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, R.S.O. 1990, c. C-11, as amended, and is subject to 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.

45(8) Identification of child

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

45(9) Idem: order re adult

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

85.— (3) Offence

A person who contravenes subsection 45(8) (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

File No.: C53875/11A-3

Date: 2016-06-08

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

IN THE MATTER OF

The Child and Family Services Act, R.S.O. 1990, c. 11

AND IN THE MATTER OF:

Ja.., born […], 2009, and Ma.., born […], 2013

BETWEEN:

Children's Aid Society of Toronto — Applicant

and

R.C. (mother), M.P. (father of Ja..), and A.Q. (father of Ma..) — Respondents

Hearing Information

Summary Judgment motion argued before Justice Robert J. Spence

Heard: 30 March and 2 June, 2016

Reasons for Judgment released on: 8 June 2016

Counsel:

• Ms. Katie Skinner — for the applicant society
• Ms. Deborah L. Stewart — for the respondent mother
• The respondent fathers both noted in default and not appearing

Introduction

[1] This is the summary judgment motion brought by the Children's Aid Society of Toronto ("society"). In its motion, the society seeks an order making both children Crown wards so that they can be placed for adoption.[1]

[2] The mother asks the court to dismiss the motion and that she be allowed to proceed to a full trial on all the issues. Alternatively, in the event the court orders the children to be made Crown wards, mother seeks a trial of an issue in respect of whether there should be access between the children and herself.

Issues

[3] There are two main issues in this motion:[2]

1. Is there a genuine issue for trial in respect of whether the children should be made Crown wards so that the children can be adopted?

2. If the answer to #1 is no, is there a genuine issue for trial in respect of whether the mother should be entitled to access to the children following the making of the Crown ward order?

Brief Background

[4] The two children who are the subject of this proceeding are Ja.., a little girl who is 6 years old, and Ma.., a little boy who is 2 years old. Neither of the children's two fathers are involved in this litigation; and neither have any meaningful relationship with their respective children.

[5] The court ordered the children into care on August 7, 2014. Mother was granted access once each week, supervised by the society.

[6] The children have now been in the society's continuous care and custody for a period of about 22 months. The statutory time limit for children to remain in the temporary care and custody of the society is 12 months, for children under the age of 6 years.[3]

[7] Therefore, these children have been in the care of the society well beyond the statutory time limit.

[8] The society's history with the mother dates back to 2002 when she herself was made a Crown ward. The mother was 11 years old at the time of that order.

[9] In 2009, the society became involved with mother, as a mother, just prior to the birth of Ja.. The society had concerns about mother's parenting capacity. For a period of time following the birth of Ja.., the society and mother worked together pursuant to a voluntary agreement.

[10] The society commenced a court application in 2011, prior to Ma..'s birth. By that date the society had reasonable grounds to believe that Ja.. was at risk of harm in mother's care. The concerns included mother's cognitive limitations, which the society believed impacted on mother's ability to parent, as well as other concerns, which can best be summarized as ineffective and substandard parenting, as well as poor judgment which exposed the children to risk of harm.

[11] On November 22, 2011 Justice Carole Curtis made an order that Ja.. was in need of protection pursuant to subsection 37(2)(b) of the Act, and she ordered Ja.. to be in the care of her mother subject to the society's supervision for 6 months. On June 18, 2012, on the consent of the parties, Justice Curtis terminated the supervision order.

[12] The society commenced its present protection application ("application") on July 28, 2014, seeking a finding that the children were in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) of the Act, and an order that both children be placed in the mother's care subject to society supervision for 6 months.

[13] At the time of the application, the society's concerns were:

1. Mother's limited cognitive capacity, with poor decision-making for the children;
2. Mother allowing persons, about whom she knew very little, into the home to care for the children;
3. Mother's lack of transparency about her relationship with Mr. Q.., who is Ma..'s father, about whom the society had concerns, including domestic violence and alcohol abuse;
4. Mother's poor hygiene and self-care;
5. Reports from Ja..'s school that Ja.. was not being well cared-for, as well as behavioural issues noted by the school;
6. Mother's lack of cooperation with the society; and
7. Mother's limited supports in the community and her unwillingness to engage with community services.

[14] Justice Heather Katarynych[4] ordered the children into care on August 7, 2014. However, the children could not be located until the following day, at which time the society apprehended the children.

[15] On June 12, 2015, the society amended its application to seek an order of Crown wardship, silent as to access.

The Law on Summary Judgment Motions

[16] The relevant portions of Rule 16 of the Family Law Rules ("Rules"), pertaining to summary judgment motions provides the following [emphasis added]:

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. O. Reg. 114/99, r. 16 (4).

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. O. Reg. 91/03, s. 5.

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. O. Reg. 114/99, r. 16 (5).

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. O. Reg. 114/99, r. 16 (6).

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. O. Reg. 69/15, s. 5 (1).

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. O. Reg. 69/15, s. 5 (1).

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2):

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

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

Issue #1 – Is there a genuine issue for trial in respect of the society's claim for a Crown ward order?

[17] It appears that the society's biggest concern is mother's low cognitive functioning. The concern is not low functioning in the abstract, but how that low functioning impairs mother's ability to parent her children.

[18] Mother was 14 years old when, in 2005, Dr. Fitzgerald conducted a psychological examination on her. At the time of that assessment, she was a Crown ward.

[19] In that assessment, Dr. Fitzgerald noted that at her previous assessment 2 years previously, she was described as having intellectual functioning in the Borderline Range, at the 2nd percentile for persons her age.

[20] In his 2005 report, Dr. Fitzgerald stated that mother [emphasis added]:

Will require specialized supports as she moves through adolescence and into adulthood. Because of her cognitive limitations and limited adaptive and life skills, she will require support in developing the capacity for independent functioning….

[21] By age 18 years, mother was living in the community. Her social worker referred her to Dr. Fitzgerald for an updating psychological assessment for the purpose of determining what supports, if any, mother would require for her education. Dr. Fitzgerald noted that her "overall cognitive ability continues to be in the Borderline range, at the 2nd percentile".

[22] Dr. Fitzgerald recommended that if she were to attend a college program:

She is likely to require accommodation for her particular learning difficulties . . . taking into consideration the fact that she has a Mild Intellectual Disability.

[23] In March 2013 Dr. Linda Klevnick of Surrey Place, completed a psychological assessment of mother in support of mother's application for Ontario Disability Support Payments. Dr. Klevnick administered a battery of known and accepted psychological tests.

[24] I cite the following from the summary of Dr. Klevnick's report dated March 8, 2013 [emphasis added]:

[mother's] overall intellectual functioning was in the mild range of intellectual disability (1st percentile) with her verbal skills (10th percentile) being a relative strength although still well below the norms for her age [22 years old]. Her non-verbal reasoning (1st percentile) and working memory (1st percentile) abilities are both weak and fall in the Mild range of Intellectual disability . . . . In terms of adaptive functioning, [she] has below average skills in the areas of Self-Direction and Health and Safety, and borderline impaired Self-Care skills. Practical tests indicate a need for support with budgeting and financial management.

[Mother has] intellectual limitations and weak adaptive skills in a number of areas . . . . she presents as higher functioning than she is. This can be a frustrating drawback in that her presentation leads others to expect more from her than she is capable of . . . . as a person with an intellectual disability she is substantially impaired in her ability . . . to handle the multiple responsibilities of work and parenting.

[25] I quote from the affidavit of one of the society workers sworn February 18, 2016 [emphasis added]:

On October 17, 2014 I had a consultation with Dr. Fitzgerald [psychologist] regarding [mother's] limited cognitive functioning in relation to her parenting. Dr. Fitzgerald said that [mother's] cognitive level of understanding may not have changed if there are no supportive services in place and that learning is going to be difficult for her . . . . generalizing major ideas will be difficult and she will have difficulty taking parenting courses and understanding the children's needs . . . . [she] needs intensive support and that her gains and progress will be limited.

[26] While all of the foregoing is both relevant and important, the court must be careful not to conclude that low cognitive functioning, per se, automatically leads to an inability to parent.

[27] In order to better understand the impact of this low cognitive functioning it is important to examine the mother's interaction with her children, as well as other indicators which are relevant to the issue of her ability to parent.

Mother's Access Visits

[28] I start first with mother's access visits. As I noted earlier, mother has been limited to supervised access, once each week for two hours at a time.[5] Between March 2015 and February 2016, there were 51 possible visits available to her. Of those possible 51 visits:

• She attended 28 visits on time;
• She was late for 14 visits (She was so late for 7 visits that the visits had to be cancelled);
• She cancelled 5 visits herself; and
• She simply failed to show up for 4 of the visits.

[29] Mother's counsel submitted that in January 2016 mother was placed on new medication for her leg, which impaired her ability to reliably attend visits. However, the court must be concerned about the impact of missed visits on the children who were expecting mother to attend, where she simply failed to do so, or attended so late that the children had to be driven back to the foster home, without a visit taking place.

[30] In other words, it is not about blaming mother but, rather, recognizing the on-the-ground reality from the perspective of the children.

[31] The court must be cognizant that the mother was having access only 2 hours out of a 168-hour week and that in the best interests of the children, this limited access had to take priority over everything else.

[32] The court is concerned that mother's impaired cognitive functioning affected her insight and her ability to understand the impact of her actions on the children. For example, on March 13, 2015, when mother simply failed to attend for access, without calling, the children waited for 45 minutes and then had to be returned to the foster home. Ja.. expressed that she was upset with her mother for failing to attend to spend time with her.

[33] Additionally, in an attempt to provide teaching and therapy to mother for her access visits with the children, the society referred her to its Therapeutic Access Program ("TAP") on September 18, 2014, and commencing November 24, 2014. Mother was expected to attend these TAP visits twice weekly, for four hours per visit.

[34] Of the 29 possible TAP visits, mother attended only 19 on time. She was late for 2 visits which nonetheless proceeded. For 3 other visits, she was so late the visits had to be cancelled; she herself cancelled 2 visits; and for the remaining 3 visits, mother simply failed to show up.

Quality of Access Visits

[35] I turn to the access visits themselves.

[36] The society observed that, for the most part, during the access visits mother clearly demonstrated her love and care for the children. However, the society has often observed that mother would spend most of her time and attention on Ma.., which has negatively impacted on Ja.. In its evidence regarding this issue, the society provides a number of examples. I will refer to a few examples only.

[37] On May 22, 2015, while Ja.. was attempting to get her mother's attention:

[mother] told Ja.. that she would be turning 7 soon and told her she "cannot act like a baby all her life". Ja.. corrected her mother, telling her she was not turning 7. [6] She then stated, "Mom, let's pretend we're a family." [mother] responded by stating she had to get Ma...

[38] During the same visit, while Ja.. was watching mother and Ma.., and wanting her mother's attention:

Ja.. began to scream and [mother] ignored her. Ja.. began to fake cry and [mother] looked up at her and stated "Ja.. you need to stop that fake crying otherwise people won't take you seriously." Ja.. was silent. [Mother] then returned to . . . Ma...

[39] On August 11, 2015, mother had an access visit with both children. Mother had brought sandwiches for the children to eat. When Ma.. was finished eating, mother placed him on the floor and then turned her back to him and engaged with Ja.. I cite the following from the society worker's affidavit sworn February 11, 2016:

[Mother] sat with her back to Ma.. as she continued to eat with Ja.. Ja.. spoke a lot as she ate and [mother] threatened to play with Ma.. if she did not stop playing and eat her food. [later in the visit, mother stated about Ma..] that he was not nice. Ja.. stated he was just a baby. During the visit Ja.. continued to seek her mother's attention. She did this by calling her name and physically touching her face when [mother's] attention was focused solely on Ma.. or when [mother] became silent and withdrawn from the visit.

[40] It is important to note that the foregoing examples are not representative of all of the access visits. Mother's affidavit evidence includes extracts from case notes of society workers who observed visits, a number of which went very well. Specifically, in a number of visits mother was able to interact well with both children and to address both of their needs during these visits.

[41] However, what the court gleans from the overall evidence – both positive as well as negative – is that while mother can and does interact with both children in an effective manner from time to time, she is unable to sustain those positive interactions. She is unable to demonstrate a consistent pattern of addressing the needs of both her children, even for the limited periods of time during which the access is occurring.

[42] It is this lack of consistency of minimally effective parenting for even a two-hour visit, which provides the on-the-ground evidence of the psychological test results and the conclusions about her inability to parent effectively.

[43] And it is this lack of consistency which reflects poorly on mother's ability to be a nurturing and supportive parent to both children, in the manner which meets the children's best interests.

[44] It is important to keep in mind that if mother were parenting her children 24 hours a day, 7 days a week, she would have to find a way to divide her attention between both children in a consistent manner, and in a way that meets the emotional and physical needs of her children, consistent with their best interests.

Society's Attempts to Provide Support

[45] The society attempted repeatedly to provide therapy and supports for mother in order to ascertain whether she would be capable of parenting her children, perhaps in a supportive setting. The society's evidence is replete with examples of services and resources, which it directed mother to, in an attempt to get the necessary supports for mother, including:

• Public Health's Parenting Program;
• Canadian Mental Health Association's Healthy Families Program;
• The Parenting Wisely program; and
• Surrey Place.

[46] It appears that mother may have contacted a number of these resources, but she was adamant that she did not require counselling services. Mother stated this more than once to the society.

[47] In her updating affidavit sworn on May 26, 2016, in response to the society's motion, mother states the following:

1. Since the first court date on the motion, she has been more punctual with her access visits;
2. She has been attending counselling at Family Service Toronto, which she began in November 2015;
3. She has reconnected with her Adult Protective support worker through Woodgreen Community Services;
4. She has completed a parenting program, Systematic Training for Effective Parenting, at the YWCA; and
5. She has enrolled in and completed "1,2,3,4 Parents" as at May 25, 2016.

[48] Much of this has happened only very recently and, it appears, primarily in response to the society having raised concerns about the lack of resource-connection in its initiating summary judgment motion material.

[49] In its letter dated March 18, 2016, the Violence Against Women Counsellor at Family Service Toronto states that she has worked with mother for 4 sessions since February 1, 2016. The counsellor (who is a social worker) talks about the mother's friendships, "some of whom are standing in the way of focusing on her parenting and her children", but then notes that the mother is working hard on learning effective parenting skills.

[50] The counsellor expresses an opinion about mother's parenting capacity potential, which doubtless is sincere and heart-felt; however, I made it clear that, for the purpose of this motion, that individual was not qualified to express such opinions given her acknowledged lack qualified expertise.[7]

Mother's Friends and Associates

[51] Mother has demonstrated poor judgment in some of her associations and persons who she has allowed into her home.

[52] The society notes that mother has been in a number of relationships with males during the time the society has been involved in her life.

[53] Mr. Q.., the father of Ma.. is someone mother met on the street.

[54] She became involved in a relationship with another person, Mr. Ha.., who she had met on a balcony. Mother presented that person as someone who, according to mother, was willing to plan for the children. She said Mr. Ha.. wanted to meet with the society. However, on December 1, 2015, mother reported to the society that Mr. Ha.. had suddenly stopped speaking to her. She did not know why.

[55] On December 1, 2015, mother brought a woman, named Stephanie to the access visit and introduced her as a person who was willing to move in with mother and help her to care for her children. Stephanie appeared to the society at that visit as being under the influence of alcohol.

[56] Just two months later, mother reported to the society that she was no longer in contact with Stephanie. Mother said she had met Stephanie at a hotel party and that she was an escort.

[57] In February 2016, mother reported that she was now involved with another male, named Michael (no last name).

[58] One of the persons who mother had proposed as a possible kith plan, Ms. M.., has an extensive child welfare history – 14 referrals to the society, as a parent, albeit historical in nature.

[59] Ms. M.. lied to the society by denying her child welfare history. Additionally, she displayed anger and opposition toward the society. Her lying and her oppositional stance makes it very unlikely that she would have been able to work in a cooperative way with the society, even as a support person to mother.

[60] At the time that mother proposed Ms. M.., they had known one another for only about 4-1/2 months. It is also noteworthy that Ms. M.. had not had any in-person contact with the children.

[61] Furthermore, Ms. M.. did not understand the society's protection concerns regarding mother and, in fact, she thought mother was a very capable parent without any real deficits.

[62] Overall, during the time the children have been in the society's care, mother has presented numerous individuals as possible caregivers for her children, or as supports for her in the community. All of these persons were individuals she had known for relatively short periods of time; and she knew very little about the history of these individuals.

[63] What this reveals to the court is that mother was prepared to allow virtual strangers to come into her home and to take on a significant role in parenting her children, either as a direct support to her, or as someone presenting an alternate kith plan to be a fulltime caregiver for the children.

[64] These decisions by mother raise very serious red flags. Her actions, and her attempts to explain them, reveal a considerable lack of judgment and insight. Specifically, she had no understanding that exposing her children to strangers, to persons with unknown or suspicious histories can expose her children to risk of harm – both emotional as well as physical.

[65] Again, while psychological tests themselves, and the outcome of those tests, do not necessarily lead to the conclusion that a parent cannot properly care for a child, the mother's actions in this case tend to reinforce the negative conclusions reached by the psychological testing.

Mother's Position

[66] Mother asserts that the society was aware of her cognitive deficits, both at the time of Ja..'s birth, as well as when the supervision order was terminated in 2012. However, the extent of this knowledge, including the assessment by Dr. Klevnick and the later opinions expressed by Dr. Fitzgerald, certainly post-date 2012.

[67] Furthermore, much of the detail to which I have referred in these reasons post-date 2012 and, in my view, serve only to reinforce the real-life problems which manifest from mother's assessed deficits.

[68] The details to which I have referred pertaining to access problems post-date 2012.

[69] The poor choices which mother has made, in terms of her adult partners and her decisions to leave her children with virtual strangers, mostly post-date 2012.

[70] Apart from all of this, the society ought not to be criticized for having previously attempted to explore all reasonable options to keep mother and her children together.

[71] When the society sought and obtained a supervision order, and then subsequently agreed to its termination in 2012, it did so based on an incomplete body of knowledge.[8] It also did so with the hope that mother might be able to parent effectively while working with the society in a cooperative, voluntary arrangement.

[72] Mother asserts that she can parent her two children because she has meaningful supports in the community.

[73] While it is true – as I outlined earlier – that mother has fairly recently availed herself of certain resources, it is one thing to go to programs and another thing altogether to demonstrate an ability to absorb what she has learned in those programs, as well as an ability to put those newly-learned skills into practice. And the problem for mother is that she has run out of time to prove either of these.

[74] Again, I refer back to Dr. Fitzgerald's conclusion that:

learning is going to be difficult for her . . . . generalizing major ideas will be difficult and she will have difficulty taking parenting courses and understanding the children's needs

[75] In terms of mother's other supports, she names two individuals in her affidavit, one of whom filed an affidavit, which was subsequently withdrawn by the mother (Ms. M..).

[76] The other person, Ms. F.., has known mother for only about 8 months. The society met with Ms. F.. and requested that she sign a Fast Track consent to a police check. Ms. F.. refused the society's request.

[77] The society asked Ms. F.. about her child welfare history. Ms. F.. denied that she had a child welfare history. However, she refused to sign a consent to permit the society to conduct a search.

[78] The court cannot place any weight on Ms. F..'s apparent willingness to act as a meaningful support to mother.

[79] I note that mother has now appeared to obtain stable housing, thus alleviating an issue that was previously outstanding.

[80] It was argued on behalf of mother that she must have been providing effective parenting because when Ja.. was psychologically assessed by Dr. Fitzgerald, he noted that Ja.. was functioning cognitively in the High Average range.

[81] This assessment occurred in February 2016, when Ja.. had been in care for about 19 months. The argument raised on behalf of mother is that Ja..'s cognitive functioning in the High Average range must be attributable to the way she was previously parented by her mother.

[82] In my view, this argument is without evidentiary basis. There can be a number of possible reasons to explain the psychological test results, not the least of which is that Ja..'s high functioning is completely unrelated to her mother's parenting. But whatever those test results are attributable to, the attempt to draw a direct line connecting mother's parenting with Ja..'s results is not based on the evidence filed in this motion.[9]

[83] Mother's counsel argued that the court should order a trial so that Dr. Fitzgerald can be examined on the psychological issues. At the same time, mother's counsel acknowledged that it had been open for her to examine Dr. Fitzgerald in aid of this motion, and that she chose not to do so. To be clear, this summary judgment motion was scheduled 6 months ago, and there would have been sufficient opportunity for counsel to conduct any such cross-examination had she chosen to do so.

[84] Courts have stated repeatedly that on a motion for summary judgment, the responding party is required to "put his best foot forward". It is not open for a party to say that even though they had the opportunity to cross-examine a party in aid of the summary judgment motion, they chose not to do so in order to cross-examine that party at a full trial. See Hinke v. Thermal Energy International Inc., 2011 ONSC 5345.

The Children

[85] Dr. Fitzgerald assessed Ja.. on February 2, 2016. As I noted earlier, Dr. Fitzgerald found Ja.. to be functioning in the High Average range of cognitive ability. He noted that Ja.. has the "potential to do very well academically with appropriate supports."

[86] With respect to her family connections, Dr. Fitzgerald stated [emphasis added]:

Ja.. appears to be saddened by her family circumstances and has some recognition that her parents lack the ability to care for her and her brother and meet their needs. She has some understanding that she is living away from her parents so that her needs can be met more successfully. She has strong dependency and a desire to be cared for in an attentive manner. Thus, she needs a stable, nurturing and supportive home environment with opportunities to establish meaningful and satisfying relationships with others.

[87] The mother does not suggest in her evidence that either of the children are not adoptable.

[88] She recognizes – as does the society – that if the children are adopted, they should be entitled to sibling access in the event they are not adopted by the same family.[10]

Case Law on the Granting of Summary Judgment

[89] There is a considerable body of case law dealing with the issue of when courts ought to be making Crown ward orders on motions for summary judgment. It is not necessary for this court to examine that body of case law in extensive detail. However, what is important for this motion, is the essence of that case law.

[90] In Children's Aid Society of Ottawa v. RS, 2014 ONSC 7226, the court stated, at paragraphs 18 and 19 [emphasis added]:

Crown Wardship with no access for the purpose of adoption is the most intrusive of the dispositional orders and has been described as the capital punishment of family law . . . . As such, careful scrutiny of the evidence must justify such a result with a high degree of probability . . . . Great caution must be exercised. The evidence must be compelling, and an order may be made only after a careful examination of possible alternative remedies.

See also Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054 for similarly expressed statements of caution about making orders for Crown wardship.

[91] Mother's counsel also directed the court to another caution expressed in the decision of Justice Stanley B. Sherr, in Catholic Children's Aid Society of Toronto v. C.C., 2015 ONCJ 334, at paragraph 100 [emphasis added]:

It is important not to judge a parent by a middle class yardstick, one that imposes unrealistic and unfair middle class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests.

[92] What constitutes no genuine issue for trial? At paragraph 8 of J.C.J.-R. v. Children's Aid Society of Oxford County, the court stated [emphasis added]:

As to what constitutes "no genuine issue for trial", the Ontario Court of Appeal has equated that phrase with "no chance of success", and "plain and obvious that the action cannot succeed": Prete v. Ontario (Attorney General), 110 D.L.R. (4th) 94, 16 O.R. (3d) 161 (C.A.), leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 46, 110 D.L.R. (4th) vii. Chapnik J. in Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), (supra), also provides a useful yardstick in suggesting that it is appropriate to grant summary judgment "when the outcome is a foregone conclusion".

[93] With the foregoing principles in mind, I turn to my conclusion based on the evidence which I have reviewed in these reasons.

Analysis and Conclusion on Crown Wardship

[94] It is well known[11] that parents must constantly be making decisions which impact on the wellbeing of their children. Decision-making invokes the executive function part of the brain. And the quality of this executive function is necessarily affected by the limit of a person's cognitive abilities. Decision-making, self-regulation, memory, and so on are all part of the brain's executive function process.

[95] What the court concludes from the evidence, is that mother's ability to make effective decisions, her ability to understand what is good, and what is not good for her children and her ability to self-regulate are all negatively impacted by her very low cognitive functioning.

[96] She may be able to enroll in and take courses, and even complete them. She may be able to demonstrate that she is sincere and that she loves her children,[12] but her capacity to parent at an acceptable standard – as demonstrated by the foregoing - is very limited. And her capacity to learn to be a more effective parent is severely limited by her cognitive limitations.

[97] The court certainly understands mother's wish that her children be returned to her care. But her willingness to put forward individuals about whom she knows very little, as support persons for her, and her choice of persons with questionable backgrounds, suggests to the court that she is lacking the necessary judgment to understand how her choices place her children at risk of harm.

[98] Often – although not always – her inability to manage both children during a very limited 2-hour access visit signals to the court that she would not have the ability to manage both children effectively were they to be placed in her care on a fulltime basis.

[99] Her ability to time manage is directly tied to her cognitive functioning. Time management includes the ability to keep appointments, to meet with doctors, teachers, dentists, and to get children to daycare and to school on time.

[100] It is possible that mother would be capable of managing the children with very strong supports in place. By "strong supports", I mean high functioning individuals who have a demonstrated ability to be available to mother on an as-needed basis; individuals who are able to provide assistance with all aspects of child-rearing. Preferably, this would include one or more persons who would be prepared to live with mother. But at the very least, there would need to be one or more persons living very close to mother so that mother could call on them on very short notice.

[101] Mother has no such supports in place.

[102] Ja.., even at the age of 6 years understands that her biological parents are not able to meet her needs.

[103] This is not a case of judging mother by a "middle class yardstick" and holding her to a standard which is unrealistic. Rather, this is a case where mother's capacity to provide for her children would fall below the lowest acceptable standards, contrary to the best interests of her children.

[104] The children have been in care well beyond the statutory time limit. Therefore, they cannot continue to remain in care as society wards.

[105] There are no viable kin or kith options available for the children's placement.

[106] In my view, the outcome is a foregone conclusion. There is no genuine issue for trial. If a trial were to be held today, on the evidence before the court, the only option available for the trial judge would be to order Crown wardship for both children. Accordingly, that is the order that this court must make.

Issue #2 – Access

[107] Section 59(2.1) of the Act states:

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. 2006, c. 5, s. 17 (2).

[108] Once the court makes an order for Crown wardship, the presumption is against an access order. Section 59(2.1) sets out a two-prong test. It is well established that the onus is on the parent seeking access to rebut the presumption against access by satisfying both prongs of the test. See for example Children's Aid Society of Toronto v. A.F., 2015 ONCJ 678.

The First Prong - Beneficial and Meaningful

[109] In A.F., supra, Justice Sherr reviewed the case law and, at paragraphs 154 to 158, he stated [emphasis added]:

154 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 or 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.

155 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.

156 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.

157 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.

158 Knowing one's roots can be an important part of a child's development. If a child can maintain a connection with these roots without jeopardizing the security of a permanent adoptive placement, that is an option that should be considered. See: Children's Aid Society of Toronto v. M.M., 2012 O.J. No. 3240 (OCJ).

Analysis of the First Prong - Beneficial and Meaningful

[110] Unquestionably, as I have earlier discussed, there have been a number of negative interactions during access visits. Mother has demonstrated that she was not always able to divide her attention evenly between the children, causing negative fallout, particularly on Ja..

[111] As mother's visits became more inconsistent and sporadic Ja..'s emotional wellbeing noticeably deteriorated. This harkens back to Dr. Fitzgerald's recommendation for a strong caregiver, an attentive caregiver for Ja..

[112] This demonstrated inadequacy by mother was one of the reasons the court concluded earlier in these reasons that she was unable to meet the needs of the children on a go-forward basis and, accordingly, that the children could not be returned to her.

[113] However, there is considerable evidence that the positive interactions between mother and the children – albeit very inconsistent – were about more than simply "love and affection".

[114] Mother's counsel provided extracts from recent[13] case notes, which helps to shine a light on the nature of the relationship between mother and the children. I refer to some of those case notes:

[mother] was attentive to the children's needs as she prompted Ma.. to sit properly in his chair . . . she asked Ja.. how school was. Ja.. told her it was bad as she was having trouble with a friend who left her in the playground. [mother] told her she was sorry that had happened

Ja.. stepped on a staple and she pricked her foot, she cried and [mother] comforted her . . . [mother bandaged her foot and] patched her up [and] was attentive and sensitive to Ja..

[115] In a subsequent visit:

Ja.. told her mother that she had hit a girl at school. [mother] allowed Ja.. to share her perspective [and] explained to her that she had done wrong, then she helped Ja.. problem-solve other ways she could express her feelings, problem-solve with people. [mother] told her to always use your words instead. Ja.. was content; she showed an understanding of what was discussed and she told [mother] that she would not hit others again.

After a discussion between Ja.. and mother about an incident that had happened between Ma.. and Ja.. before the visit [mother] spoke to Ja.. again about her conduct towards others. Ja.. was compliant.

[mother] was energetic and attuned with both children. . . . Ja.. told her mother she loved her so much and she gave her a hug.

Ja.. cried and embraced [mother] as it was time to go. [mother] held her and she told her it was ok and not to cry.

[116] In a later visit:

[mother] set up a painting activity on the table. Ja.. and Ma.. spent a lot of time laughing while they painted. . . .It turned out perfectly.

[117] And at yet a later visit:

As mother walked to the access room, Ja.. walked up to her and told her how she would make a sticker book. [mother] asked questions on how she would make the sticker book.

Ja.. decides to play a shopping game. . . . [mother] responds quickly to Ja..'s request . . . . [mother] assists Ja.. to put the toys in place.

[mother] asks Ja.. how school was [Ja.. responds and the two of them discuss]

There were moments when [mother] and Ja.. were physically close

[118] While there was love and affection demonstrated in these and other visits, the foregoing extracts reveal more. They reveal meaningful interactions between mother and her children, an ability on mother's part to empathize with Ja.., and mother's ability to do some problem-solving with her daughter.

[119] I appreciate the society's argument that the negative interactions in the access visits were more numerous than the positive interactions. I am also mindful of Justice Quinn's caution in M.J., supra, that:

Even if there are some positive aspects to the relationship between parent and child, this is not enough – it must be significantly advantageous to the child.

[120] At the same time, I must be mindful of the "potential detriment" to not making an access order, and the importance of "knowing one's roots" in the development of a child.

[121] What is clear from the evidence is that Ja.., at least,[14] clearly loves her mother. As Dr. Fitzgerald noted, Ja.. even has the cognitive ability to reflect on her mother's lack of parenting skills and how this will likely lead to an adoption for her. However, at the same time, Dr. Fitzgerald notes Ja..'s sadness about this fact.

[122] I am mindful that the onus is on the mother to satisfy the beneficial and meaningful first prong of the test in order to rebut the presumption against access. However, in a summary judgment motion, the onus is on the society to prove that there is no genuine issue for trial.

[123] What this means, in terms of the test, is that the society must satisfy this court that mother would be unable to prove at a trial that access would be beneficial and meaningful for her children, were some form of access to be ordered.

[124] As I noted earlier in referring to the case law, severing the parent-child relationship entirely is something about which the court must be very cautious. Once that tie is broken, it is likely to be broken forever.

[125] It is not for this court to decide whether mother has in fact satisfied the first prong of the test. Rather, the court must decide whether, on the evidence, it is a foregone conclusion that she cannot satisfy that test.

[126] With that in mind, I am not satisfied that on the first prong of the test set out in section 59(2.1)(a) of the Act, the society has established there is no genuine issue for trial.

Analysis of the Second Prong - Impairment of the Children's Opportunity for Adoption

[127] Once again, the onus is on the mother to establish that if her children were placed for adoption, an access order – any access order[15] – would impair the children's opportunity to be adopted.

[128] How can this impairment typically occur? The courts often see cases where a biological parent has a conflictual relationship with a foster parent. This can be a signal that the biological parent would also have a conflictual relationship with an adoptive parent in the event of an adoption and a concurrent access order. Potential conflict between a biological parent and an adoptive parent is generally seen as something that can impair a child's opportunity for adoption.

[129] As Justice Sherr noted in paragraphs 165-170 in A.F., supra [emphasis added]:

165 The case law has recognized that persons who hold certain attributes may be more likely to impair a child's opportunities for adoption, as these attributes might dissuade adoptive applicants from coming forward to adopt the child.[16] This might result in an undue delay in the child's adoption. Many people will hold more than one of these attributes.

166 The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

167 The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

168 The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

169 The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

170 The potential chilling effect to adoptive applicants of having to deal with litigious parties in openness litigation is discussed by Justice Jones in paragraph 71 of Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530 as follows:

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

a. They would be facing further litigation b. They would not know the result of such litigation c. They would not know what form an openness order might take d. If an openness application is brought, the adoption will be delayed e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved

[130] Here is what mother has to say in her affidavit in response to the society's motion [emphasis added]:

I have consistently expressed my gratitude to my children's foster mom for the good care she provides to them. I express this directly to the foster mom as well as to the society workers.

Not only am I never critical or negative regarding the care the foster parent provides to my children, I am openly thankful to her.

I have contact with the foster mother every week when she brings the children to access visits. The foster mother and I chat, we are cordial and respectful to each other.

Usually at least once per month, the foster mother sends me photos, videos and other little updates of and about my children, which I very much appreciate. We have each other on WhatsApp, and this way she sends me pictures of the children, and videos of the children, such as them playing with their new puppy.

Not only do I very much enjoy and appreciate these updates, pictures and videos, but it allows me to be a part of my children's growing up experiences, and I incorporate that information into our visits so that the children feel they have one cohesive life. During visits I talk about their new puppy and how I saw them playing with the new puppy in a video. The children know how much I respect their foster mom, and that I support her rules with them. The children also know that the foster mom is kind to me, and sends me videos and photos.

The children's foster mother provides me with further information about the children's milestones; I thank her all the time; I ask her for and receive advice from her.

I want and believe the children should be in my care. This however does not in any manner impact on my ability to be grateful for the good care another person is providing for my children.

I am a quiet, easy to get along with, gentle person. I am in no way threatening by word or gesture to anyone.

I want my children to have a good life, in a stable and secure home, residing together, and certainly a better life than I had as a child in care. I know only too well how hard it can be as a child being in the Society's care. If the children were not in my care I would want them to remain with their foster mom. However, I have been informed by my counsel and verily believe that in reviewing the Society's disclosure . . . it was not possible for my children to stay with their current foster mom.

If this is true and the children are not returned to my care, I would support an adoptive placement for them provided they were kept together, and I would like some say in that selection process. I would seek contact through an Openness Order with the children, and I believe this to be in their best interests.

What I would not do and have never done is undermine their placement. I love my children and am able to put their needs first.

[131] I have cited at length from mother's affidavit because her statements paint the picture of a person who – at least for the most part – does not have the negative attributes of the kind referred to by Justice Sherr in A.F., supra, namely, the attributes which would likely impair a child's opportunities for adoption.

[132] Nor does the society contest mother's statements. In fact, in the society's reply affidavit sworn in response to those statements, the worker simply states:

In response to [those relevant paragraphs in the mother's affidavit, mother] is respectful to the children's foster mother. The foster mother is also kind to [mother].

[133] Again, the court recognizes that the onus is on the parent to satisfy this second prong of the test. Obviously, a parent who seeks access following the making of a Crown wardship order cannot prove conclusively that she will not impair her child's opportunities for adoption. However, what the mother can do, is adduce evidence that raises a prima facie case in her favour. It would then fall to the society to rebut that prima facie case.

[134] I cannot lose sight of the fact that Ja.. will be 7 years old later this year. She is a relatively high functioning child who is very much aware of her circumstances, including the strong likelihood that she will be placed for adoption. At the same time, her intelligence and sensitivity allows her to feel the strength of her connection to her mother, and to express that connection in a number of different ways.

[135] I must remember that she did live with her mother for the better part of the first five years of her life. Her connection to her mother while of mixed benefit is arguably very important to her.

[136] Having regard to all these considerations, I am unable to conclude that it is "plain and obvious", that it is a "foregone conclusion" that access between the children and their mother would impair the children's opportunities for adoption.

[137] I am not satisfied that the society has met the burden of proving that there is no genuine issue for trial with respect to access between the mother and the children.

Conclusion

[138] On the society's motion for summary judgment, I make the following order:

1. The children, Ja.. and Ma.. are made Crown wards;

2. The society is at liberty to move toward finding a suitable adoptive family, or families, for the children;

3. The parties shall proceed to a hearing on the issue of what, if any, access ought to be ordered between the mother and the children;

4. Pursuant to subrule 16(9), and subject to the trial judge's discretion to order otherwise, I direct a focused hearing on the access issue, specifically:

   a. The society's evidence shall be by affidavit, where the society can reasonably obtain its evidence in that manner;

   b. The mother shall be entitled to cross-examine the society evidence, such cross-examination to be confined solely to the test for access as set out in section 59(2.1) of the Act;

   c. The mother is at liberty to lead her evidence-in-chief either by affidavit or orally. However, that evidence shall be confined solely to the test for access as set out in section 59(2.1) of the Act.

5. This matter shall return to Justice Curtis, as the case management judge. Justice Curtis shall determine – likely following a settlement conference - whether it is necessary for the parties to appear at the regularly scheduled assignment court for child protection trials or, alternatively, whether a short, focused hearing can be scheduled in front of another court, other than this court.

6. The trial coordinator shall forthwith contact the parties to arrange for an appearance before Justice Curtis on a date and time available to her.

7. In the event Justice Curtis schedules this to the assignment court for child protection trials, the parties shall be prepared to attend on August 10, 2016 at 2:00 p.m.

[139] I thank both counsel for their organized and effective presentations.

Justice Robert J. Spence

June 8, 2016

Footnotes

[1] In a Statement of Agreed Facts filed March 30, 2016, prior to the commencement of argument on this motion, the parties agreed to the statutory findings for both children as well as a finding that both children are in need of protection pursuant to subclause 37(2)(b)(i) of the Child and Family Services Act ("Act").

[2] At the outset of argument, the parties advised the court of their agreement that, in the event the court were to make an order for Crown wardship, the children would have access to each other, with each child to be a reciprocal access holder. Additionally, in her material responding to the society's summary judgment motion, the mother had been proposing a kith plan with an individual named Ms. M.., but at the outset of argument the mother advised that she was withdrawing the affidavit of that person and, hence, the mother's proposed kith plan with her.

[3] Subsection 70(1) of the Act.

[4] The society's application was originally made returnable at 311 Jarvis Street in Toronto and was then subsequently transferred to 47 Sheppard, to be case managed by Justice Carole Curtis, who had previously case managed the case in 2011.

[5] In addition to some therapeutic access, which I will refer to shortly.

[6] In fact, Ja.. was only 5 years old at the time of this visit.

[7] Nor would this person be qualified as an expert at a trial, such that she would be capable of expressing opinions about parenting capacity.

[8] As compared to what is known today.

[9] In fact, given all of the other evidence in this case, it is more likely than not that Ja..'s relatively strong cognitive functioning is in spite of mother's parenting, rather than because of it.

[10] See footnote 2.

[11] Something about which the court is able to take judicial notice.

[12] This court does not doubt either her sincerity or her love for her children.

[13] Between December 2015 and February 2016.

[14] Because of her very young age, and fewer verbal expressive skills, there is less evidence about how Ma.. feels toward her mother.

[15] For example, even a very limited access order such as a one-hour visit every month, or every three months, or simply an exchange of cards and letters.

[16] See Catholic Children's Aid Society of Toronto v. C.C., 2015 O.J. No. 3139 (OCJ) and Children's Aid Society of Toronto v. K.S., 2015 ONCJ 635.