COURT FILE No.: Toronto C43148/07

DATE: 2012·06·27

Citation: Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423

IN THE ONTARIO COURT OF JUSTICE

At 47 Sheppard Avenue East, 2nd Floor, Toronto, Ontario M2N 5N1

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990, c.C-11, as amended

IN THE MATTER OF THE CHILDREN’S AID SOCIETY

OF TORONTO

and

A.G.[2] & A.G.[1], children apparently in need of protection

BETWEEN:

THE CHILDREN’S AID SOCIETY OF TORONTO

Applicant

and

MS. C.G.

Respondent

and

Mr. J.C.

Respondent

Before Justice Marvin A. Zuker

Heard on May 21, 2012

Reasons for Decision on Motion for Summary Judgment released on June 27, 2012

Mae-Tuin Seto ........................................................................................ for the applicant society

George Alexander Novak (Coulson Mills)........................................ for the respondent (mother)

F. Nkiru Agbakwa ............................................................................. for the respondent (father)

ZUKER J.:

[1] This is a twice-amended status review application commenced on January 20, 2012. The two subject children are A.G.[2], who is three years of age, and A.G.[1], who is one year of age. The two children have been in care 14-1/2 and 15-1/2 months respectively.

[2] Both have exceeded the maximum period of twelve months permitted under the Child and Family Services Act for children under the age of twelve to be in care and are in need of permanency planning without further delay.

[3] Over the course of the proceedings, the Honourable Mr. Justice Spence has made five orders dispensing with service on J.M., the biological father of A.G.[2]. The orders were made on December 3, 2008, July 30, 2009, March 11, 2010, December 14, 2010, and August 4, 2011.

[4] On December 3, 2008, Justice Spence found A.G.[2] to be a child in need of protection pursuant to subsection 37(2)(b)(i) of the Child and Family Services Act and ordered that A.G.[2] be placed in Ms. C.G.’s care, subject to Society supervision with conditions, for a period of six months. The said supervision order was extended on July 3, 2009, and March 11, 2010.

[5] A.G.[2] was in the care of C.P. from 12/14/10 to 06/02/11.

[6] A.G.[2] was in the care of foster mother P. from 06/02/11 to present.

[7] A.G.[1] has been in the care of foster mother from […], 2011, to date.

[8] This matter was set for a summary judgment motion on April 23, 2012. It was adjourned to May 21, 2012. The mother had requested that her being noted in default be set aside and that she be given further time to file her answer. At that time, Mr. J.C.’s counsel indicated that Mr. J.C. would be released from prison on or about May 2, 2012. Mr. J.C. was not present on May 21.

[9] At that time the Society sought an order dispensing with service of the Status Review Application dated December 12, 2011, the Amended Status Review Application dated December 22, 2011, the Amended (x2) Status Review Application dated January 20, 2012, and related documents on Mr. J.M., the biological father of the child A.G.[2]

[10] Pursuant to Rule 16 of the Family Law Rules:

An order striking the Answer filed by Mr. J.C., the biological father of the child A.G.[1]; or, in the alternative:

A finding that there is no genuine issue for trial and an order that the children, A.G.[2], born […], 2008, and A.G.[1], born […], 2011, be made wards of the Crown and placed in the care of the Children’s Aid Society of Toronto.

[11] The materials filed in support of the Society’s motion are contained within the continuing record, volume 8, Tabs 8 to 14. Tabs 8 and 9 are the Society’s Notice of Motion and initiating affidavits and the notice of motion also refers to previously filed affidavits.

[12] Tabs 8 and 9 contain the Society’s Motion. Tab 10 is the affidavit of the mother filed on the last court date, Tab 12 the affidavit of the father. Following the setting aside of the default of the mother, Ms. C.G. filed an affidavit which contains her answer. That is found at Tab 13. Her answer consists of few sentences and her affidavit consists of eight paragraphs on one page.

[13] The Society filed a reply affidavit at Tab 14.

[14] There are numerous statements of agreed facts previously filed with respect to both the subject children, A.G.[2] and A.G.[1], as well as Ms. C.G.’s fourth child, A.G[3], who is no longer the subject of proceedings.

[15] A.G.[2] and A.G.[1] are Ms. C.G.’s fifth and sixth children, respectively. Her first four children are not in her care, those three children having been made Crown wards and child number four being in the care of the biological father. Historically, there were seven years of involvement with Ms. C.G. as a subject child and, then, dating back 14 years, her involvement as a subject parent, with all six children.

FAMILY CONSTELLATION

[16] The subject family of these proceedings consists of:

a. Ms. C.G., the mother, d.o.b. […], 1982;

b. J.M., the biological father of A.G.[1];

c. Mr. J.C., the biological father of A.G.[1], d.o.b. […], 1985;

d. A.G.[2], 3-1/2-year-old male, born […], 2008, subject child of these proceedings; and

e. A.G.[1], 1-year-old female, born […], 2011, subject child of these proceedings.

[17] Ms. C.G. also has four older children, all no longer in her care. These children are:

a. T.G., born […], 1998; made a Crown ward on January 28, 2000;

b. B.G., born […], 2000; made a Crown ward on February 6, 2002;

c. C.G.., born […], 2002; made a Crown ward on April 28, 2003; and

d. A.G[3], born […], 2006, who has been in the care of her biological father, R.M., since December 2007. Mr. R.M. was granted final custody of A.G[3] pursuant to the Children’s Law Reform Act on March 11, 2009.

[18] The current opening with respect to these children, A.G.[2] and then A.G.[1], dates back to October 2007. A.G.[2] has been apprehended twice, firstly, by the Society in 2009 and secondly, from the care of an aunt in 2010 following a failed kin placement. This is A.G.[2]’s second placement since the commencement of proceedings four years ago.

[19] A.G.[1] was apprehended at birth and has been in care her entire life.

[20] Ms. C.G. has had visits with both children since their placement in care.

[21] Mr. J.C., biological father of A.G.[1], filed an answer indicating he wished to plan for A.G.[1]. A reason this matter was adjourned to this date is that Mr. J.C. has never had one visit with A.G.[1] throughout her entire life. He was incarcerated before the child was born. He indicated a wish to have graduated access and eventually plan for A.G.[1], after getting to know her, upon his release from prison on or about May 2, 2012. The worker was able to arrange a meeting with him, the only time the Society has met with Mr. J.C.. That was on May 9, 2012, at the Society’s office. The Society has not heard from Mr. J.C. since then.

[22] He had been incarcerated at Maplehurst Detention Centre since January 13, 2011, on charges of Break and Enter and Possession of Stolen Property. He acknowledged having a prior criminal conviction of Resisting Arrest and Obstructing Police Officer. By way of a Consent sent to the Society on October 31, 2011, he was sentenced to two years’ imprisonment for this prior conviction.

[23] In his Affidavit of March 15, 2011, Mr. J.C. supported the placement of A.G.[1] in Ms. C.G.’s care or, in the alternative, in the care of C.P. (maternal aunt) or other kin proposed by Ms. C.G. He did not propose a plan for A.G.[1] to be cared for by him or indicate what access or involvement he proposed to have with the child.

[24] Mr. J.C. did not file a formal Answer and Plan of Care to the Protection Application re A.G.[1], dated February 14, 2011. On August 4, 2011, Justice Spence noted him in default.

[25] Mr. J.C. was served with the Society’s Status Review Application on December 12, 2011, and its Amended Status Review Application on December 22, 2011. He did not file an Answer and Plan of Care in response to these applications. He was further served with the Society’s Amended Amended Status Review Application on January 25, 2012.

[26] As of April 23, 2012 (the original date for the Summary Judgment Motion), Mr. J.C. would have been incarcerated continuously for a period of 15 months. He is currently at the Central North Correctional Centre at Penetanguishene, Ontario, a maximum security prison.

[27] Prior to the summary judgment, the Society had requested that Mr. J.C.’s answer be struck. The Society maintains that same position that, pursuant to Rule 16, his Answer contains no reasonable defence in law. He proposes a plan that might take effect sometime in the future. He acknowledged to the Society as recently as May 9, 2012 that he is currently in a temporary housing arrangement with a friend but is looking for accommodations. He did not come to court and has never visited the child.

[28] The Respondent father believes that it will serve A.G.[1]’s best interest if her biological father is given an opportunity to care for her on a long-term basis.

[29] He seeks in part an Order awarding custody of the child, A.G.[1] (born […], 2011), to him as a long-term plan and an Order requiring the Society to assess the Respondent for a long-term plan for the child’s care.

[30] With respect to the mother, in her affidavit and answer at Tab 13 Ms. C.G. states in part that she will be moving to a new apartment and she will be receiving help with rent from her sisters. There is no affidavit from either sister nor is either sister present today. There is no confirmation of any efforts in progress at securing an apartment. There is denial of allegations about mother’s mental health, in paragraph 7. The Society submits that, on the issue of housing alone, there is no indication the mother has secured adequate housing at this point for herself and her children.

[31] In the context of the multiple affidavits and Statements of Agreed Facts that have been filed, there is a significant history of transience and housing instability over the last several years. Ms. C.G. has fluctuated between living with a friend, living with a sister, going to a shelter and being evicted from one or more apartments. She was missing for a period of time during December 2011, during which time she missed visits. There is no assurance that she will be moving.

[32] Ms. C.G.’s history of access with her children and the numerous interventions put into place by the Society during the past two years and dating back to the current involvement and the most recent involvement with A.G.[2], according to the Society, these show a pattern of significant challenges around consistent parenting, structure and routines, both when visits have been at the Society’s office and when they were, for a brief period, at the aunt’s house when A.G.[2] was placed there.

[33] The Society further submits that a harsh and angry style of language used at her child, or in front of the child, includes profanity. Ms. C.G. has not demonstrated understanding of A.G.[2]’s needs. A.G.[2] has become frustrated, angry and has cried on more than one occasion.

[34] Between mid-October 2010 and December 5, 2010, Ms. C.G.’s visits with A.G.[2] took place through TAP. The visits were scheduled to occur twice per week, for four hours per visit. Ms. C.G. was unable to complete the program as the TAP staff found that, when interventions were attempted, Ms. C.G. had such a negative reaction that it impacted A.G.[2] and upset him.

[35] The TAP Summary report identified concerns regarding Ms. C.G.’s parenting behaviours, resulting in risk to A.G.[2] of physical and emotional harm, and creation of a very insecure attachment relationship. A copy of the said report, dated December 23, 2010, is attached as Exhibit “A” to the Affidavit of Tessa Feudale sworn February 11, 2011 (C.R. – Protection re A.G.[1], Vol. 6, Tab 3).

[36] Between October and December 2010, therapeutic access was attempted and some 80 hours of parenting teaching was provided. The lengthy therapeutic access report reiterates the same concerns that had already been identified by various supervising workers. Visits at the aunt’s house following a period at TAP, during late 2010 and early 2011, were attempted. The aunt after six weeks said she could not continue to provide visits as Ms. C.G. was not following the household rules, not following the child’s routine and continuing to use inappropriate language in front of the child. Visits reverted to the Society’s office.

[37] There followed a period between June 2011 and approximately August 2011 where Ms. C.G.’s visits became sporadic. There was late attendance, missed visits, delays in getting the children ready to leave at the end of visits, and struggling around timing and punctuality.

[38] In November 2011, with a view to providing additional support to Ms. C.G., a referral to Thistletown’s in-place program was effected for a meeting that took place there. The report from the interface meeting is filed as Exhibit C, to the affidavit at Tab 9, of the current continuing record. Volume 8, Tab 9, Exhibit C outlines the interface program’s recommendations, including intensive parenting support through the Scarborough Resource Program, which was attempted.

[39] Between November and December 2011, Ms. C.G. was provided with the opportunity to have several visits at the Society’s Scarborough access program. She missed the consultation intake meeting. She was still accepted into the program.

[40] The report from this program is appended, as Exhibit D, to the same affidavit at Tab 9 of volume 8. It outlines similar concerns with respect to Ms. C.G.’s parenting and noted that she had missed the last of the four scheduled Scarborough visits. According to the Society, things deteriorated from December 2011 to January 2012.

[41] On November 16, 2011, Ms. C.G. did not attend a scheduled consultation meeting with Interface and Resource Centre staff, saying that she had to assist her sister with her medically fragile child. It was determined that she would visit with her children there on Tuesdays from 1:00 p.m. to 4:00 p.m. and on Thursdays from 3:30 p.m. to 5:30 p.m., in addition to her visits at the North Branch office on Fridays from 11:00 a.m. to 1:00 p.m.

[42] During the first visit at the Resource Centre, it is submitted that Ms. C.G. fell asleep for 90 minutes while A.G.[2] watched a movie and that she also spent 15 minutes on her phone. Ms. C.G. and A.G.[2] both had a difficult departure. Ms. C.G. was upset with the feedback she was given.

[43] Over the next few visits, Ms. C.G. showed improvement. The Coordinator of the Resource Centre reported that Ms. C.G. was learning to be less punitive towards A.G.[2] and was implementing some of the techniques they were teaching her. An assessment at the Resource Centre was scheduled for December 21, 2011, and a progress review meeting was scheduled for January 3, 2012.

[44] Until December 2011, Ms. C.G. was staying with her sister. She had lost her housing. However, in December 2011, her sister no longer allowed her to stay in her home. Ms. C.G. was homeless, reportedly sleeping in stairwells. She claimed to have telephoned Central Intake for housing and was told there were no beds available.

[45] On December 20, 2011, Ms. C.G. informed the Society that she had lost her personal identification and indicated she had been robbed. She was encouraged to attend her scheduled visit that day at the Resource Centre and, with support from staff, was able to complete her visit. When Ms. C.G. departed, she expressed her intent to find the person who had robbed her.

[46] Over the next ten days (until December 30, 2011), Ms. C.G. missed her scheduled visits. She did not call to cancel.

[47] She appeared to be missing somewhere in the community. In addition to not showing up for visits, the Society received confusing, peculiar calls from her in which she sounded disoriented, indicated that she had been robbed, and that she was somewhere out in the community and had nowhere to stay.

[48] On January 12, 2012, Ms. C.G. contacted the Society in a distraught state and said she was staying in a hotel in Ottawa and that the woman whom she had put in jail had put people in all the shelters in Toronto. She said that people had got her when she was staying in a shelter and, when she went with them, they beat her up and her belongings were all over the place. She had slept under a bridge but managed to locate the number for the aunt of her baby’s father. This aunt took her to Ottawa and paid for a hotel.

[49] By early or mid-January of 2012, the Society was able to re-connect with Ms. C.G. and assist her with finding a shelter arrangement in Mississauga. She was indicating a fear of unnamed persons in Toronto. She remained at that shelter for several weeks. She eventually secured a rental room in another housing arrangement, where she has remained to date.

[50] The Society’s Affidavit of April 2011, at Tab 8, notes that visits resumed on or about January 18, 2012, and have continued since then. That affidavit notes continuing concerns around structure, parenting, harsh and angry presentations and difficulty managing the children.

[51] Since April 2012, her regular visits have largely proceeded without incident.

[52] Ms. C.G. has no housing, visits have been a struggle for several years, and her relationship with Mr. J.C. remains something that the Society questions, although one or both of the parents have professed that their relationship is over. When Mr. J.C. met with a Society worker on May 9, 2012, he indicated that he continued to be friends with Ms. C.G. and would like to renew their relationship if he could.

[53] At the beginning of May 2012, when Mr. J.C. had not yet met with a Society worker and had not yet been approved for visits, an unidentified male was observed by a supervising children’s service worker as hovering in the background of the park while Ms. C.G. was visiting with the children. Ms. C.G. subsequently identified that that was in fact Mr. J.C. Contrary to the worker’s instructions to Ms. C.G. and to Mr. J.C., by phone call in advance, that visits with Mr. J.C. were only to take place after he had had a meeting with the worker, this man was found hovering at some distance during the visit of Ms. C.G. with her two children.

[54] In March 2010, see Tab 5, Volume 2, in a status review regarding A.G.[2], Ms. C.G. signed a Statement of Agreed Facts with the Society in which she acknowledged a home environment that was messy, dirty, and filled with garbage bags. She was living with a homeless male. There were coffee grinder blades exposed as safety hazards on the floor, which she acknowledged had been used to grind up marijuana. There was a strong smell of marijuana in the house and there was mother’s eviction.

[55] In December 2010, another Statement of Agreed Facts, Tab 10, Volume 4, a status review regarding A.G.[2] Ms. C.G. also signed, she agreed that there were concerns regarding her parenting and inconsistent structure for A.G.[2].

[56] The most recent Statements of Agreed Facts were filed in August 2011, one for A.G.[2], Volume 7, Tab 9, status review regarding A.G.[2], and on the same date Volume 6, Tab 9, regarding A.G.[1].

[57] Those Statements of Agreed Facts detail the concerns historically regarding Ms. C.G. They contain acknowledgements around household environment, chronic and persistent issues, drug use, parenting capacity, mental health challenges and domestic violence issues. She acknowledged the issues raised as concerns by the therapeutic access staff and that the Society has identified ongoing concerns regarding her parenting, feeding, caring for A.G.[2], anger and so forth. She acknowledged that her aunt said she could not handle having visits by the mother at the aunt’s home. She acknowledged that, in March 2011, her drug test came back positive for cannabinoids.

[58] The mother’s Answer in part alludes to not having been diagnosed with any mental health concern. She submits that she should be assessed and any such assessment might provide an opportunity for treatment. There is reference to a mental health issue at paragraph 4(g). The August 2011 Statement of Agreed Facts regarding A.G.[2], Paragraph 4(g) refers to psychiatrist Dr. Leslie Buckley. Ms. C.G. was diagnosed as an adolescent with bipolar disorder. Dr. Buckley states there is no evidence of that now.

[59] Schedule “A” to the affidavit of Ms. C.G., sworn May 18, 2012, states in part:

I attach as Exhibit “A” hereto a true copy of my Answer and Plan of Care, dated April 30, 2012

First of all, the access visits have been going very well. Both of the workers I have been dealing with on the access visits, Ernie Skujins and Patricia Coulie, have both told me several times how well they thought that the visits were going.

Another change is that, as of the end of May, I will be moving into a two-bedroom apartment in Toronto. This is through Toronto Housing. Both of my sisters, B.C. and S.P., are going to be helping me with the rent.

My sisters have also agreed to help me with the children, as set out in my Plan of Care.

Given the allegations made about my mental health and the lack of a diagnosis, I believe that it would be unfair to determine this matter at the present time. If I do suffer from a mental illness, then I can’t be treated until I have been diagnosed. Until I have been diagnosed, it is impossible to determine whether and how quickly treatment would allow me to parent effectively. I do not have the resources to obtain a psychiatric assessment within a reasonable time-frame. I believe that the Society does. The Society has been saying that my alleged mental illness is a ground for keeping my children away from me since the beginning. I believe that, at the very least, that issue ought to be resolved and determined before a final decision is made.

I can understand the need and rationale for permanency planning. At the same time, however, I believe that the children and I have a close bond, and that the downside to any delay in proceeding with this matter could well be more than made up for if, in the end, the bond between the children and I [sic] was not severed because they were permitted to remain with me.

[60] The Society’s position is that there is voluminous evidence, acknowledged by Ms. C.G. and observed by many Society staff and other collaterals, in support of extreme concerns relating to many years of parenting capacity issues, many of which have been uncontested and agreed to by mother.

[61] The biological father of A.G.[2] is J.M.. In the same Notice of Motion filed at Tab 8, the Society has sought an order dispensing with service on Mr. J.M.. Service on him was dispensed with.

[62] Ernie Skujins, the Family Service Worker responsible for casework service for the C.G./J.C. family since January 18, 2012, swore an affidavit on April 12, 2012, in support of the Society’s Summary Judgment Motion in these proceedings, regarding the children, A.G.[2] (3-1/2 years old) and A.G.[1] (15 months old)

[63] The Society subsequently received the following Responding Affidavits from the parents:

a. Affidavit of Ms. C.G. sworn April 7, 2012;

b. Affidavit of Mr. J.C. (father of A.G.[1]) sworn April 18, 2010 (appended as Exhibit “B” to which is his Affidavit sworn March 12, 2011); and

c. Affidavit of Ms. C.G. sworn May 18, 2012.

[64] He states that Ms. C.G. has not provided him with the name or organization of the counsellor or the nature of any counselling.

[65] On May 1, 2012, he called Ms. C.G. and informed her that he prepared a Consent form for her to sign to speak with her counsellor.

[66] On May 2, 2012, he presented the said Consent to Ms. C.G. She declined to sign it, stating that she wished to consult with her lawyer before doing so.

[67] Ms. C.G. expressed her expectation that Mr. J.C. would be having access once released from prison on May 2, 2012. In particular, she told the children that “Daddy” would be seeing them soon.

[68] Counsel for mother submits that there is no real concern about Ms. C.G. having a bipolar disorder. She first came into care with Catholic Children’s Aid Society in 1990 when she was 7-1/2 years old, and she remained in care until she was approximately 15-1/2, until 1997. She was diagnosed as being bipolar when she was 11. When she was about 13 or 14, she spent a year in a youth psychiatric facility because of issues of self-harm. When she was 15, she was diagnosed with rapid mood cycling disorder. When she was 15-1/2, she became pregnant with her first child. See Skujins affidavit.

[69] She had a child in 1998, Catholic CAS became involved, that child was made a Crown ward in 2000. She became pregnant again in 2000, Guelph CAS became involved, that child was made a Crown ward in 2002. She became pregnant again in 2002, this time with Hamilton CAS, that child was made a Crown ward in 2004. And then in 2006, she became pregnant with A.G[3] and Toronto CAS has been involved for the past 4-1/2 years.

[70] Paragraph 52 of the Skujins affidavit dated April 12, 2012, summarized the Society’s position according to mother’s counsel:

The primary protection concerns have been chronic and persistent and similar to those identified during the decade or so involvement by CAS, CCAS, Guelph CAS and Hamilton CAS. The concerns have included Ms. C.G.’s drug use, anger management, transience and/or housing stability, mental health problems, domestic violence, and/or choice of partners, unsafe and messy home environment, anger management, and instability to provide appropriate care for her children.

[71] On behalf of Ms. C.G., counsel submits that mental illness cannot be treated until there has been a diagnosis. As recently as November of 2011 when Ms. C.G. went through the interface assessment program, it was suggested that she participate in dialectical behavioural therapy as one of the treatment modalities. She was unable to get into that program because there had been no diagnosis.

[72] Mr. Novak further submits that the Society is mandated by statute to look after the best interests of the children. In many cases it is best for children to be raised by their parents, so there are provisions in the legislation that allow the Society to impose conditions on the parents as a result of having access, conditions on the parent as a result of having the care of the children.

“Historically this has screamed, out loud, that there’s something going on here and everything possible has been done in many respects, except the one thing that should’ve been done.”

[73] Counsel for mother acknowledged that he is not in a position to tell the court that there is a reasonable prospect his client will be able to be an effective parent within the required period of time.

[74] Counsel submits that, under section 54, the Society could have requested an assessment.

[75] Mr. Novak submits that, until there’s been a diagnosis, Ms. C.G. is unable to put that evidence before the court.

[76] It is submitted that there is a crucial piece of evidence that Ms. C.G. didn’t get, when the Society may well have had a statutory obligation to have done that. If the diagnosis comes back negative, this whole thing may be sort of academic, but, to that extent, Mr. Novak submits, the burden of proof on the motion for summary judgment has not been met.

[77] On behalf of Ms. C.G., it has been admitted throughout that she is a recreational marijuana smoker. There have been a number of hair-strand tests, but there is no evidence to suggest that there is any problem with alcohol. There is no evidence that she takes any other drugs with the exception of the one event. Nowhere is there evidence that her marijuana use has in any way affected her parenting.

[78] With respect to the housing transience, the only time that she has been evicted from housing, while she had the children in her care, was approximately 3-1/2 years ago. There is no evidence that her housing instability has had an impact on her ability to care for the children.

[79] Her counsel submits that there is only one clearly documented case of domestic violence, and that involved Ms. C.G. and the father of her second child. There is no other evidence.

[80] It is submitted that Ms. C.G. loves her children. She has made a lot of efforts to work on this. Ms. C.G. was referred to the Scarborough Access Program on a recommendation from the Interface Program. The Interface Program had noticed that Ms. C.G.’s parenting skills improved vastly when she was able to stop and think about what she was going to do before taking action. Ms. C.G. appears to have the capacity to provide long-term care for the children. On page three of Ms. C.G.’s report, there are a lot of positives.

[81] Mr. Novak further submits that here is a person who has potential, a person who has love for her children. Here is a person who is struggling with something. And on behalf of Ms. C.G., if she is going to be able to properly address the issues, she should be given an opportunity to get a diagnosis.

[82] The last time Ms. Agbakwa heard from her client, Mr. J.C., was on May 7, 2012. He called to advise her that he was just released from jail. He was released from custody on May 2 and he wanted to have access to his child.

[83] She does not have instructions from him regarding attendance at court. Her client had filed his answer and plan of care for the child, and his plan was that he was going to take care of this child as soon as he was released from jail.

THE LAW

[84] Rule 16 allows a motion for summary judgment in child protection cases: FLR 16(2).

[85] 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

o 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

o (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

o (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

o (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

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

[86] 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.

[87] 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 13503 (ON SC), [2007] O.J. No. 1526 (SCJ) per Gordon J.

[88] 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.

[89] 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 83 (SCC), [1994] 2 S.C.R. 165.

[90] 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).

[91] 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.

[92] 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.

[93] The best interests of a child take priority over the desires and interests of the parent. See Young v. Young, 1993 34 (SCC), [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.

[94] 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.).

[95] 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.

[96] 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 79342 (ON SC), [2006] O.J. No. 3442.

[97] 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 2309 (ON SC), [2003] O.J. No. 220).

[98] 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 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J.

[99] As Justice Pazaratz stated at para. 43 of Children’s Aid Society of the Niagara Region v. S.C., 2008 52309 (ON SC), [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.”

[100] 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 32610 (ON SC), [2006] O.J. No. 3785 (S.C.) at para. 48.

[101] 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 19432 (ON SC), [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.

[102] 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.

[103] 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. (1980), 1980 3654 (MB CA), 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] 2001CarswellOnt 1504.

[104] 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.

[105] 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. 92d) 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]

[106] Pursuing and protecting the best interests of the child must take precedence over the wishes of a parent, e.g. King v. Low, 1985 59 (SCC), [1985] 1 S.C.R. 87; Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3; New Brunswick (Minister of Health and Community Services) v. L.(M.), 1998 800 (SCC), [1998] 2 S.C.R. 534. See also Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 83 (SCC), [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.”

[107] 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.

[108] 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.

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

[110] 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.]

[111] In a ruling on a motion for summary judgment, the court is not to assess credibility, weigh evidence, or find the facts. The court’s role on such a motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. The court, however, has the duty to take a hard look at the merits of an action at this preliminary stage.

[112] Historically, in cases of Crown wardship, similar principles apply as those initially articulated in Irving Ungerman Ltd. v. Galanis reflex, (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545 (C.A.) ; Aguonie v. Galion Solid Waste Material Inc. 1998 954 (ON CA), (1998), 38 O.R. (3d) 161 (H.C.J.) ; Vaughan v. Warner Communications Inc. et al. reflex, (1986), 1986 2533 (ON SC), 56 O.R. (2d) 242 (H.C.J.).

[113] 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. See (B.(F.) v. G.(S.), 2001 28231 (ON SC), [2001] O.J. No. 1586 (Sup. Ct. J.).

[114] A genuine issue must relate to a material fact or facts. If a fact is not material to an action, in the sense that that result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a ‘genuine issue for trial’: see Irving Ungerman Ltd. v. Galanis, supra.

[115] The moving party has the onus to establish that there is no genuine issue requiring trial. In this case, the Society has clearly satisfied its onus.

[116] The responding party must put its best foot forward. It may not rest on "mere allegations or denials" in response to the materials served by the moving party. The responding party must set out, in an affidavit or other evidence, specific facts showing there is a genuine issue for trial: FLR 16(4.1); see also Children’s Aid Society of Toronto v. K.T., 2000 20578 (ON CJ), [2000] O.J. No. 4736 (Ct. J.).

[117] The court should proceed cautiously: "with the promulgation of the rules, the availability of summary judgment in child protection cases can no longer be considered an extraordinary remedy. However, as with any summary judgment proceeding, a court must proceed cautiously, bearing in mind the need to ensure absolute fairness to the parties and the requirement that a party not be deprived of a full trial on the merits except where there is ‘no genuine issue requiring a trial’": see Children’s Aid Society of Toronto v. P.M., 2002 53206 (ON CJ), [2002] O.J. No. 2321 (Ct. J.).

BEST INTERESTS

[118] The paramount purpose of the Act is to "promote the best interests, protection and well being of children"; Child and Family Services Act of Ontario, R.S.O. 1990, c C-,as amended, subsection 1(1).

[119] The primary consideration of the best interests test is the welfare of the child. See Re McGrath, [1893] 1 Ch. 143 at p. 148, cited with approval in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 83 (SCC), [1994] 2 S.C.R. 165.

[120] 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, supra.

[121] 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.) (1994).

[122] The best interests of a child are continuously evolving: see Catholic Children’s Aid Society of Toronto v. M.(C.), supra. This means that different solutions may be required over time.

[123] The best interests of a child take priority over the desires and interests of the parent: see Young v. Young 1993 34 (SCC), (1993), 49 R.F.L. (3d) 117 (S.C.C.) at p. 228.

[124] The CFSA s. 71.1 was amended the Act, as of September 1st, 2011, to permit a Society to provide care and maintenance to a person who is 18 years of age or more if, when the person was 16 or 17 years of age, he or she was eligible for support services that are prescribed by the regulations under the Act, whether or not he or she was receiving such support services: CFSA, subs. 71.1(3).

PAST PARENTING

[125] There is significant historic and ongoing child welfare involvement with Ms. C.G. by the Society and three other child welfare agencies, namely the Catholic Children’s Aid Society of Toronto (“CCAS”), the Guelph/Wellington Children’s Aid Society (“Guelph CAS”) and the Hamilton-Wentworth Children’s Aid Society (“Hamilton CAS”). The periods of involvement are:

a. From 1990 to 1997 regarding Ms. C.G. as a subject child;

b. From 1998 to 2003 regarding Ms. C.G.’s three oldest children (T.G., B.G. and C.G.);

c. From 2007 to 2011 regarding Ms. C.G.’s fourth child (A.G[3]);

d. From October 2007 to present regarding Ms. C.G.’s fifth child (A.G.[2]); and

e. From February 2011 to present regarding Ms. C.G.’s sixth child (A.G.[1]).

[126] In Catholic Children’s Aid Society of Toronto v. J.L. 2003 57514 (ON CJ), (2003), 39 R.F.L. (5th) 54 (Ont. C.J.), the Children’s Aid Society applied to admit certain documents under s. 50 of the Child and Family Services Act, R.S.O. 1990, c. C.11 which did not comply with s. 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23.

[127] Section 50 of the CFSA reads:

50. (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. [emphasis added]

[128] This section both excludes the Ontario Evidence Act and allows discretionary admission of a broad range of documents into evidence.

[129] A review of the J.L. case and cases subsequent to it make it clear this “threshold reliability” phraseology casts a wide documentary net.

[130] The court in J.L. did follow the oft-quoted case of Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al. (1977), 1977 1184 (ON SC), 76 D.L.R. (3d) 641 (Ont. H.C.) and the principles set forth therein in its determination of the admissibility of documents proffered under the business records provision of the Ontario Evidence Act.

[131] In the absence of statutory prerequisites for admissibility, the discretion to admit hearsay generally and the records under s. 30 specifically should be exercised using the holistic approach respecting the indicia of reliability and necessity set out by Charron J. at paras. 42 and 49 of R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787:

42 … Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie the traditional common law exceptions: necessity and reliability (Wigmore on Evidence (2nd ed. 1923, vol. III, s. 1420, at p. 153). This Court first accepted this approach in Khan 1990 77 (SCC), [1990] 2 S.C.R. 531] and later recognized its primacy in Starr [2000 SCC 40] …

[132] Is past parenting similar to the admissibility of similar fact evidence in a criminal context? R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, and R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[133] Past parenting may well be highly probative in relation to the particular significant similarities of the matter before us. The high degree of similarity makes it unlikely that the accused’s involvement in the alleged act is a product of coincidence. I find, based on the degree of striking similarity, that it is likely that the same person committed both sexual assaults. [Emphasis added; ruling on voir dire, at para. 84.]

[134] The twin prejudices of moral prejudice and reasoning prejudice are so identified in Handy, at paras. 139-47.

[135] Not having appealed earlier orders, these matters are res judicata.

[136] Decisions of the court are not mere “opinions.” They are the considered result of informed deliberations and, as a result, carry a high degree of reliability.

[137] A prior judicial decision between the same or related parties or participants on the same or related issues is not merely another controversy over hearsay or opinion evidence. The court’s earlier decision was a judicial pronouncement after the contending parties had been heard. See British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657, at para. 52.

[138] See also R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208 where the court at para. 138 states:

Khelawon advocates a holistic approach to the question of threshold reliability. In some instances, the threshold test for reliability will be met by simply looking at the circumstances under which the statement came about. In others, circumstances external to the making of the statement will allow for sufficient testing of the truth and accuracy of the statement. …

[139] The Supreme Court has provided clear guidance on the proper test for admission of “further evidence” in this kind of case in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165, a case concerning s. 69(6) of the CFSA. L’Heureux-Dubé J. agreed with the decision of the Ontario Court of Appeal in Genereux v. Catholic Children’s Aid Society of Metropolitan Toronto reflex, (1985), 1985 1969 (ON CA), 53 O.R. (2d) 163 (Ont. C.A.) in which Cory J.A. (as he then was) stated (at pp. 164-65):

It can be seen that the judge hearing the appeal is granted a very wide discretion with no restrictions imposed. This is remedial legislation dealing with the welfare of children. It should be broadly interpreted. Undue restrictions should not be placed upon it. Specifically, narrow restrictions should not be read into the section when they do not appear in the legislation.

The judge on appeal, bearing in mind that he is dealing with the welfare of children, may determine that he will exercise his discretion and will hear further evidence so long as it is relevant to a consideration of the best interests of the child. The decision will be based upon the circumstances of the particular case. (emphasis added by L’Heureux-Dubé J.)

[140] See Children’s Aid Society of the Region of Peel v. W.(M.J.) 1995 593 (ON CA), (1995), 23 O.R. (3d) 174 (C.A.) and D.(R.) v. Children’s Aid Society of Owen Sound, 2003 21746 (ON CA), (2003), 44 R.F.L. (5th) 43 (Ont. C.A.), where the court at para. 21 determined that a flexible approach to admissibility of further evidence is desirable and is grounded in the best interests of the child:

[21] Given the inevitable fluidity in a child's development, in most cases it would be beneficial for a reviewing court to have the most current information possible to assist in evaluating whether a change in the factual matrix of a previous best interests determination warrants interference with that finding. Indeed, that is the purpose of s. 69(6) of the Act. In my view, the threshold of "potential decisiveness" has been met in these circumstances. The fact of the father's separation from the child's mother is highly relevant and worthy of consideration by the court in assessing the child's best interest.

[141] Past parenting evidence provides a reliable backdrop against which to measure the extent to which the respondent’s abilities and circumstances have changed. The real impact of past conduct under the CFSA is not the conduct in and of itself but rather what the parent has done to resolve it.

[142] As indicated by Olah, J. in her decision of April 6, 2001 in Children’s Aid Society of the County of Simcoe v. C.S., [2001] O.J. No. 4915 (Sup. Ct. J.), reliability of background evidence is based on the completeness of the particular piece of evidence, the age of the information and the extent to which the information contained in the past conduct is supported by direct interaction with the parent whose conduct is impugned. Subject to these caveats, the best indicator of a parent’s likely future conduct is his or her past conduct.

[143] A detailed review of previous evidence must be taken into account. To allow admission of the same evidence that has already been dealt with would be to invite re-litigation of many of the points previously raised: see Kawartha-Haliburton Children’s Aid Society v. D.C., 2002 53209 (ON SC), [2002] O.J. No. 3864 (Sup. Ct. J.).

[144] See also: Durham Children’s Aid Society v. Belanger, 2005 32199 (ON SC), [2005] O.J. No. 3794, in which Rogers J. held that the execution of a consent by the CAS, the mother and Children’s Lawyer, pursuant to clause 37(2)(l) of the CFSA did not prevent the CAS from introducing evidence of past parenting other than the Agreed Statement of Facts.

[145] In Children’s Aid Society of Algoma v. B.A., supra, the court discussed subsection 50(2) at p. 5, para. 21 as follows.

“... part of the reason for subsection 50(2) is to avoid dealing with disposition until a finding is made, as a finding is a condition precedent to any disposition under section 57. However, if a finding is made in a case, the Act does not, by subsection 50(2), require a repetition of any evidence that may apply to both finding and disposition that has already been adduced.”

[146] Summary judgment has become more widely available since the passage of Rule 16. It is no longer considered an extraordinary remedy that is limited to only the clearest of cases. However, the jurisdiction to grant relief on a summary judgment basis in child protection and family law cases must be exercised cautiously, in keeping with the principles of justice, fairness and the best interests of children. See R.A. v. Jewish Family and Child Services, [2001] O.J. No. 47 (S.C.J.); Children’s Aid Society of Hamilton v. C.R., 2006 79342 (ON SC), [2006] O.J. No. 3442 (S.C.J.); and Children’s Aid Society of Halton Region v. K.L.A., 2006 33538 (ON CA), [2006] O.J. No. 3958 (Ont. C.A.).

[147] A party responding to a summary judgment motion cannot defeat the motion by relying on mere allegations, blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial. Rather, they have a positive obligation to put their best foot forward to defend the motion with full affidavit evidence. See Rule 16(4.1). The court must assume that the information put forward by the responding party is the best they have to offer at that stage. Kawartha-Haliburton Children’s Aid Society v. W.M., 2003 2441 (ON SC), [2003] O.J. No. 3903.

[148] 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 the sufficiency of the evidence adduced in the affidavit materials submitted on the motion. I find that both parents’ plans are speculative, to say the least.

[149] 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.

[150] The nature of the evidence, the reasonableness of any potential plans, and the statutory time frames are all relevant to whether or not there is a genuine issue requiring a trial. (B. (F.) v. G. (S.), 2001 28231 (ON SC), 2001 CarswellOnt 1413 at para. 19. No plans presented by the parents are either reasonable or realistic.

[151] "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 2388 (ON SC), [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 7271 (ON SC), (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.). This, I find, is the case here.

[152] 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 6216 (ON CJ), [1995] O.J. No. 3971 (Ont. Ct. Prov. Div.), aff’d 1996 7271 (ON SC), (1996), 139 D.L.R. (4th) 534 (Ont. Ct. Gen. Div.), aff’d 1997 4445 (ON CA), (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.

[153] 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 too long as it is. They cannot wait any longer. They cannot wait for Ms. C.G. They cannot wait for Mr. J.C. 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.).

[154] 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.

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

[156] 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:

"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.”

[157] 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…”

[158] In the case 1413910 Ontario Inc. (C.Og.b. Bulls Eye Steakhouse & Grill) v. Select Restaurant Plaza Corp., 2005 63807 (ON SC), [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.”

[159] 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.

[160] 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] 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?"

[161] 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:

“It will not be in the interest of justice to exercise rule 20.04(2.1) 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.

“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.”

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

[163] In Housen v. Nikolaisen, 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.

[164] 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.

[165] 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.

[166] A trial will not alter the above facts and their impact on the lives of these children. The parents have not done what is necessary to place their own lives in order and develop sufficient maturity to assume the responsibility to care for their child. The child should not be subjected to their continued instability in the “hope” that they might turn their lives around.

[167] Children’s needs and developmental requirements are constant and cannot be parked and ignored while a parent(s) considers whether they have the capacity or inclination to protect and care for them.

Conclusion:

[168] I am satisfied based on the materials contained in the summary judgment motion record that a trial is not required in order to achieve a full appreciation of the evidence and the issues relating to the protection findings which the Society is requesting. The Society has led evidence that establishes a prima facie case for finding the children in need of protection, on the basis of risk of both physical and emotional harm as defined in those sections.

[169] I again find that the Society has satisfied the onus of proving that there is no genuine issue for trial on the issues of placement of and access to the children, and that the children should be made Crown wards without access.

[170] I have considered the serious and longstanding nature of the concerns which the Society has identified respecting these parents.

[171] I have considered the children’s physical and emotional needs.

[172] I find that numerous services have been recommended and offered to the Respondents. They have either not availed themselves of the services or have been unable to benefit meaningfully from the services.

[173] The onus is on the parents to adduce evidence that an ongoing relationship with the children is beneficial and meaningful to them. They have failed to do so. Based on the evidence before me, I conclude that an order for no access to the children should issue.

[174] Once the court determines that ongoing court intervention is required for the protection of the child(ren), 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.

[175] 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 a child

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’s remaining with or returning to a parent.

9. The child’s view 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.

Access

[176] The case law provides guidance as to how, or if, that to grant access. See Gonthier J. in New Brunswick (Minister of Health and Community Services) v. M.L., 1998 800 (SCC), [1998] 2 S.C.R. 534 [New Brunswick], and summarized as follows by Thibideau J. in J.A. v. J.B., 2011 ONCJ 726, 2011 ONCJ 726 (at para. 9):

... After a permanent guardianship order is made access becomes a child right and the parental right to access ceases;

There is no inherent inconsistency between a permanent guardianship order and an access order;

However access in such circumstances is the exception and not the rule;

The consideration of preserving family ties is not a consideration in granting access unless all other relevant factors that make up the best interests of the child require that it be so;

Adoption cannot be hampered by an existing right of access;

Access should not be granted if it would negatively impact the physical or psychological health of the child.

[177] The Court adopted what it had previously said in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), 1994 83 (SCC), [1994] 2 S.C.R. 165 (at 559-560):

... 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[.]

[178] The Court further noted (at 560):

Thus, if there is an emotional bond between the child and the parent, it should be preserved, as long as it is not contrary to the other interests of the child such as security or psychological health... 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.

If adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised, access should not be granted... In other words, the courts must not allow the parents to "sabotage" an adoption that would be beneficial for the child[.]

[179] As I have already alluded, 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).

[180] 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. See Catholic Children’s Aid Society of Toronto v. M. (L.), 2011 ONCJ 146, 2011 CarswellOnt 2068 (Ont. C.J.)

[181] 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). See Children’s Aid Society of Niagara Region v. J. (M.) 2004 2667 (ON SC), 2004 CarswellOnt 2800 (Ont. S.C.J.). He held that a beneficial relationship is one that is “advantageous,” and a meaningful relationship is one that is “significant.” 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). The relationship must be significantly advantageous to the child. 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.

[182] Bill 179, the Building Families and Supporting Youth to be Successful Act, 2011, S.O. 2011, c. 12, repealed former 141.1(a) of the Act. 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 also 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.

[183] The welfare of the child is the paramount consideration. As Lord MacDermott explained in J. v. C. [1070] AC 668, 711, this means that it ‘rules upon or determines the course to be followed’. There is no question of a parental right. What is in the children’s best interests? This is the paramount consideration. It is only as a contributor to a child’s welfare that what is in the best interests of the child must be examined for its potential to fulfil that aim.

[184] I agree with Deseriee A. Kennedy, Children, Parents, and the State: The Construction of a New Family Ideology, 26 Berkeley J. Gender L. & Just. 78 (2011), that a parent’s incarceration should not be the sole factor. Rather, there should be a connection between the incarceration and parental wrongdoing, in order to avoid unnecessarily severing the parent-child relationship. Here the connection is obvious and ongoing.

[185] The case law provides guidance as to how, or if, that to grant access. See Gonthier J. in New Brunswick (Minister of Health and Community Services) v. M.L., 1998 800 (SCC), [1998] 2 S.C.R. 534 [New Brunswick], and summarized as follows by Thibideau J. in J.A. v. J.B., 2011 ONCJ 726, 2011 ONCJ 726 (at para. 9):

... After a permanent guardianship order is made access becomes a child right and the parental right to access ceases;

There is no inherent inconsistency between a permanent guardianship order and an access order;

However, access in such circumstances is the exception and not the rule;

The consideration of preserving family ties is not a consideration in granting access unless all other relevant factors that make up the best interests of the child require that it be so;

Adoption cannot be hampered by an existing right of access;

Access should not be granted if it would negatively impact the physical or psychological health of the child.

[186] The Court adopted what it had previously said in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), 1994 83 (SCC), [1994] 2 S.C.R. 165 (at 559-560):

... 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[.]

[187] The Court further noted (at 560):

Thus, if there is an emotional bond between the child and the parent, it should be preserved, as long as it is not contrary to the other interests of the child such as security or psychological health... 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.

If adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised, access should not be granted... In other words, the courts must not allow the parents to "sabotage" an adoption that would be beneficial for the child[.]

[188] As I have already alluded, 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).

[189] 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. See Catholic Children’s Aid Society of Toronto v. M. (L.), 2011 ONCJ 146, 2011 CarswellOnt 2068 (Ont. C.J.)

[190] 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). See Children’s Aid Society of Niagara Region v. J. (M.) 2004 2667 (ON SC), 2004 CarswellOnt 2800 (Ont. S.C.J.). He held that a beneficial relationship is one that is “advantageous,” and a meaningful relationship is one that is “significant.” 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). The relationship must be significantly advantageous to the child. 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.

[191] Bill 179, the Building Families and Supporting Youth To Be Successful Act, 2011, S.O. 2011, c. 12, repealed former 141.1(a) of the Act. 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 also 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.

[192] The welfare of the child is the paramount consideration. As Lord MacDermott explained in J. v. C. [1070] AC 668, 711, this means that it ‘rules upon or determines the course to be followed’. There is no question of a parental right. What is in the children’s best interests? This is the paramount consideration. It is only as a contributor to a child’s welfare that what is in the best interests of the child must be examined for its potential to fulfil that aim.

ORDER TO ISSUE

[193] The Society has satisfied the onus upon it of proving that there is no genuine issue requiring a trial for its resolution in this matter. Accordingly, a final order shall issue as follows:

1. The children - A.G.[2] (born […], 2008) and A.G.[1] (born […], 2011) (“the children”) - are found not to be an Indian or native person, and not to have eligibility for Indian or native status.

2. The children are found to be in need of protection pursuant to section 37(2)(b) and 37(2)(g) of the Child and Family Services Act.

3. The children are hereby made Crown wards, and shall remain in the care of the Children’s Aid Society of Toronto.

4. There shall be no access to the children.

[194] Parties to be notified.

Released: June 27, 2012

Signed: “Justice Marvin A. Zuker”