WARNING

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

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

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

The court may make an order,

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

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

(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

Court File No.: TORONTO C50668/10

Date: 2012-03-16

Ontario Court of Justice

Parties

Between:

CHILDREN'S AID SOCIETY OF TORONTO, Applicant

— AND —

T.M.1 (mother)

D.F. (father of T.M.2 and A.M.)

R.H. (father of E.H. and J.H.)

S.P. (maternal grandmother)

B.Y. (maternal grandfather)

D.H. (paternal grandmother)

Respondents

Before: Justice Marvin A. Zuker

Heard on: November 17, 2011 and February 23, 2012

Reasons for Decision on Summary Judgment Motion released on: March 16, 2012

Counsel

Nancy Thompson — for the applicant society

Herbert James Stover — for the respondent mother

Gabrielle Pop-Lazic — for the respondent father of T.M.2 and A.M.

B. Keyshawn Hyacinth — for the respondent father of E.H. and J.H.

Mary Kodric — for the respondent maternal grandparents

D.H. — respondent paternal grandmother on her own behalf

ZUKER J.:

The Motion

[1] The applicant seeks an order pursuant to Rule 16 of the Family Law Rules for Summary Judgment as follows:

[2] An order pursuant to section 47(2) of the Child and Family Services Act that statutory findings be made for children T.M.2 (female, born […], 2003), A.M. (female, born […], 2007), E.H. (male, born […], 2010), and J.H. (male, born […], 2011).

Background Facts

[3] The children T.M.2 and A.M. were apprehended in the City of Toronto on March 24, 2010. The child E.H. was apprehended in the City of Toronto on November 25, 2010. The child J.H. was apprehended in the City of Toronto on May 8, 2011.

[4] The M./F…/H. family consists of:

• T.M.1, mother
• D.F., father of T.M.2 and A.M.
• R.H., father of E.H. and J.H.

[5] The children, all of whom are subjects of current child protection proceedings:

• T.M.2, DOB […], 2003
• A.M., DOB […], 2007
• E.M., DOB […], 2010
• J.H., DOB […], 2011

[6] T.M.2 and A.M. are currently in the care and custody of their maternal grandparents, B.Y. and S.P., pursuant to terms of a temporary supervision order. Prior to the Society's involvement, B.Y. and S.P. were providing care for the two girls on a regular basis.

[7] E.H. and J.H. are currently in the care and custody of their paternal grandmother, D.H., pursuant to terms of a temporary supervision order.

[8] More specifically, the Society's motion is for summary judgment seeking the following dispositional orders:

An order pursuant to section 57.1(a) of the Child and Family Services Act that the children T.M.2 and A.M. shall be placed in the custody of B.Y. and S.P., the maternal grandparents, with access to T.M.1 and D.F. as agreed to by B.Y. and S.P., which order is deemed to be made under section 28 of the Children's Law Reform Act.

An order pursuant to section 57.1(a) of the Child and Family Services Act that the children E.H. and J.H. shall be placed in the custody of D.H., the paternal grandmother, subject to the supervision of the Children's Aid Society of Toronto and pursuant to following access conditions:

• Access to R.H.: frequency at the Society's discretion. R.H. may have access to the children at the home of paternal grandmother D.H. and shall be supervised by D.H. or T.H..
• Access to T.M.1 to be a minimum of two times per week as arranged by T.M.1 and/or D.H. or T.H..
• T.M.1 and R.H. shall not have access to the children at the same time.

Procedural History

[9] On March 29, 2010, Justice Sherr made a temporary order placing T.M.2 and A.M. in the care and custody of B.Y. and S.P., subject to Society supervision. He further made a temporary order placing E.H. in the care and custody of T.M.1, subject to terms and conditions. There were terms preventing R.H. from residing or attending at T.M.1's home while any of the children were present, from having any unsupervised access with E.H. and prohibiting T.M.1 from exposing the children to adult conflict. T.M.1 was to follow through with programs and services recommended by the Society and its collaterals.

[10] On September 9, 2010, the Society learned that T.M.1 was pregnant with her fourth child, R.H. being the father.

[11] On November 25, 2010, E.H. was apprehended from T.M.1's care when R.H. was found hiding in T.M.1's apartment. E.H. was in the home at the time. R.H. was arrested by the police in connection with a previous assault charge involving T.M.1 and bail conditions preventing contact between them.

[12] T.M.1, historically, did not attend TAP as recommended or programs to address the identified protection risks to her children. On January 17, 2011, Justice Sherr made a temporary order placing E.H. in the temporary care and custody of the child's paternal grandmother, D.H., subject to terms of Society supervision, where he has remained to date.

[13] In March 2011, overnight access between D.F. and T.M.2 and A.M. was suspended due to an alleged incident of domestic violence between D.F. and his partner. Access was reinstated in July 2011.

[14] On […], 2011, T.M.1 gave birth to J.H.. Due to the ongoing concerns regarding T.M.1, J.H. was apprehended and placed in foster care. Access was scheduled at twice weekly. On May 17, 2011, T.M.1 resumed access on a weekly basis with T.M.2 and A.M.. They were part of T.M.1's access visits with J.H.. This access was discontinued in June 2011 as T.M.1 frequently cancelled visits due to her work schedule.

Positions of the Parties

R.H.

[15] R.H. consents to a dispositional order that E.H. and J.H. be placed in the care and custody of D.H. (paternal grandmother) pursuant to Society supervision for six months subject to the following access terms:

• Access between R.H. and E.H. and J.H. to be unsupervised and to be arranged between him and D.H. and/or T.H.
• T.M.1 and he shall not have access to the children at the same time.

[16] R.H. stated:

"Although we [T.M.1 and R.H.] are no longer in a relationship, we remain friends.

"I do not have anger issues and I am able to work co-operatively with T.M.1 and the Society in furtherance of our children's best interests.

"My plan is for the children, E.H. and J.H., to be placed with my mother and sister (D.H. and T.H.) and that I be allowed to have unsupervised access to them.

"I have had regular access to both E.H. and J.H.. I attend on time for all of my visits and we bond well together.

"I deny ever providing T.M.1 with any money for the purpose of gambling.

"I deny ever using physical discipline on A.M. or T.M.2 and I deny ever hitting either of them with a belt or ever hitting either of them at all.

"I have the support of my mother, D.H., and my two sisters, T.H. and N.H.. I also have the contact information for the boys' doctor (Dr. Marat), who[m] I am prepared to call should a need arise. I recognize that E.H. and J.H. are still very young and require a lot of attention. I am, however, capable of having unsupervised access with my sons.

"I concede that my criminal record is lengthy. However, the majority of these incidents occurred more than ten years ago. I am no longer involved in any type of criminal activity. I have had some assault convictions but mostly with respect to disputes with my former colleagues. I have never assaulted T.M.1 or any of our children. I continue to work on bettering myself so that I can play a more active role.

"The genuine issues for trial include whether E.H. and J.H. were ever in need of protection and whether or not my access should be supervised."

Statutory Findings

[17] On November 17, 2011, this court made statutory findings for T.M.2 and A.M. and E.H. and J.H. as sought in the Society's Notice of Motion returnable the same date, pursuant to section 47(2) of the Child and Family Services Act. This court also found that all four children were in need of protection pursuant to section 37(2)(b) of the Child and Family Services Act.

T.M.1's Background

[18] T.M.1 was made a Crown ward at eight years old due to her biological mother's drug and alcohol use. While in care, T.M.1 was sexually abused by her grandfather and foster brother. T.M.1 was placed on adoption probation with B.Y. and S.P.; however, the adoption was never finalized due to T.M.1's behavioural issues. T.M.1 was previously assessed by Dr. Daniel Fitzgerald as having an emerging borderline personality disorder. T.M.1 moved back and forth between foster homes, group homes, treatment programs and the homes of B.Y. and S.P. and her biological mother. T.M.1 was eventually placed in the Society's Independent Living Program.

[19] As an adult, T.M.1 became involved with the Society on May 16, 2003, when she was expecting her first child. T.M.1 was not pleased about having an open file with the Society; however, she did agree to the transfer to family services. T.M.1 signed a Voluntary Working Agreement ("VWA") on June 20, 2003, which expired on December 20, 2003.

[20] The file was transferred from Long-term Care Worker Eva Piotroski to Andrea Looby. T.M.1 gave birth to a baby girl, T.M.2, on […], 2003. The child's birth weight was appropriate and the child was born without health concerns. T.M.1 took the baby home from the hospital. Christina Gray-Hall was assigned as the High Risk Infant Nurse to T.M.1 and the baby.

[21] On June 16, 2003, the Society received an Emergency After Hours Service ("EAHS") report from P.C. Serachan (#99515) at 14 Division indicating that police were called to the M. home as a result of a call that a person had a gun. According to the police report, T.M.1 was in the home with two friends and the baby when the child's father, D.F., attended and refused to leave. The visiting females in the home reported that D.F. had a gun and waved it in their face. The baby was not harmed and T.M.1 reportedly took the baby into the bedroom to avoid the conflict. T.M.1 was not co-operating with the police. T.M.1 disclosed that D.F. had thrown a glass at the wall (about 2-3 metres from where the baby was sleeping in the crib) and was yelling at her friends.

[22] T.M.1 reported ongoing conflicts with T.M.2's father, D.F.. In November of 2004, T.M.1 returned to Massey Centre. T.M.1 indicated a wish to sever contact with D.F.; however, she continued to have ongoing contact with him. In February of 2005, T.M.1 again reported a domestic dispute with D.F.. T.M.1 was very upset during a conversation with the worker, advising that she wanted counselling as she wanted to understand why she "still loves him."

[23] The worker referred T.M.1 to the Transitional Support Program at Flemingdon Neighbourhood Services. T.M.1 met with the worker and they began the process of applying for a spot in subsidized housing. In May of 2005, T.M.1 was accepted into subsidized housing and moved in June of 2005.

[24] At the time, T.M.2 appeared to be meeting her milestones, there were no concerns reported by T.M.2's paediatrician or from daycare regarding her care or development. T.M.2 was spending approximately 3-4 days a week in the care of her maternal adoptive grandparents, the P.s. She was enrolled in full time daycare and the file was closed.

T.M.1's Statement

T.M.1 stated:

"R.H. and I no longer have a couple's relationship. He had been physical with me on two occasions in the past. This never occurred in the presence of the children.

"I am of sound mental health. I am not prescribed to take any medications. I am not under the care of a psychiatrist, psychologist or counsellor.

"In connection with the Society's concerns re gambling addiction, I am free of any gambling addiction.

"I do admit to spanking A.M. with a tap of my hand on her bum. No pain was inflicted, no bruising ensued. I understand now that notwithstanding no pain or bruising, it is not an acceptable practice.

"I apologize for not following the order of Justice Sherr.

"My access with the girls [T.M.2 and A.M.] is positive.

"Because of my current school and work schedule, I do arrive tired at visits [with E.H. and J.H.] some times. I am always there Saturdays and Sundays. Most of our visits are on the premises. I read and play with boys. I feed J.H. and give E.H. a bath. I help out with household chores while I'm there. The children and I enjoy the visits very much. I look forward to going, but not leaving.

"I attended the Safe to Share program for about eight to ten sessions. I also attend a program called Understanding Abuse. Both D.F. and R.H. have been physical with me and I need to understand why this happened and to help me in my judgment of choosing a partner.

"I am seeking to have all the children returned to my care and custody. If not, liberal, unsupervised, overnight access to my children."

D.F.

[25] D.F. is the father of A.M. and T.M.2. He supports T.M.2 and A.M. with B.Y. and S.P. but he believes that he should have regular overnight access with them and should have responsibility for making decisions regarding their religious upbringing.

[26] Because of their age, D.F. submits that the maternal grandparents may not be able to keep up with the children's physical needs. With regular overnight access, he could ensure that they participate in regular physical activity and give them the opportunity to continue bonding.

[27] He wants to ensure that his girls continue to be exposed to aspects of their cultural heritage, which B.Y. and S.P. cannot do.

S.P. and B.Y.

[28] They support the CAST request to have T.M.2 and A.M. placed in their custody and continue to be willing to facilitate access with D.F. and T.M.1. Currently D.F. has overnight access once per month, and they are requesting that this overnight arrangement remain unchanged.

S.P. and B.Y. stated:

"We are in agreement that D.F. have access during Christmas and Easter and other holidays as may be arranged. We also agree to consult with D.F., and keep him informed regarding the girls. We do not agree that D.F. should have decision-making authority regarding religious issues. If D.F. wishes to take the girls to church on Sunday during his scheduled access, we have no objection. We regularly involve the girls in culturally appropriate activities and will continue to do so. We are asking that the overnight access be specified from Saturday 10:00 a.m. to Sunday at 1:00 p.m., the second Saturday of each month. We are of course open to arranging such additional access as can be agreed.

"We are not agreeing that D.F. travel to Jamaica with the girls, as we feel they are too young to travel so far, and to be away from their primary caregivers for an extended period of time. In the past we have travelled with T.M.2 outside Ontario, for instance camping in New York, and also to Cuba several times. We also have family in the United States, and would like to introduce [the girls] to them.

"We cannot travel this way with A.M., because she does not have a passport, and T.M.2's is about to expire. We are requesting that this court make an order dispensing with the consent of T.M.1 and D.F. obtain a passport and to consenting to travel outside the country. We will advise both parents when we intend to travel, and will provide all details of travel and a contact number. If any access would be missed we will of course arrange makeup access.

"The access with T.M.1 has at times been problematic. We do not wish to provide supervision for the visits at this time, as this has led to conflict in our home, but are open to this possibility in the future. Currently T.M.1 has visits on Saturday for three hours, supervised at the CAS office. She attends less than 50% of the visits and usually arrives late. We are asking that access take place at an APCO centre, located at Jane & Wilson on Sundays for two hours, on the second and fourth Sundays of each month, from 2:00 p.m. to 4:00 p.m.

"T.M.1 has missed more than fifty percent of her visits with the girls. This does not include the Tuesday visits that she cancelled a year ago. She generally only stays for two hours on the Saturday visits, despite the visits being scheduled for three hours. Just this past weekend, she had promised the girls that she would see them on Saturday, and they would make valentines for their classmates. On Friday evening she called our home to say that she would be working Friday night, and would come directly from work.

"We believe it is in the girls' best interest to have a relationship with their father [D.F.]."

[29] With respect to T.M.2 and A.M., D.F. is consenting to the order that B.Y. and S.P. be granted custody, provided his access is protected. B.Y. and S.P. are also consenting to the custody order. They are prepared to maintain the parents' access to the children. T.M.1 is not consenting to this custody order.

[30] With respect to E.H. and J.H., D.H. is consenting to their being placed with her for six months, subject to Society supervision. R.H. is consenting to the supervision order. However, he is seeking unsupervised access. T.M.1 opposes this order. She wishes all of her children to be returned to her.

Society's Concerns

[31] The Society has protection concerns around T.M.1's parenting ability, her issues around adult conflict, lack of insight into how her behaviour and decision-making impacts on her ability to protect her children, as well as her lack of consistency in attending the therapeutic access program and counselling at Catholic Family Services.

[32] T.M.2 has been largely in the care of her maternal grandparents since she was one year old. A.M. has been basically in the grandparents' care since March 25, 2010. T.M.1 again has not maintained a consistent access schedule.

[33] J.H. and E.H. have been in the care of their paternal grandmother, T.H., since January 11, 2011, and June 15, 2011, respectively.

[34] R.H. is seeking unsupervised access to these children. R.H. has attended the Yorktown COPE finding solutions parenting program, but the Society submits that his access must be supervised.

Ms. Kodric's Submissions (for Maternal Grandparents)

[35] Ms. Kodric submits that T.M.2 and A.M. have been in the custody of their grandparents, B.Y. and S.P., going on two years in March. T.M.2 was in their custody for nearly a year before that. There continues to be a very conflicted relationship between T.M.1 and the Y.-P. family.

[36] Ms. Kodric further submits that T.M.1 has voluntarily limited her access. She had weekday access Tuesdays, which she terminated. She has access now on alternate Saturdays, scheduled for three hours, but she exercises only two. T.M.1's access is on alternate Saturdays through the Children's Aid Society. Ms. Kodric submits that the supervision of access be moved to a supervised access centre, an ABCO centre. T.M.1 should have access the second and fourth Sunday of each month for a period of two hours at the ABCO centre located at Jane and Wilson. Her clients request that T.M.1 call a half hour before any scheduled visit to confirm that she will in fact be attending that visit. D.F. currently has access one overnight per month. D.F. wants cultural heritage and religious upbringing to be provided to the children.

[37] S.P. and B.Y. are asking for an order dispensing with the consent of the parents to obtain passports for the children and dispensing with the parents' consent to travel. They are prepared to provide any information, advance notice of travel and to make up missed visitation while they travel with the children. D.F. opposes this.

Gabrielle Pop-Lazic for D.F.

[38] D.F. is not opposed to an order granting custody to the grandparents pursuant to Section 57.1 under the Child and Family Services Act. However, he is seeking a specified order for access under Section 58 of that Act.

[39] It is D.F.'s position that, with respect to the order the Society is seeking, which is access as agreed to by the paternal grandparents, this is an improper delegation of authority to determine access and is outside of the jurisdiction of this court to make that order.

[40] That is, it is not appropriate to delegate access to a neutral third party. It would be highly unusual to grant the maternal grandparents the discretion to determine when and how access should take place. D.F. is seeking regular access with T.M.2 and A.M. every other weekend, from Friday after school until Sunday evening and one evening per week as may be arranged. He also seeks access with his children at Christmas, Easter and during school holidays and summer vacations as might be arranged.

[41] D.F. wishes to be able to contact the children by telephone whenever he wishes, for B.Y. and S.P. to inform him and consult him regarding all major decisions pertaining to children's education and healthcare, and to be entitled to obtain information regarding their school, healthcare and extracurricular activities directly from the third-party care providers of those services.

[42] He seeks authority to make decisions with respect to their religious upbringing. He submits that it is in their best interest to have as strong and as close a relationship as they can with as many of his family members, including their parents and their grandparents, to ensure that, in the future, they will have the support of as broad a net of people as possible.

[43] D.F. would like to be able to travel with them to Jamaica. He seeks permission to do that.

[44] Ms. Kodric submits that D.F.'s current access is one overnight a month and that was suspended while there is an investigation of an incident involving him and his current partner whom he lives with on most weekends. According to Ms. Kodric, the children have reported spending most of the time with his partner, Christine, and her children.

[45] The access order should be one overnight per month. Her clients are agreeable to D.F. having access over Christmas, but he has not exercised Christmas access to the children since they were infants.

[46] Ms. Kodric submits that it is part of any normal family activity that they be permitted to travel with the children and that it be expedited by dispensing with a consent.

Mr. Hyacinth (for R.H.)

[47] R.H. supports the Society with respect to placing younger children, E.H. and J.H., with the paternal grandmother. He does not support the Society on the issue of access. R.H. is asking for a minimum of two hours per week, with unsupervised access in the community, and unsupervised access for now at the home of the paternal grandmother and the paternal aunt. Mr. Hyacinth submits that this is a triable issue.

[48] The Society submits that, while R.H. has engaged in a couple of courses, there are concerns about his knowledge with respect to child management, showing empathy towards children and communication with the children.

Mr. Stover (for T.M.1)

[49] Mr. Stover, on behalf of the mother, seeks to have the girls return home under a Society supervision order. The mother has set out the terms and conditions to address any concerns the Society and/or the court may have. The relationship between the mother and the P.-Y. family is fraught with conflict. These points should, according to Mr. Stover, "…be fleshed out by cross-examination, more in-depth probing." Should there be a continuing supervision order? That in itself establishes a reason for a triable issue, according to Mr. Stover.

[50] The access suggested is every other weekend for two hours at the Saturday access program or ABCO.

[51] Mr. Stover submits that access without contact between mother and the Y.-P. family would be a good idea. Unsupervised access in the community and weekend access, simply pick-up and drop-off, at the access centre. An advantage to that, in connection with the two boys, would be that the mother would have all the children having more contact with each other.

[52] Mr. Stover submits that the boys' situation is different from the Y.-P. family. There is no conflict there. Why can't the mother have custody of the boys?

[53] Mr. Stover stated:

"We've got a history of what living with mother was like with the younger children, attended daycare. There were no issues with that and the Society has no evidence of that, even historically, that there's been any issue with that."

[54] There is no evidence, Mr. Stover further submits, that would suggest that if the grandmother and the aunt knew this was going on, they would not alert people.

THE COURT: If your client had custody of the boys, what access does she propose for R.H.?

MR. STOVER: My client advises, Your Honour, that it would take place at the grandmother's residence and she could drop the boys off there and that access could take place there, not with her, but at the grandmother's.

THE COURT: It's not so much, Mr. Stover, how access would be facilitated, but what access does she propose that he have?

MR. STOVER: Oh, I see. Yes, Your Honour. All right, certainly not to interfere with the access that's occurring now, Your Honour. And I believe they've asked – sorry, Your Honour.

MR. HYACINTH: It's every week. He sees the children every week.

MR. STOVER: Every week, Your Honour, it's a Saturday, I think on Saturdays.

THE COURT: I think the issue is whether the access should be supervised or unsupervised and to what extent she is proposing.

MR. STOVER: She would propose the access to take place at the grandmother's, Your Honour...

THE COURT: Supervised.

MR. STOVER: ...supervised.

THE COURT: Not unsupervised.

MR. STOVER: No, Your Honour.

Ms. Thompson's Submissions (for the Society)

[55] Ms. Thompson submits that the area of most concern to the Society in terms of mother's counsel's submissions is with respect to T.M.1's access. The Society submits that we're putting the cart before the horse in terms of talking about overnights and talking about unsupervised access. The Society reiterates that there are a number of issues pertaining to adult conflict; they don't only pertain to the maternal grandparents, they pertain to numerous Society workers and interactions, also with a number of service providers, as clearly outlined in the Society's evidence. In the Society's submissions, she simply hasn't had enough of that TAP program to be able to satisfy the court, or to satisfy the court and the Society that her parenting deficits have been addressed. She has not attended consistently for counselling services at Catholic Family Services.

THE LAW

Summary Judgment in Child Protection Cases

[56] The court's jurisdiction to grant summary judgment in child protection cases is only to be exercised in the clearest of cases and with extreme caution. It is in the best interests of children to have issues resolved quickly. In family law cases of Crown wardship, the court must review all the evidence to determine if there is a basis for the final order sought. A proper consideration of a full evidentiary record is necessary to determine the evidence on the motion. The court must then determine whether there are specific facts to support a triable issue.

[57] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing there is a genuine issue requiring a trial. Mere allegations or blanket denials or self-serving affidavits, not supported by specific facts showing there is a genuine issue for trial, are insufficient to defeat a claim for summary judgment. A party answering a motion for summary judgment cannot rest on bald denials. They must put their best foot forward.

[58] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh evidence on a summary judgment motion.

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

When Available

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

Evidence Required

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

Evidence of Responding Party

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

Evidence Not From Personal Knowledge

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

No Issue for Trial

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

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

[61] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ) per Gordon J.

[62] In interpreting Rule 16, the court must have regard to the strict timelines that govern child protection proceedings. Subsection 1(1) of the Child and Family Services Act states that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. Rule 2 of the Family Law Rules provides that the primary objective of the rules is to deal with cases justly.

[63] Subsections 70(1) and (4) of the Child and Family Services Act mandate that a child under the age of six years shall not be in the care of a society for longer than 12 months, subject to a six-month extension if it is in the child's best interest to do so.

[64] The dominant consideration of the best interests test is the welfare of the children. See Re McGrath (infants), [1893] 1 Ch. 143, 62 L.J. Ch. 208, 67 L.T. 636, [Ch.], cited with approval in Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165.

[65] The welfare of the child is "not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense." See Re McGrath (infants).

[66] The best interests test has a "wide focus." This means that the "entirety of the situation" must be examined in order to determine a child's best interests. See Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M.

[67] The best interests of a child continuously evolve. See Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M. This means that different solutions may be required over different periods of time.

[68] The best interests of a child take priority over the desires and interests of the parent. See Young v. Young, [1993] 4 S.C.R. 3. The factors that must be taken into account when determining the best interests of a child are listed in subsection 37(3) of the Act.

[69] This list is not exhaustive, as one of the factors to be considered under subsection 37(3) of the Act is "any other relevant circumstance." See also L.C. and G.C. v. Catholic Children's Aid Society of Metropolitan Toronto (1993), 41 A.C.W.S. (3d) 1166, [1993] W.D.F.L. 1292, [1993] O.J. No. 1823, 1993 CarswellOnt 1581 (Ont. Gen. Div.).

[70] The relevant factors must be considered and balanced in order to determine the child's best interests. See L.C. and G.C. v. Catholic Children's Aid Society of Metropolitan Toronto, supra; and Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., supra.

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

[72] The court's role on a summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material requiring a trial. Because summary judgment is now explicitly contemplated by Rule 16, this may "broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment." Children's Aid Society of the Regional Municipality of Waterloo v. T.S., [1999] O.J. No. 5561 (Ont. C.J.) per Hardman J.

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

[74] The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits. See Catholic Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224, [2004] O.J. No. 4084; Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442.

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

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

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

[78] A comprehensive review of the case law on summary judgment in child protection cases was outlined in Children's Aid Society of the Regional Municipality of Waterloo v. V.L., [2006] O.J. No. 3785 (S.C.) at para. 48:

The Child and Family Services Act sets out principles defining the power of the state through Children's Aid Societies to intervene in families to protect children. Pursuant to sections 40 and 41 of the Act, a Society may bring an application before the court for a hearing to determine whether a child is in need of protection as defined by s. 37(2) of the Act and, assuming a finding is made, for a disposition pursuant to s. 57. Rule 16 of the Family Law Rules permits the court on application by the CAS on the basis of affidavit evidence to make a summary judgment where there was no genuine issue for trial. The CAS must disclose its full case to the court. The court must take a "good, hard look" at the "full evidentiary record" to determine if there are any factual issues in dispute which create a genuine issue for trial (decision of Justice Hardman in Children's Aid Society of the Regional Municipality of Waterloo v. R.S., [2000] O.J. No. 4880, paras. 22-23). The respondent is required to put her "best foot forward" in disclosing her case in response to the case for the Society (decision of Justice Katarynych in Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853, para. 8). The respondent cannot "rest on mere allegations or denials". The respondent must set out in affidavits "specific facts showing that there is a genuine issue for trial" (Rule 16(4.1)). The CAS need not meet the test of "clearest of cases" as in a motion for summary judgment under Rule 20 of the Rules of Civil Procedure (decision of Justice Lane in R.A.V. Jewish Family and Child Service, [2001] O.J. No. 47 at para. 20). The question of whether there is a genuine issue for trial must be determined in the context of the overarching principles set out in s. 1 of the Act that its primary purpose is to "promote the best interests, protection and well being of children". This must be done considering the narrow time lines constraining the available dispositions imposed on the court by sections 57 and 70 of the Act. Rule 16 provides a remedy "to contain and control a child's drift in litigation" (para. 14 of R.H., supra). It is meant to prevent a child being held in "limbo" while a dysfunctional parent engages in uncertain attempts to correct his or her inadequacies (R.H., supra, para. 16).

Child and Family Services Act

[79] The paramount purpose behind this legislation is to promote the best interests, protection and well-being of children. So long as they are consistent with the best interests, protection and well-being of children, additional purposes include respecting the autonomy and integrity of the family unit and, where possible, should be provided on the basis of mutual consent in the least disruptive course of action available and appropriate to the circumstances. Children's services are to be provided in a manner that respects the child's need for continuity of care and for stable relationships in a family and a process that achieves permanent plans for children in accordance with their best interests.

[80] Where a child is found to be in need of protection and intervention, a court order is required to protect the child in the future. The court, after having satisfied itself as to the efforts made by the Society or another agency to assist the child before intervention, has available to it a series of orders ranging from supervision to crown wardship, intruding only as far as required to protect the child. Only if a lesser disposition would be inadequate to protect the child does the court go to the next level of intrusion. (See section 57.)

[81] Hearsay evidence is to be avoided. The rules of evidence are relaxed in applications for temporary care and custody as s. 51 of the Act permits evidence the court considers "credible and trustworthy in the circumstances." While Rule 16(5) appears to be permissive as to hearsay evidence, there is the penalty attached of an adverse inference.

[82] Evidence on a motion for summary judgment must be restricted to "admissible" evidence given the nature of the proceeding, namely, it is comparable to trial, and the relief claimed. The admissibility of hearsay evidence must be supported by evidence of necessity and reliability, failing which it must be excluded. Simply put, if evidence is not admissible at trial, it is not admissible on a motion for summary judgment.

[83] The Society has an obligation, pursuant to s. 15 of the Act, to protect children, properly investigate all relevant circumstances and provide adequate services to families that have as its objective the reuniting of family members where appropriate. See, for example, Children's Aid Society of London and Middlesex v. S.(E.V.F.), 1 R.F.L. (6th) 84 (Ont. S.C.J.) Section 57(2), (3) and (4) also engage a discussion of less disruptive alternatives. These matters are not fully canvassed in the evidence as required.

[84] In determining the best interests of the child, the court must assess the degree to which the risk concerns which existed at the time of the apprehension still exist today. They must be examined from the child's perspective. See supra, CAS Toronto v. C.M., [1994] 2 S.C.R. 165.

[85] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of childcare upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests. Catholic Children's Aid Society of Hamilton v. J.I., [2006] O.J. No. 2299 (Ont. Sup. Ct.) This principle also applies to a young mother, who was herself subject to severe neglect and abuse. Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

[86] A beneficial relationship is one which is advantageous. A meaningful relationship is one which is significant. It is not enough that there are some positive aspects to it: it must be significantly advantageous to the child. It speaks of an existing relationship, not the possibility of a future relationship. Even if the relationship is beneficial and meaningful, there still must be some qualitative weighing of the benefits of access versus no access.

[87] Good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that, in giving the parents another chance, the child would have one less chance. See Children's Aid Society of Winnipeg (City) v. R., 19 R.F.L. (2d) 232 (Man. C.A.) There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. See Children's Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504.

[88] The purport of the rules is to deal with cases justly. The focus has to be on the consequential effects of decisions on the children involved. Dealing with cases justly includes timely resolution by way of summary judgment when the circumstances merit. This is such a case. The disposition sought reflects the children's special needs, the importance for their development of a positive relationship with their parents and a secure place as members of a family, the importance of continuity and the degree of risk presented. While a child's best interests presumptively lie with the parent, the presumption is clearly rebuttable.

[89] The mother, in her material, has attempted to set out facts that show there is a genuine issue, specifically with respect to her relationship with the children. I have reviewed the various plans of care to assess the threshold issue whether there is a genuine issue as to a material fact requiring a trial. See Aguonie v. Galion Solid Waste Material Inc., [1998] O.J. No. 459. In this regard, I have carefully reviewed the evidence and have given it "a good hard look." See Guarantee Co. of North America v. Gordon Capital Corp., [1999] S.C.J. No. 60. I am aware that my role at this time is not to weigh the evidence and, if I conclude that a weighing of evidence is necessary to determine the issue, the summary judgment motion must be dismissed and a trial of an issue be ordered.

[90] The disposition order that I make must be the least disruptive order available consistent with the best interests of the children. "Best interests" is defined in subsection 37(3) of the Act and that subsection contains a non-exhaustive list of factors that the court shall consider in determining best interests, if relevant.

Uncontradicted Facts

[91] The uncontradicted facts going forward are:

• R.H.'s horrific criminal record
• The history of domestic violence between him and T.M.1
• T.M.1's exposing her children to domestic violence
• Her failure to follow through on programs recommended by the Society
• Her historic non-compliance with terms of temporary supervision orders
• Concerns about her mental health
• Her use of physical discipline with her children in the past
• Her inability to manage her finances and maintain stability in her life
• No alternative plan of kin currently available for J.H.

[92] When children are out of the care of their parent or parents and return does not appear to be an option, the court is mandated to investigate permanency plans for the children.

Court's Decision on Summary Judgment

[93] The motion for summary judgment is granted. T.M.1 has failed to show in her material a genuine issue for trial. In reaching this conclusion, I found no material fact in dispute affecting the best interests of these children that would require a trial.

[94] Although I find that the access between the children and their mother is generally positive and that the children love their mother and she loves them, by granting the summary judgment motion, I leave the issue of access to the children's future adoptive parents to decide, as they will be the persons charged with raising these children to adulthood. As is the case with any parent, they should have the ability to restrict contact with any person who undermines their duty and responsibility to protect their child and the stability of the child's home.

[95] I am granting the summary judgment motion brought by the Society.

Principles of Child Protection Law

[96] In a child welfare context, the goals and objectives of the Child and Family Services Act are to be read in their entirety. Similarly, in determining the admissibility of evidence in child protection proceedings, this court and other courts are asked to apply a "contextual approach" including the governing principles and the values and principles in our Charter of Rights and Freedoms.

[97] There is, of course, the potential for conflicting duties: imposing a duty of care in respect of the relationship between the family of a child in care and the child's court-ordered service providers having regard to the service providers' transcendent statutory duty to promote the best interest, protection and well-being of the children in their care.

[98] When a child is placed in the temporary care of the Children's Aid Society, or if Crown wardship is ordered, the Child and Family Services Act creates an inherently adversarial relationship between parents and the state. The fact that the interests of the parent(s) and the child may occasionally align does not diminish the concern that, in many if not most cases, conflict is inevitable.

[99] Nothing detracts from the Act's overall and determinative emphasis on the protection and promotion of the child's best interests, not those of the family. To recognize a duty to parents in this context could also result in conflicting duties in the provision of treatment to children who have been removed from their parents' custody. It is very difficult to see how different professionals, including doctors and social workers, could all effectively work together if some of them owed a duty other than to the child/patient.

[100] The Act itself provides a remedy for families seeking to challenge the way their child is treated. There is a clear legislative intent to protect those working in the child protection field from liability for the good faith exercise of their statutory duty. Since the statutory mandate is to treat the child's interest as paramount, there is, where the duties to the child have been performed in accordance with the statute, no liability to the family.

[101] While the Act itself recognizes that the family is the most private of institutions, it also recognizes that the entitlement to be free from state intrusion does not make the family immune from the state's overriding duty to ensure that children are protected from undue harm, including harm from the family.

[102] Section 1 states, in part:

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.

3. To recognize that children's services should be provided in a manner that,

i. Respects a child's need for continuity of care and for stable relationships within a family and cultural environment. …

[103] The primacy of the best interests of the child over parental rights in the child protection context is axiomatic. As Daley J.F.C. observed in Children's Aid Society of Halifax v. S.F. (1992), 110 N.S.R. (2d) 159 (Fam. Ct.):

[Child welfare statutes] promot[e] the integrity of the family, but only in circumstances which will protect the child. When the child cannot be protected as outlined in the [Act] within the family, no matter how well meaning the family is, then, if its welfare requires it, the child is to be protected outside the family. [para. 5]

[104] Pursuing and protecting the best interests of the child must take precedence over the wishes of a parent, e.g. King v. Low, [1985] 1 S.C.R. 87; Young v. Young, [1993] 4 S.C.R. 3; New Brunswick (Minister of Health and Community Services) v. L.(M.), [1998] 2 S.C.R. 534. See also Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165, that in child welfare legislation the "integrity of the family unit" should be interpreted not as strengthening parental rights, but as "fostering the best interests of children" (p. 191). L'Heureux-Dubé J. cautioned at p. 191 that "the value of maintaining a family unit intact [must be] evaluated in contemplation of what is best for the child, rather than for the parent."

[105] The statutory references to parents and family in the Act are not stand-alone principles, but fall instead under the overarching umbrella of the best interests of the child.

[106] Child protection work is difficult, painful and complex. Catering to a child's best interests in this context means catering to a vulnerable group at its most vulnerable. Those who do it, do so knowing that protecting the child's interests often means doing so at the expense of the rest of the family. Yet their statutory mandate is to treat the child's interests as paramount. They must be free to execute this mandate to the fullest extent possible. The result they seek is to restore the child, not the family. Where the duties to the child have been performed in accordance with the statute, there is no ancillary duty to accommodate the family's wish for a different result, a different result perhaps than even the child protection worker had hoped for.

[107] It is the child to whom the Society owes a fiduciary duty.

[108] The English cases provide a helpful explanation of the competing issues at play. In In Re B (Children) FC, [2008] UKHL 35, Baroness Hale explained:

20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art. 8), the International Covenant on Civil and Political Rights (art. 23) and throughout the United Nations' Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v. Society of Sisters, 268 US 510 (1925), at 535, 'The child is not the mere creature of the State.'

21. This is why the Review of Child Care Law (Department of Health and Social Security, 1985) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the Review put it, 'Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child's] interests must clearly predominate' (para. 2.13).

22. The more common version of this dilemma, however, is not where a child's care is shared between two households, but where it is shared between two parents. If the child suffers harm, and the judge cannot decide which parent was responsible, the threshold criteria are met. But how is the court to approach the next stage in the proceedings, the stage of deciding what order, if any, will be in the best interest of the child? In In re O (Minors)(Care: Preliminary Hearing); In re B (A Minor), [2003] UKHL 18, [2004] 1 AC 523, the Court of Appeal in one case had held that the judge had to proceed on the basis that the child had not been harmed by the mother and that she did not present a risk of harm to that or another child; in the other, a differently constituted Court of Appeal had held that as the mother had not been exonerated, the judge could not disregard the risk that she might present. [Emphasis added.]

[109] Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 considered Ontario legislation in the context of a review hearing. The legislation specifies the procedure to be followed, the evidentiary requirements, and the objectives to be taken into account. In her conclusion, L'Heureux-Dubé J. stated (at ¶48):

48. The law that courts must apply in the present case is the Ontario CFSA which, properly interpreted, mandates a careful balancing of its paramount objective of the best interests of the child with the value of maintaining the family unit and minimizing state intervention. …

[110] The Act and the Supreme Court of Canada implicate constitutionally guaranteed rights of children and parents, involving principles of fundamental justice (New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, at ¶87 and ¶94, majority decision of Lamar C.J., and ¶112-119, companion decision of L'Heureux-Dubé J.).

[111] The best interests of the child means the interests that appear to be best for the child under the circumstances, having regard to all relevant considerations. The scope of relevant considerations is broad (L'Heureux-Dubé J. in Catholic Children's Aid Society of Metropolitan Toronto v. C.M., supra at ¶33).

[112] Quoting the Supreme Court of Canada in New Brunswick Minister of Health v. G., [1999] 3 S.C.R. 46, the Court stated that,

… the state can remove a child from parental custody only in accordance with the principles of fundamental justice which are to be found in the basic tenets of our legal system.

[113] The Chief Justice went on to say…

Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination. …

For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. …If [they are] denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child's best interests. There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child's best interest to remain in his or her care.

[114] The importance of procedural fairness is underlined in Children's Aid Society of Halton Region v. C.J.R., [2005] O.J. No. 5786, 2005 ONCJ 514. The Court found (during the original protection application) that the aunt and uncle who had cared for the child in the past should have been given formal notice of the status review application seeking Crown wardship. Similarly, in A.M. v. Chatham-Kent Integrated Children's Service Children's Aid Society, [2006] O.J. No. 2984 (O.C.J.), where the Society neglected its duty to locate the father and give him notice of the wardship proceedings, the Court found that there was a lack of compliance with the fundamental principles of procedural and substantive fairness.

[115] Although the Courts as well as the Legislature hold the best interests of the child to be paramount, the determination of where those best interests lie cannot be an arbitrary one, foreclosing a parent, not shown to be disqualified, from an opportunity to show that he will and can serve his child's best interests.

[116] Similarly the Court in A.M. v. Chatham-Kent Integrated Children's Service Children's Aid Society, supra, in considering whether to overturn the order for Crown wardship, stated:

I am cognizant that the results of this order may have a devastating impact on the child and his adoptive parents. Even if Mr. A.M. is successful on his motion, there is no guarantee that he will be successful on his application to parent the child. Ultimately that decision has to be made in F.A.A.M.'s best interests. But it is absolutely imperative that the rights of parents are not trampled on in the name of expediency when it comes to child protection. It is up to the court to determine if a parent is capable of parenting a child and if a parent's proposal is in the child's best interests.

[117] Although the best interests of the child are paramount, the fundamental right of a parent to be heard cannot be sacrificed.

[118] On a motion for summary judgment in child protection cases, the court must review all the evidence to determine if there is a basis for the final order sought; a proper consideration of "a full evidentiary record" is necessary for a "good hard look" at the evidence on the motion; the court must then determine whether there are specific facts to support a triable issue; and then the court may dismiss the motion, rule that there are only certain issues that require a full hearing, or determination that there are no triable issues regarding the entire application. See B. (F.) v. G. (S.), 199 D.L.R. (4th) 554 (S.C.J.)

Section 57.1 Custody Orders

[119] Section 57.1 of the Child and Family Services Act is deemed a custody order under the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended.

[120] Subsection 57.1(1) reads as follows:

57.1 Custody order. —(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[121] Subsection 57.1(6) speaks to a conflict-of-law situation and provides that the Ontario Court of Justice is prohibited from making a custody order under section 57.1 that would conflict with a custody order granted under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, as amended, or a custody order made by a superior court.

[122] The caregivers consent to a section 57.1 custody order. In order to make a section 57.1 custody order, the consent of the proposed custodian is required by statute.

[123] The disposition order that I make must be the least disruptive order available consistent with the best interests of the children. "Best interests" is defined in subsection 37(3) of the Act and that subsection contains a non-exhaustive list of factors that the court shall consider in determining best interests, if relevant.

[124] Subsection 37(3) reads as follows:

(3) Best interests of child. — 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 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's 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.

Court's Analysis

[125] T.M.1 failed to show in her material a genuine issue for trial. In reaching this conclusion, I found no material fact in dispute affecting the best interests of these children that would require a trial for resolution for the following reasons:

(a) The children have been out of the care of their parents for a period in excess of any statutory mandate.

(b) The children have been in stable placements.

(c) The mother has not yet successfully addressed her lifestyle and parenting challenges. She is still incapable of forming a trusting and therapeutic relationship with professionals who might be able to assist her in making the necessary changes.

(d) I find that she is not yet able to put the needs of the children before her own needs.

[126] The access being sought is premised upon assumptions and hypotheses that currently do not exist. The kind of access now being sought is not even capable of prediction on the basis of evidence submitted to any degree of certainty approaching probability. At the very least, there are no triable issues in this regard.

[127] The claim at this time for increased access is simply too uncertain, speculative and hypothetical.

[128] The parties are raising matters that, in my opinion, lie in the realm of conjecture, rather than fact. In brief, it is simply not possible for a court, even with the best available evidence, to do more than speculate upon the future of access between the parties.

[129] The issue involved in this case is inherently non‑justiciable, either because the question, future access, is not susceptible of proof and hence is not triable or because answering that question involves factors which are either inaccessible to a court or are of a nature which a court is incapable of evaluating. There are no triable issues for trial.

[130] Real facts are susceptible of proof by direct evidence. Intangible facts, on the other hand, may be proved by inference from real facts. Intangible facts are frequently the subject of opinion.

[131] In my view, several of the allegations are statements of intangible fact. Some of them invite inferences; others anticipate probable consequences. They may be susceptible to proof by inference from real facts or by expert testimony or "through the application of common sense principles": see Leyland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] A.C. 350, at p. 363, per Lord Dunedin.

[132] It is far too early to determine how access will develop and at what stage, if any.

Access and Parental Rights

[133] Parents have rights in order that they may fulfil their obligations towards their children. When they are relieved of all of their obligations, they lose the corresponding rights, including the right of access. Access is a right that belongs to the child, and not to the parents.

[134] The court has the power to prohibit the parents from having access to their children. The decision to be made concerning access, like all decisions concerning the child, must be made in the child's best interests.

[135] In Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at p. 207, L'Heureux-Dubé J. concluded:

In the present case, none of the exceptions set out in s. 59(2) is applicable and none has been proven. Permanent placement has been established with a family who wishes to adopt S.M.; S.M. is under twelve years of age; and further, she refuses to maintain contact with her mother. In the presence of such overwhelming evidence, the appellant has been unable to discharge her burden under the Act. Although there may be cases where temporary or transitional access could be beneficial to the child, in the present case the situation does not appear, realistically, to allow for such a solution. Consequently, the Act must apply. The strong evidence provided by Dr. Wilkes and Ms. De Sousa leaves little room for any order other than that of Crown wardship without access, in the best interests of S.M. [Emphasis added.]

[136] Our legislation emphasizes the importance of preserving the family unit. This Court has held, however, that preserving the family unit plays an important role only if it is in the best interests of the child (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), supra). This Court has also held on numerous occasions that pursuing and protecting the best interests of the child must take precedence over the wishes and interests of the parent (King v. Low, [1985] 1 S.C.R. 87; Young v. Young, [1993] 4 S.C.R. 3). In Catholic Children's Aid Society of Metropolitan Toronto, supra, at p. 191, L'Heureux-Dubé J. stated: "Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent. In order to respect the wording as well as the spirit of the Act, it is crucial that this child-centred focus not be lost."

[137] I conclude that, while preserving emotional ties is one of the elements of the definition of the best interests of the child (s. 1(d)), it will only operate if access is in the best interests of the child, having regard to all the other factors.

[138] Thus, if there are emotional bonds between the children and their parents, and I agree there are, they should be preserved, as long as that is not contrary to the other interests of the children such as security or psychological health (New Brunswick (Minister of Health and Community Services) v. B.D., 145 N.B.R. (2d) 14 (Q.B.)). On the other hand, a child and a parent who are not attached to each other may not be granted access if the effect of doing so would be to disturb the child (New Brunswick (Minister of Health and Community Services) v. S.G., 193 N.B.R. (2d) 274 (Q.B.)).

[139] The evidence as to how access has been exercised is particularly relevant, since it relates both to the attitude of the parent and to the effects of the visits on the child. Every parent must place his or her child's interests ahead of the parent's own. The parent's inability to do so, and the harm suffered by the child, are factors that may result in access being prohibited. This will be the case, for example, where the parent is violent, manipulative, unstable or unable to control his or her emotions, which has been the case at hand. With regard to the effects of the visits on the children, signs such as sadness, anxiety, regression, the reappearance or exacerbation of behavioural problems, mood and nightmares evidence harm.

[140] The evidence shows serious misconduct by the parents in both minor and major matters. They have demonstrated their inability to put the children's interests before their own. For instance, they exposed the children to their marital disputes, and frequently involved the children in them.

ORDER

[141] An order pursuant to section 57.1(a) of the Child and Family Services Act that the children T.M.2 and A.M. shall be placed in the custody of B.Y. and S.P., the maternal grandparents, with access to T.M.1 and D.F. as agreed to by B.Y. and S.P., which order is deemed to be made under section 28 of the Children's Law Reform Act.

[142] An order pursuant to section 57.1(a) of the Child and Family Services Act that the children E.H. and J.H. shall be placed in the care and custody of D.H., the paternal grandmother, subject to the terms of supervision of the Children's Aid Society of Toronto and pursuant to following access conditions:

• Access to R.H.: frequency at the Society's discretion. R.H. may have access to the children at the home of paternal grandmother D.H. and shall be supervised by D.H. or T.H..
• Access to T.M.1 to be a minimum of two times per week as arranged by T.M.1 and/or D.H. or T.H..
• T.M.1 and R.H. shall not have access to the children at the same time.

Released: Paragraph 142 amended nunc pro tunc on March 29, 2012

Signed: "Justice Zuker"