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 C46361/08

Date: 2012-07-17

In the Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended

And in the Matter of the children:

• D.H. (born […], 1996)
• P.H. (born […], 1999)

Parties

Between:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO, Applicant

— AND —

M.H., Respondent Mother

— AND —

C.L., Respondent Father

— AND —

C.W., Respondent Father

— AND —

W.W., Respondent Father

— AND —

E.C., Respondent Maternal Grandmother

Before the Court

Before: Justice Marvin A. Zuker

Heard on: June 26, 2012

Reasons for Decision on Motion for Summary Judgment released on: July 17, 2012

Counsel

• Lauren Stringer, for the applicant society
• Evan Chang, for the respondent mother
• C.L., on his own behalf
• Frances Gregory, for the respondent maternal grandmother, E.C.
• Joseph Sheridan, for the Office of the Children's Lawyer, Counsel for P.H. and D.H.

Decision

Zuker J.:

Introduction and Parties

[1] The Applicant is the Catholic Children's Aid Society of Toronto (the "Society"). The Respondent mother of all three children is M.H. The Respondent fathers are Mr. C.W., father of D.H.; C.L., father of P.H.; and W.W., father of A.W. The Respondent maternal grandmother to all three children is E.C. C.L. and Mr. C.W. have not filed Answers and Plans of Care.

[2] The children who are the subject of this Summary Judgment Motion are P.H. (d.o.b. […], 1999), D.H. (d.o.b. […], 1996) and A.W. (d.o.b. […], 2009). D.H. and P.H. are currently in custody the temporary care and custody of the Society and A.W. is in the temporary care and custody of her father W.W. under a supervision order. The children D.H. and P.H. are represented by the Office of the Children's Lawyer.

[3] This is a Summary Judgment Motion by the Applicant Society that arises out of two separate Applications:

a) An Amended Protection Application for D.H. and P.H. seeking findings that the children are in need of protection pursuant to s. 37(2)(a-ii) and (b-ii) of the Child and Family Services Act and seeking Crown wardship for these children; and

b) A separate Amended Protection Application seeking a protection finding under s. 37(b-ii) for the child A.W. and an order placing her in the custody of her father, W.W., pursuant to s. 57.1 of the Child and Family Services Act.

[4] There have been no protection findings or statutory findings made for any of the children.

[5] It is the position of the Society that the issues regarding protection findings and dispositions should be determined on the basis of this Summary Judgment Motion, there being no triable issues.

Background Facts

Initial Apprehension and Criminal Charges

[6] The children D.H. and P.H. were apprehended from the care of their mother and taken from their respective schools on November 28, 2008. Both children made separate statements disclosing ongoing physical abuse and neglect by their mother, M.H. The Society commenced a Protection Application seeking six months' wardship for both children. Ms. H. was charged with assault and assault with a weapon in relation to both children. She was convicted on February 9, 2010, and placed on 18 months' probation.

[7] On August 25, 2009, the children were placed with their maternal aunt, B.F., on an extended visit and were formally placed in Ms. B.F.'s legal care and custody on October 1, 2009, subject to a supervision order with conditions.

D.H. and P.H. – Placement Breakdown

[8] On February 12, 2010, the child D.H. was removed from Ms. B.F.'s home at Ms. B.F.'s request. D.H. has been in the continuous care of the Society since this date. D.H. has exhibited clear signs of having suffered trauma when she came into care.

[9] On March 11, 2011, P.H. was removed from Ms. B.F.'s home at Ms. B.F.'s request. P.H. has been in the continuous care and custody of the Society since this date. On April 25, 2012, the Society amended its Application to Crown wardship with access for both children.

A.W. – Third Child

[10] When A.W. was born, on […], 2009, her older sisters had already been in the Society's care. The Society was not aware of her existence until January 2010. There had been an incident of domestic violence between the maternal grandmother and the mother. A.W. was in the primary care of her maternal grandmother, Ms. E.C.

[11] After the incident in question, A.W. remained in the care of her grandmother, E.C., until being ordered into the Society's care, pursuant to a Motion on August 3, 2010. On August 3, 2010, A.W. was placed in the Society's care for reasons set out in paragraph 30 of the Affidavit of Stephanie Vigliatore. A.W. spent five months in foster care and was then placed with her father, W.W. There is no suggestion that A.W. be removed from her father's care.

Current Placements and Treatment Needs

[12] The only plan before the Court being presented for D.H. is placing with her maternal grandmother, E.C. D.H. has considerable emotional and psychological issues. She has been hospitalised for expressing suicidal ideation.

[13] D.H. has been in a treatment placement at Youthdale, since she was removed from foster care. She is no longer in a transitional psychiatric unit at Youthdale. She remains in a Youthdale treatment home.

[14] The Society submits that Ms. E.C.'s lack of co-operation regarding the Kinship Assessment and allegations that Ms. E.C. was allowing A.W. to have access to her mother in the home in contravention of the supervision order resulted in the Society bringing a motion on July 27, 2010, to remove A.W. from the care of her grandmother. An Amended Protection Application filed in October 2010 sought a six-month period of Society wardship for A.W.

[15] Since A.W.'s birth, A.W. has had regular access visits with her father, W.W., who also provided financial support to E.C. while A.W. was in her care. W.W. presented a plan for A.W. initially to reside with his sister and then with him. In December 2010, A.W. began residing with her father and her paternal aunt, Pansy Stoddard, and on March 14, 2011, A.W. was placed in the care and custody of her father, W.W., subject to a supervision order with conditions. A.W. has been residing with her father for virtually the last 18 months. On April 25, 2012, the Society again amended its Application, this time seeking a section 57.1 Custody Order leaving A.W. with her father.

[16] The Society submits that it has assessed several extended family plans for the children, D.H. and P.H., none of which were found suitable. Neither father has presented a plan for these girls or exercised regular access to them. It is again submitted that both girls have very high needs and have exhibited serious emotional and psychological problems. D.H. has threatened suicide and was hospitalized as a result. P.H. is, arguably, compulsive about other people touching the food she eats and breathing the air she is breathing. Both children are in treatment foster homes and have been diagnosed as having suffered trauma from when they lived with their mother.

Detailed Factual History

D.H. and P.H. – Initial Involvement

[17] P.H. has had numerous behaviour and emotional issues resulting, inter alia, from the horrific behaviour of her mother. After she was initially removed from her mother's care, she was in foster care for a few months, and then pursuant to a kin assessment, she was placed with her maternal aunt, B.F., both she and D.H., in October 2009. After a few months, Ms. B.F. could not deal with D.H. D.H. was placed in the care of the Society. P.H. spent more than a year with her aunt. Her aunt said she couldn't handle P.H.'s behaviour. She requested that P.H. be removed from her home, because of P.H.'s treatment needs and difficult behaviours.

[18] P.H. was aggressive with her peers and adults in the home and at school. She broke a window in her foster home. She was urinating and defecating in a garbage can in her room. She had extreme food issues.

[19] D.H. has had sporadic visits with her mother during the past three years. She has been ambivalent about visits with her maternal grandmother. D.H. wants to become a Crown ward and wants ongoing access with her family, particularly her siblings. P.H. does not want to become a Crown ward. The only realistic plan for D.H. and P.H., according to the Society, is Crown wardship.

[20] A.W. has not had access to her mother for a considerable time. Ms. H. was never her primary caregiver. The Society, the maternal grandmother and the father all support a section 57.1 custody order in favour of the father, W.W. He is her only caregiver. A.W. has been doing very well in his care. She has ongoing access to her older siblings, D.H. and P.H.

D.H. and P.H. – Detailed Chronology

[21] The Society first became involved with D.H. and P.H. on November 28, 2008, when the Society received two separate referrals from two separate schools that the children were attending. The referral from D.H.'s school reported numerous absences, late attendances, lack of accessibility to D.H.'s mother and a disclosure by D.H. of ongoing physical abuse by her mother. P.H.'s school made a similar report, as well as an allegation of lack of supervision. There were no allegations of physical abuse of P.H.

[22] On the day the Society Worker interviewed the children, they confirmed their statements to their school staff including ongoing physical abuse of D.H. with various objects. The children reported neglect, including lack of food in the home, mother's failure to get up in the mornings, and having to share a single bed with mother. She told the children not to disclose anything about their home life to their schools. They were transported to 43 Division to be interviewed by police and, at the police station; both children repeated their earlier disclosures.

[23] Both children were apprehended and placed in Society foster homes.

[24] Following the apprehension, the Society commenced a Protection Application, seeking a six-month wardship for each child. The children were placed in the temporary care and custody of the Society with access supervised at the discretion of the Society twice per week for two hours per visit. Ms. H. attended only nine visits in the 16-month period following the children's apprehension. During her visits, she was always accompanied by extended family members.

[25] As indicated, Ms. H. was convicted of assault and received a suspended sentence and probation of 18 months with conditions, including that access to her children must be pursuant to a Family Court Order and arranged by CCAS, she complete a parenting course and participate in anger management counselling.

[26] On August 25, 2009, the children were placed in the home of maternal aunt, B.F., on an extended visit and a temporary supervision order was made with B.F. on October 1, 2009. Ms. B.F. was ultimately approved as a kin out-of-care home for the children.

[27] On February 12, 2010, Ms. B.F. contacted the Society and asked that D.H. be removed from her home "ASAP," as she did not feel that she could meet D.H.'s needs. D.H. was placed in a foster home that day.

[28] D.H. reported being treated poorly by Ms. B.F. In care, D.H. exhibited numerous signs of emotional disturbance. She expressed wanting to end her life and exhibited mood swings and paranoia. She spent 11 days in the Adolescent Psychiatric Unit in December 2010, and then participated in day treatment and was prescribed medication.

[29] Due to numerous emotional and behavioural issues exhibited by P.H., Ms. B.F. was no longer prepared to continue to care for her. On March 11, 2011, Ms. B.F. brought P.H. to the Society's office and P.H. was apprehended at Ms. B.F.'s request and placed in a treatment foster home (Enterphase).

Father's Response – C.L.

[30] In her affidavit dated March 11, 2011, Stephanie Vigliatore states in part, at paragraph 10:

[31] "On March 10, 2011, I called Mr. C.L. and advised him of the Society's plan to place P.H. in care on March 11, 2011. He asked me if I had already spoken with Ms. B.F. about this and I confirmed I had. Mr. C.L. reported the following to me:

a. Mr. C.L. denied the incident where P.H. rubbed oil and butter on his floor so others would fall.

b. P.H. had been doing well in the care of her mother, Ms. M.H.

c. Ms. H. did not do anything wrong and was only trying to keep the children in line.

d. He has told P.H. that it was not her fault, nor her mother's fault, that she was brought into care.

e. He believes that D.H. and P.H. have been "brainwashed."

f. D.H. was in a bad mood and this is why she told her teachers that Ms. H. was hurting them. This is why the Children's Aid Society became involved.

g. He and P.H. are best friends. P.H. tells him everything. P.H. told him that she was molested in the first home she was placed in. Mr. C.L. did not tell anyone about this because P.H. begged him not to. He states that he has spoken to a lawyer and is waiting for the right time to come forward with this information.

h. I told him that he should have come forward with this information immediately. As a result, if this did happen as P.H. has told him, she has gone two years without treatment.

i. Mr. C.L. proceeded to state that all P.H. needs is love and affection. She needs someone to hug her and love her like their own. I reminded him that she has been in the care of her aunt, Ms. B.F., and inquired how his statements impact the care that Ms. B.F. has provided to his daughter. He replied by saying that he was not saying anything about Ms. B.F. or her care of P.H. and then proceeded to talk about Ms. H."

P.H.'s Behavioral Issues in Care

[32] Paragraph 49 of the affidavit of Jennifer Brown, child protection worker, sworn April 4, 2012, states:

"On March 11, 2011, P.H. was apprehended from Ms. B.F.'s home due to a number of concerns as reported by Ms. B.F. and confirmed by kinship assessment worker, Ms. Julie Ferrera-Trumpour, earlier in March 2011. Ms. B.F. felt that she was no longer able to manage the care of P.H. It was reported by Ms. B.F. to the Society that P.H. was exhibiting a number of behaviours, some of which are listed below:

a. P.H. believed she had psychic powers. She would hear things and did what these powers told her to do.

b. P.H. crept into her classroom while her class was out for recess and proceeded to put glue and paint in the milk of her classmates, which they drank. P.H. admitted to doing this because the children did not like her and she wanted to kill them.

c. P.H. punched a child in the face.

d. P.H. refused to bathe and brush her teeth, sometimes going weeks without bathing. When Ms. B.F. insisted that she bathe, P.H. would scream, "Get out of here." "You're abusing me." "You're not my mother." Or, "I will hurt you."

e. P.H. would scratch her vaginal area until it bled and then stated that she was menstruating.

f. P.H. would urinate into the vents in her bedroom. She had also been putting hair and garbage down the vents.

g. P.H. told Ms. B.F. that she was going to burn down their house."

Alternative Kinship Plans

[33] In April 2011, Ms. H. presented P.H.'s great aunt, Ms. T.D., and Ms. T.D.'s daughter, Ms. S.D., as potential kinship caregivers for P.H.

[34] In May 2011, a kinship assessment was begun to assess Ms. T.D. and Ms. S.D. as potential caregivers for P.H.

[35] From March 2011 through to June 2011, P.H. had difficulty adjusting to her group home with Enterphase Child and Family Services. Her behaviour escalated frequently and interventions were often required to ensure her safety, that of the staff, and other children in the home.

[36] Her access to Ms. H. and Ms. E.C. was suspended in June 2011, due to ongoing concerns.

[37] In July 2011, kinship assessment worker Cynthia Power advised that the kinship assessment with Ms. T.D. and Ms. S.D. was not approved.

[38] In September 2011, Motions by Ms. H. and Ms. E.C. regarding P.H.'s care were dismissed by the Honourable Justice C. Curtis. P.H. remains in care.

D.H.'s Treatment and Progress

[39] In June 2011, D.H. was placed in the temporary psychiatric unit at Youthdale Treatment Centres.

[40] In August 2011, D.H. began to have access with her sisters, P.H. and A.W., at the Society's office on alternating Saturdays.

[41] D.H. continues to have access with her extended paternal family members, including her paternal grandmother and paternal aunts.

[42] D.H. was diagnosed with anxiety, depression, post-traumatic stress disorder, and continues to refuse to participate in a psychological assessment.

P.H.'s Progress and Access

[43] P.H. continues to have access with her sisters bi-weekly.

[44] Once in care, signs of emotional disturbance were observed in P.H. Her behaviours have appeared to be most pronounced following access visits with her maternal family.

[45] Both girls continued to visit their maternal grandmother, E.C., until June 2011.

[46] D.H. reported that Ms. E.C. allowed her to speak with her mother on several occasions during the visits. The Society submits that her mother and grandmother encouraged D.H. not to take her prescribed medication and her mother tried to undermine her foster placement.

[47] D.H. has had regular visits with her paternal grandmother, F.W. D.H. is in a specialized school class as her intelligence is in the borderline range.

Assessment of Alternative Plans

[48] Several extended family plans presented to the Society were rejected. The family plan presented by B.F. was accepted but the placement broke down.

[49] The plan presented by Ms. T.D., P.H.'s maternal great-aunt (E.C.'s sister), in May 2011 is being presented to court at this time. Ms. T.D. was employed as a foster parent by Annie's Haven Ltd.

[50] Society Kinship Care Worker Cynthia Power investigated and rejected this plan in July 2011. The Court also rejected this plan after a contested motion on September 7, 2011. What has changed, it is submitted, about this plan since September 2011 is that Ms. T.D. and Ms. S.D. no longer foster other children. The Society still requires the outstanding criminal record check for Ms. T.D. The Society believes that Ms. T.D. continues to minimize P.H.'s extreme behavioural issues. She continues to require a structured residential treatment plan.

[51] It is the Society's current position, as it was in September 2011, that Ms. E.C., who is presenting a plan for D.H., would not work co-operatively with the Society and would not be able to manage D.H.'s behaviours or comply with treatment recommendations. The Society submits that it attempted to assess Ms. E.C. as a Kin Caregiver for baby A.W. in March 2010 and she initially refused to allow workers into her home. She did not identify other adults in the home, even when those adults were holding A.W. and appeared to be participating in A.W.'s care. She allegedly denied that Ms. H. had ever hurt D.H. and P.H. and accused the paternal grandmother of coaching the children to make false allegations against their mother.

[52] The Society submits that both D.H. and P.H. continue to require residential treatment for an indefinite period of time. Part of the treatment plan for the children is gradually to re-introduce regular access visits with their maternal grandmother, Ms. E.C., and the staff at Enterphase.

T.D. and S.D. Plan

[53] The maternal great-aunt, T.D., has submitted a plan for P.H. She was presented as a kin caregiver prior to this Summary Judgment Motion. A worker who completed a kin assessment rejected her as a kin caregiver. T.D. was initially approved by Metro CAS as a foster placement. She had two autistic children in her care. She no longer has these children in her care.

[54] In her most recent Affidavit, Ms. T.D. refers to P.H.'s "alleged risky behaviour." She talks about the "allegations" about P.H.'s behaviour.

Positions of the Parties

Mother's Position

[55] Mr. Chang, on behalf of M.H., is asking that the CCAS Motion be dismissed and that P.H. be placed with T.D., grand-aunt, and the adult cousin, S.D., who are before the Court.

[56] With respect to D.H., M.H. supports her mother's cross-motion to place the child D.H. with her grandmother, E.C. There is no contest with respect to the baby, A.W.

[57] Mr. Chang submits that nowhere in the materials is there a written psychiatric report showing that P.H. requires institutional or a treatment-facility treatment.

[58] According to Mr. Chang, the only grounds on which the CCAS attacks the plan put forth by Ms. T.D. and Ms. S.D. are that the criminal records checks, which have not yet been completed. They've done a criminal records check. They've sworn an oath that they have no records.

[59] According to Mr. Chang, Ms. T.D. is keeping an open mind. Her affidavit says, "I'm prepared to work with the Society and deal with P.H.'s issues, take her wherever is required for her treatment, counselling, et cetera," and the placement that has been offered is her home, Ms. T.D.'s home, in Pickering, which is large and commodious.

[60] The only individuals living in that household are S.D., T.D.'s daughter, and an eight-year-old son of S.D. There is a 20-year-old daughter of S.D., who goes to the University of Western Ontario. There are a lot of supports there.

[61] S.D. is 40 years of age, has two children of her own, extensive experience working with youth and worked in group homes for many years, 1996 to 2011.

[62] According to Mr. Chang, the CCAS cannot complain now that Ms. T.D. and Ms. S.D. are too busy. There is always an adult present at the home, and the plan would be to enrol P.H. in a Pickering-area school near where they live and, the rest of the time, T.D. and/or S.D. would be at home caring for P.H.

Maternal Grandmother's Position

[63] Ms. Gregory represents E.C. As far as A.W. is concerned, she is supportive and she actually signed the Statement of Agreed Facts in support of a 57.1 custody order being made in favour of W.W.

[64] With regard to D.H., she is asking for D.H. to be placed in E.C.'s care. Alternatively, she is asking that rather than the access that the Society is seeking, which is in their discretion in accordance with D.H.'s treatment needs and her wishes, that the access be scheduled and set by the Court.

[65] As far as P.H. is concerned, E.C. is supporting placement of P.H. with T.D. and S.D. Regardless of what order is made for P.H., she is seeking an order similar to the order for D.H. She is seeking an order that specifies her access rather than being at the discretion of the Society.

[66] Ms. Gregory submits that there is no evidence that: "P.H. is compulsive about other people touching the food she eats and breathing the air she is breathing."

[67] She submits that the Society has basically stopped having anything to do with Ms. E.C. To suggest that she exhibits hostility toward the Society is historic information and there is no current basis on which to make such a claim.

[68] The Society, it is submitted, is trying to paint a position or a picture of Ms. C. as actively trying to subvert this child's treatment.

[69] Ms. Gregory submits that nothing new has been submitted about these children since March 2012. Nothing about what their treatment needs, what treatment they are getting, whether they need treatment, or what the treatment plan is. There is not one medical or psychological assessment, except a psycho-educational assessment done on D.H., in 2009. There is nothing before you to suggest that these children need to be in care and need to be in a specialized treatment facility.

[70] Ms. Gregory submits that Ms. E.C. is a devoted grandmother to A.W. There is no evidence that she was anything other than a superb caretaker to her.

Children's Views and Preferences

[71] In terms of the views and preferences of the children, P.H. has been clear and consistent in her view that she would like to return home to live with her mother. And if that wasn't possible, to live with her grandmother. And if that wasn't possible, to live with a relative of some sort, including Ms. T.D. And if that wasn't possible, that she be moved to a foster home. She also wants to have access with her mother and her grandmother and her siblings.

[72] D.H. would love to move back with her grandmother. In her words, "It wouldn't be practical."

[73] She would prefer, at this time, to remain in care. She doesn't want to disrupt her progress at school or in her treatment program. She wants to visit with her family, including her grandmother. She is currently seeing her paternal grandmother. She would also like to see her maternal grandmother. Her preference is to be placed in a foster home, more like a normal family situation versus a group home.

[74] With respect to her mother, she would like to start her access with her mother in terms of supervised telephone access, and then to move from there. She loves her mother and she loves her grandmother and she misses them both. She wants to move forward.

Society's Reply

[75] Ms. Stringer in reply, submits that the reasons why there is no medical evidence of P.H.'s treatment needs is that P.H. refuses to see a doctor or a psychiatrist.

[76] P.H. has refused to meet with Dr. Halpern for a clinical assessment as she expressed feeling too anxious. She is not ready to talk about her past experiences.

[77] The affidavit of Cynthia Power, the kin worker for T.D., relates not just that Ms. T.D. minimized the concerns, but also that she was openly hostile to these concerns, stating that the Society just wanted to break up P.H. and her family.

[78] The Society submits that the plan of T.D. does not really address how she and Ms. S.D. are going to continue P.H.'s treatment and her schooling. P.H. is in a specialized class at Enterphase. It's a day-treatment program and it's residential. She can't continue that if she's placed with Ms. T.D.

[79] With respect to the plan presented by Ms. E.C. for D.H., D.H. is almost 16. Her views and preferences are clear, at this point. Once she turns 16, if her views and preferences change and she wants to go live with Ms. E.C., there is little that the Society can do to stop her. At least she would have a Crown wardship order and if it doesn't work out with her grandmother, she won't be at a youth shelter somewhere. She will be able to come back into care.

A.W. – Uncontested

[80] There is no opposition to A.W. remaining in the care and custody of her biological father, W.W., and the making of a section 57.1 custody order in favour of W.W.

Legal Analysis

Protection Findings

[81] The Society submits that there is no genuine issue for trial on the issue of finding. On a balance of probabilities, D.H. and P.H. were abused and neglected by their mother. Their mother was convicted as already indicated of the criminal charges. No appeal took place. This issue is res judicata.

Crown Wardship with Access

[82] Once the children are found to be in need of protection, the court must consider the disposition. These children, more six years old when they came into care, have been in the care and custody of the Society for over two years. The only options available to the court are Crown wardship or arguably placement with a family member.

[83] Where the court finds that a child is in need of protection, the test for disposition is "best interests." The court must be satisfied that alternatives that are less disruptive to the child would be inadequate to protect the chid and then inquire as to whether a kinship placement is available for the child.

[84] In determining whether a Crown wardship order is in the best interests of the children, the Society submits that the most relevant "best interests" factors at play in this case are the following:

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

b. The children's physical, mental and emotional level of development

c. The effects on the children of delay in the disposition of the case.

Section 37(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 as am.

[85] The Society submits that these children have exhibited symptoms of severe disturbance and require continued treatment for an indefinite period of time. Family plans cannot meet the children's treatment needs. There are, therefore, no triable issues.

[86] Access to all parties should further be in the discretion of the Society, having regard to the children's wishes and treatment needs, as the children's treatment needs are fluid and will change over time.

[87] The Society is seeking the following order:

a. That the children, P.H. (d.o.b. […], 1999) and D.H. (d.o.b. […], 1996) be made wards of the Crown and placed in the care of the Catholic Children's Aid Society of Toronto.

b. That the child, A.W. (d.o.b. […], 2009), be placed in the care and custody of her father, W.W., pursuant to s. 57.1 of the CFSA as amended.

c. That access to P.H. (d.o.b. […], 1999) and D.H. (d.o.b. […], 1996) by their maternal grandmother be in the discretion of the Society in consideration of the children's wishes and treatment needs.

d. That access to P.H. (d.o.b. […], 1999) and D.H. (d.o.b. […], 1996) by their mother be supervised in the discretion of the Society in consideration of the children's wishes and treatment needs.

e. That access to A.W. (d.o.b. […], 2009) by her maternal grandmother be as agreed between E.C. and W.W.

f. That access to A.W. (d.o.b. […], 2009) by her mother be at the sole discretion of W.W.

[88] D.H. is currently in a treatment foster home. Once she is deemed ready to move to a permanent placement, the Society will locate a long-term placement that will meet D.H.'s needs.

[89] Once a long-term placement is found, the Society will monitor the placement to determine if the foster parents would be willing to obtain a custody order for D.H. Due to her age and high needs, the Society anticipates that D.H. will remain in long-term foster care.

[90] Currently, P.H. has telephone access with her maternal grandmother. She also has access with her siblings every other week for a period of two hours.

[91] P.H. is currently in a treatment foster home. Once she is deemed ready to move to a permanent placement, the Society will locate a long-term placement that will meet P.H.'s needs.

[92] Once a long-term placement is found, the Society will monitor her placement to determine if the foster parents would be willing to pursue a custody order for P.H. Due to her age and high needs, the Society anticipates that P.H. will remain in long-term foster care.

Respondent Mother's Affidavit

[93] M.H. in her affidavit sworn June 19, 2012, states in part:

"I make this affidavit to oppose the Applicant's motion in making P.H. and D.H. Crown wards."

"I respond as follows in terms of highlighting aspects of the affidavits without burdening the court with a response to all allegations."

Affidavit of Yogesh Patel:

"Mr. Patel provides no proof that I attended access only nine times during that period when he could have submitted copies of a sign-in sheet."

Affidavit of Stephanie Vigliatore:

"I spoke to Ms Moore July 18, 2010 and told her I am not interested in attending the meeting because D.H. was in a foster home and P.H. was with B.F. A meeting was unnecessary. My family cancelled the meeting – I wanted C.L. to attend but he was not available so I asked Stephanie to reschedule."

Affidavit of Frances Levantis:

"I do not want D.H. to be sad. Prior to apprehension, she was healthy and now she has been hospitalized in an institution. I feel that D.H.'s treatment using medication is not in her best interests; however, I will not interfere at all with D.H.'s treatment as recommended if and when she is permitted to live with my mother. As long as D.H. is with family, I am content the CCAS continue providing recommendations and treatment for D.H.."

Mother's Counsel Submissions

[94] Evan Chang, counsel for mother, seeks an order:

1. that P.H. (born […], 1999) be placed with family T.D. (child's great aunt) and S.D. (child's cousin) pursuant to a supervision order six months in duration.

2. that D.H. (born […], 1996) be placed with grandmother E.C. pursuant to a supervision order six months in duration.

3. that access to the children by the Respondent M.H. may take place but be supervised by the caregiving adult.

T.D.'s Affidavit

[95] T.D., in her affidavit sworn June 19, 2012, states in part:

1. I make this affidavit to oppose the Applicant's motion in making P.H. a Crown ward.

2. I repeat and rely upon my June 15, 2011 affidavit attached as Exhibit A.

"Since June 2011, the following things have changed in regard our household.

"Firstly, S.D. and I not have any foster children living in our home. The first foster child left in October 2011 because he was adopted. In January 2012, the other foster child was placed into a different foster home which catered more to her special needs.

"The last time I had contact with P.H. was about one year ago. During the past year or so, I have asked to visit P.H. several times, to Cynthia Power of the CCAS, but she indicated to me, because P.H. was being assessed, I could not visit. I had asked Cynthia multiple times.

"If P.H. is to live with us, the plan would be to enrol her in a Pickering school and take any treatment as recommended by the CCAS. I am prepared to enrol her in piano lessons or other activities she would like.

"This plan is supported by my daughter S.D. and my granddaughter Shebona.

"I completely disagree with the opinion of Stephanie Vigliatore in her June 4/12 affidavit at paragraph 100."

E.C.'s Answer and Plan of Care

[96] E.C., pursuant to an Answer and Plan of Care dated June 19, 2012, and filed June 21, 2012, submits that:

"D.H. and I have a very close relationship. She spent a great deal of time in my home prior to the apprehension. Last year, I started having visits for the day every other Saturday as well as one overnight visit. However, three months after the visits started, the Society suspended them and they have not reinstated them since.

"... while on a visit at my home, her mother coincidentally called me and, D.H., upon hearing her voice, insisted on speaking to her despite my admonishing her not to...

"I know nothing about her current medical and psychological needs. I am allowed only weekly telephone contact. When we speak, she always says that she wants to come to live with me. If she were allowed to do so, I would cooperate with the Society in any way. I would take her to my doctor, or any doctor suggested by the Society and would ensure that she takes any medication prescribed to her."

[97] She seeks an order:

1. Placing P.H. into the care and custody of T.D., under the supervision of the Society under terms and conditions as agreed and as ordered by the court, and an order that she have specified access.

2. Placing D.H. into her care and custody under the supervision of the Society under terms and conditions as agreed and as ordered by the court or, alternatively, an order that I have specified access.

[98] Pursuant to her Notice of Motion dated June 19, 2012, specifically:

1. An order placing D.H., born […], 1996, in the care and custody of the Respondent grandmother under the supervision of the Catholic Children's Aid Society or, in the alternative,

2. An order that the Respondent grandmother have regular scheduled access to D.H., including weekends.

3. An order that the child, P.H., born […], 1999, be placed in the care of T.D. and S.D. And that, in any event, the Respondent grandmother be granted regular scheduled access to P.H., including weekends.

[99] She has not seen D.H. for over a year. Her access was suspended because of several allegations between 2010 and 2011.

[100] D.H.'s paternal grandmother has gone to a number of case conferences at Youthdale. Ms. E.C. has never been invited.

[101] It is submitted that Ms. C. has not had face-to-face contact with P.H. despite her many requests.

[102] Ms. C. submits that the Society has shown a callous disregard of the importance of D.H. and P.H. maintaining a relationship with her.

Kinship Assessment of E.C.

[103] Kinship Services (out of care) Summary of Assessment, prepared by Cynthia Power, Kinship Worker, regarding Applicant E.C. is set out as Exhibit "B."

[104] Stephanie Vigliatore, sworn June 4, 2012, states in part:

"Current family members and others in the household:

Surname	Given Name	D.O.B.	Relationship	Police Record Check
C.	E.C.	19/10/34	Maternal grandmother	Applicant will not return

"Child/ren to be placed:

Family File Name	H., M.H.
Family File Number	140961
Child's Name	W., A.W.
D.O.B.	30/06/09

"Record of Interviews (DD/MM/YY):

• 01/03/10 • 25/03/10 • 11/06/10 • 15/06/10 • 24/06/10

"Areas of Concern:

"E.C. is 74 years old [She will be 78 on October 19, 2012], lives alone and is responsible for the primary care of a very active one-year-old child. She has no identified sources of support other than occasional financial support from A.W.'s father, W.W. E.C did not advise this assessor of any arrangements for her own relief or practical support should she require it, or plans for alternative caregivers, if necessary, while caring for A.W.

"E.C.'s age and health status is a concern which requires further assessment due to E.C.'s refusal to provide consent for a medical reference check to determine if there are health issues which would impact negatively on her ability to provide long-term, permanent care of her one-year-old granddaughter, A.W.

"E.C. has been clear about her opposition to the involvement of the Society with her daughter M.H. and all three of her grandchildren. She has been made aware of the Society's protection concerns and M.H.'s criminal charges and conviction (guilty plea) and yet she maintains that her daughter M.H. has "never" harmed her children and does not pose a risk to the children. Due to E.C.'s strong denials and opposition to the Society's protection concerns, her ability to exercise good judgment regarding any future access between A.W. and M.H. is compromised. As well, her ability to recognize and report any concerns is unlikely, which causes A.W. to be vulnerable should M.H. be in contact with E.C.

"E.C. does not accept the Society's protection concerns regarding M.H.'s possible mental health issues, her verified use of physical discipline, resulting in 11 charges of assault against her children, including assault with a weapon and assault causing bodily harm. M.H. is currently on 18 months' probation as [the] result of pleading guilty to assault and assault with a weapon, and must abide by her probation conditions, including no contact with the children without the approval of the Society. During the course of this assessment, it had been reported by one of her grandchildren that during a visit to E.C.'s home, M.H. was present.

"RECOMMENDATIONS

"In consultation with Supervisor Dawn Boucher, it has been determined that for the above-noted reasons, E.C.'s plan to provide care to her granddaughter A.W. cannot be recommended. E.C. has consistently refused to participate in the assessment process, even after indicating at Court that she would, resulting in great difficulty in obtaining information relevant to the assessment process and required by Ministry Standard and Agency policy.

"In consultation with the Family Services team on […]/10, the decision was made to continue to pursue an appropriate plan for A.W.'s care, through the planned Family Group Conference with the participation of A.W.'s care, through the planned Family Group Conference with the participation of A.W.'s father, W.W., as well as extended maternal family. The Family Group Conference is scheduled to take place July 24/10."

Kinship Assessment of T.D. and S.D.

[105] Exhibit F referred to in the affidavit of Stephanie Vigliatore sworn June 4, 2012, is the affidavit of Cynthia Power dated August 3, 2011. It states in part:

"ASSESSMENT

"I received carriage of the T.D. Kinship Assessment file on May 11, 2011.

"I also personally met with the Applicants, Ms. T.D. and Ms. S.D., on two separate occasions at their home, and one meeting at the Society's Scarborough Branch office. I also had several telephone conversations with both Ms. T.D. and Ms. S.D. separately.

"In addition, I spoke with Ms. T.D.'s employer, Mr. Robert Wilson, the Director of Annie's Havens, Mr. Tony Crawley, Resource Worker with Annie's Haven, and Mr. Tom Cheung and Ms. Stephanie Leung, Children's Services Workers, at the Children's Aid Society of Toronto ("CAST").

"Ms. T.D. and Ms. S.D. contended that the issues and behavioural challenges identified were, in their opinion, as a result of the child's current placement at Enterphase and they believed that placing her in the care of their family would alleviate these concerns.

"They questioned P.H.'s treatment in care, and suggested that P.H. was being mistreated. They appeared accepting of information provided by P.H. or her mother, M.H., regarding her being mistreated in her current placement.

"I attempted to address their concerns and provided specific information regarding several incidents, as documented/reported by the placement, and the Children's Services Worker.

"Ms. T.D. and Ms. S.D. rejected much of this information as "biased" and questioned the motivation of Society representatives, including myself. They contended that the Society was intent on "ripping the family away" from P.H.

"Ms. S.D. suggested that her experience with behaviour modification methods would be helpful in reducing the negative behaviours currently identified. I informed Ms. S.D. that the current placement is a residential treatment placement with staff experienced in providing skilled responses to children with behavioural issues and, despite the skill and experience of the team, staff in the residence have been assaulted by P.H., as have other children in the placement and at school.

"I attended the scheduled Plan of Care for P.H. at Enterphase on June 29, 2011. Ms. T.D. was not present for the meeting and had not left a message with me to advise she could not attend.

"At this meeting, I introduced myself to P.H. and explained my role as a Kinship worker and clarified the process: explained that I am meeting with her aunts at their home to get to know them better and determine if this is a good plan/good fit for P.H. I explained that the process does take time as I am required to meet with everyone in the home, including the children currently in her Aunt's (foster) care. I observed that P.H. appeared confused and I asked her if she was aware that her aunts were currently caring for two foster children. P.H. responded that she did not know this.

"I proceeded to explain that her aunts are foster parents who also care for kids when they can't be with their families. I explained that currently they are caring for a boy, age 3, who has special needs (autism), as well as a girl, age 7, who also has autism and is non-verbal. I further explained that these children have support workers who come to the house each day to help her aunts care for these children."

"SUMMARY AND RECOMMENDATION

"On July 26, 2011, in consultation with Society Kinship Supervisor Dawn Boucher, Family Service Supervisor, Sasha Milasin, and Children's Services Supervisor, Rayton Archer, it was decided, on the basis of the information as outlined above, that the Society is unable to recommend approval of Ms. T.D. and/or Ms. S.D. as possible care providers for P.H., either as a Kinship home or under a Supervision Order.

"I am unable to recommend the placement of P.H. with Ms T.D. and Ms. S.D. as Kinship care providers for the following reasons:

a. Ms. T.D. is currently the primary foster caregiver to two autistic children, with significant behavioural, developmental and medical needs;

b. One child is non-verbal and the other child has significant language difficulties and both children would be highly vulnerable in the event that P.H. was placed in this home and continued to exhibit the physically aggressive and risky behaviours she has displayed in the past towards other children and adults.

c. Ms. T.D. currently requires significant extra support to care for these children.

d. Ms. T.D. has not yet consulted with her employer or CAST regarding her kinship plan and the identified needs of P.H., despite being repeatedly requested to do so by the Society.

e. Ms. S.D. has a full-time job with two children of her own and her ability to assist and support Ms. T.D. is limited as a result.

f. P.H. has behavioural needs and psychological issues that require significant attention and follow-through.

g. Both Ms. T.D. and Ms. S.D. appear to have significant demands on their time and there is concern that they would not be able to attend for the required appointments and meetings with the Society and collaterals regarding P.H. and her treatment needs.

h. Ms. T.D. and Ms. S.D. appear to have a limited understanding and acceptance of the Society's protection and treatment concerns regarding P.H. and there is concern regarding their capacity and willingness to work collaboratively and effectively with the Society and collateral service providers.

i. Ms. T.D. and Ms. S.D. do not currently view the Society as working in the best interests of P.H., and are not likely to view future work with the Society (in the event P.H. is placed in their care) as a supportive resource, which would undermine the Society's efforts to provide P.H. with the necessary treatment and supports to ensure her safety and emotional and physical well-being.

j. P.H.'s current needs and behavioural and psychological issues are significant and, in my professional opinion, exceed the current skills, ability and experience of Ms. T.D. and Ms. S.D.

k. Ms. T.D. and Ms. S.D. have not provided a copy of their criminal record checks, have not provided personal information, and have not returned their financial statement form as requested and as required by the Society."

Child Protection Worker's Affidavit

[106] Pursuant to the affidavit of Frances Levantis, Child Protection Worker, sworn May 30, 2012:

"D.H. AND P.H.

"To date, D.H. has been in the cumulative temporary care of the Society for one thousand, one hundred forty-five (1,145) days as follows:

a. She was first admitted into the temporary care of the Society on November 28, 2008, and placed in the Society foster home of J.M;

b. On August 27, 2009, she was placed with her maternal aunt, B.F., and formally discharged from care on October 1, 2009;

c. On February 12, 2010, D.H. was re-admitted into the Society's temporary care and placed in the foster home of V.M.;

d. I have been involved with D.H. in my capacity as a Children's Service Worker from February 12, 2010, to the present. I typically visit with D.H. once every month. I also typically speak with her foster parents, treatment care providers and her doctors as required for clarification."

"To date, P.H. has been in the cumulative temporary care of the Society for seven hundred fifty-three (753) days as follows:

a. She was first admitted into the temporary care of the Society on November 28, 2008, and placed in the Society foster home of J.M.;

b. On August 27, 2009, she was placed with her maternal aunt, B.F., and formally discharged from care on October 1, 2009;

c. On March 11, 2011, P.H. was re-admitted into the society's temporary care and placed in a treatment home through Enterphase Child and Family Services;

d. I have been involved with P.H. in my capacity as a Children's Service Worker from March 11, 2011, to the present. I typically visit with P.H. once every month. I also typically speak with her foster parents, treatment care providers and her doctors as required for clarification.

"MY INVOLVEMENT WITH D.H.

"On March 12, 2010, D.H. participated in her Plan of Care conference.

"Education: D.H. was registered at S[…] School in Grade 8. Upon review of D.H.'s previous child-in-care file, it was discovered that a Psycho-educational Assessment had been completed in June 2009. D.H.'s overall intelligence was found to be in the Exceptionally Low or Developmentally Delayed range (0.1 percentile). Foster mother V.M. observed that D.H.'s understanding of basic math was very limited. She had been assisting D.H. in completing some basic math skills [sic] and noted that D.H. did not seem to understand basic adding and subtracting. The foster mother and I had previously attended a conference with D.H.'s school Principal and Special Education consultant as D.H. had never been formally identified at school. The school was providing informal support and the foster mother had a tutor coming once a week to assist D.H. with basic skills. Attached hereto as Exhibit "A" is a copy of D.H.'s Psycho-educational Assessment, dated June 2009.

"On July 7, 2011, I met with D.H. and the following people for an update conference at Youthdale: Dr. Perez (psychiatrist), Stephanie Vigliatore (Family Service Worker), V.M. (previous foster mother), Leslie S., Gloria S. and Shana (staff at Youthdale), and F.W. (paternal grandmother). The following was discussed:

a. D.H. reported that she did not want to be at Youthdale and complained about the structure and rules.

b. Youthdale staff reported that D.H. complied with their program but was fixated on complaining about the rules and structure. She was doing well in the program but tried to isolate herself. She was anxious around the other children. D.H. would complain that she did not want to attend peer therapy group and would say that she would not talk there; however, once at the group, she would talk with others and even ignite conversations.

c. It was reported that D.H. did prefer adult company. She admitted that she had the body of a 14-year-old but a mind of a 12-year-old.

"Also during this meeting, Dr. Perez advised that Dr. Olga Henderson had completed psychological testing on D.H. that week and there would be a final written assessment; however, Dr. Perez provided a verbal update from Dr. Henderson, as follows.

a. D.H.'s full-scale IQ was 68. Low normal was 70;

b. D.H. was disorganized;

c. In respect to sexual issues, D.H. was preoccupied and clearly there was a history of physical abuse but it was strongly hypothesized by Dr. Henderson that D.H. had been sexually abused. She wanted boys' love and attention but was very naïve and was at severely high risk for exploitation. Birth control was strongly recommended. D.H. had poor judgment, and would dissociate. She blocked out memories. She was emotionally immature. She tried to please adults. She did not know how to anticipate and protect herself. When "rape" was talked about at a peer group meeting, she came alive. She was preoccupied with it, wanted to know more about it, the details, and would not let it go. In her testing, she had to tell a story. She told a story about a girl who got raped and did not tell anyone. The girl in the story did not tell anyone because she thought no one would believe her and the man told her not to tell.

d. D.H. had the potential to do well in treatment. Dr. Perez started D.H. on a low dose of Seroquil and reported it should help with the dissociating and checking out of reality when anxious. D.H. was agreeable to starting the medication. She would also continue with the Celexa.

e. At Enterphase, between March and June 2011, P.H. was guarded, hyper-vigilant, needed to be aware of where everyone was and she had difficulty being calm. She tested limits through outbursts and was aggressive. There were 15 incidents where staff were required to physically intervene. Racial concerns were evident. P.H. refused to participate in fun activities and if she did and had fun, she would struggle with guilt and confusion after the fact. She portrayed herself as a victim and would not talk about her past life. She would attempt to manipulate others, for example, telling other youth and adults that she could control their mind. She refused food made by others, citing her belief that people were poisoning it or trying to medicate it. She displayed symptoms of paranoia. She was observed talking to herself, calling herself names and, on one occasion, was hitting herself.

f. From June 2011 to October 2011 at Enterphase, P.H. had no visits with her mother or with her maternal grandmother. She had supervised telephone contact with her maternal grandmother, although the grandmother was not calling P.H. P.H. was initiating the calls at a rate that was decreasing in frequency. P.H. had biweekly access to her sisters, D.H. and A.W. P.H. completed school on a positive note in June 2011 and started forming age-appropriate relationships and friendships with peers. P.H. allowed herself to have fun, and would seek out fun. P.H.'s food concerns were reported to have decreased. She would let staff prepare her food and would eat those meals."

The Law

Summary Judgment in Child Protection Cases

[107] The court's jurisdiction to grant summary judgment in child protection cases is only to be exercised in the clearest of cases and with extreme caution. It is in the best interests of children to have their issues resolved quickly. The court must review the evidence to determine if there is a basis for the final order being sought. A proper consideration of a full evidentiary record is necessary to determine the evidence on the motion. The court must then determine whether or not there are specific facts to support a triable issue.

[108] Mere allegations or blanket denials or self-serving affidavits, not supported by specific facts showing there is a genuine issue for trial, are insufficient to defeat a claim for summary judgment. A party answering a motion for summary judgment cannot rest on bald denials. They must put their best foot forward. I must find that Ms. C.'s position rests primarily on allegations and denials.

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

[110] 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

Rule 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

Rule (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

Rule (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

Rule (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

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

[111] 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.

[112] The onus is on the Society to show that there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ) per Gordon J.

[113] 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.

Best Interests of the Child

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

[115] 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).

[116] 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.

[117] 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. In this case I find that the going treatment prescribed for D.H. and P.H. are desperately needed and required.

[118] The bottom line is the best interests of a child. See Young v. Young, [1993] 4 S.C.R. 3.

[119] If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without any delay associated with a trial and the resulting prolongation of a further state of uncertainty about a child's future. Jewish Child and Family Services of Toronto v. A.(R.), 2001 O.J. No. 47 (SCJ) per Lane J.

[120] Considerations of due process, statutory requirements and best interest, protection and well-being of children determine the appropriateness of summary judgment. Children's Aid Society of the Regional Municipality of Waterloo v. T.S., [1999] O.J. No. 5561 (Ont. C.J.) per Hardman J.

[121] Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. Children's Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (Ont. C.J.).

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

[123] 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. The best prospects for D.H. and P.H. are to remain where they are now. See Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J.

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

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

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

Child and Family Services Act

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

[127] 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.

[128] I find that the disposition sought by the Society reflects the children's special needs, the importance for their development of a positive relationship with members of their family, and the importance of continuity and the degree of risk presented.

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

Primacy of Child's Best Interests

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

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

[132] Section 1 states, in part:

1.(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

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

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

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

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

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

[135] 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.

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

English Jurisprudence

[137] 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.]

Supreme Court of Canada Jurisprudence

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

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

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

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

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

[141] The Chief Justice went on to say…

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

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

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

[143] The "best interests" of the child forms a guiding objective in family law. It is a guide to courts in making custody and other decisions respecting children, and it can function as a guide in part because of the limited number of alternatives in these contexts. Deciding which environment would be better for a child is very different from attempting to decide which of an almost infinite number of combinations of potential actions toward one's child would best advance the child's interests. The guiding objective of furthering the best interests of the child also informs the content of various legal duties that parents owe their children, whether statutory, at common law (negligence) or at equity (breach of fiduciary duty).

[144] I find that the Society will continue to ensure that its determination of the appropriate accommodation for these children will continue to be from a subjective, child-centred perspective. It is in the children's best interest that the integrated settings provided to them can be adapted to meet their special needs.

[145] A presumption as to the best interests of a child is not a constitutional imperative when the presumption can be automatically displaced by the decision of the child's parents. Such a result runs counter to decisions that the parents' view of their child's best interests is not dispositive of the question. See E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.

Section 57.1 Custody Order

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

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

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

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

[149] The disposition order that I am making is the least disruptive order available consistent with the best interests of these children.

Best Interests Factors

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

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

[151] In Catholic Children's Aid Society of Metropolitan Toronto, supra, at p. 191, L'Heureux-Dubé J. stated: "Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent. In order to respect the wording as well as the spirit of the Act, it is crucial that this child-centred focus not be lost."

Disposition

[152] The Motion on behalf of M.H. is dismissed.

[153] The Motion on behalf of E.C. is dismissed.

[154] There will be an order to go granting relief on the basis of Summary Judgment in respect of the Society's Amended Protection Application dated April 4, 2012, pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99 as amended.

[155] P.H. and D.H. are found to be children in need of protection pursuant to sections 37(2) (a)(ii) and 37(2)(b)(ii), of the Child and Family Services Act.

[156] P.H. and D.H. are made Wards of the Crown and placed in the care and custody of the Catholic Children's Aid Society of Toronto.

[157] Access between the children and their family will be at the discretion of the Society, in accordance with any treatment recommendations and in consideration of the children's wishes.

[158] A.W. is a child in need of protection pursuant to sections 37(2) (b)(ii) of the Child and Family Services Act.

[159] The father, W.W., is granted custody of A.W., subject to section 57.1 of the Child and Family Services Act.

[160] Access between A.W. and her family members will be as agreed between W.W. and the family members seeking access.

Released: July 17, 2012

Signed: "Justice Marvin A. Zuker"