COURT FILE NO.: FC-10-2681-3 DATE: 20160802 SUPERIOR COURT OF JUSTICE - ONTARIO

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of The Children’s Aid Society of Ottawa v. I.C. et al.

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Children’s Aid Society of Ottawa, Applicant AND I.C. (Mother), and A.D. and A.T. (Fathers), Respondents

BEFORE: Madam Justice Mackinnon

COUNSEL: Marguerite Lewis, for the Applicant Wendy Rogers, for the Respondent I.C. Allison Lendor, for the child I.G.

HEARD: June 13, 14, 15, 2016

ENDORSEMENT

Introduction

[1] Should the Court grant Crown wardship of 13-year-old I.G. and 20-month-old Z.C. on a Motion for Summary Judgment brought by the Society? Both children have been in care beyond the statutory timelines prescribed by the Child and Family Services Act, R.S.O. 1990, c. C.11 [CFSA]. Or, should the Court conclude, as asked by the respondent mother, that there are genuine issues requiring a trial of the Society’s Application and her Answer to it?

[2] These issues are raised in the context of a process ordered by Justice Shelston on March 9, 2016, with the consent of the parties. Shelston J. fixed a timetable for the delivery of affidavits, required the Society to deliver its case by affidavit evidence, and permitted the mother to deliver affidavit evidence and to provide oral testimony in court. Additionally, he ordered that Dr. Wood, author of the Family Court Clinic Assessment, attend the motion to provide oral testimony and to be subject to cross-examination.

[3] For the reasons set out below, the Society’s Motion for Summary Judgment is granted. I find that both children are in need of protection and that Crown wardship is the disposition in the best interests of each child.

Overview

[4] On August 27, 2014, the mother called the Society requesting that I.G. be placed in care. She felt overwhelmed by her poor health and was expecting another baby soon. Additionally, Mr. D., Z.C.’s father, was harassing and threatening her. He had made a stabbing gesture with a knife towards I.G.’s hand. He was also said to have made a similar stabbing gesture towards the mother’s stomach during a hospitalization earlier in the month. Mr. D. had returned to Ottawa from Ghana on July 18, and was homeless. Even though he had sexually assaulted the mother three times early on in her pregnancy, she allowed him to stay in her home, with I.G. and herself, on the condition he stay clear of her. Despite his promise to do so, she had to have him removed by the police. She deposed that one reason she placed I.G. in care was to get away from the abuse of Mr. D. A temporary care agreement was signed for three months.

[5] On the day of his birth, Z.C. was apprehended from the care and control of the mother at the Ottawa Hospital. At the same time the Society sought an order that I.G. also be placed in its care. I.G. appeared to be very anxious about his mother and her emotional needs. The Society had received community referrals with respect to the mother, including from an attending physician. Based on previous file openings, the Society also had psychiatric reports pertaining to the mother. Despite several discussions with the Society, the mother had not established a satisfactory plan as to how she would parent the children on her release from hospital.

[6] The children were initially placed in the same foster home, where Z.C. still resides. I.G. was later moved to the foster home where his older sister, S., resides. She had become a Crown ward in January 2013. Both I.G. and S. continue to reside together in that home.

[7] The mother has had access to both children pursuant to temporary court orders. In June 2015, she declined to exercise access to I.G. She stated that she would not see him unless he was seen by a psychiatrist and moved to a different foster home. The mother’s testimony in court was that she took this stance in an effort to force the Society to take these steps. This resulted in a two-month hiatus in access with I.G.

[8] On May 17, 2016, the mother had a visit with both children, after which she declined to exercise any access to either of them. In her mind, she is protecting them by not seeing them. During her final visit, she was holding Z.C. on her lap with his back to her. He put a bottle cap in his mouth. The access supervisor, who was behind a glass window, banged on the window to get the mother’s attention because she did not think the mother knew he had done this. The mother was very upset by this intervention. She said she was aware and had asked Z.C. to give her the cap and trusted that he would. But, she also said that the banging was so loud that it made Z.C.’s heart race and she could see the fear it created in I.G. To her, the Society was bent on destroying her. She explained that she stopped seeing her children to protect them from being exposed to this type of situation again.

[9] The relationship between the mother and the Society is strained. Each side has different views about what caused this state of affairs. But it is agreed that after July 2015, the mother would only communicate with the Society by email or in the presence of a Family Services Ottawa Social Worker or her lawyer. Whereas the Society regards her as uncooperative, the mother testified that she humbly refused to work with unprofessional people who disrespect her and malign her.

[10] A Family Court Clinic Assessment was ordered on March 2, 2015. The report is dated August 20, 2015. The Clinic recommended Crown wardship with a permanent placement for I.G., and Crown wardship with a view to adoption for Z.C. With respect to the mother, the Clinic findings are summarized as follows:

I.C. presents with a complex psychiatric and personal history that has eluded an accurate diagnosis by multiple previous mental health professionals. However, each of her previous psychiatrists have diagnosed her with PTSD with some element of psychotic features. Her current presentation confirms the presence of both, although it seems that the psychotic illness reinforces elements of her PTSD. I.C., historically, has not been compliant with seeing a psychiatrist or taking medications on a long-term basis. She seems to be connected within the community, but her access to these resources appears to be intermittent, and directed mainly at her PTSD symptoms, leaving her psychotic illness unaddressed. I.C.’s history of traumas no doubt contributes to her reaction to stressors, and is likely psychologically associated with her rheumatoid arthritis symptoms. Although I.C.’s history of trauma should not be minimized, she also presented with other dramatic and implausible memories from her past, including very specific dates and astute memories, such as being raped at the age of three. She also provided grandiose and improbable accounts of other events, such as her children being toilet trained at eighteen months, being a singing coach for Rihanna, and having a novel being published and optioned into a movie. Interpreting the impact of her previous traumas is complicated by her inability to differentiate reality with fantasy.

[11] The impact on the children is described at p. 43:

…I.C.’s paranoia has had a direct impact on I.G., causing him distress and anxiety related to her deteriorating mental and physical state, and her discontinuing or discouraging his use of necessary medications. I.C.’s paranoia and odd beliefs seemingly influences her care for Z.C. as well. She repeatedly asserted that he had an allergy to green vegetables, causing her to increase her prednisone due to worsening of her asthma. I.C. also created an enmeshed relationship with I.G., where he has been assigned parental and adult duties as a result of her physical condition. A further concern is I.C.’s history of seemingly abdicating her children into the care of Children’s Aid, and showing a preference for infants and toddlers.

[12] The clinic found that I.G. was a special needs child, stating he continued to show delays along with defiant and anxious behavior. His mental health is a concern, including his level of anxiety and worry. The following is stated at page 44 of the Clinic report:

…As already mentioned, his level of anxiety and worries has been associated with his mother’s mental and physical health. It was also noted that some of his primary concerns in foster care were his mother’s safety and who would assist her. I.G. appears to have an anxious attachment to his mother, which is in keeping with the abovementioned behaviours. Because of his special needs, he will need to be in a safe and non-abusive home that can provide him with stability, affection and an age-appropriate level of responsibilities. His parental figures need to ensure that his many needs are addressed and must be able to manage and cope with these multiple needs. This includes an ability to work along with his school and health professionals, and to follow treatment recommendations. In addition, ensured participation in enriching, socialization activities with peers will be essential to improve his social interactions and his behaviours. However, the parenting figures must also model and promote healthy interactions as well. I.G. has an increased risk of developing a psychotic illness due to his genetic risk, which can be minimized by providing a stable and supportive environment.

[13] With respect to Z.C., the Clinic found:

Z.C., on the other hand, shows no evidence of any major psychiatric or developmental illnesses of childhood. He is reported to be very healthy and thriving in the stable environment provided by his foster home. However, he also has an increased genetic risk of developing a psychotic illness in later life, which can be mitigated or prevented through the placement into a stable and supportive environment. Our opinion is that I.C. will not be able to provide this type of environment on a long-term basis and, based on her repetitive history with CAS, Z.C. would follow the same pattern as his older siblings and develop similar mental health and attachment issues. Z.C. reportedly has an attachment to his foster family, and seemingly has not developed an emotional bond with either biological parent or I.G.

Process

[14] Rule 16 of the Family Law Rules, O. Reg. 114/99, governs summary judgment motions in child protection cases. The applicable sub-rules are 16(1), 16(4), 16(4.1), 16(6), 16(6.1) and 16(6.2):

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.

17. (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.

18. (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.

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

20. (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:

21. Weighing the evidence.

22. Evaluating the credibility of a deponent.

23. Drawing any reasonable inference from the evidence.

24. (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.

[15] The general principles applicable to motions for summary judgment are well established. The Supreme Court of Canada held in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 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.

[16] The Court then set out a “roadmap/approach” at para. 66:

[T]he 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…. 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…. 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.

[17] This Summary Judgment motion was organized in advance by Justice Shelston with a view to enabling the motion judge to exercise the enhanced fact-finding powers set out in sub-rule 16(6.1). The process he directed enabled the mother to provide five separate affidavits to the court, to testify in person, and to cross-examine Dr. Wood, whose report she regarded as the single most important piece of evidence against her case. In closing submissions, she submitted that perhaps the process gave the Society an advantage since its workers were not exposed to cross-examination. I disagree, for two reasons. She could have proceeded before the motion to cross-examine the Society deponents, as provided by the Family Law Rules, sub- rules 20(2) and (3). Alternatively, a request to cross-examine one or more of the Society’s witnesses during the motion could have been made to me as the presiding judge.

[18] By organizing the motion this way, in advance of the return date, the delay that would have been created by adjourning to obtain the oral testimony to enable me to exercise the additional powers under sub-rule 16(6.1) was avoided. This type of planned, focused format is also in line with the principle of proportionality, as codified in sub- rules 2(2) - 2(4) of the Family Law Rules, and in my view strikes the balance discussed by Justice Karakatsanis at paras. 27-28 of Hryniak, as follows:

…This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

…The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found.

[19] In my view the process adopted here met the particular needs of the parties before the court. It facilitated the timely and just resolution of the case, which also serves the interests of other litigants in an over-busy court.

Position of the Society

[20] The Society submits that there are two issues before the court and that there is no genuine issue requiring a trial in relation to either issue: 1. Are the children in need of protection pursuant to section 37(2) of the CFSA? 2. Is it in the children’s best interests to be made Crown wards? In support of its position the Society relies on the decision of Justice Parfett in Children’s Aid Society of Ottawa v. S.K., 2015 ONSC 4623, in which she summarized the considerations relevant to the application of summary judgment to child protection cases as follows:

[82] Other principles that courts have developed to determine the appropriateness of summary judgment include the following:

• “A triable issue is one which is relevant to the issues to be decided. The test is whether the question at issue is a foregone conclusion. There may be a factual dispute on an issue, but that does not necessarily raise a triable issue if the balance of the admitted and undisputed evidence leads to an inevitable outcome. If, for example, it is a foregone conclusion, based on the admitted and undisputed evidence, that the best interests of the child require an order for Crown wardship, then there is no genuine issue for trial. While there may be issues to be decided, the question is whether they are issues that require trial.” • Parties must put their best foot forward; in other words, they “must lead trump or risk losing.” • The moving party has the onus of establishing there is no genuine issue requiring trial. Once the moving party establishes a prima facie case, the onus shifts to the responding party to show that there is a genuine issue requiring trial. The determination of whether there is a genuine issue requiring trial is specific to the circumstances of a particular case including the nature of the order being made. • “While it may not be appropriate in the face of the child’s best interests and the new rules to suggest that the parent’s position must be ‘untenable’ in order to resort to summary proceedings, it is clear that the nature of the evidence to be before the court, the reasonableness of any potential plans and the statutory time frames all have a role to play in the determination of whether there is a genuine issue for trial.” • The legal process is not to be used as a strategy to “buy time” to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a parent’s heartfelt expression of his desire to resume care of the child; the parent’s evidence must support that he faces better prospects than what existed at the time the society removed the child from his care and that he has developed new parenting skills. [Footnotes omitted.]

[21] I am satisfied that the Society has established a prima facie case that there is no genuine issue requiring a trial in relation to both issues.

[22] With respect to the protection finding, I.G. was at risk of physical harm when his mother allowed Mr. D. to reside with them in July and August 2014. He was also at risk of emotional harm having regard to his special needs given:

1. Academic delays that have required an individualized education plan;
2. Aggressive behaviors in multiple settings; and
3. Significant anxiety symptoms that impaired his functioning.

[23] I.G. has an anxious attachment to his mother, is overly concerned with her needs, and is overly apologetic to her during access. Whereas the mother regards I.G.’s frequent apologizing to her as positive, Dr. Wood and Dr. Palframen suggest he has nothing to apologize for, and this may in fact reflect a fear of abandonment by her.

[24] Z.C. has never lived with his mother; however, she did not have a workable plan in place at the time of his birth. As of September 10, 2014, she was residing in a shelter that did not have resources to support her in caring for a baby. By September 15, she advised the Society that she had left the shelter and was staying with a friend because another woman was taking her food at the shelter. On September 18, the mother had proposed four different individuals who could help her and the new baby, including her daughter S., who is a Crown ward and is still in high school, a niece who resided in Barbados and a Personal Support Worker who she thought could come in twice a day. On September 19, she named a male who she intended to bring over from Barbados to help her.

[25] Accordingly, when Z.C. was born the mother did not have a suitable plan in place for his care with her, which put him at a risk of physical harm if he were to reside with her.

[26] The observations made by the access supervisor also established a risk of physical harm to Z.C. were he in his mother’s care. He often seeks comfort from the supervisor, not his mother; he often cries at length and his mother does not or cannot comfort him; she often had trouble completing his diaper changes; she often relied on I.G. or a Society worker to assist in supervising Z.C. An access supervisor has observed that the mother has unrealistic expectations for Z.C.’s stage of development, stating that he should be toilet trained and speaking by thirteen or fifteen months of age. On other occasions she has either neglected to allow Z.C. to nap when he was tired, or conversely, thought he should not nap when he did appear tired.

[27] That Z.C. would be at risk of emotional harm if placed in his mother’s care is amply established by Dr. Wood. According to his assessment, Z.C. is at increased genetic risk of developing a psychiatric illness in later life, which can be mitigated or prevented through placement into a stable and supportive home, which his mother will not be able to provide on a long-term basis. Rather, based on the mother’s repetitive history, Z.C. would likely follow the same pattern as his older siblings and develop similar mental health and attachment issues.

[28] The Society has also established a prima facie case that Crown wardship is the available disposition that is in the children’s best interests. Both children are doing well in their current placements. Their mother refuses to obtain what Dr. Wood describes as “non-negotiable” treatment for her mental health, including the use of antipsychotic medication. This is an initial requirement before consideration could be given to placing either child in her care.

Position of the Mother

[29] The mother opposes the motion and submits that there are several genuine issues requiring a trial:

1. Whether the children are in need of protection.
2. Whether the society has met its statutory obligation to work with her towards a successful return of the children.
3. Whether the requirement in s. 57(4) of the CFSA to consider placement of a child with a relative, neighbour or other member of the child’s community before making an order for Crown wardship has been met.
4. Whether deficiencies in the Family Court Clinic Assessment are sufficient to call its recommendations into question, thereby requiring a trial.
5. Whether the children’s best interests are to return to her care.

I will address each of these in turn.

[30] The mother submitted that she was never told why the children were apprehended. She infers that there was no adequate reason, then extrapolates that the children are not in need of protection. I find that the mother was very clearly advised of the reasons for the apprehensions in both the Protection Application and the affidavit in support of the motion for temporary care and custody. Both documents were served upon her on September 27, 2014. The affidavit was 24 pages long.

[31] In addition, Z.C. was apprehended by warrant, and a judge made a temporary care and custody order in favour of the Society on September 29, 2014.

[32] There is no doubt that there were ample grounds for the apprehensions and that the mother was provided adequate information about them.

[33] Whether the children are in need of protection is a separate issue. In its initial Application, the Society alleged that the children were at risk of physical harm. In February 2016, the Society amended its Application to seek Crown wardship and to add an additional ground for the protection finding, namely emotional harm and the risk of emotional harm, as defined in ss. 37(2) (f) and (g) of the CFSA.

[34] I am satisfied that there is no genuine issue requiring a trial of whether the children are children in need of protection. I.G. was at risk of physical harm in July and August 2014 when his mother allowed Mr. D. to live in her home. The mother did not have an appropriate plan in place for the care of him and the baby at birth.

[35] The mother’s parenting of Z.C. during access visits reveals inattention to his needs or cues and to his safety. The evidence provided by the access supervisors is a cause for concern. There were occasions in which Z.C. appeared tired but was not put to sleep, was fussing but she did not console him or needed to be told how to settle him. When the supervisors expressed concern that she did not follow the cues of Z.C., the mother viewed this as code for “do not breastfeed the baby”. The mother did not show insight into her shortcomings that might indicate the potential for future change.

[36] I have already discussed part of the May 17 visit, but other problems were also apparent during that visit.

[37] The mother does not demonstrate sufficient control of her own feelings and impulses, in a way that shows she has the ability to prioritize the children’s needs. She tends to focus on what is important to her rather than addressing what is important to the child. The two occasions of cancelling access, first with I.G. and then with both children, are the clearest example of this.

[38] The opinions of Dr. Wood with respect to the impact the mother’s mental health will likely have on each child supports my conclusion that she poses a risk of emotional harm to them. I.G. has already experienced emotional harm as demonstrated by the level of anxiety he experiences in relation to his mother’s well-being.

[39] The Society described significant difficulties working with the mother, given her refusal to meet with them. Reasonable efforts were made to set up meetings with her, with her lawyer or another support person present. These efforts were largely unsuccessful.

[40] The mother’s view that the Society did not try to work with her, but rather ignored all of her concerns about the children is not supported by the evidence. The concerns about the children’s mistreatment and ill health while in care were not proven. No other witness corroborated the issues she raised. To the contrary, while the mother regarded I.G. as pre-diabetic and felt he required a special diet and that his blood sugar should be monitored, he was not diabetic and no first-hand evidence of any medical practitioner supported the mother in her views. The mother repeatedly alleged that S. was physically abusing I.G. in care, but I.G. did not report that to Dr. Wood, Rather, I.G. told Dr. Wood he liked living with S. and with their foster mother.

[41] The mother acknowledged that she would not communicate with the Society workers unless her lawyer or a FSO social worker was present. She said this was because the workers were disrespectful of her, laughed at her behind her back and dismissed her concerns, reportedly telling her to “deal with it”. The mother also acknowledged that she referred to the Society as “the dragon”, to one worker as “Godzilla” and to another as “Ms. Pig”. She also testified that she did not support either child’s foster placement because both of the foster mothers disrespected her in front of her children.

[42] I concluded that the mother has difficulty cooperating with persons with whom she disagrees. One example is that she authorized her chosen Family Services Ottawa (FSO) social worker to communicate with the Family Court Clinic, but felt her letter was non-supportive and “removed this person from my sphere of influence”, thereby eliminating another method of contact with the Society.

[43] I agree with Dr. Wood that the mother lacked insight into her own contribution to the problems she is experiencing. Primary among examples is her rude and dismissive attitude to the Society workers.

[44] Section 57(4) of the CFSA requires the court to consider placement of a child with a relative or other member of the child’s community before making an order for Crown wardship. The mother testified that she had provided the Society with the names and phone numbers for Z.C.’s godparents and of a colleague in her church, both of whom she said had indicated a willingness to provide a placement for her children. She testified that they had never been contacted by the Society. The court did not receive any evidence from these individuals.

[45] If they were ready to step forward to present a plan for one or both children there ought to have been direct testimony from them before the court. It is well known that at a motion for summary judgment “parties must put their best foot forward, in other words, they must lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547.

[46] The mother raised several issues with the process followed during the Family Court Clinic Assessment. The Clinic had been requested to have a female present whenever a man was meeting with the mother because of issues pertaining to her PTSD. Despite this, Dr. Wood met with her on his own. He explained that the Clinic did not have the capacity to meet the request and that the mother seemed comfortable in his presence and did not tell him that she was not. Dr. Wood testified that he referred the mother to a female psychiatrist for a second opinion to be sure his findings were not impacted by the effect of his gender on her.

[47] It is not enough to submit, as the mother does, that not having a female staff person present during her interviews with Dr. Wood “might have” or “ could have” impacted them. That submission is conjecture not supported by evidence.

[48] Interestingly, the mother was favourably impressed by a male resident who was present during her first session with the female psychiatrist.

[49] The mother also complained that the female psychiatrist to whom Dr. Wood referred her for a second opinion was unprofessional. She testified that this doctor had put her feet up on her desk and exposed her underwear. She did not want to see her again, even though Dr. Wood had arranged for early appointments for her so that she could start the therapy he recommended for her without the usual waiting time to see a psychiatrist.

[50] In submissions, the mother also questioned the qualifications and credentials of this physician. Asking questions, especially in the absence of taking reasonable, available steps to have them answered, does not establish a genuine issue for trial.

[51] The mother next submitted that her home observational visit with the children had been sabotaged by the fact that she had been expecting the Clinic’s social worker to arrive at her house with both boys, whereas they were delivered separately. I.C. arrived early, whereas Z.C. was delivered 10 minutes late and picked up 10 minutes early. I did not understand how these events could amount to “sabotage”.

[52] Dr. Wood’s opinions were challenged on the basis that his written report was dramatically different from what he had told the mother it was going to say. She testified he had told her that he had not found anything wrong with her, mentally or physically. But she says he told her he would need a second opinion in case the Society questioned him on this or fought his recommendations.

[53] The mother also testified that Dr. Wood had shouted at her. She said he had tried to awaken her three-year-old self and he wanted her to hate her mother, but she did not. The mother felt a more helpful approach would have been to focus on how she was now and moving forward.

[54] My observations of the mother during her testimony matched up with Dr. Wood’s opinions. He testified that she invented improbable events, not to lie, but not in keeping with reality. I also observed this. One example was her description of almost identical conduct by a Society worker and by the female psychiatrist (legs up, exposing underwear) which the mother described both times as lewd and unprofessional.

[55] As did Dr. Wood, I observed the mother to be disorganized in her speech and thought, moving rapidly from one thought to another with little apparent connection. She is very articulate, but as Dr. Wood also observed, vague and circumstantial in some of her statements. By way of example, she described one Society worker as “a gale force wind of destructive nature”, adding that she never knew what was coming next.

[56] Dr. Wood reported several examples of thoughts expressed by the mother that showed odd beliefs or were divorced from reality. For example, she described Z.C. as swimming around and making decisions in her womb. She said she had to increase her asthma medication because she was allergic to green vegetables, which Z.C. ate. She said the fumes from his excrement worsened her condition.

[57] I also observed this in the mother’s testimony in relation to the children. As to I.G., she testified that she had to stop seeing him in June 2015 to force the Society to change his foster home and take him to a psychiatrist for treatment. She was unable to explain how this might be successful or to demonstrate a real understanding of the impact her not seeing I.G. would have on him.

[58] Similarly she terminated her access to both children in May 2016, in the belief this would prevent them from being damaged by seeing her treated disrespectfully by the Society, yet apparently not understanding how the children, especially I.G., would react to this decision on her part.

[59] Very importantly, despite Dr. Wood’s recommendations and the arrangements he made for her to be seen immediately, the mother has refused to go back to the female psychiatrist. Instead she says she has returned to her community supports. This repeats her pattern of not adhering to psychiatric treatment from one physician, including therapy and medication, that would enable her to address the mental health issues that are at the core of her parenting problems. Dr. Wood explained the difficulty in getting a clear picture of the mother’s mental health because of her intermittent attendance and frequent changes of treating physicians, and her failure to follow their advice in preference for her chosen community supports. His testimony was that it was “non-negotiable” that the mother actively participate in psychiatric services and treatment by one physician on a long-term basis; were consideration given to returning either child to her.

[60] The mother asks the court to place both children with her under a supervision order or a voluntary service agreement. In my view, these proposed dispositions are clearly not capable of being found at a trial to be in either child’s best interests. For either proposal to have any prospect of success, the mother would have to show some ability and intention to cooperate with the Society and to obtain ongoing psychiatric treatment for herself. Neither was demonstrated by the record of evidence before me.

Child’s Counsel

[61] Counsel for I.G. advised that he describes a bond with his mother and is usually very positive about her. He has expressed the wish to live with her and Z.C., but recently his preference is to live with Z.C. and with his current foster mother.

[62] His mother’s decision for the second time to stop access with him has impacted him. I.G. has asked his counsel a few times why his mother decided to stop access. He does not want to never see her again.

[63] I.G. is unsure whether Z.C. can move to his foster home, and if he cannot, I.G. does want to visit his brother. Alternatively, if he himself were moved to live with Z.C., he would like to be able to visit his foster mother.

Conclusion

[64] In determining whether there is a genuine issue requiring a trial in this case, I am mindful of the need for the Court to be cautious in granting a summary judgment motion for Crown wardship in line with the principles of justice, fairness and the best interests of the children are at the heart of these proceedings.

[65] In my view, the summary judgment motion process used here did enable the court to reach a fair and just determination of the issues in this case. I am persuaded that there are no genuine issues requiring a trial, that the children are in need of protection and that Crown wardship is the disposition that is in each child’s best interests.

Access

[66] I also conclude that there is no genuine issue as to whether an access order should be made in favour of the mother to Z.C., as a Crown ward. He is not yet two years old. He is a child who will be readily adopted. The mother’s disparaging remarks about his foster home and foster mother are indicative that she will not support an adoptive placement. Further, no submissions were directed in relation to Z.C. and the onerous test required to be met in order to enable the court to award the mother access to him as a Crown ward.

[67] The CAS and I.C.’s counsel submitted there should be an order granted to I.G. permitting him to have access to his mother. This is supported by I.G.’s stated preference and by Dr. Wood who testified it would be hard on I.G. not to have any contact with his mother. Given the mother’s unfounded allegations of abuse and neglect by I.G.’s foster parents, any access, whether by telephone or in person, shall be supervised. Access in person shall not exceed once per week and the frequency and duration should depend on whether the contact is positive for I.G. and whether he wants it to continue.

[68] I make this order knowing that in May 2016 the mother decided to discontinue access to I.G. for the second time. It may be that even if I.G. requests a visit with her that she will refuse to attend. In my view, were that to happen, the Society should not attempt to initiate any further contact between I.G. and his mother without seeking professional advice from the Family Court Clinic or a child psychiatrist.

[69] It is readily apparent that I.G. and Z.C. should enjoy orders enabling each of them to have access to the other, and I so order.

The Honourable Madam Justice Mackinnon

Date: August 2, 2016

COURT FILE NO.: FC-10-2681-3 DATE: 20160802 ONTARIO SUPERIOR COURT OF JUSTICE RE: The Children’s Aid Society of Ottawa, Applicant AND I.C. (Mother), A.D. and A.T. (Fathers) BEFORE: Madam Justice Mackinnon COUNSEL: Marguerite Lewis, for the Applicant Wendy Rogers, for the Respondent I.C. Allison Lendor, for the child I.G ENDORSEMENT J. Mackinnon J. Released: August 2, 2016