WARNING

The court hearing this matter directs that the following notice 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:

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

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

ONTARIO COURT OF JUSTICE

DATE: 2014-10-31

COURT FILE NO.: Simcoe 20/11

BETWEEN:

The Children's Aid Society of Haldimand and Norfolk, Applicant

— AND —

J.H.M. and C.D.W., Respondents

Before: Justice K.A. Sherwood

Heard on: February 26, 2014

Reasons for Judgment released on: October 31, 2014

Counsel

Maureen Bulbrook — counsel for the applicant society

Cornelius Brennan — counsel for the respondent J.H.M.

No appearance by or on behalf of the respondent C.D.W., even though served with notice

Robert Wasserman — counsel for the Office of the Children's Lawyer, legal representative for the children C.W. and J.W.

SHERWOOD J.:

Introduction and Background

[1] J.H.M. and C.D.W. are the biological parents of the children C.M.S.W., born […], 2011 and J.A.L.W., born […], 2012.

[2] The Children's Aid Society of Haldimand and Norfolk (the Society) had commenced a separate protection application under the Child and Family Services Act (CFSA) with respect to each of the children, and by summary judgment motion brought under Rule 16 of the Family Law Rules in each of the proceedings is requesting that the court make identification and protection findings with respect to the children and that both children be made Crown wards without access for the purpose of adoption.

[3] The respondent parents have not disputed the Society's information regarding the identification of the children and accordingly the section 47(2) identification findings are made as follows:

Re: C.M.S.W.

(a) The child's name and age: "C.M.S.W." born […], 2011;

(b) The child is of the Free Methodist religious faith;

(d) The biological parents of the child are "J.H.M." and "C.D.W.";

(e) The child was apprehended on […], 2011 at the Norfolk General Hospital, 365 West Street, Simcoe, Ontario.

Re: J.A.L.W.

(a) The child's name and age: "J.A.L.W." born […], 2012;

(b) The child is of the Free Methodist religious faith;

(d) The biological parents of the child are "J.H.M." and "C.D.W.";

(e) The child was apprehended on […], 2012 at the Norfolk General Hospital, 365 West Street, Simcoe, Ontario.

Procedural History

[4] On […], 2011, the day following his birth, the child C.M.S.W. was apprehended by the Society. The Society commenced a protection application seeking a finding that the child was in need of protection under section 37 (2) (b) [risk of physical harm] and an order that the child be made a ward of the Society for a period of six months with access by the respondent parents to be at the discretion of the Society as to location, duration, frequency and supervision. The Society's stated concerns included drug use by the respondent mother throughout her pregnancy, her mental health issues, the respondent father's developmental delays, and the unsafe condition of the respondents' home.

[5] The respondent parents jointly filed an Answer and Plan of Care, in which they deny the allegations of the Society, and seek a dismissal of the Society's application and the return of C.M.S.W. to their care. In support of their Answer, the respondents submit that the mother's use of marijuana was reduced substantially during her pregnancy, that she maintained regular visits with her family physician, took the appropriate prenatal courses, and that the condition of their home had improved substantially and is a safe environment for C.M.S.W.

[6] A temporary without prejudice order made February 9, 2011 by Justice G.B. Edward placed the child C.M.S.W. in the temporary care of the Society with access by the respondent parents to be at the discretion of the Society as to location, duration, frequency and supervision. On the consent of the parties that without prejudice order was confirmed as a temporary order by this court on July 4, 2011. The July 4, 2011 order included a list of terms and conditions that the parents were to comply with prior to the court considering placing the child into the parents' care as follows:

a. The parents shall demonstrate that they can maintain the home in a clean and safe manner.

b. J.H.M. and C.D.W. shall demonstrate that they can abstain from drugs not legally prescribed for them.

c. J.H.M. shall attend and participate in counselling for her mental health needs, and follow through with any treatment recommendation.

d. The parents shall participate in an addiction assessment.

e. The parents shall obtain a requisition for drug testing through their family doctor and shall participate in weekly drug tests or hair testing (if requested), as deemed necessary by the Society.

f. Parents shall attend access on a regular and consistent basis.

g. Parents shall not attend access under the influence of drugs that are not legally prescribed to them and shall not use non-medically prescribed drugs 24 hours prior to access with the child.

h. The parents shall sign consents to release information for service providers involved with them, as requested by the Society.

i. J.H.M. shall obtain a referral for psychological assessment through her family doctor.

j. The parents shall follow through with services reasonably recommended by the Society.

k. The parents shall complete a parenting program.

[7] The child C.M.S.W. has remained in the temporary care of the Society since he was apprehended and since August 15, 2012 C.M.S.W. has been placed by the Society in the same kin placement home. The kin caregivers have expressed an intention to adopt C.M.S.W. if possible.

[8] On November 10, 2011 the Society amended its protection application to change the relief sought to Crown wardship with no access, noting as additional concerns that the respondent parents had not followed through with services requested of them, and that during access they require continual direction from the access supervisor on how to care for the child. On February 27, 2012 the respondent parents amended their Answer and Plan of Care to deny the further concerns stated by the Society.

[9] On February 29, 2012 this protection application was added to the ready list for the trial sittings in July 2012. When not reached in those sittings it was adjourned to sittings in October 2012, April 2013 and then July 2013. In the spring of 2013 the respondent parents separated, necessitating that the lawyer who had been acting for both of them, be removed as their counsel of record, and at the request of the respondent mother the proceedings were adjourned to trial sittings scheduled for October 2013. At the request of counsel it was removed from those sittings and rescheduled to sittings in January 2014.

[10] The Society commenced its summary judgment motion in September 2013. On September 30, 2013 the motion was adjourned to December 9, 2013 for hearing, so that the respondent mother could complete her retainer of new counsel. On October 30, 2013 the respondent mother, J.H.M., on her own behalf, filed a further Answer and Plan of Care with respect to both children, advising that she had separated from C.D.W. in April 2013, is now residing with a new spouse, J.L.M., and proposing that both children be returned to her care under either a supervision order for 6 to 12 months, or a section 57.1 custody order, to reside with her and J.L.M. The mother then changed counsel again, and at her request the hearing of the summary judgment motion was adjourned to January 22, 2014. On January 22, 2014 her new counsel sought and obtained a further adjournment so that he could prepare and serve further responding materials.

[11] On […], 2012, the day following his birth, the child J.A.L.W. was apprehended by the Society. The Society commenced a protection application seeking a finding that J.A.L.W. is a child in need of protection pursuant to subsection 37(2)(b)(i) [risk of physical harm] and requesting that the child be made a ward of the CAS of Haldimand & Norfolk for a period of six months with access by the respondent parents to be at the discretion of the Society as to location, duration, frequency and supervision. In its stated concerns, the Society repeated the concerns that it had at the time that C.M.S.W. was apprehended, and although it acknowledged that the parents had participated in drug testing, attended N.A. meetings, sought assistance from their Pastor, had participated in services through the Norfolk Pregnancy Care Centre and had both been very cooperative during scheduled and unscheduled visits, it continued to have concerns regarding the parents' ability to maintain the safety and cleanliness of the home, financial issues, the mother's ability to cope, and the parents' overall capacity to parent the child.

[12] The respondent parents jointly filed an Answer and Plan of Care, in which they denied the allegations of the Society, and sought placement of the child J.A.L.W. in their care subject to supervision by the Society for a period of twelve months with appropriate conditions. In support of their Answer, the respondents submitted that they had done everything the Society had wanted them to do, including accessing recommended services, and have been working with the Society to address its concerns.

[13] Pursuant to a temporary without prejudice order made on June 20, 2012 by Justice L.P. Thibideau, the child J.A.L.W. was placed in the temporary care of the Society with access by the respondent parents to be at the discretion of the Society as to location, duration, frequency and supervision. Following a temporary care and custody hearing that without prejudice order was confirmed as a temporary order by Justice L.P. Thibideau on November 21, 2012.

[14] The child J.A.L.W. has remained in the care of the Society since he was apprehended, and since September 14, 2012 has been placed along with his older brother C.M.S.W. in the same kin placement home. The kin caregivers have expressed an intention to adopt J.A.L.W. if possible.

[15] As the parties and the issues in the respective protection applications are identical Justice L.P. Thibideau, on November 21, 2012, with the consent of the parties, directed that this application be tried together with the application concerning the child C.M.S.W. which was then already on the trial ready list for sittings scheduled in January 2013. As noted above these matters were then further adjourned from time to time to subsequent trial sittings.

[16] In September 2013 the Society commenced its summary judgment motion concerning J.A.L.W. to proceed in conjunction with the motion concerning C.M.S.W.

[17] On December 2, 2013 the Society amended its protection application to change the relief sought with respect to the child J.A.L.W. to Crown wardship with no access, noting as additional concerns that the respondent parents had separated in March 2013, had missed a significant amount of access with the children since March 2013, that the respondent mother has a new partner, acknowledges continued use of marijuana, refuses to permit the Society worker into her home, has failed to attend recommended services, has not alleviated the Society's concerns, and that the child J.A.L.W. has significant needs and has been referred to a specialist.

[18] The respondent father, C.D.W., despite being served with the further Answer and Plan of Care filed by J.H.M. and the Society's amended protection application has not filed an Answer and Plan of Care on his own behalf. The respondent C.D.W. last appeared in court on this matter on June 12, 2013. He has not been represented by counsel, filed any materials, or appeared since then. Affidavit material filed by the Society confirms that he has not had any access with the children since March 2013. On January 22, 2014 the respondent C.D.W. was noted in default for having abandoned the proceedings, his pleadings were struck and his consent to any further order was dispensed with.

[19] The two summary judgment motions were heard in a combined hearing on February 26, 2014.

Positions of the Parties

Children's Aid Society of Haldimand and Norfolk

[20] The Society asserts that the lengthy history of protection concerns regarding the parents, their acknowledged use of marijuana during the mother's pregnancy with C.M.S.W., their inability to consistently maintain their home in a clean, safe and suitable condition, the mother's mental health issues, the father's cognitive and developmental delays, and the parents' need for supervision and direction during access, combined with the special needs of each of the children, place the children at risk of physical harm if in the care of either of the parents. The Society submits that the parents' consent to the July 4, 2011 temporary order acknowledges these concerns. While the Society acknowledges that the parents were apparently able to abstain from non-prescription drugs for a period of nearly one year, by the fall of 2012 they were no longer complying with Society requests for drug testing, by the spring of 2013 J.H.M was in a relationship with J.L.M. who has a criminal record for drug related offences and is a regular user of marijuana, and in May 2013 J.H.M. admitted to the Society worker that she is using marijuana daily. Further while the parents were able to demonstrate that on occasion they could clean and organize the home, they were unable to maintain the satisfactory condition of the home on a consistent and sustained basis, or to address safety issues in the home in a timely manner. Since J.H.M. obtained an apartment with J.L.M. on August 1st, 2013, the Society has been unable to assess and verify the conditions of the home as J.H.M. has refused to allow the Society worker into the residence. The Society argues that while the mother did participate in a mental health assessment in November 2011, she has not followed through with counselling that was recommended by the Society to deal with stress and her historical mental health issues. While the parents did participate in some parenting programs, and have been able to demonstrate during access visits that they can interact with the children in a loving manner, they often require direction as to basic parenting tasks such as feeding and supervision of the children and have not been consistent in attending scheduled access visits or in staying for the whole of the visits that they do attend. The Society submits that the respondent father has withdrawn from the proceedings and the children's lives as of April 2013 and is not putting forth any plan to be involved in the lives of the children in the future. The Society further submits that the respondent mother has not been co-operative with the Society or in working with others such as the kin caregivers or recommended services to ensure that she has a greater role in the lives of her children. It is the Society's position that rather than having demonstrated progress in dealing with the protection concerns, the mother's ability to do so has actually declined since the parents separated in April 2013. The Society points out that the children have now been in a stable kin placement where all of their needs are being met since September 2012 and that the kin caregivers are prepared to ensure permanency for the children through adopting them. As the children have been in care for all of their young lives, over 3 years for C.M.S.W. and over 2 years now for J.A.L.W., the need for a permanent plan and placement for the children is paramount and accordingly there should be an order for Crown wardship without access in order to facilitate their adoption by the kin caregivers.

[21] The Society submits that there is no genuine issue requiring a trial and seeks summary judgment for a finding that both children are in need of protection under s. 37(2)(b) and for an order of Crown Wardship, no access, for the purposes of adoption.

Office of the Children's Lawyer Counsel

[22] OCL counsel for the children is unable to obtain verbal instructions due to the age of the children and accordingly is advocating a position based on the best interests of the children. He submits that these are troubled children with behavioural issues; that the respondent mother has not demonstrated an ability to protect the children nor the necessary skills to parent and deal with the children's serious issues; she has not demonstrated an ability to provide and maintain a stable home for the children; and she has not put forward a viable plan to provide for the children's basic needs let alone their special needs. OCL counsel accepts that the mother loves her children but submits that this alone is not enough of a reason to place the children in her care or to allow her continued access with the children if that would impede their adoption. He submits that the children have developed a bond with their current kin caregivers who have demonstrated their commitment to take care of them despite the children's issues, and are prepared to adopt the children.

[23] In these circumstances, and as section 70 of the CFSA limits the available options to either placing the children now in the care of the mother, with or without a supervision order, or making them Crown wards, with or without access, he argues that there is no triable issue and that as the outcome of Crown wardship is a foregone conclusion, the court ought to grant summary judgment for the relief sought by the Society.

Respondent Mother J.H.M.

[24] The respondent mother J.H.M. opposes summary judgment and seeks a trial on the issues, based on her plan to have the children placed in her care. Her counsel argues that there are a number of issues requiring a trial: First there are facts in dispute such as what occurred at a family camping outing in May 2013 resulting in a number of allegations made by the kin caregivers to the Society, which allegations are disputed by the mother; secondly, he submits that credibility would be an issue at trial in that despite the evidence of the Society workers, J.H.M. claims that for the last three years she has been stable, has not suffered from her previous mental health issues, and that she is able to provide a stable, safe and appropriate residence for her children; and thirdly he submits that there are triable issues with respect to whether the Society has fulfilled its obligation to try and reintegrate the children to their mother's care and with respect to the progress and improvements that the mother has made in the last three years in addressing the protection concerns that were present when C.M.S.W. was born. Counsel for the mother further argues that even if an order for Crown wardship is made that there would be a triable issue as to her continued access given that her home is only a ten minute walk from the prospective adoption home and that as she and the prospective adoptive parents are related there would likely be at least incidental contact between her and the children.

Respondent Father C.D.W.

[25] As noted above, the respondent father C.D.W. withdrew from the children's lives when he and J.H.M. separated in April 2013. He has not put forward any plan for the care of the children and was noted in default as he has not participated further in these proceedings. In April 2013 C.D.W. advised the Society that he was prepared to sign adoption papers for his two sons.

The Evidence

[26] In support of its summary judgment motion the Society relies upon its Plan of Care, filed, and the following affidavit material:

Affidavit of Karen Kamenar, sworn February 8, 2011
Affidavit of Carrie Lavigne, sworn February 8, 2011
Affidavit of Karen Kamenar, sworn June 29, 2011
Affidavit of Candace Thompson, sworn June 19, 2012
Affidavit of Sarah Milmine, sworn August 17, 2012
Affidavit of Islay Silverthorne, sworn November 15, 2012
Affidavit of Islay Silverthorne, sworn June 27, 2013
Affidavit of Sarah Milmine, sworn August 16, 2013
Affidavit of T.S., sworn September 9, 2013
Affidavit of Sarah Milmine, sworn November 15, 2013
Affidavit of Islay Silverthorne, sworn December 19, 2013
Affidavit of Karen Mater, sworn March 25, 2013
Affidavit of Kim Burns, sworn December 20, 2013

[27] Karen Kamenar is a child protection worker with the Society and as the family services worker was present at the apprehension of the child C.M.S.W. and worked with this family from then until November 2011. In her evidence she outlines information about C.M.S.W. relevant to section 47 (2) identification findings, summarizes the parents' respective histories with the Society, describes events surrounding the apprehension of C.M.S.W., provides particulars of the Society's concerns during the period of her involvement, describes the efforts made by the Society and others to address and remedy those concerns and outlines the Society's initial Plan of Care.

[28] Carrie Lavigne is a child protection worker with the Society and was assigned in January 2011 to assess the paternal grandparents D.W. and M.W. as a potential kin service home for the child C.M.S.W. In her evidence she sets out the steps taken in completing the kin assessment, summarizes her review of the family's child welfare history, and explains the decision not to approve the paternal grandparents as a potential kin service home because of concerns relating to patterns of instability in their relationship, alcohol concerns regarding D.W. and that D.W. has demonstrated mental instability.

[29] Candace Thompson is a child protection worker with the Society. She assumed carriage of this file from Karen Kamenar in November 2011, and as the family services worker was involved in the apprehension of the child J.A.L.W. on […], 2012 and continued to work with this family until September 2012. In her evidence she provides relevant information regarding the section 47(2) identification of the child J.A.L.W. born […], 2012, repeats the summary of the parents' respective histories with the Society, particularizes the Society's concerns including the condition of the respondents' home, their ability to manage their finances, the mother's mental health, their progress in addressing the prior concern relating to their use of marijuana, and their cognitive and parenting capacity. She sets out the access arrangements and describes efforts that had been made by the Society and others to address the noted concerns. Attached as exhibits to Ms. Thompson's affidavit are photographs of the parents' home taken on December 7, 2011, December 16, 2011, January 10, 2012, and March 28, 2012 depicting the general condition of the residence on those respective dates. She also appends to her affidavit, a Comprehensive Psychiatric Assessment of J.H.M. by Community Addiction & Mental Health (CAMH) Services dated November 23, 2011, historical excerpts from the Norfolk General Hospital records of J.H.M. dealing with previous mental health admissions, letters from CAMH confirming the respondent parents accessing of services and copies of the parents' certificates from Norfolk Pregnancy Centre for completing sessions in the Partners in Parenting program between January and November 2011.

[30] Sarah Milmine is a child protection worker with the Society and was assigned in June 2012 to be the children's services worker for the children C.M.S.W. and J.A.L.W. In her evidence she describes the process of the Society transitioning the boys to the home of their great aunt T.O. and her spouse L.S. [T.O. is hereinafter referred to as T.S., as her and L.S. married subsequent to the children being placed in their care], the schedule for the parents' access, concerns noted during access visits, concerns noted regarding safety hazards and other deficiencies in the condition of the home, and describes services and assistance provided to the parents to help them in addressing the ongoing issues related to the conditions of the home, addictions, mental health, and parenting capacity. Ms. Milmine outlines particular concerns regarding C.M.S.W.'s behavioural issues and apparent developmental delays and the efforts, referrals and programs that were accessed to address those concerns. She also describes concerns regarding J.A.L.W.'s development and referrals that have been made to address the same. Ms. Milmine does fairly state that J.H.M. appears to love and care a great deal for her sons, and during visits shares lots of hugs, kisses and gentle words for both of them. She confirms that the respondent father C.D.W. has not seen or had any contact with his children since February, 2013. She relates a few incidents demonstrating an apparent rift in the relationship between the respondent mother and her aunt, the kin care provider for the children. Ms. Milmine relates her observations as to the children's adjustment into the kin caregiver home, the ability of those relatives to meet the special needs of the children, and of their commitment to adopt the children.

[31] Islay Silverthorne is a child protection worker with the Society. She took over from Candace Thompson in September 2012 as the family service worker. In her evidence Ms. Silverthorne describes her observations as to the condition of the parents' home when she would attend for visits, her observations of the parent's ability to parent the children during access, and the Society's ongoing protection concerns. She describes efforts and referrals made to address the Society's concerns and the level of the parent's cooperation in complying with and following through on such recommendations. She describes conflicts in the relationship between the respondent mother and the kin care providers which culminated in a decision on September 18, 2012 to place visits that had been occurring at the kin care home on hold and has impacted negatively on the mother's access. She provides information regarding the J.H.M.'s acknowledged relapse to daily marijuana usage, and the parents' inconsistency in attending for access with the children, their inability to manage their finances so as to be able to provide for the children. Ms. Silverthorne sets out the dates on which J.H.M. has missed or cancelled access visits during the period from April 2011 through March 2013, confirms that the parents' access was put on hold at the request of J.H.M. on March 15, 2013, and that between January 2013 and November 28, 2013 J.H.M. has missed or cancelled a total of 29 access visits. She states that since the respondent mother J.H.M. moved into an apartment on August 1, 2013 that she has not allowed Ms. Silverthorne access to that residence. Ms. Silverthorne summarizes the Society's history with J.H.M.'s new partner J.L.M. and the Society's concerns regarding his turbulent history, mental health, acknowledged daily marijuana use, and criminal history. She summarizes the Society's history with B.F., the children's maternal step-grandfather, and explains the Society's decision in 2012 not to approve the maternal grandparents V.F. and B.F. as appropriate to provide care for their grandson C.M.S.W. due to their significant child welfare history, criminal history and a lack of an existing relationship with the child.

[32] Karen Mater is an access facilitator employed by the Society and in that capacity has been working with the family since March 15, 2011 and has supervised the majority of the access visits that have occurred between the children and their parents J.H.M. and C.D.W. In her evidence Ms. Mater chronicles concerns that she had noted during the parents' access visits and relating to their parenting capacity, and her observations as to the conditions of the home. Ms. Mater also notes some positive aspects of the parents' access. She lists the access visits that were cancelled by J.H.M. and C.W. from May 17, 2011 through March 14, 2013 and confirms that on March 15, 2013 J.H.M. and C.D.W. put their access visits on hold as they were moving to a different residence.

[33] Kim Burns is a child protection worker with the Society and in November 2013 took over from Sarah Milmine as the children's services worker. In her evidence Ms. Burns provides information about C.M.S.W.'s diagnosed developmental delays and behavioural issues and the referrals and services that that have been recommended and accessed to deal with those issues. She also confirms that there are concerns noted by a pediatrician regarding J.A.L.W.'s development and provides information regarding the further referrals and services that have been recommended and accessed to deal with those issues. Ms. Burns confirms that the Society's current plan is to obtain Crown Wardship without access for the purposes of facilitating an adoption of the boys by their current kin caregivers.

[34] The Society's current Plan of Care is to seek an order that each of the children be made a ward of the Crown and be placed in the care of the Society with no access by the respondent parents. The Society intends to provide placement to meet the children's needs and ensure their well-being, and to facilitate long term permanency planning for the children through adoption by their current kin care providers.

[35] The respondent mother J.H.M. has filed the following evidence:

Affidavit of J.H.M., sworn October 22, 2013
Affidavit of J.L.M., sworn October 22, 2013
Affidavit of V.F., sworn September 26, 2013
Affidavit of J.H.M. and C.D.W. sworn April 26, 2011
Affidavit of J.H.M. and C.D.W. sworn August 20, 2012

At the hearing of the motion counsel for the respondent mother sought leave to file a further affidavit sworn by J.H.M. on February 25, 2014, which for reasons provided at that time was denied.

[36] In the joint affidavit of the respondent parents sworn April 26, 2011 C.D.W. denies aspects of his history with the Society related to him demonstrating sexualized behaviour, and both parents deny any inability on their part to parent due to their drug use, the condition of their home, C.D.W.'s developmental delays, or J.H.M's mental health. The parents speak to the efforts that they have made to address the Society's concerns, stating that J.H.M. has stopped using marijuana absolutely, that there was a significant improvement in the condition of their residence by February 2011, that they have attended prenatal classes at the Norfolk Pregnancy Centre and that J.H.M. is in constant contact with her family doctor and seeks his guidance with respect to any mental health issues. They indicate that they are prepared to undergo regular drug testing, sign consents for the release of information by service providers, obtain a referral for a psychological assessment if ordered by the court, follow through with services reasonably recommended by the Society and work with the Society pursuant to a voluntary care agreement.

[37] In the joint affidavit of the respondent parents sworn August 20, 2012 they deny much of the description given by the Society workers about the conditions of their home, state that the conditions of the home were never hazardous, that they are able to appropriately manage their finances and maintain the home in a clean and safe condition, that there is always enough food in the home, that the allegations regarding J.H.M.'s mental health are dated and that she has been able to resolve those issues and is no longer engaging in self-harming behaviours, and that they are capable of appropriately parenting their children.

[38] In her affidavit sworn October 22, 2013 J.H.M.: describes the residence in which she is now residing with her new spouse J.L.M.; explains her reasons for asking the Society to put her access on hold around March 2013; explains why she has not followed through on recommendations from the Society to continue meeting with Ruth Shelley at the Norfolk Pregnancy Centre or attending at the Ontario Early Years Centre for sign language classes; states that she would be prepared to submit to further drug testing but that the Society has not requested that she do so; gives her explanation of events that were alleged to have occurred at an extended family camping outing on the May 2013 long weekend; states that her and J.L.M. moved in together at her mother's home on July 1, 2013 and then into their own apartment on August 1, 2013; denies that she is having any ongoing contact with C.D.W.; discloses the current household income for herself and J.L.M.; and sets out her plan of care for the children.

[39] J.L.M. is the current partner of the respondent mother J.H.M. In his affidavit sworn October 22, 2013 he provides information about his background, his history of caring for the children of former partners when residing with them, his criminal history and his current regular use of marijuana. J.L.M. confirms that he is willing to cooperate with the Society if the children are placed into the care of J.H.M.

[40] V.F. is the mother of J.H.M., and maternal grandmother of the two children. In her affidavit sworn September 26, 2013 she provides information about her background, her marriage to B.F., her criminal history, and her history with the CAS of Haldimand & Norfolk. V.F. comments on events alleged to have occurred at the extended family's camping outing on the May 2013 long weekend, speaks of the conflict between the family and the current kin care providers, confirms that she is in favour of having her grandsons placed in the care of J.H.M., and indicates the support that she would be able to provide for that placement.

[41] The Respondent mother's plan for the children as expressed in her affidavit sworn October 22, 2013 is for them to reside with her and her partner J.L.M. in their current residence. She indicates that she will keep T.S. and L.S. (current kin care providers) involved in the boy's lives so as not to detach them abruptly from their care and that she will continue with the same family doctor for the children. Her plan is to remain at home and look after the boys full time while J.L.M. will support the family through either Employment Insurance benefits, or if they are no longer available through other benefits that he is applying for, employment, or if need be through social assistance benefits. She says that she will continue the speech therapy classes for C.M.S.W.; continue any existing consultations with pediatricians and follow their advice; obtain support in the form of advice, financial help and child care as needed from her mother V.F. and/or her father S.M.; and that she would be willing to work with the Society under a voluntary services agreement, or a supervision order, to address safety concerns. In the alternative to having the children placed in her care J.H.M. is seeking periods of access with the children including full days and overnights without supervision.

The Law

Rule 16

[42] In a child protection case a party may, under Rule 16 of the Family Law Rules, bring a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence submitted in the case. The party making the motion shall serve affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. In response to the evidence served by the party making the motion the responding party may not rest on mere allegations or denials but shall set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order. If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. If the court does not make a final order, or makes an order for a trial of an issue, the court may also specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial, and impose conditions, if appropriate.

Case Law

[43] There are many reported decisions addressing the criteria to be considered and the test to be applied by the court in determining a motion for summary judgment in a child protection proceeding. With respect to these proceedings, and borrowing upon summaries compiled and stated by Justice W.L. MacPherson in The Children's Aid Society of the Niagara Region v. L.B. and J.S., 2014 ONSC 1151 (Ont. S.C.J.) at paras. [56] to [62], and by Justice S.B. Sherr in Society of Catholic Children's Aid Society of Toronto v. A.M., 2007 ONCJ 743, [2007] O.J. No. 4651 (Ont. C.J.) at paras. [6] to [13], I would summarize the relevant case law as follows:

[44] In all cases the court must give priority to the paramount purpose of the Child and Family Services Act as set out in section 1 to promote the best interests, protection and well-being of children. Another purpose, so long as it is consistent with the best interests, protection and well-being of the child, is to recognize that the least disruptive course of action that is available and is appropriate in the particular case to help the child should be considered. A further purpose, again so long as it is consistent with the paramount purpose of the Act, is to recognize that children's services should be provided in a manner that provides early assessment, planning and decision making to achieve permanent plans for children. See The Children's Aid Society of the Niagara Region v. L.B. and J.S., supra, at para. [62].

[45] Accordingly the question of whether there is a genuine issue for trial must be determined in the context of the overarching principles in section 1 of the Act's primary purpose which is to "promote the best interests, protection and well-being of children" and this must be done considering the narrow time lines constraining the available dispositions imposed on the court by sections 57 and 70 of the CFSA. See Children's Aid Society of the Regional Municipality of Waterloo v. V.L., [2006] O.J. No. 3785 (Ont. S.C.J.) per Hambly J., at para. [48].

[46] On a motion for summary judgment the burden is on the moving party, in this case the Society, to show that there is no genuine issue for trial. See Children's Aid Society of Halton Region v. K.L.A., [2006] O.J. No. 3958 (Ont. C.A.) per Rosenberg J.A., at para [19].

[47] A party moving for summary judgment must disclose its full case to the court. A party answering a motion for summary judgment must put their "best foot forward" in responding to the case for the moving party and when faced with a prima facie case for summary judgment, they must provide evidence of "specific facts showing that there is a genuine issue for trial" [R. 16 (4.1)]. Mere allegations or blanket denials contained in self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial are insufficient to defeat a claim for summary judgment. See Children's Aid Society of the Regional Municipality of Waterloo v. V.L., supra, per Hambly J. at para. [48]; and Children's Aid Society of Toronto v. K.T., [2000] O.J. No. 4736 (Ont. C.J.) per Jones J., at para. [10].

[48] On a motion for summary judgment: (a) a full and complete evidentiary record is required; (b) only admissible evidence may be tendered; and (c) the motions judge is entitled to assume the record contains all evidence the parties will present if there is a trial. Hearsay evidence is to be avoided as evidence on a motion for summary judgment must be restricted to "admissible" evidence given the nature of the proceeding and the relief sought. As such the admissibility of hearsay evidence must be supported by evidence of necessity and reliability, failing which it must be excluded. Simply put, "if evidence is not admissible at trial, it is not admissible on a motion for summary judgment." See Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (Ont. S.C.J.) per Gordon J. at paragraphs [28] to [30].

[49] In considering a motion for summary judgment, the court must review the entire evidence to determine whether there is a basis in that evidence for the order sought and then 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. See Children's Aid Society of the Regional Municipality of Waterloo v. R.S., [2000] O.J. No. 4880 (O.C.J.) per Hardman J., at paras. [22] and [23].

[50] On a summary judgment motion the judge is not to assess credibility, weigh the evidence or draw inferences or conclusions of fact from conflicting affidavits. This is reserved for the trier of fact. The limited task of the motion judge is to determine whether there exists a genuine issue as to material facts that require a trial. See Children's Aid Society of Hamilton v. M.N., supra, per Gordon J., at para. [26]; and Kallaba v. Bylykbashi, [2006] O.J. No. 545 (Ont. C.A.) per Cronk and Juriansz JJ.A., at para. [56].

[51] The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material to the determination of the trial. A disputed fact, the existence or non-existence of which will not affect the outcome of the trial, does not raise a genuine issue requiring a trial. See Children's Aid Society of Toronto v. K.T., supra, per Jones J., at para. [12].

[52] "No genuine issue for trial" has been equated with:

"no chance of success" and "plain and obvious that the action cannot succeed". See Prete v. Attorney General for Ontario, (1993), 16 O.R. (3d) 161, leave to appeal to S.C.C. refused (1994) 17 O.R. (3d) xvi; and Children's Aid Society of Oxford County v. J.J., [2003] O.J. No. 2208 (Ont. S.C.J.) per Haney J., at para. [8];
"the outcome is a foregone conclusion". See Catholic Children's Aid Society of Metropolitan Toronto v. L.O., [1996] O.J. No. 3018 (Ont. Gen. Div.) per Chapnik J., at para. [80]; and See Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442 (Ont. S.C.J. – Unified Court) per Czutrin J. at paragraph [54].
"there is no realistic possibility of an outcome other than that as sought by the applicant." See Children's Aid Society of the County of Simcoe v. C.S., [2001] O.J. No. 4915 (Ont. S.C.J.) per R. MacKinnon J., at para. [5]; and Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (Ont. S.C.J.) per Pazaratz J., at para. [43].

[53] In a child protection proceeding the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that he or she faces some better prospects than what existed at the time of the Society's removal of the child from their care and that they have developed some new ability as a parent. See Children's Aid Society of London and Middlesex v. L.A., [1999] O.J. No. 5839 (Ont. Gen. Div.) per Vogelsang J., at para. [14]; and Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J., at para. [18].

[54] In determining whether a genuine issue exists, the court must consider the strict timelines governing the child protection procedure under the Child and Family Services Act and also the best interests of the child. The court, in arriving at its decision, must give paramount consideration to the best interests test which would include, among other factors, as certain a future as possible. See Children's Aid Society of Algoma v. L.P., [2002] O.J. No. 2895 (Ont. S.C.J.) per Del Frate J., at para. [20]; and Children's Aid Society of the Niagara Region v. S.C., supra, per Pazaratz J., at para. [41].

[55] 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. See Children's Aid Society of Ottawa v. M.C., [2003] O.J. No. 6307 (Ont. S.C.J.) per Linhares De Sousa J., at para. [18]; and Children's Aid Society of Hamilton v. M.W., [2003] O.J. No. 220 (Ont. S.C.J.) per Fedak J., at para. [50].

[56] Although "fairness must not be sacrificed to expediency", the court must consider the strict timelines in the Act and the underlying philosophy of the legislation to support permanency planning as soon as possible. The focus in all protection proceedings must be on the child rather than on the parents. It is not in the best interests of the child to delay permanent placement decisions while the parties conduct at trial, if the inevitable result is obvious to all. See Children and Family Services for York Region v. S.S., [2003] O.J. No. 2284 (Ont. S.C.J.) per Wildman J., at paragraph [33].

[57] 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. The legal process should not be used to "buy" a parent time to develop the ability to parent. See Children's Aid Society of Toronto v. R.H., supra, per Katarynych J., at para. [15].

[58] 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 the child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. See Children's Aid Society of Toronto v. R.H., supra, per Katarynych J., at para. [16].

[59] The Child and Family Services Act is a child welfare statute and not a parent's rights statute. Young children who have been in care all of their short lives should not be kept in limbo. Such children would benefit most from permanency planning so that they can attain the stability and develop roots necessary to their healthy physical and emotional development. See Children's Aid Society of Hamilton v. S.H., [2005] O.J. No. 5114 (Ont. S.C.J.) per Milanetti J., at paragraph [19].

[60] 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 of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child's future. See R.A. v. Jewish Family and Child Services, [2001] O.J. No. 47 (Ont. S.C.J.) per Lane J., at para. [20].

Statutory Pathway on a Protection Application

[61] Pursuant to s. 40 (1) of the Act a Society may apply to the court for an order that a child is in need of protection. Section 47 of the Act directs that where such an application has been brought, the court shall hold a hearing to determine the issue of whether the child is in need of protection, and if the child is found to be in need of protection, make a dispositional order under section 57 or section 57.1, in the best interests of the child. The criteria upon which to assess whether the child is in need of protection are set out in section 37(2). The orders that may be made under section 57 are limited to: (1) placement of the child 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 twelve months; (2) that the child be made a ward of the Society and placed in its care and custody for a specified period not exceeding twelve months; (3) that the child be made a ward of the Crown and be placed in the care of the Society; or (4) that the child be made a ward of the Society for a specified period of time and then be returned to a parent or another person for a period or periods not exceeding an aggregate of twelve months. Under section 57.1 the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. Section 37(3) sets out the circumstances to be taken into account in determining the best interests of a child. In determining which order to make the court shall ask the parties what efforts the Society or another agency or person has made to assist the child before intervention under Part III of the Act [see section 57(2)], and the court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention unless the court is satisfied that alternatives that are less disruptive to the child, would be inadequate to protect the child [see section 57(3)]. Where the court determines that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention, the court shall, before making an order for Society or Crown wardship, consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family [see section 57(4)]. Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under Part III of the Act [see section 57(9)]. Section 58 of the Act provides that the court may, in the child's best interests, make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate. Section 59 directs that where an order is made under section 57(1) removing a child from the person who had charge of the child immediately before intervention for either placement of the child with another person, or that the child be made a ward of the Society; or an order is made under s. 57.1 removing a child from a person who had charge of the child immediately before intervention, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child's best interests.

[62] Subsection 70(1) of the Act provides that the court shall not make an order for society wardship that results in the child being a society ward for a period exceeding twelve months if the child is under the age of six years. Subsection 70(4) allows for only a six month extension of this time period if it is in the best interests of the child to do so. In this case, where both of the children have been in care for much more than the prescribed time period, the alternatives under section 57 are restricted to either returning the children to the care of their mother, with or without a supervision order, or to making them wards of the Crown.

[63] If a children is made Crown ward, subsection 59(2.1) prevents the court from making an access order unless the court is satisfied that the relationship between the person to have access and the child is beneficial and meaningful to the child; and the ordered access will not impair the child's future opportunities for adoption (emphasis added). Subsection 59(2.1) creates a presumption against access, shifting the onus to the parent to show that an access order would be meaningful and beneficial to the children and that it would not impair the children's future opportunities for adoption. This rebuttable presumption is conjunctive and accordingly the parent must rebut both elements. If the parent cannot discharge that burden then the court must not make an access order.

[64] Accordingly, a protection application involves four stages, as follows:

The court is required to determine whether the child is in need of protection within the meaning of s. 37(2) of the Act.
If a protection finding is made, the court must determine if further intervention through a court order is necessary to protect the child in the future.
The court must then make a determination regarding the placement of the child.
Finally, the court must decide the issue of access either to or by the child.

See Catholic Children's Aid Society of Hamilton v. M.A., [2012] No. 223, 2012 ONSC 267 (Ont. S.C.J.) per Chappel J., at paragraph [12].

[65] The Society is requesting a finding that the children are in need of protection within the meaning of section 37(2) (b) of the Act, which provides as follows:

s. 37(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.

[66] The risk of harm referred to under s. 37(2) (b) means a risk that is likely and real, rather than a speculative risk. It is not necessary however that the Society prove intention on the part of the parent or caregiver to harm the child, or that the conduct that causes the risk is directed specifically towards the child. See Catholic Children's Aid Society of Hamilton v. M.A., supra, per Chappel J., at para. [13].

[67] The Society is seeking the protection finding on the grounds that the respondent mother's: ongoing drug use; inability to maintain the home in a clean, safe and hygienic state; unaddressed mental health issues; inability to maintain stability in her lifestyle or residence; failure to engage in support services for the children; failure to follow through with referred support services for her own issues; limited parenting skills and abilities; inconsistency in attending access; and her unwillingness to work co-operatively with the Society or other service providers; in conjunction with the children's special needs, places the children at risk of harm.

Burden and Standard of Proof

[68] In child protection proceedings under the CFSA the burden of proof is on a balance of probabilities and the onus is upon the Society to prove that the child is in need of protection. Where the relief sought by the Society is Crown wardship this is probably the most profound order that a court can make and accordingly a judge in considering such an application must proceed with a high degree of caution, and act only on the basis of compelling evidence, and only after a careful consideration of possible alternative remedies. See Children's Aid Society of Hamilton v. M.A.M., [2003] O.J. No. 1274 (Ont. S.C.J.) per Stayshyn J., at para. [12];

Issues

[69] To succeed in obtaining the order that it is requesting the onus is upon the Society to establish that there is no genuine issue requiring a trial with respect to the following determinations:

The children C.M.S.W. and J.A.L.W. are children in need of protection within the meaning of s. 37(2) (b) of the CFSA.
Intervention through a court order is necessary to protect them in the future.
An order that the children be made Wards of the Crown is the option available under section 57 or section 57.1 of the Act that is in the children's best interests, and is the order that is the least disruptive to the children yet adequate to protect them.
The order should provide that there be no access between the parents and the children.

[70] If the Society can make this prima facie case, then the Respondents must through their evidence set out specific facts showing that there is a genuine issue for trial. If the court is satisfied that there is a genuine issue or issues requiring a trial then it must direct a trial on those issues. If the court is satisfied on all of the evidence that there is a basis for the relief sought by the Society and that there is no genuine issue requiring a trial then it must grant summary judgment for the relief requested.

Analysis

(a) Mother's Ongoing Drug Use

[71] The Society's concerns regarding the mother's use of marijuana began while she was pregnant with C.M.S.W. and continued in the months leading up to that child's birth, when despite having been warned by her doctor and the Society worker of the risks in using marijuana during pregnancy she tested positive for marijuana in four separate drug tests over four months of the pregnancy. At birth C.M.S.W.'s meconium tested positive for marijuana. Pursuant to the affidavits of Karen Kamenar and Karen Mater there were two occasions [Feb 23, 2011 and May 3, 2011] when the parents showed up for access smelling of marijuana and appearing to be under the influence.

[72] Candace Thompson's affidavit sworn June 19, 2012 indicates that at that time the parents, as verified through drug testing, had been substance free for nearly a year, and that they were accessing support through Narcotics Anonymous (NA) and their NA sponsor. She advises that C.D.W. was meeting with and addictions counsellor and J.H.M. had completed a drug program "The Foundations Group" through Community Addictions and Mental Health (CAMH). Ms. Silverthorne however, states that in September 2012 when she asked the parents if they were still attending NA they advised her that they had only attended once that month and had not had recent contact with their sponsor. Ms. Silverthorne asked then for another drug test to be completed. Despite repeating this request twice more in October, the requested drug test results have never been provided. By the spring of 2013 J.H.M. had left C.D.W. and was living with her new partner J.L.M. in a motel. When Ms. Silverthorne met with J.H.M. and J.L.M. on May 9, 2013 J.L.M. admitted to having addictions issues, and smoking marijuana daily and at night to help him relax. J.H.M. acknowledged to Ms. Silverthorne that she was also using marijuana daily, but stated that she would never consume drugs while in a caregiving role. Given the acknowledged marijuana use, the Society ceased requesting drug testing, which was not being provided in any event. Ms. Silverthorne says that in a meeting on October 28, 2013, J.H.M. stated that she had been using marijuana daily until recently when she increased her use to 3 to 4 times per day in order to manage her stress. When Ms. Silverthorne suggested that she try counselling, J.H.M. replied that it is better that she do drugs than cut herself and that counselling had not helped her in the past.

[73] In response to the Society's evidence the respondent mother in her affidavit sworn April 26, 2011stated that while she had reduced her use of marijuana during her pregnancy she had since quit the use of marijuana absolutely and was willing to undergo regular hair follicle or urine analysis drug testing. Specifically she stated that she "has stopped using marijuana absolutely" and that she "realizes that it is not in the child's best interests to continue the use of any non-prescription medication." In her subsequent affidavit sworn August 30, 2012 she acknowledges that there was a difficulty with her using marijuana occasionally during her pregnancy with C.M.S.W. and she regrets doing so, but that she did not consume marijuana during her pregnancy with J.A.L.W. In her affidavit sworn October 22, 2013, J.H.M. states that she did drug testing until March 2013 and thought that had satisfied the Society. She states that she has always been willing to do drug test screening and as of that date still was. This is in contrast to Ms. Silverthorne's evidence in her affidavit sworn November 15, 2012 that she requested further drug testing on at least three occasions in September and October of 2012 and had never received those results. At paragraph 12 of her October 22, 2013 Affidavit, J.H.M. states: "It is true that I told Islay Silverthorne that I smoke marijuana. Usually I smoke one joint a night, before bed, but I would not use drugs while in a caregiving role, only after the children are asleep for the night. I have not found that marijuana use affects my ability to function from day to day. I do not think it would make a difference to how well I care for C.M.S.W. and J.A.L.W., but I would give it up if ordered to by the court." The mother's current partner J.L.M. in his affidavit sworn October 22, 2013 states; "I have been convicted of possession of marijuana (after my last assault charge) and cultivating marijuana (back when I lived with Tammy). The possession and cultivation were just for personal use and not for trafficking. I have not been involved with trafficking at all. I still use marijuana regularly, but in moderation – I do not have a habit that has stopped me from being able to work or to care for children in my past relationships. I am not using marijuana for fun, it helps me with my pain. I do not have a medical prescription."

[74] On July 4, 2011 J.H.M. and C.D.W. consented to a temporary order, continuing the placement of C.M.S.W. in the care of the Society with access to the respondent parents. That consent order included a provision that prior to the Court considering a placement of the child into the parents' care, the parents shall comply with a number of terms and conditions, including: "… (b) Jennifer McLeod and Christopher Wall to demonstrate that they can abstain from drugs not legally prescribed for her/him; … (d) The parents to participate in an addiction assessment; (e) The parents to obtain a requisition for drug testing through their family doctor and participate in weekly drug test or hair testing (if requested), as deemed necessary by the Society; and (g) Parents shall not attend access under the influence of drugs that are not legal prescribed to them and shall not use non-medically prescribed drugs 24 hours prior to access with the child". This is the temporary order that still governs the placement of and access to C.M.S.W. The current order governing the placement of and access to J.A.L.W. is the temporary order dated November 21, 2012 which confirmed the without prejudice order of June 20, 2012 placing J.A.L.W. in the temporary care of the Society with access to the respondent parents. That Order does not contain any further terms and conditions.

[75] It is clear from her consenting to the terms of the July 4, 2011 temporary order, and her statements made in her affidavits sworn April 26, 2011 and August 30, 2012 that J.H.M. recognized that marijuana use was not in her children's best interests and that if she wanted to have the children returned to her care she needed to discontinue this drug use. To that end she completed the Foundations Group drug program through CAMH, was attending NA with C.D.W., had the support of her sponsor in that program, was submitting to regular drug testing and for a period of nearly a year had not tested positive for marijuana. Unfortunately J.H.M. did not maintain this abstinence. It appears that by the fall of 2012 she was no longer complying with requested drug testing, in the spring of 2013 she entered into a new common law relationship with J.L.M, an individual with a criminal record for drug possession and cultivation, and who is an admitted regular user of marijuana, and by the fall of 2013 she was acknowledging to the Society worker that she is using marijuana daily. J.H.M.'s statement that she "would not use drugs in a caregiving role, only after the children are asleep for the night" is problematic in that she does seem to appreciate that if the children are residing with her she is still in a caregiving role even after they go to sleep. On the evidence before me, I am unable to determine whether or not J.H.M.'s use of marijuana while caring for her children would significantly impact her parenting capacity, but it does raise concerns about her ability to prioritize the children's needs above her own. She clearly appreciated that this was a concern of some significance to the Society and the Court and that it might impact on the eventual return of the children to her care, however after apparently being able to abstain from marijuana use for a period of at least nearly a year, she enters a new relationship with someone who uses marijuana regularly and herself begins using on a daily basis. It is stated in their evidence that J.H.M. and J.L.M. are together subsisting on only his Employment Insurance benefits of some $590 every two weeks, and that when those benefits run out they may have to rely on Ontario Works, Ontario Disability or some other social assistance, yet they do not address how they can support their daily marijuana habit and still be able to meet the material needs of themselves and these two children.

(b) Conditions of the Home

[76] The mother's ability to consistently maintain her residence in a clean, uncluttered, safe and sanitary condition has been a long standing concern of the Society from the time of its initial involvement before C.M.S.W. was born. The affidavit of Karen Kamenar sworn February 8, 2011 describes the conditions of the home as hazardous, noting that over the four months prior to C.M.S.W.'s birth there was a strong unpleasant odour of cat urine throughout the home, cigarette butts laying on the living room carpet, cat feces imbedded in the carpet upstairs where the bedrooms are, cat feces all over the floor of the room that was to be the baby's room, the upstairs hallway was full of clothes and clutter with only a narrow space to walk through, the kitchen floors were very dirty and appeared not to have been washed in several months, and the bathroom was very dirty with dirt and scum covering the bathroom sink. The Society workers continued to monitor the home conditions and regularly asked the parents to clean and maintain the home in an acceptable condition. In her affidavit sworn June 29, 2011 Ms. Kamenar acknowledges that by March 30, 2011 the conditions in the home had improved in that the clutter had been removed, the kitchen and bathroom appeared clean, the floors were cleaner than before and the offensive odor had improved. However, when Ms. Kamenar attended for an unannounced visit on May 12, 2011 she found the condition of the home to be "marginal" although it still appeared to be cleaner than in the month prior to C.M.S.W.'s birth.

[77] The consent temporary order dated July 4, 2011 included a provision that prior to the Court considering a placement of the child C.M.S.W. into the parents' care that the parents "shall demonstrate that they can maintain the home in a clean and safe manner."

[78] Candace Thompson in her affidavit sworn June 19, 2012 noted the condition of the home as a significant ongoing concern for the Society in that the parents although they have demonstrated that they have the ability to clean the home for scheduled visits and access, shortly after such attendances the conditions again become hazardous which is evident when the worker attends for unscheduled visits. Ms. Thompson notes that during her involvement (Nov 2011 to Jun 2012) the home consistently smelled of cat urine. When she asked the parents why they were unable to maintain the home in a proper condition they responded that they are too busy. To assist the family with the condition of the home a referral was made in January 2012 for a Protection Support Worker, who then worked with J.H.M. and C.D.W. for several weeks on organizing and de-cluttering the home.

[79] Sarah Milmine in her affidavit sworn August 17, 2012 similarly notes that although the parents had made some improvements regarding the condition of the home there were still ongoing concerns about the smell of cat urine, general cleanliness and safety issues such as a broken and hanging stove handle, that despite requests by the Society worker had remained unrepaired for several months, and clutter in the living room within reach of the children and over which the children could trip.

[80] Islay Silverthorne in her affidavit sworn November 14, 2012 notes that from when she became involved as the family service worker in September 2012 there was still a strong odour of cat urine the home and that the cat had just had a litter of kittens which were being kept in a cardboard box on the living room floor with nothing under it to prevent the animals urine and feces from penetrating into the carpet. During a visit at the home on October 12, 2012 Ms. Silverthorne noticed cat feces on the living room floor which she brought to the parents' attention but neither of them did anything to clean it up, until, just before the children were arriving for access, she insisted that they do so. On October 29, 2012 Ms. Silverthorne noted a number of unresolved issues including the broken stove handle, no fire alarm on the top level of the home, the need to clean out the child's room of boxes and clutter and cover the electrical outlets, install a baby gate at the stairs, clean out the clutter in the parents' bedroom, install child proof door handles in the kitchen and bathroom, and advised the parents that the Society would not be proceeding with a planned increase in access, including periods of unsupervised access with unannounced drop-ins, until these concerns were satisfactorily addressed.

[81] Karen Mater, the primary supervisor of the parents' access, in her Affidavit sworn March 25, 2013 at paragraphs [29] to [56] is more graphic in her description of the conditions of the home during some twenty of her regular attendances at the home between April 33, 2012 and February 21, 2013, noting throughout the strong odour of cat urine, cat feces and urine on the floor and carpeting, lack of a baby gate, dirty floors, safety hazards such as a fan without a cover plate, clutter which could pose a tripping hazard for C.M.S.W., and the broken stove handle which remained unfixed until November 2012, all of which culminated in a decision on November 14, 2012 to move the access visits to J.H.M.'s mother's home until the parents could address these longstanding issues with respect to the unsafe and unsanitary conditions of the home. Ms. Mater states: "When I first began the visits at the home, the parents seemed to maintain the conditions of the home but after a couple of weeks I would have to remind constantly the parents to de-clutter the home."

[82] As noted by Ms. Silverthorne in her affidavit sworn June 27, 2013 she was advised by J.H.M. on April 29, 2013 that she had ended her relationship with C.D.W. and was now engaged to J.L.M. and living with him in a motel in Simcoe. To Ms. Silverthorne's knowledge J.H.M. and J.L.M. were still living together in that motel as at June 27, 2013. Ms. Silverthorne's affidavit sworn December 19, 2013 states that since J.H.M. moved into an apartment on August 1, 2013 she has not allowed Ms. Silverthorne access to that residence.

[83] The respondent mother in her affidavit sworn April 26, 2011 makes the bald denial of any inability to parent due to the condition of the home and without providing any particulars states that the condition of the home had improved dramatically as of the date that C.M.S.W. was apprehended and that "a representative of the Applicant came on two prior occasions and gave our residence a thumbs up sign of approval." While acknowledging that there were "some difficulties in the condition of the residence prior to […], 2011" she states that the residence has been cleaned up considerably and on March 25, 2011 Ms. Kamenar told them that she was pleased with the condition of their residence. J.H.M. goes on to state that all of the concerns about the condition of the residence have been eliminated except that they cannot modify the steepness of the stairs, and that the residence is clean and safe. In her affidavit sworn August 20, 2012 J.H.M. states that the condition of the home was never hazardous and whenever a concern was expressed they immediately cleaned the residence thoroughly. While acknowledging that there were times when the residence was cluttered with papers, ashtrays, books and bags she states that the residence was then (as at August 20, 2012) always clean and that the Society workers have not complained about the condition of the home for some time. She goes on to state that the house never smelled of cat urine as the cat was outside most of the time, the litter box was not full and it was cleaned regularly, and that if C.M.S.W. was returned to them "the residence would always be spotless". In the subsequent affidavit of J.H.M. sworn October 22, 2013 she does not address further any of the Society's concerns about the condition of the residence before her and C.D.W. terminated their relationship in April 2013, other than that in March 2013 they asked that their access visits be put on hold as they were moving out of that residence and the packing had turned into a huge job for them. The only information that J.H.M. provides about the apartment that she moved into with her new partner J.L.M. on August 1, 2013 is that there are two bedrooms, a kitchen, bathroom and living room in the apartment and that there is enough room for her, J.M. and her boys to live there together. In his affidavit sworn October 22, 2013 J.L.M. provides no information about the conditions of that apartment.

[84] As noted above the consent temporary order dated July 4, 2011 provides that prior to the court considering placing the child C.M.S.W. in the care of the parents, the parents are to demonstrate that they can maintain the home in a clean and safe manner. Without access to J.M.'s current residence the Society cannot assess the current conditions or suitability of the residence.

[85] In her evidence J.H.M. provides very little in the way of particulars about the condition of the residence other than to make the bald allegations that she has no inability to parent due to the condition of the home, the condition of the home had improved dramatically from prior to C.M.S.W.'s birth, that all of the concerns about the condition of the home have been eliminated, the residence, as of August 20, 2012 is always clean, and that if her son C.M.S.W. were returned to her and C.D.W. the residence would "always be spotless". Her denials with respect to the concerns raised by the Society workers about the condition of the home are without particulars and are in stark contrast to the evidence of the workers, Ms. Kamenar, Ms. Thompson, Ms. Milmine and Ms. Silverthorne. J.H.M. does not address Ms. Silverthorne's evidence that since August 1, 2013 J.M. has not allowed Ms. Silverthorne access to her premises. The respondent mother's bald denials of the Society's evidence regarding the unsatisfactory and unsafe conditions of the home for a prolonged and continuing period of time, without specific facts and particulars are not sufficient to supplant that evidence or to raise a triable issue. Further by denying the Society worker access to her current residence where she plans to have the children reside with her if they are returned to her care she has not resolved this significant concern.

(c) Mother's Mental Health

[86] The Society's concerns regarding the respondent mother's mental health, as expressed in the history of the Society's involvement as set out in the evidence of Ms. Kamenar and essentially repeated in the evidence of Ms. Thompson. That history is their recital from having reviewed that agency's files and cannot be accepted for the truth of its contents for the purposes of this motion. As part of the narrative however it describes going back as far as when J.M. was 12 years old and showing signs of depression, through instances during her teenage years when she began cutting herself, and when she was hospitalized twice under the Mental Health Act. The Society's initial plan as set out in Ms. Kamenar's evidence included an expectation that J.H.M. obtain a referral through her family doctor for a psychological assessment and address her mental health issues by following any recommendations made. Ms. Thompson in her affidavit sworn June 19, 2012 confirms that a mental health assessment of J.H.M. completed by Linda Ward of Community Addictions and Mental Health (CAMH) on January 19, 2012 concludes that J.H.M. "is not exhibiting symptoms of mental illness at this time" and accordingly no treatment was offered to her. The Society subsequently obtained hospital records confirming the Mental Health Act hospital admissions in 2005 and 2008, the first involving abnormal and suicidal behaviour at school following a sexual assault upon her, and the second involving self-cutting and suicidal ideation following a break-up with a boyfriend. The Society's ongoing concern in this regard is that the stress of caring for her children could trigger the mother's depression and self-harming behaviour. As noted above, on May 28, 2013 when J.H.M. acknowledged to Ms. Silverthorne that she was using marijuana on a daily basis and had recently increased her use to 3 to 4 times per day to manage her stress and Ms. Silverthorne suggested counselling to her, she responded that is was better that she do drugs than cut herself and that counselling did not help her in the past.

[87] In her affidavit sworn April 26, 2011 J.H.M. denies any inability to parent due to her mental health. She says that she did not have any mental health issues, including depression or self-mutilation after she became pregnant with C.M.S.W. and that she has not had any anger or aggression issues for at least one year. She acknowledges that she did attempt suicide on September 1, 2010 but states that she sought psychiatric counselling and she was not prescribed any medication for depression. She does not provide any further particulars about that incident, about when and with whom or the efforts that she made to seek psychiatric counselling, or whether she actually received such counselling. She goes on to state that the Society's concerns are unwarranted and that she is in constant contact with Dr. Tschirhart and seeks his guidance regarding any mental health issues. She says that she is prepared to obtain a referral for a psychological assessment if ordered by the court but that she does not feel it is necessary at this time. In her affidavit sworn August 20, 2012 she reiterates that she was not depressed at the time that C.M.S.W. was born. She acknowledges the Mental Health Act admissions described in Ms. Thompson's evidence but says that any issue with self-harming is dated, she has matured, is no longer engaged in any abnormal behaviour or cutting, and has taken appropriate counselling. Again she does not provide any details of the counselling that she is referring to. In her affidavit sworn October 22, 2013 J.H.M. does not address the issue of her mental health.

[88] The evidence is inclusive as to what, if any, mental health issues J.H.M. may presently have, or what impact, if any, they may have on her ability to parent her children.

(d) Instability of Lifestyle/Residence – Finances

[89] From the evidence of the Society workers and J.H.M it is established that from the Society's initial involvement, some months before C.M.S.W was born, until sometime in March 2013 the parents J.H.M. and C.D.W. resided together in the same residence. After their break-up in or about March 2013 J.H.M. lived with her new partner J.L.M. in a motel at least from the start of May 2013 until July 1, 2013 when she and J.L.M. moved in with her mother and step-father, and then on August 1, 2013 moved into their own apartment next door to her mother's, and have continued to reside together there.

[90] Ms. Silverthorne states that when she met with J.L.M. on May 9/13 he acknowledged having some mental health issues, namely depression, but advised her that since he and J.H.M. began dating just over four months ago he has taken himself off of his medication as he feels that he no longer requires it. On May 10, 2013 Ms. Silverthorne sent a letter to J.L.M.'s doctor requesting information regarding his mental health, addictions and other issues relevant to him parenting 2 children, but as per her December 19, 2013 affidavit she has never received a reply. Neither J.L.M. nor J.H.M. in their subsequent affidavits mention or in any way address Ms. Silverthorne's comments about J.H.L.'s mental health.

[91] Very shortly after breaking up with C.D.W., J.H.M. who was just 21 years old at the time, was in a new relationship with J.L.M. who was 40 years old, and was reporting to Ms. Silverthorne that she and J.L.M. were engaged and residing together. In his affidavit sworn Oct 22, 2013 J.L.M. provides some particulars about his past including: that he was at that time unemployed and for health reasons may not be returning to employment, that he has been involved in at least three prior relationships of some significance: the first being when he was about 16 years old and lived together with a lady, J.W. and her child from a previous relationship and that during that relationship he was charged with assaulting J.W.; the second being a twelve year relationship with T.Y., including about 1 ½ years of marriage, and in which he resided with T.Y. and her two children – J.L.M. and T.Y. were never divorced; and the third being a relationship with a B.J.O. in which they resided together for some eight to ten years and from which they separated only two to three years ago. He acknowledges as well that he had a second assault charge in 2004 but that the complainant was a different girlfriend who he did not live with.

[92] In her evidence Candace Thompson sets out concerns regarding financial issues that J.H.M. and C.D.W. were experiencing in the late winter and early spring of 2012 including an apparent debt of $500 owing to the "Cash Store" for funds borrowed in December 2011, that their cable, phone and internet had all been disconnected because they were $500 in arrears, and that they were approximately $1,000 in arrears to Bell. At times this was impacting on the parent's ability to provide snacks for the access visits.

[93] In her affidavit sworn August 20, 2012 J.H.M. states that her and C.D.W. manage their money successfully, they have been paying all of their bills and are providing gifts for C.M.S.W. She advises that if the children are returned to their care their social benefits income will increase slightly. She says that all appropriate bills are always paid before they buy extra items. She acknowledges that they had borrowed $500 from the Cash Store but states that has been paid back and that they have paid all of the outstanding bills with Bell, and that their internet, cable and phone service are in good standing. She states that they are able to manage their money and meet the needs of their children.

[94] When Ms. Silverthorne met with J.H.M. and J.L.M. at their motel room on May 9, 2013 they advised her that their plan was to apply for Ontario Works for J.H.M. and that J.L.M. hoped to be back to work soon, and that in the interim they were paying for the motel room with the last of J.L.M.'s Employment Insurance and Salvation Army emergency housing funds. On May 27, 2013 J.H.M. advised Ms. Silverthorne that they had to be out of the motel by June 1, 2013 and that they had no place else to go, but that she was not worried because she had an appointment at Ontario Works later that day. On June 10, 2013, J.H.M. advised Ms. Silverthorne that she and J.L.M. were then receiving Ontario Works.

[95] J.H.M.'s mother V.F. states in her affidavit sworn September 26, 2013 that she would support J.H.M. when she cares for the children by providing babysitting, financial and moral support.

[96] In her affidavit sworn October 22, 2013 J.H.M. says that although she and J.L.M. had advised Ms. Silverthorne in June 2013 that they were going on Ontario Works, J.L.M. qualified for Employment Insurance benefits which started up shortly after that conversation, and that their current income for the household was only J.L.M.'s Employment Insurance of $590 every two weeks. J.H.M. confirmed that she does not have any income of her own. In his affidavit sworn October 22, 2013 J.L.M. states that in the past he has usually been seasonally employed in farming, then goes on Employment Insurance in the winter months, but that he was finding farm work to be too hard on his body so midway through the last season he decided to retire from farm work and is currently unemployed.

[97] The Society's evidence raises a concern about the respondent mother's ability to meet the financial needs of the children and to provide a stable and secure residence and family constellation for her children if they are returned to her care. J.H.M. has, immediately upon separating from the children's father, entered into a new common law relationship with someone nearly twice her age, who has an acknowledged and documented criminal history including convictions for domestic assaults, drug possession and drug cultivation offences, who has been in at least three prior committed relationships that have broken down, who is an acknowledged regular user of marijuana, who may have some untreated mental health issues of his own and who has at best sporadic employment and income. J.H.M. does not have any independent income source of her own. The mother in putting her best case forward does not provide specific facts to address the probability that her new relationship with J.L.M. will not succeed long term and that without any source of income she will face significant challenges in providing for even the basic needs of her children, and in shielding them from further turmoil in the family situation.

(e) Lack of Cooperation in Working With the Society / Lack of Engagement in Recommended Support Services

[98] In her affidavit sworn February 8, 2011 Karen Kamenar states that J.H.M. did not comply with the requests and warnings of the Society workers and of her own doctor to discontinue her marijuana use during her pregnancy with C.M.S.W. The Society's Plan of Care following the birth of C.M.S.W. as set out in Ms. Kamenar's evidence included the Society's expectation that J.H.M. would maintain a clean and safe home, abstain from marijuana use, address her mental health issues, participate in an addiction assessment, submit to drug testing, sign consents for the release of information from service providers, obtain from her family doctor a referral for a psychological assessment and follow through with services reasonably recommended by the Society. As such, from as early as February 2011 J.H.M. was well aware of the Society's expectations. In her subsequent affidavit sworn June 29, 2011 Ms. Kamenar confirms that on February 17, 2011 the parents said that they were no longer using drugs but had not yet done drug testing, however on February 23, 2011 it was reported that they showed up for a scheduled access visit under the influence of marijuana. On March 30, 2011 the parents reported that they had cut back on their marijuana use but were still using marijuana on weekends, however on May 3, 2011 it was reported that Society workers could smell marijuana on the parents at an access visit. On May 12, 2011 J.H.M. advised that they were continuing to cut back on their marijuana use and were now only smoking one-half of a joint on weekends and had not yet done drug testing nor sought any addictions treatment but were looking into it. On June 28, 2011 the parents reported that they had finally done a drug test at their doctor's office on June 16, 2011.

[99] Ms. Kamenar states that by March 30, 2011 J.H.M. had not obtained a mental health assessment and stated that she does not feel that she needs any counselling. By May 12, 2011 the parents advised that they had begun taking parenting classes at the Norfolk Pregnancy Centre. As of June 29, 2011 J.H.M. had still not obtained a referral for a mental health assessment, began any addictions treatment program, nor engaged in any counselling.

[100] Candace Thompson in her evidence confirms that in April 2012 the parents began to work with their Pastor to assist them in budgeting so that they could better manage their finances. She states that on January 19, 2012 J.H.M. had completed a mental health assessment with CAMH, had been substance free for nearly a year, had participated in drug testing with all results reporting negative, that with respect to addictions, she had recently completed the Foundations Group through CAMH, and that the parents were attending weekly parenting classes at the Norfolk Pregnancy Centre. Ms. Thompson comments that to assist the family with the conditions of the home that a referral was made for a Protection Support Worker, Jackie Treszl, who worked with the parents for several weeks on organizing and decluttering the home and it was reported that the parents were very receptive to Ms. Treszl's suggestions and had made good progress in getting the home organized.

[101] Sarah Milmine in her affidavit sworn August 17, 2012 confirms that despite the work that had been done to assist the parents with maintaining suitable conditions in the home, the concerns about unfixed safety issues such as the broken stove handle, general cleanliness and clutter, and strong odour of cat urine in the home, despite regular reminders by the Society, continued to persist through the summer of 2012, despite the many parenting classes that the parents had attended over the past several months there were persisting concerns with respect to their ability to recognize and act upon cues of the children with respect to their feeding and that they required on-going direction with respect to feedings and supervision of the children during access visits.

[102] Islay Silverthorne in her evidence confirms that drug testing she requested on September 19, 2012, October 12, 2012 and again on October 29, 2012 had not been complied with by November 15, 2012. She also confirms that despite the work of Ms. Treszl in the fall of 2011 there were persisting issues with the condition of the home, including the strong odor of cat urine, cat feces and urine on the floor, clutter and safety hazards. Ms. Silverthorne states that throughout the fall of 2012, and despite the parenting classes that the parents had attended, there were persisting issues with their ability to recognize the cues of the children. With respect to the ongoing concerns related to the parents marijuana use, it was apparent that their attending NA was waning and that they had not been in recent contact with their NA sponsor. The importance that the Society was attaching to these concerns and how it was impeding the parent's progress towards having the children placed in their care was underlined by the advice of Ms. Silverthorne to the parents on October 29, 2012 that the Society was not prepared to increase access or relax the supervision of visits until these concerns were addressed, and by the decision made in early November 2012 to discontinue visits at the parent's home because of the unsanitary and unsafe conditions of that residence. Ms. Silverthorne's affidavit sworn June 27, 2013 confirms that on April 29. 2013 J.H.M. advised that she was not attending at the Norfolk Pregnancy Centre and has not been completing the drug testing as requested. On May 9, 2013 J.H.M., when advised by Ms. Silverthorne that she should be attending at the Pregnancy Center said that she would start attending again. Despite Ms. Silverthorne having suggested to J.H.M. on April 29, 2013 that she needed to contact Legal Aid and ODSP to advise that she no longer residing with C.D.W., she had not yet done so. Ms. Silverthorne also advised on May 9, 2012 that J.M. should contact the Ontario Early Years Centre to register for the infant sign language class as C.M.S.W. is learning sign language to help with his communication skills, however by June 29, 2013 J.H.M. had not yet done so, indicating that she was busy and did not have the time to do so. On May 9, 2013 Ms. Silverthorne provided J.H.M.'s new partner, J.L.M. with a police check form to verify his criminal record, and on June 10, 2013 reminded Ms. J.H.M. how important it was that this be completed, the police check had still not been completed by June 27, 2013.

[103] In her affidavit sworn August 16, 2013, Sarah Milmine confirms that the Society had invited J.H.M. to attend speech classes with the kin caregiver and offered to provide J.H.M. with transportation to those classes, however she only attended one or two of the sessions and then did not attend any further, reporting that she was ill, was in hospital, or she had forgotten about the appointments. Ms. Milmine's affidavit sworn November 15, 2013 reaffirms that J.H.M. was invited to attend the speech therapy sessions in order to give her a better understanding of the children's needs and to provide her with an opportunity to provide consistent care for the children's unique needs.

[104] As noted previously the evidence of Ms. Silverthorne is that since J.H.M. and her new partner J.L.M. moved into their apartment on August 1, 2013 she has not been allowed to that residence. Ms. Silverthorne confirms that she suggested to J.M. that she participate in the Ontario Early Years Program with the children which would result in her getting an extra visit each week with the children and that the kin caregiver T.S. would not be present for that program. Correspondence sent by Ms. Silverthorne to J.H.M. dated June 4, 2013 confirms Ms. Silverthorne's recommendation of this program to J.H.M. on May 9, 2013.

[105] In her evidence J.H.M. states that her and C.D.W. did attend weekly prenatal classes at the Norfolk Pregnancy Centre and learned information regarding parenting, although she provides no further specifics. She says that she is in constant contact with Dr. Tschirhart and seeks his guidance regarding any mental health issues. She goes on to say that she is prepared to execute the necessary consents for service providers, is prepared to obtain a referral for a psychological assessment if ordered by the court, although she does not believe it is necessary, that she is prepared to follow through with services reasonably recommended by the Society and that she would be prepared to work with the Society pursuant to a voluntary services agreement. In her affidavit sworn August 20, 2012 J.H.M. states that they are prepared to work with the Society and other service providers and goes on to state that they have completed all courses required by the Society, have sought assistance as the Society wanted, and that they are prepared to follow reasonable conditions of a supervision order. In her affidavit sworn October 22, 2012 she states that she did drug testing until March 2013 and that she has always been, and still is, willing to do drug testing. With respect to Ms. Silverthorne's recommendation that she continue to meet with Ruth Shelley at the Norfolk Pregnancy Centre she says that she is uncomfortable meeting with her on her own because Ms. Shelley had been working with her and C.D.W., but says that she would have been willing to continue with someone else there other than Ruth Shelley. She also says that that agency's services were interrupted when they moved their offices earlier that year and so she did not try to contact them for a time, but she does intend to use this service. She says that she would be willing to comply with any drug screening requested by the Society, but that it has not been requested. She acknowledges that while Ms. Silverthorne recommended that she attend the Ontario Early Years Program and register for the sign language class, she decided against doing so because the kin caregiver T.S. would be attending as well and as they do not get along, she felt it would be best to avoid any conflict in front of C.M.S.W.

[106] Since C.M.S.W. was born in […] 2011 and the Society commenced its protection application, the society's concerns have been made known to J.H.M. The parents specifically acknowledged many of those concerns in the temporary order that was made on July 4, 2011 with their consent. J.H.M.'s own evidence acknowledges that she has not always complied with the recommendations of the Society, or with terms provided for by the court in the existing temporary order: despite recommendations by both the Society and her physician that she abstain from marijuana during her pregnancy with C.M.S.W. she continued her marijuana use; when she was eventually able to abstain from marijuana and apparently remained drug free for nearly a year, she then drifted from the support services that she had been accessing through St. Leonard's, N.A. and her N.A. sponsor and relapsed to daily use of marijuana, despite the provisions of the July 4, 2011 temporary order which require her to abstain from illicit drugs; since she has moved into a new residence with J.L.M. she has not allowed the Society worker access to that residence so that they may assess and verify the conditions of that residence despite knowing that this has been a significant concern of the Society since its initial involvement and is also provided for in the July 4, 2011 order; despite the Society recommending that she engage in counselling to address and manage her historical mental health issues, she does not feel that it is necessary, declines to do so, and opts to self-medicate her stress through daily marijuana use; she acknowledges that the Society recommended that she participate in C.M.S.W.'s speech and language program, and the Ontario Early Years Program, even offering to provide her with transportation, and despite the fact that this would allow her additional time with her child and an opportunity to work with him to address his special needs, she declined to do so because it might involve interaction with the kin caregiver, with whom she does not get along. To her credit J.H.M. has followed through with some of the recommendations of the Society such as working with Ms. Treszl for several weeks in early 2012 to address the conditions of the residence, working with her pastor in the spring of 2012 to address issues with finances, attending parenting classes and workshops at the Norfolk Pregnancy Centre in the summer and fall of 201, completing the Foundations Group through Community Addictions and Mental Health in 2012 and completing a mental health assessment with CAMH in January 2012. Unfortunately for the most part, any gains made by accessing these services have not been maintained over any prolonged period of time. Overall the evidence demonstrates a lack of commitment on the part of J.H.M. to work co-operatively with the Society to address the protection concerns which have been identified, or to consistently access services that have been recommended for the benefit of herself and her children, and she has not set out in her evidence specific facts to show otherwise, or to establish that this is a genuine issue requiring a trial.

(f) Inconsistency in Attending Access

[107] The parents were noted by Ms. Kamenar to have both attended all access visits from February 10, 2011 to April 26, 2011 with the exception of the February 23, 2011 visit where she sent them home for being under the influence of marijuana. She notes that they subsequently cancelled visits on April 28, 2011 because it was windy out and they did not want C.M.S.W. travelling in that weather, May 17, 2011 because the father C.D.W. was ill, May 19, 2011 when they did not show for the volunteer driver, and June 9, 2011 because the father C.D.W. was sick. At that time there access was on Tuesdays and Thursdays from 10:00 am to 12:00 noon supervised at the Society offices.

[108] The evidence of Ms. Thompson is that as of June 2012 the parents were having supervised access with C.M.S.W. and J.A.L.W. in their home twice per week, on Tuesdays from 9:30 am to 11:30 am, and Fridays from 9:30 am to 12:30 pm, supervised by Ms. Mater.

[109] In her affidavit sworn August 17, 2012 Sarah Milmine states that while the parents' access at that time was occurring in the parent's home on Tuesdays from 9:30 am to 11:30 am and Fridays from 9:30 am to 12:30 pm, fully supervised by the Society, the Society had approved access, supervised by the kin caregivers, T.S. and L.S. on Sundays from 10:00 am to 12:00 noon for attending church, and Wednesdays from 9:00 am to 12:30 pm at the kin caregiver's home. This was in anticipation of C.M.S.W. moving to the kin caregiver home. Since J.A.L.W. was born there had been 14 visits in the family home supervised by the Society, 1 supervised visit in the community and approximately 5 visits supervised by the kin caregivers, T.S. and L.S.

[110] In her affidavit sworn November 15, 2012 Ms. Silverthorne describes how the parents had been receiving an extra visit each week at the kin caregiver home, but that in late September 2012 a decision was made to put access in the caregiver home on hold as there was conflict developing between the parents and the kin caregivers. Then in early November 2012 the supervised access visits that had been occurring in the parents' home were changed to take place at the Society offices on Mondays at 9:00 am to 11:00 am and Wednesdays from 1:00 pm to 4:00 pm until the parents had addressed the concerns regarding safety hazards and unsanitary conditions in the home. In her subsequent affidavit Ms. Silverthorne describes how following a message that she had received from C.D.W. in April 2013, that he and J.H.M. had ended their relationship and that he wanted to sign papers so that both boys could be adopted, neither parent attended for their scheduled access on April 22, 2012. Subsequently J.H.M. attended access visits at the Society by herself; however she was not providing food or supplies for the visits.

[111] Sarah Milmine in her affidavit sworn August 16, 2013 says that on March 22, 2013 Ms. Silverthorne advised her that because the Society had been unable to connect with the parents, access was being placed on hold. She confirms that after J.H.M. and C.D.W. had ended their relationship and J.H.M. was living in a motel with her new partner, J.L.M., that all access was returned to the Society offices, and that the father C.D.W. has not seen the children since March 8, 2013.

[112] Ms. Silverthorne's evidence is that prior to J.H.M. requesting on March 15, 2013 that the parents' access be put on hold, the parents cancelled visits on the following dates:

2011 May 17 & 19 Jun 9 Nov 29 Dec 11

2012 May 15 Sep 4 Oct 2 & 6 Nov 21 Dec 21

2013 Jan 4, 11 & 25 Feb 1, 4, 7, 13 & 15 Mar 1, 4, 13 & 14

According to Ms. Silverthorne, between January 2013 and November 28, 2013, J.H.M. had missed or cancelled a total of 29 access visits. Ms. Silverthorne states that because of the conflict between the parents and the kin caregiver the access visits have not been at the kin caregivers' home since September 2012.

[113] Karen Mater, the primary access supervisor, confirms the dates of the access visits cancelled between May 2011 and March 25, 2013.

[114] In her affidavit sworn October 22, 2013 J.H.M. states that in March 2013 C.D.W. and her asked Ms. Silverthorne to put their visits on hold because they were planning to move out of their residence and the packing had turned into a large job with boxes all over the place, and that they ended up missing about five visits because of that. She confirms that On July 29, 2013 her access visits were moved from the kin caregiver's to the Society offices so that she and T.S. would not have contact with one another. J.H.M. acknowledges that there were times that C.D.W. and she were late for visits or missed visits but claims that they always called to let T.S. know and in any event she is sure that they came for nearly all of their access visits.

[115] The respondent mother in her evidence does not dispute the number of visits that the Society workers, in their evidence, say were missed, and except for the five or so visits missed in or about March 2013 provides no explanation as to why visits were missed. Even with respect to the visits that were put on hold at the parents' request, J.H.M. does not provide any specific facts or explanation as to why the parents moving would have necessitated missing access visits. The Society's evidence raises a concern that the mother is unable to prioritize her children's interests ahead of her own, and she does not in her evidence set out specific facts to support that she can, or that this is a genuine issue requiring a trial to resolve.

(g) The 2013 Victoria Day Long Weekend

[116] On the 2013 Victoria Day weekend J.H.M.'s extended family, including the kin caregivers and the children C.M.S.W. and J.A.L.W. went camping for the weekend at a local campground and had booked several adjoining campsites. T.S. states that in her affidavit that over the weekend there were many opportunities for J.H.M. to have supervised contact with the boys. She says that J.H.M. spent more time off in the woods with her new boyfriend J.L.M. rather than at the campsite with her children and family. She says that when J.H.M. would come to T.S.'s campsite to see the boys and would be feeding J.A.L.W., she would feed him one spoonful and if he did not seem interested in any more food, she would get up and walk away. At one meal she walked away to have a cigarette and T.S. had to finish the feeding. T.S. describes J.H.M. being very affectionate with J.L.M., kissing and cuddling him in front of her sons, who did not know this man. She says that she was watching when C.M.S.W., who was walking with J.H.M. and J.L.M. between campsites walked away from his mother and across the road where cars were crossing and T.S.'s daughter who was watching with her ran to intervene because J.H.M. did not notice that C.M.S.W. had wandered away from her. Both Ms. Silverthorne and Ms. Milmine confirm in their evidence that T.S. advised them of these allegations.

[117] In her affidavit sworn September 26, 2013 V.F., J.H.M.'s mother, states that the allegation that J.H.M. did not feed C.W. during the camping is false. With respect to the incident of C.W. being on the road, she says that C.W. did run into the road, but that he was in T.S.'s care, not J.M.'s care when this happened. V.F. states that she was around J.H.M. a lot of the time that weekend and never saw her or J.L.M. do anything sexual or inappropriate around the children.

[118] J.H.M. in her affidavit sworn October 22, 2013 denies the allegations about the Victoria Day weekend stating that when she started feeding J.A.L.W., T.S. or her daughter would just take over, so she stayed calm and walked away to avoid any conflict in front of J.A.L.W.; that her and J.L.M. were not sexually inappropriate in front of the family; and with respect to the road incident she says that she had asked her step-father and step-sister to watch C.M.S.W. because he did not want to go with her to get J.A.L.W. from T.S.'s campsite and as she was walking towards T.S.'s campsite she looked back, saw C.M.S.W. on the road, and went back and got him off of the road. She says that there were numerous children playing on the road, which was not a paved road, but actually a campsite dirt road with a speed limit of about 10 km/hr and that the children were very visible. J.L.M. in his affidavit also denies that he and J.H.M. engaged in inappropriate sexual acts in the presence of her children. He states that he was not camping with J.H.M. and her family for the weekend, did not stay overnight at J.H.M.'s campsite and only visited at the campsite for short periods of time. He denies that he and J.H.M. went into any bushes together or used drugs at the campsite.

[119] The expressed denials by J.H.M., V.F. and J.L.M. of the allegations made by T.S. as to what happened during the extended family's camping outing over the 2013 Victoria Day weekend are in direct contrast to the evidence of T.S. Apart from helping to substantiate that there is a conflict between J.H.M. and T.S. these facts cannot be resolved on the evidence before the court without weighing the evidence, making findings of credibility and drawing inferences, all of which are not permissible on a motion for summary judgment. If this is a material issue which would affect the outcome of the proceedings then it would take a trial hearing to make findings of fact.

(h) Children's Special Needs

C.M.S.W.

[120] C.M.S.W. was born […], 2011. Candace Thompson in her affidavit sworn June 19, 2012, states that C.M.S.W.'s meconium tested positive for marijuana. C.M.S.W. was apprehended on […], 2011 and placed in the care of the Society. Following a transitional period C.M.S.W. was moved to the kin caregiver home of T.S. and L.S. on August 15, 2012, which remains his current placement. According to Ms. Silverthorne C.M.S.W. was by that time having trouble with communication and was registered by the kin caregivers in an infant sign language program provided through the Ontario Early Years Centre. In her affidavit sworn August 16, 2013, Ms. Milmine states that the kin caregivers had reported a number of concerns regarding C.M.S.W. They had advised that since arriving at their home, he had been chewing on everything and chews his hands to the point of breaking the skin and then cries, and accordingly they had asked C.M.S.W.'s family doctor for a referral to a pediatrician to address this. They had noted a delay in C.W.'s speech and obtained a referral to Haldimand-Norfolk Preschool Speech & Language program pursuant to which T.S. had begun speech classes in January 2013. An assessment by that program dated January 22, 2013 notes that C.M.S.W.'s language comprehension skills were moderately delayed and that he is moderately delayed in expressive language. On January 20, 2013 the kin caregivers reported to Ms. Milmine that C.M.S.W. was really struggling with chewing everything and would bite his brother's hand. Accordingly they had to provide a high level of supervision of C.M.S.W., especially around J.A.L.W. By the end of February 2013 they reported that C.M.S.W. had started to regularly pick his diaper apart, often eating his own feces. Ms. Milmine reports that following a thorough assessment by Dr. Norton, pediatrician, on April 3, 2013 that Dr. Norton noted concern about C.M.S.W.'s development indicating that the delays in his speech and emotional/behavioural development were likely a combination of pre-natal drug use and genetics. Dr. Norton made a number of referrals, including to the Child Development Program at REACH; Haldimand-Norfolk Speech and Language; vision testing, hearing testing and for occupational therapy through the Lansdowne Children's Center. No concerns were noted from the hearing and vision tests. The speech and language program encouraged the care-givers to use sign language to assist C.M.S.W. with his communication. Ms. Milmine advises that as at August 2013 C.M.S.W. was continuing to struggle with his language and has very few words; that he does use a few signs; that the kin caregivers were continuing to follow the guidance of his speech and language team; that he struggles with daily temper tantrums which require a high level of patience and intervention; that he continues to chew and pick excessively, at times picking his nose until it bleeds; that he pulls at his penis until it is red and raw; and that he chews on many inedible items; all of which requires a high level of supervision and redirection from his caregivers. Ms. Milmine confirms that she meets with CM.S.W. and his caregivers at least monthly, that he often presents as cheerful and engaging with both T.S. and L.S., that when he is upset or has hurt himself he seeks them out and is often observed up in their laps snuggling. To Ms. Milmine, C.M.S.W. appears well attached and stabilized in their care.

[121] The kin caregiver, T.S. confirms in her affidavit that pursuant to a referral to the Haldimand-Norfolk Preschool Speech & Language Program she began speech classes with C.M.S.W. in January 2013. She notes that they have seen a great improvement in his speech since they began using sign language with him. T.S. confirms that as a result of her concerns about C.M.S.W. chewing everything since he arrived at their home a referral was sought to a pediatrician, Dr. Norton, who saw C.M.S.W. on April 3, 2013 and concerns were noted in his speech and emotional/behavioural development. As a result, referrals were made to the Child Development Program at REACH; Haldimand-Norfolk Speech and Language; vision testing through McMaster Hospital; Occupational Therapy through Lansdowne Children's Centre; and for a further hearing test.

[122] In her evidence J.H.M. says that she has seen some of C.M.S.W.'s chewing behaviours during her visits, but not very often. With respect to his speech issues she had noticed that his speech is better, but not yet normal, and that he is doing some signing during visits. She acknowledges that C.M.S.W. sometimes has temper tantrums during her visits but that she has developed ways to handle this and states her impression that the tantrums were happening less often. She describes C.M.S.W. during her visits, as happy and that he plays well most of the time.

[123] The evidence put forth my J.H.M. does not dispute the evidence of the Society that C.M.S.W. has diagnosed developmental delays, particularly relating to his communication, speech and language comprehension, and that he has demonstrated significant behavioural issues relating to his chewing, picking, biting and tantrums. As a result of these needs C.M.S.W. has been referred to a number of assessments and services, and needs a high level of parenting supervision.

J.A.L.W.

[124] J.A.L.W. was born […], 2012. He was apprehended by the Society on […], 2012 and placed into the care of the Society. Following a transitional period he was moved to the kin caregiver home of T.S. and L.S. on September 14, 2012, where his brother J.W. had been placed approximately one month earlier. This remains J.A.L.W.'s current placement. Sarah Milmine in her affidavit sworn August 17, 2012 describes J.A.L.W. as an exceptionally good baby, who sleeps well, is a very eager and consistent eater, who fusses very little, is normally very calm and easy going, and appears to be developing normally. In her later affidavit sworn August 16, 2013 Ms. Milmine notes that the kin caregivers have followed up with all of J.A.L.W.'s medical needs, that his immunizations are all on track and that he has generally been in good health. As there were some concerns that J.A.L.W.'s head was small the family doctor made a referral to a pediatrician, Dr. MacIntyre, who saw J.W. in July 2013 and made a referral to the Child Development program through REACH. Ms. Milmine notes that for being one year old, J.A.L.W. was not showing a great deal of strength in his legs, and although he was crawling and pulling himself into a standing position he did not have a solid gait. She describes J.A.L.W. as making good eye contact, being very responsive to his caregivers, seeking them out when he is upset; that he loves to cuddle and play with both T.S. and L.S., and appears to be well attached and stabilized in their care.

[125] In her affidavit sworn October 22, 2013 J.H.M. states that during her visits, J.A.L.W. responds well to her and has always done so. It is her sense that he recognizes her and likes being cuddled and talked to by her.

[126] The evidence put forward by the respondent mother does not dispute the Society's evidence that there are concerns regarding J.A.L.W.'s development that have resulted in a referral by his pediatrician to a Child Development program.

Are the Children C.M.S.W. and J.A.L.W. in need of protection?

[127] C.M.S.W. has special needs relating to his development and significant behavioural issues. He requires special attention and dedication by his caregivers to assisting him with his speech and language. His behavioural issues, of picking, chewing and biting, and of temper tantrums, place him at risk of self-harm, or of harming his younger brother or others. J.A.L.W. may also have developmental issues which are becoming apparent. Both children require a caregiver who can advocate for services to address their issues, and who will work with service providers to implement any necessary strategies, programs or treatment to address the children's special needs. The respondent mother has not in her evidence put forth specific facts to establish that she can meet these needs of the children.

[128] The evidence of the Society establishes a prima facie case that the mother has not been able to demonstrate for any prolonged period of time that she can consistently maintain the conditions of the home in a state of reasonable cleanliness and safety. The mother's evidence provides little more than a bald assertion that she can, and does not set for the specific facts to establish that she can provide a safe living environment for the children. Her refusal to allow the Society worker access to her home so that they may assess and verify the conditions of the home does not assist her case.

[129] On the whole of the evidence there is a real, not just speculative, risk that the children are likely to suffer physical harm inflicted by the mother or caused by or resulting from her failure to adequately care for, provide for, supervise or protect the children, or from a pattern of neglect in caring for, providing for, supervising or protecting the children. Accordingly the children C.M.S.W. and J.A.L.W. are children in need of protection within the meaning of section 37(2) (b) (i) and (ii) of the CFSA.

Is Intervention Through a Court Order Necessary?

[130] Placement of these children with their father is not an option as he has abandoned the children and there is no current information about his present living arrangements or means to support and provide for even the children's basic needs such as food and shelter, let alone an ability to address their special needs related to their developmental and behavioural issues. As such the remaining options available for these children are placement with the mother, with or without a supervision order, or Crown wardship.

[131] On the whole of the evidence the mother has not demonstrated a history or a current ability and/or willingness to work cooperatively with the Society to address the protection concerns arising from her continued daily use of marijuana, cleanliness and safety of the home, or of prioritizing her children's interests in order to meet their special needs. Despite her bald assertion that she would be willing to work cooperatively with the Society under a voluntary services agreement, and that she would voluntarily maintain an ongoing role for the kin caregivers in the lives of the children, it his highly probable that she would not do so, and this would increase the risk of harm to the children. Accordingly it is necessary that there be intervention through a court order in order to protect these children in the future.

What Order of Disposition Should be Made?

[132] There is no proposal in this proceeding for a custody order under s. 57.1 to be made. Accordingly, having found that a court order is necessary, the proposals for consideration are either placing the children in the care of the respondent mother under a supervision order, or making the children wards of the Crown. The appropriate order is the one that is in the children's best interests and is the order that is the least disruptive to the children yet adequate to protect them.

[133] The Society's plan is to provide permanency for the children by facilitating their adoption together, by the kin caregivers, T.S. and L.S., with whom they have been residing for over 2 years. T.S. confirms that she and her husband love and provide for the children, ensure that all of their therapeutic and daily needs are met and are committed to the ongoing care of these children on a permanent basis.

[134] The mother's plan is for the children to be placed with her and to reside with her and her new partner J.L.M. at their current apartment, next door to her mother and step-father. The mother is open to maintaining a relationship between the children and the kin caregivers in recognition that removing the children from that home may be difficult for the children. She intends for the children to continue in the care of the current family doctor and states that she would continue the program of speech therapy classes for C.M.S.W., and continue with any existing consultations with pediatricians and follow their advice. J.H.M. plans to be a stay at home parent for the children and for J.L.M. to support the family with his Employment Insurance benefits, or if they run out or are unavailable, with other benefits he is applying for, or by returning to work. Failing that, the family would go on social assistance benefits through Ontario Works. In addition, her mother V.F. and her father S.M. will support her with advice, financial support and child care as needed. J.H.M. states that she is willing to work with the Society under a voluntary services agreement or a supervision order to address any safety concerns.

[135] The criteria for determining which of these available options are in the best interests of the children are set out in section 37(3) of the Act. The specified considerations under that section can be summarized as follows:

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

[136] C.M.S.W. has special needs relating to his delays in speech and language and is exhibiting significant behavioural issues. J.A.L.W. may have emerging developmental delays that are being investigated through referrals made by his treating pediatrician. Each of the children require a devoted caregiver who will be able to prioritize the children's needs ahead of their own and who will be able to advocate on behalf of the children and work cooperatively with service providers to ensure that the children receive the appropriate programs and treatment to address their special needs. The evidence of the Society workers and of T.S. is that the kin caregivers have demonstrated an ability to consistently meet the basic and special needs of the children. J.H.M. in her evidence has not put forward any specific facts to the contrary. When presented with an opportunity to participate in C.M.S.W.'s speech and language program or the Ontario Early Years program that was recommended by the Society, J.H.M. declined to do so, allowing her animosity with the kin caregiver to stand in the way of her involvement in addressing the special needs of her children. The children's physical, mental and emotional needs can and are being met by their current caregivers and it is in the best interests of the children that they remain in the care of T.S. and L.S. rather than be placed in the care of their mother solely on the basis of her promise that if the children are placed in her care she will change her past behaviour and attend to their special needs.

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

[137] C.M.S.W. is now 3 years and 9 months old. J.A.L.W. is now 2 years and 4 months old. Both children are still within their early stages of development and are at an age where they are totally dependent upon their caregivers to provide for their physical, mental and emotional needs. Both children would benefit from a secure, stable and long term placement within a loving and supportive family capable of providing for their emotional and material needs as they continue to grow and develop. On a balance of probabilities, the Society's plan to provide for this stability through Crown wardship and adoption by the children's current caregivers is more likely to enhance the children's growth and development than placement of the children in the care of their mother.

3. The child's cultural background

[138] There is no evidence before the court to identify any unique cultural background considerations to be taken into account, or to distinguish the competing plans on that basis.

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

[139] The children's religious faith is identified as Free Methodist. The only evidence regarding this issue is that the kin caregivers were, for a period of time, attending with the children at the parents' church on Sunday mornings to supervise access in that setting. It is unclear whether the kin caregivers are of that same faith, however neither party, in their evidence or submissions, has raised religion as an issue, and accordingly it is not a significant factor to be taken into consideration in determining which of the competing plans is in the children's best interests.

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

[140] Given the young age of the children, it is of great importance in their respective development that they have the benefit of a positive relationship with a parent and a secure place as a member of a family.

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

[141] Each of the children was apprehended on the day after their birth. They have remained in the care of the Society since then, and for over two years now have been placed together in the care of T.S. and L.S. They have now each spent most of their life in their current placement and there can be no doubt that this is their psychological home and that T.S. and L.S. are their psychological parents.

[142] The father has abandoned the children and has not played any role in their lives since March 2013. Although there has been some inconsistency from time to time in the mother's attendance for access she has been a regular figure in their lives, seeing them generally twice per week for supervised access visits. The children recognize their mother and during her visits there is a demonstration of a bond with the mother through the exchange of hugs, kisses and other signs of affection. In all probability however the children have a closer relationship and emotional tie with T.S. and L.S. than they do with their mother.

[143] As the father has not played any role in their lives since March 2013, the children's remaining connection with extended family is through either their mother or their kin caregivers. There is no evidence before the court regarding the kin caregiver L.S.'s extended family or the children's connection to them. T.S. is the mother's aunt, and great aunt to the children, as such she shares the respondent mother's extended family. Accordingly under either of the plans for the children they are likely to maintain the same extended family connections as they now have, although if placed with their mother, their continued connection to T.S. and L.S. will be dependent on the mother's ability to set aside her current conflict with those individuals. If made Crown wards and adopted by T.S. and L.S. their continued connection with their mother, will be dependent upon the wishes of T.S. and L.S. and also to some extent on the mother's ability to set aside her conflict with her aunt and uncle.

[144] C.M.S.W. and J.A.L.W have been placed together since September 2012. A benefit of either of the proposed plans is that these siblings will continue to reside together and further develop their sibling bonds.

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

[145] The children have been in a consistent and supportive placement with T.S. and L.S. for over two years now and the undisputed evidence is that during this period their physical, emotional and special needs have been met. Given their young age and their respective special needs it is important that they continue to benefit from supportive parenting and the continuation of the programs, services and treatment that they have been receiving. Although there has been no evidence presented with respect to any anticipated effect on each of the children of a disruption in the continuity of their care it is accepted that any change in the children's placement will have an impact upon them. If the children are made Crown wards and adopted by T.S. and L.S. there will be no disruption in the continuity of the status quo that has developed since September 2012, other than a curtailment of the children's access with their mother, although the kin caregivers may, in their discretion, decide to allow some continued contact between the children and J.H.M. If the children are placed in the care of their mother, there will be a significant disruption in the continuity of their care as they are removed from the home in which they have been placed for over two years, and integrated into the care of their mother, with whom they have never resided and introduced to her new partner J.L.M. with whom they have had only marginal contact. In all probability the continuity of the children's care will be negatively affected if the children were to now be placed in their mother's care.

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

[146] The Society's plan of Crown wardship and to facilitate an adoption of the children by their current kin caregivers is a realistically achievable plan for providing a stable long term placement of the children within a family where the children's needs may continue to be met and they can develop to their potential. The mother's plan to have the children placed in her care would require a leap of faith that she can make the changes necessary to allow her to prioritize the children's interests ahead of her own, work more cooperatively with the Society in facilitating their supervision of the placement and in accessing recommended services, provide a stable and appropriate residence for the children, and be able to meet their material needs on an ongoing basis. In comparing the merits of the plans presented, the Society's plan is, in the best interests of the children, preferable.

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

[147] Given the young age of C.M.S.W. and J.A.L.W. their views and wishes cannot be reasonably ascertained.

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

[148] The children are both very young and yet in the formative stages of their development. They have each been in the temporary care of the Society for all of their young lives. In order to provide for as much certainty as possible in their future it is important that these proceedings be decided on a final basis so that they may secure the bond and attachment with their permanent caregivers without the apprehension of a need for future changes in their placement.

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

[149] The children have been in the care of T.S. and L.S. for over two years and based on the evidence of the Society, which is not contradicted by the mother's evidence, the children are attached and closely bonded to these caregivers. Removing the children from their current placement will cause a significant loss to the children, disrupt their current stability and overall have a detrimental effect on their well-being.

[150] The children have had regular contact with their mother throughout their young lives. They recognize their mother and have formed a bond with her as demonstrated by the affection that is exchanged during the access visits. If the children are made Crown wards and are adopted by the kin caregivers there is a very real risk that the children's connection with their mother will be jeopardized unless the adoptive parents exercise their discretion to allow the mother to have continued contact with the children. This may have some negative effect on the children, however it is not likely to be anywhere as detrimental as removing them from their current home and caregivers.

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

[151] The degree of risk that justified the finding that the children are in need of protection is significant and, as it remains a significant risk, this speaks against the option of placing the children in their mother's care.

13. Any other relevant circumstance

[152] The children, and in particular C.M.S.W., present with special needs that might diminish their prospects of being adopted together. The Society's plan to facilitate a feasible adoption of the children together into the home of a close family member is an opportunity to provide a permanent solution for these young boys while maintaining a reasonable prospect of continued connection to their extended family and possibly with their biological mother if she can overcome the conflict between her and the children's caregivers.

[153] Given the length of time that the children have been living with T.S. and L.S. it is certain that this has become their psychological home. The kin caregivers have stated their intention to adopt these children, they are doing so with full knowledge of the children's respective issues, and the level of parenting and supervision that they will require, and they have demonstrated that they are able to meet the children's basic and special needs. The Society workers have described the bond that they have observed between the children and the kin caregivers and confirm the efforts that they have made to date in meeting the children's needs.

[154] Pursuant to section 57(2) of the Act I have reviewed the efforts that have been made by the Society and other agencies or persons to assist the children before intervention under Part III of the Act. These include the efforts by the Society prior to C.M.S.W.'s birth to work with the parents and in the proceedings involving J.A.L.W. all of the efforts by the Society, service providers and others prior to the birth of J.A.L.W. Relevant to the provisions of section 57(4) of the Act I have also considered whether it is possible to place the children with a relative, neighbour, or other member of the child's community or extended family however on the evidence presented there have been no proposals in this regard, or evidence of any such persons who could provide an appropriate placement for these children other than their current caregivers, T.S. and L.S.

[155] These proceedings were commenced immediately after the birth of C.M.S.W. in February 2011. Three years is amply time for the mother to have made the changes necessary to address the protection concerns that supported the removal of the children from her care, yet in putting her best foot forward she has not been able to present specific facts indicating that the children would not be at risk if placed in her care, or that an order making them Crown wards would not now be in their best interests and the least disruptive alternative sufficient to provide for their best interests, protection and well-being. The children should not have to wait any longer for the security of a permanent placement.

[156] Having reviewed the options available under section 57(1), and being mindful of the time limits imposed under section 70 of the Act and the need to provide support permanency planning for the children in a timely fashion, the children's best interests, protection and well-being are best met by an order that they be made wards of the Crown. In reaching this conclusion I have considered the direction under section 57(3) and I am satisfied that there are no alternatives, less disruptive to the children, which would adequately protect them.

Should There be an Access Order?

[157] Pursuant to section 59(2.1) of the Act if an order of Crown wardship is made, there is a presumption against access and the onus is on the person seeking access 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) an access order will not impair the child's future opportunities for adoption. Unless all three of these factors are proven the court shall not make an access order. Even if the three factors are proven the court must then consider whether an access order would be in the best interests of the child. See Children's Aid Society of Owen Sound and County of Grey v. T.T., [2005] O.J. No. 1875 (Ont. S.C.J.) at para. [20]; and Children's Aid Society of Ottawa-Carleton v. T.C., [2002] O.J. No. 3711 (Ont. S.C.J.) at para. [7].

[158] "Beneficial" has been held to mean "advantageous" and "meaningful" has been held to mean "significant". Accordingly the person seeking access must prove that their relationship with the child brings a significant positive advantage to the child. To meet this test more is required than simply demonstrating that a mother loves her child, the child loves the mother, there is affection displayed at the visits, the fact that the mother is the biological parent of the child, and the fact that the visits were pleasant. The relationship with the child must be beneficial in the sense of being significantly advantageous to the child's well-being. See Children's Aid Society of the Niagara Region v. J.C., [2007] O.J. No. 1058 (Ont. Div. Ct.) per Aitken J.

[159] The children have had regular contact with the mother through supervised access visits and the evidence supports that the mother has been generally appropriate with the children during the visits and there are exchanges of affection between the children and their mother. There is no doubt that the mother loves her children and wishes to remain a part of their lives, and that there is an emotional bond between the children and their mother. This however is not in itself sufficient to rebut the presumption under s. 59(2.1) against access. Further, to counter the third part of the test, the party seeking access must also lead evidence to prove on a balance of probabilities that adoption is not a realistic opportunity. See Children's Aid Society of Ottawa v. C.W., [2008] 13181 (Ont. S.C.J.)

[160] The Society's evidence establishes not only that its plan is to achieve permanency for the children through adoption, but that the children's current caregivers, T.S. and L.S. are an appropriate permanent placement for the children and that they are willing to adopt the children.

[161] The respondent mother has not rebutted the presumption against an access order and on all of the evidence it is established on a balance of probabilities that it is in the child's best interests that there be no access so as to facilitate the adoption of the children by their current kin caregivers and thus assure their secure and permanent place as a member of a family.

Conclusion

[162] The respondent mother's evidence consists mainly of mere allegations that if the children were placed in her care that she would be able to maintain her residence in a clean and safe manner, be able to meet the children's needs, work cooperatively with the Society and other service providers, and maintain some relationship between the children and their current caregivers, or bald denials of the Society's evidence without setting out specific facts to show that there is a genuine issue requiring a trial. There are some issues that are unresolved by the whole of the evidence presented, such as whether J.H.M currently has any mental health issues that are impacting her ability to care for her children, or what exactly occurred during the extended family's camping outing on the Victoria Day weekend in 2013, but even if these issues were resolved in favor of the mother, they would not affect the outcome of a trial given the constellation of other issues on which the mother's evidence is insufficient to rebut the Society's prima facie case. Accordingly those unresolved issues are not material and do not require that there be a trial of this matter.

[163] The Society has made out a prima facie case that the children C.M.S.W. and J.A.L.W. are children in need of protection, that it is in the best interests of the children that they should be made wards of the Crown, and that for purposes of permanency planning and in the best interests of the children there should be no court ordered access. The respondent mother has not established by evidence specific facts showing that there is a genuine issue of material fact that requires a trial for its resolution. I am satisfied that were this protection application to proceed to trial that there is no realistic possibility of an outcome other than that as sought by the Society.

[164] The Society's motions for summary judgment are granted and the protection applications regarding the children C.M.S.W. and J.A.L.W. are resolved by Final Orders, which in addition to the identification findings made in paragraph [3] shall provide that each of the children are found to be a child in need of protection within the meaning of section 37(2)(b) of the Child and Family Services Act and shall be made a ward of the Crown and be placed in the care of the Children's Aid Society of Haldimand and Norfolk, without access.

[165] I know that J.H.M. loves these children very much and that she will be disappointed with this decision. I hope that she may appreciate that this decision was guided by a very careful consideration of what is in her children's best interests and take some comfort that the children are in a loving, stable and secure home within her extended family where they can grow and develop to their full potential. There may in the future be incidental contact between the children and their mother in the context of their extended family and given that in all likelihood they will continue to reside in close proximity to one another. With this in mind the prospective adoptive parents may consider there to be some benefit in fostering regular contact between the children and their biological mother, provided that J.H.M. can become supportive of the children's permanent placement and get past the conflict that has tainted the relationship over the past two years.

Released: October 31, 2014

Signed: Justice Kevin A. Sherwood

WARNING

Court Information

Counsel

SHERWOOD J.:

Introduction and Background

Re: C.M.S.W.

Re: J.A.L.W.

Procedural History

Positions of the Parties

Children's Aid Society of Haldimand and Norfolk

Office of the Children's Lawyer Counsel

Respondent Mother J.H.M.

Respondent Father C.D.W.

The Evidence

The Law

Rule 16

Case Law

Statutory Pathway on a Protection Application

Burden and Standard of Proof

Issues

Analysis

(a) Mother's Ongoing Drug Use

(b) Conditions of the Home

(c) Mother's Mental Health

(d) Instability of Lifestyle/Residence – Finances

(e) Lack of Cooperation in Working With the Society / Lack of Engagement in Recommended Support Services

(f) Inconsistency in Attending Access

(g) The 2013 Victoria Day Long Weekend

(h) Children's Special Needs

C.M.S.W.

J.A.L.W.

Are the Children C.M.S.W. and J.A.L.W. in need of protection?

Is Intervention Through a Court Order Necessary?

What Order of Disposition Should be Made?

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

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

3. The child's cultural background

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance

Should There be an Access Order?

Conclusion

Judge

Counsel

Parties

Areas of Law