WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

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

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: November 26, 2018

Court File No.: Kitchener 154-15

Between:

Children's Aid Society of the Regional Municipality of Waterloo Applicant

— AND —

C.G. and J.B-B. Respondents

Before: Justice B.C. Oldham

Heard on: October 19, 2018

Motion for Summary Judgment Reasons released on: November 26, 2018

Counsel

Ms. S. Currie — counsel for the applicant society

Mr. P. Brohman — counsel for the respondent (C.G.)

Mr. G. Schafer — counsel for the respondent (J.B-B.)

Decision

OLDHAM J.:

Introduction

[1] The Children's Aid Society of the Regional Municipality of Waterloo (the "Society") brought a Motion for Summary Judgment (the "SJM") in respect of the child, D.B., born […], 2014. The SJM is in respect of a second status review application.

[2] D.B. was apprehended and placed in foster care on February 18, 2015 following concerns regarding serious unexplained injuries. D.B. was two months old at the time of the assessment by the Children's Advocacy Assessment Program ("CAAP") at McMaster Children's Hospital.

[3] C.J., born […], 1982 is the biological mother of D.B. and J.B-B., born […], 1988 is the biological father.

[4] The children were found to be in need of protection pursuant to subsection 37(2)(a)(i) and (a)(ii) and 37(2)(b)(i) and (b)(ii) of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA") by order of Justice Rogers dated September 15, 2015. At this time, D.B. was placed in the care of the paternal grandparents pursuant to a nine month supervision order. D.B. was in a foster home from February 18, 2015 until shortly before the Order of Justice Rogers. D.B. has remained in the care of his paternal grandparents since September 14, 2015.

[5] The first Status Review Application was commenced on June 21, 2016. The parties signed a further Statement of Agreed Facts on July 4, 2017, confirming and agreeing to the continued placement of D.B. in the care of the paternal grandparents subject to a six months supervision order.

[6] The current Status Review Application was commenced on October 27, 2017 with a first return date of January 2, 2018 (the "SRA").

Position of the Parties

[7] The SRA commenced by the Society sought a further supervision order; however at the Summary Judgment Motion, the Society confirmed its position and requested an order placing D.B. in the custody of his paternal grandparents pursuant to section 102 of the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1 ("CYFSA"). This position supported the position put forward by J.B-B., in his Answer.

[8] For the purposes of the SJM, it is the Society's position that there is no issue requiring a trial in this case. The child continues to be at risk if returned to his parents and it is in his best interests that he be placed in the custody of his paternal grandparents. Access between D.B. and the Respondents is to be at the discretion of the paternal grandparents.

[9] J.B-B. is consenting to the relief sought by the Society. He currently resides in the home with his parents and D.B.

[10] C.G.'s Answer indicates that she is seeking a further three month supervision order with D.B. remaining in the care of the paternal grandparents, pending the completion of the parenting capacity assessment (the "PCA"). The PCA was completed on February 9, 2018. C.G.'s position at the SJM was that D.B. should be returned to her care. It is C.G.'s position that there is an issue requiring a trial; namely whether the steps that she has taken are sufficient to adequately protect D.B. so that he may be returned pursuant to her care under a supervision order.

[11] If there is no issue requiring a trial in respect of the disposition, it is C.G.'s position that there should be an order for unsupervised access.

Evidence Before the Court

[12] As noted by the Society, there are few material facts that are in dispute. The SJM is supported by two Statements of Agreed Fact, a CAAP assessment completed by Dr. Nolan and a PCA completed by Dr. Amitay. While C.G. disputes some minor factual comments, she has not disputed either the findings of the CAAP assessment or the findings of the PCA.

[13] Counsel for C.G. agreed that the crux of the issue before the court on the SJM is whether the counselling completed by C.G. following the release of the PCA is sufficient to create an issue requiring a trial as to C.G.'s ability to care for D.B.

[14] The following material facts are not in dispute.

[15] D.B. attended McMaster Hospital on February 8, 2015 with significant injuries. He was assessed and the assessment confirmed the following injuries upon physical and radiological examination:

• Healing left posterolateral 7th rib fracture;
• Metaphyseal fracture distal medial left tibia;
• Right healing tibia medial metaphyseal fracture;
• Bruise anterior upper left arm;
• Bruise under right chin;
• Bruise anterior left chest; and
• Elevated liver enzymes.

[16] The conclusion reached by Dr. Nolan in respect of these injuries is that they are all 'highly suspicious for inflicted injuries' with the exception of the elevated liver enzymes which is 'suspicious for inflicted injury'.

[17] J.B-B. advised of an incident which occurred when he was bathing D.B. approximately one month prior to his attendance at McMaster Hospital. He indicated that D.B. slipped from his arms and he had to grab him forcefully to avoid falling. While Dr. Nolan noted that this incident may explain some of the injuries (possibly the metaphyseal fracture distal medial left tibia), it certainly could not explain the majority of the injuries.

[18] Of concern was the fact that J.B-B. did not disclose the incident until September 3, 2015 and reported that it occurred sometime during the week of January 5 to 12, 2018.

[19] While C.G. maintains her position that the injuries were caused by J.B-B., in her interview with Dr. Amitay she notes that she did not know how D.B. could have acquired the injuries and that she never saw J.B-B. being abusive towards her or towards her children. It is acknowledged that there are no other caregivers who could have caused the injuries, with the exception of the right healing tibia medial metaphyseal fracture. This metaphyseal fracture was not detected on the first skeletal survey. Dr. Nolan notes that it is possible that the first skeletal survey had suboptimal views such that it was not visual. It is also possible that it was sustained at some time between the first and second skeletal survey which covers the time that D.B. was in the foster home. Regardless, the majority of the injuries occurred prior to D.B. coming into care and the only possible caregivers were J.B-B. and C.G.

[20] C.G. did not dispute the PCA, but rather focused on her efforts to follow the recommendations of Dr. Amitay and engage in the counselling required. Specifically, she has completed anger management, Eye Movement Desensitization and Reprocessing ("EMDR") therapy, a mindfulness course, a course on self-esteem and personal counselling. The counselling notes confirm that the initial Intake was completed on March 1, 2018 with Family Counselling of Cambridge and North Dumfries and that she had attended 12 individual counselling sessions as of August 17, 2018.

[21] C.G.'s identified goals included:

Short term goals:

a. Incorporate grounding and self-soothing exercises from group with guidance from therapist;

b. Use a lifeline to identify triggers and traumas;

c. Identify and move away from thinking traps, in particular personalizing and defensiveness; and

d. Support with boundary setting and communication coaching.

Long term goals:

a. Move away from seeking external validation to self-compassion and internal validation;

b. Recognize opportunity for learning and direction from others' feedback;

c. Improve relationships with relatives caring for her children by redirecting conflict and animosity; and

d. Have greater access to children up to and including custody.

[22] The goals were reached with input from the CAS worker, Ms. Graham who attended with C.G. on March 27, 2018. Notwithstanding her commitment to the process, the Society identified a number of areas where information provided to the counsellor was inaccurate. For example, she advised that G.C., the father of her older boys was never charged because of political connections. He was charged. She advised that she lost custody of her older boys because of a connection with criminality; while part of the reasons, there were other reasons including her treatment of the children.

[23] As of the SJM, C.G. was continuing with her counselling.

The Law and Analysis

Summary Judgment Framework

[24] This summary judgment motion is being made pursuant to Rule 16 of the Family Law Rules which provides:

RULE 16: SUMMARY JUDGMENT

16. (1) When Available — 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)

16. (2) Available In Any Case Except Divorce — A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

16. (4) Evidence Required — 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.

16. (4.1) Evidence Of Responding Party — 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.

16. (5) Evidence Not From Personal Knowledge — 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.

16. (6) No Genuine Issue For Trial — If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

16. (6.1) Powers — 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.

16. (6.2) Oral Evidence (Mini-Trial) — 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.

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

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

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security or limit a party's pretrial disclosure).

[25] Justice Sherr in A.E.A. v. F.A.H., 2015 ONCJ 339, refers to the Supreme Court of Canada decision in the case of Hryniak v. Mauldin, 2014 SCC 7, to describe the process to be followed in applying the expanded summary judgment rule in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure. Specifically he states:

[7] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.

[8] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).

[9] If there are concerns about credibility or clarification of the evidence then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).

[10] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).

[11] The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.

[12] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).

[26] In child protection matters, I am to consider not only the nature of the evidence, the intrusiveness of the order and the mandatory time frames, but also the statutory criteria involved and in particular, how material are the facts in dispute to the issue before the court (see: CAS Algoma v. E.W., 2001 O.J. No. 2746 (OCJ)).

[27] 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. (See: C.R. v. Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357.)

[28] In Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court), the Divisional Court had the following to say about the steps to follow in a summary judgment case:

1. Neither party has the onus of establishing who will succeed at trial. That is the wrong question. Pre-Hryniak case law where courts examined whether a party has any reasonable chance of success no longer applies (para. 45).

2. The key question is whether it is in the interest of justice for the court to resolve the case summarily? To do so, the court is required to consider whether the process allows it to make the necessary findings of fact based on the facts pleaded, to apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure (para. 46).

3. The summary judgment process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial (para. 43).

[29] The burden of proof is on the party who moves for summary judgment. (See: Sanzone v. Schechter, 2016 ONCA 566 at para. 30.)

[30] Under Rule 16 (4) the moving party must:

"Set out specific facts showing that there is no genuine issue requiring a trial."

[31] The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hryniak (para. 48).

[32] Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:

"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."

Status Review Applications

[33] In a status review hearing the original order being reviewed is presumed to be correct. This is not a re-hearing or re-trial of the order previously made. (See: Children's Aid Society of Hamilton v. C.G., 2013 ONSC 4972.)

[34] The examination to be undertaken involves two-stages, as confirmed by the Ontario Court of Appeal in Children's Aid Society of Oxford v. W.T.C., 2013 ONCA 491 ("W.T.C."):

a. First, determine whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection;

b. If it has been determined that the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the child.

[35] In determining what order is required to meet the child's best interests, the court must consider the degree to which the risk concerns that prompted the original order still exist. This must be examined from the child's perspective. (See: Catholic Children's Aid Society of Toronto v. M. (C.), 2 S.C.R. 165 ("M.(C.).") and Children's Aid Society of Hamilton v. R.M. and N.M., 2015 ONSC 5101.)

[36] With respect to the first part of the test in Status Review proceedings, the Supreme Court did not state that the child must be found to be "in need of protection" as that phrase is defined in subsection 37(2) of the CFSA (now subsection 74(2) of the CYFSA). What is required is that the child welfare agency involved must justify ongoing state intervention in the life of the family by proving that a court order continues to be necessary to protect the child in the future. The Ontario Court of Appeal confirmed this interpretation of the first part of the test in W.T.C., supra.

[37] The Supreme Court emphasized in M.(C.) that a preliminary determination of whether ongoing state intervention is required to protect the child is important to ensure that the overall objectives of the CFSA are protected and promoted. In support of its decision on this issue, the court relied heavily on the fact that these statutory objectives include the preservation of the autonomy and integrity of the family unit, and the provision of child protection services in the least restrictive and disruptive manner. The court also held that the inquiry into the child's continued need for protection involves more than simply analyzing the events and concerns that triggered the child welfare intervention in the first instance and determining if those concerns persist. Rather, the issue must be assessed from the perspective of both the child and the parents, taking into account the reality that the needs and circumstances of both evolve continually. A finding that the child continues to require protection can be based on ongoing concerns respecting the parents' ability to meet the child's needs, or for reasons unrelated to the parties' parenting, such as concern about the effects of removing the child from a long-term caregiver who is able to present a permanent plan.

[38] Once it has been decided that the child is still in need of protection, the court must consider the least restrictive alternative consistent with the child's best interests. (See: CAS Peel v. W., 1995 14 RFL (4th) 196.)

Is There an Ongoing Need for Protection

[39] The injuries suffered by D.B. when he was two months old are significant. The only caregivers were J.B-B. and C.G.

[40] C.G. has not acknowledged any responsibility for the injuries. She has a history dating back to 2004 of engaging in relationships which resulted in claims and/or referrals for domestic violence. With respect to D.B., she claims she came home one day and found a lump on D.B.'s side. She claims that J.B-B. was watching him that day.

[41] J.B-B. has acknowledged responsibility for some of the injuries; however, it is clear from Dr. Nolan's report that the incident described cannot account for all of the injuries. The injuries are deemed to be highly suspicious for inflicted injury and remain unexplained.

[42] The assessment does not confirm when the injuries occurred to allow the court to confirm that the child was in J.B-B.'s exclusive care. The Court does not have sufficient evidence to determine who was responsible for the injuries. This does not create an issue that requires a trial as both parties have put forward all of the evidence they have available. When left with unexplained injuries such as these, as noted by Justice Brown in Children's Aid Society of Hamilton v. E.D., at paragraph 698:

"It is not for this Court to gamble with the lives of children. I cannot 'guess' as to which of L.G.'s parents was responsible for his injuries and I cannot return L.G. to a parent with the 'hope' that I have guessed correctly."

[43] Moreover, even if only one parent is responsible for the injuries, then the injuries were also caused by, or resulted from the other party's failure to adequately care for, provide for, supervise or protect the child. In my view, the fact that D.B. suffered unexplained injuries in the care of either J.B-B. or C.G. is enough to establish that there is an ongoing need for protection.

[44] That said, it is C.G.'s position that the counselling she has undertaken is sufficient to create an issue requiring a trial to determine whether she has alleviated the protection risks. Dr. Amitay considered supportive therapy or similar types of counselling in the PCA and concluded that:

"Although this type of therapeutic setting can lead to some improvement, it usually takes a long time to see a meaningful and lasting change; in C.G.'s case, it could take a minimum of two years to see such improvement; hence the potential cost or difficulty in maintaining regular attendance for that duration are likely impediments. Moreover, C.G. would probably continue to convey things in a way that excuse her poor judgment and misguided decision, because supportive therapy does not usually involve challenging the client's perspective or claims (although some forms of counselling might do so to a very limited degree), she would have her self-serving and distorted beliefs or opinions reinforced."

[45] Dr. Amitay supported this conclusion by the results of the tests conducted as part of the PCA. For example, the Parent Awareness Skills Survey (PASS) revealed "mostly satisfactory parenting knowledge", but upon closer review "exposed serious shortcomings" which would prevent C.G. from being able to care for D.B. These shortcomings are set out on page 19 of the PCA which indicate a "low degree of empathy or perspective taking which is strongly correlated with a limited capacity to meet children's needs on a long term basis. Along these lines, despite having raised two boys previously, C.G. displayed very poor understanding of a young children's cognitive, emotional or social development. The preceding deficits make her prone to interacting with her children in a highly maladaptive or unhealthy ways that can cause them harm, whether psychologically or physically."

[46] Dr. Amitay noted that "PCA examinees are ordinarily expected to consistently demonstrate at least two – but preferably three – of the following traits and behaviours (in addition to adequate parenting knowledge and skills): 1) sufficient insight into their issues and other relevant factors that have contributed to their involvement with FACS; 2) good judgment in order to care for, protect and raise their children and to put their children's needs before their own; and 3) the ability to work honestly and cooperatively with FACS and any other people or organizations involved in the welfare of the children, in order to improve on the issues that led to the Society's involvement with the family." Dr. Amitay found that C.G. "was unable or unwilling to evince any of the abovementioned critical criteria for extended periods over the course of her involvement with child protection services."

[47] Similarly, Dr. Amitay found that "C.G. can execute instrumental parenting tasks such as cooking, cleaning or changing a baby's diaper reasonably well, and she can demonstrate at least good enough parenting in some regards. Unfortunately, various aspects of her personality, psychological functioning and other internal operations make her prone to maladaptive or harmful parenting practices."

[48] As noted by Dr. Amitay, "one of the oldest axioms in psychology/psychotherapy is that people cannot make changes in themselves if they are not adequately motivated and capable of introspecting, self-reflecting and sincerely acknowledging what needs to be changed; they must then demonstrate a genuine commitment to making such improvements in themselves and their lives." He went on to say that "in light of what appears to be a serious deficiency in these traits or capacities in C.G., there is little reason to expect that she would benefit sufficiently from clinical interventions such as Psychodynamic Therapy, Cognitive Behavioural Therapy and Dialectical Behavioural Therapy, or other kinds of formal psychotherapy that can lead to the kinds of changes in her personality, psychological profile, emotional intelligence and/or social/interpersonal functioning she seems to require."

[49] C.G. had only engaged in counselling for approximately eight months as of the SJM. The case notes from the counsellor note that as of June 27, 2018 (within three months of counselling), C.G. was reporting to the worker that she had made enough change to get her children back. The counsellor confirmed that she had not made that recommendation and could not, as she had not seen C.G. with her children.

[50] There were several other examples of situations where C.G. would convey things in a way that would excuse her behavior as predicated by Dr. Amitay.

[51] The counselling that has been undertaken by C.G. has not resulted in demonstrable changes. Of significance is the fact that there continues to be a lack of cooperation and truthfulness with the Society. As Ms. Currie notes, many of the examples provided are recent and not historical and therefore, do not support the conclusion that sufficient change has occurred. She continues to lack insight and has difficulty taking responsibility.

[52] Dr. Amitay's concluding words are also instructive. He states that "ongoing or current concerns include but are not limited to: reports that she has repeatedly interacted with her children in ways that seem cruel, overly controlling, unnecessary or otherwise (potentially) harmful to their wellbeing; apparent lack of insight into many of the past and ongoing child protection concerns; refusal to adequately acknowledge or admit to her highly suspicious, evasive and obstructionist conduct before and shortly after giving birth to [her twins]; alleged problematic interactions with or related to her children's caregivers; and test results that would suggest that she has not made satisfactory improvements in herself or her parenting that would sufficiently ameliorate the concerns outlined in this report."

[53] The PCA by Dr. Amitay is recent, thorough and conclusive. Given C.G.'s history and the ongoing concerns, I am not satisfied that the counselling received to date adequately addresses the protection concerns and that a trial is not needed to determine this issue. I am able to come to this conclusion based on the evidence before me. The SJM process allows the court in this case to make findings of fact which can be applied to the law to arrive at a fair, just result in a timely, affordable and proportionate manner.

What is in D.B.'s Best Interest

[54] The best interest factors are set out in subsection 74(3) of the CYFSA.

[55] D.B. has been in the care of the paternal grandparents for most of his life. He has only been in C.G.'s care for the first three months and in the paternal grandparents' care for almost three years. There is significant continuity of care that is relevant in this case.

[56] There is no question that D.B. is doing well in the paternal grandparents' care. They have provided a stable home, within the family unit. D.B.'s physical, mental and emotional needs are being met.

[57] With respect to C.G.'s attachment to D.B., Dr. Amitay notes at page 19 of the PCA:

"On one hand, the children's attachments/bonds to C.G. appear to have remained relatively intact, in spite of their extended separation beginning in their earliest years. On the other hand, any caregiver who visits with the children on a (semi-)regular basis would be expected to engage with them in much the same way as their mother did during the observed visit. This statement should not be misconstrued as a denigration of C.G., her parenting or her relationship with her children; rather, it is intended to maintain perspective with respect to what is often limited utility of using attachment/bonding as a criterion during permanency planning. Put another way, the answer to the remaining questions is far more useful in determining what type of living arrangements are in D.B. and [the twins'] best interests."

[58] The remaining questions are: a) whether C.G. has any psychiatric, psychological or other disorder or condition that may have an impact on her ability to care for her children; and b) the current and potential abilities of C.G. to meet the needs of her children, including an evaluation of the relationship between her and the children.

[59] Having made the findings that Dr. Amitay made in the PCA in respect of these 'remaining questions', return to C.G. was not recommended. In fact, Dr. Amitay stated that "a convergence of the information obtained from a variety of sources and methodologies over the course of this PCA suggests that it would not be prudent to return C.G.'s children to her care at present."

[60] Given the limited progression and the anticipated length of time that any sustained meaningful change will take, continuing D.B. in the paternal grandparents' care is clearly in D.B.'s best interest.

Access

[61] C.G. has asked the court to order unsupervised access if it finds that there is no issue requiring a trial in respect of the custody order sought by the Society. Counsel points to the notes of the supervised access visits as being minor issues not rising to the level of concerns requiring supervision.

[62] While I agree with counsel's comments in respect of that particular visit, of concern is the ongoing lack of candor and co-operation with the Society and service providers. C.G.'s access has been supervised for over three years now and she has not progressed beyond supervised access in part because of these concerns and lack of insight and judgment. I do not have evidence to suggest that this situation has changed.

[63] In addition, the paternal grandparents and J.B-B. report a hesitancy by D.B. in attending and engaging in visits whether in person or on the phone. There are reports of potential physical reactions (gastrological issues experienced by D.B. following visits). These issues need to be respected and monitored before moving forward with unsupervised access.

Order

[64] For the reasons set out above, the following order will be made:

1. S.B. and M.P. shall be granted sole custody of D.B. born on […], 2014 pursuant to section 102 of the CYFSA.

2. Access to D.B. by C.G. shall be supervised and at such times and with such frequency as S.B. and M.P. determine appropriate.

3. Access to D.B. by J.B-B. shall be as arranged between S.B., M.P. and J.B-B.

4. Any proposed changes to the custody and access arrangement are to be reported by S.B. and M.P. to the Society.

5. Any variation of this Order will be done under the Children's Law Reform Act and S.B. and M.P. shall be noted as the Applicant.

6. The supervision order made July 4, 2017 by J. Rogers is terminated.

Released: November 26, 2018

Signed: Justice B.C. Oldham