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 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

NOTE: This judgment is under a publication ban described in the WARNING page(s) at the start of this document. If the WARNING page(s) is (are) missing, please contact the court office.

Court Information

Date: January 5, 2016

Court File No.: Brampton 20022/12

Ontario Court of Justice

Parties

Between:

The Children's Aid Society of the Region of Peel

Applicant

— And —

KFL (mother), SB (father), and LM (paternal grandmother)

Respondents

Before the Court

Justice A.W.J. Sullivan

Judgment heard: October 27, 2015

Released on: January 5, 2016

Counsel

• Ms. Laura Shaw — counsel for CAS Peel
• Mr. Samir C. Patel — counsel for the Respondent Mother
• Mr. Mark N. Demeda — counsel for the Office of the Children's Lawyer
• L.M. (Paternal Grandmother) — self-represented
• S.B. (Father) — self-represented

SULLIVAN J.:

Introduction

[1] This is a decision on a summary judgment motion, pursuant to section 16(6) of the Family Law Rules brought by the Children's Aid Society for the Region of Peel [Society] seeking an order that the child of this proceeding, JFB (hereinafter referred to as "the child"), born […], 2006, be placed in the care and custody of the paternal grandmother, LM, (herein referred to as "the grandmother") pursuant to section 57.1 of the Child and Family Services Act, R.S.O. 1990, c. 11.

[2] The biological mother, KFL, (herein referred to as "the mother") opposes this motion and seeks an order as follows:

(Found in paragraph 4 of the mother's October 1, 2015 affidavit)……. That such a disposition (a 57.1 order) is not in the best interest of the child, and that alternatively, a final decision of these issues should instead be reserved to a trial judge; at which time it is anticipated that there will be better evidence made available, an opportunity for that evidence to be tested.

[3] Mr. Patel, in submissions for the mother, did indicate further relief on her behalf which was not set out in any specific notice of motion but was accepted by the court as part of the mother's submissions in terms of what order she is seeking at this motion. These terms are summarized as follows:

1. Return of the child into the care of the mother without an order.
2. Return of the child back to the mother pursuant to a six-month supervision order.
3. In the alternative, if the above relief as requested by the mother is not granted, then unsupervised access on weekends Friday to Sunday, and after school Monday and Wednesday pick-up and drop-off at a police station.
4. The father's position is to support the grandmother's request which is to have the child placed in her care and custody.
5. The grandmother wishes to have the child placed in her final care and custody.

[4] On behalf of the child, Mr. Demeda, the children's lawyer, indicated the child wishes to return to her mother's care and custody.

[5] In support of its motion, the Society filed a discrete notice of motion and the following supporting affidavits:

a. affidavit of Nicole Lessey, sworn September 8, 2015; b. affidavit of Aliah Mohkan, sworn September 9, 2015; and c. affidavit of Darcelle Darbeau, sworn September 8, 2015.

[6] The mother submitted two affidavits, one dated October 1, 2015, in reply to the Society's motion, and a second sworn October 23, 2015 principally in reply to the affidavit and plan of care presented by the grandmother.

[7] The grandmother filed an affidavit dated October 21, 2015, and an Answer and plan of care dated October 21, 2014 which is a typographical error as it was filed October 21, 2015, the same date that she swore her affidavit and filed the same with this court.

[8] The father, SB, did not file any pleadings and was self-represented.

[9] The children's lawyer, Mr. Demeda, relied on the affidavits and pleadings filed by the other parties noted above and made submissions to the court.

[10] The Society initiated this status review application asking that the child be placed permanently with the grandmother as a final disposition.

[11] On November 18, 2013 the Hon. Justice P.J. Clay granted the Society's request for a temporary 3 month order of supervision, placing the child with the grandmother with the conditions pertaining to the mother's access.

[12] The child has been in the care of the grandmother since February 2013 continuously through to today.

[13] In earlier proceedings, May 30, 2012, this child was found to be in need of protection by Justice Pawagi pursuant to section 37(2)(b)(i) of the Child and Family Services Act. All other statutory findings were also made at that time.

[14] In August 2012 the Society brought a motion for a temporary order placing the child with the mother. Justice Baldock expressed reservations in her endorsement about whether the mother was ready to have the child returned to her care, but granted the order.

[15] In Justice Clay's order of November 18, 2013, he noted that not long after, in November 2012, the mother had moved to the Niagara region without informing the Society. While in Fort Erie the child was apprehended on February 13, 2013 by the Family and Children Services of Niagara. An amended protection application was issued in Welland asking for the child to be placed with the grandmother under Society supervision. The child has been with the grandmother since that date on a temporary order and that order was reviewed by Justice Clay in November 2013.

[16] It is from this last order of Justice Clay that the Society has brought this summary judgment asking for a 57.1 order under the Child and Family Services Act for a custody order to the grandmother.

[17] As there has been a finding that the child is in need of protection in earlier proceedings, the issues to be decided on this summary judgment motion are as follows:

a) is there a triable issue as to whether or not the child, who is the subject of the status review application, continue to be in need of protection?

b) if so, is there a triable issue for disposition other than the disposition sought by the society which is a 57.1 order placing the child in the custody of the grandmother?

c) if an order is made that the child is placed with the grandmother pursuant to section 57.1, is there a triable issue as to whether or not the mother should have access?

Applicable Legal Principles

Summary Judgment

The Law

[18] Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant to this case:

When Available

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

Evidence Required

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

Evidence of Responding Party

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

Evidence Not From Personal Knowledge

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

No Issue for Trial

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

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

[20] 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 for trial. The onus is on the Society to show that there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ) per Gordon J.

[21] Summary judgment proceedings should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future. Jewish Child and Family Services of Toronto v. A.(R.), [2001] O.J. No. 47 (SCJ) per Lane J.

[22] The court's role on a summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material requiring a trial. Because summary judgments are now explicitly contemplated by Rule 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." Children's Aid Society of the Regional Municipality of Waterloo v. T.S., [1999] O.J. No. 5561 (Ont. C.J.) per Hardman J.

[23] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. Children's Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (Ont. C.J.).

[24] 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 for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial must be deemed insufficient to defeat a claim for summary judgment. Children's Aid Society of Metropolitan Toronto v. A. (M.), [2002] O.J. No. 2371 (Ont. C.J.).

[25] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged, the responding party must prove that its defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence that the parties would present at trial. Toronto-Dominion Bank v. Hylton, 2012 ONCA, par. 5.

[26] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact. Children's Aid Society of the District of Nipissing v. M.M., [2000] O.J. No. 2541 (SCJ) per Valin J; Children's Aid Society of Hamilton v. M.N. (supra).

[27] In determining if there is sufficient evidence led 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. CAS Dufferin v. J.R., [2002] O.J. No. 4319.

[28] In determining whether 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. Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224, [2004] O.J. No. 4084; Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442. Self-serving evidence that merely asserts a defense or a claim without providing some detail or support evidence is not sufficient to create a genuine issue for trial. Goldman v. Devine 2007 CarswellOnt 2352 (Ont.CA).

[29] In interpreting Rule 16, Rule 2 of the Family Law Rules must be considered. As well, reference to subsection 1(1) of the CFSA – which provides that the paramount purpose of the Act is to promote the best interest, protection and well-being of children -- is necessary to the interpretation of the Act. Children's Aid Society of Hamilton v. M.W., [2003] O.J. No. 220.

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

[31] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion. Children's Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842.

[32] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. C.R. v Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357.

[33] As Justice Pazaratz stated at para. 43 of Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (Sup. Ct.): "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."

Expanded Powers Under Civil Rules

[34] The Supreme Court of Canada, in the case of Hryniak v. Maulin 2014 SCC 7, 2014 S.C.C. 7, has clarified the process of applying the expanded summary judgment rule. 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 judgment 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 genuine issues 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). Accordingly, the first step under either process is to determine if there is a genuine issue for trial based on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility. Halton Children's Aid Society v. K.C.L., 2014 ONCJ 168.

[35] As this is the status review application, there has already been a finding that this child is in need of protection.

[36] It is well settled in law that courts must now evaluate whether there is a continued need for state intervention to protect this child and consider what disposition would be in this child's best interest. In balancing the best interest of the child with the need to prevent indeterminate state intervention, the best interest of the child must always prevail. The examination must have a child-centered approach and cannot solely focus on a parent's ability.

[37] After a finding is made, the court must determine what order is required to protect the child. In this case the Society is seeking a 57.1 order placing the child with the grandmother.

[38] The court may vary or terminate orders made under subsection 57(1) of the Act, make a further order under subsection 57(1) or make an order for custody under section 57.1. The test is what disposition is in the child's best interest (subsection 65(1) of the Act).

[39] Subsection 57(2) of the CFSA requires the court to inquire what efforts the Society or other agency or person has made to assist the child before intervention.

[40] Subsection 57(3) of the CFSA requires that before an order is made removing the child from their caregivers, the court must be satisfied that less disruptive alternatives would be inadequate to protect the child.

[41] Subsection 57(4) of the CFSA also requires the court to consider if removal of the child from their caregiver is necessary, whether there are any family or community placements that are possible.

[42] In determining the appropriate disposition, the court must decide what the best interest of the child is. In making this determination, the court is guided by criteria set out in subsection 37(3) of the CFSA as follows:

Children's Aid Society of Halton Region v. E.S.M., 2010 ONCJ 776 Justice Zisman summarizes the factors in this subsection of the Act:

The statute lists a number of factors to be considered in determining the "best interests". These include the child's needs and the appropriate treatment to meet those needs; the child's level of development and cultural background; the importance of the child's development of preserving the relationship with her parents and being a secure family member; the importance of continuity of care and the possible effect of the disruption of that continuity; the relative merits of each plan; the child's views and the degree of risk that would justify the finding that the child was in need of protection [CFSA, subsection 37(3)].

Summary of Material Facts

[43] In this summary judgment motion, after reviewing the mother's initial affidavit in reply to the Society's pleadings, the majority of the material facts were either admitted by the mother or were unopposed or only baldly denied by the mother.

[44] A summary of the facts relied on by the PCAS in its affidavits is as follows:

[45] On January 31, 2014, while at a supervised access visit at the Society's office, the mother removes the child from the access centre without permission and did not return the child to the grandmother until February 2, 2014.

[46] Prior to this the mother was having visits which are described, at times, as being child-focused.

[47] When the child was interviewed about what happened in the two days that she was with her mother, the child indicated that her mother had stayed with a man friend on the weekend but did not get there until late on Saturday, February 1, 2014. The child stated that her mother took her to a restaurant on Saturday for her birthday and that she had fun.

[48] Given this incident, the Society wanted to review this with the mother and attempted to arrange to meet by calling her on February 10, March 11, and March 13, 2014, all unsuccessfully but messages were left. On April 1, 2014 the worker contacted the mother by phone and advised her that she would like to meet. The mother indicated that she was living in a woman's shelter and the mother indicated that she would meet but needed first to work on issues such as housing.

[49] On April 9, 2014 the Society worker met with the mother at the shelter along with a shelter councillor. The worker reviewed the terms of supervision and the concerns regarding the incident where the mother removed the child from the access center. According to the Society's information, the mother repeatedly was interrupting and unwilling to listen to the concerns of the Society. According to the PCAS information, the mother was frequently verbally abusive during this conversation and she minimized the concerns of the Society and wanted the child to visit with her at the shelter.

[50] In the spring of 2014, access restarted with the child enjoying visits during which the mother would bring meals and help the child with her homework. However, again there were some concerns at this stage regarding the mother's questioning of the child about whether she was being properly cared for by the grandmother, including openly questioning the child about what she had brought to school for lunch and began rummaging through the child's backpack and removed a Tupperware container in which there was a small butter knife. When the workers attempted to re-focus the mother she was unwilling to listen and this situation grew into a larger issue than it needed to be.

[51] When the Society workers attempted to discuss with the mother how it is important not to involve the child in discussions about her care unnecessarily as it might put the child in an awkward situation or make her feel caught between two adults, the mother dismissed any concerns, stating that the child needed to be told things because it was only to protect her.

[52] In May of 2014 the mother requested that access visits move to the shelter where she was residing. It was discussed that before moving any visits to the shelter as the mother had wanted, there would need to be some lessening of supervision while at the Society's offices. A plan was put in place for a shelter worker to attend at the Society's office to help with the transition to the shelter. This transition did not take place when the Society attempted to engage the mother regarding access the mother informed the worker that she was not going to do any further access with the child at the society's offices.

[53] On July 8th 2014 the Society obtained a report from the mother's doctor, Dr. Marchi. It indicated an earlier assessment of the mother in March 2014 when she had some emotional difficulties and was hospitalized briefly. At the time, the mother was under a form 1 under the Mental Health Act in the Niagara region. At the time, there was an assessment, including a diagnosis of borderline personality disorder and treatment, including medication. In the July 2014 report from the mother's doctor there was no indication that the mother had any follow-up treatment through a mental health professional.

[54] In September 2014 the Society provided the mother's doctor with information needed to do a referral to the Brampton Civic Hospital's adult mental health department for the mother. The mother informed the Society that she would not be following through with seeing a psychiatrist for any assessment that the Society had requested to better understand what, if any, difficulties the mother has had with her mental health.

[55] A review of the mother's access visits during the months of October and November, 2014 indicates that she was having access and the child was enjoying seeing her mother and both were affectionate. The mother and the child enjoyed meals together and played games. Again, difficulties arose when in November the mother was whispering to the child about the care she was receiving from the grandmother. At the November 25 2014 access visit the mother and child had appropriate greetings and was enjoying the visit when the mother began whispering to the child about the care she was receiving from her grandmother. The mother questioned the child about whether the grandmother had given her clothes that the mother had provided. When the child said no, the mother became upset. When the social workers intervened, asking the mother not to involve the child in discussions, the mother began composing a letter to the grandmother indicating that she wanted the child to bring this home to give to the grandmother. When the workers attempted to explain to the mother that this was placing the child in the middle of adult issues the mother became upset and was unable to calm down. Towards the end of this visit the mother told the child that she should speak to a "man" at her school. Towards the end the visit the social workers observed the child was upset and crying. The mother yelled out towards the child in the parking lot while she was being picked up to return home, "don't let them touch you baby. They can't take anything away from you".

[56] When the mother was asked to avoid this she became upset. A meeting was requested in December and the mother refused to participate. Many attempts were made to contact the mother to ask about meeting in order to resume access. This has not happened. Indeed, the evidence is that from the incident during access on November 25, 2014, when asked not to whisper to her daughter about the kin care the mother has not visited with her daughter and has refused to have any further access at the Society's office.

[57] On June 10, 2015 the Society worker, along with the team leader, met to discuss access with the mother. The mother asked if she could have access with the father present. Given the history of abuse between them both it was suggested this would not be helpful. Again, access was attempted to be restarted and the mother asked if she could bring a support person but has not followed through with any arrangement since the November 25, 2014 last visit with the child.

Mother's Mental Health Issues

[58] On February 6, 2015, the Society received a call from the mother. During this conversation the mother made statements about wanting to kill herself. The mother was agitated, telling the workers that they will have to explain to the child, when she is dead, the reasons why. The mother ended the call and the Society attempted to locate her through the Peel police. The police informed the Society that they had located the mother at her last known address and on February 6, 2015 and brought her to the Trillium Hospital where she was hospitalized on a form 1.

[59] On April 7, 2015 when the Society eventually met with the mother she advised that she was hospitalized for some time and had seen a psychiatrist, however she refused to provide any authority to the Society to talk with any mental health professionals assisting her nor has she been willing to do so to date. She has also refused to permit the Society to visit with her at her current apartment in the community, making it difficult for the Society to do its job to assess the mother's plan in the community.

[60] The mother has also refused to permit the Society to talk to her earlier supports which was to be her father and refused to permit the Society to visit in order to assess the mother's plan, making it impossible for the Society to evaluate what, if any, risks continue to be involved. The PCAS is currently unaware of the mother's current address.

[61] The mother, in her responding affidavit of October 1, 2015, denies most of what the Society has offered in evidence.

[62] In relation to the January 31, 2014 incident where she removed the child from the access centre, she actually indicates that it was the child that expressed a request to leave. Her affidavit says in paragraph 9: "I realize should have exercised mature judgment in that situation, I found that my emotions are being away from the child for consolidated period of time had overwhelmed me, and as a result, I agreed to her request given that it had also been her birthday weekend". The mother at this point in her affidavit denies most of what happened as reported by the child during the few days that the child was with the mother in the community, contrary to a court order which stipulated that her access was to be supervised at the Society's offices.

[63] An example of the mother's evidence is that she states, in paragraph 19 of her October 1, 2015 affidavit, that she is disappointed to learn all of her genuine concern of her child carrying a knife to school was minimized. This is in relation to the child having a plastic butter knife which she found during an access visit in the child's Tupperware after rummaging through the child's knapsack.

[64] An example of the bald denials of the mother in relation to the Society's concerns, in particular, regarding the ability of the Society to evaluate the mother's plan which was to live with her father and why the mother has not visited the child for over one year, the mother states the following in paragraph 35 of her October 1, 2015 affidavit: "I patently deny that I refused provide her (social worker) with consent to speak with my father so that the Society could plan access and ensure the child's safety. I further deny that I had refused to exercise access altogether. To my knowledge, my father has signed all requisite consents presented to him by the Society."

[65] The mother has not presented any affidavits from third-party sources, including her father, in this summary judgment motion, although in her plan of care she listed him as a support and proposed to live with him if her daughter were returned to her.

[66] In relation to issues concerning the mother's mental health she states the following:

Although I disagree with the suggestions that I suffer from any mental health issues, I take the position that any concerns that led to this belief, was simply the product of the society worker's having observed me when I was an at an emotional low. Nevertheless, I acknowledge that these concerns will not disappear and for that reason, had become agreeable to obtaining a psychiatric assessment or even a referral to consult with one if the society felt it would assist them with determining whether I am in a fit state to have the child returned to my care. (This is found in paragraph 39 of the mother's October 1, 2015 affidavit).

[67] The mother goes on to indicate that she meets with a doctor who is a psychiatrist at the Trillium health Center by the name of Dr. Senthalal.

[68] The mother, in her October 1, 2015 affidavit presents two letters from psychiatrists, Exhibit E to this affidavit, which reports in part the following regarding the mother's progress:

.... Her psychiatric symptoms are improved. Her depression is improving. Thought pattern is more organized now, and she is able to focus on her future and her well-being. She is attending the group therapy program. We helped her to apply for O DSP, and we believe that she needs O DSP, in order to get well in her mental status. She is hoping to get a proper place for her to live. Does not like to live with her parents all the time. Currently, she is taking up of all 250 mg twice a day. Currently she is psychiatrically stable.

[69] The second letter dated September 4, 2015, from her team of treating physicians and professionals at the Trillium Health Center reviews in part the mother's counseling sessions and indicates that she is attending regularly and that they are discussing coping strategies and that she has demonstrated an understanding of the need to continue treatment and that the mother has been able to identify and make some positive changes in her coping strategies.

[70] In her affidavit, the mother does point out the positive comments made by the Society workers regarding her interaction with her daughter at access visits which this court recognizes. The dilemma is that there tends to be periods of progress followed by periods of setbacks, including the significant fact that this court cannot overlook, which is the fact that the mother has, for whatever reasons, decided not to be in touch with her daughter for over one year, although access has been offered to her through the Society's offices. Further, the mother believes that the Society has not attempted to give her an opportunity to parent. It must be remembered that in the initial Status Review Application the PCAS actually had asked the court for the child to be returned to the mother only to have the mother move to the Niagara region. While there, the mother had difficulties that led to an early status review that saw the child come into the care of the grandmother from February 2013 through to today's date.

[71] The evidence clearly shows that the mother has had good periods of interaction with her daughter but there presently exists significant gaps and unknown information as to how the mother is doing in the community, leaving the court with a lack of information for example: in paragraph 59 of her October 1, 2015 affidavit she indicates: "I am currently living in a new one bedroom apartment. At this time, I do not wish to reveal the address of my residence, for fear of harassment from Mr. S.B. or extended family. I signed the lease agreement on September 1, 2015 and it will remain in effect for one year". No lease was attached as an Exhibit.

[72] It should be noted that in the mother's May 2015 Plan of Care, her plan was to live with her father whom, as noted earlier in this decision, she has not permitted the Society to speak to.

[73] The mother concludes in her October 1, 2015 affidavit that from her perspective the child has not had any concerns about living with her. As the mother states in paragraph 66: "…accordingly, I do not feel that the relief sought by the Society is appropriate at this juncture, nor is it in the child's best interest". the mother goes on to state that she believes that the order sought by the Society will alienate her from her daughter.

Affidavit of Grandmother L.M.

[74] In the grandmother's affidavit dated October 21, 2015 she says the following regarding the child: she has been in her care and custody since the child was apprehended in the Niagara region in January 2013, and placed with her on an emergency basis.

[75] The grandmother has put her life on hold in order to focus on the child's needs. She noticed that when the child came into her care, the child's language and actions were more adult-like than for a child of her age.

[76] The child was not willing to abide by simple rules, such as bedtime and was contrary when told to concentrate on homework rather than other activities when it needed to be done. At school she had some difficulties with teachers and peers yelling at them. When confronted with her behavior she would often lie although the teacher had seen her do something. In the face of this she would turn to tears and have outbursts, saying that she hated everyone.

[77] The child was behind at school and this frustrated her. She had difficulty reading and pronouncing words and sentences. At home and at school she began to receive extra tutoring and services. The grandmother would sit with her in the evening and read with her slowly and patiently, helping her with her homework and encouraging her to use words instead of yelling and acting out.

[78] The child has slowly improved with the grandmother obtaining services from both the school and the PCAS and there was the social worker and youth service worker assigned to assist the child and this made a world of difference.

[79] Regrettably, the grandmother has had difficulties with the mother over the period of time that she has had the child in her care. The mother would come unannounced to the grandmother's home, requiring police to be involved. The mother would scream and sit on the curb outside the house for hours hoping that someone would open the door. This has had an impact on the child.

[80] This situation persisted to the point that in 2015 that the grandmother and child moved to a niece's home for peace of mind and support. However, the mother discovered that they were at the niece's home and would sit in a car in the parking lot for hours waiting. In early September 2015 the mother brought food to the child's school passing a bag of fast food through a window to the child, telling teachers and other individuals that this is needed as the grandmother was not properly feeding the child.

[81] This again had an impact on the child who became embarrassed, asking why her mother was acting this way at school. The mother became fixated on the fact that the child was always hungry, showing up at the grandmother's home after she moved back at the beginning of school year 2015. On one occasion when the grandmother asked the child why she was not feeling well she expressed to her grandmother that her mom and dad made her upset sometimes.

[82] The grandmother in her affidavit indicates that she is committed to the child forever. She has constantly been the child's caregiver for the past four years and sees herself not just as a grandmother anymore but the long-term care provider. The child, who is now 9, has flourished, she is more age-appropriate in her actions and likes and focused on her interests. She is able to properly read and write for her grade level, is obtaining A's and B's at school. The child is participating in activities and is a lunchtime monitor for kindergarten kids and at recess she has assisted in monitoring other children. The grandmother is committed not only to providing basic needs but love and affection and guidance now and into the future. The child not only has grandmother's love and affection but those from the extended family as well.

[83] The child is participating in community activities such as swimming and dance at local recreational centres and attends a public library. On Sunday they regularly attend church.

[84] The grandmother hopes that the mother will continue to improve and receive care for her emotional health and counseling. She wants the child to have a meaningful relationship in the future if this is possible. She states in her affidavit that she never wanted, nor does she want to take the child away from her mother and prevent a meaningful and healthy relationship, if one can be established. However, the grandmother's focus is on the child's needs first and foremost.

[85] The mother, in her last affidavit of October 23, 2015, indicates that when the child was apprehended from her in January 2014 she did agree that the grandmother should have the child in her care.

[86] The mother, however, believes that if the child has been acting out it was because she was not receiving the care, attention and acceptance that she desperately required from the grandmother and missed her family and being with her mother. The mother indicates that she finds it difficult to believe that the child was having emotional trouble at school. The mother indicates that she strenuously objects to any claim that the child could not read or pronounce words for when the child was with her she was doing well and the mother provided a note written by the child as an example of the child's ability to read and write.

[87] The mother also indicates that although the child might be doing extracurricular activities, many of these were done with her when she was in her care and the mother did provide an example, see Exhibit C to her last affidavit, of receipts from the city of Mississauga which show that the child was registered in community activities in the timeframe that the mother had the child in her care.

[88] The mother concludes that she does not believe the grandmother will assist in maintaining a relationship between the mother and child and wants the grandmother and the child to participate in family counseling and reunification therapy to avoid future difficulties and marginalization according to the mother.

Mother's Plan of Care

[89] The mother presented an Answer Plan of Care dated May 27, 2015, tab 7, volume 5 of the continuing record.

[90] She updated her Plan of Care within her affidavit dated October 1, 2015.

[91] In her May 2015 Answer and Plan of Care, she indicates that her father, A.F., is going to be one of her main supports. She indicates that they would be residing together with her daughter. Her daughter would continue to attend the same school that she was she is currently attending.

[92] The mother indicates that she is attending counseling with a Ms. Kathy Shaule at the Trillium Health Partners through the Mississauga Hospital. This counseling appears to be for difficulties in communication with the maternal grandmother.

[93] The mother, in answer to the question what support services will you be using for the child, indicates Dr. Senthelal, a psychiatrist in Mississauga. It should be noted that this psychiatrist is one of the doctors that has provided a letter which is attached as Exhibit "F" to the mother's October 1, 2015 affidavit which outlines the work this doctor is doing with the mother.

[94] The mother goes on to indicate that her father is going to be her main support as well as the respondent father, Mr. S B, although it should be noted that in the past there has been incidents of domestic violence between the biological father and the mother. She also indicates that her father is going to provide a safe and secure home and groceries, and that the biological father is supportive of her overall plan and could provide additional childcare when needed. The mother does indicate that she has planned recreational activities such as swimming at a local community centre and her daughter can enroll in other activities here as she has in the past at this local community centre.

[95] As an update to her Plan of Care, the mother, in her October 1, 2015 affidavit, indicates that she is no longer living with her father and that she now has a place of her own which she refused to permit the Peel CAS to inspect. She claims this is in part due to potential problems from Mr. S. B., despite having put him forward as a support in her May, 2015 Plan of Care.

[96] Ms. KFL indicates that she has gained insight about the impact of domestic violence through her work when she was a temporary resident at the Honey Church Family Life Resource Center.

[97] She indicates that although she disagrees with any suggestion that she is suffering from any mental health issues, and that the workers had seen her when she was emotionally low, causing them to have concern about her emotional well-being, she is now agreeable to obtain a psychiatric assessment or even a referral to consult with one of the doctors suggested earlier in these proceedings by the PCAS, if the Society felt that it would assist them in determining whether she is a fit mother. She does advise that she is seeing a psychiatrist at the Trillium Health Center.

[98] Additionally, the mother indicates that to assist with family reunification she attends a program called Family Matters, as well as a program entitled "Discover Me", a self-esteem program given by the Family Life Resource Center.

[99] In her October 1, 2015 affidavit as part of her plan the mother does admit that she was hospitalized on two occasions in the past for suicidal ideation, but underlines the fact that she believes she was at an emotional low at that point and that she has gained strength and insight since that time.

Grandmother's Plan of Care

[100] The grandmother's Plan of Care is filed at tab 7, volume 6 of the continuing record. In this Plan of Care she indicates that she is going to be the long-term care provider for the child, and agrees that the child should be placed in her care and custody. She notes on page 6, a group of family members, either aunts, great aunts and uncles who are members of the extended family will be assisting as family members do with family outings, respite care or taking the child to certain community activities and church. The grandmother also lists that she has the support of her son (the respondent father) and is opened to continuing to receive any support that she can from the Society. She notes the child is registered at school and attends regularly, has a family physician and participates in community activities.

Analysis and Disposition

[101] A review of the above evidence clearly indicates that the child continues to be in need of protection. There is overwhelming evidence that it is in the child's best interest to be placed in the custody of the grandmother. The concerns that caused the child to be apprehended continue today and the mother, although she has started to address some of these concerns, has not made significant progress to deal with these issues and resume care of her daughter. The child's life should not be in limbo; she should have permanency as far as remaining with the grandmother.

[102] I find that there is no genuine issue for a trial with respect to the child's continued need of protection, in part because of the following:

a) The mother has moved approximately three times over the period of this order. The mother has not permitted the Society to visit her residence when she was living with her father. The mother openly states she has not permitted this and will not, making it difficult for the Society to assess the mother's plan and any ongoing concerns. This is a clear indication that a supervision order would not be respected by the mother as this would be a basic requirement of this court.

b) The mother has refused to visit with her daughter at the Society's office for over one year. The mother has not seen her daughter, other than showing up in the community and at school, which has caused her daughter stress as well as the grandmother, who has needed to move because of the mother's behavior of harassment at the grandmother's home. The mother is fixated on what the child is eating and overly concerned about the child bringing a butter knife in her lunch to school. This behavior is of concern to this court and is part of the treatment and counseling that the mother is receiving as indicated by her doctor to modify her coping skills. This behavior shows there is much work to be done in this regard.

c) The mother, by not visiting with her daughter, has put her needs before her daughter's. She has not taken the time to meet with the Society to address any concerns, but rather has taken a hard line and indicated that it is her needs that will be first and foremost rather than seeing that her child needs her to be present and engaged as any mother would want to be. Why would any parent walk away from a child as the mother has done by her own admission?

d) The Society has attempted to have the mother work with them to produce a meaningful assessment through her family doctor, which did not materialize. The Society has attempted to meet with the mother to address the mother's concerns regarding access attempting to arrange for access to be moved from the Society's office to the shelter where the mother was living which could not take place.

e) Only recently has the mother engaged in counseling and worked with a psychiatrist. The mother's evidence in tabs F and G to her October 1, 2015 affidavit indicate that her doctor states her depression is improving and thought pattern is more organized. The RN that helps with her counseling indicates that the mother sees the need for her to continue treatment and participate in counseling. This counselor concludes that the mother has made some positive changes in her coping strategies. This is a beginning but not enough.

Best Interest

[103] In considering Section 37(3) of the CFSA, the plan presented by the maternal grandmother for the child, JFB, would meet the child's best interests as follows:

1. The child has been in the care of the maternal grandmother since February 2013 and the maternal grandmother's plan meets the physical, mental and emotional needs of the child. All reports indicate the child is doing well both in the community and at school while in the grandmother's care.

2. The child would continue to have a connection with her cultural background on both sides of her family.

3. In the grandmother's care the child will continue to have a meaningful relationship with her father and the grandmother has also indicated in her plan that she wants to develop and nurture access between the child and the mother.

4. The child has been in the grandmother's care continuously for 3 years and the child is thriving in the grandmother's care and this plan would be the least disruptive regarding the continuity of care that this child has received with the grandmother.

5. The mother's plan is formulated just recently and has changed since May 2015 to the present, with different supports in place regarding basic shelter and resources. This, in particular, is the case regarding her father with whom she no longer resides. There continues to be a risk that the child would suffer if removed from the grandmother's care and returned to the mother's care. This risk is not justified given the fact that the child has been found in need of protection.

Order

[104] Having considered the evidence in relation to the best interest test set out in the CFSA as well as the ongoing child protection concerns I order the following:

1. The child, JFB, is placed in the custody of her grandmother, LM, pursuant to section 57.1 of the Child and Family Services Act.

2. All access between the child and the father, S.B., or the mother shall be in the sole discretion of the grandmother L.M., in terms of the level of supervision, location and the length of all access visits.

3. The grandmother L.M. may obtain the child's, JFB's, Canadian passport and any other identity documents for the child, and is permitted to travel outside of Canada, without the need to obtain the permission of either the biological mother KFL or the biological father S.B.

Released: January 5, 2016

Justice A.W.J. Sullivan