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.: C56190/12

Date: 2016-04-04

Ontario Court of Justice

In the Matter of a Status Review Protection Application for the Crown Wardship of J.H., born on […], 2008, under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Parties

Between:

Children's Aid Society of Toronto

Sherri Smolkin, for the Applicant

Applicant

- and -

R.H. and R.B.

Janet Daby, for the Respondent, R.H. Colin Tobias, for the Respondent, R.B.

Respondents

Mary P. Reilly, on behalf of The Office of the Children's Lawyer, for the child, J.H.

Heard: March 24, 2016

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The Children's Aid Society of Toronto (the society) has brought a motion for summary judgment within its status review application seeking an order that J.H. (the child), born on […], 2008, be made a crown ward. It seeks an order that the child's parents, the respondents R.H. and R.B. (the parents), have access to the child in the discretion of the society, a minimum of one time each month. It also seeks an order that the child have access to his three siblings, to be agreed upon between the parties and the legal guardians for the siblings.

[2] The respondent, R.H., is the child's mother. She seeks a dismissal of the society's motion. She also brought a cross-motion for the return of the child to her care or in the alternative, unsupervised access to him.

[3] The respondent, R.B., is the child's father. He did not file any material on this motion and did not oppose the child being made a crown ward. He asked for his access to the child to be weekly.

[4] The Office of the Children's Lawyer (OCL), on behalf of the child, supported, for the most part, the society's summary judgment motion. It supported the child being made a crown ward. However, it asked that the parents continue to have weekly access to the child, supervised in the discretion of the society. It also asked the court to make reciprocal access orders for the child, his parents and his siblings, so that the child would have access to his siblings and parents and they would have access to him.

[5] The parents supported the OCL's request for reciprocal access orders if a crown wardship order is made.

[6] The society opposed the OCL's request for reciprocal access orders.

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

a) Is there a genuine issue requiring a trial for a disposition for the child other than crown wardship?

b) If a crown wardship order is made, is there a genuine issue requiring a trial about the form of access that should take place between the child and his parents?

c) Should the court make any access orders on this motion between the child and his siblings, and if so, should reciprocal access orders be made?

Part Two – Legal Considerations on Summary Judgment

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

[9] 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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).

[14] 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).

[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 (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; Children's Aid Society of Toronto v. L.S., 2015 ONCJ 527, per Justice Penny Jones and this court's decision in Jewish Family and Child Service of Greater Toronto v. E.W. and R.C., 2016 O.J. No. 9 (OCJ).

[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.

Part Three – Facts Not in Dispute

[20] The court was able to determine this matter without applying the new powers under rule 16. Most of the material facts were not in dispute.

[21] The facts that follow were not in dispute or were only baldly denied by the mother. Many of these facts were contained in various Statements of Agreed Facts filed with the court by the parties regarding the child and his siblings.

3.1 Finding in Need of Protection

[22] The respondents have four children, including the child. None of the children are in their care. R1 and R2 are 8-year-old twins (the twins). J2 is 5 years old.

[23] On March 2, 2012, all four of the children were apprehended from the care of the mother.

[24] The children were apprehended due to the society's concerns regarding the mother's neglect of the children's emotional and physical needs, her inability to maintain stable housing and her poor parenting skills – in particular her inability to manage the children's behaviour and to properly supervise them.

[25] On March 7, 2012, all four children were placed in the temporary care of the society, with access to the parents supervised in the discretion of the society, a minimum of twice each week.

[26] On April 20, 2012, the mother was incarcerated at the Vanier Centre. She was charged with a number of serious criminal offences, including robbery, break and enter and possession of firearms. The mother did not exercise access to the children while in jail, but did start telephone access with them in September of 2012.

[27] On June 20, 2012, on consent, Justice Debra Paulseth found all four children to be in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) (risk of physical harm) of the Child and Family Services Act (the Act). She also found the child and R2 to be in need of protection pursuant to subclauses 37(2)(a)(i) and (ii) (actual physical harm) of the Act.

[28] The children had suffered significant neglect of their physical and emotional needs. All four children came into care with behavioural challenges and developmental delays.

[29] The twins presented as aggressive. They were hyperactive, often screaming and swearing, and lacked personal boundaries. They had speech delays. Once they came into the care of the society, they required extensive and painful dental work. This was due to severe neglect of their dental hygiene while in the mother's care.

[30] The twins also had made allegations of inappropriate sexual behaviour against the father and a babysitter named Uncle Smokey. The police investigated, but did not have adequate evidence to lay charges.

[31] R2 burned her hand in January of 2012 while being babysat by Uncle Smokey.

[32] The child and J2 were assessed as having developmental delays. They also presented with some self-harming and aggressive behaviours. It was recommended at that time that they receive intensive parenting attention with full time caregivers who could focus on them and who had a strong support system.

[33] The mother deposed that she was young and overwhelmed with the needs of caring for four young children. She claimed that she was physically and emotionally abused by the father and received little support from him.

[34] On September 10, 2012, the twins were placed in the temporary care of a family friend of the mother (I.L.), subject to society supervision.

[35] The mother remained in jail until December 21, 2012. While in jail, she participated in 7 workshops and 2 programs related to personal growth, parenting and anger management.

[36] The mother was required to reside with her surety under house arrest as a term of her release from jail. She began to see the children, supervised at the society's office.

[37] On February 1, 2013, the father was arrested due to having outstanding traffic tickets. He was released from jail on March 6, 2013 and subsequently exercised access to the children once each week, supervised at the society's office, starting on April 22, 2013.

[38] The mother pled guilty to some of the criminal charges (not specified) on February 7, 2013. She was sentenced to time served and was placed on probation for one year.

3.2 The Child's Placement with the Maternal Grandparents

[39] On February 19, 2013, the child and J2 were placed in the temporary care of their maternal grandparents, subject to society supervision.

[40] On October 23, 2013, on consent, a final order was made in the protection application placing the child and J2 in the care and custody of the maternal grandparents, subject to society supervision, for 6 months. Access to the parents remained in the discretion of the society, a minimum of one hour each week for the mother. The society retained the discretion to offer no access to the father.

[41] On the same day, a final custody order was made placing the twins with I.L., pursuant to section 57.1 of the Act with reasonable access to the mother as agreed to by I.L. and the mother, a minimum of two times each month. At that point, the child protection case for the twins ended.

[42] The twins have remained in the care of I.L. and are reportedly doing well.

[43] The child and J2 both struggled in the care of the maternal grandparents. The child and J2 exhibited behavioural challenges at home and in school. The child, in particular, had severe challenges.

[44] The behavioural needs of the child and J2 became too hard for the maternal grandparents to manage and they advised the society in July of 2013 they could no longer care for them. They agreed to care for the child and J2 until another placement could be found for them.

3.3 The Therapeutic Access Program

[45] In June of 2013, the mother was referred to the society's Therapeutic Access Program (TAP). This is a program that provides intensive parenting instruction and evaluation. The mother had about 110 hours of parenting time at the TAP. During this process, the mother's access was expanded to 4 hour periods, twice each week, in order to assess her ability to manage the child and J2 (the children) for longer periods of time.

[46] The TAP report observed parenting strengths for the mother. She presented as a likeable, friendly mother who always arrived early and was eager to parent her children. She would engage with the children well during playtimes, getting on the floor with them. She made some gains in recognizing their emotional cues and appeared to share a close bond with them, often expressing verbal and physical affection freely. The mother was usually friendly with staff and had a healthy sense of humour and easy social ability. She took pride in her children's accomplishments.

[47] However, the report also observed many parenting deficiencies of the mother. She was unable to respond consistently to her children's emotional cues, leaving them to develop negative behaviour to seek attention. The children did not see her as someone who could respond and be helpful for them if they were distressed. She struggled to parent them in a way that would help stimulate their development and overcome their delays.

[48] The mother would often become angry and withdraw from the children when confronted by their negative behaviours. This would agitate the children further. She had difficulty regulating their emotions and calming them.

[49] The mother was not able to consistently help the children make gains in their developmental lags and follow through with treatment and support plans. She was unable to follow through with suggested activities at visits to assist the children with these delays.

[50] The mother was provided with considerable direction and strategies about these challenges, but had difficulties following through with them, often repeating her negative parenting.

[51] It was observed that the child struggled adjusting to the longer visits that took place during the TAP process. He would have difficulty settling back at home after visits.

[52] The mother did not dispute the observations set out by the TAP supervisor. She conceded that her parenting of the child did not go well during this program and that she struggled to manage his behaviour. She attributed this to the child wanting all of her attention.

[53] The TAP process ended in December of 2013, with the recommendation that the society look for someone other than the mother to provide a permanent placement for the child.

[54] The society access supervisors deposed that the mother continued to struggle with managing the child's behaviour and in responding to his cues at access visits after the TAP process was completed.

3.4 The Child's Placement with R.G.

[55] In February of 2014, a community member (R.G.) presented a plan to care for the child and J2. This plan was eventually approved by the society. The child and J2 went to this home for an extended visit on May 20, 2014.

[56] On June 24, 2014, a final order was made on a status review application placing the child and J2 in the care of R.G. and her spouse for a period of 6 months, subject to society supervision. Access remained in the society's discretion, in consultation with the caregivers.

[57] Initially, the parents exercised access, supervised in R.G.'s home. This did not last long as the relationship between the mother and R.G. deteriorated. The mother made a number of complaints about the condition of the children. R.G. claimed that the mother was not following the rules she was setting. The mother claimed that R.G. was upset because she brought gifts for her children and not those of R.G.

[58] The visits were moved back to the society office, fully supervised.

[59] The child did poorly in R.G.'s home. He had a hard time following direction and was very defiant. He had frequent tantrums.

[60] In September of 2014, R.G. advised the society that caring for the child and J2 was too stressful and she and her partner would be unable to plan for them permanently.

[61] The child came back into society care on December 31, 2014.

[62] J2 remained with R.G.

3.5 The Child's Foster Placement

[63] The child was placed in a specialized two-parent foster home at the start of 2015. He remains there.

[64] The child initially had difficulty settling into this home and displayed the same behavioural issues as before. He was defiant. When he was upset, he had tantrums, would swear and kick the wall. He had difficulties in school. He refused to go into the classroom and didn't follow the directions of school staff.

[65] The school set up a modified education program for the child. The society provided a Child and Youth Worker to see him weekly.

[66] The foster parents have also been supported by a "Team Parenting" model that is provided by their foster parent organization. This ensures that they have instant access to various training and support services, including a therapist.

3.6 Dr. Fitzgerald's Assessment

[67] In March of 2015, the child was psychologically assessed by Dr. Daniel Fitzgerald. Dr. Fitzgerald found that the child had significant cognitive delays and had a Mild Intellectual Disability. He also reported that the child experiences a broad range of social, emotional and behavioural difficulties. He wrote that the child's thinking is illogical and irrational and he lacks the capacity to view social situations from different perspectives.

[68] Dr. Fitzgerald stated that the psychological testing results are indicative of a diagnosis of ADHD as well as an anxiety disorder and a mood disorder. The child's cognitive limitations pose further challenges to his ability to manage his emotions.

[69] Dr. Fitzgerald's overall impression was that the child displays a moderate to severe developmental disturbance and has significant emotional and behavioural difficulties which are likely to present challenges for him for years to come.

[70] Dr. Fitzgerald stated that the child requires a highly structured, stable environment with caregivers who are skilled in effective behaviour management and have the resources to meet his very dramatic needs. He needs to receive greater support to develop the capacity for self-regulation over the next 2 years. Otherwise, there is a high risk for the child to have significant emotional, behavioural and mental health difficulties in the years to come.

[71] Dr. Fitzgerald wrote that the child has had frequent changes in caregivers and this instability has further impaired his developmental gains. Dr. Fitzgerald concluded that stability in his home life and the consistent provision of educational and treatment resources are key for him at this time.

[72] The mother did not have any issue with Dr. Fitzgerald's findings or recommendations. However, she feels that she is the person who can best meet the child's needs as set out by him. She deposed that his report has given her greater insight into her child's needs.

3.7 The Society Wardship Order

[73] The mother exercised access for one hour per week, fully supervised, at the society office after the child came into the care of the society at the start of 2015.

[74] The mother presented her own plan to care for the child in April of 2015. She had not been planning for the child before then, instead supporting the plans of the maternal grandparents and then R.G.

[75] The mother brought a motion to increase her access and on May 14, 2015, Justice Paulseth increased her access to the child to 1.5 hours per week, fully supervised.

[76] On June 14, 2015, a final protection order was made, on consent, on a status review application, making the child a society ward, for a period of 4 months and 2 weeks. Access to the parents remained at the discretion of the society, a minimum of 1.5 hours each week.

[77] The parties agreed in a Statement of Agreed Facts filed in support of this order that the order was in the child's best interests as "he continues to display difficult behaviour and the mother is not able to care for him at this time" [emphasis mine].

3.8 The Child's Behaviour Since the Society Wardship Order

[78] The child began to show some improvements in his behaviour in the specialized foster home in the early fall of 2015. However, his behaviour regressed again late in 2015. In 2016, his behaviour has varied, although overall, it has improved somewhat since the start of 2015. He has difficulty with changes and with transitions between home and school or home and access visits. He continues to pose behavioural challenges for the foster parents and his teachers. He is in a specialized educational program at school.

[79] On September 2, 2015, Dr. Mitesh Patel completed a psychiatric assessment of the child. Dr. Patel found that the child appears to meet the criteria for Oppositional Defiance Disorder (moderate to severe) and this appears to be improving. He queried whether the child had an anxiety disorder and suffers from social phobia. He recommended a trial period of medication and further behavioural therapy. At this point, the society has decided to hold off in giving the child medication.

3.9 The Mother's Access Since the Society Wardship Order

[80] The society acknowledged that after the society wardship order was made on June 14, 2015, it did not view the mother as a viable long-term caregiver for the child. It changed the focus of the mother's access to just supporting her having a good time with the child as opposed to working with her on parenting responsibilities, such as setting limits and discipline.

[81] The mother has consistently attended access with the child since June of 2015. For the most part, the visits are positive. She plays well with him. The mother and child love one another and enjoy the visits. The mother is affectionate with the child and takes pride in him.

[82] The mother still has difficulties reacting appropriately when the child exhibits challenging behaviours and requires the support of society staff. The society has observed that she interacts with the child more as a peer than a parent.

[83] The mother continues, at times, to take the child's bad behaviour personally and react inappropriately. This results in escalating the child's negative behaviour. For example, on December 31, 2015, she became upset at the child during an argument at a visit and was calling him a cry baby. The child became increasingly upset by this. He refused to say goodbye to his mother. He became so agitated that it took him 45 minutes to calm down and get in the car to go back to the foster home at the end of the visit. When the worker tried to explain to the mother how her actions upset the child, she minimized this and became upset with the worker.

3.10 The Mother's Alternate Plan

[84] The mother asked the child's foster parents if they could adopt him. They advised her that they were not planning to do that.

[85] The mother then proposed that the child be placed with a friend (C.J.).

[86] The society met with C.J. For reasons that will be discussed in more detail below, it did not approve this plan.

[87] C.J. filed an affidavit on this motion indicating that she is still willing to plan for the child.

3.11 The Twins

[88] The mother has continued to visit with the twins. I.L. filed an affidavit supporting the mother on this motion. The mother has a positive relationship with the twins. Despite the occasional argument, the mother and I.L. have a good relationship.

[89] In August of 2015, the society became aware that I.L. (who lives in York Region) had permitted the mother to have overnight visits with the twins. I.L. initially refused to cooperate with the Children's Aid Society of York Region (York Region) when they attempted to investigate. York Region commenced a protection application concerning the twins in the Superior Court of Justice – Family Branch at Newmarket and a temporary without prejudice supervision order was made on September 29, 2015 by Justice Ronald Kaufman, which included terms requiring I.L. to cooperate with York Region and for her to ensure that the mother's access with the twins be supervised.

[90] I.L. and the mother subsequently cooperated with York Region. York Region has expressed its confidence in I.L. to determine what access the mother has with the twins. It observed three visits between the mother and the twins in the mother's home and they were positive. It observed that the mother's home was clean and appropriate. It is in the process of withdrawing its protection application.

[91] The child has not seen the twins since they were placed with I.L. in 2013. These visits were supposed to take place once per month. The society blames I.L. for access not taking place. I.L. blames the society and the child's two previous caregivers for access not taking place. For the purpose of this motion, the court does not have to assess who is at fault for this – only that the child has not seen the twins for over two years.

[92] I.L. deposed that she does not want visits between the child and the twins to take place at a society office as it will cause the twins anxiety that they may be taken into society care. She says that she is willing to facilitate access with the child and the twins in her home.

3.12 Other Facts

[93] On October 1, 2015, the society issued this status review application to seek an order of crown wardship, with access for the child.

[94] The society brought a motion to reduce the mother's access to J2 returnable on October 15, 2015. It asked for access to be in its discretion, including the discretion to suspend access, if necessary, to preserve J2's placement with R.G. Another reason for the society's motion was that the mother was missing several visits with J2.

[95] Justice Paulseth reduced the mother's access to J2 to once every other week, supervised by the society. Terms were added requiring the mother to refrain from making negative comments to J2 about her caregivers, or examining J2 for marks, or questioning her about marks on her.

[96] The placement of J2 with R.G. broke down in March of 2016.

[97] On March 11, 2016, J2 moved from the home of R.G. to the home of another family member (J2's paternal uncle and his partner). There is an order that the mother may not contact the new caregivers (due to her previous conflict with R.G. and the risk of conflict breaking down the new placement). J2's case is still before the court and her current placement is being evaluated.

[98] The mother presently has a two-bedroom apartment. It is suitable accommodation for a child. She is in receipt of public assistance.

[99] The mother went to Surrey Place for a developmental assessment of herself in the fall of 2015. This report was not produced to the court.

[100] The mother agreed that she has a very poor relationship with the society's Family Service Worker. She says that she does not trust her. She would not sign a consent for the society to speak to Surrey Place. She also refused to sign a consent for the society to obtain her criminal records.

[101] The mother and father remain separated. They usually only see one another at the society offices when one completes and the other starts a visit with either the child or J2.

[102] The father is not planning for the child. He exercises his weekly visits with him consistently. The child enjoys and benefits from these visits.

[103] Counsel for the OCL provided the child's expressed views and preferences from the floor of the court with the consent of the parties. She advised the court that she had gone to see the child seven times. He refused to talk to her the first five times. He told her that he wanted to live with his mother the last two times they talked. He also said that he wanted no changes in his access to his mother. He said that he enjoyed his visits with his father. He wants to continue to see him at the society's office and have a sleepover with him.

[104] The child has a close relationship with J2. They presently see one another at the society offices once every other week. Those visits have occurred regularly since October of 2015.

Part Four – Disputed Facts

[105] There were some facts that were in dispute. The society raised concerns that the mother might still be involved with individuals in the drug trade. It claimed that she had involvement with the police as recently as February of 2015. The mother claims that she is not involved with drugs, has had no involvement with the criminal justice system since her release from jail in 2012 and that she does not associate with individuals in the drug trade. The society claimed that the mother was partially responsible for breaking down J2's placement with R.G. The mother blames R.G. for the placement breaking down. The society claims that I.L. has prevented the child from having access with the twins. I.L. blames the society and the child's caregivers for access not taking place.

[106] It was unnecessary for the court to determine these contested facts to make its decision about whether there is a genuine issue requiring a trial about disposition or the parents' access with the child. The mother's version of these facts will be taken at its highest and be accepted for the purpose of this motion.

Part Five - Legal Considerations in a Status Review Hearing

[107] The court must determine whether there is a triable issue within the legal considerations that apply on a status review application. The status review application is brought pursuant to section 64 of the Act. Subsection 65(1) of the Act sets out the court's options on a status review application as follows:

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

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

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

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

(d) make an order under section 57.1.

[108] 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.)

[109] Subsection 57(2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the child 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. The mother received intensive parenting instruction and help through the TAP process. She received the assistance of a Family Service Worker and a Family Support Worker – the latter person to support her at visits after the TAP process was completed. She was encouraged by the society to obtain a developmental assessment through Surrey Place.

[110] The child has received considerable services. He has had a psychological and psychiatric assessment. He is in a specialized program at school. He has a Child and Youth Worker assigned to him, in addition to his Children's Service Worker. He has a pediatrician. He is in a specialized foster home that has access to a number of services on a 24-hour basis. The child is on the waiting list for play therapy.

[111] 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.

[112] 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. The society has made considerable efforts to place the child with family and community members – in retrospect, perhaps to the child's detriment. He has been placed with his maternal grandparents and subsequently with community members.

[113] In determining the appropriate disposition, the court must decide what is in the child'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.

[114] 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).

[115] 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 making of the last protection order 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.).

[116] 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..

[117] 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 Six – The Plans of Care

[118] The society's plan of care is to make the child a crown ward. It does not plan to immediately seek an adoptive home for him. This is due to his special needs and specifically his need to maintain a stable and secure placement. The society does not want to disrupt the specialized supports and treatment the child is receiving. The child does not cope well with change and the society submits that any further disruptions in his care and routine at this time would be detrimental to him.

[119] The society's hope is that the child's behaviour will stabilize and he can eventually be placed for adoption.

[120] The society plans to maintain contact between the child and his parents and the child and his siblings.

[121] The mother's plan is for the child to be placed in her care, subject to a society supervision order.

[122] The mother promises to comply with the terms of any supervision order but asks that the society change its Family Service Worker as she feels she cannot work with her.

[123] The mother has a 2-bedroom apartment. She is on public assistance. She said that she has spoken to the local public school and it has special classes for children such as the child. She deposed that she will contact Surrey Place and Aisling Discoveries to determine what programs are available for the child. She said that she would get a Big Brother for him to have a male role model.

[124] The mother said that she would receive parenting support from a City of Toronto community worker and her friends, I.L. and C.J.

[125] The mother deposed that she has made positive changes in her lifestyle. She stated that she has maintained the same residence since May 1, 2013. She says that she has few friends and is no longer involved in a criminal lifestyle.

[126] The mother's second choice is to have the child placed with C.J.

[127] C.J. filed an affidavit confirming her willingness to plan for the child. She is the single mother of three children, ages 12, 8 and 2. She is in school full-time studying to become a paralegal. She plans to open a business upon graduation. She said that she would have flexible hours. She said that she would obtain services for the child through the Aisling program, as one of her children is already involved with this program. She said that the child will share a room with one of her children. She will put the child in subsidized day-care and involve him in various activities.

[128] If the child is not placed with her, the mother would like as much unsupervised access as possible with the child.

Part Seven - Is There a Genuine Issue Requiring a Trial Regarding What Dispositional Order to Make?

7.1 Assessment of the Mother's Plan

[129] The court does not have to use its new fact-finding powers to determine that there is no genuine issue requiring a trial regarding the disposition of this case.

[130] The least disruptive alternative for the child, consistent with his best interests, is to make him a crown ward.

[131] The court considered the following positive factors about the mother:

a) She loves the child very much and the child loves her.

b) She has the best of intentions about the child.

c) She prioritized the child's needs ahead of her own when she asked the foster parents if they would adopt him.

d) The mother and the child both enjoy and look forward to the visits.

e) The mother has shown commitment and responsibility by visiting the child consistently.

f) The mother and child are affectionate with one another.

g) The mother plays well with the child.

h) The child has expressed that he would like to live with the mother.

i) If placed with the mother, the child would receive the benefits of her cultural and religious heritage.

j) The mother has been able to maintain stable housing that is clean and appropriate for a child.

k) The mother took many self-improvement programs in prison. She also attended a parenting course and the program Breaking the Cycle in 2013.

l) The mother has been supportive of the child's present placement and appears to have a good relationship with the foster parents.

m) The mother filed supporting affidavits from I.L. and J.C., stating their opinion that the mother is more mature and can care for the child. They don't believe that her access to the child needs to be supervised.

[132] Despite these positive factors, the evidence is overwhelming that it is not in the child's best interests to be placed in the mother's care for the reasons that follow.

[133] When a court is assessing the best interests of a child it must closely look at the individual needs of that child. In this case, the child has very high special needs. He has serious behavioural problems that have already broken down two placements – placements where there were two caregivers.

[134] The child is currently placed in a specialized foster home with two foster parents highly trained to deal with a child with significant behavioural issues. Intensive support has been provided to them – 24-hour assistance is available. Yet, they still are struggling to be able to effectively manage the child. When the child is upset, he has tantrums - crying, screaming, throwing things and rolling on the floor. He will have these tantrums in public.

[135] The evidence supports Dr. Fitzgerald's findings that:

a) The child requires a highly structured, stable environment with caregivers who are skilled in effective behaviour management and have the resources to meet his very dramatic needs.

b) The child needs to receive greater support to develop the capacity for self-regulation over the next 2 years. Otherwise, there is a high risk for him to have significant emotional, behavioural and mental health difficulties in the years to come.

[136] The child's special needs require a quality of parenting far beyond what the mother has been able to demonstrate. She has significant parenting challenges. All of her children were removed from her care due to her neglect. Since 2012, she has only had supervised access to the child and J2. The mother admits that she did not do well with the child in the TAP process.

[137] The mother acknowledged in the June 24, 2015 Statement of Facts that she was unable to care for the child at that time.

[138] Nothing has changed since the mother made this acknowledgement. The child's behavioural gains have been minor. His behaviours remain severe. The mother has not engaged in any programming since that time to improve her parenting or her ability to manage the child's behaviour. The mother's access to the child remains very limited and is fully supervised. Her belief that she can effectively parent the child now is wishful thinking.

[139] Even if the mother had made profound parenting gains (which is certainly not the case), the court would be cautious about changing the child's placement at this time. As pointed out by Dr. Fitzgerald, the child's multiple changes in placements have contributed to his difficulties. The child has been in a stable home now since the start of 2015. He has programming in place. He is comfortable in his placement and routine. Any move would involve significant disruption in his care, treatment and the services he is receiving. The emotional risks of moving him at this time are very high. There is a significant risk that his behaviour would regress and his placement would break down again, causing him further emotional damage.

[140] The mother has only had supervised access with the child since 2012. It would be irresponsible for a court to return the child to her care until she could demonstrate that she could adequately parent the child without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place the child with the mother without first testing whether she could adequately parent him, 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 9 months to a year for the court to effectively evaluate whether a return of the 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 as the statutory timelines in the Act have been exceeded.

[141] The last time extended access was attempted with the child was during the TAP process. The child did not cope well with the expanded (four hours twice per week) visits. There is no evidence to indicate that he would do any better today with an expansion of access. The mother still struggles with the child when she is required to apply any child management skills. To experiment with the child's stability by expanding access is a bad idea.

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

a) The mother's plan is very vague about how the child will be cared for and how she plans to meet his significant needs. She merely states that she will contact services to obtain help.

b) The mother provided little detail about how her supports would assist her in the day-to-day parenting of the child. She did not provide an affidavit from the City of Toronto worker. I.L. merely said that she is willing to support the mother in any way she can. C.J. did not indicate in her affidavit how she would support the mother.

c) The mother shows little insight in her affidavit about the depth of the protection concerns. She attributes her children's condition when coming into care as being the result of her being overwhelmed. She did not address the severe neglect they suffered and the actual physical harm to two of the children. She deposed that the child had no problems prior to coming into care. That was not the case. She also attributed the failed TAP process to the child wanting all of her attention. This might have been a partial factor, but the evidence indicates that this is a simplistic explanation. The mother's parenting limitations are significant.

d) The mother was asked (not by the society) to obtain a Developmental Assessment in 2010 by Surrey Place. She started, but did not complete the assessment. The society encouraged her to complete this process. A Developmental Assessment might have provided the society with a better understanding of how to support the mother. The mother could not arrange this assessment until it was too late in this process. Then, once it was completed, she would not consent to the society speaking with Surrey Place. The child is going to need a caregiver who can effectively obtain and follow through with services for him and work collaboratively with the society. The mother's actions with Surrey Place give the court no confidence that she can effectively do this.

e) The child has been out of the mother's care for four years. He has now been in the care of the society for over two years. This exceeds the statutory time limit set out in clause 70(1)(b) of the Act. The child needs and deserves permanency planning at this time.

7.2 The Mother's Alternate Plan

[143] The court admires C.J. for stepping forward to present an alternate plan for the child. She has the best of intentions. However, her plan has no air of reality and is not in the child's best interests for many reasons, including:

a) The special needs of the child require a caregiver with special skills, preferably in a two-parent home.

b) The court should be very careful before moving the child again, for the reasons set out in paragraph 139 above.

c) The child does not have an existing relationship with C.J. or her family. It would be a huge adjustment for him to move to this home.

d) C.J. has her own parenting challenges and has frequently been involved with the society due to these challenges. The society had file openings with C.J. twice in 2006, twice in 2010 and once in each of 2013, 2014 and in 2015. These openings related to concerns about domestic violence in the home, excessive physical discipline and the behaviour of her oldest child. None of the interventions required court involvement. The most current involvement started in January of 2015 due to concerns expressed by the school about C.J.'s eldest child's extreme behavioural issues at school. C.J. admitted that she had spanked the children and had threatened them with a belt when they were younger, but was now using more appropriate forms of discipline.

e) C.J. has been involved in domestic disputes involving the police in the past year. Her partner (Mr. S.) was charged with threatening arising out of one of these incidents that took place in front of her children. She was also involved in an incident with Mr. S.'s ex-partner in front of her children. Exposure to this type of conflict would be particularly detrimental to this child.

f) C.J. is already the single parent of three children, one with special needs. She deposed that these children have a full schedule that involves counseling, tutoring and extracurricular activities. She will also soon be starting a new business to financially support her family. It is highly unlikely that C.J. could provide the child with the intensive attention he requires.

g) C.J. is in school full-time. It is not in the child's best interests to be placed in day-care at this time, as proposed by C.J. He has already required considerable assistance just to attend school.

h) C.J.'s plan provided little detail about how she could realistically meet the child's intensive needs.

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

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

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

c) The society's plan will best meet the child's need for continuity and a stable place in a family.

d) The risks of placing the child with the mother or C.J. are unacceptably high.

e) The society's plan will best address the child's needs.

f) It is not in the child's best interests to delay permanency planning any further.

[145] There is no genuine issue requiring a trial. The least disruptive alternative, consistent with the child's best interests, is to make him a crown ward.

Part Eight – Access

8.1 The Law

[146] 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.

[147] 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 (the two-part test) in subsection 59(2.1) of the Act.

[148] 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.

[149] 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.

[150] 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.

[151] 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.

[152] 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.

[153] 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.

[154] In Children's Aid Society of Toronto v. E.U., 2014 ONCJ 299, affirmed on appeal in Children's Aid Society of Toronto v. L.T., 2016 ONCA 146, this court discussed the distinction between an access holder and an access recipient. This distinction is critical because only an access holder has the right to apply for an openness order if the society serves a Notice of intent to place a crown ward for adoption. In E.U., this court decided to only make the child and not the parents the access holder as it felt that if the parents were made access holders they would likely use the openness process to impair the child's opportunities for adoption.

[155] The Office of the Children's Lawyer is now routinely seeking reciprocal access orders in crown wardship cases to ensure that the child is not just an access recipient, but an access holder who will have the right to bring an openness application if the society serves a Notice of intent to place for adoption. Such a reciprocal order was made by Justice Carole Curtis in Catholic Children's Aid Society of Toronto v. A.M.Y., [2013] O.J. No. 5230 (OCJ).

8.2 Positions of the Parties

[156] The society asks that the child have access to the parents a minimum of once monthly, supervised in its discretion.

[157] The society concedes that the parents have met the two-part test for access. It submitted that it does not intend to immediately change the frequency of access that is presently taking place weekly. It recognizes that the child's routine should not be changed lightly. However, it wants the flexibility to change access, if necessary, as the child's needs change in the future.

[158] The society further seeks an order that the child have access to the twins and to J2, to be agreed upon between the society and the siblings' legal guardians.

[159] The mother seeks unsupervised access to the child. In the alternative, she seeks no reduction to her present access. She supports the society's proposal for sibling access.

[160] The father asks that there be no reduction in his present weekly access. He also supports the society's proposal for sibling access.

[161] The OCL, on behalf of the child, asks for no change to the child's weekly access to the parents. It supports the society's proposal for sibling access. It asks that the child be made an access holder to his parents and his siblings and that his parents and siblings be made access holders to him (reciprocal access orders).

[162] The parents supported the OCL's requests for reciprocal access orders.

[163] The society opposed the OCL's requests for reciprocal access orders. It submitted that it would create unnecessary complications and delay if it sought to place the child for adoption.

[164] The claim for reciprocal access orders was not pleaded. It was raised before this court for the first time in submissions.

8.3 Access with the Parents

[165] The court has all of the necessary material facts before it to determine the form of the access orders between the child and the parents by way of summary judgment.

[166] Ordinarily, access will be reduced once a child is made a crown ward. Justice Philip A. Clay explained the reason for this in paragraph 90 of The Children's Aid Society of the Region of Peel v. A.R., 2013 ONCJ 341 as follows:

[90] The Court finds that an access order should be made in all of the circumstances of this matter. However the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother's on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. Access once per month will allow the mother and child to maintain their connection and will hopefully allow the child to have some security in knowing that his biological mother is still a part, albeit a much smaller part, of his life.

[167] However, this is not an ordinary case. This is a child with very special needs. A large aspect of those special needs is that he does not cope well with changes to his routine.

[168] The child has slowly been able to establish a routine and make some gains. He has remained in the same home. He is receiving consistent care and services. He is also exercising regular weekly access with his parents. This has now become part of his routine and contributes to his sense of security and stability. He looks forward to these visits and benefits from them. Dr. Fitzgerald emphasized the importance of stability for this child over the next two years and how this is critical to his long-term welfare. It would be potentially very detrimental to the child to reduce the frequency of his visits with his parents.

[169] While the society has had concerns about the mother's involvement with other caregivers of her children (resulting in no-contact orders), the evidence indicates she is very supportive and appreciative of the child's present foster parents. This makes it far less likely that she would try to undermine his placement (which would be a reason to reduce access).

[170] The court finds it more important for the child to have the stability of weekly visits with his parents than for the society to have the flexibility in the future to change access. This balancing of interests can always be revisited if there is a change in circumstances affecting the best interests of the child.

[171] The mother's visits need to remain supervised at this time. The visits go well when they are supported and the mother has a resource person from the society available to assist her when she struggles with the child's behaviour. The visits did not go well when they were longer. The mother struggled and the child's behaviours deteriorated. The child is at a fragile stage in his development. He is just starting to feel secure and make some modest gains. It is not in his best interests to experiment with new access arrangements at this time and risk destabilizing these gains.

[172] The court will make the reciprocal access orders between the parents and the child requested by the OCL. This should not impair the child's future opportunities for adoption. This will ensure that the child will be able to maintain relationships that are important for him. There is always the risk that if the parents were the only access holders they would not bring an openness application if served with a Notice of intent to place the child for adoption. Making the child an access holder means that the OCL will have the opportunity to participate in structuring an openness arrangement for the child and that he will have a voice about what his relationship with his parents will look like if he is placed for adoption.

[173] Allowing the child the right to be an access holder, with its associated rights, when he has expressed a desire to maintain contact with her parents is a recognition of the importance of his feelings and views. It also takes into account Article 12 of the United Nations Convention on the Rights of the Child. Article 12 provides that children should be given the opportunity to express their views and that their right to be heard includes the ability to provide those views to a decision-making body. That right allows children, who have to live with the decisions made by others, the ability to share their concerns about the impact of those decisions on their lives.

8.4 Access with J2

[174] The parties agree that the child should have access with J2. Access with J2 is beneficial and meaningful for the child and will not impair his future opportunities for adoption (the two-part test). The evidence is clear that it would be detrimental to the child's emotional well-being if he did not have regular access with J2. The court commends everyone involved for promoting this.

[175] Although the society's motion seeks an order that the child have access to J2 (making him the access holder) the more appropriate relief is to make J2 the access holder to the child. This will give effect to the parties' intention to maintain contact between the child and J2 and preserve this important relationship. Making this order should not unduly complicate or delay the child's placement for adoption. The OCL would become involved in ensuring that the voices of the child and J2 are heard if the child is placed for adoption.

[176] It is premature for this court to make the child an access holder to J2. It is only important for the child to be made an access holder to J2 if J2 is made a crown ward. This would preserve the child's right to make an openness application if the society served a Notice of intent to place J2 for adoption. If J2 is not made a crown ward (for instance if a section 57.1 order is eventually made for her), then it will not be necessary to make the child an access holder, as there will be no openness rights to preserve.

[177] J2's matter remains before the court. The appropriate time to decide whether the child should be made an access holder regarding J2 is if and when there is a final order making J2 a crown ward. If a section 57.1 order is made for J2, the court can always make an access order between the child and J2 at that time, based on J2's best interests pursuant to section 58 of the Act. In that situation, a reciprocal access order would not be required.

[178] If J2 is made a crown ward, the court will still need to determine at that time if the child has satisfied the two-part access test. The court will need to determine the test from J2's perspective – not the child's. While the child would likely satisfy that test if it was applied today, circumstances can change. The court making the final order for J2 will be in the best position to evaluate this.

[179] Ms. Reilly represents both the child and J2, so there should be no practical difficulties for the child to advance this position at the relevant time.

8.5 Access with the Twins

[180] The court is not prepared to make any access orders between the child and the twins at this time.

[181] Unlike J2, the twins are not presently before the court. Their protection case was completed on October 23, 2013, when they were placed in the custody of I.L., pursuant to section 57.1 of the Act. Procedural fairness dictates that I.L. should have received notice of the requests for access and have had the opportunity to obtain legal advice and respond. This is particularly so given the level of distrust between the society and I.L. She will not bring the twins to the society office for access. An order for access to be agreed upon (as sought by the society) may result in no access taking place between these siblings. If such an order was made and access did not take place it would also potentially expose I.L. to enforcement proceedings. This would not be just when she was not given the opportunity to participate in the process leading to the order.

[182] There is also a serious issue as to whether the court should make an access order between the child and the twins under the Act. The onus to establish a right of access to a crown ward under the Act is difficult. At this point, no evidence has been led that the relationship between the child and the twins is beneficial and meaningful (as defined by the case law) for the child as they have had no contact for over two years. Further, given the acrimony between I.L. and the society, the court has to consider whether making the twins access holders would impair the child's opportunities for adoption.

[183] It appears that the protection application regarding the twins in York Region will be withdrawn shortly. Once that is done, the only existing court order concerning the twins will be the section 57.1 order under the Act. This is deemed to be a custody order pursuant to section 28 of the Children's Law Reform Act. This court had the ability to make an access order for the child to the twins at the time it made the section 57.1 order on October 23, 2013, but such an order apparently was not requested or made.

[184] The access issues between the child and twins cannot be determined by way of summary judgment based on the record before the court.

[185] Any person has the right to seek access to the twins pursuant to section 21 of the Children's Law Reform Act. The legal test for access under the Children's Law Reform Act is not nearly as onerous as that under the Act – it is a best interests test. That avenue remains available for the child to have a formal access order to the twins.

[186] The court will not make an access order with respect to the twins on this summary judgment motion. This order is without prejudice to any future application for this relief in this or any other court.

[187] Despite the absence of a court order, nothing prevents the adults from facilitating exercising access between the child and the twins. In fact, this court encourages them to put aside their differences and make it happen.

Part Nine – Conclusion

[188] The court finds that there are no genuine issues requiring a trial with respect to the issues of disposition, the access between the child and the parents and J2's access to the child and will grant summary judgment on these issues.

[189] A final order shall go as follows:

a) The child shall be made a crown ward.

b) The child shall have access to the respondents and the respondents shall have access to him. Access shall take place a minimum of once weekly, supervised at the discretion of the society.

c) J2 shall have access to the child as agreed upon between the society and J2's legal guardians.

d) The summary judgment motion for the child to have access to J2 will not be granted. This is without prejudice to any future request for this relief in the protection proceeding regarding J2.

e) The motions for the child to have access to the twins and the twins to have access to the child will not be granted, without prejudice to any future application for this relief in this or any other court. This issue shall return before Justice Paulseth on May 31, 2016 at 10 a.m. (the same date J2's case is in court) for a case conference.

f) The mother's cross-motion is dismissed.

[190] The court wishes to thank counsel for their excellent presentation of this motion.

Released: April 4, 2016

Justice Stanley Sherr

Footnotes

[1] Section 57.1 of the Act permits the court to make a final protection order awarding custody to one or more persons with their consent. Subsection 57.1(1) of the Act reads as follows:

Custody order

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[2] A Family Service Worker is the society worker who directly deals with the parents.

[3] The mother did sign a consent for the OCL to obtain her criminal records, but these records were not available on this motion.

[4] This is not meant as a criticism of the society who have a statutory mandate to seek family and community placements for the child.

[5] Breaking the Cycle is an early identification and prevention program designed to reduce risk and to enhance the development for substance-exposed children.

[6] Subsection 70(1) of the Act reads as follows:

Time limit

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

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

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

[7] The society has now closed its file on C.J. as she has obtained treatment for her oldest child and has remained separated from her partner.

[8] The issue of who is an access holder and who is an access recipient was not addressed on the appeal.

[9] Sections 145.1 and 145.1.2 of the Act set out the procedure to follow when a Children's Aid Society wishes to terminate an access order for the purpose of adoption and an openness order is sought. Subsections 1-3 of section 145.1.1 reads as follows:

Access order in effect

Notice of intent to place for adoption

145.1.1 (1) This section applies where,

(a) a society intends to place a child who is a Crown ward for adoption; and

(b) an order under Part III (Child Protection) has been made respecting a person's access to the child or the child's access to another person.

Notice

(2) In the circumstances described in subsection (1), the society shall give notice to the following persons:

1. The person who has been granted an access order.
2. The person with respect to whom an access order has been granted.

Right to apply for openness order

(3) The society shall include in the notice the following information:

1. Notice that the society intends to place the child for adoption.
2. Notice that the access order terminates upon placement for adoption.
3. In the case of notice to a person described in paragraph 1 of subsection (2), the fact that the person has a right to apply for an openness order within 30 days after notice is received.
4. In the case of notice to a person described in paragraph 2 of subsection (2), the fact that the person described in paragraph 1 of subsection (2) has the right to apply for an openness order within 30 days after notice is received.

Subsections 1 and 2 of Section 145.1.2 read as follows:

145.1.2 (1) A person described in paragraph 1 of subsection 145.1.1(2) may, within 30 days after notice is received, apply to the court for an openness order.

Notice of application

(2) A person making an application for an openness order under this section shall give notice of the application to,

(a) the society having care and custody of the child;

(b) the child, except as otherwise provided under subsection 39(4) or (5); and

(c) if the child is bringing the application, the person who will be permitted to communicate with or have a relationship with the child if the order is made.

[10] An access recipient is only entitled to notice of the Notice of intent to place for adoption and be advised that any access holder has the right to apply for an openness order within 30 days after notice is received.

[11] See: Subsection 57.1(2) of the Act reads as follows:

Deemed to be order under Children's Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

[12] See: Section 24 of the Children's Law Reform Act.