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 File and Parties

Court File No.: C360/10

Date: October 3, 2012 (amended)

Ontario Court of Justice

Between:

The Children's Aid Society, Region of Halton Applicant

— AND —

D.K.1 Respondent F.J.S. Respondent A.K. Respondent

Before: Justice R. Zisman

Heard on: September 6, 2012

Reasons for Judgment released on: October 3, 2012

Counsel:

• Diane Skrow for the applicant society
• Peter Tensuda for the respondent D.K.1
• No appearance by or on behalf of F.J.S. and A.K., even though served with notice

Zisman, J.:

1. INTRODUCTION

[1] This is a motion by the Children's Aid Society, Region of Halton (hereinafter referred to as the "Society") for summary judgment, pursuant to subrule 16(6) of the Family Law Rules O. Reg. 114/99, as amended for a final order that:

1. The children A.S. born […], 2000, C.S. born […] 2001 and D.S. ("D.S.") born […], 2007, continue to be in need of protection pursuant to section 37(2)(g) of the Child and Family Services Act;

2. The children A.S. born […], 2000, C.S. born […], 2001 and D.S.("D.S."). born […], 2007 be made wards of the Crown without access for the purpose of adoption.

3. The applicant, Children's Aid Society, Region of Halton have the right to consent to and authorize medical treatment for the subject children.

[2] The children's mother seeks an order dismissing the summary judgment motion. She submits that there are genuine issues for trial where she will be seeking an order that the children be placed in her care and custody.

[3] The children's father is currently incarcerated in a federal penitentiary serving a sentence of three years. He was present at an earlier stage of the proceedings and although he was noted in default he indicated that he supported the mother's position.

[4] A.K. is the maternal grandmother. A.K. and D.K.2, the paternal grandfather, were previously added as parties and sought an order that the children be placed in their care. Unfortunately the maternal grandfather passed away unexpectedly and the maternal grandmother was not able to plan herself and withdrew her plan.

[5] This is a status review application. The children were apprehended from the mother's care on August 12, 2010. The society commenced protection application and on August 17, 2010 the children were placed in the temporary care of the maternal grandparents. On September 30, 2010, pursuant to a Statement of Agreed Facts and consents signed by the mother and maternal grandparents, the court made a finding that the children were in need of protection pursuant to section 37(2)(g) of the Child and Family Services Act (hereinafter referred to as "the Act"), namely, that the children were at risk of emotional harm, and placed the children in the care and custody of the maternal grandparents subject to the society's supervision for seven months and subject to specific terms and conditions.

[6] On January 21, 2011 the children were apprehended from the care of the maternal grandparents due to their breach of the supervision order as they had allowed the children to return to the care of the mother contrary to the supervision order.

[7] On January 16, 2011 the society commenced this Status Review Application seeking an order that the children be made society wards for seven months. After a temporary care and custody hearing, the children were ordered to remain in the care and custody of the society. A referral was made to the Child Advocacy and Assessment Program (CAAP) at McMaster Children's Hospital for a parenting capacity assessment of the mother.

[8] On April 3, 2012 the society filed an amended Status Review Application seeking an order that the children be made Crown wards for the purpose of adoption.

[9] In considering this motion, I have reviewed and relied on the affidavits of Jennifer Christian sworn August 22, 2012 and the exhibits attached including hospital records and results of hair follicle tests, the CAAP Assessment dated January 30, 2012, the affidavits of Susan Williamson sworn August 22 and 24, 2012, the affidavit of the mother sworn September 5, 2012 and the exhibits attached including letters and notes from her doctors, the Amended Status Review Application and the Amended Answer and Plan of Care filed by the mother. I have also reviewed the prior affidavits of the mother sworn February 21, March 29 and May 5, 2011 and April 30, 2012 as some reference was made to the contents and exhibits attached to these affidavits.

2. APPLICABLE LEGAL PRINCIPLES

2.1 Legal consideration on a summary judgement motion

[10] Rule 16 of the Family Law Rules allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

[11] Rule 16(2) specifically confirms that summary judgment is available in child protection proceedings.

[12] Rule 16(4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[13] Rule 16(4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

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

[15] 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 there is no genuine issue for trial. (Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (Ont. S.C.J.)).

[16] In assessing whether or not a Society has met its obligation of showing there is no genuine issue for trial, courts have equated that phrase with "no chance of success", "when the outcome is a foregone conclusion", "plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome than that sought by the applicant". (See Children's Aid Society of Oxford (County) v. J.J., [2003] O.J. No. 2208 (Ont. S.C.J.); Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), [1996] O.J. No. 3081, (Ont. G.D.)139 D.L.R.(4th) 534; Children's Aid Society of Simcoe v. C.S. [2001] O.J. No. 4915 (Ont. S.C.J.) and Children's Aid Society of Niagara Region v. S.C., [2008] O.J. No. 3969 (Ont. S.C.J.)).

[17] Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. Justice Hardman, in the case of Children's Aid Society of the Regional Municipality of Waterloo v. T.S., [1999] O.J. No. 5561 (Ont. C.J.), observed at paragraph 5 of that decision that because summary judgment is now explicitly contemplated by Rule 16, this may:

…broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment.

(See also Jewish Child and Family Services of Toronto v. A.(R.), [2001] O.J. No. 47 (Ont. S.C.J.)).

[18] A party answering a motion for summary judgment cannot rest on bald denials; they must put their "best foot" forward, showing that there is a genuine issue for trial. The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. However, not every disputed fact or question of credibility gives raise 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.)).

[19] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials or self serving affidavits not supported by specific facts showing that there is no genuine issue for trial must be insufficient to defeat a claim for summary judgment. (Children's Aid Society of Toronto v. A.(M.), [2002] O.J. No. 2371 (Ont. C.J.)).

[20] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact. (Children's Aid Society of the District of Nipissing v. M.M., [2000] O.J. No. 2541 (Ont. S.C.J.); Children's Aid Society of Hamilton v. M.N, supra).

[21] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. (Children's Aid Society of Dufferin v. J.R., [2002] O.J. No. 4319(Ont. C.J.)).

[22] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits. (Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224, [2004] O.J. No. 4084 (Ont. C.J.); Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442)(Ont. S.C.J.)).

[23] In interpreting Rule 16, the court must also consider the strict timelines that govern child protection proceedings and subsection 1(1) of the Child and Family Services Act providing that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. It is also necessary to consider Rule 2 of the Family Law Rules to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that case are dealt with in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking into consideration the need to give resources to other cases. (Children's Aid Society of Hamilton v. W.H., [2006] O.J. No. 1255 (Ont. S.C.J.)).

[24] 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 parent's evidence that she faces some better prospect that what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent. (See Children's Aid Society of Toronto v. R.H. and M.N., [2000] O. J. No. 5853 (C.J.)).

2.2 Legal considerations in a Status Review Application

[25] As this is a Status Review Application, the court must determine if there is a triable issue for trial within the context of the legal considerations applicable to a Status Review Application. A Status Review Application is brought pursuant to subsection 64 of the Act. Subsection 65(1) of the Act sets out the court's options as follows:

a) Vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

b) Order that the original order terminate on a specified future date;

c) Make a further order or orders under section 57; or

d) Make an order under section 57.1

[26] In the case of Children's Aid Society of Toronto v. T. L., 2010 ONSC 1376, [2010] O.J. No. 942 (SCJ) Justice Perkins, at paragraph 25, outlined the statutory pathway a court should follow as follows:

1. Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57.)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

3. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59(2.1)(a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

4. Determine whether the access would impair the child's future opportunities for adoption. (Section 59(2.1)(b)). If so, dismiss the claim for access. If not, go to the next step.

5. Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58.)

[27] The court is required to consider, pursuant to subsection 57(2) of the Act what efforts the society or other agency or person made to assist the child before intervention under Part III of the Act.

[28] The court is also required to look at the least disruptive alternatives that removing a child from the care of the care of the person who had charge of the child immediately before intervention unless the court determines that these alternatives would be inadequate to protect the child.

[29] The court must also consider, pursuant to subsection 57(4) is there are any family members of community members available before placing a child in care.

[30] In determining the proper disposition, the court must decide what is in the child's best interests in accordance with the criteria set out in subsection 37(3) of the Act.

[31] There is no order that is more profound than a Crown wardship order that permanently removes a child from the care of a parent. A court must exercise such a power only with the highest degree of caution and only on the basis of the most compelling evidence and only after a careful review of all other possible remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T., [1996] O.J. No. 1394 (Div.Ct.)

[32] In determining the best interests of the child, the court must assess the degree to which the protection concerns that existed at the time of the apprehension still continue to exist. This must be examined from the child's perspective. See Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R.165).

[33] A court should never lose sight of the paramount purpose of the Act is to promote the best interests, protection and well-being of children. The Act is a child welfare statute, not a parents' right statute. As stated by Justice Katarynch in Children's Aid Society of Toronto v. R.H., [2000] O. J. No. 5853 (OCJ) and cases cited therein, at paragraphs 15 and 16:

A child's need for permanency planning without 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. Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed.

The child should not be held in limbo waiting for change in a parent that is unlikely to happen. The parent's chance to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized.

2.3 Procedural issues

[34] Counsel for the mother raised a procedural issue that much of the society's affidavit evidence should not be relied upon as it was hearsay. He submits that subrule 16(15) states that where the evidence is not within the personal knowledge of the affiant the court may draw conclusions that are unfavourable to the party. Specifically he submits that Ms Christian's affidavit a summary of the history of the prior involvement of the Hamilton and Halton children's aid societies without any details or records. Counsel for the society submits that Ms Christian's affidavit specifically states that where the information is not within her personal knowledge she relies on either the business records of the society or third party information which she believes to be true. Further, it is submitted by the society that there has already been a finding that the children are in need of protection and the mother agreed to these historical facts in the Statement of Agreed Fact and they are included in this affidavit to provide a context for the society's current position.

[35] Counsel for the mother also submitted that even after the events leading up to the Statement of Agreed Fact dated September 30, 2010; Ms Christian has included hearsay comments from anonymous community reports to the society. However, these references would not be considered by me for their truth nor was it the intention of the society that they are relied upon for their truth. The reports from community members are included for context to explain why the society attended at the mother's home or why the society followed up with the children's school.

[36] Counsel for the mother also submitted that Ms Christian's affidavit extensively quotes information from the children's social worker, Ms Sara Dent Henshaw about her observations of access visits, comments made by the children and her observations of the children at the foster home. Counsel for the society submitted that in preparation of Ms. Christian's affidavit she relied on the notes by Ms Dent Henshaw which are business records. I also note that the mother only made some very general comments that she does not agree with Ms Dent Henshaw's observations that some of the access visits did not go well. The mother does not indicate any discrepancy between the comments and observations attributed to Ms Dent Henshaw in Ms Christian's affidavit and the actual notes made by Ms Dent Henshaw which would have been available to counsel as part of his disclosure rights. I have also reviewed the court file and Ms Dent Henshaw filed previous affidavits sworn March 1, and March 28, and March 30, 2011 which contain much of the same information. I was also advised in reply submissions by counsel for the society that Ms. Dent Henshaw is no longer employed by the society and obtaining a fresh affidavit would have been difficult. I would not consider this to be a valid reason for not preparing a fresh affidavit but for the other reasons outlined I have no concerns about relying on the information obtained from the society records regarding Ms Dent Henshaw's observations.

[37] For these reasons I am prepared to rely on the affidavit of Ms Christian including information from third parties and do not draw any adverse inference or unfavourable conclusion against the society.

3. SUMMARY OF MATERIAL FACTS

[38] The material facts set out below were not disputed, baldly denied or explained by the mother. The mother's position is generally that she has no mental health issues and no drug abuse issues; she was using drugs that were prescribed for her and in any event, she has now taken positive steps to obtain treatment.

3.1 Facts regarding history of society involvement

[39] The society has been involved with this family since 2004. The society's involvement was with respect to the children experiencing emotional harm due to witnessing domestic violence, the father and mother's substance abuse, the mother's mental health, the basic neglect and lack of supervision of the children and lack of parenting skills. The mother worked voluntarily with the society until July 2006 and file was closed. But the file was then reopened in September 2007 because of concerns that the children were not attending school on a regular basis. The previous concerns about the parents, that had been the basis of the society's involvement since 2004, continued. The children were briefly removed from the mother's care in 2008 as the father had again assaulted the mother by punching her in the face and as his whereabouts were unknown the children were deemed not to be safe and were placed in the care of the maternal grandparents.

[40] From late July to August 2010, concerns about the mother's mental health escalated due to the police being called to the mother's residence in the middle of the night as the mother was reporting that she was being threatened and stalked, that people were slashing her tires and gaining entrance to her home. She blamed these incidents on the father's connections to organized crime. The police never found any evidence of anyone being in the home and reported their concerns about the mother's behaviour to the society.

3.2 Facts regarding the mother's mental health and alleged misuse of drugs

[41] When the children were apprehended from the mother's care in August 2010, the mother was admitted to the Oakville Trafalgar Memorial Hospital on a Form 1 for a mental health assessment and stayed for one week. The discharge summary from the hospital by Dr. Voruganti dated August 19, 2010 indicates that the mother had a past history of motor vehicle accidents and chronic pain syndrome for which she was seeing a variety of specialists including Dr. Zamar and Dr. Clark. The note indicates that,

As part of the treatment for her chronic pain problems, she has been abusing opioid medication and possibly supplying it to other people, which seems to have led to various interpersonal problems….During her stay in the hospital D.K.1 was clearly intoxicated, euphoric, articulate and emotionally detached at the time of initial assessment. She did not express any distress related to the CAS actions…

[42] The discharge summary concluded that:

A comprehensive review of D.K.1's personal history indicated a pattern of maladjustment consistent with that of her personality disorder and there is clear evidence of opioid dependence in the recent years. She has been using a far excess of OxyContin tablets in the recent weeks and it was likely that she was in an opioid induced delirium at the time of the visits by the children's aid society. She may have experienced some suspiciousness and perceptual problems as a part if the opioid intoxication but there is no clear evidence of persistent psychotic symptoms.

[43] A referral was made to the community Concurrent Disorders program and an appointment was made with Dr. Balalato for opiate dependency. According to the society and the CAAP assessment the mother advised that she attended for one appointment with Dr. Balalato but not for any follow up appointments as she felt it was not needed. However, the mother deposes that Dr. Balalato "disappeared" from Oakville and did not leave a forwarding address but she attached to her affidavit a search from the College of Physicians and Surgeons indicating the doctor is now practising at the Centre for Addiction and Mental Health in Toronto. The mother did not set out any steps to obtain another referral.

[44] During the CAAP assessment the mother initially denied any mental health concerns however, she then indicated that she qualified for ODSP due to post traumatic disorder and depression. The mother confirmed that she was seeing Dr. Zamar, a psychiatrist but only for prescribed medication and did not engage in any psychotherapy.

[45] The terms of the Statement of Agreed Fact executed by the mother and that were incorporated into the Order dated September 30, 2010 specifically required the mother to undergo a psychiatric assessment, that she address her mental health concerns through psychiatric treatment and that she co-operate with hair follicle testing and address the society's concerns about her over-medicating herself.

[46] On October 13, 2010 the society sent letters to both Dr. Zamar and Dr. Clark outlining the concerns about the mother's mental health, her over medicating herself and the requirements of the Statement of Agreed Fact and the need for all physicians and services having open communication regarding the mother's treatment and requesting that the doctors be in touch with each other and the attending doctor at the Oakville Trafalgar Hospital regarding the mother's recent admission.

[47] Dr. Zamar did not conduct a psychiatric assessment of the mother nor did he respond directly to the correspondence sent to him by the society. However, the mother did tender into evidence a letter from Dr. Zamar, her psychiatrist, dated May 4, 2011 that states that the mother had been under his care since January 2005 due to her continued episodes of depression, that he saw her on an average of every three weeks and that she had been exemplary with respect to the management of her medications and he had no knowledge of any misuse of medications.

[48] Dr. Clark responded to the correspondence from the society by correspondence dated March 29, 2011 and outlined his concerns about the mother's presentation. He stated that the mother "always has stories like she is living in a B movie". He stated that the mother was always running out early of her medications because she told him that her ex-husband who is in jail sends men to her home every day and they take her medication and sell them. He stated that although her urine screens are in order, the washrooms are not monitored because his clinic is not an addiction clinic. He was seeking some documentary proof to monitor the mother's drug consumption. He indicated that the mother told him that she stopped taking Percocet and he reduced her consumption of OxyContin to three pills a day and was dispensing them every two days and also recommended that the mother keep her medication locked up.

[49] The society has had long-standing concerns about the mother's drug use. In November 2003, the mother tested positive for cocaine. This was not denied by the mother.

[50] During the mother's admission to the Oakville Trafalgar Hospital from August 12 to 19, 2010, the conclusion reached was that that the mother was using an excess of OxyContin. The consultation note indicates that the mother had been prescribed OxyContin by Dr. Zamar as well as by Dr. Clark who was in charge of the mother's pain management. Concerns were raised that the doctors were not aware that each was prescribing medication for the mother. The note also indicated that the mother had been admitted to the Hamilton Psychiatric hospital three years previously with a crack-induced psychosis.

[51] The society arranged for a hair follicle test for the mother that was taken on August 25, 2010 and the results were positive for opiates.

[52] On January 21, 2011, Ms Christian and another worker attended at the children's school to apprehend the children. The mother and the maternal grandmother arrived and it was Ms Christian's opinion that the mother was seriously impaired and or high on drugs. She was observed to be moving in slow motion and speaking slowly in a low tone.

[53] The society arranged for another hair follicle test that was taken on February 3, 2011 and the results were positive for opiates- codeine and Oxycodone. The society confirmed that the levels were not overly high and would be consistent with someone who was prescribed the narcotic. However, the society remained concerned that there was no independent medical evidence to confirm why the mother was prescribed the narcotic or why the mother appeared to be impaired most of the time. Dr. Clark's letter of March 29, 2011 also raised concerns about the mother's possible misuse of narcotic pain medications.

[54] On March 1, 2012, the society received a report that the mother had been found in a home when it was raided pursuant to a drug search warrant. Crack cocaine was found in the children's clothing in the children's room and marijuana was found on the coffee table. The mother was found with Oxycontin and a prescription for Oxycontin was also found in her purse. The mother was arrested for possession of narcotics and possession for the purpose of trafficking. The mother does not deny that she was arrested but deposed that the drugs found in the house were not hers, that she had a prescription for the Oxycontin found on her and she expects the criminal charges to be withdrawn against her.

[55] On March 14, 2012 the mother co-operated with another hair follicle test. The results were positive for opiates specifically Oxycodone at greater than 4000 pg/milligrams of oxycodone in 100 millilitres of blood. Julia Klein of Drug Testing Consultants indicated that this was the highest the test goes so that the actual readings could be higher. The test results indicate someone that "clearly is addicted."

[56] On July 10, 2012 the mother co-operated with another hair follicle test which was segmented into one month increments over a period of approximately three months covering April, May and June 2012. In each of these three months the mother tested positive for Cocaine and Metabolite (Benzoylecgonine), Norcocaine and Cocaethylene and Opiates (Oxycodone and Hydromorphone). The test results were also positive for THC.

[57] The mother does not dispute the results of the hair follicle tests. She deposes that she was taking pain medication that was prescribed for a variety of accidents and medical conditions. She also deposes that in February 2012, she was "roofied" and she did not know what drugs were slipped to her and that she was raped while unconscious. How this incident related to the positive test result for each month from April to June was not explained. The mother had previously sworn an affidavit on April 30, 2012 that she no longer took Oxycontin but then did not explain the positive tests results for April to June 2012.

[58] The mother deposed that she is now enrolled in a methadone program and began methadone July 11, 2012. She produced a letter dated September 4, 2012 signed by "John Street Clinic Staff (signature is not legible) from the John Street Clinic in Hamilton that states that the mother is a patient of the clinic, that she has been a patient since July 19, 2011 and that she is in the Methadone treatment program requiring a daily dose in the form of a drink. The length of time for the treatment varies.

[59] The mother in her affidavit does not explain what happened between the time she enrolled in the program in July 2011 and when she began to take methadone in July 2012.

[60] The mother also deposes that she has been seeing a Dr. Victor Choon Hoe Wong at the John Street Clinic since July 19, 2011 and stopped seeing him in November 2011 and then returned to see him on July 11, 2012. She states that Dr. Wong prescribed an anti-depressant and sleeping pills for her. No report or letter was provided from Dr. Wong or any explanation as to why she stopped seeing him.

[61] In August 2012 the mother offered to have another hair follicle test done. The society declined as there had already been two tests conducted in the past year that covered the periods from December 2011 to early March 2012 and early April to early July 2012. The society indicated that the mother was able to attend with her own doctor if she wished any further drug testing.

3.3 Findings of CAAP parenting capacity assessment

[62] The CAAP parenting capacity assessment concluded that the mother did not have the ability to meet the needs of the children and recommended that the children be permanently removed from her care. The CAAP assessment indicated that the children's needs and experiences of significant trauma required a parenting environment that is consistent, safe and responsive to their many needs.

[63] The summary of concerns about the mother is outlined at page 60 of the CAAP assessment as follows:

Overall, CAAP had significant concerns regarding Ms. K.'s ability to provide safe and adequate care to her children. Despite their exposure to domestic violence and physical discipline Ms. K.'s poor decision-making has placed her children at an increased risk for child maltreatment. Ms. K. does not acknowledge her role in failing to keep her children safe and protect them from harm, nor does she see how her failure to do so has impacted her children. During the feedback session, Ms. K. felt she should not be blamed for the things that have happened to her in her life. CAAP does not feel that Ms. K. has the ability to keep herself and/or her children safe. Wile in her care the children have been neglected and exposed to drugs, drug paraphernalia and criminal activity. Ms. K. minimized the children's exposure to maltreatment by claiming the children learned about drugs and alcohol from school, which speaks to her inability to comprehend how her children's experiences in her home has impacted them. Ms. K.'s constant and continuous worry and fear that people are threatening , stalking and harassing her and her children has had a significant ability to provide a safe, consistent and stable home environment for her children. Children's Aid Society records and notes from Dr. Clark outline evidence of the same fears and worries. It is in CAAP's opinion that the children have become fearful, anxious and preoccupied with people stalking them and wanting to hurt them as a direct result of the information Ms. K. has shared with them and their lived experiences while in their mothers care. CAAP is concerned that Ms. K. has inappropriate boundaries and communication with her children. During the follow-up interview, Ms. K. makes it very clear that she would be sharing "everything" about the court proceedings and assessment process with the children. Ms. K. felt the children had a right to know what was going on and felt that because A.S. wanted to be a lawyer when she grew-up she should be told everything. Ms. K. sustained these inappropriate boundaries despite attempts made by Children's Aid Society to encourage and suggest more age appropriate limitations and topics of conversation. Ms. K.'s poor insight, lack of judgment and lack of problem-solving both with respect to her own needs as well as the needs of her children is a risk and increases the potential for poor parenting.

[64] The CAAP assessment of A.S. indicated that although she presented as a resilient, untroubled individual at school where she is doing well academically, she is harbouring many unprocessed thoughts and feelings regarding her current situation that are too painful for her to articulate. Due to the family dysfunction that A.S. was exposed to, the extent of which is still unclear, she is more vulnerable to psychopathology in childhood, adolescence and adulthood and that her reluctance to discuss these experiences is taking their toll on her. It was recommended that she should be monitored closely and participates in an individual therapeutic program.

[65] The CAAP assessment of C.S. indicated that she was able to provide significant and detailed history about her experiences in her parents' care including exposure to domestic violence both verbal and physical, neglect, drugs and alcohol in the home and physical abuse by her father. She also shared significant and concerning information that she learned from her mother including that her mother had a brain tumour, threats of harm and her mother's history of rape. CAAP concluded that C.S.'s excessive fear, worry and anxiety with respect to certain people, places or things was heightened by the information that was provided to her by her mother. As a result C.S. required an environment whereby she felt safe and protected. CAAP also concluded that C.S. could not continue to function at her state of arousal and that she would need assistance in trying to manage her fears and anxiety. There were concerns that she was withdrawn, depressed experiencing suicidal ideation and was exhibiting signs of post traumatic stress disorder. She was also having difficulties in school performance. There was significant concerns about her social-emotional and behaviour functioning and that she is vulnerable to negative peer choices and peer pressure. CAAP recommended that C.S. requires appropriate role modelling for healthy relationships and more opportunities to engage in healthy and appropriate peer relationships which she should be able to obtain in a foster home setting. CAAP concluded that despite C.S.'s experiencing a great deal of dysfunction during her life, her situation can improve considerably if she has proper supports in place including a stable placement with nurturing, consistent and safe caregivers.

[66] CAAP expressed concerns about D.S.'s emotional and behavioural functioning having been exposed to multiple forms and incidents of maltreatment. His play themes were particularly violent and disturbing and focused on kidnapping and capture. CAAP expressed that D.S. exists in a state of hyper arousal and that he may be experiencing symptoms of post traumatic stress disorder. D.S. exhibits behavioural challenges in school and in his foster home. CAAP expressed concerns that his development has been derailed by his exposure to significant child maltreatment having been exposed to chronic, threatening and violent care taking environment. His mother, by her own reports, confirmed that she shared her concerns about her fears and threats to their safety, real or perceived, with all of the children. D.S. also reported that he was sexually assaulted by another foster child in his previous foster home. Although this was not verified at the very least he was exposed to inappropriate sexual content. CAAP indicated that D.S. had been compromised physically and developmentally because if his experiences of maltreatment and multiple adversities. He requires ongoing paediatric and dental care and speech and language assistance and counselling. Overall, CAAP noted that D.S. required a parenting environment that can respond to his needs for safety and security and a school setting that understands the underlying cause of emotional dysregulation and are able to put supports in place long term for this vulnerable young boy. He requires ongoing monitoring and follow-up. However, first and foremost CAAP stated that D.S. requires stability and permanency and that his sibling and maternal access should not interfere with his opportunities for permanency.

[67] At page 62 of the CAAP assessment the following summary of the conclusions and recommendations are outlined as follows:

Although CAAP has no doubt that Ms. K. loves her children dearly, it is CAAP's opinion that Ms. Kosjer does not have adequate parenting skills to provide a safe, consistent parenting environment for her children. Furthermore, Ms. K.'s parenting challenges are such that they are not easily remediated. Thus, CAAP supports that A.S., C.S. and D.S. are permanently removed from their mother's care. Given the children's needs and their experiences of significant trauma, they each require a parenting environment that is consistent, safe and responsive to their many needs. A safe and secure parenting environment with nurturing and consistent caregivers mitigates the risks associated with exposure to maltreatment and is the cornerstone of the children's future recovery and well-being.

A.S., C.S. and D.S. may benefit from an access relationship with their mother. However, access should be supervised and should only occur if Ms. K. is able to manage her behaviours and communication with the children. If in time, Ms. K. demonstrates behavioural and emotional stability and that she can keep herself safe, then unsupervised access between A.S. and C.S. may be considered. Given the differential needs of each of the children, there may be some benefit to providing individual access between each child and Ms. K.in addition to joint access. Furthermore, there may be a role for Ms. Kosjer to attend social/recreational activities provided that she can do so without jeopardizing the children's safety and stability.

3.4 Facts regarding access visits

[68] The society outlined that the first visit after the apprehension was extremely problematic as the mother was completely unable to separate her emotions for the children's benefit and best interests. She sabotaged the visit by acting distraught, hysterical and whispering in the children's ears and making promises that the children would be coming home soon and telling them that she hired a lawyer and talking about court.

[69] The mother did not deny this happened but explained she was very upset and that subsequently the visits went much better. The society agreed that subsequent visits were calmer and more positive. The children were happy to see the mother and grandmother and were happy to see each other.

[70] However, the society still had concerns about the visits that are outlined in detail in the affidavit of Ms Christian. Generally the concerns are as follows:

• the mother would leave the room to go to the washroom and be gone for 10 to 15 minutes even though the visits at the time were only an hour;

• during the visits the mother spoke negatively to the children about the society social workers;

• the mother would engage the children in inappropriate discussions about adult issues, court proceedings such as asking them if they thought she had done anything wrong, telling them she was going to bring them home; the mother did not like being re-directed and on one occasion she swore, screamed and stomped out of the visit;

• the mother became agitated and upset during visits and was unable to focus on the children;

• the mother became angry at D.S. when he wanted privacy in the bathroom and although he asked five times for the mother to leave the bathroom stall, she was unable or unwilling to listen to him and accused the society of breaking her bond with him;

• after the mother became aware of the results CAAP assessment, at the next visit the worker was suspicious that the mother attended under the influence of either drugs or alcohol and ended the visit due to her inability to stand, slurred speech and lack of co-ordination;

• during a visit the mother became upset and Ms Christian needed to intervene, the mother then stated, "I'm going to have to kill Jennifer"(Ms Christian);

• after the CAAP assessment the mother's visit became somewhat inconsistent and at other times she would arrive late;

• in April 2012 during a visit, D.S. hit the mother in the face numerous times, the mother did not redirect him or give him any consequences for this behaviour; the mother then told C.S. that D.S. told her that the foster mother hits him on the face and that is why he was hitting her; the society investigated this allegation and it was not verified.

[71] The mother did not specifically deny any of these concerns or incidents but simply deposed that she felt visits went well.

[72] Since January 2012, the society stated that A.S. had struggled with her relationship with her mother and had difficulty interacting with her during access visits. A.S. has indicated that she does not want to visit with her mother as she speaks negatively about her foster mother. A.S. has not attended any visits with her mother since February 21, 2012 except for one visit. The mother deposes that she does not believe A.S. does not want to visit with her and that the society arranged for acting lessons for her at the same time as the visits.

3.5 Facts regarding mother's compliance with court orders

[73] The mother executed a Statement of Agreed Fact on September 30, 2010 that placed the children with the maternal grandparents subject to terms and conditions. One such term required the children reside in the grandparents' home and that the mother not reside there and that access between the mother and children would be at the society's discretion and initially be supervised by the society.

[74] In November 2010, based on information received from a community member that the children had moved back into the mother's home, the society reviewed the terms of the supervision order with the mother and grandmother. Both the maternal grandmother and mother signed an agreement that again set out the terms that the children were to reside in the home of the grandparents and the mother's access was to be exercised in the grandparents' home.

[75] On December 23, 2010 based on another report from a community member, an after-hours worker and the police attended at the mother's home. The mother would not let the worker or police enter the home and insisted that the children's voices that were heard were from a video she was watching. Eventually, the maternal grandmother was contacted and she confirmed that she had dropped the children off earlier because the mother asked to have them over.

[76] The next day a society worker met again with the mother and grandmother and reviewed the terms of the supervision order. At that time the mother stated that she wanted to see the children because it was Christmas. Subsequently the mother told CAAP that she had the children with her because her father had sexually assaulted her when she was younger and she was protecting the children because they were being left with her father.

[77] On January 21, 2011 the society received another report from a community member that the children were staying at the mother's home. The police attended and confirmed that they could hear children's voices. After the children were apprehended due to the ongoing breaches of the supervision order, the mother left several angry telephone messages confirming that the children had been staying with her because they wanted to be with her. The mother does not deny she breached the supervision order.

[78] The mother also never complied with the terms of the supervision order to obtain a psychiatric assessment, to obtain psychiatric treatment and have a period of stability or to complete a program for victims of domestic violence.

[79] During the period of time when the maternal grandmother was having unsupervised access to the children the mother arranged to see the children though she was not permitted unsupervised access.

3.6 Facts regarding concerns about mother's parenting and judgment

[80] Despite the father's serious history of domestic violence, the mother has allowed the father to come in and out of the home on a sporadic and inconsistent basis and disregarded the society's direction that the children have no contact with the father. On one occasion on January 20, 2010 the mother arranged for the father to see D.S.. When the father tried to drive away with D.S. in his truck the mother did flag down the police and the father was arrested for breach of his probation to stay away from the mother. The mother does not deny this incident but points to the fact that she called the police.

[81] The mother has a long history of making reports to the police about break-ins to her home, men stalking her, vandalism to her home, tampering with her alarm system, people poisoning her food, trying to burn her house down, bugs being placed in the home, syringes being left in the home, knives being placed in her home and things being moved around her home when she is out. She shared all of these fears and concerns with the children and when the children.

[82] A.S. told the society worker that she had read all of the court papers in this proceeding and they were "filled with lies" and that her parents did not use drugs "only a little bit of pot". During the CAAP assessment when the mother was challenged about the impact on the children of sharing court documents and discussing her fears with them, she simply responded that she is best friends with her children and she kept them safe by allowing them all to sleep in the same bed.

[83] The mother has left hostile and threatening telephone calls to the society accusing them of following her, being a part of organized crime and that they were being paid off by a man known as "Pedro". The mother appears to have shared this information with the children as both A.S. and C.S. have made the same accusations to the society workers. The mother does not deny she left these messages but explains that she was upset and worried about not having her children with her but she never meant to threaten harm to the society workers.

[84] When A.S. was 10 years old the mother obtained a prescription for birth control pills for her. The mother's explanation was that A.S. told her she was going to have sex with her boyfriend. She wished her to be aware of the consequences and get her some sex education but was concerned that she would have sex anyways so she obtained the prescription but did not actually give her the pills.

[85] In late June or early July 2012 the mother advised Ms Christian that she was engaged to someone she has only known for six weeks and that she thought she could be pregnant. She also shared this information with C.S. who is only 10 years old. The mother does not deny this but deposes that she is no longer engaged.

4. PLANS OF CARE

[86] The society's plan is for Crown wardship for all of the children for the purpose of adoption.

[87] Ms Williamson, an adoption worker, deposes that D.S. has had a great deal of difficulty with maintaining foster placements and he has been moved four times. Despite Danny's challenging behaviours and many needs, Ms Williamson deposes that she believes he will be able to form a healthy attachment and with appropriate resource supports he should benefit from the stability and security of a permanent adoptive home. Although it is acknowledged that it is anticipated that there will be challenges to his transition and adjustment to an adoptive home and in forming healthy attachments to caregivers.

[88] Ms Williamson deposes that A.S, and C.S. have been placed together in the same foster home since their apprehension. She deposes that both children are adoptable. Her opinion was not challenged or disputed. She deposes that both A.S. and C.S. have made significant gains while in foster care. They both have the characteristics and responses that support their ability to form healthy, secure attachments to caregivers. She deposes that it is in their best interests to be placed with an adoptive home where they will be provided with stability, security, nurturance and permanence

[89] Ms Williamson deposes that given the mother's ongoing mental health and substance abuse, her inconsistent involvement in treatment, and her difficulties in providing emotional safety for all of the children only indirect contact such as an exchange of photographs and letters should be permitted though the society. There is a concern that if direct contact is permitted the mother would not support any adoption placement and the children would be exposed to conflicting messages causing them to experience a division of loyalty and feelings of uncertainty and anxiety. Further, there are potential concerns about the safety of any adoptive family.

[90] Ms Williamson does support direct contact, including regular telephone call and visits, with the maternal grandmother and all of the siblings as these relationship are beneficial and meaningful to the children. It is the intention of the society to find adoptive families that would agree to an openness agreement and maintaining regular contact with the maternal grandmother and between the siblings.

[91] The mother's plan to have all of the children returned to her care. She deposes that she is currently residing in a one bedroom apartment in Hamilton. The children would attend school and daycare and she would arrange activities for the children. She would also use whatever support services are recommended by the society. The mother would also continue attending her methadone program.

5. SERVICES AND FAMILY PLANS

[92] From 2008 to 2010, the society attempted to work voluntarily with the mother. She was referred to Reach Out Centre for Kids (ROCK) program for parental support and the Safety Zone program for victims of domestic violence. She did not follow through with any of these programs.

[93] Since 2010 when this proceeding has been before the court, the society has provided a family service and child service worker, again referred the mother to a parenting program and a program for victims of domestic violence, and encouraged the mother to obtain a psychiatric assessment and treatment and to obtain treatment for her substance abuse. The society has also arranging drug testing.

[94] The Oakville Trafalgar Memorial Hospital also referred the mother to their community Concurrent Disorders program and arranged an appointment with a doctor to assist the mother with her opiate dependence.

[95] The mother has not indicated any family or community person available to assist her. She is now estranged from the maternal grandmother.

[96] There are no other family and or community members presenting a plan to care for the children.

6. ANALYSIS

[97] I have considered the following factors in support of the mother's request to dismiss the society's summary judgment:

• The mother clearly loves the children and wishes to parent them;

• The mother herself has had a difficult upbringing being exposed to maltreatment and possible sexual abuse;

• The mother has an extensive health history suffering from several accidents and physical ailments causing her significant pain;

• The mother appears to have now begun to take steps to deal with her substance abuse;

• The mother has co-operated with the society by executing consents and agreeing to drug testing;

• If the children were returned to the mother's care, their biological ties to her and each other would be maintained; and

• The mother is currently not in an abusive relationship

[98] However, I find that the society has met its onus of establishing that there is no genuine issues for trial and that all three children should be made Crown wards for the following reasons:

• There is a continuing need for protection; the risks that resulted in the children being apprehended from the mother's care in August 2010 still continue today;

• The evidence from the parenting capacity assessment indicates that the mother's parenting deficiencies are serious and longstanding and that she does not have the capacity to meet the physical or emotional needs of the children;

• The mother has not taken any steps since the assessment to change or obtain assistance with her parenting; she does not acknowledge any difficulties with her parenting;

• The evidence establishes that the children all have significant special needs; many of their fears and anxieties are a direct result of the mother being unable to protect or shield them from her chaotic lifestyle;

• If mother's allegations of people stalking her, following her, entering her home are true then she has been unable to protect the children from the dangers of such a lifestyle; if they are not true then she has caused the children to be unnecessarily fearful by exposing them to her delusions;

• The mother has not acknowledged that she has any mental health problems and therefore has been unwilling to obtain any treatment;

• In the two years this case has been before the court the mother has not acknowledged that she has had a significant substance abuse problem, she has misled the court about her continued use of drugs and had not taken any steps to obtain treatment until a few months ago when she began a methadone program;

• Prior to the father's recent incarceration, the mother continued to maintain contact with the father and expose the children to serious domestic violence; the mother has not followed through with any domestic violence counselling for herself or the children;

• The mother is unable to meet the children's needs even in supervised access visits by speaking to the children about inappropriate personal issues, being critical and negative about the society workers and the foster parents and at times being late, absenting herself from the visits or not attending consistently;

• The mother has shown a lack of judgment in her personal life by being recently found in a home where there were drugs and as a result she was arrested; becoming engaged to someone she only knew for six weeks and then ending the relationship; and

• The mother has no supports. She did not file any affidavits from anyone in her family or in the community that supports her plan.

[99] In summary, if there was a trial the outcome would be the same in that the mother cannot change her history of poor parenting, the children's special needs would not change, the mother's lack of follow through with dealing with her mental health issues would not change and the mother's inability to appreciate the needs of her children would not change. The mother's parenting deficiencies are too long standing and too serious to change overnight.

[100] Counsel for the mother submits that at trial, the mother would be able to produce drug results that showed she was no longer abusing drugs. Unfortunately this is just too little too late. The mother cannot be permitted to delay the outcome for these children by buying more time for herself. The society has been involved with this mother for almost 12 years and the same issues that initially brought this family to the attention of the society are still outstanding today.

[101] A.S. is now 12, C.S. is almost 11 and D.S. is 5 ½. They have not been in their mother's care since August 2010 and have been on the care of the society since January 2011.

[102] Subsections 70(10)(a) and (b) and 70(4) of the Act, set out the timelines that children can remain in the care of the society. With respect to D.S. as he is under the age of 6 and has been in the care of the society for longer than 12 months, the only options for the court are either an order that he be made a Crown ward or a return to his mother. With respect to A.S. and C.S. as they have not yet been in the society care for 24 months, a further society wardship order could be made for another several months. Also the court has the option of extending these timelines by 6 months if it is in the best interests of the child to do supervision order. However, based on the evidence there is no basis for extending the timelines or for there being a realistic hope that these children would be returned to the care of their mother after a trial.

[103] I therefore find that there are no triable issues. The least disruptive alternative that is consistent with the children's best interests is that they be made Crown wards.

7. ACCESS

[104] Subsection 59(2) of the Act provides that, where the court makes an order for Crown wardship, any order for access is terminated.

[105] The onus is therefore on the mother to rebut the presumption against access to a Crown ward. See Children's Aid Society of Toronto v. Dora P. and Raymond L., [2005] O.J. No. 4075 (OCA).

[106] Subsection 59(2.1) of the Act provides that:

(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).

[107] The mother therefore must establish both parts of the test namely, that ongoing access is both beneficial and meaningful to the child and will not impair the child's future opportunities for adoption.

[108] The mother relies on the recommendations of the CAAP assessment that, "A.S., C.S. and D.S. may benefit from an access relationship with their mother". However, the assessment makes it clear that such access could only occur if the mother is able to manage her behaviours and communication with the children.

[109] As of February 2012, A.S. has not gone to any visits except one. It is unlikely the mother could maintain that access was beneficial or meaningful for her. With respect to the C.S. and D.S. there are concerns about the visits but the mother deposes they are going well especially recently. Based on the evidence regarding these visits it is doubtful that the mother could meet the onus of showing that the visits are meaningful and beneficial. Even if the mother could meet this branch of the test, she could not meet the onus of showing that ongoing access would not impair the children's future opportunities for adoption.

[110] The mother deposes that if an order is made that the children be made Crown Wards and are placed for adoption she would support and not undermine the placement.

[111] However, the mother's behaviour since the children have been apprehended is clear evidence that she has been unable to support their placement first with the maternal grandmother or in foster care. The mother has taken every opportunity to be critical of the foster homes and the society workers. She has not abided by the terms of court orders. She has caused the children to fear that the mother cannot be safe unless they are returned to her care. The mother has shown that she is simply unable to regulate her emotions or filter the information she conveys to the children and further she fails to understand the impact on the children of her behaviour. To believe that the mother could now suddenly change her behaviour requires more than the mother's statement that she will be able to do so.

[112] I find that whether or not the mother should have access is also not an issue that requires a trial. The mother would not be able to rebut the presumption against access. The affidavit of Ms Williamson outlines the anticipated difficulty especially for D.S. in making a transition to an adoptive home and no impediment should be placed in the way of his opportunity for future security and permanence. An access order would impair all of the children's opportunity for adoption and cannot be made.

8. CONCLUSION

[113] There will be an order as follows:

1. The society's motion for summary judgment is granted.

2. The children A.S. born […], 2000, C.S. born […], 2001 and D.S. ("D.S.") born […], 2007, continue to be in need of protection pursuant to section 37(2)(g) of the Child and Family Services Act;

3. The children A.S. born […], 2000, C.S. born […], 2001 and D.S. ("D.S."). born […], 2007 be made wards of the Crown without access for the purpose of adoption.

4. The applicant, Children's Aid Society, Region of Halton have the right to consent to and authorize medical treatment for the subject children.

[114] Despite this order, I am mindful that in view of D.S.'s challenging behaviour and special needs and in view of the ages of A.S. and C.S. that an adoptive home may not be found immediately or not found at all. The society as the children's custodial parent, in accordance with subsection 59(4) of the Act, may permit contact or communication between the mother and the children if it is in their best interests.

[115] I understand that this decision will be very difficult for the mother. It is clear that she loves her children. I hope that she will not become discouraged by this decision and will continue with her methadone treatment and seek out some assistance to deal with the many difficulties she had had in her own life.

Released: October 3, 2012

Signed: "Justice R. Zisman"