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.

Court Information

Ontario Court of Justice

Date: 2017-05-16

Court File No.: Toronto CFO-15-13064-00 001-B2

Between:

Children's Aid Society of Toronto, Applicant,

— And —

C.P. and C.T. Respondents.

Before: Justice M. L. Cohen

Heard on: February 13, 2017

Ruling on Summary Judgment Motion released on: May 16, 2017

Counsel:

• Samantha-Leigh Levenson, counsel for the applicant society
• Andreas Solomos, counsel for the respondent Mother C.P.

DECISION

COHEN, M. L., J.:

Introduction

[1] This is my ruling on a summary judgment motion commenced by the Children's Aid Society of Toronto respecting the children H.P., born […], 2014, (age 2) and R.P., born […], 2015, (age 1). The motion was heard February 13, 2017. The respondent C.P. is the mother of the children and the respondent C.T. is their father.

[2] In its application, the society seeks summary judgment on:

• The statutory findings regarding the children pursuant to section 47(2) of the Child and Family Services Act;
• A finding that the children are in need of protection under section 37(2)(b) of the Act;
• An order that the children be made wards of the crown and placed in the care of the Children's Aid Society of Toronto.

[3] The respondent mother filed an affidavit on the hearing and asks the court to dismiss the motion for summary judgment.

[4] The respondent father did not file any evidence on the summary judgment motion, nor did he attend on the hearing. He has had no substantive involvement in the proceeding.

[5] The evidence on the motion supports a conclusion that the mother loves and trusts the father. Unfortunately, according to the society's evidence, he has been infrequent in exercising access to the children, and has not demonstrated significant engagement with them during those access visits he did attend. He has repeatedly advised the society that he works long hours and is not available to care for the children. He has also advised the society that if there is a trial on the application, he would be too busy to attend. There is also evidence that the mother advised the society on more than one occasion that the father consumes significant quantities of alcohol on a regular basis, and is verbally aggressive towards the mother when intoxicated.

[6] Taking into account all of the above circumstances, I noted the father in default on the summary judgment hearing.

Evidence on the Motion

[7] The society's evidence is set out in an affidavit of a society worker Chan Nankoosingh, sworn December 9, 2016. The worker provides evidence from her own observations, from her discussions with various individuals, service providers, and other social workers, and from her review of society notes.

[8] The mother filed an affidavit on the hearing sworn December 16, 2016.

Undisputed Evidence

[9] The mother has been involved with the society since 1998. She is the parent of seven children, and the society has been involved with all of them.

[10] K., who is 22, resides in British Columbia.

[11] K., who is now 20, was made a crown ward with access in 2011, and was residing in the mother's home until recently.

[12] C., born […], 2012, died at 9 months of age. His death was attributed to SIDS.

[13] K., born […], 2007, and K., born […], 2007, came into care in September, 2011. They were returned to their mother's care after a year, but ultimately came back into Society care. Both children were found to be in need of protection under section 37(2)(b) of the Act, on November 14, 2016. On that same date K. and K. were made wards of the Crown and placed in the care of the Children's Aid Society of Toronto with access at the discretion of the Society. The parents did not oppose the finding or the disposition.

Society Evidence

[14] The society has ongoing concerns about the mother's mental health issues, cognitive abilities, parenting capacity, and abuse of prescription medication. The society states that the mother has a history of failing to follow through with recommended services, including accessing medical and mental health supports, which might have helped to alleviate some of those concerns. The society alleges that as a result of her medical issues, the mother regularly misses access visits.

[15] The society worker deposes the following with regard to H., born […], 2014. H. has been in the temporary care and custody of the society by court order since July 20, 2015:

• In September 2014, the society was contacted by the maternal grandmother who had concerns about mother's neglectful parenting of K., born […], 2007, and K., born […], 2007, who were in mother's care;
• H. was born exhibiting withdrawal symptoms;
• There was a concern about inadequate weight gain, and about the mother failing to take H. to the doctor, although repeatedly requested to do so by the society intake worker;
• Nurses and society workers have repeatedly observed the mother to be sleepy or drowsy, fuelling a concern that she was taking prescription medication inappropriately. On one occasion a social worker described the mother as appearing to be "sleeping standing up" with a lit cigarette in her hand;
• The mother had been receiving assistance from the maternal grandmother, and, as a result of the above concerns, H. and K. began to reside with her. H.'s weight improved. K. was cared for by kith. However, the maternal grandmother planned to relocate to British Columbia in February, 2015, and would no longer be in a position to assist with the children's care;
• On February 9, 2015, the parents signed a temporary care agreement placing H. in society care. On February 25, 2015, the parents signed a similar agreement regarding K. and K.;
• Supervised access visits were instituted which included H., K. and K. The mother was referred to the Therapeutic Access Program in February, 2015;
• The mother was inconsistent or late in attending access, and, on occasion, departed the access early. She was also observed to leave H. unattended, or improperly secured, or appeared distracted;
• The mother missed numerous Plan of Care meetings regarding H.;
• The mother's need to smoke, and her drowsiness, affected the consistency of her parenting when she was with the children;
• The father attended few access visits with H., and appeared disengaged. He advised the society worker that he had to work and was not available to care for the children;
• The mother was not taking care of her own medical and financial needs;
• The mother failed to organize, and then missed, medical or psychiatric appointments;
• The mother continued to miss access visits for health reasons;
• The TAP summary dated October 31, 2015, reported that while the mother demonstrated love for her children, she struggled to take care of herself, had difficulty recognizing and responding to the children's physical and emotional needs, did not make use of parenting supports, made smoke breaks a priority, and was unable to demonstrate change over time. The TAP was discontinued in August, 2015;
• The mother continued to doze off during visits at the society offices, and on occasion had limited interactions with the children. The behaviours reported in the TAP summary continued, including numerous missed visits;
• H.'s foster mother complained that the mother was giving H. juice contrary to his doctor's instructions;
• H. has food sensitivities and the mother persisted in providing inappropriate snacks although having been advised not to do so;
• H. is generally doing well but has some delays in speech development and gross motor skills;

[16] R. was born […], 2015. He has been in the temporary care and custody of the society by court order since October 5, 2015. The society's evidence is that:

• The mother did not receive prenatal care during this pregnancy;
• R. was born 10 weeks premature with many medical issues;
• The mother's visits with R. were sporadic during the month he was in the hospital NICU;
• The mother continued to be late for, and miss, access visits;
• Drowsiness continued to be an issue, as well as mother's failure to secure the baby safely;
• The mother was invited to, but missed, all of R.'s Plan of Care meetings during this period;
• Visits continued and the mother was frequently late or missed visits. Although missing many visits for medical reasons, the mother continued her pattern of failing to seek out medical care for herself;
• R. is prone to colds and bronchitis, and his gross motor development is behind, but he is generally a happy baby with a good disposition;
• In 2016, it appears the mother missed almost half the visits. From the conclusion of the TAP program in August, 2015, to the end of December 2016, she missed 64 access visits;
• In May, 2016, the mother's methadone doctor indicated that the mother was mixing methadone with Gravol, despite being advised not to, and this combination can cause drowsiness;
• A parenting capacity assessment was conducted by Dr. Perlman in June, 2016. The father said he could not attend the assessment to be interviewed due to his work commitments;
• When informed by the social worker that the society would be seeking crown wardship without access, the father stated that he cannot plan for the boys as he works long hours and he cannot take off days to go to court;
• Other supports proposed by the mother were unprepared to commit to the level of involvement that would be required.

Therapeutic Access Program (TAP)

[17] In February 2015, the society referred the mother to the Therapeutic Access Program (TAP). The program was terminated July 30, 2015 and the report was prepared in October, 2015.

[18] The author of the assessment noted that the mother "demonstrated an obvious love toward her children", brought food, special treats and activities they enjoyed, and was good at engaging H. face to face and in a nurturing manner. However the mother missed or cancelled visits, often due to medical concerns, on occasion was distracted or unresponsive, and did not respond consistently to the children's needs. She resisted criticism of her parenting, and did not progress over the seventeen weeks she attended the program. As a result, the assessment was terminated early without any recommendation in the mother's favour.

Parenting Capacity Assessment

[19] The mother participated in an assessment of her parenting of H. and R. The assessment was performed on consent by Dr. Nitza Perlman in June and July, 2016. The report was completed July 3, 2016. The report of the assessment is evidence and is part of the court record.

[20] Based on her clinical observations, and psychological testing she conducted, as well as her review of the society file, Dr. Perlman concluded that the mother suffers from significant mental health problems, including chronic anxiety and depression, dysthymia, effects of trauma, deep rooted helplessness, hopelessness, and pessimism, preoccupation with ill health and somatization. Dr. Perlman also concluded that the mother had cognitive deficits which would result in her exercising poor judgment.

[21] Dr. Pearlman observed positive interaction and affection between the mother and the children. It was her opinion that the children are fond of their mother but not selectively or securely attached to her. She concludes that the mother is unable to meet the children's needs and unable to connect with service providers who could assist her to provide better care for her children.

[22] In particular Dr. Perlman opines as follows:

Ms. P. loves the children and wants to parent them. The boys are fond of her…Ms. P. experiences symptoms of depression and anxiety. Her coping abilities are compromised and maladaptive. Both boys have special needs. They require a skilled, committed and available caregiver. Ms. P. is unlikely to be able to meet the children's needs on an ongoing basis.

…It is highly recommended that Ms. P. becomes involved in long-term individual therapy to address her experiences of trauma, anxiety and depression. In view of the fact that her problems are significant and longstanding, and that, for the most part, she was unable to engage with service providers, it is unlikely that clinical interventions will be successful in the foreseeable future.

[23] It is important to emphasize that Dr. Perlman's observations and conclusions are consistent with the other evidence of the society on this motion.

Mother's Evidence

[24] The mother's affidavit was almost entirely comprised of argument, bald denials, or repetition of favourable statements from the society's evidence. As such, the affidavit was of limited value on the motion, other than as an expression of mother's desire to have the children returned to her, and her conviction that the society, the TAP program and Dr. Perlman were unfair to her.

Hearsay

[25] The mother argues that the society's claim is based on hearsay evidence. She is correct that perhaps one third of the society's affidavit contains hearsay. While there is hearsay in the society's affidavit, "Under the Family Law Rules the admission of hearsay evidence is not prohibited on a summary judgment motion." (Catholic Children's Aid Society of Toronto v. N.B., [2013] O.J. No. 3439 (Ont. C.A.)).

[26] While rule 16(5) of the Family Law Rules, governing summary judgment motions, provides 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.

The test for admissibility of hearsay is not found in this rule.

[27] In Children's Aid Society of Toronto v. B.(B.), 2012 CarswellOnt 12801 (Ont. C.J.), Sherr, J. states that

My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made on flawed evidence.

The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination.

[28] I agree with this view.

[29] In Children's Aid Society of Ottawa v. B. (J.), 2016 CarswellOnt 7796 (Ont. S.C.J.) McKinnon, J. holds that the starting point in addressing the admissibility of hearsay evidence is that it is excluded unless it satisfies the tests of necessity and reliability. Necessity and reliability have not been argued in this case by either party.

[30] The society has filed one 428 paragraph affidavit in support of its motion, authored by one social worker, among several who have been involved in this case. Out of court statements by these social workers recounted by the deponent are hearsay and presumptively inadmissible. Out of court statements by doctors and other service providers are also presumptively hearsay.

[31] The mother points to 16 paragraphs of the society's affidavit as examples of the inclusion of hearsay. These paragraphs relate to the mother's history with the society and issues that arose in the fall of 2014 regarding her care of H., who was born in […]. Some of these paragraphs may be characterized as narrative and may be admissible, although not for proof of the truth of their contents. Other paragraphs are drawn from society notes prior to the involvement of the worker who swore the affidavit. Some of this information is part of the court record and therefore admissible. I would note as well that the mother includes favourable hearsay statements of social workers or others in her affidavit.

[32] Nonetheless, I have found that one third of the affidavit contains hearsay statements. In the absence of proper argument on the issue, I approach the evidence on this motion with caution.

[33] Despite the prevalence of hearsay in the society's affidavit, much of it is comprised of direct observations by the social worker/deponent, and of admissions made by the mother and father to her. The deponent also made direct observations during the TAP program. In the result, I find there is sufficient admissible evidence upon which to base my ruling on this motion.

[34] The mother also argues that the observations of the society worker are so detailed, and involve such minutia, that it is difficult for her to properly respond.

[35] The question of detail and minutia goes to the weight to be accorded the evidence, and is a matter capable of argument based on relevance. The larger question is whether the mother is unable to respond to the worker's affidavit because of its volume, and the mother's evident disadvantage that she does not have her notes of her own upon which to rely.

[36] In my view, notwithstanding the volume of the evidence, it was open to the mother to file a more detailed affidavit than was actually submitted. An affidavit which is largely argument and bald denial is not responsive.

[37] The evidence in the society's affidavit is not complex. The facts in support of the relief sought have been known to the mother for a considerable period of time. Indeed, despite the detail and volume of the society's affidavit, the general themes, and the evidence relied upon in support, are clear, and capable of response.

[38] It was open to the mother to file affidavit evidence from the father and other persons she proposed as supports. It was open to her to file affidavits from her adult children. It was open to her to file evidence from her family doctor and her methadone doctor. It was open to her to file medical evidence from the hospital or medical professionals to show she was unable to exercise access when she missed visits. It was open to her to file affidavit evidence from persons who had witnessed her parenting, whether on an access visit when friends or siblings attended, or prior to H.'s coming into care. She is represented by counsel and she has had ample opportunity to file responding evidence.

[39] The mother also argues that she should have an opportunity to cross examine at length the writers of the two exhibits, the TAP report and the Parenting Capacity Assessment at a trial. However, it was open to the mother to cross-examine the authors of both reports, and to cross-examine the author of the lengthy affidavit filed on this hearing (Rule 20). No adjournment of the motion was sought for this purpose and nor did any cross-examinations take place.

[40] As will be set out in more detail below, the burden on the mother as a respondent to a summary judgment motion is to set out specific facts showing that there is no genuine issue requiring a trial (Rule 16(4)). A submission that the Society's evidence must be tested through cross-examination, as is argued in the affidavit in this case, is akin to the "bald allegation" or "mere denial" referred to in Rule 16(4.1) (see: Children's Aid Society of Hamilton v. M.A., [2007] 23334 (ON SC) at paragraph 65).

[41] In the result I reject the argument that the summary judgment motion should be dismissed because the quality of the society's evidence compromised her ability in some way to respond effectively.

Factual Findings

[42] Setting aside the hearsay portions of the affidavit, and relying on the non-hearsay portions, I am able to find the following facts:

• That the mother has a long history with the society regarding all her children;
• That three of her children were made Crown wards;
• That she has been unable to effectively address, or even take steps to address, her significant and on-going medical and psychological issues;
• That she has regularly missed access visits, including half of the TAP visits, and has regularly failed to attend Plan of Care meetings;
• That her smoking, drowsiness, and, most significantly, her medical and psychological needs, interfere with her ability to parent;
• That the mother has not been able to engage with or utilize supports that have been offered to her by the Society and other community resources;
• That the father is not engaged with the children, abuses alcohol, and would not be a reliable support for the mother, whose ability to consistently parent is compromised, and that there are no other supports reliably available to her;
• That the mother loves the children, and that they enjoy their time with her. Many of the access visits have gone well.

Law on Summary Judgment Motions

[43] Summary judgment motions are governed by rule 16 of the Family Law Rules, the relevant portions of which provide as follows:

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

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5).

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

POWERS

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

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5 (1).

[44] When faced with a motion for summary judgment, a responding party cannot make mere allegations or blanket denials of the applicant's evidence. 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.

[45] The test for summary judgment 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. 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.

[46] 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 requiring a trial. If the court concludes that there is no genuine issue requiring a trial of a claim, the court must make a final order accordingly.

[47] Particularly in a child protection case, with its potential for very grave consequences, a court deciding a summary judgment motion should proceed with caution. The jurisprudence suggests that in assessing whether or not a society has met its obligation of showing there is no genuine issue requiring a trial, the court may consider whether there is "no chance of success", "the outcome is a foregone conclusion", whether it is "plain and obvious that the action cannot succeed", and whether "…there is no realistic possibility of an outcome other than that sought by the applicant".

[48] The Supreme Court decision in Hryniak v. Mauldin, 2014 SCC 7, sets out a roadmap for determining summary judgment motions. In a child protection case, the procedure will be as follows:

1. The court should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's fact-finding powers under subrule 16 (6.1);
2. If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the powers under subrule 16 (6.1);
3. These powers permit the court to weigh the evidence, evaluating credibility, and drawing reasonable inferences from the evidence;
4. For the purposes of exercising these powers, the court can hold a mini-trial and hear oral evidence.

[49] In Hryniak, the court said:

66 On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a 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, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a 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). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[50] Ultimately, on a summary judgment motion, "the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute." (par. 57)

Analysis and Ruling

Statutory Findings

[51] Section 47(2) of the Act provides that:

(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child's name and age; (b) the religious faith, if any, in which the child is being raised; (c) whether the child is an Indian or a native person and, if so, the child's band or native community; and (d) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

[52] The findings pursuant to section 47(2) of the Act are conceded, to wit:

• H.P. was born […], 2014;
• His mother is C.P.;
• His father is C.T.;
• He is not Catholic and not Jewish;
• He is not Indian and not Native;
• He was not apprehended.
• R.P. was born […], 2015;
• His mother is C.P.;
• His father is C.T.;
• He is not Catholic and not Jewish;
• He is not Indian and not Native;
• He was apprehended in the City of Toronto on September 30, 2015.

[53] Summary judgment is granted on these findings.

Protection Finding

[54] The mother concedes that there is no triable issue on the question of the protection finding. I agree.

[55] Based on the facts I have set out above, I find there is no triable issue on the question of whether there exists a risk that the children H.P. and R.P. are likely to suffer physical harm caused by the mother's failure to provide for, supervise or protect the children adequately.

[56] There is no triable issue that the children are in need of protection under sections 37(2)(b) of the Act. Summary judgment will be granted on this issue.

Disposition

[57] The society seeks summary judgment on its request for an order making H. and R. crown wards. H. has been in the temporary care and custody of the Society since February 9, 2015. R. has been in the temporary care and custody of the society since October 4, 2015. Accordingly, an order of society wardship is not available. (s. 70)

[58] For the society to succeed on its summary judgment motion regarding disposition, it must establish that there is no triable issue on the following:

• That intervention through a court order is necessary to protect the child in the future;
• Whether the society made efforts to assist the child before intervention;
• That no less disruptive alternative to crown wardship would be adequate to protect the child;
• That the order of crown wardship is in the best interests of the children.

[59] I am satisfied that there is no triable issue on the question of whether intervention through a court order is necessary to protect the child in the future.

[60] One of the great concerns in this case is that the mother appears to have made no progress in dealing with the issues that led to the intervention, and which sheedes resulted in the protection finding.

[61] I am also satisfied that there is no triable issue on the question of whether the society made efforts to assist the children before intervention. The society identified the concerns which posed a risk to the mother's children in prior interventions with the family. Their efforts have been ongoing to assist the mother in locating and accessing health professionals to address issues related to her physical and mental health, so that she would be better able to address her children's needs. There were also extensive efforts to assist the mother to obtain a disability pension and day care subsidy. The TAP program was offered to assist the mother to improve her parenting through therapeutic access visits.

[62] The central issues then, are whether summary judgment should be granted on the society's claim for crown wardship, or whether a less disruptive order is available.

[63] Whether on summary judgment or at trial, a court making a disposition in a child protection application must consider the paramount purposes of the Act and the best interests of the children:

1. (1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

[64] The "best interests" test is set out in section 37 of the Act:

Best interests of child

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

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child's physical, mental and emotional level of development.
3. The child's cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9. The child's views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance.

[65] In my view there is no triable issue requiring a trial on the following facts which are material to the question of disposition:

• That the mother has a long history with the society regarding all her children;
• That three of her children were made Crown wards;
• That she has been unable to effectively address, or even take steps to address, her significant and on-going medical and psychological issues;
• That she has regularly and frequently missed access visits, including half of the TAP visits, and has regularly failed to attend Plan of Care meetings;
• That her smoking, drowsiness, and, most significantly, medical and psychological issues, interfere with her parenting abilities;
• That she has not been able to engage with or utilize supports that are offered to her by the Society and other community resources services, and that, on occasion, she has misled the society about whether she has made efforts to access these services;
• That the father is not engaged with the children, abuses alcohol, and would not be a reliable support for the mother, whose ability to consistently parent is compromised, and that there are no other supports reliably available to her;
• That the mother loves the children, and that they enjoy their time with her, and that many of the access visits have gone well. However these visits were of limited duration and fully supervised, and the mother missed a substantial number of visits.

[66] The mother's plan is the only plan before the court other than Crown wardship. Her plan as set out in her Answer and Plan of Care dated November 11, 2015, is for the children to be returned to herself and the father. In her Plan she states she will have the support of the father, the maternal aunt and her step-father T.B.

[67] In her affidavit sworn December 16, 2015, the mother deposes that the father's daughter Lisana, age 26, is living in her household, and that her stepfather, T.B. is also prepared to assist "with anything I need in order to facilitate the orderly return of the two boys" to her care or the joint care of herself and the father.

[68] I have already found based on his own admissions, that the father is not committed to providing support at the level that would be required in this case. The father did not attend the Parenting Capacity Assessment, has not attended court, and stated he would be too busy to attend the trial. There is no direct evidence from the father to negate this evidence. Furthermore, based on their direct statements to the society worker, neither Ms. T. nor Mr. T.B. is willing or able to assume the demands of this task. There is no direct evidence from Ms. T. or Mr. T.B. to negate this evidence.

[69] In the result, the mother's plan is a plan to return the children to her as effectively sole care giver, in circumstances where she has been unable to demonstrate any change from the circumstances that led to her children coming into care in the first place.

[70] In my view, there is no genuine issue for trial on the factors applicable to this case: The degree of risk that justified the finding has not abated. The children are very young, vulnerable and have some special needs. They require an attentive, competent caregiver, who is not overwhelmed by her own needs, as is the case with the mother. The mother has not been able to manage the demands of parenting over many years, and despite the removal of her other children from her care. Notwithstanding the mother's love for her children, she is not able to provide them with the security and stability they require. The children are entitled to a permanent place as a member of a family. The mother's plan is not secure and, given her needs, which she has been unable to address, will not promote the protection and well-being of her children. The only plan which is most likely to ensure the protection, best interests and well-being of the children is crown wardship.

[71] In Children's Aid Society of Toronto v. R. (T.), 2017 ONCJ 252, Zisman, J. states:

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. Children's Aid Society of Toronto v. H. (R.), [2000] O.J. No. 5853 (Ont. C.J.).

[72] There is no such evidence before me on this motion.

[73] I find that an order of crown wardship is the least disruptive order available which is consistent with the children's best interests. I find there is no material fact which requires a trial to determine the issue of disposition. There is no genuine issue for trial on the question of disposition, and summary judgment is granted to the society on this claim. The children will be made wards of the crown and placed in the care of the society.

Access

[74] The remaining issue is whether there is a genuine issue for trial on the issue of access. As a preliminary matter I wish to comment on the state of the pleadings in this matter.

[75] I have already noted the significant amount of hearsay in the affidavits filed on this motion. In addition, I find the quality of the society's pleadings in relation to the question of access particularly unsatisfactory.

[76] In its protection application regarding H., the society asked for an order of no access for purposes of adoption. In its protection application regarding R., it is silent regarding access, however in its Plan of Care regarding R., the society pleads that it is "seeking Crown Wardship with an adoption plan." Then, in its summary judgment motion, the society asks for summary judgment on an Order of Crown wardship but makes no claim regarding access to either child. However in the affidavit in support of the summary judgment motion, the deponent states at paragraph 427, "Based on the above information, the Society is seeking an order that H. and R. shall be Crown Wards with no access for the purpose of adoption." This kind of imprecision suggests a careless attitude towards motions for summary judgment, and is disturbing.

[77] Nonetheless, despite the unsatisfactory drafting of the summary judgment motion in respect of access, it is apparent that the mother was aware of the relief being sought, as the issue was addressed in argument without objection. I conclude the mother had sufficient notice that summary judgment for an order of no access would be sought. Unfortunately, this conclusion does not end the matter.

[78] Section 59(2) of the Act provides that an order of crown wardship terminates the existing access order, and section 59(2.1) directs that

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

(a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child's future opportunities for adoption. 2006, c.

[79] I agree with Spence, J. in Children's Aid Society of Toronto v. R.C., [2016] O.J. No. 3022, that on a summary judgment motion, even if the onus is on the parent to satisfy the two prong test, the onus is on the society to satisfy the court that the parents cannot satisfy the test.

[80] In Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7, the Court said

49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[81] Once I set aside the hearsay in both affidavits, I find that the evidence filed on the question of access is insufficient for me to arrive at a fair and just determination of this critical question. I am not able to make the necessary findings of fact on the evidence filed on either prong of the test. Furthermore, as this issue is not one of weighing the evidence, assessing credibility or drawing reasonable inferences from the evidence, the additional powers provided under Rule 16(6.1) will be of no avail. The evidence is not such that I am confident that I can fairly resolve the dispute.

[82] I would like to avoid further delay in this proceeding. In my view, the most efficient way to resolve the difficulty is to set the matter down for a structured hearing, not to determine whether there is a genuine issue for trial regarding access, but to determine the issue of access itself.

[83] Thus my decision is as follows:

1. The respondent C.T. is noted in default;

2. Summary judgment is granted and the following orders will issue:

   a. The statutory findings are made in accordance with paragraph 52 herein;

   b. The children, H.P. and R.P. are found in need of protection under section 37(2)(b) of the Act;

   c. H.P. and R.P. will be made wards of the Crown and placed in the care and custody of the Children's Aid Society of Toronto;

   d. The parties shall proceed to a hearing on the issue of what, if any, access ought to be ordered between the mother and the children. Prior to setting the hearing date, the parties shall attend a trial management conference on the issue, before the case management judge.

   e. Pursuant to subrule 16(9), and Rule 1(7), and subject to the trial judge's discretion to order otherwise,

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

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

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

   iv. The matter is adjourned to a date to be set for the hearing by the trial management coordinator.

Released: May 16, 2017

Signed: Justice M. L. Cohen