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.

45.— (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.

45.— (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 C50666/10

Date: 2012-04-16

Ontario Court of Justice

Between:

Children's Aid Society of Toronto, Applicant

— AND —

C.Og. — and — M.S., Respondents

Before: Justice Marvin A. Zuker

Heard on: March 28, 2012

Reasons on Motion for Summary Judgment released on: April 16, 2012

Counsel:

• Justine Sherman for the applicant society
• Avraham Baratz for the respondent mother
• Tiffany Lau for the respondent father

ZUKER J.:

Background and Facts

[1] This is the Society's summary judgment motion seeking final orders on an amended status review application dated November 23, 2010, an order of Crown wardship for the purposes of adoption for, specifically, E. Ol., born 2003, and A. Ol., born 2007. Both children have been in the continuous care of the Society for 24 months.

[2] The family also consists of the father, Mr. M.S., and the mother, Ms. C.Og., and the children.

[3] On November 12, 2009, the Society received a referral from the police. Mr. M.S. had called them after Ms. C.Og. had allegedly left the children in the lobby of their father's apartment and telling Mr. M.S. that she was never coming back. The Society contacted the mother thereafter. She indicated that she was attempting to resolve the issues through family court. The children were with her at that time.

[4] A. Ol. and E. Ol. were taken into care on March 23, 2010, where they have remained since.

[5] Ms. C.Og. and Mr. M.S. had been separated since A. Ol.'s birth in 2007. There had been a history of domestic conflict. Ms. C.Og. left the children with their father when she went to Nigeria to care for her mother. On her return, she asked Mr. M.S. to continue to care for them. These facts are filed as part of the Statement of Agreed Facts signed by Mr. M.S. on July 2, 2010, and filed in the Society's Summary Judgment Brief (Exhibit One) at Tab 14.

[6] Both children were found to be in need of protection on July 20, 2010, pursuant to Section 37(2)(b) and 37(2)(i) of the Child and Family Services Act. Both children were placed in the care and custody of the Society for a period of four months.

Access and Society Involvement

[7] On August 7, 2010, access commenced between Ms. C.Og. and the children at the Society's Saturday Child Access Program (CAP), a semi-supervised program.

[8] On August 14, 2010, Ms. C.Og. attended her first visit.

[9] On October 22, 2010, Mr. M.S. attended his first visit with the children since July 2010.

[10] On November 24, 2010, the Society recommended a referral to the Yorktown Child and Family Centre, specifically the CARE program. The intention was to work towards reunification of the father and the children, in order to strengthen his relationship with them.

[11] On December 14, 2010, the Society was advised that Mr. M.S. was living with an individual who had been charged with sexual assault on a minor and had bail conditions prohibiting his contact with children under 16 unless accompanied by his surety. Mr. M.S. was his surety.

[12] Ms. C.Og. did not exercise any access to the children from November 2010 until December 2011.

[13] Mr. M.S. did not exercise any access between July 2010 and October 2010. He did not exercise any access between March 2011 and July 2011.

[14] The Society submits there are historical patterns of both parents failing to plan for the children and to commit to caring for them. They require permanency and a plan that will afford them this.

Children's Assessments and Needs

[15] CAST worker Angie Ko referred Mr. M.S. and the two children, E. Ol. and A. Ol., to the CARE program at the Yorktown Child and Family Centre. Mr. M.S. completed BCFPI on January 11, 2011. He agreed to counselling program to help plan for his reunification with the children.

[16] Mr. M.S. historically has worked in the car sales industry, travelling and working in the export/import business.

[17] The Yorktown Child and Family Centre Closing Report, dated May 12, 2011, states in part:

"3. Assisting Mr. M.S. with developing consistent routines, rules, and consequences according to children's developmental needs. This would have been demonstrated by Mr. M.S. will have a list of house rules, will monitor routines, and establish consequences as needed. Mr. M.S. reported that he still struggled with setting rules and routines in household, and counselling sessions were interrupted by Mr. M.S. being out of town for work.

a. Mr. M.S. did not return on time to completed counselling sessions in 12-week timeframe.

"4. Assisting Mr. M.S. in spending quality time as family, and getting children comfortable with reunification process. Mr. M.S. will support children in their interests, and will pay attention to them consistently and regularly to improve their engagement as a family. Mr. M.S. reported that he still struggled with his responsibilities as primary caregiver, and counselling sessions were interrupted by Mr. M.S. being out of town for work.

a. Mr. M.S. did not return on time to completed counselling sessions in 12-week timeframe."

Summary of Helpfulness of Service:

"Views of child/youth and family:

This worker was unable to formally terminate with this family due to disruption in service, as a result of Mr. M.S. being out of town for work. Mr. M.S. had been away on business on February 22 without advising CAST or this worker. Mr. M.S. met on March 28 with this worker and CAST worker Ms. Angie Ko, at which time he reported he would be away in April for business for a few weeks. He cancelled the family counselling session on March 29 and reported he would return on April 19. Mr. M.S. did not show for session on April 19, and when this worker called him, he reported he was still out of town. Mr. M.S. did not return on time to complete counselling sessions in the allotted 12-week timeframe. Mr. M.S. also indicated that he did not require a copy of the counselling report from this worker.

"Views of worker:

This worker views that E. Ol. and A. Ol. have had multiple losses related to their mother not being involved in their care, and their father not being able to be consistent in caring for them – resulting in a sense of being abandoned by both parents. It will be important for E. Ol. and A. Ol. to have a stable committed home environment in order to ensure that they will have their needs met and to feel safe."

[18] On September 28, 2010, a referral was made by Aisling Discoveries for individual counselling for E. Ol. and A. Ol. The referral was made following the foster mother's reports that E. Ol. had been acting inappropriately towards A. Ol.

[19] On October 12, 2010, Dr. Fitzgerald met with E. Ol. Dr. Fitzgerald reported that E. Ol. "displays a behavioural pattern that is consistent with a diagnosis of Attention Deficit/Hyperactivity Disorder (ADHD) with prominent symptoms of hyperactivity, impulsivity and distractibility. In addition, he has a strong tendency to be oppositional and can be reactive, even provocative, with little understanding of how to regulate his emotions and behaviour. These findings indicated the presence of an Oppositional Defiant Disorder."

[20] Medication and a comprehensive behaviour management program in the home and at school were recommended.

Access and Society Involvement with Mr. M.S. and Ms. C.Og.

[21] Access visits with Mr. M.S. initially occurred Wednesdays and overnight, every other weekend from March 23, 2010, to June 12, 2010. He was asked if he wished to increase his visits. He declined. On June 16, 2010, Mr. M.S. agreed to increase his visits to every weekend. A plan was put in place to begin weekly weekend access as of June 18, 2010.

[22] On July 20, 2010, Mr. M.S. sought to cancel his visits with the children. He did not wish to have any further contact with them. He indicated that if the mother was not planning for the children, they should be placed for adoption.

[23] Three months later in October 2010 Mr. M.S. indicated that he now wanted to resume his access to his children.

[24] On October 22, 2010, E. Ol. and A. Ol. resumed their visits with Mr. M.S. After two weeks, an additional visit was arranged on Wednesdays at the Etobicoke Child Access Program from 4:00 p.m. to 6:00 p.m. This continued until December 24, 2010, when the access was increased and the children started weekend overnight for four days during the Christmas holidays. On December 30, 2010, the children once again returned for another four days at their father's place.

[25] During the March Break, March 11-20, 2011, the children stayed at their father's for an extended access visit.

[26] On March 24, 2011, Mr. M.S. advised he would be away for three weeks for business.

[27] Mr. M.S. did not return until June 18, 2011.

[28] For three months, he made no attempts to speak with his children.

[29] On August 7, 2010, access resumed between Ms. C.Og. and the children at the Society's Saturday Child Access Program (CAP). Ms. C.Og. exercised access from August 14, 2010, to November 12, 2010.

[30] She notified the Society she wished to terminate access.

[31] On December 13, 2011, a TAP intake meeting took place. Mr. M.S. was provided information about the TAP program. Mr. M.S. indicated one of his plans was for the children to be cared for by their mother: "Whoever is qualified, the children should come home to."

[32] On January 17, 2012, Noah Boakye-Yiadome, with Young and Potential Fathers, confirmed that Mr. M.S. had attended all eight weeks of the Daddy, Let's Get Cooking program. He also attended the Cipher Program on October 20 and 27, 2011.

[33] A Summary Judgment Motion was heard by Her Honour Justice Waldman on August 29, 2011. The decision is found at Tab 13 of the Society's Summary Judgment Brief, filed as Exhibit One.

[34] The Society's involvement with the parents revolved around Mr. M.S. and Ms. C.Og.'s lack of commitment to plan for their children, their pattern of abandoning the children, the emotional and detrimental impact on the children, Mr. M.S.'s parenting skills and his minimizing of the children's needs. Mr. M.S. had been unwilling to commit to the children and address the Society's concerns.

[35] Ms. C.Og. has few supports other than Mr. M.S.

[36] In July 2010, Mr. M.S. advised the Society that he did not wish to increase access. He stated he was a businessman and he would lose money if the children were with him more than the schedule provided. See paragraph 18 of Angie Ko's affidavit, sworn August 5, 2011.

[37] Mr. M.S. cancelled visits with the children indefinitely. He would be out of the country. He indicated that he wanted nothing further to do with his children. He planned to turn his cellular phone off so he could not be reached.

[38] On September 30, 2010, two months later, he expressed a desire to care for the children. He began the Care program through Yorktown Child and Family Centre in February 2011. The counsellor closed her file in April 2011 due to a lack of contact from him. On March 28, 2011, Mr. M.S. indicated that he would again be leaving for business and returning in mid-April.

[39] He resumed contact with the Society on July 7, 2011, some four months after last seeing them. Justice Waldman's decision informs that Her Honour found, at paragraph 22, that the father has not demonstrated a sustained commitment to these children. The Society should have the right to bring a further motion of summary judgment if the father does not follow through (found at paragraph 25).

[40] Mr. M.S. signed a Statement of Agreed Fact in July 2010. Ms. C.Og. was in default. Justice Curtis made a finding that the children were in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(i) of the Child and Family Services Act. The children were made wards of the Society for four months.

[41] Mr. M.S. visited with the children more or less regularly until July 2010. He did not resume until October 22, 2010.

[42] The following statement from the Yorktown Child and Family Service Centre report appropriately summarizes the issues in this case:

"This worker's view is that Mr. M.S. and Ms. C.Og. have triangulated the children in their marital conflict and that there are multiple separation issues. Further, it appears that it will be important for Mr. M.S. to explore his own cultural history and the meanings that he places on what a father is and how his current situation conflicts with his notion of a traditional father in his culture. There is a loss here for Mr. M.S. that might need to be addressed to assist him with assuming the role of primary caregiver by fully embracing what is connected to this role... Mr. M.S.'s ambivalence toward his role as primary caretaker is impacting the children's emotional well-being as they are torn between remaining in care and returning home… The children also have special needs related to albinism that impacts their vision and appearance and they are both hyperactive and aggressive and unruly at times…"

Justice Waldman's Previous Decision

[43] "It is the case that father has not demonstrated a sustained commitment to these children. However, he has shown some commitment and some ability to follow through, as demonstrated by his attendance and participation with the children at a number of appointments at the Yorktown Centre. He has also shown some insight into the concerns of the Society and has taken steps, albeit recently, to make his children a priority.

[44] "According to father he now understands what he must do in order to regain custody of his children. He has recently taken steps to make them his priority and to put their interests first. He has closed his business, and gone on welfare. It is his evidence that it is his intention to focus on the children and become their primary caregiver.

[45] "Having considered all of the evidence, I am satisfied that there is a triable issue as to father's ability to change his life and priorities and care for these children. The evidence is not sufficiently compelling absent a trial to support the relief sought. The Court should evaluate whether father is committed to caring for the children and if he demonstrates this commitment whether he has the ability to parent them.

[46] "The Society, however, should have the right to bring a further motion for summary judgment if father does not follow through. Father must demonstrate a sustained commitment to his children. He must take a parenting course, and work with the Society to develop better parenting skills. He also must change his attitude towards the Society and work co-operatively with the Society workers. His counsel should consider a motion, when appropriate, for increased access.

[47] "This case should be put on the trial list to be heard in the New Year.

[48] "For reasons given, the Society's motion is not granted. The case is adjourned back to Justice Curtis as case management judge."

Released: September 13, 2011 Signed: "Justice Geraldine Waldman"

Developments Since Justice Waldman's Decision

[49] The Society submits that the father has not followed through. He has been inconsistent for access visits. Many of his visits involve his watching the children play independently and his talking on his cell phone and taking numerous calls on his cell phone during access visits. See Angie Ko's affidavit sworn February 17, 2012, more particularly paragraphs 40, 42, 57 and 91 (Tab 6, Exhibit One). He was offered the opportunity to participate in the Society's therapeutic access program (TAP). He attended for therapeutic access visit on January 10, 2012.

[50] On January 31, 2012, he advised the Society worker that he could not be available to care for his children. He was withdrawing his plan again as he had left Toronto. He did not see his children from January 10 until March 15, 2012.

[51] E. Ol. has been identified as having ADHD. He requires close supervision and monitoring at all times. He has experienced suicidal ideations and the discharge report from Aisling, Exhibit A to the affidavit of Helynn Lee, found at Tab Seven. "E. Ol. is a boy who has experienced a lot of family loss and abandonment by his biological parents."

[52] A. Ol. has been identified with hyperactive impulsivity and distractibility, indicative of ADHD.

[53] The Society further submits that Mr. M.S. and Ms. C.Og. have failed to demonstrate they have a relationship with their children that is a meaningful and beneficial relationship and that an access order (section 59(2)) would not impair the children's ability to move to a permanent placement through adoption.

Respondents' Positions

[54] Mr. Baratz on behalf of mother submits that the court should appreciate why Ms. C.Og. never exercised access from November 2010 to approximately December of 2011. When she appeared before Justice Waldman, Ms. C.Og. was in default. She had just retained Mr. Baratz in July 2011. "With regard to her position, we weren't even allowed to really argue anything because she was in default and Justice Waldman did not really allow us to say much at that hearing."

THE COURT: I guess we don't want to hear the same reason that she didn't file anything as to why she didn't exercise access, but we'll come to that.

MR. BARATZ: That issue wasn't addressed at the, that's why I felt that I need to address it now at this motion. … Justice Waldman took a very technical approach, saying, well, she's in default, so…

[55] The court is asked to look at Ms. C.Og.'s affidavit, three affidavits in the continuing record, Tab Five; Ms. C.Og.'s affidavit of August 23, 2011; her affidavit of January 5, 2012, Tab 10 of the continuing record, the affidavit in support of a motion to set aside her default. The Society did not oppose the setting aside. That motion was heard in March 2012. Mother replied, at Tab 12 of the continuing record, to Ms. Ko's affidavit, February 27, 2012.

MR. BARATZ: At paragraph 12, the mother states why she did not attend access. …she was being treated unfairly during access. She found all the writing going on about her access intrusive. …the CAS, she felt, was twisting her words and their observation of the visit. …at paragraph 13 of that same affidavit, we do see some insight as to where Ms. C.Og. was coming from. She did not fully appreciate that she could speak back to the CAS at the time, that she could actually state her opinions and this is in reference to her not saying anything with regarding to having an increase in telephone access. … she was not fully aware of the magnitude of the proceeding at the time or the power of the CAS and she was unrepresented.

At the time of the summary judgment motion in August 2011, Ms. C.Og. was not in a position to have the kids returned to her care. Mr. M.S., at the time, was represented by counsel. He was actively planning for the children.

Her affidavit of August 23, 2011, at paragraph 17 where she acknowledged that her inconsistency and failure to attend for access was not favourable at all to her case. However, since that time, things have changed. There was a summary judgment motion on August 29 before Justice Waldman. The Society motion was "dismissed," at the time, due to the strength of the father's position. Mother was in default at that time. Her participation was quite limited.

As she notes in her affidavit of August 23, 2011, throughout paragraphs 19 to 23, once she obtained counsel, she obtained more insight into the proceeding against her.

"As of August 2011, it's not like she abandoned her children for over a year. As of August 2011, she was looking for access, which only happened in December because as, Your Honour, I'm sure, knows how long things take to, for the wheels to start turning in order for her to have her access. And, of course, we had to wait till September 13 for the judgment to come out and if Your Honour even looks at Ms. Ko's affidavit from the CAS, they were having discussions with mom as early as November 2011 to get the access going, which had only started in December of 2011."

She has graduated from her undergraduate program. She has a bachelor degree in science from the University of Toronto. Her access visits have gone very well. There was ample space for the children to reside in Ms. C.Og.'s home. She's completed a 12-week parenting program called Incredible Years, at the City of Toronto. She has support from Ujima House, a community organization, from which, I add, her support worker is actually in court and has spoken this morning with Ms. Henry extensively about the involvement actually of both parents who are seeing this individual. Her doctor, Dr. Ravi, states that she's never been diagnosed with any psychiatric disorder. There's been no evidence of psychopathology.

There are genuine issues for trial here. The kids are very happy to see mom.

[56] Mr. Baratz further submits that:

It is important to have workers under cross-examination to determine why the children cannot start to be returned to Ms. C.Og. and even for the father, for that matter, who I've read has done extremely well and who has been very consistent with access since the summertime, but for one little glitch, which may have been caused through no fault of his own by getting arrested in Alberta in terms of, by helping a friend and he may be found not guilty and fully acquitted and vindicated for that issue that happened because a return to dad would have been very likely had he not, or could have been very likely had he not had that screw-up in Alberta.

[57] Ms. Lau submits that the viability of Mr. M.S.'s plan for the children remains a genuine issue for trial. He relies on his affidavits, one dated August 24, 2011, at Volume two, Tab Seven of the continuing record and his affidavit dated March 22, 2012, which is at Volume two, Tab 16 of the continuing record.

After hearing a summary judgment motion on August 29, 2011, Justice Waldman found that there was a genuine issue for trial with regards to Mr. M.S.'s plan. We now have the benefit of Justice Waldman's written reasons, which outline the issues the court would need to evaluate and what Mr. M.S. would need to do to address these issues. Specifically, the following are genuine issues for trial with regard to Mr. M.S.'s plan; first, Mr. M.S.'s sustained change in his life and priorities and, further, his commitment to his children; secondly, his ability to care for his children on a long-term basis. Further issues for trial, or potential issues for trial, are the adoptability of the children and whether or not, if the children are made Crown wards, access is meaningful and beneficial to the children. It is her submission that Mr. M.S. has maintained the commitments that he stated that he would maintain, at the time of the previous summary judgment motion, to prioritize his children.

At paragraphs 10 and 24 of her judgment, Justice Waldman noted the changes that Mr. M.S. had made to make his children a priority, namely, his participation in the program at the Yorktown Centre, the closing down of his business and his insight into the Society's concerns. One of the biggest issues in the initial stages, which the Society has brought up today, was that Mr. M.S. was relying on the respondent mother to care for the children.

The submissions last time stemmed on Mr. M.S., the cultural significance of traditional family roles with regards to Mr. M.S. being the breadwinner and the respondent mother being a traditional caregiver. This position has changed. He continues to emphasize that he is now planning for the children solely with no assistance from the respondent mother. He may be hopeful that the respondent mother will resume her relationship with the children. His plan of care does not rely on the respondent mother whatsoever.

Mr. M.S. did close his business in June 2011 and has remained committed to focusing on his children completely. He has not resurrected his business and he has not done any business travel since that time. He does remain on social assistance at this time and he does have assistance in the community and his plan continues to be that he will return to work when the children are settled and he has committed that he will not take any job that will require any time away from the children, or any travel away from the children. The Society points to Mr. M.S.'s absence between January 20 and March 15, 2012, as a lack of commitment to his children. The circumstances of this are outlined at Mr. M.S.'s affidavit dated March 22, 2012, at paragraphs 20 to 33. Mr. M.S. was contacted by his old, his former girlfriend, R.A., as she had been arrested and charged with falsely obtaining credit and knowing that she had no one else to help her, Mr. M.S. flew to Lethbridge to help her out with her bail.

[58] On October 11, 2011, Ms. C.Og. attended a meeting at the Society's office to discuss E. Ol.'s prescription for Concerta (27 mg), prescribed by Dr. Leo Levin. The Society reviewed E. Ol.'s psychological assessment completed in November 2010 by Dr. Fitzgerald. Dr. Fitzgerald had recommended a consult regarding E. Ol.'s ADHD.

[59] Mr. M.S. closed his business in June 2011. He has not resurrected his business. He is on social assistance. He has assistance in the community. His plan is that he will return to work when the children are settled. He will not take any job that will require any time away from the children. He will not travel away from the children.

The Lethbridge Incident

[60] On January 17, 2012, an article posted on the internet, on Lethbridge News, titled 'Police arrest female for setting up fraudulent bank accounts' reported that: "M.S., […], of T[…], Ontario, has been charged with two counts of aiding and abetting R.A. with attempting to obtain credit under false pretences and one count of possessing an ­­­identity." Ms. R.A. is Mr. M.S.'s former girlfriend. See Exhibit "A," copy of the article from the Lethbridge News, of the affidavit of Angie Ko, dated February 17, 2012, at Tab Six, Exhibit One.

[61] On January 31, 2012, Mr. M.S. disclosed:

a. He could not "be available for the children right now," as he had a problem that he was taking care of.

b. He had spoken to Ms. C.Og., who had agreed to take care of the children.

c. He was not planning for the children and he was withdrawing his plan because he is "not able to do it," but wished to clarify that he was not running away from his children and would be speaking to his lawyer who would be able to explain it better.

d. He had personal matters that came up suddenly.

e. He was not in Toronto. (See paragraph 123 of Ms. Ko's affidavit.)

[62] On January 31, 2012, Mr. M.S. advised the Society that he would be away for 60 days. He was withdrawing his plan to care for the children.

[63] The Society points to Mr. M.S.'s absence between January 20 and March 15, 2012, as a further lack of commitment to his children. See Mr. M.S.'s affidavit dated March 22, 2012, at paragraphs 20 to 33. Mr. M.S. was contacted by a former girlfriend, R.A.. She had been arrested and charged with falsely obtaining credit. Mr. M.S. had flown to Lethbridge to help her out with her bail.

[64] Mr. M.S. was arrested for aiding and abetting Ms. R.A.. Mr. M.S. maintains these are false charges. He was unexpectedly arrested. He has been falsely accused. He is pleading not guilty to all of the charges. He is proceeding to trial in Lethbridge.

[65] One of the consequences of being charged was that he was under a bail condition that he could not leave Alberta. He contacted the Society and he did indicate that he was withdrawing his plan. He did this without consulting his counsel. He was not running away from the children or abandoning his children. This is indicated at paragraph 123 of Ms. Ko's affidavit dated February 12, 2012.

[66] His amended bail conditions were amended to allow him to go to Ontario.

[67] He was obliged to stay away due to this bail condition. He did not tell the Society he wished to have no contact with the children. He requested telephone contact with the children until he could return, which was denied by the Society. When he returned to Ontario, he contacted his worker to resume access visits.

[68] Mr. M.S. submits that he would not have said that he was withdrawing his plan if he knew that there was a way to come back to Ontario. There was no indication he knew that he could do this until he spoke to counsel. He states that if he had known that this would take him away from his children, he would not have gone to Lethbridge. He did not anticipate going to Lethbridge would lead to his arrest. His absence should not be seen as a lack of commitment to his children, at least not in this instance.

[69] Mr. M.S.'s plan is for the children to be returned to his care. His plan is outlined at paragraphs 40 to 51 of his affidavit dated March 22, 2012. It remains unchanged from his plan outlined in his August 24, 2011 affidavit. The Society was prepared to go forward with Mr. M.S.'s plan to have the children returned to him. They had expanded his access visits where he had overnight visits every weekend. He had extended visits during the winter holiday season between December 24, 2010, and January 2, 2011.

[70] The reality and the court finds that Mr. M.S.'s plan at this point in time is simply too uncertain, speculative and hypothetical to sustain going forward, given his outstanding criminal charges inter alia. It is not possible for this court, even with the best available evidence, to do more than speculate upon the outcome of Mr. M.S.'s serious criminal matters in Alberta. Matters of opinion may or may not be subject to proof. What we are concerned with are "evidentiary" facts. These may be either real or intangible. Real facts are susceptible of proof by direct evidence. Arguably, it may not be a finding of fact because these outstanding criminal charges are prospective, in the future.

[71] Ms. Lau submits that Mr. M.S. had access visits for the entire March Break in 2011. He began working with the Yorktown Child and Family Centre in January 2011. The goal was to facilitate the transition towards the children's reunification with him. Mr. M.S. worked with, and the children worked with, their worker for eight sessions and with Ms. Vella for eight sessions. These were considered by Justice Waldman in determining that there were genuine issues for trial and that Mr. M.S. had demonstrated a commitment to his children. Since the Summary Judgment Motion until January 20, 2012, he attended visits regularly. He called in advance to cancel visits if he could not make it. He had to cancel six visits in total in that time span. His visits were increased from one visit a week to two visits a week. In November 2011, he agreed to participate in the therapeutic access program and completed the intake process. Mr. M.S. officially started this program in January of 2012. This was interrupted by the events in Lethbridge. When he returned to Ontario in March 2012, he attended a meeting on March 12, 2012, and had an access visit on March 15.

[72] Mr. M.S. submits that he is often engaged in playing games with the children. He'll often play basketball or soccer or Monopoly. He engages with the children and talks to them about school, offers praise appropriately when they do well. He brings them food, a mixture of both healthy food and some treats. The children and Mr. M.S. greet each other and say good-bye with a lot of affection. The children look forward to their visits with their father and it impacts them when they do not occur. They enjoy their visits with Mr. M.S. and he greatly enjoys and loves his visits with them.

[73] He has completed two eight-week parenting courses through Young and Potential Fathers. This was one of the steps Justice Waldman deemed imperative in her written.

[74] Mr. M.S. completed two parenting programs and has been attending one father's group and he has written a letter in support of this. See Exhibit B of Mr. M.S.'s affidavit dated March 22, 2012. Mr. M.S. attended and participated in medical consults for the children on October 25, 2011 and December 15, 2011 to discuss E. Ol.'s medication. He recognizes the importance of following the advice of medical professionals. He has asked for the children's report cards to remain up to date on their progress. He speaks to E. Ol. consistently during access visits about the importance of focusing on schooling.

[75] Mr. M.S. participated in a teleconference on December 20, 2011, with E. Ol.'s school to discuss E. Ol.'s behaviour. He attended plans of care on September 19, 2011 and December 20, 2011. He is participating in all aspects of the children's care and making an effort to be informed of what the children need.

[76] Mr. M.S. wishes to continue with TAP. His ability, it is submitted, to parent the children continues to be a genuine issue for trial.

[77] Ms. Lau submits that Mr. M.S. and his plan should be evaluated and cross-examined by means of a trial. With regard to the adoptability of the children, this also remains an issue for trial. The Society has indicated that the children have significant special needs. There have been submissions that E. Ol. has school difficulties and A. Ol. has ADHD. The adoptability of the children should be considered at a trial, Ms. Lau submits. With regards to access and whether the access is meaningful and beneficial, this is also a genuine issue for trial.

THE LAW

[78] For the reasons that follow, I find that there is no genuine issue for trial in this case, and that an order should issue making both E. Ol. and A. Ol. Crown Wards without access.

Summary Judgment Test

[79] Pursuant to Rule 16(4) the Society is obligated to serve an affidavit, or provide other evidence, that sets out specific facts to convince the court that there is no genuine issue that requires a trial.

[80] Rule 16(4.1) provides that a responding party must also set out by way of affidavit or other evidence that there is a genuine issue for trial. Mere allegations or denials of the evidence of the Society will not be sufficient.

[81] Rule 16(6) sets out that the test is whether there is a genuine issue requiring a trial of a claim or defence. The rule 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.

[82] The court must proceed cautiously in a motion for summary judgment and ensure absolute fairness to the parties (Children's Aid Society of Toronto v. M. (P.), 2002 CarswellOnt 1883 (Ont. C.J.)). Considerations of due process, statutory requirements and the best interests, protection and well-being of the children will determine ultimately the appropriateness of summary judgment (Children's Aid Society of Waterloo (Regional Municipality) v. S. (T.), [1999] O.J. No. 5561 (Ont. C.J.)).

[83] While it is not appropriate to bypass a hearing just to ensure a speedy resolution, where the process is fair and the evidence available, the best interests of the child and their particular needs should not be discounted. (CAS of the Regional Municipality of Waterloo v. R.S., [2000] O.J. No. 4880).

[84] In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine whether there are specific facts to support a triable issue in any of the determinations required to be made by the court. (Children's Aid Society of Waterloo (Regional Municipality) v. S. (R.), [2000] O.J. No. 4880 (Ont. C.J.) (page 8)). The court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. (Children's Aid Society of Waterloo (Regional Municipality) v. S. (T.), (1999), [1999] O.J. No. 5561, 1999 CarswellOnt 4859 (Ont. C.J.)).

[85] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence; this is reserved for the trier of fact: (Children's Aid Society of Nipissing (District) v. M. (M.), [2000] O.J. No. 2541, 2000 CarswellOnt 2372 (Ont. S.C.J.)). However, the court can and should examine the evidence to decide whether it meets the threshold test of reliability: (Children's Aid Society of Toronto v. D. (C.), [2004] O.J. No. 2461 (Ont. C.J.)).

Best Interests of the Child

[86] The starting point for determining the issue of placement in child protection proceedings is section 1(1) of the CFSA, which stipulates that the primary purpose of the Act is "to promote the best interests, protection and well-being of children." The court is required to advance this primary purpose taking into consideration the other purposes of the Act, which are set out in section 1(2) as follows:

Other Purposes

1(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,

   ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

   iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

   iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

[87] These other purposes set out in section 1(2) indicate that in carrying out its duties under the CFSA, the court is required to analyze the best interests of the child with an eye to the importance of supporting the family, maintaining the family intact if possible, and accessing community supports if appropriate to promote the best interests of the child and the integrity of the family unit. The non-interventionist principles set out in section 1(2) are not aimed at strengthening the rights of parents, but rather are founded on the importance of keeping the family intact if this is consistent with advancing the child's best interests.

[88] If the court determines that ongoing court intervention is required for the child's protection, section 57(1) directs the court to make one of the following orders, "in the child's best interests":

i. An order under section 57.1 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;

ii. An order that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than twelve months;

iii. An order that the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

iv. An order that the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

v. An order that the child be made a ward of the society for a specified period under section 57(1)2 and then be returned to a parent or another person subject to society supervision under section 57(1)1, for a period or periods not exceeding an aggregate of twelve months.

[89] Section 57(1) of the CFSA confirms that "the best interests of the child" is the governing principle for determining placement of a child in a Protection Application. Section 37(3) sets out the following factors which the court is required to consider in carrying out the best interests analysis:

Best Interests of Child

[90] 37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[91] Where the court has found that a child is in need of protection and the court is satisfied that intervention through a court order is necessary to protect the child in the future, the choice of remedies available are governed by the child's "best interests" (sections 57 and 57.1), indicated supra. The dominant consideration of the best interests test is the welfare of the child: see Re McGrath, [1893] 1 Ch. 143 at 148, cited with approval in Catholic Children's Aid Society of Toronto v. M.(C.) (1994), 113 D.L.R. (4th) 321 at 346 (S.C.C.). In Re McGrath, the court stated that 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." The best interests test is therefore not meant to create a competition between caregivers based on economic means.

[92] 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 Toronto v. M.(C.), at 347 (S.C.C.). The passage of time may be the most significant event for the child and the child's developmental needs. The Supreme Court, in Catholic Children's Aid Society of Toronto v. M.(C.), recognized that the best interests of a child are continuously evolving. Thus, different solutions may be required over time.

[93] Finally, while perhaps apparent, the best interests of a child take priority over the desires and interests of the parent.

[94] For example, Section 37(3)(7) recognizes the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

[95] In Kawartha-Haliburton Children's Aid Society v. E.W., continuity of care required that the order be permanent.

[96] Under clause 37(3)(10) the effects on the child of delay in the disposition of the case may be considered.

[97] Delay is commonly seen as one of the greatest sources of injustice within child protection proceedings. The passage of time can erode the parent-child connection and significantly reduce the chances of successful reintegration of the child into the family unit.

[98] Sections 57(2) (3) (4) and (5) of the CFSA outline a number of additional factors which the court is required to consider in deciding the question of placement in the context of a Protection Application. These provisions reinforce that in child protection proceedings, the best interests analysis occurs against a backdrop that recognizes the desirability of assisting and maintaining the family unit through community and family support, if doing so is consistent with the child's best interests.

[99] The Society herein is seeking an order for Crown Wardship. This is the most intrusive order that the court can make in child protection proceedings. The court should only grant this relief with "the highest degree of caution and only on the basis of compelling evidence, and after a careful examination of possible alternative remedies."

[100] In any proceeding under Part III of the CFSA, the court may consider the past conduct of a party toward any child, and any oral or written report that the court considers relevant to the proceeding is admissible as evidence.

Access to Crown Wards

[101] Pursuant to section 58(1) of the CFSA, the court may make, vary or terminate an order respecting a person's access to the child, or the child's access to the person, and may impose terms and conditions on this access which the court considers appropriate. Section 59(2.1) of the CFSA establishes a presumption against access if the child is made a Crown Ward, as follows:

Access: Crown Ward

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

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2).

[102] The onus is on the party seeking access to satisfy the court on a balance of probabilities that the criteria set out in section 59(2.1) have been satisfied. With respect to the first branch of the test, the focus is on the importance of the relationship from the child's perspective. Quinn, J. outlined a number of important principles relating to the test in Children's Aid Society of Niagara Region v. J. (M). He held that a beneficial relationship is one that is "advantageous," and a meaningful relationship is one that is "significant." He concluded that the existence of some positive aspects in the relationship between a child and a parent is not sufficient to meet the first part of the test in section 59(2.1); rather, it must be shown that the relationship is significantly advantageous to the child. The focus of the inquiry is the nature of the current relationship between the child and the party in question, not on how that relationship may unfold in the future. Even if the parent proves that the relationship is beneficial and meaningful, the court must still weigh the overall benefits of access to the child as opposed to no access before making a decision on the access issue.

[103] In the past, the focus of the analysis under the second branch of section 59(2.1) was whether the child was considered "adoptable." If the child was adoptable, the party seeking access could not typically satisfy the test, since former 141.1(a) of the CFSA prevented a Society from placing a Crown Ward for adoption where an outstanding access order made under Part III of the CFSA was in effect.

[104] Bill 179, the Building Families and Supporting Youth to be Successful Act, 2011, repealed former 141.1(a) of the Act, with the result that Societies may now place Crown Wards for adoption even where there is an outstanding access order, provided that they give anyone who has been granted an access order thirty days notice of the plan to place the child for adoption. Bill 179 amended section 143(1) of the CFSA to provide that access orders in respect of Crown Wards are automatically terminated upon the child being placed for adoption, and granted those who have an access order in relation to a Crown Ward the right to apply for an openness order that would continue after adoption. These amendments have given parties seeking access to Crown Wards a greater scope of argument in advancing their case for access. The inquiry no longer ends if the child is found adoptable, since a Crown Ward with access can now be placed for adoption. The additional question that will now be raised is whether the possibility of an openness order after adoption will impair the child's opportunities for being adopted.

[105] The onus is on the moving party in a summary judgment motion to prove on a balance of probabilities that there is no genuine issue that requires a trial for its resolution, and the moving party must file affidavit materials that set out specific facts to support this determination. While the judge hearing a summary judgment motion initiated pursuant to Rule 16 is not permitted to resolve credibility issues, draw inferences from the evidence or weigh the evidence, he or she is required to take a good hard look at the evidence to determine if there are grounds for the order that is being requested on a summary judgment basis. Once the moving party has adduced evidence that indicates that there is no genuine issue of material fact requiring a trial, the responding party must then advance evidence of specific facts that "establish his claim as being one with a real chance of success." If there is a genuine issue with respect to a material fact or facts relating to the case, then the matter must be directed to trial regardless of how weak or strong the claim or defence may appear.

[106] The court should not be asked to speculate as to possible evidence or elaboration which might be available for trial. Mr. M.S. has outstanding criminal charges in Lethbridge, Alberta. He is in no position to plan. Ms. C.Og. cannot rely on Mr. M.S. She cannot plan on her own. Her access was only recently recommended after some 13 months without exercising access. See Children's Aid Society of Toronto v. H. (C.), 2004 ONCJ 224, 2004 ONCJ 224, [2004] O.J. No. 4084, 2004 CarswellOnt 4076 (Ont. C.J.). A submission that the Society's evidence must be tested through cross-examination is akin to the "bald allegation" or "mere denial" referred to in Rule 16(4.1) of the Family Law Rules. See Children's Aid Society of Hamilton v. M.A. [2007] O.J. No. 2454; 158 A.C.W.S. (3d) 766 (Ont. S.C.J.). There must be some connection between the determination of a disputed fact and the outcome of the trial. If determination of the issue will have no bearing on the outcome of the trial, it is not a "genuine issue for trial."

[107] "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed." See Children's Aid Society of Oxford (County) v. J. (J.), [2003] O.J. No. 2208 (Ont. S.C.J.); when the "outcome is a foregone conclusion." See Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), (1996), 139 D.L.R. (4th) 534 (Ont. Gen. Div.). No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant. See Children's Aid Society of Simcoe (County) v. S. (C.), [2001] O.J. No. 4915 (Ont. S.C.J.).

[108] The landmark case wherein summary judgment was introduced to the child protection realm was Catholic Children's Aid Society of Metropolitan Toronto v. L.M.O., [1995] O.J. No. 3971 (Ont. Ct. Prov. Div.), aff'd (1996), 139 D.L.R. (4th) 534 (Ont. Ct. Gen. Div.), aff'd (1997), 30 R.F.L. (4th) 16 (Ont. C.A.). The case concerned one child who was severely and permanently injured by the father and one child who was killed by the father while in the parents' care. The father's murder charge, pending at time of the motion for summary judgment, resulted in a conviction.

[109] In family cases of Crown wardship, similar principles apply as those articulated in Irving Ungerman Ltd. v. Galanis; Aguonie v. Galion Solid Waste Material Inc.; and Vaughan v. Warner Communications Inc. et al. 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. Then, the court must determine whether there are specific facts to support a triable issue. The court may then dismiss the motion, rule that there are only certain issues that require a full hearing, or determine that there are no triable issues regarding the entire application.

[110] In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the CFSA. These children have been in care for more than two years. They cannot wait any longer. They cannot wait for Mr. M.S. They cannot wait for Ms. C.Og. The court must give paramount consideration to the best interests test which would include, among other factors, as certain a future as possible. See Children's Aid Society of Algoma v. P. (L.), [2002] O.J. No. 2895 (Ont. S.C.J.).

[111] If the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child's future.

[112] Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The children cannot be held in limbo waiting for change in a parent that may not happen. The parent's right to correct parenting inadequacies, if not criminal charges and lack of historic access commitments, must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized.

[113] Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children.

[114] Given the fact that these children have been in care for more than 24 months, the strict timelines set out in s.70 preclude consideration of any further period of Society wardship. The best interests of E. Ol. and A. Ol. require permanence and stability. Returning them to the care of either mother or father would not be safe. No other family or community options are available.

[115] In the circumstances, as indicated, Crown wardship is appropriate and in the children's best interests. Realistically, there are no other options.

Judicial Reasoning on Best Interests

[116] In Van de Perre v. Edwards, 2001 SCC 60, [2001] S.C.J. No. 60 (S.C.C.), Bastarache J., for the Court, stated as follows in response to the submission that the trial judge had not addressed all of the "best interests" factors set out in the provincial custody statute when deciding what was in the best interests of a child in a custody matter:

[117] "In preparing reasons in custody cases, a trial judge is expected to consider each of these factors in light of the evidence adduced at trial, however, this is not to say that he or she is obligated to discuss every piece of evidence in detail, or at all, when explaining his or her reasons for awarding custody to one person over another."

[118] See further C. L'Heureux-Dubé, "Re-examining the Doctrine of Judicial Notice in the Family Law Context" (1995), 26 Ottawa L. Rev. 551, at p. 572:

"Where the adversarial process focuses on justice between the parties, the family law context focuses more simply on justice. This slight shift in perspective is integral to family law because frequently the party most affected is the party who often does not have independent representation – the children…"

Multiple Summary Judgment Motions

[119] Rule 20 of the Rules of Civil Procedure

[120] In the case 1413910 Ontario Inc. (C.Og.b. Bulls Eye Steakhouse & Grill) v. Select Restaurant Plaza Corp., [2005] O.J. No. 3449, 75 O.R. (3d) 351 (S.C.), the plaintiff had brought a partial summary judgment motion that was decided by Matlow J. The plaintiff then brought another summary judgment motion. Pitt J. granted summary judgment. He stated at paragraph 16: "Whether or not Rule 20 permits more than one motion for summary judgment has not been definitely determined, although I am inclined to the view that it is not prohibited. I agree in this context of these proceedings. See also DeMarco v. Mascitelli, [2003] O.J. No. 5035 (Div. Ct.), affirmed [2004] O.J. No. 4079 (C.A.). It should be noted, however, that s. 138 of the Courts of Justice Act discourages multiplicity of proceedings."

[121] Pitt J. asked the following question at paragraph 5: "What developments have there been that would justify this proceeding given the nature of Matlow J.'s decision?" He considered that there needed to be some change in circumstances to warrant another motion on the same issues.

Full Appreciation Test

[122] One of the purposes of summary judgment is to avoid the expense of full trial preparation, but only where the case is amenable to summary judgment and does not require, by its nature, the forensic machinery of a trial. See Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 2011 ONCA 764, [2011] O.J. No. 5431 [Combined Air]. At paragraphs 50 and 51 the court establishes what it calls the "full appreciation test," holding that: "the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?"

[123] In Combined Air, the Court of Appeal expresses a caveat to the "best foot forward" principle at paragraphs 57 and 58. At paragraph 57 the court noted:

[124] It will not be in the interest of justice to exercise rule 20.04(2.1) [not Rule 16 of the FLR] powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

[125] "Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial."

[126] This is a case (even considering Rule 20) where the court does fully appreciate the complete picture.

Trial Judge's Advantage

[127] In Housen v. Nikolaisen, 2002 SCC 33, 2002 SCC 33, [2002] 2 S.C.R. 235, the majority decision of Iacobucci and Major JJ., at para. 14, quotes a passage from R.D. Gibbens in "Appellate Review of Findings of Fact" (1991-92), 13 Advocates' Q. 445, at p. 446, which refers to the trial judge's "expertise in assessing and weighing the facts developed at trial." The quoted passage states: "The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence." The passage further notes that the trial judge gains insight by living with the case for days, weeks or even months. At para. 18, Iacobucci and Major JJ. go on to observe that it is the trial judge's "extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole" that enables him or her to gain the level of appreciation of the issues and the evidence that is required to make dispositive findings.

[128] In contrast, a summary judgment motion is decided primarily on a written record. The deponents swear to affidavits typically drafted by counsel and do not speak in their own words. The record does not take the form of a trial narrative.

Genuine Issue for Trial

[129] Not every disputed fact or question of credibility gives rise to a genuine issue for trial. A genuine issue for trial must relate to a material fact or facts. It must be an issue that is real and authentic, is not spurious to the case, and is substantial and sufficiently important to warrant a judicial determination. The issue must be relevant, in the sense that it must relate to material facts that are critical to the determination that the court is called upon to make. Disputed facts, the existence or non-existence of which will not affect the outcome of the case, do not raise a genuine issue for trial.

[130] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion. The court must rely on and assess what is adduced in the affidavit materials submitted on the motion.

[131] In child protection cases, the existence of a genuine issue for trial must arise from something more than a heartfelt expression by a parent of a desire to resume care of the child. There must be an arguable point based on the parent's evidence that the parent faces some better prospects than those that existed at the time of the Society's initial involvement, and has developed some new ability as a parent. The courts have highlighted the importance of additional considerations in summary judgment motions brought in the context of child protection cases. These include "the nature of the evidence on the motion, any mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in issue to the case." In addition, the analysis must be undertaken under the umbrella of the paramount purpose of the CFSA, which is "to promote the best interests, protection and well-being of children." Summary judgment is a means of controlling a child's drift in litigation and allowing for appropriate planning for the child in a timely manner.

THE POSITIONS OF THE PARTIES

[132] The Society's position is that there is no genuine issue for trial regarding the disposition which is in E. Ol.'s and A. Ol.'s best interests. Counsel for the Society argued that the fundamental underlying problem in relation to the Respondents is that they both lack the intellectual capacity to meet the needs of the children. Counsel for the Society summarized the numerous historical and ongoing concerns respecting the parents' general functioning, their difficulties in meeting their own needs, their inability to meet the needs of their children, their lack of a meaningful support network and their inability to appropriately engage in services in such a way as to effect any significant changes in either their own functioning or their parenting capacity.

[133] The Respondents are requesting that the children be returned to their care, and asked that this summary judgment motion be dismissed so that they can present their case in the context of a full trial on the issues. Their position is that there is a genuine issue for trial respecting their capacity to parent the children, with the support of the Society and other community service providers.

1. Mother's counsel submits that mother has the skills required to raise the children.

2. It is submitted that the Respondents' current situation is very different from what it was in the past.

3. Counsel for mother submits that the circumstances were much different at the time of the hearing before Justice Waldman than the Respondents' present circumstances. The court should not rely on the conclusions which Justice Waldman reached in September 2011.

[134] With respect to the specific concerns raised by the Society, counsel for each parent submits that they have adduced credible evidence to either rebut or greatly alleviate those concerns.

[135] It would be unfair to conclude on a summary judgment basis that it is plain and obvious that the parents could not succeed in having E. Ol. and A. Ol. returned.

Court's Analysis

[136] I am satisfied based on the motion record before me that the Society has met the onus upon it of showing that there is no genuine issue for trial. The Society's evidence establishes significant concerns regarding the parties' ability to maintain the commitment that is required to parent their children on a long-term basis.

[137] The record reveals major concerns about the Respondents' ability to cope with day-to-day responsibilities and their capacity to appropriately prioritize issues in their lives.

[138] In carrying out the best interests analysis, I have considered the serious and longstanding nature of the concerns which the Society has identified respecting these parents.

[139] I have also considered the children's physical, emotional and special needs, and whether the Respondents are able to meet those needs.

[140] Turning to the issue of access, given that I have determined that an order for Crown Wardship should issue respecting E. Ol. and A. Ol., the onus is on the Respondents to adduce evidence that their relationship with the children is beneficial and meaningful to them. They have failed to adduce any evidence to support such a finding. They have missed many visits and have failed to provide a satisfactory explanation for these missed visits. An order for no access to the children should issue.

[141] I find that Ms. C.Og. chose not to have access to her children for some 13 months out of the 24 months they have been in care. I find that Ms. C.Og. made specific choices and decisions. She attended university. She worked full-time. She chose not to attend to access.

[142] As indicated, supra, access is dealt with in sections 58 and 59 of the CFSA. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a society. Section 59(2.1) creates a presumption against access where the child is a Crown Ward. Section 59(2.1) has not been changed by the recent amendments, and reads:

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

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

[143] Once there is an order for Crown wardship the focus of the CFSA is to establish a permanent and stable placement for the child. There is a presumption against access to Crown wards (Children's Aid Society of Toronto v. C. (S.A.) (2005) 2005 ONCJ 274, O.J. No. 2154 (Ont. C.J.). The person requesting access must provide evidence with respect to both requirements of s. 59(2.1). (Children's Aid Society of Metropolitan Toronto v. A. (M.) (2002), 2002 CarswellOnt 1923 (Ont C.J.); D. (C.) v. Children's Aid Society of Algoma (2001) O.J. No. 4739 (Ont. S.C.J.) (pages 16, 17). The rebuttable presumption under s. 59(2.1) is conjunctive. A person must rebut both elements of s. 59(2.1) or the access cannot be ordered.

[144] The Divisional Court provided guidance with respect to the first part of the s. 59(2.1) test in Children's Aid Society of the Niagara Region v. J.C. (2007), O.J. No. 1058. Aitken J. stated at paragraph 29:

"Beneficial" has been held to mean "advantageous." "Meaningful" has been held to mean "significant" (Children's Aid Society of Niagara Region v. J. (M.), (2004) 4 R.F.L. (6th) 245, 2004 Carswell 2800, at para. 45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother's relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified.

[145] Justice Lafrenière adopted those comments in Children's Aid Society of Hamilton v. W.M. (2008), O.J. No. 4052, finding that it was not sufficient for parents to state that "access was appropriate and that no concerns had been identified." The court held that the mother's access was not "beneficial" because "it does not bring any positive advantage" to the child.

[146] The meaning of "beneficial and meaningful" was examined by Justice J. W. Quinn in Children's Aid Society of Niagara Region v. M.J., K.S. and S.S. (2004), O.J. No 2872, where he commented:

What is a "beneficial and meaningful" relationship in clause 59(2)(a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous." A "meaningful" relationship is one that is "significant." Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough — it must be significantly advantageous to the child.

I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[147] Neither parent has met the onus of establishing that their access to the children is beneficial or meaningful. This determination makes it unnecessary to move on to the second part of the conjunctive test in s.59(2.1). Nonetheless, I will consider it.

[148] The second component of the s. 59(2.1) test places a burden on the person seeking access to show that an access order would not impair a child's future ability to be adopted. There is no onus on a Society to prove that a child for whom Crown wardship is sought is adoptable. (Children's Aid Society of Ottawa v. W. (C.) (2008), O.J. No. 1151 (Ont. S.C.J.); (Children's Aid Society of Niagara Region v. C. (J.) (2007), O.J. No. 1058 (Ont. Div. Ct.)).

[149] Until recent amendments to the CFSA, a Society was unable to place a Crown Ward for adoption if there was an outstanding access order under Part III of the Act. Crown Wards with access were not eligible for adoption. Section 141.1 of the CFSA has now been amended to allow Society's to place Crown Wards with an access order for adoption. The section now reads:

141.1 Limitation on Placement by Society

A society shall not place a Crown Ward for adoption until,

(a) the time for commencing an appeal of the order for Crown Wardship under subsection 57(1) or 65.2(1) has expired; or

(b) any appeal of the order for Crown Wardship has been finally disposed of or abandoned.

141.1.1(1) Adoption Planning

Nothing in this Act prohibits a society from planning for the adoption of a Crown Ward in respect of whom there is an access order in effect under Part III (Child Protection).

141.1.1(2) Openness

Where a society begins planning for the adoption of a child who is a Crown Ward, the Society shall consider the benefits of an openness order or openness agreement in respect of the child.

[150] Under the former legislation it was almost impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption. Section 141.1 opens the door slightly. But it does not change or even reduce either element of the conjunctive test in s. 59(2.1). The court must still be satisfied that "access will not impair the child's future opportunities for adoption."

[151] Even though s. 141.1 no longer precludes the Society from placing a Crown Ward for adoption if there is an outstanding access order, s. 143(1) sets out that once a child is placed for adoption any outstanding access order is terminated:

143(1) Access Orders Terminate

When a child is placed for adoption by a society or licensee, every order respecting access to the child is terminated, including an access order made under Part III (Child Protection) in respect of a Crown Ward.

143(2) No Interference, etc., with Child in Placement

Where a child has been placed for adoption by a society or licensee and no adoption order has been made, no person shall,

(a) interfere with the child; or

(b) for the purpose of interfering with the child, visit or communicate with the child or with the person with whom the child has been placed.

[152] Section 145.1 allows the Society to request an openness order, where no access order is in place.

145.1(1) Application to Make Openness Order

If a child who is a Crown Ward is the subject of a plan for adoption, and no access order is in effect under Part III, the Society having care and custody of the child may apply to the court for an openness order in respect of the child at any time before an order for adoption of the child is made under section 146.

145.1(2) Notice of Application

A society making an application under this section shall give notice of the application to,

(a) the child, except as otherwise provided under subsection 39(4) or (5);

(b) every person who will be permitted to communicate with or have a relationship with the child if the order is made;

(c) any person with whom the Society has placed or plans to place the child for adoption; and

(d) any society that will supervise or participate in the arrangement under the openness order.

145.1(3) Openness Order

The court may make an openness order under this section in respect of a child if the court is satisfied that,

a. the openness order is in the best interests of the child;

b. the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and

c. the following entities and persons have consented to the order:

(i) the Society,

(ii) the person who will be permitted to communicate with or have a relationship with the child if the order is made,

(iii) the person with whom the Society has placed or plans to place the child for adoption, and

(iv) the child if he or she is 12 years of age or older.

145.1(4) Termination of Openness Order if Crown Wardship Terminates

Any openness order made under this section in respect to a child terminates if the child ceases to be a Crown Ward by reason of an order made under subsection 65.2(1).

[153] Section 145.1.1 allows a parent of a Crown Ward whose access was terminated by virtue of an adoptive placement, to apply to the court for continued contact with the child by way of an openness order.

145.1.1 Access Order in Effect

145.1.1(1) Notice of Intent to Place for Adoption

This section applies where,

a) a society intends to place a child who is a Crown Ward for adoption; and

b) an order under Part III (Child Protection) has been made respecting a person's access to the child or the child's access to another person.

145.1.1(2) Notice

In the circumstances described in subsection (1), the Society shall give notice to the following persons:

1. The person who has been granted an access order.

2. The person with respect to whom an access order has been granted.

145.1.1(3) Right to Apply for Openness Order

The Society shall include in the notice the following information:

1. Notice that the Society intends to place the child for adoption.

2. Notice that the access order terminates upon placement for adoption.

3. In the case of notice to a person described in paragraph 1 of subsection (2), the fact that the person has a right to apply for an openness order within 30 days after notice is received.

4. In the case of notice to a person described in paragraph 2 of subsection (2), the fact that the person described in paragraph 1 of subsection (2) has the right to apply for an openness order within 30 days after notice is received.

[154] Section 145.1.2 sets out the procedure for such an application for an openness order.

145.1.2 Access Order in Effect

145.1.2(1) Application for Openness Order

A person described in paragraph 1 of subsection 145.1.1(2) may, within 30 days after notice is received, apply to the court for an openness order.

145.1.2(2) Notice of Application

A person making an application for an openness order under this section shall give notice of the application to,

(a) the Society having care and custody of the child;

(b) the child, except as otherwise provided under subsection 39(4) or (5); and

(c) if the child is bringing the application, the person who will be permitted to communicate with or have a relationship with the child if the order is made.

145.1.2(3) Condition on Placement

A society shall not place a child for adoption before the time for applying for an openness order under subsection (1) has expired unless every person who is entitled to do so has made an application for an openness order under this section.

145.1.2(4) Information Before Placement

Where an application for an openness order under this section has been made, a society shall, before placing the child for adoption, advise the person with whom it plans to place the child of the following:

1. The fact that such an application has been made.

2. The relationship of the applicant to the child.

3. The details of the openness arrangement requested.

145.1.2(5) Outcome of Application

Where an application for an openness order under this section has been made, a society shall advise the person with whom the Society has placed or plans to place the child for adoption or, after an adoption order is made, the adoptive parent of the outcome of the application.

145.1.2(6) Openness Order

The court may make an openness order under this section in respect of a child if it is satisfied that,

a) the openness order is in the best interests of the child;

b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and

c) the child has consented to the order, if he or she is 12 years of age or older.

145.1.2(7) Same

In deciding whether to make an openness order under this section, the court shall consider the ability of the person with whom the Society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent to comply with the arrangement under the openness order.

145.1.2(8) Consent of Society Required

The court shall not, under this section, direct a society to supervise or participate in the arrangement under an openness order without the consent of the Society.

145.1.2(9) Termination of Openness Order if Crown Wardship Terminates

Any openness order made under this section in respect to a child terminates if the child ceases to be a Crown Ward by reason of an order made under subsection 65.2(1).

145.1.2(10) Temporary Orders

The court may make such temporary order relating to openness under this section as the court considers to be in the child's best interests.

[155] The operative words of s. 59(2.1)(b) - "will not impair" - place an onus on the parents to satisfy the court that access to the Crown Ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption. The recent amendments create new and multi-phased dynamics which must be addressed in assessing the impact of an access order on the adoption process. The father and mother have presented no evidence which even addresses, let alone satisfies, the second part of the s.59(2.1) test.

[156] Even in the best-case scenario, it is unthinkable to place these children with their mother or father, without first testing at this point in time whether they could adequately parent them, first, now fully unsupervised basis, second, for full days, and third, again at this point in time, for overnight visits. The court would need to evaluate if they could meet their needs for these increasing periods of time. This process would need to take place for several weeks at the very least for the court to effectively evaluate if their return was viable. There is a huge difference between managing children in a structured setting for a short period of time and caring for them on an extended basis. The time to experiment with E. Ol. and A. Ol. is long over. This is no longer an option.

DECISION

[157] Summary judgment is granted in favour of the Society in relation to both children.

[158] The children, E. Ol., born 2003, and A. Ol., born 2007, are made Crown wards, without access.

[159] Parties are to be notified.

Released: April 16, 2012

Signed: "Justice Zuker"