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,

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Date: 2015-03-16

Court File No.: Simcoe 77/12

Between:

CHILDREN'S AID SOCIETY OF HALDIMAND AND NORFOLK, Applicant

— AND —

S.V. and W.J.M., Respondents

Before: Justice Kevin A. Sherwood

Heard on: October 27, 2014

Reasons for Judgment released on: March 16, 2015

Counsel

Maureen Bulbrook — counsel for the applicant society

Cornelius A. Brennan — counsel for the respondent S.V.

David Maltby — counsel for the respondent W.J.M.

Robert G. Wasserman — counsel for the Office of the Children's Lawyer, legal representative for the children T.J.P.M., K.M.M. and J.L.A.M.

SHERWOOD J.:

Introduction

[1] The Children's Aid Society of Haldimand & Norfolk (the Society) has brought a motion pursuant to Rule 16 seeking by summary judgment an order that the children T.J.P.M., born […], 2006, K.M.M., born […], 2008, and J.L.A.M., born […], 2009, be made wards of the Crown without access. The Respondents S.V. and W.J.M. are the biological parents of the three children.

[2] The respondent parents have a history with Children's Aid Societies going back to 2007 relating to concerns of domestic violence, alcohol abuse, the father's mental health, and a lack of willingness to work with the Society and other service providers to address these protection concerns.

Background History

[3] In February 2011 the Children's Aid Society of Brant commenced a protection application which was resolved by the Final Order of Justice G.B. Edward dated July 11, 2011, pursuant to which each of the children were found to be in need of protection pursuant to section 37(2)(b)(i)(ii) and (g) of the Child and Family Services Act (the Act) and were placed in the care of their mother S.V. subject to supervision by the Society for a period of six months. That order also provided that there shall be no access with the children by the respondent father W.J.M. and further that W.J.M. be restrained from having any contact with S.V. or the children and from coming within 100 metres of them or their residence.

[4] On August 28, 2011 there was another incident of domestic violence between the W.J.M. and S.V. and on August 29, 2011 the CAS of Brant apprehended the children from the care of their mother and commenced a status review application. That status review application was resolved by the Final Order of Justice G.B. Edward dated December 13, 2011 which confirmed that the three children continued to be in need of protection under section 37(2)(b)(i)(ii) and (g), and made the children wards of the Society for a period of six months with access by S.V. to be at the discretion of the Society as to location, duration, frequency and supervision, that there be no access by W.J.M. and that W.J.M. be restrained from communicating with S.V. or the children, and from coming within 100 metres of them. As S.V. had relocated to Norfolk County, and with the consent of the Children's Aid Society of Haldimand & Norfolk, there was also a provision for the file and the eventual status review application to be transferred to this jurisdiction.

[5] On May 11, 2012 the CAS of Haldimand & Norfolk commenced this status review application, seeking findings that the children continue to be in need of protection, placement of the children in the care of S.V. subject to supervision by the Society, and no access by W.J.M. This application was based on grounds that S.V. appeared to have made progress in respect of her drinking issues, apparently had terminated her relationship with W.J.M., and she stated that she was prepared to work with and follow the directions of the Society and had been attending counselling to address domestic violence issues. W.J.M. had not maintained contact with the Society and there was no indication that he understood the effect that the domestic violence has had on the children. On June 14, 2012 a temporary without prejudice order was made placing the three children with S.V. subject to supervision by the Society. That order continued the provisions that there be no access with the children by W.J.M. and that he be restrained from having any contact with S.V.

[6] In October 2012 the Society verified reports that S.V. had on occasion been leaving the children with her brother T.M. as a babysitter, while she would go out in the evening, and that on October 13, 2012, while babysitting the children T.M. left the home for a while leaving the children unattended. T.M. has a significant child welfare history related to issues of substance abuse and violence, and is not an appropriate caregiver for the children. S.V. had been made aware of this and was directed that T.M. was not to babysit or have unsupervised contact with the children. On October 20, 2012 T.M. was found again to be babysitting the children while S.V. was out for the evening. When S.V. arrived home she was intoxicated. The three children were voluntarily moved to the home of their maternal great aunt L.L. for the rest of the weekend. On October 23, 2012 the Society apprehended the children and placed them in the kin care of L.L. On October 26, 2012 Justice M.B. Zivolak made a temporary without prejudice order placing all three children in the temporary care of the Society with access by S.V. to be at the discretion of the Society as to location, duration, frequency and supervision, and that there be no access by W.J.M.

[7] S.V. subsequently convinced the Society that she recognized the risks posed to the children by leaving them in the care of T.M. and that she would now work with the Society to protect the children and to keep T.M. away from the children and her home. By this time the oldest child T.J.P.M. had been moved to the home of her paternal grandmother and as she wished to remain in the care of her grandmother rather than returning to the care of her mother it was agreed that she would remain in care, in the kin placement with her paternal grandmother. As it was felt that S.V. was otherwise able to care and meet the needs of her children and was committing to work with the Society in setting and maintaining boundaries with respect to individuals who are not appropriate to be around the children, the Society supported the return of the two youngest children to her care. On January 14, 2013 a temporary order was made that the child T.J.P.M. remain in the care of the Society with access by S.V. to be at the discretion of the Society as to the usual terms, that the children K.M.M. and J.L.A.M. be placed back in the care of S.V. subject to Society supervision, and that there be sibling access at least weekly for a minimum of four hours. Again there was to be no access by W.J.M. and he was not to attend at the residence of S.V.

[8] On March 21, 2013 S.V. contacted the Society worker and requested that the children K.M.M. and J.L.A.M. be placed back into the care of the Society as she did not feel that she was able to continue to provide for their care at that time. On this basis the two youngest children were brought back into Society care and it was explained to S.V. that as they were both under the age of 6 years and had been in the care of the Society for a cumulative period of more than a year the Society's application would be amended to Crown wardship without access, which they did in April 2013. On March 27, 2013, with the consent of S.V., a temporary without prejudice order was made that the children K.M.M. and J.L.A.M. be placed back into the temporary care of the Society with access by S.V. to be at the discretion of the Society as to location, duration, frequency and supervision. That order provided that there would continue to be sibling access at least weekly and continued the prohibition of access with the children by W.J.M. On May 1, 2013 that without prejudice order was confirmed as a temporary order.

[9] In late May 2013 W.J.M. brought a motion for access. As he appeared to be following the terms of his probation and was engaging with appropriate services, the Society stated that it was open to considering supervised access for W.J.M. upon him providing the Society with a mental health assessment indicating that he is stable and would not pose a risk to the children. On June 5, 2013, after a contested hearing regarding the issue of access, a temporary order was made that S.V.'s access with the children shall continue to be at the discretion of the Society as to location, duration, frequency and supervision, and that W.J.M. may have supervised access with the children, to occur at the Society's offices and to be at the discretion of the Society as to duration and frequency. That order required that W.J.M. comply with the Society's direction to undergo a mental health assessment and that depending upon his compliance with reasonable directions of the Society, his attendance and behaviours during access, and the children's reaction to the access, the Society may in its discretion suspend the father's access provided that the matter be returned to the court within 21 days for further direction.

[10] In September 2013 W.J.M. brought a motion to have the Order(s) restraining him from having contact with S.V. rescinded. In his supporting affidavit he acknowledges that he and S.V. had resumed their relationship, although it was not their intention to start living together in the immediate future. He also acknowledged that he was recently hospitalized, explaining that in a relapse, he was having one or two drinks and after that blacked out and ended up in the hospital.

[11] On October 28, 2013, after a contested hearing of a motion brought by W.J.M., a further temporary order was made rescinding the previous restraining orders against W.J.M., but providing that he shall not have any contact or access with any of the children together with S.V. without the prior approval of the Society, and that otherwise the access of each parent shall remain at the discretion of the Society as to location, duration, frequency and supervision, and to be subject to the terms and conditions as provided for in the existing temporary orders.

[12] The reconciliation of S.V. and W.J.M. apparently came to an end in February 2014 when W.J.M. once more assaulted S.V. A warrant was issued for W.J.M.'s arrest and he was apparently taken into custody in or about late February 2014 and remained in custody until April 30, 2014.

[13] On June 25, 2014 the Society brought this summary judgment motion seeking an order that all three of the children be found in need of protection pursuant to section 37(2)(b)(i)(ii) and (g), and be made Crown wards without access.

Section 47(2) Identification Findings

[14] On the consent of all parties, the section 47(2) findings with respect to the children were made on January 19, 2015 and are recorded in the order set out at the conclusion of these reasons.

The Children's Time in Care

[15] During the initial protection application commenced in 2011 the children were not brought into Society care for any period of time. They were then apprehended on August 29, 2011 and all three children remained in care from August 29, 2011 until they were returned to the care of S.V. on June 14, 2012, a period of 291 days. Under the current status review proceedings all three children came back into Society care on October 26, 2012. T.J.P.M. has remained in care since October 26, 2012, which as at October 27, 2014 has been a further period of 735 days. K.M.M. and J.L.A.M. were in Society care from October 26, 2012 until January 24, 2013, a period of 94 days, and then have been back in care since March 22, 2013, which as at October 27, 2014 has been a further period of 585 days. In total then, as of October 27, 2014, T.J.P.M. has been in the care of the Society for a cumulative total of 1,026 days, and K.M.M. and J.L.A.M. have each been in the care of the Society for a cumulative total of 970 days.

Positions of the Parties

[16] The Society is seeking a final order that each of the children continue to be in need of protection due to risks of physical harm [s. 37(2)(b)] and emotional harm [s. 37(2)(g)], that each of the children be made a ward of the Crown, and that there be no access with either of the parents. The Society's plan, should the children be made Crown wards without access is to pursue adoption of the children. The Society contends that that there is no genuine issue requiring a trial for the determination of either the continuing protection finding, the disposition of Crown wardship or that there should be an order of no access by either of the parents.

[17] The respondent mother S.V. has conceded that the three children continue to be in need of protection under subsections 37(2)(b) and (g) and that they should be made wards of the Crown, but seeks to have an order providing her with ongoing access with the children. Her counsel argues that each of the children are doing well in their current placements, and that as there are no concerns regarding these placements, there should, in the best interests of the children, be an order that they continue to be placed with their current caregivers. He submits that the mother has been the children's caregiver for much of their lives, has consistently maintained and exercised access with the children, and that as the children have demonstrated a connection and attachment with their mother, it would be in the best interests of the children to continue to have access with their mother.

[18] The respondent father W.J.M. also concedes that the three children should be found to be in need of protection under subsections 37(2)(b) and (g) of the Act but does not agree that there should be an order for Crown wardship. He argues that as he and S.V. have ended their relationship, the three children, or at least the oldest T.J.P.M., could be returned to their mother's care. Whether the children or any of them are returned to the care of S.V., or made Crown wards, the father submits that there should be an order allowing him and S.V. to have access with the children. In support of this position, counsel for the father argues that there is a triable issue as to whether the Society's plan of adoption is in the children's best interests given that the children appear to be in good, relatively stable, placements, are doing well in these placements, have expressed their wishes to continue to have contact with their parents and the parents have been a consistency in the lives of the children.

[19] While the children's counsel confirms that the children have exhibited affection for both parents and have expressed that they wish to have ongoing contact with their parents, he is supportive of an order for Crown wardship, without parental access. Arguing that an order of Crown wardship for each of the children is the only feasible option available under section 57 of the Act, OCL counsel submits that in all of the circumstances of this case, it would be in the best interests of the children, particularly given their need for permanency planning, that there be an order for no access with the parents. He argues that the parents' evidence on the issue of access is insufficient to discharge their onus of having to establish that their access is meaningful and beneficial for the children and would not impair the children's future opportunities for adoption.

The Evidence

[20] In support of the relief it is seeking the Society relies upon the following affidavit evidence:

• Affidavit of Kelly Burke sworn March 26, 2013
• Affidavit of Brittany Munro sworn April 29, 2013
• Affidavit of Brittany Munro sworn May 31, 2013
• Affidavit of Brittany Munro sworn October 15, 2013
• Affidavit of Brittany Munro sworn June 25, 2014
• Affidavit of Margaret Haines sworn March 21, 2014
• Affidavit of Kim Hoekert sworn March 24, 2014
• Affidavit of Kathryn MacMaster sworn June 25, 2014
• Affidavit of Jennifer Chapman sworn October 15, 2014

[21] Kelly Burke is a child protection worker with the Society and was the worker who assumed conduct of this file when it was transferred from the Brant Children's Aid Society subsequent to Justice Edward's Order dated December 13, 2011. Ms. Burke's affidavit confirms that after having been in the care of the Society from August 31, 2011 the children were returned to the care of S.V. on June 14, 2012 subject to the supervision of the Society and then were apprehended from S.V.'s care on October 23, 2012 as a result of her failure to ensure that the children were left with an appropriate caregiver. On January 14, 2013 the children J.L.A.M. and K.M.M. were returned again to the care of S.V. subject to terms of supervision pursuant to a temporary order while the child T.J.P.M. remained in Society care. Ms. Burke describes how on March 21, 2013 she was contacted by S.V. who advised that she wished the two children K.M.M. and J.L.A.M. be returned to Society care, indicating that she did not think that she was ready for the children when they were returned to her care in January, that she is under a great deal of stress, is not happy, and is planning on moving back to Brantford. Ms. Burke outlines a number of reports that the Society had received since January 2013 including allegations that there may be inappropriate people visiting or staying at S.V.'s home, that S.V. and her boyfriend were involved in drug trafficking, were regularly frequenting the bar and that S.V. had been in a physical confrontation with another woman at the bar while intoxicated. These allegations, other than about the fight at the bar were denied by S.V. Ms. Burke and S.V. discussed observations that the child K.M.M. appears to be developing demanding behaviours similar to those of her older sister T.J.P.M. and S.V. advised that she did not feel that she would be able to take T.J.P.M. back into her care given how demanding she was. With respect to W.J.M., Ms. Burke advises, on information obtained from his probation officer, that W.J.M. was arrested on January 14, 2013, plead guilty to being unlawfully in a dwelling and was given an intermittent sentence and one year on probation. On Feb 11, 2013 W.J.M. failed to report to the jail as required under his sentence, because he had been hospitalized in Niagara on a mental health Form 1 having been found on a bridge threatening to jump off and commit suicide. When he was released from hospital he failed to report for his sentence as required. He was arrested on February 16, 2013, the intermittent sentence was revoked and he was to remain in custody until April 2, 2013. Ms. Burke states:

"(S.V.) appears to be overwhelmed by being a single parent. She tries very hard to meet her children's needs however, she has difficulty setting boundaries for her children with a routine that includes expectations and discipline for them. As a result, managing the children's behaviour becomes more of a power struggle between mom and child, leaving everyone emotionally distraught. (S.V.) appears to be exhausted and as such turns to a boyfriend and nights out in the bar as a way to cope. The problem is that old patterns emerge and she has already been in one bar room fight. High risk behaviour in this regard leaves (S.V.) at risk of harm to herself and her children at greater risk of exposure to further violence."

[22] Brittany Munro is a child protection worker with the Society and assumed conduct of this file from Ms. Burke in the spring of 2013. Her Affidavits chronicle her involvement since that time. Ms. Munro describes how in April 2013 it was explained to S.V. that due to the length of time that the children have been in care that the Society was amending its application to request Crown wardship with no access but was open to considering the possibility of any family members obtaining custody of the children. To that end a family meeting was conducted on April 22, 2013 at which time a number of options were considered and arrangements were made to expand S.V.'s access with the children and for continuation of regular sibling access. Ms. Munro confirms that while S.V.'s access with the children had previously been sporadic, she has, since April 2013 been regularly attending her weekly access, and in May 2013 the visits were transitioned to her home. Ms. Munro describes a meeting that was held with W.J.M. on May 13, 2013 at which W.J.M advised that he was attending the PARS (domestic violence) program, was in the process of reconnecting with the St. Leonard's Society for counselling regarding his alcohol issues, was cooperating with his probation, that while he was not currently pursuing a relationship with S.V. he was not ruling that out in the future, and that he wished to resume contact with his children. It was made know to W.J.M. that the Society wanted him to provide a mental health assessment indicating that he was stable and would not pose a risk to the children.

[23] In her affidavit sworn October 15, 2013 Ms. Munro in responding to the information of the parents that they have resumed their relationship refers to the history of domestic violence between them, and attaches a copy of the Statement of Agreed facts signed by S.V. and the Brant CAS on November 25, 2011 which confirms that there were incidents of domestic violence that occurred on August 28, 2011 and October 29, 2011 both of which resulted in W.J.M. being charged with assaulting S.V. Ms. Munro also attaches a copy of Brantford Police Records relating to incidents of domestic violence between W.J.M. and S.V. on September 23, 2007 resulting in charges against W.J.M. of assault, assault with a weapon and choking which were resolved by a peace bond; August 10, 2008 resulting in charges against W.J.M. and subsequent convictions on November 27, 2008 for assault and breach of probation for which W.J.M. received a sentence of 46 days and 1 year probation; and January 9, 2011 resulting in charges against W.J.M. of assault, assault resisting arrest, and breach of probation, and a charge of obstructing police against S.V. The police reports also included an incident on September 29, 2008 where S.V. was beaten up after leaving a bar, an incident on July 15, 2009 where she had been intoxicated, refused to pay for a cab ride and spit on the cab driver, and of a few noise complaints to her residence.

[24] Ms. Munro's affidavit sworn June 25, 2014 attaches copies of further police reports relating to W.J.M. and S.V., and copies of records from the Brantford General Hospital, Brant Community Healthcare, Concurrent Disorder Program, Grand River Health Centre and Niagara Health relating to W.J.M.'s recurring issues of drug abuse, mental health issues and propensity for violence. Ms. Munro outlines her further involvement with S.V. and W.J.M. following the February 2014 assault by W.J.M. upon S.V. which lead to further criminal charges and his incarceration from March 4, 2014 until April 30, 2014. She describes a meeting with W.J.M. on June 4, 2014 during which W.J.M. agreed to obtain and provide the Society with results of a drug test and indicated that during an upcoming doctor's appointment he would be requesting a referral to a psychiatrist. Ms. Munro summarizes requests that were made of the parents in July 2013 when they admitted that they had resumed their relationship and wished to put forward a plan to parent the children, including that they participate in relationship counselling; attend a parenting program; both submit to random drug testing; demonstrate a stable healthy relationship and home environment; and demonstrate consistent, positive access with the children. In addition, W.J.M. was to complete his PARS program, and refrain from further criminal activity. Ms. Munro then sets out how the parents have or have not responded to each of those requests. Ms. Munro describes the unsuccessful efforts made previously by the Society to seek less disruptive alternatives than Crown wardship, including Protection Service Agreements in 2008, the 2011 Protection Application resulting in a six month supervision order, and the Status Review Application in 2012 seeking the return of the children to the mother's care under a further supervision order. She traces the history of the children's placements while they have been in care, confirms that as at June 25, 2014 S.V. was having access with the children for 2 hours per week, that W.J.M. had not had access with the children since February 3, 2014, and states the Society's plan for the children to be permanency through adoption.

[25] Margaret Haines is the Society's children's services worker assigned to these three children since October 23, 2012. She provides a summary of the children's placements since coming back into Society care on October 23, 2012. She confirms that since January 21, 2014 T.J.P.M. has been placed in the same foster home; that K.M.M., who had initially been placed in the kin care home of her great aunt L.L., has been in the B/P foster home, which because of their long-time friendship with the aunt is considered by the Society to be a kin placement, for the periods of November 5, 2012 to January 14, 2013 and then again from March 25, 2013 until the present; and that J.L.A.M. has for the periods from October 23, 2012 to January 14, 2013 and then from March 25, 2013 to the present been in the same kin care placement with her great aunt L.L. Ms. Haines provides some description of each of the children and regarding how each of their respective placements have progressed, including the behaviour exhibited by T.J.P.M. which contributed to her being moved from a kin placement with her paternal grandparents, and then from a community placement with family friends and then finally to her current foster placement. She outlines services that were provided by the Society to support T.J.P.M.'s placements including a behavioral consultant and play therapy.

[26] Kim Hoekert is an access facilitator employed by the Society and in this capacity has, during the period of November 4, 2013 until March 24, 2014, supervised four visits between W.J.M. and the children, 4 visits between both of the parents together and the children, and two visits between S.V. and the children. Ms. Hoekert provides her observations of both positive aspects regarding the parents' access and of concerns that she has noted.

[27] Kathryn MacMaster is an adoption worker with the Society and has been assigned the role of permanency planning for the three children. She confirms that plans have been explored for the children to remain permanently in the care of their current caregivers. She states that T.J.P.M.'s current foster parents have been clear that they are not willing to present a plan to adopt T.J.P.M. The current kin placement home for J.L.A.M. and community placement home for K.M.M. have been encouraged to consider adoption of those children however they have each expressed concerns about their financial ability to do so and have not put forward any plan or commitment to adopt. As such the Society is exploring other options for adoption and in that regard Ms. MacMaster outlines the steps that the Society can and will take to seek an adoption placement for each of the children should they be made Crown wards and available for adoption. She states that at this time the Society does not have an approved foster with a view to adoption family that would meet the needs of the three children separately or as a sibling group, but that they do have a possible home and cultural match for one or possibly two of the youngest, and potentially one home and cultural match for the eldest child, noting that these homes have not yet been approached regarding placement of these children as they are not legally free for adoption.

[28] The affidavit of Jennifer Chapman, another Society worker, refers to attempts that have been made in the past to work with W.J.M, and difficulties that the Society has experienced in W.J.M. refusing to provide requested consents so that the Society can follow up and gather information from any collateral services that he has been involved with, and of his unwillingness to meet with and stay in contact with the Society. Ms. Chapman confirms that the Society has a prospective adoptive home for T.J.P.M. but that they will not move her to this home until an order is received. Ms. Chapman met with S.V. at her home on July 8, 2014 and observed that the home has two bedrooms and was clean with no safety concerns noted. She states that on September 4, 2014 S.V. advised her she was not interested in having further visits with her.

[29] In answer to the Society's motion the respondent mother S.V. relies on her affidavit sworn October 2, 2014 which incorporates her affidavit sworn May 22, 2013, and a transcript of a cross-examination of Margaret Haines on her affidavits.

[30] In her affidavit sworn May 22, 2013 S.V. explains that after moving to Simcoe following her separation from W.J.M. in 2010 that she "became depressed caring for the 3 children on my own after caring for them all day, I would go out on weekends and would drink. While I was out, my brother, (T.M.) would babysit the children.", and that this lead to the apprehension of the children in October 2012. She goes on to explain that after K.M.M. and J.L.A.M. were returned to her care in January 2013 she again became depressed and asked the Society to provide temporary care for those two children so that she could return to Brantford where she had family supports, anticipating that with the support of her family she would be able to care for all three of the children. In her affidavit sworn October 2, 2014 S.V. confirms that K.M.M. and J.L.A.M. are doing well in their current placements and indicates that she would be supportive of those homes adopting those children if there could be provision in an openness agreement for her to continue to have access with the children, or otherwise would be prepared to agree to Crown wardship with access provided that the children are to remain in their current placements. With respect to T.J.P.M. she postulates that foster care has not offered any better stability for that child than if she was with S.V.

[31] When cross-examined on her affidavits the Society worker Margaret Haines was questioned about each of the children's placements while in Society care. With respect to T.J.P.M. Ms. Haines states that she has been in the same foster home now since January 2014 and she seems to have stabilized there. Although she is a little behind in her math she has progressed adequately in school. This foster home is not however prepared to be a permanent placement for T.J.P.M. K.M.M. has been in the same foster home since she was returned to Society care in March 2013. This foster placement is with a friend of the maternal great aunt L.L. where J.L.A.M. has been placed and have indicated that they are prepared to provide long term care for K.M.M. but have not committed to being a permanent placement. J.L.A.M. has been in the same kin placement with her great aunt since coming back into care in March 2013. Ms. Haines advised that this is a nurturing placement, which J.L.A.M. sees as her home, and a placement that the Society would encourage if it were available as a permanent option. Ms. Haines advised that the Society has located a family that is prepared to be a permanent placement for T.J.P.M. and could be open to being a permanent placement for one or both of the other two girls. The Society has had preliminary discussions with this prospective adoptive placement and has made them aware that the Society would support family access.

[32] W.J.M. relies on his affidavit sworn Oct 3, 2014. In that affidavit W.J.M. acknowledges that he has "made quite a few poor decisions over the years", that he has "been a heavy drinker with a hot temper and in and out of jail" most of his life, and has "suffered from mental health issues and depression since being torn from my children for my poor relationship skills that I have had with my spouse." He states that he has been clean for 4, going on 5 months. He admits that he "drank way too much and domestic violence is wrong and not healthy for any family" and states that his "children have been exposed to domestic violence, but the damage caused by not having me in their lives is far greater." W.J.M. believes that the children need him in their lives and that it would be best if they were allowed to continue to have contact with him. W.J.M. states that his relationship with S.V. has ended, that he has now moved to London, Ontario where he has started his own business, where he plans to live a clean lifestyle and would like the opportunity to watch and help his children grow to their best potential.

The Law

Rule 16 – Summary Judgment Motions

[33] 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 such evidence 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

[34] 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. The court must also, so long as it is consistent with the best interests, protection and well-being of the child, 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, and 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., 2014 ONSC 1151 (Ont. S.C.J.) per Justice W.L. McPherson, at para. [62].

[35] 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].

[36] 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., 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].

[37] 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., 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].

[38] 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., per Jones J., at para. [12].

[39] "No genuine issue for trial" has been equated with "the outcome is a foregone conclusion" and "there is no realistic possibility of an outcome other than that as sought by the applicant". 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], Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442 (Ont. S.C.J.) per Czutrin J., at para. [54], Children's Aid Society of the County of Simcoe v. C.S., [2001] O.J. No. 4915 (Ont. S.C.J.) per Mackinnon J., at para. [5], and Children's Aid Society of the Region of Niagara v. S.C., [2008] O.J. No. 3969 (Ont. S.C.J.) per Pazaratz J., at para. [43].

[40] 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].

[41] 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., per Pazaratz J., at para. [41].

[42] 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].

[43] 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 a 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].

[44] 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., per Katarynych J., at para. [15].

Statutory Pathway on Status Review Proceedings

[45] Pursuant to section 64 of the CFSA where the children are the subject of an order under section 57(1) for society supervision or society wardship, the society having care, custody or supervision of the children, may apply to the court at any time for a review of the child's status, and shall apply to the court for a review of the child's status before the supervision or society wardship order expires, unless the expiry is by reason of section 71(1) [the child attains the age of eighteen years or marries, whichever comes first]. In this case the status review proceeding was initiated by the Society prior to the expiration of the December 13, 2011 Order making the children wards of the Society for a period of six months, and as noted above the Society was initially seeking a change in the status of the children to place them in the care of S.V. subject to society supervision. In an application for review of a child's status under section 64, the court may, in the child's best interests, vary or terminate the original order; order that the original order terminate on a specified future date; make a further order or orders under section 57; or make an order under section 57.1 granting custody of the child to one or more persons. (See Section 65)

[46] On a status review the court must embark on a two-fold examination: first, whether the child continues to be in need of protection; and second, what is in the child's best interests considering the criteria set out in subsection 37(3) of the Act. The function of the status review hearing is not to retry the original need for a protection order but rather to evaluate whether there is a need for a continued order for protection. Children's needs are continually evolving and these ever-changing circumstances must be taken into account. Courts must continually evaluate the need for state intervention in order to ensure that the objectives of the Act are being met. Best interests must be examined from the child's perspective and will take precedence to parental interests. See Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

[47] If the court determines that the child is in continuing need of protection, it must then consider which of the court orders that it may make will be the least disruptive alternative consistent with the child's best interests and adequate to protect the child. In that regard section 37(3) of the Act provides a list of circumstances that the court shall, as it considers relevant, take into consideration in making an order or in a determination of the best interests of a child, as follows:

1. The child's physical, mental and emotional needs, and the appropriate care or 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 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.

[48] In determining which disposition is in the best interests of the child, the court must also be aware of the limitations imposed by the legislation. Section 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 on the day the court makes the order, or for twenty-four months if the child is older than six years of age. Subsection 70(4) allows for only a six month extension of these time periods if it is in the best interests of the child to do so. Accordingly, in this case, where all three of the children have been in care for much more than the prescribed time period, the options available under section 57 are restricted to either placing the children in the care and custody of a parent or another person, with or without a supervision order, or to making them wards of the Crown.

[49] If the children are made Crown wards, subsection 59(2.1) prevents the court from making an access order unless the court is satisfied that the relationship between the person and the child is beneficial and meaningful to the child; and the ordered access would not impair the child's future opportunities for adoption. (emphasis added) Accordingly 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.

[50] With respect to the first part of the test, establishing that the relationship between the person seeking access and the child is beneficial and meaningful, "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 the applicant is a biological parent of the child, the parent loves the child, the child loves the parent, there is affection displayed at the visits, and 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.

[51] Regarding the final part of the test, that an access order will not impair the child's future opportunities for adoption, 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..

Issues

[52] To succeed in its request for summary judgment that the three children be made wards of the Crown without access, the Society, on its evidence, must establish that there is no genuine issue requiring a trial with respect to the following determinations:

1. The children are in continuing need of protection;

2. Intervention through a court order is necessary to ensure their protection;

3. 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 least disruptive to the children yet adequate to protect them.

4. The order should provide that there should be no access between the parents and the children.

[53] If the Society can make this prima facie case, then the parents, or either of them, must through their evidence set out specific facts showing that there is a genuine issue requiring a 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.

[54] Where the primary focus is whether the parents have recognized and successfully dealt with the problems of the past, and where the Society has made a prima facie case that they have not, then the parents must produce credible evidence showing that the concerns raised by their past conduct have been sufficiently resolved.

Analysis

[55] That the children continue to be in need of protection has been conceded by both of the respondent parents and there is ample evidence to support such a finding under subsections 37(2)(b) and (g) of the Act. The evidence of the Society, and as confirmed by S.V. herself establishes that at times when the children have been in her care she has struggled with caring for them and that to escape the stress of doing so she goes out to the bars drinking. On occasion she has done so leaving her children with an inappropriate caregiver, her brother T.M., even when she had been made aware by the Society that he was an inappropriate caregiver and she had been instructed not to do so. In January 2013 the two youngest children were returned to S.V.'s care under a temporary supervision order, only to have her request in March 2013 that those children be returned to Society care because she was struggling to care for them. There are several incidents documented in the police reports that have been included in the Society's evidence indicating a history of S.V. being involved in complaints of causing a disturbance while she has been intoxicated, including reports that she was involved in physical altercations with other individuals. This establishes a pattern of S.V. using alcohol as an escape from pressures in her life, and that when she drinks she does so to the point of being a nuisance and a threat to others. In so doing exposes herself to potential injury and/or criminal charges both of which could interfere with her ability to care for her children. S.V.'s evidence does not establish that she has recognized this as a problem or that she has taken steps to change this behaviour. Further if the children were to be returned to the care of S.V. and she has not dealt with her personal issues including relationship issues and her tendency to react to stress in her life by going out drinking, then it is likely that the children would continue to be exposed to conflict, either domestic or otherwise. The documented history of the respondents confirms that during the past several years there have been numerous incidents of W.J.M. assaulting S.V., many of which have led to apparent terminations of their relationship, only to have them subsequently reunite, sometimes in direct contravention of court orders, and the cycle of domestic abuse continue. W.J.M. has a lengthy and significant criminal history involving numerous convictions for violent offences, some involving lengthy periods of incarceration, and breaches of court orders. His criminal record includes convictions in November 2008, April 2011, January 2012 and March 2014 for assaulting S.V. He also has a history of mental health issues, substance and alcohol addiction issues and an acknowledged history of perpetrating domestic violence. Other than his bald allegations that he now recognizes the poor decisions that he has made in the past, has now moved to a new city, has been clean for nearly 5 months and plans to live a clean lifestyle, W.J.M. has not provided evidence of specific facts to substantiate these assertions that he has effectively resolved the protection concerns raised by his past issues with alcohol abuse, mental health and violence. The children's exposure to conflict, particularly domestic conflict, places them at risk of both physical and emotional harm. The risk of emotional harm arises from the exposure that these children have had to domestic violence in the past and would likely have in the future if history repeats and the parents reunite. It also arises from the reality that these children have over the past few years gone back and forth between the care of their mother and being in the care of the Society. Unless there is stability and permanency in the placements for the children this uncertainty is likely to continue. The eldest child T.J.P.M. has exhibited behaviour including temper tantrums, jealousy and conflict with other children in her earlier placements that have contributed to the breakdown of two of those placements. On all of the evidence presented, each of the children is at risk of physical and emotional harm, as conceded by the respondents, and as neither parent is capable of presenting a viable plan for the care of the children a court order is necessary to ensure the protection of the children.

[56] Given the length of time that each of the children have been in Society care the application of section 70(1) dictates that the only available orders are restricted to either returning the children to the care of their parent or another person, with or without a supervision order; an order under section 57.1 granting custody to one or more persons, other than a foster parent of the child, with the consent of the person or persons; or making the children wards of the Crown. The criteria for determining which of these available options is in the best interests of the children are set out in section 37(3) of the Act.

[57] The Society workers Margaret Haines and Kim Hoekert provide some information regarding the children themselves. Ms. Haines describes them as being unique little girls, and comments that they are independent, stubborn little girls which will be beneficial for them as they get older, but for caregivers right now, it can be a challenge. None of the girls have been diagnosed with any mental health issues or developmental delays.

[58] J.L.A.M. is four years old. She has been observed to have very good verbal skills for her age and interacts well with her kin caregivers, with whom she has been placed from March 9, 2012 to June 14, 2012 and since October 23, 2012, except for the 10 weeks that she was placed back in her mother's care from January 14, 2013 to March 25, 2013. J.L.A.M. attends daycare. She demonstrates a bond with her great aunt who is her kin caregiver by hugging, sitting on her lap and looking to her for affirmation. J.L.A.M. does not ask about her parents.

[59] K.M.M. is six years old. When the children were brought back into care on October 23, 2012 K.M.M. was initially placed in the same kin caregiver home as J.L.A.M. but because she was very competitive with that family's biological daughter and appeared to need more one on one attention, she was moved on November 5, 2012 to the B/P foster home. These caregivers are long-time friends of the kin caregivers and this facilitates maintaining regular contact between the siblings. K.M.M. has remained in this placement since November 5, 2012 except for the 10 weeks that she was placed back in her mother's care from January to March 2013. K.M.M. has adjusted well into this foster family and her placement in this home has progressed without incident. K.M.M. attends public school and is progressing well. She is described as an active child who interacts well with her foster family and demonstrates signs of affection towards both of her foster parents. When asked, K.M.M. has stated that she would want to live with her mother.

[60] T.J.P.M. is eight years old. This child has had a number of moves while in Society care. When the children were apprehended again on October 23, 2012 T.J.P.M. was initially placed with her siblings in the home of their great aunt, and then just a few days later, on October 26, 2012 T.J.P.M. was moved to her paternal grandparents with whom she had previously resided from March 2012 to June 2012. This kin placement was progressing well and T.J.P.M. stayed in care with her grandparents when her siblings were returned to their mother's care in January to March 2013. Given the length of time that the children had been in care, the Society advised in April 2013 that they would be seeking Crown wardship and plans for permanent placements for the children. The grandparents advised that they were not prepared to be considered as a permanent placement for T.J.P.M. and on July 2, 2013 T.J.P.M. was moved to a kin placement with H.V. and J.D. who had previously provided her with after school care. The foster mother reported that they were having issues with T.J.P.M. in that she was telling "small lies" to avoid consequences for negative behaviour and was exhibiting jealousy towards the family's youngest child who has Down syndrome. After two months the foster parents advised that they were no longer able to care for T.J.P.M. and in October 2013 she was temporarily placed for a few weeks back with her paternal grandparents and then on November 3, 2013 placed in the kin home of her great aunt, where J.L.A.M. was residing. Unfortunately in this placement, T.J.P.M. was exhibiting angry behaviours including temper tantrums and being physically aggressive with another child in the home. In January the great aunt advised that because of these challenging behaviours they were no longer able to care for T.J.P.M. On January 21, 2014 T.J.P.M. was moved to a Society foster home where there were no other children for her to be in competition with, and she has remained in that placement since then. In an effort to address her behaviours and to support her foster placement the Society initiated play therapy for T.J.P.M. commencing in January 2014 and which she continues to attend bi-weekly. She appears to have stabilized in this current placement. T.J.P.M. attends public school and has progressed well in her past year at school. Although she was struggling a bit in math it was not enough to require extra support. According to Ms. Haines, T.J.P.M. has said that she worries about her parents, but she does not generally ask about them. She has stated to Ms. Haines that she wants to live with her grandmother.

[61] Neither of the parents in their evidence have described the children or commented about their behaviours, other than S.V. confirming that K.M.M. and J.L.A.M. are doing well in their current placements and stating that T.J.P.M. is "very troubled" and "has some issues and requires therapy". S.V. states that on numerous occasions during the access each of the children have asked that they be able to come home with her.

[62] T.J.P.M. is eight years old, K.M.M. is six years old, and J.L.A.M. is four years old. There is no evidence that any of the children have any special medical needs and from the descriptions provided appear to be generally healthy active young girls. T.J.P.M. has struggled somewhat with mathematics in her past year at school, but not significantly enough to require any individualized educational plan or special assistance. There is no evidence that any of these children have any developmental delays. While the children have been described as stubborn and independent and their behaviours at access visits have been difficult for the parents to handle, it does not appear that the caregivers for K.M.M. and J.L.A.M. are experiencing any significant behavioural issues with these children in their placements. T.J.P.M. has exhibited issues with being angry and competing with other children in her earlier placements which lead to the breakdown of two of those placements, however with the engagement of play therapy it is reported that she seems to have stabilized over the past year in her current placement. Neither of the children has been diagnosed with any mental health or serious emotional or behavioural issues. Given their relative young age it is evident that each of the children requires consistency and a supportive placement which can ensure that they continue with their development and which will be able to effectively advocate for appropriate services should any become necessary. Given that T.J.P.M. seems to have had difficulty with being jealous and competing with other children in her previous placements, it would seem that this should be considered when assessing any future placements for this child.

[63] There has been no evidence led with respect to the children's cultural background, other than the Society's evidence that they have found a potential adoptive placement for T.J.P.M. and possibly for one or both of the younger children which would also be a cultural match for the children. Neither of the parents or the Society has led evidence of any particular programs or activities that would be relevant for addressing any particular cultural needs of the children or for ensuring the children's connection to their cultural background. To the extent that the children have a unique cultural background this could be addressed through continued contact with their family, extended family and community.

[64] The identification findings made with the consent of the parents note that the religious faith, if any, in which the children are being raised is unknown. Neither the Society nor the respondent parents have in their evidence identified any religion for the children that the children have at any time in their life been actively exposed to any particular religion, or suggest that this is an element of the children's best interests that requires any particular consideration in this case.

[65] The children have a relationship with each other which has been maintained through regular sibling access. They also have a relationship with their parents, although their relationship with their father has been fragmented for extended periods of time due to his criminality, periodic incarcerations, restrictive probation orders, restraining orders, and his failure to consistently maintain contact with the Society. Presently the father has not had access with the children since February 3, 2014. Prior to that any access that he had was interrupted by restraining orders and/or no access orders that were in place from May 3, 2011 until June 5, 2013. The children also have relationships with extended family members including their maternal great aunt L.L., the paternal grandparents, and the close family friends with whom K.M.M. has been placed. The children K.M.M. and J.L.A.M. have been in relatively stable placements for some time and given their young age likely feel that they are a part of these families. J.L.A.M. has been placed with her great aunt, a placement that undoubtedly keeps her connected to at least her extended maternal family. K.M.M. is placed with a family who are close friends to the children's great aunt and as such have been viewed as a kin community placement. Unfortunately neither of these placements has committed to being an adoptive or custodial placement for these children and unless they come forward with such a commitment or the Society sees fit to continue to subsidize these as foster placements, permanency planning through adoption is likely to mean at least a further relocation for these children.

[66] T.J.P.M. was moved a few times during the first year since she came back into care on October 23, 2012 but has seemed to stabilize in the placement where she was moved to in January 2014. Unfortunately this placement is not committed to providing a permanent placement for T.J.P.M. and accordingly it is inevitable that at some point she will be moved to another placement. Apart from temporary homes where she has spent a few weeks at a time, T.J.P.M., since being removed from the care of her mother in October 2012, was in the temporary care of her paternal grandparents for approximately eight months, then in a care kin placement for approximately 3 months, with her great aunt L.L. for approximately two and a half months, and then with her current placement for approximately nine months as of October 2014. If T.J.P.M. is to remain in foster care, it is likely that she will experience a number of further moves, which in all likelihood would be detrimental to her ability to develop and maintain a positive relationship and a secure place as a member of a family. If T.J.P.M. is to be moved again, which appears inevitable, then it is hoped that this could be a final move so that she can finally see her placement as a permanent home and develop her attachments to this family accordingly. If a successful adoption placement can be found for T.J.P.M. then it is more likely that she may only have to be moved one further time and then can hopefully enjoy and prosper from some long overdue stability in her life.

[67] The Society's plan is to promote permanency for the children through arranging for and facilitating an adoption of the children either together, or if that is not possible, separately. This plan has the merits of promoting a permanent placement of the children within a committed family. The parents have not put forward any realistic plan for the children. The father's proposal is that the children could be returned to the care of the mother but that is not relief that is being sought by the mother. The mother's plan, and the alternative plan of the father, is that there be an order for Crown wardship, but that the court somehow order that the children are to remain in their current placements. While this would be a means of ensuring some consistency for the children in what appear to have successful placements, it is not something that this court can order under the provisions of the legislation. Accordingly neither of the plans advanced by the respondents is either available to the court or viable in the circumstances of this case.

[68] As confirmed by their OCL counsel, the children have demonstrated affection for their parents and have expressed their wish to continue to have contact with their parents.

[69] The two youngest children, J.L.A.M. and K.M.M. are each in a relatively stable placement which is currently meeting their respective needs. It is possible that either or both of these placements may yet come forward to be a permanent placement for the child in their care, or possibly both of those children, and that this would be a plan supported by the Society. If these children were to permanently remain in their current placements then there would be no need to disrupt the continuity of care that they have benefitted from for well over a year, and any delay in getting to that disposition would not likely have any significant consequence for these two children. However, given the current stated position of these caregivers, that they are not prepared to adopt or assume legal custody of these children, it is likely for the purposes of permanency planning that these children will be moved when a prospective adoptive home is found. Similarly T.J.P.M. is likely to be moved from her current placement when a permanent placement for her can be found. In the present circumstances of this case the Society is not going to proceed with such moves until it is in a position to pursue an adoption for each of the children. There is no doubt that the children, and in particular J.L.A.M. and K.M.M. have formed an attachment to their current caregivers. It only stands to reason that the longer it takes to achieve permanency for these young children, the more difficult any required change in each of the children's placement will become. Given the likelihood that each of the children will be moved again in order to secure a permanent home for them, it is in their best interests that this case be resolved as soon as possible so that they may have some prospect of certainty as to their future. An early resolution of this case, if it is one of Crown wardship without access, will generate a definitive answer from the current caregivers as to their willingness to commit as a permanent placement for one or more of the children, and if that is not to be, then to allow the Society to proceed sooner than later with its plan for obtaining permanency through adoption. If the children are to achieve permanency in placements other than where they are currently, then the sooner they can begin to form these new attachments, the greater the likelihood of success.

[70] There remains a very significant degree of risk justifying the findings that the children are in need of protection, particularly given that neither parent is putting forward a plan to care for the children. Based on the evidence presented by the parents in response to the Society's application there is no reasonable prospect that the parents will be able to effectively resolve those risks within the foreseeable future. This too speaks to the need to have this case resolved without further delay.

[71] The children's relationships and emotional ties to a parent, sibling, extended family or others, and the children's views and wishes are just two of the criteria to be considered in a determination of what is in the children's best interests. The legislation does not assign a priority among the criteria listed in section 37(3) and no one of the criteria is necessarily determinative of the issue. Each case is fact driven and in each case the circumstances may dictate that some of the criteria have little or no relevance and that others may have greater importance. In the end it is a balanced consideration of the constellation of the criteria that are relevant to the circumstances of the case, which will result in a determination of what is in the best interests of the child. The court must also be mindful that this determination must be consistent with the paramount purpose of the CFSA to promote the best interests, protection and well-being of children, and the other purposes as set out in section 1 of the Act which include recognition that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered, and recognition that children's services should be provided in a manner that respects a child's need for continuity of care and for stable relationships within a family and cultural environment, takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children, provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

[72] The respondent father has taken the position that the three children could be returned to the care of S.V., but does not in his evidence put forth any specific facts establishing that S.V. is in agreement with this, or that this would be a disposition in the best interests of the children. As S.V. is not seeking the return of the children and has conceded Crown wardship, the option of returning the children to her care is not feasible. As neither of the respondents nor any third party have come forward requesting custody of either or all of the children under a section 57.1 custody order, that too is not an option requiring consideration. This leaves Crown wardship, as conceded by S.V. to be the only option of those available to the court that is viable, consistent with the best interests of the children, and would be adequate to ensure their protection.

[73] On all of the evidence, there is no triable issue as to the children being made wards of the Crown and that this is the disposition that is in the best interests of the children, and the least disruptive alternative consistent with the need to protect the children. There is a lengthy history of domestic violence perpetrated by the father W.J.M. upon the mother S.V., including an apparent unwillingness by the respondent mother to acknowledge or report the abuse when it occurred or to cooperate with the police and/or the Society in investigating reports of abuse. From the history that has been documented it is evident that this abuse was generally fueled by the alcohol abuse of one or both of the parents. S.V. clearly loves the children and has demonstrated that she is able to maintain a residence for the children, however because she is unable or unwilling to curb her need to socialize and go out drinking as a way to deal with stress in her life, she exposes the children to inappropriate caregivers or others she allows into her home and jeopardizes her ability to care for the children. Simply put, the mother is unwilling or unable to put the protection and other interests of her children ahead of her own needs. There has been an established pattern in 2012/2013 where the two youngest children were returned to their mother's care because she appeared to have things under control and was stating that she was willing to work cooperatively with the Society, only to have that placement soon fall apart and the children return to Society care. In March 2013 it was at the mother's request that the children were brought back into care because she was under a great deal of stress, was unhappy and was planning on moving back to Brantford to be closer to family supports, but which also happened to be where W.J.M. was residing. Despite clearly being made aware, by the Society workers and the court proceedings including orders restraining W.J.M. from having any contact with her, or at times from having contact with the children, S.V. resumed her relationship with W.J.M. in contravention of the court orders. W.J.M now says that he realizes that he has a problem with alcohol and that alcohol fueled most, if not all, of the conflict in his relationship with S.V., but then acknowledges that in June 2014 he was out having a drink or two, blacked out, and ended up in the hospital again. Apart from his assertion that he is now going to lead a clean life, W.J.M. has not provided any evidence to indicate that he has dealt with his alcohol issue. A bald assertion of a few months of self-reported sobriety is not sufficient evidence of specific facts showing that there is genuine issue for trial. If W.J.M. has not resolved his problems with alcohol then the history of the parties indicates that continued use of alcohol will fuel further conflict and criminality.

[74] Kim Hoekert, who has supervised access visits with the children by W.J.M. alone, S.V. alone and by W.J.M. and S.V. together, reports that the children are excited to see the parents at the start of the visits, usually running to the parents to greet them with hugs and kisses. She describes how the parents, at times during the visits are able to be child focused and provides examples of each of the parents playing with the children and occasionally bringing activities or crafts to interact with the children during the visits. She notes that S.V. was the more active parent during the visits, more often engaging in play with the children, providing dinner for the children and encouraging them to sit down at the table and eat dinner together, whereas W.J.M. did not do so during his visits. She describes the visits that W.J.M. had alone with the children as being more chaotic and messy in that he would not follow through on redirecting the children from negative behaviour and would not encourage the children to clean up at the end of the visit, or do so himself. Ms. Hoekert describes that although there were periods when the parents were able to be child focused there were also visits in which they did not engage with the children and would spend much of the visit sitting on the couch watching the children instead of interacting with them. Ms. Hoekert states that the girls have a tendency to scream and run around during the visits and that at almost every visit, at least one of the children cry throughout the visit. She says that the girls often do not heed directions from the parents. She describes J.L.A.M. in particular as being very attention seeking towards both parents and that she will yell and scream to get their attention, and that these outbursts will often occur off and on throughout the entire visit. This is consistent with the description provided by Ms. Haines of the one visit of W.J.M. with the children that she supervised, noting that there were many temper outbursts from J.L.A.M. and frequent episodes between J.L.A.M. and K.M.M. as they competed for their father's attention. Ms. Hoekert describes the parents as either ignoring this behaviour or having a difficult time redirecting the children. She notes that overall during access the parents struggle to handle the girls' behaviour and be consistent with rules. Ms. Haines advises that K.M.M.'s caregiver has stated that K.M.M. can be argumentative after an access visit and that she needs some time to adjust again to following the rules in the foster home and to reduce her demanding approach.

[75] In their evidence neither of the parents has described what occurs at the access visits, nor have they commented on or addressed the evidence of the Society workers, particularly in respect of the concerns noted about their interaction with the children, their difficulties in redirecting the children, or the children's behaviours during the access visits.

[76] While S.V. has continued to have supervised access for two hours each week, W.J.M. has not had access with the children since February 3, 2014, after which he was arrested, convicted and incarcerated for once again assaulting S.V. Prior to that W.J.M.'s access to the children had been interrupted by virtue of his incarcerations, restrictive bail and/or probation orders, and the restraining orders issued in these proceedings which were in effect from May 3, 2011 through to June 5, 2013.

[77] To date, the three children have had regular sibling access during the weekly parental access visits which they attend together and during visits with their extended family. Apart from the children's disruptive behaviour when competing for their parents' attention during access visits, there is no evidence of any problems with the sibling access. The continuation of sibling access is supported by the Society, the parents and OCL counsel, and all are in agreement that the children's relationship with each other should be maintained as this is likely a positive attachment for them and will be a consistency in their lives.

[78] The evidence indicates that the children's current placements are not only adequate and appropriate, but that they are well serving the needs of the children, and that the children, particularly K.M.M. and J.L.A.M. are doing well in these placements. Further the current placements would most likely facilitate ongoing sibling access between the three children, and may even, if they had the discretion, which they would have as adoption or custodial parents, facilitate and promote ongoing contact between the children and their extended families, including if appropriate, ongoing contact with their mother S.V., and subject to appropriate controls and limitations, with their father W.J.M. Unfortunately without the expressed consent of the children's current caregivers to the making of a section 57.1 Order granting them custody of the children, or them coming forward to adopt the children I am unable under an order of Crown wardship to direct that the children are to remain in their current placements. If an order of Crown wardship is made, the children as Crown wards will be placed in the care of the Society and the Society would then be able to pursue its mandate of obtaining permanency for the children through adoption. Faced with this prospect it is possible that one or the other of the current caregivers may step forward to present as a permanent placement through adoption, and this would a preferred option.

[79] While J.L.A.M.'s current kin caregivers have indicated that they are prepared to provide long-term foster care for her they have not made a commitment to be a permanent placement for this child either through adoption or a section 57.1 custody order. The same is true with respect to K.M.M.'s current placement. T.J.P.M.'s current foster home is also not interested in pursuing adoption or being a permanent placement for that child. While the Society has encouraged the current kin placements for J.L.A.M. and K.M.M. to come forward with permanent plans they have each expressed concerns about taking on the responsibility for an extra child without ongoing financial assistance. Unfortunately neither of those families qualifies for an adoption subsidy. Accordingly, while the Society will continue to encourage those caregivers to commit to a permanent plan, it has begun to look elsewhere for permanent placements for these children should they be made Crown wards.

[80] The affidavit of the Society's adoption worker Ms. MacMaster outlines the efforts that the Society has made to date and further options it will explore should the children become available for adoption. It is the Society's plan to first look for a family that would be able to adopt the three children together, and if that is not available then to look for families that would be committed to maintaining on-going contact between the three children. Ms. MacMaster states that as at June 25, 2014 the Society does have a possible home and cultural match for one or possibly both J.L.A.M. and K.M.M., and potentially a home and cultural match for T.J.P.M. In the cross-examination of Margaret Haines conducted on August 28, 2014 she states that the Society has located a family that is prepared to be a permanent plan for T.J.P.M. and could be open to one or both of the other girls, and that while further discussions are required, this family is aware that the Society would want to support family access, including with paternal grandmother, J.L.A.M.'s current kin caregivers, and the parents. In her affidavit sworn October 15, 2014 Jennifer Chapman confirms that the Society does have a potential home for T.J.P.M., however the Society is waiting for the outcome of these proceedings before there would be any move of the child to that home. Contrary to this information, the respondent mother argues that it is unlikely that T.J.P.M. would be adopted or that such adoption would last considering her history over the past few years, however she does not provide any specific evidence to support this conjecture. The Society's position is that adoption of the three children is a feasible plan to achieve permanent placement of the children and that an access order, given the parents' history of domestic violence, father's mental health, the parents' on again off again relationship, and the parents' lack of understanding how these concerns impact the children, would hinder achieving permanency through adoption.

[81] The CFSA recognizes that in addition to their need for protection children require continuity of care and stable, secure relationships and placements. The legislative scheme is such that once there is a determination that Crown wardship is the disposition which is in the best interests of the child, there is a shift in emphasis towards permanency planning as a means of achieving the child's need for continuity of care and for stable relationships within a family and cultural environment.

[82] Implicit in the mother's position that the children, even if made wards of the Crown, should be left in their current placements with her continuing to have access is that the children may eventually be returned to her care. The obvious intent of the legislation and particularly as interpreted by the Supreme Court of Canada in the Catholic Children's Aid Society of Metropolitan Toronto v. C.M. case is that the best interests of a child should not be held in abeyance while waiting for a dysfunctional parent to eventually resolve their issues, particularly when there is an opportunity at hand to obtain a permanent placement for the child.

[83] To meet the threshold test that access would be beneficial and meaningful for the children, more is required than love, the display of love, being a biological parent, or the fact that some of the visits were pleasant and appear to have been enjoyed by the children. The parents' evidence regarding the issue of access amounts to nothing more than bald assertions that it is in the best interests of the children for them to continue to have access with the children, without putting forth any specific facts to show that the access is beneficial and meaningful for the children. While the Society has led evidence to establish that there are reasonable prospects to achieve permanency for these children through adoption, the parents have not countered with any evidence to indicate that adoption of these children is not realistic. Accordingly the parents have failed to meet either of the tests for rebutting the presumption against access as created by section 59(2.1) of the Act.

[84] Permanent placement of the children with their current caregivers would likely be in the children's best interests, in that this would provide stability and continuity in their care and would easily facilitate sibling access and ongoing contact with the children's extended family, however the current placements are unwilling to make that commitment and I cannot under a Crown wardship order direct where the children are to be placed. Crown wardship with access would not ensure the permanent placement of these children within a family and would only prolong the uncertainty for these children. Crown wardship without access does not preclude the current caregivers from coming forward with a commitment and plan for the children to become permanent members of their family, which may be a preferred option, but will also allow the Society to proceed in a timely manner with other adoption options if the current caregivers remain unwilling to do so. Accordingly the disposition which overall is in the best interests of the children is Crown wardship without access.

[85] While it may be tempting to subvert the intent and scheme of the legislation, accede to the position of the respondents, and make an order of Crown wardship with access for either the mother or both parents in the hope that this would impede the Society's plan for adoption and thus prolong the children's placements where they have each enjoyed some stability, that is not the basis on which an access order may be made under section 59 of the Act. That section is clear in providing that when Crown wardship is ordered an access order may only be made when the person seeking the access can establish that such access would be meaningful and beneficial for the child; and that it will not impair the child's future opportunities for adoption.

[86] In all of the circumstances of this case, particularly given the young age and needs of the children, the interests of maintaining the children's relationships with their family and others and of giving effect to their stated views and wishes are overshadowed by the importance of achieving a permanent and secure future for these children.

[87] The evidence presented in this proceeding is more than sufficient to establish a prima facie case that the three children, T.J.P.M., K.M.M. and J.L.A.M. continue to be in need of protection due to the ongoing and unresolved concerns arising from the on again off again history of the parent's relationship, the lengthy history of domestic violence and exposure of the children to the same, each parent's history of alcohol abuse, their inability or unwillingness to shield the children from exposure to inappropriate adults, the father's mental health and criminality, and the history of both parents not being willing or able to consistently work with the Society or other service providers to effectively address these concerns. The Society and the court has once before returned T.J.P.M. and has twice before returned K.M.M. and J.L.A.M. to the care of S.V. only to have those placements break down in short order and the children come back into Society care. Neither respondent has established in their evidence specific facts showing that there is a genuine issue for trial as to whether there should be a third attempt to reunite any of the children with their mother. Accordingly, on all of the evidence that has been presented, it is a foregone conclusion that were there to be a trial of these issues the outcome would be an order for Crown wardship.

[88] Further, I am satisfied on a consideration of all of the evidence that has been presented that if the issue of whether the Crown wardship order ought to provide for access with the children by either or both of the parents that there is no chance of the parent's request for access succeeding, no realistic possibility of an outcome other than an order that there be no access, and that this outcome would be a foregone conclusion.

Conclusion

[89] On the whole of the evidence presented, the Society has made out a prima facie case that the children T.J.P.M., K.M.M. and J.L.A.M. continue to be in need of protection, that in the best interests of the children they should be made wards of the Crown, and that for the purposes of permanency planning and in the best interests of the children there should be no court ordered access with either of the parents. Neither of the respondent parents have rebutted this prima facie case, nor have they 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 status review application to proceed to trial, on the basis of the evidence presented in this motion, there is no realistic possibility of an outcome other than that as sought by the Society.

[90] The Society's motion for summary judgment is granted and the status review application commenced by the Society on May 11, 2012 is resolved by a final order as follows:

Final Order

1. Identification Findings Under Section 47(2) CFSA

Re T.J.P.M.

(i) The child's name is (T.J.P.M.). She was born on […], 2006.

(ii) The religious faith, if any, in which the child is being raised is unknown.

(iii) The child is not an Indian or native person.

(iv) The child's mother is (S.E.V.). The child's father is (W.J.M.).

(v) The child was removed from the care of (S.E.V.) on October 23, 2012 at Simcoe, Ontario.

Re K.M.M.

(i) The child's name is (K.M.M.). She was born on […], 2008.

(ii) The religious faith, if any, in which the child is being raised is unknown.

(iii) The child is not an Indian or native person.

(iv) The child's mother is (S.E.V.). The child's father is (W.J.M.).

(v) The child was removed from the care of (S.E.V.) on October 23, 2012 at Simcoe, Ontario, then returned to the care of (S.E.V.) on January 24, 2013 pursuant to the temporary order dated January 14, 2013 and then removed again from the care of (S.E.V.) on March 22, 2013 at Simcoe, Ontario.

Re J.L.A.M.

(i) The child's name is (J.L.A.M.). She was born on […], 2009.

(ii) The religious faith, if any, in which the child is being raised is unknown.

(iii) The child is not an Indian or native person.

(iv) The child's mother is (S.E.V.). The child's father is (W.J.M.).

(v) The child was removed from the care of (S.E.V.) on October 23, 2012 at Simcoe, Ontario, then returned to the care of (S.E.V.) on January 24, 2013 pursuant to the temporary order dated January 14, 2013 and then removed again from the care of (S.E.V.) on March 22, 2013 at Simcoe, Ontario.

2. Crown Wardship

The children T.J.P.M., K.M.M. and J.L.A.M. shall be made wards of the Crown and be placed in the care of the Children's Aid Society of Haldimand and Norfolk.

3. No Access

There shall be no access with the children by either of the parents S.V. or W.J.M.

4. Sibling Access

There shall be reasonable access between the siblings T.J.P.M., K.M.M. and J.L.A.M. to be arranged by the Children's Aid Society of Haldimand and Norfolk at its discretion as to location, duration, frequency and supervision.

Released: March 16, 2015

Signed: "Justice Kevin A. Sherwood"