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.: Toronto C47321/09

Date: 2012-10-12

Ontario Court of Justice

Between:

Children's Aid Society of Toronto, Applicant,

— AND —

N.M., N.S., Respondents.

Before: Justice E.B. Murray

Heard on: October 1, 2012

Reasons for Judgment released on: October 15, 2012

Counsel:

• Mae-Tuin Seto for the applicant society
• Avi Baratz for the respondent father
• Tiffany Lau for the respondent mother

MURRAY J.:

[1] Introduction

[1] This is my decision on a summary judgment motion brought by the Children's Aid Society of Toronto with respect to the children A.M., born [...], 2009, and J.M., born […], 2010. The respondents are the mother and father of the children.

[2] The Society seeks a finding that there is no genuine issue for trial, and in addition to statutory findings, orders that:

1. Both children are in need of protection pursuant to s. 37(2)(b)(i) and (ii) and (g) of the Act; and

2. both children be made Crown wards for the purpose of adoption.

[3] Ms. N.S. opposes the motion, and submits that there should be a trial on both issues. Although Mr. N.M. had served and filed an answer opposing the relief sought by the Society, he did not file material on the motion and his lawyer advised the court that he had no instructions.

[4] Both children have already been in temporary Society care for a period that significantly exceeds the statutory limit, A.M. for 23 months and J.M. for 21 months. Both children were apprehended on August 10, 2010, and have been out of either parent's care since that date. From late December, 2011, to June 2012 they were in the temporary care of their maternal grandmother S.R., subject to Society supervision. They were taken back into care at Ms. S.R.'s request in June 2012.

[5] I make statutory findings with respect to the children as requested in paragraph 2 of the Notice of Motion.

THE LAW - SUMMARY JUDGMENT

[6] Under Rule 16(4) of the Family Law Rules, the moving party on a motion for summary judgment has the onus of proving on a balance of probabilities that there is "no genuine issue requiring a trial." A "genuine issue" refers to a genuine issue of material fact—i.e., a fact relevant to the issues in the case.

[7] The moving party on a motion for summary judgment should advance all the evidence that that party would present at a trial.

[8] The responding party must "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." It is not sufficient for that party to simply deny the allegations of the Society. Recent authority from the Ontario Court of Appeal holds that if a moving party discharges the burden of showing that there is no genuine issue for trial, that the responding party must prove that its defence has "a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial."

[9] A motions judge on a summary judgment motion should not resolve issues of credibility or draw inferences from conflicting evidence or from evidence that is not in conflict when more than one inference is reasonably available. Those functions are reserved for the trier of fact. I have been guided by these principles in making this decision.

[10] In this case, most of the facts relevant to the issues in this case are not contested.

[11] For the purpose of the motion, I have relied only upon facts alleged by the Society that are admitted, not contested, or simply met with a bald denial. The material before me on the motion consists of 13 affidavits in the Society's motion record; the agreed statement of facts signed by Ms. N.S. with respect to her first child, E.; Ms. N.S.'s affidavit sworn September 25, 2012; the affidavit of family service worker Denise Moos sworn September 28, 2012; and the amended protection application and each respondent's answer to that application.

[12] Ms. N.S.'s counsel did not argue that there were any significant factual conflicts in the evidence. Rather, she argued that there is a genuine issue for trial "with regards to my plan to care for the children" – in other words, with respect to the decision that should be reached based on the admitted or uncontested facts. In my view, a viva voce trial is not required in this case to give the parties the opportunity to argue what inferences should be drawn from those uncontested facts. Those facts do not reasonably allow for inferences other than those I have made.

[13] I have decided that there is no genuine issue of material fact requiring a trial with respect to the relief requested by the Society. Considering the facts that are established for the purpose of the motion, I find that the children are in need of protection pursuant to s. 37(2)(b)(i) & (ii) and 37(2)(g) of the Act, and that it is in their best interests to be made wards of the Crown. My findings of fact and reasons for this decision follow.

THE FACTS

Parents' Current Situation

[14] Ms. N.S. and Mr. N.M. were in an intimate relationship from 2008 to 2011. Their relationship is now terminated, and each puts forth his/her own plan for the children. She is 26 years of age, and he is 29 years of age. Each has lost her/his housing, and each is staying temporarily with friends. Neither has employment, or is in school. Both rely on Ontario Works for support.

The Apprehension

[15] The children were apprehended on August 10, 2010, after a home invasion perpetrated by several male intruders at their apartment. Ms. N.S. was not at home, but Mr. N.M. and both children were. Mr. N.M. was assaulted, slashed in the face, and robbed. The house was ransacked.

[16] Mr. N.M. advised police that he knew his assailants, but would not divulge their names. He said repeatedly that he was going to have them killed.

[17] Mr. N.M. has a lengthy criminal record. The Society believed that he was a gang member and that the home invasion was connected to his gang activities. (More will be said about this allegation below, in my analysis of the evidence.) The Society feared that the parents would not be able to protect the children from the violence entailed in that lifestyle.

[18] An order for temporary Society wardship with access at the discretion of the Society was made on August 13, 2010. The parents quickly retained counsel, but neither argued the issue of interim care of the children on the merits.

Background - Ms. N.S.

[19] Ms. N.S. was a Crown ward as a child, and has a previous child, E., born […], 2004. E. was made a Crown ward without access for the purpose of adoption on December 1, 2004.

[20] In an agreed statement of facts, Ms. N.S. agreed that E. was in need of protection pursuant to s. 37(2)(b) & (ii) of the Act. The protection concerns set out by the Society at that time were:

• Ms. N.S.'s transience and homelessness;
• Ms. N.S.'s inability to master basic childcare skills, and failure to follow through with relevant educational programs;
• Ms. N.S.'s failure to address her mental health (depression) and emotional issues, and her use of marijuana;
• Ms. N.S.'s failure to visit the child for over 6 months.

Background - Mr. N.M.

[21] Mr. N.M. was a ward of the Society for about a year when he was a toddler because his mother was unable to care for him. He was then placed with his father. There is no evidence that he has fathered children other than A.M. and J.M.

[22] Mr. N.M.'s criminal record dates from 2000 when he was 18 years old, and has entries for every year since. He has been convicted on multiple counts of assault, including domestic assault; assault with a weapon; assault police; robbery; possession of marijuana; escape custody; uttering threats of death and bodily harm; mischief; and failure to comply with probation and with his bail conditions.

[23] His latest conviction in February 2012 relates to an assault on Ms. N.S. He was sentenced to time served (28 days), plus a further 28 days to be served intermittently and two years' probation.

[24] Apart from convictions, the evidence indicates that Mr. N.M. has had, over the past twelve years, frequent (over 40) contacts with police conducting investigations, investigations that sometimes led to his arrest and charges being laid, but later withdrawn.

A.M.'s Apprehension - 2009

[25] A.M. was apprehended at birth on […], 2009. At that time, the Society had concerns about Ms. N.S.'s homelessness; inadequate pre-natal care; criminal charges for assault facing her and her history of involvement in abusive relationships; Mr. N.M.'s history of criminal behaviour, including assaults; and the instability of the parties' relationship. Ms. N.S. and Mr. N.M. obtained an apartment and took anger management and parenting courses at Evergreen Centre. Ms. N.S. had previously completed an anger management course in 2007. A staffer from Evergreen Centre reported that further supports would be available to the family if the child was returned.

[26] A.M. was returned to Ms. N.S. in April 2009, and the Society withdrew its application, but monitored the family on an informal basis.

Domestic Violence

[27] For the past seven years (2005 to this year, 2012), Ms. N.S. has frequently been in violent conflict with her intimate partners (including Mr. N.M.). The evidence refers to five partners, and indicates as follows:

• Ms. N.S. has sometimes been the victim in these incidents (e.g., assaults by Mr. S., Mr. G., and Mr. N.M.).
• Ms. N.S. has sometimes been the aggressor in these incidents (e.g., assaults against Mr. T.M., Mr. S., and Mr. N.).
• Ms. N.S. has, from 2005 to 2012, been convicted of 7 offences – assaults or administration of justice charges related to the substantive offences. In addition, in 2008 she entered into a common law peace bond, and charges of assault against Mr. S. were withdrawn.
• After some of the incidents in which Ms. N.S. was charged, she was compelled to leave her home as a result of bail conditions.
• On two occasions in 2006, police took Ms. N.S. to a shelter.
• Ms. N.S.'s most recent conviction on June 22, 2012 relates to three charges of assault in which Mr. N., her most recent partner, was the complainant.
• Police occurrence reports show investigations of many other incidents (25) from 2005-2012 at Ms. N.S.'s residence (or at the Society offices when there were incidents between Ms. N.S. and Mr. N.M.). On some of these occasions, there were arguments between Ms. N.S. and her partner, but no assault was alleged. In others, Ms. N.S. called police and alleged assault by her partner, but did not cooperate in providing evidence.
• On five occasions (in 2005 and 2007), Ms. N.S. either attempted or threatened suicide. She was apprehended twice under the Mental Health Act and taken to hospital.
• The most recent incident of self-harm by Ms. N.S. occurred on June 17, 2012. Ms. N.S. was facing charges of assault against Mr. N. and was angry because her surety had asked to be removed, and she was facing detention. Ms. N.S. came to the apartment she had shared with Mr. N., assaulted him, and then cut her forearm with a knife. She fled the scene and a warrant was issued. Soon after, she turned herself in. After a guilty plea, she was sentenced to time served (5 days) plus a total of 30 days further and 18 months' probation.

Visits

[28] After the apprehension of the children in August of 2010, the parents began to have supervised access at Society offices twice a week for 2 ½ hours each visit.

[29] In January 2011, the parents began participating in the therapeutic access program conducted by the Society. Visits were twice a week for four hours. Because of conflict between the parents, each had separate visits, but there was still some contact between them in the period when one parent's visit ended and the other was to begin.

[30] Although each parent appeared to interact well with the children, they argued with each other and with the Society workers at the times arranged for access. Mr. N.M. repeatedly objected to the fact that the children were in care, and that his visits were supervised. Ms. N.S. would at times raise in a hostile manner what she considered the Society's unfair treatment of Mr. N.M. with a worker. The children were at times present or within earshot of these arguments.

[31] Arguments between the parents were at times intense. Police had to be called several times to defuse them, or to deal with disruptions caused by one or both of the parents when in conflict with Society staff. Mr. N.M. once damaged glass in the Society's lobby in a fit of anger, and was charged.

[32] Because of these arguments and disruptions, the Society ended the parents' participation in the therapeutic access program on February 28, 2011.

[33] Visits reverted to the Society offices. The visits were scheduled separately, even though the parents were still cohabiting, to avoid contact between them. Despite this, Mr. N.M. periodically delayed leaving the offices and encountered Ms. N.S., and arguments occurred. For example, on March 15, 2011, the parties engaged in a heated argument in the visiting room. Ms. N.S. then became upset with a security guard who tried to get Mr. N.M. to leave. For a brief interval the parties barricaded themselves in the visiting room, screaming, while the children were present. Police were called and attended, but no charges were laid.

[34] In December 2011, the children were placed on a temporary basis with their maternal grandmother, S.R., under Society supervision. Each parent was to have visits once a week, supervised by Ms. S.R.

[35] While the children were with Ms. S.R., Mr. N.M. missed visits for several weeks when he was detained on assault charges. When he was not incarcerated, he visited fairly regularly.

[36] Ms. N.S. did not see the children for six months (January 2012 to mid-June 2012) when they were in her mother's care. She deposes that she tried to visit, but no one answered the door or returned her phone calls. She deposes that she mentioned the problem once to an unnamed Society worker, but that the situation did not improve.

[37] Ms. S.R. found that she could not manage two active toddlers. She told the Society in April 2012 that she could care for them no longer, and the children came back into Society care in mid-June 2012.

[38] After the children were returned to its care, the Society attempted to set up regular office visits for the parents, without success. Ms. N.S. was at that time detained on assault charges related to Mr. N. Mr. N.M. did not attend visits in June, and was unavailable for the first three weeks in July.

[39] On July 3, 2012, the Society obtained an order for access at their discretion, and advised the parents that they could have separate visits, once a week supervised at the Society offices.

[40] Since Ms. N.S.'s release from jail, she has attended visits regularly, missing only two. Society staff who supervise the visits evaluate her visits with children as generally "good." She interacts well with the children, brings appropriate snacks, and changes J.M. when required. She "redirects" the children appropriately when needed. A.M. has told her mother on occasion that she wants to go home with her.

[41] There have been a few problems noted by Society staff with Ms. N.S. on these visits. On three occasions, Ms. N.S. did not promptly retrieve a child when the child ran out of the visiting room. On some occasions, she interrupted the visit to make a phone call.

[42] Mr. N.M. has missed many visits since the children came back into care. On the visits he has attended, he has sometimes not cared for them properly. For example, on September 11, 2012, he left the children alone while he searched for someone to take a picture of himself with the children, and they were found by Society staff wandering in the lobby. On another occasion, he grabbed both children by the arm roughly when they did not obey him.

[43] Neither parent attended the plan of care meeting for the children held on September 7, 2012.

Ms. N.S.'s Plan

[44] Ms. N.S. proposes to live at a city shelter if the children are placed in her care, and to seek more permanent housing. She had to vacate the apartment she shared with Mr. N. after she was charged with assaulting him.

[45] Ms. N.S. does not plan to live with Mr. N. at present. She hopes to reconcile with him after she has obtained counselling, and after they have engaged in couples counselling.

[46] Ms. N.S. plans to enrol the children in a daycare at or near the shelter, and to obtain counselling for them.

[47] Ms. N.S. deposes that her mother Ms. S.R. will assist her in caring for the children.

[48] Ms. N.S. is just starting to attend an anger management program and parenting program. These programs are required as conditions of her probation. Ms. N.S. previously completed an anger management program in 2007 and 2009, and parenting programs in 2009 and 2010.

[49] Ms. N.S. is attempting to obtain regular psychiatric treatment. After she was detained this year on the charges related to Mr. N., she consulted with a counsellor at the Centre for Addiction and Mental Health (CAMH), and since release has attended a clinic once to see a "drop-in psychiatrist." She is on a waiting list for psychiatric services from CAMH, and will try to see the drop-in psychiatrist pending those services becoming available. The only evidence relating to mental health treatment previously received by Ms. N.S. is that she "sought the assistance of a psychiatrist and took medication for mental health issues for a few months in 2007."

Mr. N.M.'s Plan

[50] There is no evidence with respect to Mr. N.M.'s plan.

The Children

[51] The children are generally in good physical health, although J.M. may have a hearing problem, and has been referred to a specialist. Their foster mother reports that each child has some behavioural problems. The children have been referred for a developmental and psychological assessment.

ANALYSIS

Protection Finding

[52] The facts set out above establish that there is no triable issue as to whether a finding should be made that the children are in need of protection pursuant to s. 37(2)(b)(i) and (ii); there is a risk that they are likely to suffer harm because of their parents' failure to adequately care for and protect them.

[53] In addition, it is clear that there is no triable issue as to whether the children are in need of protection pursuant to s. 37(2)(g) of the Act, in that they are at likely risk of emotional harm because exposure to domestic violence if living with their mother. I make both findings.

[54] Below I set out the analysis that led to this conclusion.

Mr. N.M.'s Lifestyle

[55] Regular involvement in street-level crimes of violence entails risks that that violence will intrude on one's home life. This is what happened to Mr. N.M. and the children on August 10, 2010. I say this not because of the Society's evidence that "police" advised them that Mr. N.M. has gang involvement. That evidence is unreliable; the source of the opinion and the factual basis for the opinion is not set out in affidavits sworn by the Society workers.

[56] However, the uncontradicted evidence that Mr. N.M. admitted to police that he knew his assailants, and that he would not identify them but intended to "have them killed," when coupled with Mr. N.M.'s lengthy record for crimes of violence, establishes that on the date in question that he was living a lifestyle in which he and those who lived with him were at risk of physical harm. Mr. N.M. was beaten and slashed with a knife that day. It is only luck that the children were not harmed.

[57] As of August 10, 2008, Ms. N.S. had lived with Mr. N.M. for two years, two years during which he had frequent contact with police. Inevitably Ms. N.S. would have been aware of Mr. N.M.'s lifestyle, and she chose to expose A.M. and J.M. to the risks it involved.

Ms. N.S.'s Lifestyle and Untreated Mental Health Problems

[58] Ms. N.S.'s adult life (before, during, and after her relationship with Mr. N.M.) has been plagued by violence and conflict with intimate partners. She suffers from depression which is largely untreated. During or shortly after three of her conflicts with her partners, she has attempted to harm herself. The last such attempt was on June 17th of this year.

[59] Although there is no direct evidence that A.M. and J.M. witnessed violence between their parents before the apprehension, the evidence does show that there were frequent calls to police in the spring and summer of 2010 with respect to alleged assaults, and that police attended at the parents' apartment three times as a result of calls by Ms. N.S. (although she failed to cooperate with police when they attended). The children were living with their parents in that apartment during this time period, and it is very likely that they then were exposed to violence.

[60] The risk that young children will be injured in a melee surrounding a domestic assault is obvious, as is the risk to children in the care of a parent who attempts to harm herself.

[61] In addition, Ms. N.S.'s involvement in intimate relationships featuring conflict and violence, given her unstable mental health, creates a home environment which is chaotic and unstable and entails risks that any child in her care would suffer. That lifestyle has included:

• Frequent moves and periods of homelessness
• Frequent interventions by police at her home
• Periodic arrests
• Periodic incarceration, the last such period being in June 2012
• Attendances at court and probation.

[62] In addition to the risk of physical harm and neglect demonstrated by the evidence, it is clear that children are likely at risk of emotional harm if they are exposed to frequent domestic conflict between their parents. Justice Stanley Sherr spoke of this risk in Children's Aid Society of Toronto v. J.P., 2009 ONCJ 1:

"Domestic violence places children at risk on a number of levels. Witnessing violence perpetrated against their mother may have an abusive and detrimental impact on a child's development. Children may feel guilty, blame themselves and feel depressed. They can develop fears, insecurity and low self-esteem as a result of witnessing domestic violence. They can suffer emotional confusion that can result in bedwetting, nightmares, sleeping or eating disturbances, self-harm and weight loss: Children's Aid Society of Toronto v. C. (S.A.), 2005 ONCJ 274, affirmed on appeal November 25, 2005 (SCJ), affirmed on appeal, 2007 ONCA 474, leave to appeal to the Supreme Court of Canada denied, [2007] SCCA No. 462."

DISPOSITION

Best Interests Finding

[63] In my view, there is no triable issue as to what order is in the children's best interests. Section 70 of the Act restricts my choices to an order returning the children to the care of one or both parents, or to an order that they be made Crown wards, unless I find that it is in their best interests to extend Society wardship. It is abundantly clear that an order for Crown wardship is in the best interests of A.M. and J.M.

Mr. N.M.'s Plan

[64] Mr. N.M. presents no evidence in support of his plan. The plan is not viable. There is no evidence that he has changed his criminal lifestyle. His failure to visit the children regularly in the last five months indicates a lack of commitment to them. Mr. N.M. has no accommodation for the children, and no support system.

Ms. N.S.'s Plan

[65] Ms. N.S. has come a long way in developing her childcare skills since 2004 when E. was made a Crown ward. She interacts well with the children, and, in the limited time that she is in the Society visiting room, is attentive to their physical and emotional needs. The children appear to enjoy the time they spend with her.

[66] Unfortunately, however, Ms. N.S. has done almost nothing in the over two years that A.M. and J.M. have been in the Society's care to address the protection concerns noted above, concerns that put the children at risk of physical and emotional harm if placed with her.

[67] Ms. N.S.'s depression and the impulsive and self-destructive actions she can take when upset remain a significant concern. It was barely four months ago that she slashed her arm when in conflict with Mr. N. According to her own evidence, she took no steps to obtain professional help until she consulted a CAMH counsellor when detained because of the charges relating to Mr. N. in June of this year. She is on the waiting list for psychiatric services at CAMH, and in the meantime may occasionally see a "drop-in psychiatrist." Ms. N.S.'s mental health problems are of long-standing, and it is unreasonable to expect that she can make progress in dealing with them without sustained professional help for a lengthy period.

[68] Ms. N.S.'s involvement in conflicted and violent intimate relationships remains a significant concern. The fact that she is living apart from Mr. N. at the present time does not alleviate that concern. A pattern of conflict and violence has characterized all her intimate relationships, and there is no reason to think that this pattern will not continue in her future relationships unless she receives and makes use of professional help. It is not clear what professional help would be of benefit. Ms. N.S. has completed two anger management courses in the past 5 years, but her involvement in a cycle of violence has continued. She has just begun another anger management course. Before I would place a child in Ms. N.S.'s care, I would need to see a sustained period in which she demonstrated an ability to conduct herself without involvement in violent, conflicted relationships.

[69] Ms. N.S. presented no evidence that would support an extension of Society wardship for the children. Section 70(4) allows an extension for up to six months, if that extension is in the children's best interests. An extension is sometimes granted if a parent's plan is promising, but there is further work required, work that can be accomplished within a short period of time. Given the chronic nature of the problems which I have noted above, and given the fact that the children have already been in the temporary care of the Society for a period well in excess of the statutory limit, it cannot be said that a further extension of time would be in their interests.

[70] Aside from these concerns, I note that Ms. N.S.'s plan is lacking in the detail and corroborative evidence that I would expect from a parent who is "putting her best foot forward" in asking for the immediate return of her children. Ms. N.S. provides no independent confirmation that the Family Residence shelter can provide accommodation for her. Although she says that she will place the children in daycare, there is no evidence that she has researched or confirmed that spots are available in any particular daycare centre. She alludes to an intention to provide "programming" and "behavioural counselling" for the children, without providing particulars. She offers no independent confirmation of her participation in the counselling in which she says she is currently engaged. She says that her mother will support her in caring for the children, but there is no affidavit from Ms. S.R. confirming this support or providing particulars of what she will do.

The Society's Plan

[71] The Society's plan to place the children for adoption if they are made Crown wards will provide them with a permanent home. The children are young and healthy, and there is no evidence indicating that they cannot be readily placed for adoption if made Crown wards. The Society's plan is the only viable plan presented, and it is in the children's best interests.

CONCLUSION

[72] Section 57(2) of the Act directs me to consider what efforts were made by the Society or other agencies to assist the family before proceedings were begun. The evidence shows that the Society worked informally with the family from some months prior to A.M.'s birth, during the brief period in which there was a case brought with respect to A.M., and after it was withdrawn, informally, up to August 2010, when this case was begun. Referrals were made for services. The parents also obtained various services through the Evergreen Centre. After this case was begun, the Society provided the parents with an opportunity to participate in the therapeutic access program. The parents were resistant to other services.

[73] Section 57(4) of the Act directs me to consider whether a family or community placement is available for the children before making an order of Crown wardship. There are no viable alternate placements for these children.

[74] Mr. N.M. identified two possible alternate placements for the children, L.B. and C.M. The Society contacted both individuals, who indicated that they were not prepared to plan for the children. Ms. N.S. in her Answer identified her sister T.S. and T.R., her sister's partner, as an alternate placement. They did not respond to the Society's inquiries. T.S. later contacted the Society and said that she and her new partner, J.P., wanted to plan for the children. The Society did not proceed with an assessment of this plan, as it had an open protection file with respect to Ms. J.P's 3-year old daughter. Ms. N.S. did not in her affidavit filed on this motion put forward T.S. and Ms. J.P as an alternate placement.

[75] I order that A.M. and J.M. be wards of the Crown.

[76] Although neither parent in his or her Answer and Plan of Care requested an access order as alternative relief in the event that an order for Crown wardship was made, Ms. N.S. in her affidavit raised the issue, alleging that there is a genuine issue for trial as to whether access should be ordered. Counsel did not address this issue in submissions.

[77] Pursuant to s. 59(2.1), if access is sought, the onus is on the respondents to satisfy both prongs of the test in that subsection. If either respondent wishes to serve and file further material in support of the argument that there is a genuine issue for trial on the question of access, then this material shall be served and filed by October 24, 2012. The Society shall serve and file any reply material by November 5, 2012. I am not scheduling a further date for oral submissions on this issue. Counsel, if so advised, may make written submissions by the same date fixed for the delivery of affidavits set out above.

[78] The return date of October 25, 2012 is vacated.

Released: October 15, 2012

Signed: "Justice E.B. Murray"