WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

ONTARIO COURT OF JUSTICE

DATE: 2016-12-07

BETWEEN:

Catholic Children's Aid Society of Toronto Applicant,

— AND —

A.D.M. Respondent mother

A.M. Respondent father

Before: Justice Roselyn Zisman

Heard on: November 14 and December 2, 2016

Reasons for Judgment released on: December 7, 2016

Counsel

Rena Knox — counsel for the applicant society

Minipreet Bhatia — counsel for the respondent mother

A.M. Respondent father — service dispensed with; not in attendance

Julia Tremain — counsel for the Office of the Children's Lawyer, legal representative for the child

Decision

Zisman J.:

1. Introduction

[1] This is a summary judgement motion brought by the Catholic Children's Aid Society of Toronto ("the society") seeking findings that the child B.M. born […], 2008 ("the child") be found to be in need of protection pursuant to clauses 37(2)(b), 37(2)(f) and (f.1), 37(2)(g) and (g.1), and 37(2)(h) and be made a crown ward without access for the purpose of adoption.

[2] The Respondent A.D.M. ("the mother") is the biological mother and seeks that the summary judgement motion be dismissed as there is a genuine issue requiring a trial. The mother disputes the grounds for a finding of need of protection and seeks return of the child to her care. In the alternative, the mother seeks a 6 month society wardship order or in the further alternative, if a crown wardship order is made an order for access.

[3] Counsel for the child takes no position with respect to a finding. It is the position of counsel for the child that there is a genuine issue requiring a trial. She supports an order for a 6 month society wardship order or in the alternative an order for access.

[4] Service on the father, A.M., of the Protection Application was dispensed with on November 5, 2015 and service of the Amended Protection Application was dispensed with on November 14, 2016.

[5] The issues to be determined by the court on the society's summary judgement motion are as follows:

a) Is there a genuine issue requiring a trial that the child is in need of protection?

b) If so, is there a genuine issue requiring a trial for a disposition other than that the child be made a crown ward?

c) If an order of crown wardship is made, is there a genuine issue requiring a trial as to whether or not the mother should have access to the child?

[6] The society relied on its factum, affidavits of various society workers, an affidavit of the foster mother, police records and the parenting capacity assessment of Dr. Oren Amitay.

[7] The mother relied on her various affidavit filed in the continuing record and affidavits in response to the society affidavits.

2. Procedural and Evidentiary Issues

2.1 Adjournment Request

[8] The mother sought an adjournment of the summary judgement motion that was not granted. I wish to expand on those reasons and briefly review the chronology of the court attendances as follows:

• May 20, 2015: first appearance on Protection Application after child apprehended on May 15, 2015; temporary without prejudice order placing child in the care of the society with access to mother twice a week supervised

• May 27, 2015: temporary care and custody motion held; child to remain in care of society with reasonable access to the mother in society's discretion

• June 26, 2015: motion by society to prohibit the mother from calling the foster home, adjourned at request of mother's counsel as unable to obtain instructions and mother not present

• July 14, 2015: society's motion to restrict mother's contact with foster home granted on an unopposed basis, mother not present at hearing; mother's telephone access restricted to calls initiated by foster mother; counsel for the child appointed; the presiding judge noted that he was very concerned about the behaviour demonstrated by the mother is not only not in the child's best interests but may in fact be placing the child in further need of protection

• September 24, 2015: parties consent to parenting capacity assessment

• November 5, 2015: mother given further extension to serve and file Answer and Plan of Care; mother advises she wishes transfer to Children's Aid Society of Toronto as she alleges the child is not Catholic

• February 3, 2016: temporary without prejudice order restraining the mother from attending at the child's foster home, school, church and any other place in which the foster mother attends

• March 24, 2016: society not proceeding with motion for a restraining order against the mother and for an order terminating access as mother in counselling and no further outbursts; date set for summary judgement motion on finding; society to circulate Statement of Agreed Facts

• June 16, 2016: summary judgement motion adjourned as counsel for mother no instructions and removed as counsel of record; order for summary judgement motion to proceed with respect to both finding and disposition peremptory to the mother; unopposed motion granted for production of police records

• September 29, 2016: mother requests further adjournment of summary judgement motion as she had not filed any documents and is still seeking counsel; society consents as it amended its position to crown ward no access; mother to serve and file her response by November 7th with or without counsel and any reply by society to be served and filed on November 14th and motion to proceed at 2:00 p.m.

• November 14, 2016: mother's counsel permitted to file her responding affidavits at 10:00 a.m. despite timelines for filing; society not filing any reply

[9] Mother's counsel submitted that she had just been retained and although she did draft responding materials she wished further time to prepare. Further, counsel submitted that until November 8th she did not have all of the court materials and endorsements. She further submitted that until recently she did not realize that the summary judgement motion related to both the finding and disposition.

[10] Although it was of enormous assistance to the court and the mother that counsel was prepared to represent the mother on fairly short notice, nevertheless when counsel assumes carriage of a case, it is incumbent upon counsel to ensure that she has all of the materials and endorsements. The mother was in possession of all of the documents from her former counsel and if counsel was missing any documents she could have attended at the court to review the file or contacted society counsel. The mother was aware as of June 16th that the summary judgement motion was to proceed with respect to both the finding and disposition. Since then she was granted 2 adjournments. Once counsel for the mother contacted the society counsel, all documents she requested were immediately forwarded to her.

[11] The adjournment was not granted due to the inordinate delay in proceeding with this case. This child has been in care for 18 months without a finding of need for protection even though society counsel circulated a draft Statement of Agreed Fact to which the mother never responded. The mother was aware as of March 14th that the society wished to proceed by means of a summary judgement motion and as of June 16th the mother was ordered to respond with or without counsel. It is incumbent on all parties including the court to ensure that children do not remain in care without any finding that the child is even in need of protection and if so found, without any adjudication about what disposition in in the child's best interests.

2.2 Attendance on December 2, 2016

[12] At the hearing submissions on the summary judgement motion on November 14th, except for a brief argument made by the mother's counsel with respect to the admissibility of the police records, counsel for the mother and the child made no objection to the considerable amount of hearsay contained in the affidavits filed by the society, the basis for the admissibility of the child's statements or any other evidentiary issues.

[13] Upon reflection and a closer scrutiny of the materials relied upon by the society, I requested all counsel attend before me to make submissions with respect to evidentiary issues that were of concern to the court.

[14] Counsel for the society relied on the case of Catholic Children's Aid Society of Toronto v. N.B., A.F., and D.B. for the proposition that if counsel on a summary judgement motion consent or do not oppose the admission of hearsay, opinion evidence and business records that the court can rely on that evidence. However, that case in my view is distinguishable as it was only on the appeal that counsel raised the issue that the admission of such evidence required the written consent of the parties and that the admission violated section 7 of the Charter of Rights. The appeal judge held that it would undermine the process if counsel sat silent and did not object to the court's reliance on evidence without objection on the motion and then only raised the issue on an appeal. The Ontario Court of Appeal in a 4 line endorsement simply stated that there was no violation of Section 7 of the Charter.

[15] The case relied upon does not in any way remove a motion judge's obligation to carefully scrutinize the evidence relied upon to ensure that the summary judgement motion proceeds in a fair and just manner and that the court is able to make the necessary findings of facts based on admissible evidence.

[16] In this case, I determined that the fairest and most expeditious process was to permit counsel be given an opportunity to make further submissions even though the concerns were not raised by counsel but rather by the court.

2.3 Admission of Police Records and Occurrence Reports

[17] The society seeks to introduce the criminal record of the mother, records of arrest where the mother is named as a victim, 19 occurrence reports and 2 community inquiry reports.

[18] Counsel for the mother objects to the admissibility of the records on the grounds that there was no formal notice served and the reports contain hearsay. Counsel for the society submits that no formal notice is necessary as mother was aware the society intended to rely on the police records and occurrence reports.

[19] Police reports are admissible as business records if they comply with the requirements of section 35 of the Evidence Act that reads as follows:

Definitions. (1) In this section,

"business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise;

"record" includes any information that is recorded or stored by means of any device.

(2) Where business records admissible.

Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

(3) Notice and production.

Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party's intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.

(4) Surrounding circumstances.

The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.

(5) Previous rules as to admissibility and privileged documents not affected.

Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged.

[20] Counsel for the society concedes that no formal notice was served of its intention to rely on the police records. However, the lack of formal notice is not fatal as noted many years ago by Justice Arbour, as she then was, in the case of Exhibitors Inc. v. Allen. The court held that although formal notice is not required actual notice is required in accordance with section 35(3) of the Evidence Act. In this case, counsel for the mother and counsel for the child were served on September 21, 2016 with a copy of the police records of the mother and the police records brief prepared by the society. It was clear that the society intended to rely on the police record brief and all of its contents and the mother had 2 months' notice of that intention. Therefore, I find the mother had actual notice of the society's intention to rely on the police records.

[21] With respect to the issue as to whether or not the evidence contained in the police records are otherwise admissible as it contains inadmissible opinion evidence or second-hand hearsay, I adopt and rely on the analysis of Justice Penny Jones in the case of Catholic Children's Aid Society of Toronto v. Jean L. and Willard R. (No. 3) at paras. 10 and 11 as follows:

10 Although the wording of section 35 appears to include almost every type of writing made by any type of operation, whether carried on for profit or not, there are serious limitations to admissibility built into the statute. Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd., 15 O.R. (2d) 750, 76 D.L.R. (3d) 641, 1977 CarswellOnt 626 (Ont. H.C.), remains the leading Ontario authority on the admissibility of business records and the interpretation of section 35 of the Evidence Act. In that case, Justice Griffiths set out, in some detail, the criteria for admissibility under the section and discussed the type of recording that would qualify. The following criteria emerge:

(1) the record must be made in the usual and ordinary course of business and it must be in the usual and ordinary course of business to make such a writing or record;

(2) the record must be made contemporaneously with the transaction recorded, or within a reasonable time thereafter;

(3) only records of "facts" can be admitted - note words in subsection 35(2) "an act, transaction, occurrence or event" and not records of expert opinion; and

(4) although there is no requirement that the maker of the record have personal knowledge of the facts recorded, he must be acting under a business duty and the informant must be acting under a business duty or the informant's statement must be otherwise admissible under the hearsay rule of exceptions.

11 It is important to note that, in Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd., supra, Justice Griffiths did not see section 35 as opening the floodgates to permit the admission of otherwise inadmissible evidence simply because it has been recorded in a business record. For example, he excluded expert opinions that might be recorded in the record and required the party seeking its admission to comply with the evidence rules relating to the admission of expert evidence. (This reasoning would apply equally to medical reports). Because of the absence of circumstantial guarantees of reliability, he also excluded recorded hearsay received from third parties who were not under a business duty to report the information. He wrote at pages 762-763 [O.R.] (my emphasis added):

The Act was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable. The mere fact that the recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe section 36 [now 35] as admitting hearsay evidence of any third party would make the section an almost limitless drag-net for the introduction of random testimony from volunteers outside the business whose information would be quite beyond the reach of the usual test of accuracy.

[22] I have applied these criteria in examining the admissibility of the documents in the police document brief. Further, I have considered whether or not the evidence is relevant to the issues before the court.

[23] The police records meet the criteria of business records pursuant to the Evidence Act as they were recorded by persons having a duty to report that is, a police officer, the information was recorded contemporaneously, the recordings were made in the usual and ordinary course of business and I have found that there was proper notice.

[24] It is the theory of the society's case that the mother has a propensity to be volatile, angry and get into disputes with not only society workers but other members of the public and that she does not comply with court orders. The parties conceded that this evidence was relevant to both the finding of need for protection and the disposition.

[25] The category of documents and my findings are as follows:

• The mother's criminal record is a proper business record and admissible.

• The mother's records of arrest are proper business records and admissible.

• There are 19 occurrence reports. The majority of these reports contain information from third parties who are not police such as neighbours, school authorities and relatives and are not admissible for their truth based on the reasoning outlined above. Counsel for the society agreed that she was not relying on these reports for their truth but merely for the fact that the police were called multiple times as a result of the mother's interactions with members of the community. There are also reports from social workers to the police. Although the social workers are under a duty to report at best this is second hand information and should be provided first hand by the individual worker in a sworn affidavit and recorded in case notes. In most of these incidents the social workers involved have provided first hand evidence with respect to the incidents. Further, the occurrence reports contain opinion evidence about the mother's mental health that is not admissible. However, personal knowledge of the recording officer or received from another police officer with a duty to report are admissible as well as the observations of the police. Therefore, the fact that the police were called as a result of an allegation and attended is admissible but the specific complaint by the third party is not admissible. Further, I find that the statements by the mother to the police are admissible although counsel for the mother objected to their admissibility on the basis that they were statement not made against her interests.

• There were several telephone calls by the mother to the police that I find are admissible. Mother's counsel objected to the admissibility of these statements and other made by the mother again on the basis that they were not statements made against interests.

• Synopsis of guilty pleas and supplementary records of arrest are not admissible as they contain a police summary of allegations and hearsay statements from third party complainants.

• Reports of community inquiries are not admissible for the truth as they are hearsay statements made by third parties who are not under a duty to report.

• A report with the mother as a victim of domestic violence is admissible and relevant as it goes to the concern about the mother's stability and risk of harm to the child. Mother's counsel agreed that this report was admissible and relevant.

2.4 Society's Affidavit and Admission of Hearsay

[26] The society filed the affidavit of the current family service worker, Israel Gonzalez sworn May 26, 2016 and then attached to his affidavit copies of 5 affidavits from Rose Douglas, the former family service worker that were filed in support of the temporary care and custody motion and also in support of a motion to obtain a restraining order against the mother. Also attached to Ms Douglas' affidavit was an affidavit from Alisa Lewis who was the society worker when the society was involved with the mother in a previous Protection Application in 2010. Mr. Gonzalez also attached as exhibits 2 affidavits from the mother and a medical report filed by the mother. Although the presentation of the affidavits was awkward and it would have been much better practice to file these affidavits individually, there is no prejudice to the mother with this format.

[27] The more concerning issue is that these were affidavits in support of temporary relief and as such they contain considerable hearsay evidence from other workers, school authorities and other community members. The society should have prepared fresh affidavits from the society workers for the summary judgement motion. I contemplated whether or not I should simply dismiss the summary judgement motion or adjourn it and give the society an opportunity to serve and file better materials. However, after giving counsel an opportunity to make submissions on the admissibility of each paragraph in the affidavits that the court had concerns about and after hearing submissions from counsel I am satisfied that I can come to a decision without relying on the inadmissible hearsay contained in the society's materials. Counsel for the society readily conceded the hearsay nature of many of the objectionable paragraphs in the society worker's affidavits and agreed that where the affiant recited information from a third party or referred to a discussion with another worker or a contact log prepared by another worker that the information was proffered not for the truth but for the narrative and to explain the steps or decisions made by the society as a result of that information.

[28] However, counsel for the society submitted that the court should admit the case note or contact log attached to the society workers' affidavits that were prepared by another society worker who had not sworn his or her own affidavit. It was submitted that these were business records as such notes or logs were prepared by society workers in the usual course of their job, they are made contemporaneously and as they were attached to the affidavit and the mother had disclosure of all of the society's records, there was actual notice that they would be relied upon. Counsel for the society also submitted that it would be inconvenient for the society to have to prepare affidavits for all of the workers involved. The case notes and logs in question were made by Karen Luke who is a supervisor that the mother frequently telephoned, emergency after-hours workers, a child service worker and a worker who supervised access visits. There is no explanation as to why the society workers were not available to swear their own affidavits.

[29] Although in some cases due to the lengthy historical involvement of a society or due to the large number of workers involved it may be more expedient to rely on such contact logs or case notes that is not the situation here. Throughout the society's involvement there have only been two child service workers, two family service worker, one intake worker and the same supervisor. It was not clear from any of the affidavits filed who was responsible for supervising the visits other than the workers assigned to the case. The society should have prepared fresh affidavits for each of these workers and not relied on attaching case notes or logs of these workers to the affidavit of other workers. If the evidence was important and relevant enough to include then it should have been prepared in a proper form. Counsel for a parent is entitled as of right to cross-examine a deponent and this method of attaching case and log notes by workers who do not provide an affidavit deprives a parent of the right to cross-examine that worker. Even if counsel for parents seldom if ever utilize this right, this does not give the society leeway to prepare affidavits in this form. Therefore, I am not prepared to admit the case notes or logs prepared by society workers who have not sworn an affidavit as this is not the best evidence available, there is no explanation of the necessity for presenting the evidence in this form and I find presenting the evidence in this form is prejudicial to the mother.

[30] A further issue that presented itself is that in Mr. Gonzalez's affidavit he includes discussions with the mother's counsellor, her probation officer, her family doctor and a psychiatrist she saw and includes a report from that psychiatrist. Although this evidence is clearly hearsay, counsel for the society submits that it has a duty to present all of the evidence both favourable and unfavourable to its case, that it accepted the information provided as truthful and made decisions about how to proceed in the case based on the information received.

[31] Counsel for the mother submitted that she relied on this evidence being admitted and for that reason did not provide any updating reports from the mother's counsellors. I have some difficulty with this submission as the last contact Mr. Gonzalez had with the mother's counsellor was in July 2016 and shortly after the society amended its Protection Application to seek an order of crown wardship without access. However, if counsel for the mother consents to the hearsay being admitted and relied upon by the court for its truth then I am prepared to admit it so as to not prejudice the mother. Further, the court specifically pointed out to mother's counsel that some of this evidence is not favourable to the mother but nevertheless, mother's counsel wished it admitted as in her view the positive aspects outweighed the negative.

[32] Counsel for the mother submitted that the child's statements should not be admitted even though this was not raised in the initial attendance on the summary judgement motion or by the court. For a child's statement to be admitted for its truth the tests of necessity and reliability need to be met. All counsel agreed that in view of the child's age the issue of the test of necessity was met. Counsel for the mother or the child did not make any submissions about the reliability of the statement except to state that a voir dire had not been held which made no sense as this was a motion not a trial and neither counsel sought to cross-examine the worker or the foster mother to whom the child's statements were made. If this submission was meant to indicate that what the child said was a material issue in dispute and that therefore this was a genuine issue for trial, this was not articulated.

[33] Even without relying on the expanded powers available on a summary judgement motion, I find that given the spontaneous nature of the child's statements to the family service worker regarding her mother slapping her, the lack of any motive for the child to make such an allegation and the fact that there was evidence of a bruise seen by the foster mother I find that the statements are reliable. For the same reasons I find that the child's statements about her home life are admissible for the truth. Further, the court does have the ability to weigh evidence and assess credibility to determine whether there is a genuine issue requiring trial. If I had used these powers I would come to the same conclusion based on the manner the statements were made by the child and the fact that the mother made several contradictory statements with respect to her physical discipline of the child and in response to the statements made by the child regarding her home life.

[34] With respect to the child's statement about her views and preferences and statements about her feelings, I find that these statements are admissible as an exception to the hearsay rule relating to the child's state of mind. These statements are admissible not for the truth, but simply for the fact that they were said.

[35] The mother made numerous statements both to the workers, the police and in the course of the assessment with Dr. Amitay. Although counsel for the mother initially conceded that the statements by the mother were admissible, she then objected to the admissibility of the statements made to Dr. Amitay on the basis that Dr. Amitay has not been subject to cross-examination so that the credibility of these statements had not been tested and the statements made by the mother were not against interests.

[36] I find that the mother's statements are admissible. A party in a proceeding can use and rely upon the opposing parties' admissions; this is often referred to as an admission against interest. This was explained in the In the Law of Evidence, 5th Edition, at page 147-148, by the authors David M. Paciocco (now Justice Paciocco) and Lee Steusser as follows:

Admissions are acts or words of a party offered as evidence against that party. Professor Younger provides this rule of thumb: "Anything the other party ever said or did will be admissible so long as it has something to do with the case". Often the phrase, admission against interest in used. Beware. The phrase invites confusion between an admission made by a party and the completely different hearsay exception for "declarations against interest" made by non-parties. An admission does not require that a party knowingly make a statement against interest. The evidence is "against interest" simply because the opposing side has decided to introduce it at trial against the other party.

3. Applicable Legal Considerations with Respect to Summary Judgement Motion

[37] As the society is proceeding by means of a summary judgement motion, pursuant to rule 16 of the Family Law Rules, the issues to be determined must be adjudicated within the context of the rules and the case law that has evolved.

[38] Subrule 16 of the Family Law Rules ("FLR") allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

[39] Subrule 16(2) specifically confirms that summary judgment is available in child protection proceedings.

[40] Subrule 16(4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[41] Subrule 16(4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

[42] Subrule 16(6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[43] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue requiring a trial. The onus is on the Society to show there is no genuine issue for trial.

[44] In assessing whether or not a society has met its obligation of showing there is no genuine issue for trial, courts have equated that phrase with "no chance of success", "when the outcome is a foregone conclusion", "plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome other than that sought by the applicant".

[45] Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. Justice Hardman, in the case of Children's Aid Society of the Regional Municipality of Waterloo v. T.S. observed at paragraph 5 of that decision that because summary judgment is now explicitly contemplated by subrule 16, this may:

…broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment.

[46] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue requiring a trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is a genuine issue requiring a trial will be insufficient to defeat a claim for summary judgment.

[47] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, has clarified the process of applying the expanded summary judgment rule in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. The court held that the judge should first determine if there is a genuine issue requiring a trial based on the evidence before her, without using the new fact-finding powers. There will be no genuine issue for trial if the summary judgement process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If there appears to be a genuine issue for trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).

[48] Subrule 16(6.1) FLR codifies these broad powers in considering a summary judgment motion. The rule specifically provides as follows:

[49] 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 interests of justice for such powers only to be exercised at a trial:

1. Weighing the evidence;

2. Evaluating the credibility of a deponent;

3. Drawing any reasonable inference from the evidence.

[50] Subrule 16(6.2) FLR provides that the court may, in exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one of more of the parties, with or without time limits.

[51] Accordingly, the first step is to determine if there is a genuine issue requiring a trial based only on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility.

[52] In determining if there is a genuine issue requiring a trial based on evidence presented by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial.

[53] The test for summary judgement is met when the moving party satisfies the court that there is no genuine issue of a material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material.

[54] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits.

[55] I rely on the line of cases that hold that hearsay evidence should only be admitted when it meets the criteria of necessity and reliability and that the evidence on a summary judgement motion should be of a level and quality that could withstand the rigour of a trial. Subrule 16(5) FLR provides a stricter rule with respect to hearsay than subrule 14(19) FLR motions, namely that 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.

[56] In interpreting subrule 16 FLR, the court must also consider the strict timelines that govern child protection proceedings and subsection 1(1) of the CFSA providing that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.

[57] It is also necessary to consider subrule 2 FLR to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that cases are dealt with in ways that are appropriate to their importance and complexity and giving appropriate court resources to the case before the court while taking into consideration the need to give resources to other cases. This appears to also be in keeping with the process test set out by the Supreme Court of Canada in Hryniak v. Mauldin.

[58] 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 discernable from the parent's evidence that the child faces some better prospect that what existed at the time of the society's removal of the child from the parent and that the parent has developed some new ability as a parent.

4. Summary of Material Facts

4.1 Background and Events Leading to the Apprehension

[59] The mother is 30 years old and is currently single. She and the father are separated. The father has not had any contact with the child since she has been in the care of the society and he has not participated in these proceedings.

[60] The society commenced a Protection Application in March 2010. The affidavit of Alisa Lewis sworn in support of that Protection Application indicates that the society become involved due to various concerns about the mother's use of drugs and the impact on her parenting, failure to meet the basic needs of her daughter, failure to follow up with the child's speech and language delays, domestic violence and failure to follow through with her own mental health needs. But the Protection Application was withdrawn in June 2010 as the mother co-operated with the society and addressed its concerns and agreed to work voluntarily with the society for another 3 months.

[61] In February 2015, the society received a referral from the social worker at the child's school due to concerns about the child's significant absences in 2014 and 2015, an inability of the school to address the issues with the mother and a lack of co-operation.

[62] The intake worker, Aileen Guiterrez attempted to meet with the mother between March and April but the mother only made herself available one time.

[63] The file was transferred to Rose Douglas for ongoing services. Ms Douglas and Ms Guiterrez attended at the mother's home for an unannounced visit for a transfer meeting. The mother refused to allow the society workers to enter and yelled from behind the door that she wanted the file closed and she did not want to work with the society.

[64] Based on information received, on May 14, 2015 Ms Douglas attended at the school to interview the child who was 6 years old at the time.

[65] The child disclosed that she had been slapped by her mother and that the slaps were painful. The child could not remember when she was last hit and there were no visible marks. The child also reported that she often went to school without breakfast and that sometimes she had to prepare her own dinner which was a butter sandwich. The child also reported that she did not have baths, wash her hair or brush her teeth as part of a regular routine at home but these were done by a family friend with whom she sometimes stayed.

[66] On that day Ms Douglas attempted to reach the mother multiple times to discuss a placement of the child with her family friend or elsewhere. But when she was finally able to reach the mother, the mother stated that her file was closed and immediately hung up the phone.

[67] On May 15, 2015 the child was apprehended and placed in a foster home. Ms Douglas left the mother a text message asking that she contact her as it was urgent. The mother replied, "Leave me alone". The mother called the worker at the end of the day by which time she was aware the child had been apprehended. The mother repeatedly swore at the worker who advised the mother of the court date and terminated the call.

[68] On May 16, 2015 the foster mother took the child for an admission medical. Both the doctor and the foster mother noted an old bruising on the child's leg. When asked about the bruising the child spontaneously responded that the bruising was where her mother had hit her.

4.2 Evidence with Respect to Mother's Interactions with the School Authorities, the Society Workers and the Foster Mother

[69] On May 20, 2015 the mother attended at the child's school and was apprehended by the police under the Mental Health Act and taken to the hospital to be assessed. She was subsequently released. The mother deposes that she was in a state of shock as a result of her daughter being apprehended. She did not understand the nature or the reason for the apprehension and that school absences were not a reason to apprehend.

[70] On May 20, 2015 the mother left a voicemail message on the foster mother's telephone for the child. The mother stated that they were telling lies about her in court and that she did not know why the child said things about her and about what happened in their home.

[71] The mother continued to telephone every day. The foster mother deposed that she always had the speaker phone on and the mother would cry, blame the child for being in care, tell the child that she hoped the child learnt her lesson for being in care and would begin to listen to the mother and go to school. The child spent a lot of time comforting the mother but told her that she was not ready to come home. The mother also told the child not to speak to any family members as the mother could not trust them and that she would be coming home.

[72] Several weeks later, the foster mother attempted to speak to the mother to share her concerns about the nature of the telephone calls and reassure her that the child was safe and loved. The mother became hostile and aggressive and in a progressively loud voice stated that she was free to tell her daughter who she could or could not speak to, that her daughter was coming home at the end of the school year and that it was the foster mother who was standing in the way of the child coming home. Due to the mother's hostility the foster mother ended the call.

[73] On June 12, 2015 a family centred conference was arranged. The mother chose not to attend but was available on the telephone. Initially the meeting went well, the mother then began to interrupt and argue as she did not want people she did not know discussing her case. The meeting needed to be cut short.

[74] On June 17, 2015 the mother met with Ms Douglas to discuss an access plan and the mother signed an access agreement. The agreement stipulated that the mother would have access twice a week, fully supervised for two hours. The mother was expected to conduct herself in an appropriate manner. The mother was requested not to call the foster home and that telephone access would be initiated by the foster mother. The mother stated that she would call the foster home until the judge told her not to.

[75] The mother continued to call the foster mother and would leave abusive telephone and text messages accusing the foster mother of not properly dressing the child, not caring about the child, telling her that she is not going to keep her daughter. In one such message the mother stated, "if anything happens to my daughter while she is in your care, so help me God."

[76] On June 29, 2015 the mother attended for a supervised access visit. The mother asked if she could take the child out for something to eat but was told that she could not but that she could go to get something and bring it back. When the mother returned she slammed the door. The mother proceeded to ask the child questions about the foster home and if the foster mother hurt her. When the worker attempted to refocus the discussion the mother stated that she would ask her daughter whatever she wanted to and then began to hit the microphone in the visiting room. The mother then spoke to the child about the society and how they were "kidnappers" and that they had kidnapped her. When Ms Douglas attempted to tell the mother to refrain from talking this way in front of the child, the mother began to yell and scream louder, "kidnapper". The worker told the mother the visit was terminated and she told the child to leave the room. The mother's voice grew louder and stated that the child was not going anywhere and she was not leaving and the only way the visit would end is if the police were called. The child looked frightened in the midst of all of this.

[77] The police were called and were able to get the mother to de-escalate and have the child leave the room and the mother leave the building.

[78] About 20 to 25 minutes later, the mother returned to the building and asked to meet with Ms Douglas who told her that she was in another meeting and could not meet. The police were called again and with police assistance the mother left the building.

[79] Over the next several days the mother left inappropriate text messages and voice mail messages containing foul language for the foster mother who reported her concerns to the society. The mother then called Ms Douglas telling her that she better call the foster mother and get the child to call her as it would be in her "best interest" to do so and that there were no court orders preventing her from speaking to her daughter.

[80] On July 3, 2015 the mother called Ms Douglas to complain again that she had not heard from the child. Ms Douglas informed her that all access had been suspended due to her verbally abusive behaviours. The mother then began to demand that her file be transferred to the Children's Aid Society of Toronto as the child was Christian and not Catholic. When Ms Douglas attempted to explain the process for a transfer, the mother started to blame the worker for what had happened to her and called the worker an "ugly bitch".

[81] As a result of the mother continuing to leave abusive telephone messages, the foster mother changed her telephone number.

[82] The mother put the blame for her own behaviour on Ms Douglas and requested a change of worker. In August 2015, a meeting was arranged to introduce the mother to the new worker, Melissa De Castro and to discuss a plan to reinstate access that had been suspended since the incidents on June 29, 2015.

[83] During this meeting, the mother advised she would work co-operatively with the society and permit the worker to attend her home. But the mother's affect changed rapidly during the meeting, at times the mother was tearful and crying and then abrupt and curt. Her anger surfaced whenever she referred to Ms Douglas and the apprehension of the child. The mother spoke negatively about the foster mother complaining that she did not have a television or a security system and questioned if the child could just walk out of the house.

[84] The mother was questioned about a telephone call with the child the previous day where it was reported that she had yelled and swore while on the phone with the child. The mother admitted she did this and reported that she had walked outside her residence to get some privacy and then her friend would not let her back into the home so she banged on the door and yelled and swore. The mother stated that the child knew what she was like and she was allowing the child to see that she needed to stand up for herself. She did not see the incident on the phone as being problematic for the child.

[85] The workers explained to the mother that they needed to see 4 calm and appropriate telephone calls before face to face access would be recommended.

[86] On September 1, 2015 access resumed and the visit went well. The interactions between the mother and child were positive and affectionate.

[87] On November 5, 2015 the mother's face to face access was again put on hold due to concerns about the mother's behaviour. Access was then resumed on November 17, 2015.

[88] On December 18, 2015 all access visits and telephone access were again suspended due to threats by the mother to "show up daily" at the child's school, the church she attended as well as the foster home. The mother admitted she made these statements but deposed that portions of her statements were omitted and that she said that if her daughter was in harm's way she would attend at the foster home and the church and that she feels she needs to protect her daughter. She also deposed that irrespective of her messages she is aware that she cannot do this and will not do this. She further admitted that sometimes "she shoots from the hip" and that is what she was doing. The mother also admitted that she had been calling the school and that she was entitled to do so. She admitted that she told the worker that she would call the society every day to speak to her daughter as she was in a state of exasperation.

[89] The mother denied that she called the foster mother a "bitch" in front of the child but that she did call the worker "bitch" under her breath so her daughter could not have heard. She admitted that she hung up the phone on Melissa Cross, the child service worker and had difficulties controlling her emotions when dealing with Karen Luke the supervisor.

[90] On January 26, 2016 the mother's telephone access was reinstated.

[91] On March 14, 2016, Ms De Castro and a new family service worker, Israel Gonzalez met with the mother. The mother indicated that she had concluded that the society's apprehension and the process with respect to the child being in care was "illegal". The mother advised that she had been attending a parenting program, a group through the Barbara Schlifer clinic and went to see a psychiatrist, Dr. Cavanagh to obtain a second opinion about the parenting capacity assessment by Dr. Amitay. The mother signed consents for the worker to speak directly to her service providers and to Dr. Cavanagh.

[92] Based on the mother's cooperation with the society in March 2016 and the positive feedback received from other professionals that were working with the mother, the mother's face to face access was resumed on April 8, 2016.

[93] Mr. Gonzales met with the mother to discuss her behaviour in front of the child and the mother's statement that the child "needed to see her emotions". The worker pointed that it was how she managed her emotions was what she needed to work on. When the issue was raised about the police needing to be called to intervene in an access visit, the mother admitted that she had exposed the child to a difficult situation but that her intention was not to bother the child but to show how much she cared for her and that she would do anything to spend an extra 10 minutes with her.

[94] A plan of care meeting was held on May 3, 2016. It had been explained to the mother that this was an opportunity for her to demonstrate that she was respectful of the foster mother and sit in the same room with her.

[95] The mother and child service worker Prague Massesus arrived early and when Ms Massesus tried to answer the mother's questions about her role by giving her a Ministry hand out, the mother reacted by saying, "this is crap, this is from 1992 and it needs to be updated, and I don't care about what anybody says."

[96] When introduced to the foster mother's resource worker and her function was explained, the mother began to question the apprehension stating she never neglected the child or put her in harms' way. The mother repeatedly raised her voice, yelling and swearing, spitting while yelling as well as having clinched her fists and shaking both hands in the air. She would not allow anyone to speak. When reminded about what her counsellor had advised her about during a recent meeting with Mr. Gonzalez, the mother stated she did not care what her counsellor said as she should have been at the meeting if she really cared. At this point the mother started to cry and yell at the top of her lungs for a few minutes. The mother then calmed down and asked the society to document how emotional she had become.

[97] Once the foster mother arrived, the mother had managed to calm herself down, greeted the foster mother respectfully and even apologized to the foster mother for her past behaviours. At the end of the meeting the mother asked the foster mother if she had children and if her daughter met other people while in the foster home. The foster mother responded that she would rather not discuss her personal life but that the child does meet other people in her care and that she would not expose the child to anyone or any situation that would be inappropriate. The mother then stated that her life was under constant scrutiny and she thought her questions were not inappropriate. The mother then stated that she had had enough of "us" and abruptly left the meeting.

[98] Mr. Gonzalez met with the mother and her counsellor due to information he received that the mother continued to call the society's after-hours emergency workers, concerns about the mother continuing to question the child about the foster home and the foster mother and telling the child that she would be coming home.

[99] The mother stated that the society did not have the right to intervene in her telephone calls as it was against the Criminal Code and that she would continue to ask all of the question she believed were pertinent and it was not fair that the foster mother gets to know about her life. When asked to stop questioning the child, the mother replied that she would continue to ask whatever she wanted and she did not care what the worker or anyone else said. When the worker tried to point out that situation like these were preventing her from moving forward towards a reunification, the mother replied that Mr. Gonzalez was a "nobody" and that she was tired of the society telling her what to do and she was going to "the right people", to the media, and even to Prime Minister Justin Trudeau. She said she would not sign anymore consent or agreements.

[100] The mother then told the worker that she was surprised that the father had not even been mentioned in the court papers. She advised that she had not seen the father for over 3 years and had not spoken to him in over 5 months. She then stated that she hoped the father would not find the worker, as "who knows what would happen" to him. When asked to clarify her statement she said, "you go figure what it means".

[101] When the worker then stated that he did not see the point of continuing the meeting, the mother stated, "Let's get this over with" and signed the access agreement.

[102] On June 16, 2016 Mr. Gonzalez was at court as the summary judgement motion had been set regarding the finding. An adjournment was granted as mother's counsel was removed as her counsel. When the worker, society counsel and the mother attended at the trial co-ordinator's office to obtain a new date, Mr. Gonzalez deposes that the mother began to yell that she was not available for the date offered, and she was not willing to allow the child to remain in care for another summer or Christmas. The mother also stated she was being targeted, that the society was bullying her and trying to discredit her because she was a security guard. She then stated that this was all becoming a security concern because the father could do something to her if she lost custody of the child. The mother was yelling and screaming so loud that at one point 5 uniformed police officers were present. The mother continued to yell, scream and swear for more than 30 minutes.

[103] The mother made disparaging comments about the worker and society counsel and then shouted that the worker and society counsel should drive home safely as nobody knew what might happen to them, particularly knowing that the father was around the city. The mother did not deny this incident.

[104] On August 17, 2016 after Mr. Gonzalez removed the child from an access visit due to the mother's behaviour, he received several calls from the society receptionist that the mother was crying and upset and needed to speak to him.

[105] Later that day, he spoke to the mother who stated that she was very upset and tired of the society. The mother said she wanted the process over so that the society could start the adoption process. She began to yell and scream profanities. The worker tried to interject and have a conversation but the mother would not stop yelling. She then said that the society disrespected her and that the society would not see any of the money that her mother had put in a trust for the child. She said she would not be giving the child any of her belongings and that the society had ruined her reputation. She stated that the society could keep the child. The mother stated that she would get married and have more "F…ing children" and then the society could come and take those children away from her too. The mother said that the foster mother would not last for another 50 years so "this would be another f..ing change for B.". She went on about the society ruining her family, her reputation as a security guard, that the society would have to deal with the child's father and that he will actually be dealing with Mr. Gonzalez. She said that the society was not the police and could not tell her what to do. When the worker suggested they terminate the call as she was upset, the mother interrupted by screaming that, "You can come to my home and try to be a daddy" and reiterated that he would have to deal with the child's father. The worker asked if the father was with her which she denied. The mother then said that the last time she tried to contact him, he said he would send someone to pick her up and she got into a gold car and almost got raped. The mother was still screaming and yelling profanities when the worker ended the call.

[106] Mr. Gonzalez's affidavits with this information were sworn May 26, 2016 and August 22, 2016. In affidavits sworn November 10 and 11, 2016 the mother denies most of the incidents, alleges that the society made up the comments alleged to be made by her or justified her actions as she was upset or did not feel that the foster mother or the workers had the right to interfere with her phone calls or access.

4.3 Evidence of the Mother's Criminal Record and Involvement with the Police

[107] On June 1, 2015 the mother was charged with assault of a neighbour and mischief under $5,000. The charges were subsequently withdrawn on the basis that the mother entered into a 12 month peace bond.

[108] On July 7, 2015 the mother attended court for a scheduled hearing and was arrested as her sister who was her surety on the outstanding assault and mischief charges withdrew as her surety.

[109] On September 1, 2015 the mother was charged with 2 counts of fail to comply with a recognizance. The mother had been released with respect to an assault and mischief to property, on terms to not come within 100 metres of the residence of the complainant. The police reviewed the security tape and confirmed that the mother was seen entering the building on August 23, August 26 and September 3, 2015. The charges were subsequently withdrawn on the mother entering into a 12 month peace bond.

[110] On March 10, 2016 the mother was charged with breach of a recognizance and theft under $5,000. On June 29, 2016 these charges were withdrawn.

[111] On January 8, 2016 the mother reported that she was the alleged victim of a domestic assault by her former partner A.C with whom she was now only friends. As a result of the assault, the mother sustained bruising to her left eye.

[112] There are 19 occurrence reports filed. The police responded to various complaints from the school, the society and the mother's friends and neighbours about possible neglect, harassment, trespassing and an alleged altercation between the mother and her sister's son. As previously indicated these are relevant only for the purpose of the number of times the police were involved with the mother and not for the truth of the allegations received by the police.

[113] The mother called the police several times on May 17, 2015 making inquiries about the whereabouts of her daughter. The police officer confirmed that her daughter was in the care of the society. The mother was directed to contact the society and told that the family court hearing was on May 20th. The mother called again demanding the police get her daughter back, accusing the society of abducting her daughter. The mother was screaming and verbally aggressive when the office told her that she was not going to overrule what another officer told her before. After she screamed and vented for 3 straight minutes the officer hang up. The mother called back 3 more times screaming or making demands.

[114] On May 20, 2015 the police attended at the child's school due to a report that the mother was outside swearing and yelling and banging on the doors. As the police arrived the mother fled. When located by the police the mother was belligerent, screaming and pushing the officers. Based on the mother's behaviour and further information received, the mother was apprehended pursuant to the Mental Health Act and she was transported to the hospital. The officers also issued a no trespass order to stay away from the school and the mother stated that she understood. With respect to this incident the mother stated that she was not apprehended forcefully but that she broke from the officer's physical restrains after repeatedly asking him if she was under arrest. She denied she was resisting and stated that in any event there were no children or parents around.

[115] On June 29, 2015 the police received a call from the society that the mother who was present for a scheduled visit would not leave the premises. When the police arrived the mother left without an incident.

[116] About an hour later, police were again called to remove the mother from the society's office. Upon the arrival of the police the mother left again without incident. The mother explained this incident by stating that she let go of the child once the police arrived and it was not a hostage situation and that the child was comfortable in her presence.

[117] Other than these explanations, the mother did not deny or offer any further information with respect to her involvement with the police.

4.4 Parenting Capacity Assessment of Dr. Oren Amitay

[118] On September 24, 2015 the parties agreed to a parenting capacity assessment by Dr. Oren Amitay. Counsel for the parties agreed upon the process, the documents to be reviewed, the parties and collaterals to be seen or spoken to and the questions to be addressed.

[119] The mother provided much background information to Dr. Amitay about her childhood, her life, her partners and her relationships with various family members and friends. The mother in the several affidavits she filed did not dispute the accuracy of any of the information but she did not provide any of these details in her own affidavits. I have simply relied on the information as a backdrop and not relied on it for the truth.

[120] With respect to the child's non-attendance at school, the mother explained to Dr. Amitay that her daughter was bullied, did not want to go to school, did not like school and the staff were judgmental of her and brushed her off. When it was pointed out that the society's documents indicated that her daughter liked school the mother did not address this discrepancy and complained about various other concerns about the school. The mother also admitted that she had trouble getting the child to school in the winter but stated that she did not purposely keep her away.

[121] With respect to attending at the school on May 20, 2015, the mother explained that she needed a form that she had accidently left at the school and waited for over an hour for the principal who was supposed to come outside. The mother reported that when the principal and the attendance counsellor came out, she asked them who had given them permission to speak to the child's godmother without her permission and that when she swore at them they went back into the school. The mother stated that she stood outside yelling because the school called the society and blaming them that her child was taken from the school. She reported that the school was in lock down when the police arrived. Though I note that she deposed in her affidavit that the school was not in lockdown. When describing the incident and the police report the mother stated that she had gone willingly even though she admitted that she tried to flee, broke out of the officer's grasp and out of handcuffs that resulted in her being shackled. When questioned about her use of the term "willingly" when she tried to flee, she responded that of course she tried to flee as she wanted to return the ATV that she had driven to the school home.

[122] With respect to the incident on June 29th when the police needed to be called to remove her from an access visit, the mother admitted that she continued to ask the child questions and because the society workers kept coming into the visit, she hit the microphone to hurt the workers' ears. She acknowledged this was "bad behaviour" and that her daughter was present. But then stated that she was not holding her daughter hostage although she admitted that she told the workers she was keeping her daughter until the police come. The police arrived and told the mother she should let the child go. The mother admitted again that she should not have let her daughter witness her disruptive behaviour. The mother explained that she returned later because she was told she was banned but she wanted to know for how long. When asked if, as alleged by the society, that the judge two weeks later admonished her for her behaviour she replied, "Maybe, but I don't care".

[123] The mother reviewed the various complaints made against her by a former babysitter, another former friend, her sister and an alleged altercation with her nephew. Essentially she blamed the complainants and denied all of the allegations made against her.

[124] Dr. Amitay asked the mother about her relationship with the society. Dr. Amitay noted that the mother constantly complained about her previous worker throughout the assessment but she did confirm as accurate the worker's description of her telephone and in person interactions with that worker and others at the society, except that she denied calling the worker "an ugly bitch". At page 17 of the report Dr. Amitay states that the mother would almost always speak as if:

a) she did not care about her actions or their impact on others;

b) she did not think that what she had done was wrong or as bad as others made it seem;

c) she believed she was justified in saying or doing what she did, in light of the circumstances or the attitudes and behaviours of others; and/or

d) she felt that others should be understanding, compassionate and forgiving toward her and her transgressions because of her past or more recent history of hardships—especially the apprehension of her daughter.

[125] The mother was asked about other reports from the society about her being rude, hostile or otherwise having inappropriate dealings with the society. The mother denied some of the allegations and repeatedly advised that the workers were jealous of her because they were women, she was a security guard and her mother won the lottery. The mother stated that the lack of regard for her and her daughter's needs caused her to yell in court in November 2015. She them specifically blamed the society worker's supervisor for her outburst that occurred after court when she was told her visits had been cancelled.

[126] When questioned about reports that she had been verbally abusive and otherwise inappropriate to the foster mother, the mother placed any blame for her misconduct on the foster mother. The mother played a recording of a message she left for the foster mother and although she believed that the recording confirmed her complaints about the foster mother, Dr. Amitay states that it did not do so and instead showed that the foster mother was patiently trying to assuage her concerns and advise her how to interact with the child over the phone so as not to upset the child. The mother repeatedly interrupted the foster mother and did not comply with her request to let her speak. Then the mother thanked the foster mother for taking care of her daughter and then wanted to speak to her despite the fact is was 11:00 p.m. The foster mother in her affidavit provides the same evidence with respect to this call.

[127] The mother told Dr. Amitay that she did know where the child went to school and which church she attended and stated that, "so yes, I will go take her if I hear something happens [to her]". When asked about taking such action while her daughter is in foster care, the mother responded that, "I don't care about CAS". The mother acknowledging telling the foster mother that, "If anything happens to B. while in your care, so help me god!"

[128] The mother made the following admissions to Dr. Amitay, none of which she disputed or denied in her affidavits:

a) Although she had a great deal of difficulty getting the child to bed and up in the morning, both her godmother and foster mother were able to do so. The mother explained that this was because the child knew what she could get away with her;

b) The mother admitted she told the child that she hoped she learnt her lesson from all of this and stated that the child was "a spoilt only child";

c) Regarding the June 29, 2015 access visit, the mother admitted to discussing in front of the child allegations that the child's paediatrician had sexually interfered with her and that she wanted her daughter to hear these things. She also admitted to telling her daughter that she was pregnant and defended doing so because it was only a joke. When she was asked whether or not such a statement might feel to the child that she was being replaced by a new baby, the mother rejected this notion and stated that the child was "resilient";

d) When asked about the concern that she had improperly disciplined the child, the mother stated that, "That's a lie; what do they want me to do—beat my child? She denied a claim by the child that she hits her really hard. The mother stated that she only one time "smacked her and the dog on the bum at the same time";

e) Although the mother admitted to making statement to the child as alleged by the society workers badmouthing the society and the foster mother, she denied ever asking her daughter whether she liked the foster mother better than herself;

f) The mother admitted that during a telephone conversation with the child on November 6, 2015 the child told her that she did not want to come home. The mother implied that her daughter got to do things at the foster home that she did not do at home but then shifted the thought to blaming the foster mother; and

g) When asked how much responsibility should be attributable to her for the current situation she stated "30%" and that the child's school was responsible for "just about all" of the blame because they had committed a "malicious act" against her. She blamed the school for levying a $200 fine against her because they knew she was a security guard and that her mother won the lottery and that this was a way of the school to make money.

[129] Dr. Amitay spoke to several of the mother's professional supports and reviewed some letters and reports on her behalf. Dr. Amitay states in his report that it is his practice to refrain as much as possible from disclosing much of what was discussed so as not to risk creating any disharmony between the clients and their professional or personal supports. However, he was satisfied that the mother was attending a parenting program and that her counsellor was very positive and supportive of her.

[130] After the formal interviews with the mother, the psychological testing and his observation of an access visit on November 25, 2015, Dr. Amitay arranged a telephone feedback session with the society worker, the mother and her counsel to discuss his findings up to that point. The mother was asked at the outset not to interrupt if she disagreed but to make a note of any such issue and then raise it when given the opportunity to do so. However, the mother frequently interjected to make complaints about what was said or to defend herself and often simply repeated what she had said during the assessment. Toward the end of the call, the mother went on an extended and more aggressive rant than her previous ones and then abruptly hung up.

[131] Dr. Amitay spoke to the society worker on January 22, 2016 to obtain any updates and was made aware that the mother's access had been reduced as of December 15, 2015 due to her conduct and threats against the society worker and the foster mother.

[132] Dr. Amitay concluded that it would not be prudent at present to place the child in the sole care of the mother. At pages 32 to 33 of his report he explains his conclusion as follows:

When conducting a PCA [parenting capacity assessment], this examiner places a great premium on the parent's ability to satisfy three criteria that typically predict a successful outcome in cases such as this one. Specifically, in addition to parenting knowledge and skills, participants in a PCA are expected to consistently demonstrate at least two—but preferably three—of the following traits and behaviours:

(1) Sufficient insight into their issues and other relevant factors that have contributed to their involvement with the CCAST [Catholic Children's Aid Society of Toronto]

(2) Good judgement in order to care for, protect and raise their child and to put the child's needs before their own; and

(3) The ability to work honestly and cooperatively with the CCAST and any other people or organizations involved in the welfare of the child, in order to improve on the issues that led to the Society's involvement with the family.

Unfortunately, Ms. M. does not appear willing or able to evince any of the preceding traits. To the contrary, she displayed some of the greatest defensiveness and resistance—together with denial, minimization, avoidance, rationalization, deflection and externalization of blame or personal responsibility—that this examiner has encountered in approximately 400 PCA'S. Given her Average verbal intelligence (as measured by the VCI of the WAIS-IV), Ms. M.'s lack of insight, poor judgement and inability to work cooperatively with most people for extended periods of time appears to stem from personality, psychological, social and interpersonal factors…….

It cannot be said more clearly: Until Ms M. is truly able to take adequate responsibility for her choices and actions that have resulted in the Society's involvement in her life, there is no reason to expect any improvements in the numerous issues detailed throughout this report. This is because one of the oldest and most fundamental axioms in psychology and psychotherapy is that one cannot make changes in oneself without first recognizing and admitting what needs to be changed.

[133] Dr. Amitay also noted that in the teleconference call he had personally witnessed the mother's inability to manage her emotions and to conduct herself appropriately despite repeated attempts to get her to do so. Further, two weeks later, despite having heard the specific concerns arising out of the assessment she again acted inappropriately and lost control despite having received clear direction about what she needed to do or not do in order to improve her chances of having her daughter returned to her care. Further, the incident again occurred in front of her daughter who heard her mother badmouthing the foster mother. Dr. Amitay concluded that this was further evidence that the risk of psychological or emotional harming the child does not act as a deterrent to the mother.

[134] Dr. Amitay further opined that the mother demonstrated some motivation to have the child returned to her care by consistently attending a parenting program since September 2015. However, it was his opinion that being able to conduct herself appropriately for relatively brief periods of time when not being challenged is in no way an indication of her potential capacity to protect the child, to make good decisions over the long term and to generally act in her daughter's best interests.

[135] Dr. Amitay recommended the mother obtain pre-trauma counselling and engage in extensive and long term supportive therapy in order to make the necessary changes in herself and her parenting. At the very least he recommended that she attend an anger management program. However, he was pessimistic about the chances of success. At pages 35 to 37 of his report he stated as follows:

Based on Ms M.'s personality style and other issues outlined throughout her reports, she is expected to take a bare minimum of two years to make such improvement through this process, if any at all. Cost and interference with her employment would therefore be important factors to consider in addition to the regrettably low likelihood of success.

If Ms M. does engage in supportive therapy, she should be encouraged to share relevant sections of this report with the therapist. Otherwise, there is a strong risk that her inaccurate or unrealistic beliefs and resultant unhealthy behaviours will be reinforced by validating nature of the treatment…..

Notwithstanding the many serious concerns raised in this report and the concomitant low expectation that Ms M. will truly accept the need to make significant changes in herself and her parenting, one factor could possibly increase the probability of such an outcome: if receipt of this PCA report served as "rock bottom" for her (or close enough that she was very strongly motivated to avoid reaching it). …People in such positions may finally shed their defence mechanism and take full responsibility for themselves and their problems during this most desperate period, rather than continuing to deny or to distort reality and/or blame other people or circumstances supposedly beyond their control. Those who have truly begun to "rebound" from rock bottom typically demonstrate a noticeable, meaningful and consistent change in their demeanour, motivation, judgement, important choices and actions.

Based on her attitude, words and conduct over the past year—including her presentation during the current PCA—the apprehension of her child and subsequent failure to have the girl returned to her care have not represented rock bottom for Ms M. Nor have several arrests and interventions by the police, admonishment by the Court, imprisonment, homelessness, severe reduction of access to her daughter and other negative consequences of her actions. Accordingly, any optimism that reading this document could inspire the kind of turnabout in Ms M. described above would have to be extremely cautious and guarded at best. If she does in fact experience the "rock bottom" phenomenon, then one would expect to see such changes in her immediately. The ignition of genuine change in her belief system, perspective and/or character would be profound and stable; Ms M. should thus be able to consistently demonstrate for at least six months (and beyond) her sincere and unwavering commitment to following the recommendations contained in this report and any terms, condition or expectations set out by the Court, CCAST and anyone else involved in ensuring the welfare and well being of her child…

If she can work more cooperatively with the CCAST and other relevant individuals or agencies, she has a better chance of exemplifying the kind of parenting she already believes she embodies: the kind B. deserves. To this end, the need for her to participate in ongoing parent/childcare education, instruction and training, as well as some form of extensive counselling or therapy to help address her limitations as an individual and as a mother cannot be emphasized enough. If she can improve and maintain her motivation to keep trying to better herself, her caregiving capacity and her life circumstances, she might eventually be able to resume a more prominent and healthier role in her child's life…

In short, the onus is on Ms M. to do everything possible to show that meeting B.'s developmental, psychological, interpersonal, social, academic and safety needs are her main priority. She must come to accept that she has thus far failed to do so, regardless of how she may frame her experiences in order to absolve herself of responsibility for her and her daughter's ongoing hardships. She is expected to prove that she will do whatever is necessary to remedy the problems created by her poor judgement and failings.

[136] Dr. Amitay also recommended that the mother and child would likely benefit from some family therapy to learn to work together to find better ways to express themselves especially with respect to conflict resolution and to permit the child to express any negative sentiments about her mother. The mother would also need to be shown better ways to listen, accept and acknowledge the concerns and complaints made by her daughter even if those were uncomfortable or painful for the mother to hear.

[137] Dr. Amitay also recommended that ideally the mother have as much access as possible as she works towards demonstrating a willingness and ability to make the kinds of personal and parenting improvements that he recommended. But the mother needed to realize that her failure to act in accordance with the expectations of the Court or the society would continue to result in restrictions of her contact with the child to the possibly of all contact being terminated.

4.5 Evidence Regarding the Child

[138] The foster mother is a retired special educational teacher. Her affidavit sworn May 25, 2016 was filed on this motion but unfortunately no updating affidavit was filed. Although the child service worker's affidavit provided some more current information.

[139] The child has remained in the care of the foster mother since the apprehension on May 15, 2015. The foster mother deposes that she is a delightful child and she enjoys caring for her.

[140] The foster mother deposes that upon being placed in her home, the child appeared extremely stoic, whenever she asked any questions, no matter how trivial, about her life at home or anything to do with the apprehension she responded with, "I don't know" or "I don't remember." The child did not ask any questions about why she was there or how long she would be staying. Nothing seemed to faze her and she answered every question with the same detachment.

[141] The foster mother who always had the speaker phone on when the child spoke to her mother, deposed that the child spent a lot of time comforting her mother and was confused about what her mother told her.

[142] On one occasion, the child spontaneously and in a despairing tone told the foster mother that she did not know what to do. When asked about what, the child replied that she did not know where to live. According to the foster mother, the child appeared confused and had taken on the burden for her placement in care and decisions made. The foster mother reassured the child that she should not to worry and that the adults would take care of the situation.

[143] According to the foster mother, prior to going to access visits the child appeared to be happy to attend but when she returned she reported what her mother said and many times reported that her mother said negative things about the foster mother. The child was observed to be detached and confused about the negative things the mother had said. However, the foster mother deposed that as of March 2016 she noted a change in the mother's tone during the telephone calls and she was tender towards the child.

[144] On May 21, 2015 the child was registered in the local school. The foster mother reported that she was happy to go to school, settled into the school routine and made friends. She has continued to thrive in school academically and socially.

[145] The child's first semester report card dated November 12, 2015 was attached to the affidavit of the child service worker, Prague Masseus, and indicated that the child is doing well in Grade 2 both academically, in her work habits and behaviour.

[146] However, the foster mother deposed that as of September 2015, she began to have difficulty getting the child to school. The child was defiant in following the morning routine and struggled to get to school on time. She had tantrums if she did not get her own way. Despite these difficulties the child attended regularly although she was consistently late for school for up to 20 minutes.

[147] The foster mother stated that the child's tantrums ranged from 10 minutes to half an hour and occur approximately once a week.

[148] The child complained about her clothes being too tight and as a result the foster mother had to buy oversized clothing for her. She also has complained about headaches and stomach aches. She has had diarrhea and vomiting. She has been taken to the doctor regularly an there were no finding of any physical ailment.

[149] Since October 2015, the foster mother has become concerned about the child's regression into baby talk and thumb sucking on occasion. The baby talk is exhibited whenever she does not get her own way. At times, the child appears to be responsible and mature for her age and other times regresses into the behaviour of a two year old.

[150] The mother expressed concerns about the behaviour reported by the foster mother and blames the foster mother and the fact that the child is in care for her behavioural issues.

[151] Ms Masseus spoke to the child on August 18, 2016 after a visit that needed to be terminated due to the mother's behaviour. When asked how she felt after the visit, the child said she felt fine. She explained to the child that her mother needed to calm down before they could have access again and the child indicated that was fine with her.

[152] When Ms Masseus spoke to the child about living with the foster mother a bit longer, she said she was fine with this. When asked how she would feel if she could not return to live with her mother, she also said she was fine with that. When asked about how she would feel if she could live somewhere else with another family, with a mother and father and possibly some siblings she indicated she would be fine with this and nodded her head in excitement.

4.6 Telephone and Face to Face Access Visits

[153] There were concerns expressed by the foster mother and the various society workers who supervised the telephone access between the mother and the child. Despite many warnings about not speaking negatively about the foster mother and the society or asking if the child was happy and telling her that she would be coming home, the nature of the discussions did not change over any lengthy period of time. The calls were suspended several times and then reinstated and then suspended again over the same concerns about the content of the calls and the negative reaction of the child.

[154] The mother did to deny the allegations made by the society workers and the foster mother with respect to the content of the calls. Rather the mother both to the society workers and in her interviews with Dr. Amitay justified and explained her right to ask such questions.

[155] Subsequent to Dr. Amitay's assessment being released in January 2016, the society still reported concerns about the telephone calls.

[156] For example, on March 18, 2016 Mr. Gonzalez supervised a call and the mother gave the child a timeframe as to when she would be coming home. He did not interject but waited to see if the mother moved on to a more appropriate subject which generally she did.

[157] In a telephone call on May 24, 2016 the mother told the child that she needed to tell her counsel that she was not hit or starved while in her mother's care. The mother did change the topic when directed by Ms Masseus to do so. The child remained quiet the entire time and it appeared she did not know how to respond. While on the phone the mother was in an office trying to photocopy documents and was getting annoyed at the person in front of her and expressed that annoyance while on the phone with the child and the worker.

[158] The society relied on the affidavits of several of the society workers who supervised the face to face access visits. As previously noted, I have not relied on any information from workers who did not prepare an affidavit with respect to their observations. Dr. Amitay also observed a visit as part of his assessment.

[159] Israel Gonzalez assumed the position of family service worker in March 2016. At that time the mother's access had been suspended.

[160] A decision was made to resume access in April 2016 based on the mother's cooperation and the positive feedback provided by other professionals in the community regarding the mother's involvement with other agencies.

[161] Mr. Gonzalez reported there were several positive visits with no major concerns in April and May. He noted that that the mother was warm and affectionate with the child, engaged in appropriate conversations and able to comfort the child when she became emotional at the end of a visit. However, he also noted that in both the mother's telephone calls and face to face access the mother asked the child numerous questions about the foster mother and her relatives. The mother also made numerous inappropriate comments to the child about returning home. The mother continued this behaviour despite being told by several workers to not discuss the child's return home.

[162] The concerns about the mother's interactions with the child continued. For example, on June 15, 2016, Mr. Gonzalez who was not scheduled to supervise the visit was alerted to an issue in the visit. He observed the child sitting on the mother's lap. The mother was crying heavily and talking to the child and telling her it was OK to cry and she should not let anyone tell her this was not OK. The child appeared to be uncomfortable and hugged the mother. The child then reached for a book and began to read to her mother who gradually started to compose herself.

[163] At the end of the visit, the mother told Mr. Gonzalez that the child had a rash in her inner legs area. The mother denied that she had stripped the child naked as reported by another worker. The mother stated that she had the right to check her daughter and that she would continue to do so. The mother said that no one was looking after the child's interests nor hers. She said that if the child became a crown ward no one was considering what would happen to her as she and the child were dealing with "a psychopath" who abused her after the child was born. The worker interjected several times to tell the worker that they should not be having this conversation while the child was present. The child appeared uncomfortable looking from the mother to the worker and when the worker tried to make eye contact she looked all around. The child placed a doll she was holding near the mother's face as if to distract her.

[164] Mr. Gonzalez drove the child to the foster home after the visit. He asked her how she feeling after the visit and if she had any questions regarding what her mother had said. The child continually said she didn't know.

[165] On another visit on August 16, 2016 Mr. Gonzalez was called to observe a visit due to concerns about the mother's statements to the child. He observed the mother crying and speaking to the child telling her that she needed to know that she loved her very much and she was sorry that they were not spending the summer together. She told the child that there were "a lot of wicked people who do terrible things and they get to keep their children". When Ms Masseus, the child service worker, entered the room and asked the mother not to continue talking about the things she was saying, the mother told the worker that she needed to give her a break and not interrupt. As Mr. Gonzalez observed the situation escalating he entered the room to remove the child. The child was sitting at a table staring at the wall, when asked to come with the worker she nodded and immediately stood up grabbing her back pack. As the child and worker were leaving the room, the mother said, "They can keep you. B. do you want to live with them?"

[166] The mother and child service worker remained in the room and Mr. Gonzalez could hear the mother yelling from inside the room. According to the affidavit of Ms Masseus, she told the mother if she wanted her visit to continue she needed to calm down. The mother stated, "After today I will not come back again. You need to get out of my face. I'm sick of all of you; just get out of my face. F..k you, you ugly bitch". Ms Masseus then advised the mother that the visit was over and she needed to leave. She observed the mother throwing her pop can at the couch and slam the door before storming out.

[167] The child sat in Mr. Gonzalez's office and it was his impression that she was disassociating as she appeared to be staring at the ceiling while spinning on a chair. When asked how she was, she answered she was fine. He explained that Ms Masseus was speaking to her mother as they would try to find a solution but for now they needed to end the visit and she nodded, as if to say yes. When asked if she understood and if she had any questions, she said she understood and did not have any questions.

[168] Dr. Amitay observed the first hour of a visit between the mother and child on October 27, 2015. Dr. Amitay noted that for the first 15 minutes of the visit, the mother did not interact much with the child and for much of that time she was completely "zoned out" while the child played on her own. At one point the child said something to the mother that made her "snap out of it" but then she returned to "zone out" again. Twenty minutes into the visit, the child then began to braid the mother's hair while the mother was telling her about her Halloween costume that she had already told her she forgot. Dr. Amitay asked the society worker to go into the visit and tell the mother she could bring the costume another time. This seemed to relieve the mother and she was more present. The child continued to braid and brush her mother's hair, hugging her face at one point and the mother began to talk about everything she needed to do the next day but assured the child she would drop off the Halloween costume. The child then began to juggle some bowling pins but her mother did not say much, did not get up from the couch or move much for nearly 40 minutes of the visit. The mother asked the child if she had spoken to her grandmother and asked if her grandmother had told her she wanted to visit. The child answered each of these questions in a "baby voice". The child then began to dance around and her mother interacted with her. For the remainder of the visit about 15 minutes the mother was sitting down and only spoke if the child said something to her. After another 5 minutes, the child got onto the couch and began to do a word search game for the rest of the visit. As Dr. Amitay as leaving, the child was still doing the word search and asked the mother for a hint, the child was engaging in "baby talk" around this time as she did periodically throughout the visit and at other time she spoke in her normal manner.

[169] The mother did not deny or explain her lack of interaction as observed by Dr. Amitay with the child in any of her affidavits.

[170] In the assessment, Dr. Amitay noted that based on the test results the mother demonstrated less understanding of the parenting and child care issues than average caregivers ordinarily do. He opined that the mother' s greatest shortcomings was that her responses to the test scenarios revealed a lack of perspective taking and appreciation for the children's more subtle or complex emotional, psychological and interpersonal needs. She also displayed limited awareness of the developmental stages younger children go through at different stages. He concluded that although her responses were somewhat inferior to what is expected of the average parent, they fell within the "good enough parenting" range. Further, her inadequate responses did sometimes improve with the examiner's assistance. However, he cautioned that deficiencies identified in a calm and supportive setting are expected to be exacerbated in real life situations where a parent must react quickly and may not have anyone to assist them.

4.7 Evidence Presented by or on Behalf of the Mother

[171] Mr. Gonzalez deposed that when he initially met with the mother in March 2016, she described herself as a loving mother who always placed her child's well-being before her own. She stated that she would admit that she "pinched" her daughter and that she had "tapped" her on her hand when she misbehaved but denied that she was an abusive mother. She acknowledged that "30 percent of what is happening" was her responsibility.

[172] The mother reported that she felt that the report of Dr. Amitay was "exaggerated" and it tried to take her "credibility as a mother away." As a result she attended with Dr. Cavanagh to obtain another opinion. She signed a consent and produced a letter from Dr. Cavanagh.

[173] Dr. Cavanagh stated that she first met the mother in October 2015 when she was residing in a women's shelter and then again in February 2016 when the mother returned to ask her for a referral for trauma counselling. Dr. Cavanagh noted that the mother seemed unsure what this was for. Dr. Cavanagh was provided the assessment of Dr. Amitay to obtain a better understanding of the mother's circumstances in the event that she had further involvement with the mother. But Dr. Cavanagh states that she was not requested to opine of the assessment and has no comments about it.

[174] In Dr. Cavanagh's letter dated April 26, 2016 she states as follows:

My diagnostic impression of Ms M. is that she does not have a major mental illness. I believe that her difficulties fall in the range of Personality Disorder. I found her remarkably defensive, and felt that she has difficulty doing things in any way other than how she wanted to do them, or had done them. She recounted many instances of losing her tempter, and insisting upon being right, and had very limited insight to how this might jeopardize her dealings with the CAS. NB, I was very clear in my notes that this assessment was done without benefit of collateral, and that this was not a parenting assessment. It was also very clear to me that Ms M. loves her daughter and wanted to be able to do "whatever it takes" to get her back, but was having difficulty living up to that ambition.

[175] In March 2016, Mr. Gonzalez spoke to Ms Florenca Umenyi, from the Scadding Court Community Centre who confirmed that the mother had been attending parenting counselling since 2015. She was participating in an ongoing group parenting program and that she sought out those services herself. Ms Umenyi reported that the mother was taking responsibility for her situation and appeared to be open to receiving positive parenting tips and that she had seen a drastic improvement.

[176] Mr. Gonzalez also spoke to Ms Jacinta Tjandra from the Barbara Schlifer clinic who reported that the mother was attending a group called Spirited Women.

[177] In reviewing that information with the mother, she advised that individual counselling was not available at the Barbara Schlifer clinic and that though she reported she experienced physical and emotional abuse she felt she was not being taken seriously. She did agree to complete the 6 week Spirited Woman program. Further, the mother reported that she was "certain" that she would not need any further therapy after that, as her therapy would be getting her daughter back and resuming her normal life. The mother confirmed that she would continue to work with Ms Umenyi and was exploring resources for long term therapy.

[178] Mr. Gonzalez attempted to explore the voice mail message the mother left him stating that by attending programs she was not admitting to anything but rather she was attending because she had no choice. When he advised the mother that such an attitude would not benefit anyone the mother constantly interjected and would not listen to him.

[179] In April 2016, the mother advised Mr. Gonzalez that she completed a workshop on emotional well-being and stress and would be participating in another workshop on creating good habits and parenting after abuse and then she would complete a 12 sessions of trauma therapy.

[180] Mr. Gonzalez spoke to Ms Umenyi, the mother's parenting counsellor about the upcoming Plan of Care meeting scheduled for May 3, 2016. Ms Umenyi advised that although she could not attend she had advised the mother that she had come a long way and not to mess up and that the mother should watch her tone at the meeting and realize that the foster mother was not her enemy.

[181] On May 24, 2016 Mr. Gonzalez again followed up with Ms Umenyi who confirmed that the mother continued to meet with her weekly and was attending other programs as well. He asked Ms Umenyi to meet with him and the mother to discuss concerns that had arisen regarding the mother's access and her participating in observing and offering support to the mother during her access visits.

[182] On June 4, 2016 the mother and Ms Umenyi attended a meeting with Mr. Gonzalez to discuss issues with respect to the mother's access. During the meeting the mother constantly interrupted asking questions about the court and making statements that the society did not care about her or her daughter. The worker attempted to discuss the access observations and recommendations but despite her counsellor's advice to listen first and then ask or comment the mother constantly interrupted. When the worker advised the mother that she was not permitted to question the child about the foster mother or the foster home, the mother became upset and said that she did not know why the child was in care, that she would continue to ask questions and that she did not care what he or anyone else said. Despite the worker and her counsellor trying to reason with the mother she would not stop. Ms Umenyi commented that she had never seen the mother behave in this way and this was not the mother she had seen in their sessions.

[183] On July 20, 2016 Mr. Gonzalez again spoke to Ms Umenyi who reported that the mother was still meeting with her regularly and she was aware the mother was also participating in other workshops. She was also trying to assist the mother to get into an anger management program and spoke to the mother about her need for trauma counselling. Ms Umenyi stated that the mother had brought up a lot of issues from her past that were still causing her stress and consequently they were overshadowing the current issues.

[184] The mother in her affidavit sworn November 10, 2016 deposed that she was willing to do whatever it takes to keep her daughter in her life and understand that compliance with the society is necessary for a supervision order or even for extended access. But the balance of that affidavit and her affidavit of No 11, 2016 continues to justify her behavior and blame the society or the foster mother for her angry outbursts.

[185] The mother also deposed that she has continued to attend for counselling. Despite not filing any affidavits or proof of attendance for counselling or attendance at other programs, it was the position of the society that it was prepared to accept the mother's attendance at face value. The court is also prepared to do so.

[186] In the mother's Plan of Care, she does not provide any specifics with respect to her plan to meet the needs of the child other than the child would reside with her, attend school and that the mother has the support of her counsellor.

5. Applicable Legal Considerations with Respect to a Finding of Need for Protection

[187] The Child and Family Services Act ("the Act") governs child protection proceedings. Section 1 sets out the paramount purposes of the act being to promote the best interests, protection and well-being of children.

[188] In this case the society seeks a finding that the child is in need of protection pursuant to the following subsections 37(2) of the Act:

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or causing by or resulting from that person's

(i) failure to adequately care fore, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(f.1) the child has suffered emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) and that the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;

(h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition.

[189] The onus is on the society to prove on a balance of probabilities that the child is at risk. The risk must be real and not speculative.

[190] It is not necessary for the society to prove an intention to cause harm before finding that a child is in need of protection. The society can prove causation by act, omission or pattern.

[191] With respect to a finding that a child has suffered emotional harm or risk of emotional harm, the harm must be demonstrated by one of the enumerated conditions or behaviours. The onus is on the society, on a balance of probabilities, to prove that there is a real likelihood that the child will suffer emotional harm if returned to the care of her parent.

[192] In determining the relevant time for a finding that a child is in need of protection, the court must chose a flexible and child-focused approach. A court can admit and consider evidence as to whether a child is in need of protection at the commencement of the proceeding, at the hearing date or at any other date depending on the circumstances of each case. The court must assess the extent to which any need for protection found at the initial stage has been resolved over the course of the litigation or whether other grounds for protection have emerged over time.

5.1 Analysis of Finding in Need of Protection

[193] The position of the society is that the child was in need of protection at the time it filed its Protection Application and continues to be a child in need of protection under all or any of the sections enumerated. It is further the position of the society that there is no genuine issue requiring a trial with respect to the finding of need for protection.

[194] Other than the submission that Dr. Amitay has not been cross-examined, counsel for the mother did not articulate what the genuine issue requiring a trial was with respect to the finding. The mother simply denies that she ever harmed the child and denies that the child's non-attendance at school was a protection concern. Since the apprehension although the mother admits that she has acted inappropriately and made inappropriate statements in front of the child, she does not have the insight to appreciate that she is causing emotional harm to her child.

[195] Based on the undisputed conclusions of Dr. Amitay about the mother's psychological and emotional functioning, her lack of insight, her remarkable inability to control her anger and her lack of a sound understanding of a child's developmental needs, there is overwhelming evidence that the mother has placed the child at risk of both physical harm and emotional harm.

[196] What is extraordinary in this case is the consistency of the evidence by all of the society workers with the observations of Dr. Amitay and his analysis of the mother's deficits based on the psychological test results. Even the concerns expressed by the mother's parenting counsellor and the psychiatrist the mother saw are consistent with the observations of Dr. Amitay. The mother's lack of insight and defensiveness and inability to see or listen to anyone that challenges her puts this young and vulnerable child at risk of both physical and emotional harm.

[197] I also find that a child not being sent to school can affect a child's emotional well-being and her overall development.

[198] I therefore find that the society has met its onus of proof to find the child in need of protection pursuant to sections 37(2)(b), (g) and (g.1) and that there is no genuine issue requiring a trial with respect to these findings of need for protection.

[199] Although there is evidence that the child has some tantrums, shows signs of regression, withdrawal, possible anxiety and she has complaints of physical ailments that have no medical explanation, I do not find that there is sufficient evidence to make findings that she has actually suffered emotional harm or suffers from a mental, emotional or developmental condition.

6. Applicable Legal Considerations with Respect to Disposition

[200] Where the court makes a determination that a child is in need of protection and that court intervention is necessary, the court pursuant to subsection 57(1) of the Act can make one of several orders, namely, an order placing the child with the parent or a community member subject to supervision, an order of society wardship or an order of crown wardship.

[201] The court is required to consider, pursuant to subsection 57(2) of the Act, what efforts the society or other agency or person made to assist the child before intervention under Part III of the Act.

[202] The court is also required to consider, pursuant to subsection 57(3) of the Act, the least disruptive alternatives than removing a child from the care of the care of the person who had charge of the child immediately before intervention unless the court determines that these alternatives would be inadequate to protect the child.

[203] The court must also consider, pursuant to subsection 57(4) of the Act, if there are any family members or community members available before placing a child in care.

[204] As this child is over 6 years old, subsection 70(1)(a) of the Act requires that the court not make an order that results in a child being in the care of the society for more than 24 months. In this case the chid has only been in care for 18 months.

[205] In determining the proper disposition, the court must decide what is in the child's best interests in accordance with the criteria set out in subsection 37(3) of the Act.

[206] There is no order that is more profound than a Crown wardship order that permanently removes a child from the care of a parent. A court must exercise such a power only with the highest degree of caution and only on the basis of the most compelling evidence and only after a careful review of all other possible remedies.

[207] I have considered these criteria in reviewing the evidence on this summary judgement motion. I have also considered the written plans of care filed by the society and the mother.

6.1 Analysis with Respect to Disposition

[208] It is the society's plan that it is in the best interests of the child to be made a crown ward without access for the purposes of adoption. An adoption with provide the child with permanence and stability and be able to meet all of her needs.

[209] It is the mother's plan that the child be placed in her care under supervision or that there be a further 6 month society wardship order. The mother did not provide any evidence as to what she expected to improve or change over another 6 months.

[210] There is no alternative plan for the child to be placed with a family member or someone in the community.

[211] Counsel for the child supports an order that the child be placed in the mother's care or a further period of society wardship. It is submitted that the child has not been in care for the maximum length of time of 24 months and that the child has consistently wished to spend more time with the mother, loves her mother and wishes to live with the mother if the foster mother babysits her or live with the foster mother if her mother babysits her.

[212] Firstly, just because the child has not been in care for the maximum permitted by the legislation is not a valid reason for extending her time in care unless there is some credible evidence that the situation is improving and that with a bit more time the deficits that caused the child to be placed in care will be remedied.

[213] Secondly, although it is certainly permissible for counsel for the child to state the child's position, there must be an evidentiary basis to support that position. Counsel for the child did not point to any evidence that supported her position that the child wished to live with her mother.

[214] Thirdly, neither counsel for the mother nor the child articulated what material facts were in dispute with respect to the disposition and what the genuine issue requiring a trial was with respect to the disposition sought by the society.

[215] I have outlined in considerable detail the findings of Dr. Amitay as these concerns and recommendations were known to the mother generally as of November 2015 and then specifically when the assessment report was released in January 2016.

[216] Even if one could excuse and understand the mother's hostility with the society workers and her refusal to accept the concerns and follow the recommendations of the society, Dr. Amitay was a neutral professional who was not associated with the society and despite the many negative and pessimistic comments in the assessment he did explain what the mother needed to do to work towards reunification with her daughter.

[217] It is important to examine what the mother did to change her behaviour as a result of the assessment. Upon receipt of the assessment, the society was prepared to continue to work with the mother in the hope that a reunification was possible. The society did note some improvements for a few months in the mother's co-operation and interactions. But this was short lived and as soon as the mother was challenged and asked to stop questioning her daughter about the foster home and the foster mother and to stop telling her daughter she would be coming home her behaviour again escalated.

[218] These same concerns have been noted by the society since the mother's access visits began in May 2015 and have not changed. The mother could not see that her swearing, yelling and making disparaging comments about the society workers or the foster mother in front of her daughter would affect her and cause her emotional harm.

[219] Despite the fact the mother has been in counselling since September 2015 and apparently taken several programs about parenting and managing her emotions there is no evidence that her behaviour changed for any appreciable amount of time.

[220] Dr. Amitay expressed the hope that his assessment would be "rock bottom" for the mother and would be the incentive for her to change her behaviour and for her to gain the necessary insight to understand how her behaviour was affecting the emotional well-being of her daughter.

[221] There is not the slightest evidence that the assessment had any effect on the mother. It is submitted on behalf of the mother that this hearing and the thought of losing her daughter is "rock bottom." It is not clear to me how this submission translates into being a triable issue that requires a trial.

[222] If the apprehension of her daughter, several suspensions of telephone contact and access visits, being arrested and then receiving the assessment report did not change her behaviour, then it is mere speculation that suddenly the mother will acknowledge her deficits and obtain the insight to change her behaviour. As noted by Dr. Amitay this will be a long term and daunting task for the mother one that she has so far been unable to tackle.

[223] Although there is no question that the mother loves her daughter, the mother has not been able to admit she has any deficiencies and that she needs to change her behaviour. It is not just that the mother has anger issues in interacting with the society workers but based on the police records she has problems interacting in appropriate ways with school authorities, her neighbours and family members. The mother has shown that she cannot comply with criminal court orders and she has made many threats that she will not comply with any order if she does not agree with the order or if she perceives there is a risk of harm to her child while she is in the care of the foster mother. Yet, she cannot see that it is her own behaviour that is putting her child at risk of harm.

[224] Despite the mother's participation in counselling for over a year and attending various other workshops, she has not been able to implement whatever she learnt in the access visits with her daughter and during her interactions with various professionals. It would have been expected that there would be an improvement in her angry outbursts at society staff and in the presence of the child but this has not occurred quite the contrary these episodes have continued. The mother has not been able to acknowledge the seriousness of the impact of her behaviour on the child. She has stated that she is going to counselling to appease the society not because she genuinely sees the need to go. Without the acknowledgment of the need for her to change and without the insight that she needs to change, it is unfortunately abundantly clear that the mother will not change her behaviour.

[225] Dr. Amity's comments about the mother bear repeating namely, that "she displayed some of the greatest defensiveness and resistance—together with denial, minimization, avoidance, rationalization, deflection and externalization of blame or personal responsibility—that this examiner has encountered in approximately 400 PCA'S."

[226] I find that despite the seriousness of an order of crown warship, there is overwhelming evidence that there is simply no alternative in this case. The mother's evidence is a mixture of denials and vague explanations. There is no evidence that the mother has changed or is capable of changing or that her severe deficiencies as a parent can be remedied in the foreseeable future.

[227] I find that the society has met its onus and that there is no genuine issue requiring a trial with respect to finding that the child should be made a crown ward.

7. Applicable Legal Considerations with Respect to Access to a Crown Ward

[228] Having determined that an order of crown wardship is the order that is the least disruptive order available and consistent with the child's best interests, the court must then determine whether there is a genuine issue requiring a trial on the issue of an order of access.

[229] Once a disposition of crown wardship is made, the Act provides for a presumption against access. The test for access to a crown ward is set out on subsection 59(2.1) of the Act as follows:

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.

[230] The onus to rebut the presumption against access to a Crown ward is on the person seeking access.

[231] Where a Crown wardship order has been made, there is no obligation on the society to prove that the children are adoptable, let alone that there is a prospective adoptive family. Although in most cases, the society tenders such evidence, there is no statutory requirement to do so.

[232] Once an order for Crown wardship is made, the focus of the Act, shifts to establishing a permanent and stable placement, preferably through adoption. The society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the children to develop a positive, secure and enduring relationship within a family though either adoption or a custody order.

[233] The person seeking access, in this case the mother, therefore has the onus of establishing on a balance of probabilities both prongs of the test namely that,

1. The access is beneficial and meaningful to the children; and

2. The ordered access will not impair the children's future opportunities for adoption.

[234] 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. where he said:

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.

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.

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.

7.1 Analysis of Access to Crown Ward

[235] In this case, the society agrees that generally the mother is loving and affectionate with the child and at times the visits are positive and enjoyable and the mother interacts with the child. On the other hand, there is overwhelming evidence that the mother's behaviour makes the child uncomfortable and that many visits needed to be terminated as a result of the mother's behaviour. The mother admits that sometimes she is angry at access visits and acts inappropriately and says inappropriate things in front of the child.

[236] However, the onus is on the mother in this instance to satisfy the court that her access is beneficial and meaningful, not for herself, but for the child. As Justice Quinn remarked, in the case of M.J., supra, it is not enough that there are some positive aspects to the relationship.

[237] Counsel for the society submitted that she was prepared to concede that the access was meaningful to the child in the sense that the child knows and loves the mother and wishes to see the mother.

[238] However, I fail to see how the visits are significantly advantageous to the child. Even when the mother was aware that she was being observed by Dr. Amitay she did not interact with the child, it was the child who sought out the mother. The mother focused on herself and not the child. The evidence of other visits indicated that the child comforts and soothes the mother, not the mother comforting the child.

[239] Although I find that the mother has not met the first prong of the test and that access is not meaningful and beneficial, there is absolutely no doubt on the evidence that the mother would impair the child's opportunity to be adopted. The mother has been unable to stop questioning the child about the foster mother and the foster home and she has been unable to stop being critical of the care provided to the child by the foster mother. The mother was able to find out where the foster mother lived, what school and what church the child attended and threatened to go to these places. The mother made comments and innuendos about the father coming after the society workers and that he was a psychopath. All of this information would have to be relayed to any prospective adoptive family. I draw the reasonable inference that any potential adoptive family would have concerns about ongoing access to the mother in view of these types of threats and her history of volatile behaviour and uncontrollable anger.

[240] Despite the mother's ongoing positive steps in continuing with her counselling, I find that a trial judge would not be in any different position than on this summary judgement motion. In fact, I find that any further delay would only give the mother further opportunities to attempt to undermine the current foster placement and to continue to put the child in the middle of this conflict.

[241] For the same reasons that a crown wardship order is the only possible order, an order of no access is the only alternative. The mother has not presented any evidence to indicate that there is a triable issue requiring a trial with respect to ongoing access.

[242] The opportunity for this child to have a chance at a stable and permanent home is more important than continuing access with her mother.

[243] I therefore find that based on the overwhelming evidence, access is not meaningful or beneficial to the child and any order for access would impair the ability of the child to be adopted.

8. Conclusion

[244] I therefore, find that the society has met its onus of proof and that the motion for summary judgement is granted.

[245] The mother at various times in her interactions with the society stated that the child was Christian and not Catholic. During these times the mother was in conflict with the society worker and although it is possible she only said this to attempt to transfer her file to another worker and another child protection society, I have no other evidence as to the religion of the child. The mother in her Answer and Plan of Care dated Nov 11, 2016 indicated that child was Christian. Even though the Catholic Children's Aid society has always been involved with the mother, I do not find that such involvement is sufficient to base a finding of religion.

[246] There will be an order as follows:

1. There will be statutory findings:

The child B.M. born […], 2008 is non-Roman Catholic, non-Jewish, non-native, her mother's name is A.D.M. and her father's name is A.M.

2. The child B.M. is in need of protection pursuant to sections 37(2)(b), (g) and (g.1) of the Child and Family Services Act.

3. The child B.M. shall be made a crown ward and placed in the care and custody of the society, without access for the purpose of adoption.

Released: December 7, 2016

Signed: Justice Roselyn Zisman