel Buhler, for the Applicant

Applicant

- and -

G.O., P.F. and S.A.

Chika Nnoli, for the Respondent, G.O. The Respondent, P.F., Not Attending Sina Hariri, for the Respondent, S.A. Sheila MacKinnon, for the children, on behalf of The Office of the Children's Lawyer

Respondents

Heard: September 15 and October 2, 2014

Justice: S.B. Sherr

Reasons for Decision

Part One - Introduction

[1] The Catholic Children's Aid Society of Toronto (the society) has brought a summary judgment motion pursuant to rule 16 of the Family Law Rules (the rules) requesting the following orders:

a) That the children, M.F., born on […], 2005 and G.A., born on […], 2007 (the children) be made crown wards without access to the respondents for the purpose of adoption.

b) That M.F. and G.A. have access to one another at least once every three months and any additional access as agreed upon by the adoptive parents.

[2] The respondent, G.O. (the mother), is the mother of both children. She asks that the society's motion be dismissed. The mother argues that there is a triable issue and that the children should be placed in her care. In the alternative, she believes that there is a triable issue that the children be placed with her sister (the maternal aunt) or a person she identified as the putative father of M.F. She also argues, in the alternative, that there are triable issues about the amount of access the children should have with her or with each other, in the event that they are made crown wards.

[3] The mother brought a cross-motion seeking a temporary order placing the children in her temporary care, subject to the supervision of the society. In the alternative, she asks for an order for paternity testing on a person she only identified by first name (T.), to determine the parentage of M.F. She has also made an alternative request that M.F. be placed with T. pending trial.

[4] Until recently, the respondent P.F. was believed to be the biological father of M.F. The child has known him as her father. Recent paternity tests have established that he is not M.F.'s biological father. P.F. has executed an agreed statement of facts supporting the relief sought by the society. He did not attend on the motion.

[5] The respondent S.A. is the father of G.A. He consents to the society's request to make G.A. a crown ward. He opposes the society's motion for an order that he have no access to G.A. He submits that this is a triable issue. He brought his own motion for specified access and asked in this motion that the children have access to one another at least bi-weekly.

[6] Counsel for the children, on behalf of the Office of the Children's Lawyer, supported the society's motion, although she indicated that she would support the children receiving cards and letters from their parents four times each year.

[7] The court reviewed the following: the society's notice of motion; the affidavits of Stephanie Panzarella, sworn on June 20, 2014, Sameiro D'Silva, sworn on August 8, 2014 and Magali Cherniavsky, sworn on August 19, 2014; the mother's notice of motion and affidavit sworn on September 3, 2014; a letter from the mother's psychiatrist, Dr. Elizabeth Werry, dated September 10, 2014; the notice of motion of S.A., and his affidavit sworn on September 5, 2014.

[8] The summary judgment motion began on September 15, 2014. It was adjourned on consent to permit the parties to engage in settlement discussions. No agreement was reached.

[9] On the return of the motions, the mother sought to adjourn their continuation to obtain another lawyer. This request was denied for the following reasons:

a) The court was already in the middle of hearing the motions. Her counsel was still on the record and had not brought a motion to be removed.

b) The summary judgment motion was set on April 22, 2014 and had already been adjourned twice. In fact, the case was originally sent to trial by the case management judge, Justice Robert Spence, on July 24, 2013 and had been adjourned for various reasons.

c) The children had been in the care of the society for a period well in excess of the statutory timelines set out in subsection 70 (1) of the Child and Family Services Act (the Act).

d) An adjournment would require a lengthy delay for the mother to obtain counsel and for her counsel to review the considerable history of the matter and properly prepare for the motions. There is a statutory presumption that any additional delay is inappropriate and inconsistent with the best interests of the children. Delay is – almost inherently – bad for children, particularly where they are in care and issues of Crown wardship and permanence are pending. See: Children's Aid Society of Hamilton v. C.S. and M.E., 2014 ONSC 5696.

e) There would be additional cost as new counsel would either have to order a transcript of the first attendance date on the motions, or the motions would have to be reargued.

f) The mother did not raise her adjournment request until the return date.

g) In the absence of the other parties, and with the assistance of duty counsel, the mother did not provide me (in light of the factors set out above) with a sufficient reason to discharge her counsel in the middle of the hearing of these motions.

[10] The mother's counsel remained on the record and ably argued the balance of the motions.

[11] The issues for this court to determine on the society's summary judgment motion are as follows:

a) Is there a triable issue for a disposition for these children other than crown wardship?

b) Is there a triable issue over whether the mother should have access to the children?

c) Is there a triable issue over whether S.A. should have access to G.A.?

d) Is there a triable issue over what access the children should have to one another?

Part Two – Facts Relied Upon

[12] As this was a summary judgment motion, I accepted the mother's and S.A.'s version of evidence when material facts were in dispute. The facts that follow were either admitted, unopposed, or only baldly denied by the parties.

[13] The society first became involved with the mother after receiving a referral from M.F.'s school on March 14, 2011.

[14] The school reported that M.F., who was in senior kindergarten at the time, had missed a total of 50 days in the school year.

[15] The mother did not provide a satisfactory explanation for M.F.'s absenteeism.

[16] On March 18, 2011, the society received a second referral from Toronto Police Services regarding the mother's ability to care for both of the children. They had received a report that the children and the mother were found outside of their home naked. As well, the mother threatened to kill the children.

[17] The society investigated the allegations and confirmed:

a) The mother and the children were outside their home naked. The mother claimed that she was performing a Nigerian ritual cleansing.

b) The mother's home was in a poor state. There was food and clothing all over the home. There was insufficient food for the children in the home.

c) The children were not allowed to watch television because the mother had told them that there were people watching them from inside the television.

[18] The mother was admitted voluntarily the same day to Humber River Regional Hospital. She remained in the hospital until March 28, 2011. While at the hospital, the mother was prescribed anti-psychotic medication, but refused to take it.

[19] The children were apprehended from the mother's care, by the society, on March 18, 2011.

[20] On March 23, 2011, Justice Spence made a temporary without prejudice order, placing the children in the care and custody of the society. The respondents were granted supervised access, not less than twice per week, in the discretion of the society.

[21] The mother was diagnosed at Humber River Regional Hospital with schizoaffective disorder.

[22] On June 19, 2012, the mother's psychiatrist, Dr. Elizabeth Werry, reported to the society that the mother was stable, had been out of the hospital for one year and had been discontinued from her medication because she no longer needed it and was doing much better.

[23] While the children were in care, S.A. exercised regular access to G.A.

[24] The society returned the children to the mother on an extended visit in August of 2012. The children had been in the care of the society for 17 months.

[25] The mother cooperated with the society and no concerns were noted once the children were returned to her. The mother kept all of her medical appointments and maintained contact with her family members and friends who had been a great support to her.

[26] On October 16, 2012, Justice Spence found the children to be in need of protection pursuant to clauses 37 (2) (b) (g) and (i) of the Act. Justice Spence ordered that the children be placed in the temporary care and custody of the mother, subject to terms of society supervision. Access to the children by the fathers was to be "as agreed between the parties".

[27] S.A. exercised day access to G.A. one or two days each week while he was in the mother's care. The access went well.

[28] On March 12, 2013 the Toronto Police Service and the society were called to the mother's home. Due to their concerns about the mother's mental health, the children were apprehended again.

[29] The children have remained in the society's care and have lived in the same foster home since March 12, 2013. This is a period of over 18 months. Combined with the previous time that they were in the society's care, the children have spent over 30 months in care.

[30] The mother was hospitalized at Humber River Regional Hospital between March 16, 2013 and April 9, 2013 on a Form 1 pursuant to the Mental Health Act. The mother presented with what appeared to the hospital psychiatrist to be paranoid delusions.

[31] The society issued an Early Status Review Application on March 18, 2013.

[32] Justice Spence made a temporary without prejudice order on March 18, 2013, placing the children in the temporary care and custody of the society, with access to the parents to be in the discretion of the society. That order continues to this date.

[33] S.A. was in Nigeria on business between June and late August of 2013 and had no contact with the society.

[34] The mother was hospitalized again on a Form 2 pursuant to the Mental Health Act at Humber River Regional Hospital between May 17, 2013 and May 31, 2013. She was brought there by her sister. The mother underwent a mental health consultation by Dr. Rina Rudky who wrote:

a) The mother appears quite unwell.

b) The mother is very anxious, tense and a little tremulous.

c) The mother has great difficulty interacting with many staff members due to mistrust.

d) The mother appears to have paranoid delusions about her apartment. This is consistent with previous presentations.

e) The mother is a little thought disordered, delusional and has poor judgment and insight.

f) The mother cannot care for herself in this acutely psychotic state.

g) The mother is refusing to cooperate with staff.

h) The mother appears to have particular delusions against African staff members, even though she is of African descent herself.

[35] The mother was admitted to the hospital's acute inpatient unit and given chemical sedation.

[36] Visits between the mother and the children started in June of 2013 at the society offices. They took place once each week for one hour, fully supervised. The visits went well. The children enjoyed seeing the mother.

[37] On July 24, 2013, the society (for the second time) amended its Status Review Application to seek an order of crown wardship without access. On the same day, Justice Spence sent the case to Assignment Court for trial.

[38] During this time, the mother began to have severe side effects from the medication she was taking. Dr. Werry placed the mother on mood stabilizer medication rather than an anti-psychotic drug. The mother deposed that:

On or around September 2013, these side effects became so unbearable because I could not function and undertake my daily tasks.

[39] The mother regularly attended at her access visits until September of 2013. At this time, she started missing visits. Between September of 2013 and March of 2014, the mother missed 11 out of 24 visits. The mother would often attend at the society office only at the very end of the scheduled visit when the children were leaving.

[40] In September of 2013, S.A. began visiting G.A. at the society office. S.A. attended these visits consistently. In December of 2013, the visits began to take place at the society's Saturday Access Program on a check-in and check-out basis.

[41] On December 3, 2013, Dr. Werry reported to the society that the mother was doing well.

[42] The case was removed from the Assignment Court list as the society explored plans by both fathers and the mother to care for the children. The case was adjourned by Justice Geraldine Waldman to Assignment Court in April of 2014.

[43] On December 27, 2013, S.A. left the country for his father's funeral. He returned to Canada at the end of January of 2014 and recommenced his visits in February of 2014.

[44] In February of 2014, the mother advised the children over the telephone that she planned to leave soon to travel to Nigeria. She cancelled her next visit. This upset the children.

[45] Due to the frequency of missed visits and the possibility of the mother leaving for Nigeria, the society advised the mother's counsel (she had different counsel at the time) that it was putting her visits on hold until these issues could be addressed in a meeting.

[46] This meeting was held on March 27, 2014.

[47] The mother was admitted again to Humber River Regional Hospital from April 3-6, 2014, after she was found by medical staff lying on the ground outside of the hospital. The hospital records indicate that the mother had last seen Dr. Werry in December of 2013.

[48] The hospital records indicate that during this admission, the mother was unkempt and had to be restrained due to her behaviour. Her previous medications were restarted. The mother reported to the hospital psychiatrist that she was dying and needed urgent medical attention. The mother was adamant that her symptoms were physical and that she had no problem with schizophrenia. The psychiatrist wrote that the mother was decompensating in the context of medical non-compliance.

[49] The mother's visits were restored on May 2, 2014. She was required to first call the society in the morning to confirm her visit, so that the children would not be brought to the office unnecessarily.

[50] The mother attended the visit on May 2, 2014 and missed her next visit on May 9, 2014.

[51] On May 15, 2014, the mother was admitted again to Humber River Regional Hospital. She remained there until May 30, 2014. The mother reported to hospital staff that her sleep was poor, she was fearful of being alone and she was seeing snakes. She was noted not to have good insight into her mental illness. The mother was admitted to the hospital under a Form 1 pursuant to the Mental Health Act for stabilization. She was started on new medication.

[52] The mother attended at the emergency department of Humber River Regional Hospital 11 times between April of 2014 and June of 2014. She complained of chest cramps, back pain, dizziness, hallucinations and inability to sleep.

[53] The mother did not come to any access visits in May or June of 2014. She next visited the children on July 11, 2014. The mother cancelled her visit on July 18, 2014.

[54] In July of 2014, P.F. completed a DNA test which determined that he was not the biological father of M.F.

[55] On July 25, 2014, the mother informed M.F. over the telephone that P.F. was not her biological father. She advised M.F. of the results of the DNA test. This upset M.F. greatly. The mother conceded in her affidavit that she should not have discussed this with M.F.

[56] The society put the mother's visits on hold until they could meet with her to discuss her absences and her inappropriate conversation with M.F.

[57] The society scheduled a meeting to discuss access with the mother on August 8, 2014. The mother cancelled the meeting.

[58] The mother, to date, has not met with the society to discuss access.

[59] The mother has not seen the children since July 11, 2014.

[60] In May of 2013, P.F. put forward a plan to care for M.F. He had visits with M.F. at the society office between May and September of 2013, after which the visits moved to his home for day visits and then overnights.

[61] On May 8, 2014, M.F.'s lawyer advised the society that M.F. no longer wanted visits with P.F. The visits were put on hold. No visits have taken place since then.

[62] P.F. has withdrawn his plan to care for M.F. and consents to the relief sought by the society.

[63] S.A. has attended regularly for visits with G.A. since February of 2014. The visits take place on Saturdays for 4 hours. The society indicates that there have been no significant concerns about the visits.

[64] S.A. is not proposing to care for G.A. and does not oppose him being made a crown ward. He only seeks access.

[65] The society assessed a plan of the maternal aunt of M.F. to care for the children. It was referred to their kinship department in September of 2013.

[66] The assessment could not be completed since the maternal aunt was ambivalent about moving forward with her plan. The maternal aunt avoided phone calls of the society worker and did not cooperate with making appointments to review her plans.

[67] The society's kinship file for the maternal aunt was closed on February 28, 2014, due to her lack of cooperation.

[68] The mother has proposed the maternal aunt as an alternate caregiver for the children. However, she filed no affidavit in support from the maternal aunt.

Part Three – Dr. Werry's Letter

[69] The mother was permitted to file a letter from Dr. Werry dated September 10, 2014 at the hearing of the summary judgment motion. This letter was not provided to the other parties in advance of the motion.

[70] The letter included the following comments from Dr. Werry:

a) She has been involved in the mother's care since 2011.

b) The mother's diagnosis is Schizoaffective Disorder.

c) This illness has a better long-term prognosis than Schizophrenia, and as long as the mother is on effective medication she will return to optimum functioning.

d) Medication given to the mother caused her severe reactions that impaired her ability to take care of herself. The reactions were very severe.

e) One of the reactions to the medication was depression.

f) Eventually the mother was able to restart her medications because it was safe.

g) The mother has been doing well on her current medication because it is no longer causing her side effects.

h) She had no concerns about the mother's mental health status during their last appointment on July 15, 2014. She showed excellent insight and reported she would stay on her current medication indefinitely.

i) The mother is complying with her medication.

j) She believes that the mother has shown strength and courage throughout this ordeal.

[71] The mother's current mental health stability and the contents of Dr. Werry's report are contested by the society, but since this is a summary judgment motion, the mother's evidence of her mental health shall be taken at its highest.

Part Four – The Law on Summary Judgment

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

When Available

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

Evidence Required

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

Evidence of Responding Party

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

Evidence Not From Personal Knowledge

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

No Issue for Trial

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

[73] 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. See: Children's Aid Society of Hamilton v. M.N..

[74] 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. See: Jewish Family and Child Services of Toronto v. A.(R.), 2001 O.J. No. 47 (SCJ).

[75] 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. See: Children's Aid Society of Toronto v. K.T..

[76] The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. 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. See: Children's Aid Society of Toronto v. T. (K.); Children's Aid Society of the Regional Municipality of Waterloo v. H. (T.L.), 2005 ONCJ 194.

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

Part Five – Disposition

5.1 Legal Considerations

[78] This Status Review Application is brought pursuant to section 64 of the Act. The orders that a court can make at a Status Review Hearing are set out in subsection 65 (1) of the Act. This subsection reads as follows:

Court may vary, etc.

65. (1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1.

[79] The disposition options set out in section 57 of the Act are as follows:

Order where child 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 or an order under section 57.1, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 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 65.2 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 for 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. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, s. 13 (1-3).

[80] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:

1. Determine whether the disposition that is in the child's best interests is 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.

3. If a society wardship order is made 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.)

[81] Subsection 57 (2) of the Act requires that I ask the parties what efforts the society or another agency or person made to assist the children before intervention under Part III of the Act.

[82] Subsection 57 (3) of the Act requires that I look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless I determine that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[83] Subsection 57 (4) of the Act requires me to look at community placements, including family members, before deciding to place a child in care.

[84] In determining the appropriate disposition, I must decide what is in the children's best interests. I have considered the criteria set out in subsection 37 (3) of the Act in making this determination. This subsection reads as follows:

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:

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

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

40. The child's cultural background.

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

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

43. The child's relationships by blood or through an adoption order.

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

45. 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.

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

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

48. 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.

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

50. Any other relevant circumstance.

[85] 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, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton- Wentworth v. G. (J), (1997) 23 R.F.L. 4th 79 (SCJ- Family Branch).

[86] In determining the best interests of the children, I 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 children's perspective. See: Catholic Children's Aid Society of Metropolitan Toronto v. C.M..

[87] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused. See: Children's Aid Society of Toronto v. D.S..

[88] 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 a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H..

5.2 The Children

[89] The following is evidence about the children that was admitted, not opposed or only baldly denied by the mother and S.A.

[90] The children have remained in the same foster home since their second apprehension on March 12, 2013.

[91] The children are doing very well in their foster home.

[92] M.F. has special needs. She struggles academically and has an Individual Education Plan and a tutor.

[93] M.F. demonstrated challenging behaviours the first time that she was in foster care, such as crying out of control and struggling with her homework. She had to be moved out of her first foster home due to her behaviour.

[94] M.F. had a psychological assessment from Dr. Olga Henderson. In her report dated August 23, 2011, Dr. Henderson writes that M.F.'s testing raises some questions about M.F.'s mental state and the possibility of developing mental health problems. She said that the child needs to be monitored closely and be in a stable placement with supportive adults. She recommended that M.F. be reassessed in the future.

[95] M.F. has been referred for a further psychological assessment. The results were not available at the hearing.

[96] M.F.'s behaviours have improved in her current foster placement. She has improved both socially and academically at this home.

[97] G.A. has no special needs. He appears to be happy, healthy and developing normally.

[98] The relationship between the children is beneficial and meaningful and there should be some form of access ordered.

5.3 Services for the Mother and the Children

[99] The society has provided the following services for the mother and the children:

a) The children have been provided with a Children's Service Worker.

b) M.F. had a psychological assessment with Dr. Henderson and has received another assessment.

c) M.F., the court was advised at the hearing, has recently been referred to the FAME program. This is a program that assists children who have parents with mental health issues.

d) M.F. has received tutoring.

e) The mother has a Family Service Worker.

f) The Family Service Worker has attempted to connect with the mother's health care providers to obtain a better understanding of her issues.

g) The society convened a Family Group Conference in February of 2012. This led the way to the children being returned to the mother in August of 2012.

5.4 Community or Family Plans

[100] The society attempted to explore alternate plans for the children, including:

a) They were investigating the plan of P.F. until he withdrew it.

b) They worked with S.A. to see if he would put forward a plan. He chose not to do so.

c) They started the assessment of the maternal aunt. She was uncooperative and that assessment ended.

5.5 The Plans of Care

[101] The society's plan is to make the children crown wards so that they can be adopted. They ask that no access order be made, in order that the adoption of the children can be facilitated. They intend to maintain sibling access once every three months. This plan is supported by P.F. and the Office of the Children's Lawyer, on behalf of the children.

[102] The mother asks that the children be placed in her care. She provided no details of her plan in her affidavit filed for this motion. The mother did file an Answer/Plan of Care in June of 2013. She indicated that she would have support from the maternal aunt and some friends (unnamed). She set out the schools the children would attend and activities that they would participate in. She indicated that she was on public assistance, but hopes to go back to school to take a computer course.

[103] The mother asked, in the alternative, that the children be placed with the maternal aunt. However, she provided no details of how this plan would work or file an affidavit from the maternal aunt.

[104] The mother deposed that she believes T. is M.F.'s biological father and that he now wants to be involved in M.F.'s life. She asked, in the alternative, that M.F. be placed with T. pending trial. However, she provided no detail in her affidavit about who T. is (other than his first name), how he would be able to parent M.F., or what role he would play in the her plan. T. also did not file an affidavit for this motion.

5.6 Analysis

[105] The evidence is overwhelming that it is in the children's best interests to be made crown wards. There is no triable issue. This finding is made because:

a) The mother has suffered from significant mental health problems that have seriously affected her ability to look after herself, let alone two young children.

b) The mother has had frequent and severe mental health episodes over the past 3 years, the most recent known incidents being in May of 2014. She has been unable to establish consistent mental health stability or demonstrate that she can provide a safe, secure and stable home for the children. Even if the mother's mental health has stabilized since June of 2014, this is far too short a period of stability, given her mental health history, to find that she can adequately parent the children. History has shown her mental health to be very fragile.

c) The mother has shown a profound lack of understanding of the children's need to have her be a stable person in their lives. Her access was highly inconsistent from September of 2013 until February of 2014. She has only had two visits since then, the last being on July 11, 2014. While some of the mother's prior access inconsistency can be explained by her mental health challenges, it doesn't explain her behaviour since June of 2014, if her mental health has stabilized, as assessed by Dr. Werry.

d) The mother hasn't met with the society to restore her access. She cannot provide the children with a safe, stable and secure home if she cannot even take rudimentary steps to have her access restored. Again, if Dr. Werry's evidence is to be accepted, the mother cannot use her mental health as an excuse for her lack of insight and judgment about the children's needs.

e) The mother has shown very poor judgment in her access, demonstrating a lack of understanding and empathy for the children's needs. She told them that she was leaving for Nigeria in February of 2014. She told M.F. that P.F. had taken a paternity test and was not her father. There is no evidence that the mother is willing to take steps to obtain additional insight into the needs of the children.

f) The mother's alternative request to have M.F. placed with T. pending trial also shows a serious lack of understanding of M.F.'s needs. She apparently lacks any insight into how difficult it would be for M.F. to live with a stranger.

g) M.F. has special needs that require a skilled and stable caregiver. Sadly, the mother has shown that she cannot consistently provide for these needs.

h) The mother did not present a viable plan of care. She did not set out any safety plan that would address any recurrence of her mental health issues. She provided no information about how she would address the children's needs. She provided no concrete evidence of having suitable supports. She provided no evidence that she would attend programs that would assist her in parenting the children. She provided no evidence that she would take the children to any programs that would assist them in understanding and coping with her mental health struggles.

i) The Office of the Children's Lawyer, on behalf of the children, supports the society's position.

j) M.F. has made significant gains while in foster care, academically, socially and emotionally.

k) The mother has not followed through with meetings with the society worker. If the children were to be returned to her, it would be subject to a strict supervision order. Her recent actions indicate that it is doubtful that she would comply with terms of supervision at this time.

l) The children have been in care well in excess of the statutory timelines set out in subsection 70 (1) of the Act. It is in their best interests to have a permanent home as soon as possible.

[106] The mother's alternative plans also do not create a triable issue. The maternal aunt did not follow through with the society when she had the opportunity of putting forward a plan for the children. No evidence was filed on this motion from the maternal aunt which would indicate what her plan is.

[107] The case also cannot be adjourned to determine if T. is M.F.'s biological father. The mother provided no information about this individual, including what his full name is. She did not set out any evidentiary basis to conclude that he is M.F.'s father. M.F. has been in care for far too long to delay the matter further for speculative testing. There is absolutely no merit in her alternative request to place M.F. in T's care.

[108] In addressing the relevant best interest clauses in subsection 37 (3) of the Act, the court finds that there is no triable issue that:

a) The society's plan will better meet the children's physical, mental and emotional needs.

b) The society's plan will better meet the children's physical, mental and emotional level of development.

c) The society's plan will better meet the children's needs for continuity and a stable place in a family through adoption.

d) The risk of placing the children with the mother remains unacceptably high.

e) The society's plan will better address the children's needs than the plans proposed by the mother.

f) This case cannot be delayed any further. The children should receive a permanent home as soon as possible.

[109] There is no triable issue that there is no less intrusive alternative, in the children's best interests, other than making them crown wards.

Part Six – Access

6.1 The Law

[110] Once a disposition of crown wardship is made, the Act provides for a presumption against access. The current test for access to crown wards is set out in subsection 59 (2.1) of the Act, which reads as follows:

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.

[111] The onus to rebut the presumption against access to a crown ward is on the person seeking access. See: Children's Aid Society of Toronto v. D.P.. This person has the onus of establishing both portions of the test in subsection 59 (2.1) of the Act.

[112] The society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the children to develop a positive, secure and enduring relationship within a family through either adoption or a custody order.

6.1.1 Beneficial and Meaningful

[113] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J. where he said:

(45) 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.

(46) 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 of father learns how to be a responsible parent.

(47) 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.

[114] Justice Quinn wrote this decision before the openness amendments were incorporated into the Act in 2006 and in 2011. The court is no longer required to choose between no access for the purpose of adoption and access to the parents. For the openness amendments to be meaningful, the court should consider the future benefits of an openness order in assessing if the child's relationship with a parent is beneficial and meaningful. This was the approach taken in Catholic Children's Aid Society v. M.M., [2012] O.J. No. 3240 (OCJ) at paragraph 212 where Justice Ellen Murray wrote:

In my view, the amendments in Bill 179 have introduced new elements into the analysis required under the test for access to Crown wards contained in that section 59(2.1). The fact that a court does not necessarily have to choose between the security of an adoption placement and the prospect of a child having some contact with his biological family affects the analysis in both prongs of the s. 59(2.1) test.

[115] In considering the beneficial and meaningful portion of the test, Justice Murray found that maintaining a connection and knowing your roots is significant in this consideration. She indicated that if a child can continue the connection while also having the security of an adoption placement, it should be considered.

[116] In Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054, the court indicated that the court should also consider the potential detriment to the child of not making an access order.

6.1.2 Impairment of the Child's Opportunity for Adoption

[117] Justice Murray reviewed the law concerning the second prong of the test – impairment of the child's opportunity for adoption in Children's Aid Society of Toronto v. C.J., 2014 ONCJ 221, in paragraphs 168-170 as follows:

[168] With respect to the second prong of the test, until recent amendments to the Act it was virtually impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption, as the Act did not allow adoption placement if there was an outstanding access order. Section 141.1 of the Act now allows a Society to place a Crown ward who is the subject of an access order for adoption. Once notice of a society's intent to place a child for adoption is given, then any person with a right of access may apply for an openness order.

[169] These amendments did not change the provisions of section 59(2.1). A person seeking access to a Crown ward must still establish that not just that the order will not prevent an adoption, but that it will not "diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption". Catholic Children's Aid Society of Hamilton v. L.S., (2011)O.J. 4512 (S.C.).

[170] However, it has been recognized that the amendments allowing the possibility of an openness order for an adoptive child do affect the analysis to be conducted on the second prong of the 59(2.1) in some respects, in that a court does not have to choose at this stage between adoption and some contact between a parent and biological family. Catholic Children's Aid Society of Toronto v. S.B., 2013 ONSC 7087. A court asked to make an access order for a Crown ward will be aware that such an order will open the door to an openness application when a society proceeds with its plan for adoption. Native Child and Family Services, v. J.E.G., 2014 ONCJ 109. The possibility of that litigation and such an order may restrict a child's opportunities for adoption.

[118] In Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530, Justice Penny Jones listed reasons why courts might reject claims for access on the second prong of the test in paragraph 71 as follows:

Recent cases have considered potential reasons why courts might reject claims for access on the second prong of the test. See Catholic Children's Aid Society of Toronto, Applicant, and M.M. Respondent, and J.N., Respondent, [2012] O.J. No. 3240 and Catholic Children's Aid Society of Hamilton v. L.S., supra. The following is a list of reasons why claims for access have been rejected, or might be rejected, in the future. This list is in no way exhaustive.

1. Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

a. They would be facing further litigation

b. They would not know the result of such litigation

c. They would not know what form an openness order might take

d. If an openness application is brought, the adoption will be delayed

e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved

2. Parents of an adoptable child who have a record of being difficult to deal with and not supportive of foster placements might find their access request refused because of their past disruptive behavior. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted would likely be viewed as a reason not to grant an access order because such an order would impair that child's future opportunities for adoption.

[119] In Catholic Children's Aid Society v. M.M., supra, Justice Murray commented in paragraphs 232-233 that:

232 Would the prospect of a court making an openness order have a "chilling effect" on those who might wish to adopt L.M.? That "chilling effect" might result from nervousness at the prospect of a future court decision on an openness application, a decision which the adoptive parents cannot control. Or it might result from opposition to any type of openness arrangement.

233 I can speculate that some prospective adoptive parents may be scared off for these reasons. I can also speculate that there are other prospective parents who would think it an advantage if they were able to preserve their child's connection to his biological family in a way that did not diminish, but strengthened the child's place in their family, and who were willing to enter into a discussion about what type of openness arrangement would be best.

[120] Justice Geraldine Waldman observed in Children's Aid Society of Toronto v. S.A., 2012 ONCJ 42 that the court should be conscious of the fact that deficiencies in a parent that might be a concern when the issue is whether to return a child to that parent's care may not be a concern (or may be a lesser concern) when the issue is access.

[121] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters, won't, and will be ordered. See: Children's Aid Society of Toronto v. C.J., 2014 ONCJ 221; Catholic Children's Aid Society of Toronto v. S.B., 2013 ONSC 7087.

[122] In Children's Aid Society of Toronto v. E.U., 2014 ONCJ 2939, this court commented that the distinction between who has been granted an access order (the access holder) and who is the person with respect to whom an access order has been granted (the access recipient) has now become a critical consideration because only the access holder has the right to bring an openness application, pursuant to subsection 145.1 (2) of the Child and Family Services Act, if they are served with a Notice of Intent to place a child for adoption. The access recipient only has the right to be given notice of the society's Notice of Intent to place a child for adoption. This court found that granting the parents a right of access to a 9-year-old child would impair the child's opportunity to be adopted by the foster parent as the parents kept trying to undermine the placement. Granting an access order would lead inevitably to litigation over openness and the foster parents were becoming increasingly frustrated with the parents and the court process. However, the child was granted access once per month to the parents as the foster parents respected the child's desire to have contact with the parents and could negotiate with the child an openness arrangement without the likelihood of litigation.

[123] Since this is a summary judgment motion, the mother and S.A. are not required to prove that they have met both parts of the two-part test – they only have to show that there is a triable issue that they could meet the two-part test.

6.2 Analysis

6.2.1 The Mother's Claim for Access

[124] The society and the Office of the Children's Lawyer, on behalf of the children, submitted that there was no triable issue - that the mother met neither part of the two-part access test for crown wards.

[125] The society's argument that the visits are not beneficial for the children could very well succeed. The mother has only seen the children twice since February of 2011, has exercised poor judgment when she has spoken to the children and has upset them. She has struggled since 2011 with mental health issues. She is demonstrating limited insight into the children's needs.

[126] There is also a serious argument to be made that, due to her mental health issues, access by the mother would impair the children's opportunity to be adopted and that her continued involvement would have a chilling effect on the adoption pool for the children.

[127] However, the test is not whether the mother has an uphill battle to succeed. The test is whether there is a triable issue. Is there any realistic possibility that she can succeed?

[128] The court finds that there is a triable issue with respect to access for the following reasons:

a) There is evidence that the mother's relationship with the children is meaningful for them. She raised them herself until 2011 and from August of 2012 until May of 2013. She was the most important person in their lives. The children love their mother. There is evidence that they worry about her.

b) It may be that it is not beneficial for the children to have much contact with the mother when she is struggling with her mental health. However, the recent case law indicates that courts should take a more expansive view about what is beneficial for children. It may be beneficial for the children to have more contact with the mother when her mental health is stable. An access order can be structured to address this.

c) Other potential benefits of ordering access include:

i) The children love their mother and could maintain this connection.

ii) The mother is their main connection to their Nigerian heritage.

iii) The children's visits with the mother went well when the mother was well.

iv) Medical information and family history will likely be more readily available if the children maintain contact with the mother.

v) The children, by having contact, could be reassured about how their mother is coping.

[129] The trial court must also ask itself whether it might be detrimental for the children to have their relationship with the mother severed. The court needs more evidence about this. Expert evidence would be helpful.

[130] The trial court will also likely query whether severing the relationship of children who have an established relationship with a parent who has a mental health issue is best for the children. Perhaps there is a better approach that would enable the children to maintain contact with their mother while not interfering with the possibility of a permanent and stable placement. A trial court might find that it may be beneficial for the children to have some limited contact with the mother, such as cards and letters. There may be a benefit to the children of coming to terms with having a mother with mental health challenges and finding a way for her to fit positively within their lives. It was disappointing to learn that M.F. only started the FAME program in June of 2014. This is a program that would have been very helpful for her much earlier in coping and coming to terms with a mother's behaviour that must be very confusing to her.

[131] There is also a triable issue on the second part of the test – whether an access order will impair the children's opportunity to be adopted. The trial court should hear evidence to assess if the mother is likely to undermine any adoptive placement. It will want to assess if she is willing to accept the decision that the children will not be returning to her care and that her involvement with them will be significantly reduced.

[132] There is also an issue about the mother's current mental health status. If her mental health is stable, there is an argument to be made for in-person access. Further, if the mother can establish that her judgment was (or is) impaired by her mental health status, and can show it has improved, she may be able to convince the trial court that she would be less likely to undermine an adoptive placement or impair the children's opportunity for adoption.

[133] Even if the mother's mental health status is still poor at trial, she may still be able to convince the court that cards and letters would be beneficial for the children and would not impair their opportunity for adoption.

[134] Lastly, the court also has the option, as this court did in Children's Aid Society of Toronto v. E.U., supra, to grant a right of access to one or both of the children and not the mother. This would ensure that the children have input into having continuing contact with the mother, while eliminating the mother's right to bring an openness application when the society brings a Notice of Intent to place them for adoption. The court might find that this will not impair the children's opportunities to be adopted.

[135] The court finds that there are triable issues regarding access between the mother and the children.

6.2.2 S.A.'s Claim for Access

[136] The court also finds that there is a triable issue concerning S.A.'s access to G.A.

[137] There is conflicting evidence about the quality of the relationship between S.A. and G.A. S.A. claims that it is an excellent, well-established relationship that is meaningful and beneficial to G.A. The society presented evidence that G.A. is often cautious with S.A. and that it is not a close relationship. They provided evidence (disputed) that S.A. has not been cooperative with them, at times, in planning for G.A. If the society's evidence is accepted, S.A.'s access claim would likely fail. However, if the court prefers his evidence, there is a realistic chance that his access claim, in some form, would be successful.

[138] A difficulty with much of the society's evidence on this issue is that they heavily relied on statements of third parties, including statements by G.A., to support their position about the quality of his relationship with S.A.

[139] The court repeats the following comments it made about the evidentiary standard on summary judgment motions in paragraphs 25 and 26 of Children's Aid Society of Toronto v. B.B., [2014] O.J. No. (OCJ) as follows:

[25] My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination.

[26] I will adopt the approach taken by Justice Roselyn Zisman in Children's Aid Society of Halton Region v. E.S.M., 2010 ONCJ 776 where she writes in Paragraph 37:

[37] But in this case, the trial affidavits continued the practice of repeating much of the same hearsay evidence. I therefore agree with the submissions of counsel for the mother that no weight be put on any of the hearsay statements in the affidavits filed by the society. Many of the hearsay statements contain information that is highly relevant to the issues in this case such as, information about the mother's mental health, the state of the mother's apartment and concerns by the foster mother about the mother's telephone access and the foster mother's observations of the child. This first hand evidence could and should have been introduced by the society if it intended the court to rely on it. Therefore, I have only considered this hearsay evidence as background information to put into context the steps taken by the society worker because of the information received [emphasis mine].

[140] The society did not establish in their motion material that the children's statements met the principled hearsay exception set out in R. v. Khan – that the statements are necessary and reliable. This will have to be determined by the trial judge, likely on a voir dire. This evidence was given no weight on the summary judgment motion.

[141] S.A. was also able to produce notes of society workers that arguably contradict its affidavit evidence about the quality of the visits. These notes indicate times when: the child will smile and run to greet and hug the father; the father has been patient and gentle with the child and he has been able to comfort him. They also describe visits that are positive.

[142] The evidence also indicated other benefits of the access to G.A. including:

a) S.A has been a consistent parent in G.A.'s life, with the exception of the times that he has travelled to Nigeria.

b) Medical information and family history will likely be more readily available if G.A. maintains contact with S.A.

c) S.A. is one of G.A.'s connections to his cultural roots and Nigerian heritage.

[143] The trial court should have the opportunity of hearing further evidence about the nature of the relationship between S.A. and G.A. in order to assess its quality.

[144] S.A. also established that there was a triable issue with respect to the second part of the two-part test – whether an access order would impair G.A.'s opportunity to be adopted.

[145] S.A. led evidence that indicates that he would support an adoptive placement. He will be able to argue that many adoptive placements might see the value in maintaining a beneficial and meaningful relationship for the child. S.A. submitted that he is in support of a crown wardship order and G.A. receiving a permanent home. He has the necessary insight to understand that he cannot provide G.A. with such a home. Unlike the mother, he has not made inappropriate comments to S.A. during access visits. The society has expressed no concern about his visits.

[146] Lastly, there is a triable issue as to the amount of access the children should have to each other. The society asks that it take place at least once every three months – the mother and S.A. ask that it take place bi-weekly. The court needs more information about the nature of the relationship between the children to properly assess what access order is in their best interests. If the society wishes to restrict this access, they should probably provide statistical evidence at trial that more extensive access might impair the adoptability of either child.

Part Seven – The Parents' Motions

[147] The only remaining triable issue is access and that is an issue for the trial court, not a motions court to determine at this late stage. The current access orders will continue. The case is placed on the Assignment Court list for October 29, 2014.

[148] The balance of the mother's motion is dismissed. She is not exercising access. The court will not increase it at this time. There is no merit to her request for paternity testing or that the child be placed in the care of T.

[149] The father's motion is also dismissed, on the basis that the access issue will be determined at trial. He did not establish a sufficient evidentiary basis to change temporary access this close to trial. The evidence about the quality of his access is in dispute. A trial date will be set shortly and it is more appropriate to fully canvass the issue of his access at trial.

Part Eight – Findings and Directions

[150] Subrule 16 (9) of the rules reads as follows:

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may also,

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise to prevent injustice);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure).

[151] A summary judgment motion can be an opportunity to make findings of fact not in dispute, narrow the issues to be heard at trial and give directions to assist in organizing the trial.

[152] This court finds that the facts set out in paragraphs 13-68 and 90-100 above are not in dispute. Subject to the direction of the trial judge, no further evidence should be led regarding these facts. The parties should concentrate on leading evidence addressing the following issues:

a) Are the relationships between the mother and the children and between S.A. and G.A. beneficial and meaningful?

b) What is the current state of the mother's mental health and her prognosis?

c) Would an access order to either the mother or S.A. impair the children's opportunities for adoption? In particular:

i) Will the mother or S.A. accept and support an adoptive placement?

ii) Would an access order in favour of either the mother or S.A. reduce the available pool of adoptive parents?

iii) Would an access order in favour of either the mother or S.A. unduly delay the adoption of the children?

iv) Is there any evidence about what form of access might impair the available pool of adoptive parents or unduly delay the adoption of either of the children?

d) Should either of the children be granted a right of access to either the mother or S.A.?

e) What amount of access between the children is in their best interests?

[153] If either the mother or S.A. are able to establish that they meet the two part-test on a prima facie basis at trial, it would be helpful for the court to receive statistical evidence from the society about whether access orders are impairing the adoption of children this age, and if so, what types of access orders are impairing the adoptions. Are orders for the exchange of cards and letters impairing adoption for children this age? It would also be helpful for the court to receive statistical evidence about the adoptability of these children given their age and the special needs of M.F.

[154] This case is already on the Assignment Court list for October 29, 2014. Copies of the court's Child Protection Trial Readiness Checklist will be enclosed with this decision. It should be completed by counsel and provided to the Assignment Court judge on the return date.

Part Nine – Conclusion

[155] The court makes the following orders:

a) There is no triable issue with respect to the disposition of this case. The children shall be made crown wards.

b) There are triable issues with respect to the access issues and a trial to determine these issues is required.

c) Findings of fact are made as set out in paragraphs 13-68 and 90-100 of this decision.

d) Subject to the direction of the trial judge, the issues for trial are those identified in paragraph 153 of this decision.

e) The mother's motion is dismissed.

f) S.A.'s motion is dismissed, on the basis that the access issue will be determined at trial.

[156] The mother is encouraged to meet with the society as soon as possible to restore her access. The longer she goes without seeing the children, the more difficult it will be for her to succeed on her claim for access at trial.

[157] The parties should seriously consider engaging in child protection mediation with respect to the remaining issues prior to the Assignment Court appearance.

[158] The court thanks counsel for their excellent presentation of this motion, in particular the fine quality of their factums.

Released: October 8, 2014

Justice Stanley Sherr

Footnotes

[1] Justice Robert Spence made a statutory finding on October 16, 2012 that P.F. was a parent of M.F., pursuant to subsection 47 (2) of the Child and Family Services Act.

[2] This subsection reads as follows:

Time limit

70. (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

[3] The facts in paragraphs 13-19, 22 and 25 are contained in a Statement of Agreed Facts signed by the mother and the society in August of 2012.

[4] S.A. did not file an Answer/Plan of Care and was noted in default on May 25, 2011.

[5] The society will argue that the mother's current mental health status is not as good as stated by Dr. Werry. If this is the case, it would go a long way to explaining the mother's current unavailability for the children.

[6] This will only be important if the children are placed for adoption in separate homes.

[7] The court also notes that the court date was only set to hear the society's summary judgment motion – not to hear cross-motions.

[8] If either the mother or S.A. meets the two-part test on a prima facie basis, the society would need to present evidence that the two-part test has not been met. In this event, evidence of adoptability would likely be necessary. The older the child, the more evidence of adoptability is required. Adoption must be more than a speculative possibility. See: Children's Aid Society of Toronto v. C.J., [2014] O.J. No. 2163; Durham Children's Aid Society v. R.S., 2010 ONSC 1649; Children's Aid Society of Haldimand and Norfolk v. R.D., 2011 ONSC 4857; Catholic Children's Aid Society of Toronto v. S.B., [2013] O.J. No. 6117.