WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Court File No.: C60596/13

Date: 2016-01-04

Ontario Court of Justice

Parties

In the Matter of an Amended Protection Application for the Crown Wardship of T., born on […], 2014 and a Protection Application for the Crown Wardship of O., born on […], 2015 under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Between:

Jewish Family and Child Service of Greater Toronto

Haley Gaber-Katz, for the Applicant

Applicant

- and -

E.W. and R.C.

David Miller, for the Respondent, E.W.

Ariel Schneider, for the Office of the Public Guardian and Trustee, for the Respondent, R.C.

Respondents

Heard: December 3, 2015

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The Jewish Family and Child Service of Greater Toronto (the society) has brought a motion for summary judgment seeking orders that the respondents' (the parents) three children be found in need of protection pursuant to clauses 37(2)(b) and (g) of the Child and Family Services Act (the Act) and be made crown wards, with no access, for the purpose of adoption.

[2] At the outset of the motion, the parties consented to an order that the parents' eldest child, N., born on […], 2012, was in need of protection pursuant to clause 37(2)(b) of the Act and that he be made a crown ward without access. The court was advised that the parents have entered into an openness agreement with the proposed adoptive parents of N. (the child's paternal aunt and uncle).

[3] During the hearing of the society's motion, the parents also consented to an order that the two younger children, being T., born on […], 2014, and O., born on […], 2015, are children in need of protection pursuant to clause 37(2)(b) of the Act.

[4] The respondent, E.W. (the mother), does not oppose the balance of the society's motion for summary judgment.

[5] The respondent, R.C. (the father), opposes the balance of the society's motion for summary judgment. He has proposed a plan that T. and O. be placed with him, subject to a six month supervision order.

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

a) Is there a triable issue for a disposition for T. and O. other than crown wardship?

b) If a crown wardship order is made, is there a triable issue over whether the father should have access to T. and O.?

Part Two – Legal Considerations

2.1 Summary Judgment

[7] The mother brings this motion pursuant to rule 16 of the Family Law Rules (the rules) – the summary judgment rule.

[8] The case law on summary judgment in family law matters prior to May 2, 2015 was summarized by Justice Ruth Mesbur in Native Child and Family Services of Toronto v. D.C., 2010 ONSC 1038, where she wrote in paragraphs 4-6:

[4] This motion is framed under rule 16 of the Family Law Rules. It is common ground that on a motion for summary judgment such as this, the court should not be assessing credibility, weighing the evidence or finding the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence and drawing factual inferences are all functions for the trier of fact. Bedard v. Huard (2000), O.J. No 969.

[5] The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court is required to make a final order and grant summary judgment. F.I. v. K.F., 2000 CarswellOnt 455 (ONSCJ). When the court looks at whether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party's position, but rather whether the evidence is sufficient to require a trial. Children's Aid Society of the County of Dufferin v. J.R., (2002) 45515 (ONCJ).

[6] Rule 16(4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing there is a genuine issue for trial.

[9] As of May 2, 2015, the rules have been amended to broaden the powers of the court on a summary judgment motion. Rule 16 has now been amended to include the same summary judgment powers set out in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. The relevant provisions of rule 16 now read as follows (with amendments bolded):

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16(1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16(2).

EVIDENCE REQUIRED

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

EVIDENCE OF RESPONDING PARTY

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

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

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

NO GENUINE ISSUE FOR TRIAL

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

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[10] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out the process to be followed in applying the expanded summary judgment rule in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure.

[11] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers. The legal principles set out in Bedard, above, would still apply at this stage.

[12] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).

[13] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).

[14] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).

[15] The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.

[16] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).

[17] The court also set out the following:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).

b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).

c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (paragraph 34).

d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).

e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and to resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).

f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

g) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).

h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial (paragraph 58).

[18] The principles in Hryniak have been applied to summary judgment motions in child protection cases since the amendments to rule 16 of the rules became effective on May 2, 2015. See: Children's Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378, per Justice Timothy Minnema and Children's Aid Society of Toronto v. A.G. and A.B., 2015 ONCJ 331, per Justice Roselyn Zisman and Children's Aid Society of Toronto v. L.S., 2015 ONCJ 527, per Justice Penny Jones.

[19] It is also necessary to consider subrule 2 of the rules to ensure that a case is dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity. A summary judgment motion is a tool that can contain and control a child's drift in litigation. This appears to also be in keeping with the process set out by the Supreme Court of Canada in Hryniak. See: Children's Aid Society of Toronto v. A.G. and A.B., supra.

[20] The court was able to determine this matter without applying the new powers under rule 16. The use of the new powers only served to reinforce this court's finding that there is no genuine issue for trial.

Part Three – Facts Not in Dispute

[21] The facts that follow in this part were not in dispute or were only baldly denied by the father.

[22] The society has been involved with the parents since January 31, 2012, when the mother was pregnant with N.

[23] The society was concerned about the cognitive functioning and developmental delays of both parents. The society was also concerned about the father's anger management.[1]

[24] The society provided many supports for the parents to be able to parent N.

[25] N. lived with the parents. The cleanliness of the parents' home soon deteriorated. The mother made allegations about abusive conduct by the father. The parents were not cooperating with the society workers.

[26] The society held two Family Group Conferences[2] to find additional ways to support the parents. Additional services were put into place, including cleaning services, a referral of N. to the Ontario Early Years Centre and anger management counseling.[3]

[27] After the second Family Group Conference, the mother and N. moved into the home of the father's aunt. The father visited N. daily before going to work. The parents resided together on weekends.

[28] The situation improved from August of 2012 until October of 2012. The parents' apartment was clean and the mother was not making complaints about domestic conflict. N. was developing normally.

[29] The father attended for a psychological assessment at Surrey Place. Their report was released on September 27, 2012. The report states that the father has learning difficulties, verbal delays, hyperactivity and inattentiveness. It states that his cognitive functioning is in the impaired range and that he has deficits with his adaptive skills. He was found to be functioning in the mild range of Intellectual Disability.[4]

[30] The paternal aunt went to Florida for the winter of 2012-2013 and the mother and N. moved back in with the father. Multiple supports were put in place by the society to support the family, including daily calls and many visits from extended family members, visits from the society worker and the Public Health Nurse.

[31] In January of 2013, the mother was making many allegations of abusive behaviour towards her and N. by the father. The mother was also telling the society that the father and his mother were threatening that she would not be able to see N. if she left the father.[5]

[32] The cleanliness of the parents' home began to deteriorate again. The mother's self-care and hygiene also began to deteriorate.

[33] The mother continued to report domestic abuse by the father to multiple professionals after January of 2013.

[34] On March 19, 2013, the mother and N. moved into a shelter. The society brought a protection application and a motion to place N. with the mother.

[35] On March 20, 2013, Justice Geraldine Waldman made a temporary order placing N. in the temporary care of the mother, subject to society supervision. The father's access was to be supervised by his family.

[36] The mother's home continued to be unsanitary. The mother frustrated visits from society workers. She also breached the court's supervision order by permitting the father to see N. The mother told the society that she wanted to reconcile with the father.

[37] Due to these protection concerns, the society advised the mother that N. would be apprehended if she did not find an alternate caregiver for him.

[38] On May 4, 2013, N. went to live with his current caregivers. He has lived with them ever since. N. has thrived in their care.

[39] Following N's placement, the parents reconciled.

[40] The parents' access to N. started at once each week. In June of 2013, access was reduced to once every six weeks. In 2015, the access was increased to once each month. The parents' access is supervised by the paternal aunt.

[41] The parents did not comply with the court order to permit the society to conduct regular home visits.

[42] The mother continued to make allegations of domestic conflict by the father during 2013.

[43] The mother became pregnant with T. in 2013.

[44] The parents did not permit the society to see their home until January 14, 2014.

[45] The mother presented a plan for her aunt (the maternal aunt) to care for T.

[46] T. was born on […], 2014 and apprehended by the society on March 17, 2014.

[47] On March 21, 2014, Justice Waldman made a temporary order placing T. with the maternal aunt, subject to society supervision, with access to the parents in the discretion of the society.

[48] T. has lived with the maternal aunt and her partner since March 21, 2014.

[49] T. has been well-cared for by the maternal aunt and her partner.

[50] T. has some developmental delays which will likely require services, such as occupational therapy and physiotherapy.

[51] The society brought a motion, returnable on April 24, 2014, to find that the father was a special party.

[52] On April 24, 2014, Justice Waldman adjourned this motion as the father wished to obtain a psychological assessment to contest the Surrey Place report.

[53] The father did not obtain an assessment.

[54] On May 8, 2014, Justice Waldman found that the father was a special party pursuant to subrule 2(1) of the rules. An order was made that the Public Guardian and Trustee represent the father, pursuant to subrule 4(3) of the rules.

[55] The mother became pregnant with O.

[56] On October 29, 2014, Justice Waldman ordered that Dr. Daniel Fitzgerald, a psychologist, conduct a Parenting Capacity Assessment of the parents pursuant to section 54 of the Act.

[57] O. was born on […], 2015 and apprehended by the society on January 16, 2015.

[58] On January 21, 2015, Justice James Nevins made a temporary order placing O. in the temporary care and custody of the maternal aunt, subject to society supervision, with supervised access, in the discretion of the society, to be a minimum of once weekly. He also ordered the parents to meet with the society worker as requested by the society.

[59] O. has lived with the maternal aunt, her partner and T. since January 21, 2015. She is developing normally and being well-cared for.

[60] The maternal aunt and her partner wish to adopt T. and O.

[61] The parents have exercised access to T. and O. supervised by the maternal aunt.

[62] Dr. Fitzgerald released his Parenting Capacity Assessment on April 15, 2015. It will be reviewed in more detail below. Dr. Fitzgerald opined that neither parent had the capacity to adequately parent a child.[6]

[63] The mother has missed many scheduled visits with T. and O. There was one gap of almost three months between April and July of 2015 where she did not visit them at all.

[64] The father only attended 13 visits with T. from March of 2014 until July 12, 2015.[7]

[65] The father did not visit T. at all from April 13, 2014 until November 22, 2014.

[66] The father's visits after January 16, 2015 included both T. and O.

[67] The father did not visit T. and O. from March 15, 2015 until July 12, 2015.

[68] The father has resumed seeing T. and O. since July 12, 2015. His visits are supervised at the home of the maternal aunt. The visits were scheduled to take place every Sunday. Up until the start of November of 2015, visits were missed on August 2 and 16 and September 6 and 13.

[69] The father has not opened his home to the society for a home visit since March 15, 2015.

[70] The society workers have left many messages with the father to set up a home visit. The society has also emailed the father for this purpose. He is not responding to these messages.

[71] On August 24, 2015, the society worker was speaking to the mother, who indicated that she was with the father. The worker asked to speak to the father to arrange a home visit. She heard the father say in the background that he was too busy.

[72] On September 25, 2015, the society worker called the mother who said that she was visiting the father. She asked to speak to the father. The mother said that he was unavailable and suggested that the worker arrange the home visit through her. The worker attempted this, but the father was not available on any of the proposed dates.

[73] On October 15, 2015, the society worker called the father and the mother answered. The worker asked for a home visit. The mother answered that "they were taking care of a few things and would get back to her with dates".

[74] On October 21, 2015, the worker called the father and the mother answered. She said that the father was sleeping. The mother said they needed to put the home visits on hold.

[75] On October 25, 2015, the worker was able to reach the father and attempted to arrange a home visit. The father refused and said he didn't trust the worker.

[76] The parents did not contest Dr. Fitzgerald's conclusions about the mother in his report. Dr. Fitzgerald reported that the psychological testing results were consistent with the mother having an Intellectual Disability, Delusional (Paranoid) Disorder, Generalized Anxiety Disorder and Post-traumatic Stress Disorder.

[77] Dr. Fitzgerald reported that the mother's general cognitive ability is within the Extremely Low range of intellectual function and her verbal reasoning abilities are in the Borderline Range. The mother's vocabulary skills are limited. Her memory skills are very weak. Her ability to process simple or routine visual material without making errors is in the Extremely Low range. The mother is extremely limited in her ability to reason, solve problems and acquire new information.

[78] Dr. Fitzgerald wrote that the mother lacks the personal and psychological resources to prevent her own inner conflict from overwhelming her controls. She struggles with a chronic anxiety which can lead to tension, recurring headaches fatigue and insomnia.

[79] Dr. Fitzgerald found that due to the mother's cognitive limitations and poor family experiences, she has a limited repertoire of skills and understanding to be able to apply to situations involving the care of a child.

[80] The parents have continued to have an on-again/off-again relationship. A society worker stated her belief that the parents are currently back together, based on the number of times she has called one of them and the other is present. She also observed on September 9, 2015, that the mother did not have furniture, food or clothes in her home. The mother told her she that was living with a friend.

[81] The father did not deny that he is presently involved in a relationship with the mother – only that she is not part of his plan to care for the child and that they are not residing together.

[82] At a minimum, the parents are presently spending a lot of time together.

[83] The father is 34 years old.

[84] The father is steadily employed with UPS Delivery. He works a night shift.

[85] The father plans to have his mother (the paternal grandmother) play an important role in his plan for T. and O.

[86] The paternal grandmother is 63 years old. She is single.

[87] The paternal grandmother has some physical limitations and requires help with some tasks from time to time. When she lived with the mother, on occasion she asked her to help her with tying her shoes or brushing her hair.

[88] The paternal grandmother has made allegations in the past to the society that the father had been physically abusive to her – that he hit her and swore at her.[8] Both the father and the paternal grandmother deposed that the paternal grandmother's allegations were untrue. The father deposed that these allegations were made for her to obtain subsidized housing on a priority basis.

Part Four – Legal Considerations on Disposition

[89] The court's disposition options in this case are set out in subsection 57(1) of the Act. This subsection reads as follows:

Order where child in need of protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

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

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57(1); 2006, c. 5, s. 13(1-3).

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

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

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

3. If a society wardship order is made determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests (section 58.)

[91] Subsection 57(2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part III of the Act. The evidence set out in the affidavit material sets out significant efforts to support the parents both before and after the society's intervention under Part III of the Act.

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

[93] Subsection 57(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care. T. and O. have been placed with family members.

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

Best interests of child

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

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 by blood or through an adoption order.

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.

[95] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J), (1997) 23 R.F.L. 4th 79 (SCJ-Family Branch).

[96] In determining the best interests of the children, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the children's perspective. See: Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

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

[98] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.).

Part Five – The Plans of Care

[99] The society's plan of care is to make T. and O. crown wards without access for the purpose of adoption. The maternal aunt and her partner wish to adopt T. and O. Barring unforeseen circumstances, the society supports this. The society is very pleased with the quality of care that the maternal aunt has provided for T. and O.

[100] The maternal aunt and her partner are prepared to facilitate contact for T. and O. with the parents and N.

[101] The father's plan is to have T. and O. placed in his care, subject to terms of society supervision. He will receive daily help from the paternal grandmother. The paternal grandmother is prepared to move in with the father, if required.

[102] The father presently works from 6 p.m to 11 p.m. He says that he is available to care for the children during the day. He said that he will change his work schedule once the children attend school, so that he can work during the day and be home when they return home from school.

[103] The father's friend, B.B., deposed that she can assist the father. She said that she could visit regularly, at least once per week to make sure everything is fine and to help out. She said that she would also be available to look after and babysit the children on evenings and weekends, if needed.

[104] The father deposed that he is willing to work with any programs available to him to help him care for the children. He said that he would cooperate and work with the society.

Part Six – Is There a Genuine Issue Requiring a Trial Based Only on the Evidence Before the Judge, Without Using the Judge's New Fact-Finding Powers?

[105] The court does not have to use its new fact-finding powers to determine that there is no genuine issue for trial.

[106] The least disruptive alternative for T. and O., consistent with their best interests is to make them crown wards.

[107] The court is not relying on contested evidence at this stage to reach this conclusion. In particular, the court is not relying upon contested evidence that:

a) The father has been physically and emotionally abusive to the mother.

b) The father has been physically and emotionally abusive to the paternal grandmother.

c) The father has anger management issues.

d) The father's intellectual and psychological limitations prevent him from caring for the children.

[108] The uncontested or baldly denied evidence reveals several reasons why it is not in the best interests of T. and O. to be placed in the care of the father.

[109] The first significant reason is that the father has had a very limited relationship with the children. He is permitted to see the children, supervised, once per week. His attendance at scheduled access visits since March of 2014 has been sporadic.

[110] The father only saw T. 13 times between March of 2014 and July 12, 2015.

[111] The father did not visit T. at all from April 13, 2014 until November 22, 2014.

[112] The father did not visit T. and O. from March 15, 2015 until July 12, 2015.

[113] Children require their parents to be present. It is essential to their stability, sense of security and development.

[114] The father has often been absent from the lives of T. and O. No court can have confidence that he will provide stable and consistent parenting for his children when he can't even attend access consistently. If the father cannot organize his life to attend access visits regularly, how can the court believe that T. and O. will be his priority?[9]

[115] The father deposed that the maternal aunt has frustrated his access. He provided no real evidence of this. However, even if this had been the case, he took no steps to enforce his access to T. and O., despite multiple court appearances.

[116] The father used the time it takes him to travel to the maternal aunt's home (he deposed it takes him 2 hours by transit) as an excuse for his sporadic access. The court recognizes that the travel time made the exercise of access more challenging for the father. However, many parents with children placed with the society or other caregivers have to travel for long periods of time to exercise access. Committed and responsible parents find a way to do this – often more than once per week. Less capable parents are unable to do this. If the children were placed with the father, he would face many challenges and obstacles. His failure to meet the access challenges gives the court little confidence that he would be able to meet other challenges and obstacles he would inevitably face when parenting the children.

[117] The travel distance certainly does not explain the father exercising no access for almost 4 months in 2015.

[118] The father argued that he has not been given an opportunity to parent T. and O. This argument has no merit, when he hasn't come anywhere close to exercising the parenting time afforded to him.

[119] The second significant reason is that the father has not demonstrated that he can care for these children. This is interrelated with the first reason.

[120] The father has only had supervised access with T. and O.[10] It would be irresponsible for a court to return these children to his care until he could demonstrate that he could adequately parent these children without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place T. or O. with the father without first testing whether he could adequately parent the children, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This process would need to take place for at least 6 months for the court to effectively evaluate whether a return of a child was viable. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child on an extended basis. The time to attempt extended access in this manner has long passed: in the case of T. the statutory timelines in the Act have been exceeded and O. is at the outer edge of these timelines.

[121] The process of evaluating extended access never took place. The father has only had limited supervised access. He never moved to the court to increase his access, despite being represented.[11]

[122] The third significant reason is that even if T. and O. were returned to the care of the father, it would have to be pursuant to strict terms of supervision. For the court to make a supervision order, it would need to be confident that the father would comply with the order. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196 and my comments in Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227.

[123] The evidence shows that it is highly unlikely that the father would comply with a supervision order. He has not opened his home to the society for a visit since March 15, 2015. He has not responded to multiple phone calls and emails from society workers to see his home. He does not trust the society and has been unwilling to work cooperatively with them for a long time.

[124] The uncontested evidence also reveals other reasons why the father's plan has no realistic chance of success:

a) The father states the paternal grandmother will be an important part of his plan. However, she has made significant allegations of abusive conduct by him to the society in the past. Now, both she and the father deny these allegations, the father claiming that the paternal grandmother made these allegations to obtain subsidized housing. At best, this evidence indicates that the paternal grandmother cannot be expected to work honestly with the society.

b) The paternal grandmother has physical limitations and admitted that the mother would sometimes have to tie her shoes or brush her hair. It would be very challenging for her to care for two active toddlers.

c) The paternal grandmother does not have a relationship with T. and O.

d) The father claims that he deliberately did poorly on the Surrey Place assessment to get services from them. This demonstrates poor judgment and dishonesty. It gives the court little confidence that he would work honestly with the society.

e) The father shows no insight in his affidavit into the protection concerns. He externalizes all blame on the society or the mother for his children being in society care. This makes him a poor candidate to effectively use services to mitigate the protection concerns. In particular, the court notes that the father was living with the mother when the condition of their home deteriorated. The father completely blamed the mother for this and took no responsibility for the condition of the home. He was unable to provide a suitable environment for N. at that time.

f) The father's plan is very vague about who will care for T. and O. at various times and who would take T. to appointments to meet his special needs.

g) The father has been involved in a tumultuous relationship with the mother. She has made and recanted many allegations of severe physical and emotional abuse against him. Both the father and paternal grandmother make multiple allegations about the mother's poor parenting and character in their affidavits.[12] Yet it appears that the parents are continuing to spend considerable time together. This is concerning for T. and O., in light of the instability of this relationship and the mother's parenting limitations.

h) Taking the father's evidence at its highest, he still has intellectual limitations that adversely impact on his ability to care for children. While intellectual limitations do not necessarily preclude a parent from caring for his or her children,[13] particularly if strong supports are in place, this factor becomes more cogent when considered in context with the other limitations of the father set out above.

i) T. has special needs. He requires a higher level of caregiving than most children. He requires a parent who can organize and keep his appointments,[14] be perceptive to his needs and work well with professionals. The evidence is clear that the father is not capable of adequately meeting T.'s special needs.

j) It is a positive in the father's plan that B.B. will provide support. However, she is not available to provide anywhere near the level of support that the father requires to make his plan viable.

[125] The court finds, based on the uncontested or baldly denied evidence that:

a) The society's plan will better meet T.'s and O.'s physical, mental and emotional needs. T. and O. are doing very well in a family placement with loving and capable caregivers.

b) The society's plan will better meet T.'s and O.'s physical, mental and emotional level of development.

c) The society's plan will better meet T.'s and O.'s needs for continuity and a stable place in a family through adoption. The maternal aunt is what professionals frequently describe as "the psychological parent" for T. and O.

d) The risk of placing T. and O. with the father is unacceptably high. T. and O. would be moving from a stable to an unstable environment.

e) The society's plan will better address T.'s and O.'s needs than the plan proposed by the father.

f) This case should not be delayed any further and T. and O. should receive a permanent home as soon as possible. It is in their best interests that this placement be in an adoptive home. A custody order to the maternal aunt would not achieve the permanency that is in T.'s and O.'s best interests, particularly given their young ages. It is not in T.'s and O.'s best interests to choose a disposition that would likely continue litigation. See: Children's Aid Society of Toronto v. E.S., 2012 ONSC 4771.

Part Seven – The New Fact-Finding Powers

[126] While it is not necessary for the court to use its new fact-finding powers, the use of these powers reinforces the court's finding that there is no genuine issue for trial.

[127] The new fact-finding powers are most relevant in determining how much weight to give to the Surrey Place report and Dr. Fitzgerald's assessment of the father.

[128] The Surrey Place assessment, conducted in 2012, concluded the following about the father:

a) He has learning difficulties, verbal delays, hyperactivity and inattentiveness.

b) His cognitive functioning is in the impaired range and he has deficits with his adaptive skills.

c) He is functioning in the mild range of Intellectual Disability.

[129] Based on this assessment, the father was declared to be a special party and counsel was appointed for him through the Public Guardian and Trustee.

[130] Dr. Fitzgerald reported that the father met the criteria for Intellectual Disability, major Depression, Adjustment Disorder with Anxiety and Dependent Personality Disorder and Obsessive Compulsive Personality Features.

[131] Psychological test results set out the following about the father:

a) He is in the extremely low range (.4 percentile) in verbal reasoning abilities. This indicates that he has a limited fund of general knowledge and difficulty using language to express his thoughts and ideas. His understanding of verbal concepts is very limited.

b) His non-verbal reasoning abilities are in the Borderline range (7th percentile). This reflects limited non-verbal reasoning skills. This is concerning when combined with his poor verbal reasoning skills. This affects his judgment and ability to learn.

c) His ability to retain information, sustain concentration and exert mental control is in the extremely low range (.1 percentile).

d) His IQ is 59, which is well below the first percentile.

e) His personality testing showed him to be fearfully dependent, socially anxious and self-demeaning. He is likely to experience extended periods of dejection and helplessness. He reported feelings of apathy and weakness and has a tendency to succumb easily to physical exhaustion and illness.

f) He has some ability to be empathetic to children.

g) He tends to take a reactive approach to parenting situations. He does not easily explore situations in order to gain a deeper understanding of what is going on, but is more likely to react by being authoritarian or punitive.

[132] It is interesting to note that when Dr. Fitzgerald asked the father who his supports were, he said they were his friend, B.B., and the maternal aunt (whom he is now criticizing). He did not list the paternal grandmother as a support.

[133] Dr. Fitzgerald concluded that neither parent exhibits the degree of maturity, self-awareness, insight or level of successful adaptive functioning that would enable them to take on the responsibility of providing day-to-day care of a child.

[134] Dr. Fitzgerald concluded that if any child was placed in the care of either parent, he or she would be at risk of physical and emotional harm.

[135] The father claimed that he deliberately did poorly on the Surrey Place assessment in order to obtain services. This is highly unlikely, particularly since the assessment is consistent with Dr. Fitzgerald's test results.

[136] The father submitted that it was essential for him to be able to cross-examine Dr. Fitzgerald to properly weigh his evidence. He claims that Dr. Fitzgerald was biased, rushed his assessment and only read society information prior to starting his assessment.

[137] The court disagrees with this submission.

[138] The father was represented by counsel throughout this process. He never objected to Dr. Fitzgerald conducting the assessment. He had the opportunity to participate in putting the assessment questions to Dr. Fitzgerald and providing him with whatever material he wanted.

[139] The father could have moved for leave to cross-examine Dr. Fitzgerald prior to the hearing of this motion and chose not to.

[140] The father provided no evidence that the test results were inaccurate or misinterpreted.

[141] The father provided no evidence to contradict Dr. Fitzgerald's findings (such as another assessment).

[142] The psychological testing of Dr. Fitzgerald was consistent with the Surrey Place report.

[143] Courts should always treat assessments with caution. A psychological assessment is not determinative of a parent's ability to parent. The assessor does not have the benefit of the full evidentiary record that the judge has. These reports, by their very nature, are predictive. They are just one piece of evidence and what is important for the court is to evaluate how the findings do or do not correspond with the evidence presented. Here, the findings of Dr. Fitzgerald are consistent with the other evidence before the court and help explain the father's behaviour and challenges.

[144] The new fact-finding powers also assist the court in determining the following facts:

a) The father claimed that he has cooperated with the society. He provided society case notes as evidence of such cooperation. However, he was unable to provide any evidence of cooperation after 2013 and did not provide any legitimate explanations for the specific examples given by the society of his lack of cooperation (particularly throughout 2015).

b) The father claimed that the maternal aunt has frustrated his access. The maternal aunt denies this. The maternal aunt's evidence is much more plausible. She continues to facilitate access and had positive things to say about the father in her affidavit. She is committed to continuing contact between the parents and siblings after adoption. The father told Dr. Fitzgerald in late 2014 that the maternal aunt was one of his supports. The father never moved to enforce or increase access. If he truly felt that his access was being frustrated, he was represented by counsel and in court often. He could have taken steps to see the children more often. The evidence is very clear that it was his choice not to exercise regular access.

c) The court also finds the maternal aunt's observations about the father's parenting of T. and O. to be credible. Her evidence is balanced and consistent with the observations of society workers, N.'s caregiver and Dr. Fitzgerald. She has observed that the father is very loving to T. and O. He will sit on the floor and play with T. He will interact verbally with both children. He has provided some money for formula and diapers, brought floor mats and gave her money to paint T's room. She said that she appreciated his actions and this demonstrated responsibility. However, she says that the father still needs supervision with the children. He has difficulty understanding what activities are safe and age-appropriate for them. He also does little instrumental care of the children, such as changing diapers.

d) N.'s caregiver deposed that the parents' visits with N. generally go well. The father is affectionate with N. She deposed that the parents are not consistent in their attendance. The visits are fully supervised. She said that at times, the father becomes distracted during visits and plays on his phone instead of with N. She said that the father usually defers to her to manage N.'s behaviour.

e) The father deposed that he is concerned about the way the maternal aunt is caring for T. and O. The extent of this concern was his allegation that she often places them in front of the television for long periods of time. Given the very limited amount of time that the father has spent with the children, he is not in a position to judge if this is the case. He provided no other evidence of parenting concerns about the maternal aunt. The evidence is overwhelming that the maternal aunt is providing a high level of care for the children.

[145] The court would not require oral evidence from Dr. Fitzgerald or the maternal aunt (or for them to be cross-examined) to have a full appreciation of the evidence for the determination of the society's motion.

[146] The evidence weighed above informs the court that:

a) The father has considerable intellectual and psychological challenges that adversely affect his ability to adequately care for T. and O.

b) The father, despite his love for his children, has limited parenting ability and requires continued supervision when he sees them.

c) The risk of placing either T. or O. in the father's care is far too high.

[147] It is important to note that the court is not making any finding that the father was physically or emotionally abusive to the mother or the paternal grandmother, or that he has anger management issues, at this stage of the analysis. The court would require oral evidence to make these determinations. The mother, who made the allegations of violence against the father, has serious credibility issues. However, due to the other overwhelming evidence, it is not necessary for the court to make these determinations in deciding whether to grant the society's motion.

[148] There is no genuine issue for trial. T. and O. will be made crown wards.

Part Eight – Access

8.1 The Law

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

Access: Crown ward

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

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

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

[150] The onus to rebut the presumption against access to a crown ward is on the person seeking access. See: Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (Ont. C.A.). This person has the onus of establishing both portions of the test in subsection 59(2.1) of the Act.

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

[152] The issue is not whether the parent views the relationship with the child as beneficial and meaningful. The court must examine the quality of the relationship from the child's perspective. See: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850.

[153] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family) where he said:

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

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

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

[154] More is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being. Even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child. An access order cannot be merely a consolation prize for disappointed adults. See: The Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731.

[155] The court must consider whether the relationship is beneficial and meaningful to the child at the time of the hearing. Considerations of openness should not be imported into this analysis. See: Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638.

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

8.2 Analysis

[157] There is no doubt that the father loves T. and O., or that he has pleasant visits with them. However, he fell far short of meeting his onus to show that the relationship is beneficial and meaningful for the children as interpreted in the case law.

[158] The father has been inconsistent in exercising access. He has had long gaps where he has not even seen the children. He has been an occasional visitor in their lives.

[159] There is no genuine issue for trial regarding the father's access. The access is not beneficial and meaningful for T. and O.

[160] Since the father did not meet the first part of the two-part test to obtain an order for access, it is unnecessary for the court to determine if the father would have met the second part of the two-part test.

[161] No order for access will be made.

Part Nine – Conclusion

[162] An order will go on the following terms:

a) The society's motion for summary judgment is granted, there being no genuine issue for trial.

b) The statutory findings for T. and O. are made as requested in subparagraphs 2(a) and 3(a) of the society's motion for summary judgment.

c) T. and O. are found to be in need of protection pursuant to clause 37(2)(b) of the Act.

d) T. and O. will be made crown wards without access, for the purpose of adoption and placed in the care and custody of the society.

[163] The court wishes to thank counsel for their professional and thorough presentation of this motion.

Released: January 4, 2016

Justice Stanley Sherr

Footnotes

[1] These are the stated concerns of the society at the time, not findings of fact. The father disputes the extent of his cognitive delay and that he has had anger management issues.

[2] The first Family Group Conference was held on June 4, 2012 and the second conference was held on August 8, 2012.

[3] Again, the court is not making a finding here that the father had anger management problems, only that the society had this concern. The evidence indicates that the father attended anger management counseling, was engaged in the process and did very well in his sessions with the counselor.

[4] The court is not treating the findings in this report as undisputed facts or as facts only baldly denied by the father, only that these were the results which informed, in part, the steps subsequently taken by the society and the court. The father claims that he deliberately underperformed on these tests to obtain services from Surrey Place. He does concede that he has intellectual limitations – just not to the degree described in the Surrey Place report.

[5] The court is not finding that the father was abusive (or that he and his mother were threatening the mother), only that the mother was making these allegations.

[6] The father does not agree with Dr. Fitzgerald's findings about him. The court is not treating these findings as undisputed facts, or facts that are only baldly denied.

[7] The society provided specific evidence of the father's attendance at visits. The father did not specifically deny this evidence. He claimed that he exercised access consistently during the winter of 2014/2015, but provided no specific evidence to support this statement.

[8] In his affidavit the father deposed that he had been advised that the paternal grandmother had told the society that he had punched her in the jaw and had threatened to set her on fire.

[9] See: Children's Aid Society of Toronto v. R.M., 2012 ONCJ 598, where Justice Robert Spence writes at paragraph 61:

Third, the mother has missed a substantial portion of her access visits, without any real explanation. A parent who is seeking to regain custody of her child needs to make that her number one priority. That would include demonstrating to the court that she is attending virtually every visit, absent a true emergency. If she cannot set aside sufficient time to attend visits for four hours per week, how is it possible for the court to conclude that her child will be her priority for 168 hours per week? In this case, for the three-month period leading up to shortly before the start of this trial - a time which the mother ought to have known would be most closely scrutinized by the court - mother missed approximately 40% of the scheduled visits.

[10] He also only has supervised access to N.

[11] The court notes that even if the father had brought such a motion, the evidence indicates it is unlikely that he would have been successful.

[12] The society also noted that when the parents and the paternal grandmother resided together in 2012, the paternal grandmother increased the domestic conflict in the home. This was not denied.

[13] See: Children's Aid Society of Kingston v. R. (F.), [1975] O.J. No. 1686 (Ont. Prov. Ct.) which sets out that the court must examine whether the parent can meet their parenting responsibilities.

[14] T. will need to be taken for occupational therapy and physiotherapy.