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.: C163/12 Date: October 18, 2012 Ontario Court of Justice

Between:

The Children's Aid Society, Region of Halton Applicant

— And —

R.R. (mother) and W.M. (father) Respondents

Before: Justice R. Zisman

Heard on: October 11, 2012

Reasons for Judgment released on: October 18, 2012

Counsel:

• Meagan Pallett for the applicant society
• Terrance Tobin for the respondent R.R.
• Robert Brooks for the respondent W.M.

Zisman, J.:

1. INTRODUCTION

[1] This is a motion for summary judgment brought 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 child, G.D.R.M., born […], 2012, be found to be in need of protection, pursuant to section 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, as amended (hereinafter referred to as "the Act");

(2) the child, G.D.R.M., be made a Crown ward and be placed in the care and custody of the society, without access for the purpose of adoption; and

(3) the society have the right to consent to and authorize medical treatment for the child.

[2] The parents seek that the child be placed in their care subject to supervision of the society.

[3] The society relied on the following materials:

• Amended Protection Application dated July 11, 2012
• Affidavits of Amrita Kaur Shergill sworn April 12 and July 11, 2012
• Parenting Capacity Report of Dr. Milton Blake dated June 27, 2012
• Affidavit of Susan Williamson sworn August 17, 2012
• Plan of Care of the society dated July 12, 2012

[4] The respondent parents relied on the following documents:

• Answer and Plan of care of respondent mother dated May 28, 2012
• Answer and Plan of Care of respondent father dated June 22, 2012
• Affidavit of respondent father sworn October 8, 2012

[5] The child was apprehended from the hospital two days after his birth. The society received a referral from the hospital that the mother had arrived by ambulance without shoes and covered in marker. She had no pre-natal care and did not visit with a doctor throughout the pregnancy as she was not aware she was pregnant.

[6] The mother admitted to some limited use of alcohol and marihuana and had tested positive for marihuana use.

[7] The mother was residing with a friend, she had no stable housing and her only source of income was $150.00 per month from her mother's estate. The father was residing with his mother and sister and had some employment.

[8] As a result of the information received from a community referral and the hospital and based on the social worker's conversations with the mother there were concerns about the mother's use of drugs, her developmental delays and her ability to parent the child.

[9] The initial Protection Application sought an order that the child be made a society ward for 7 months. On April 16, 2012, on a without prejudice basis, the parents consenting to the child remaining in care.

[10] The parents consented to a parenting capacity assessment by Dr. Milton Blake. Following the receipt of the parent capacity assessment the society amended its protection application to seek an order of crown warship for the purpose of adoption.

[11] The society indicated that it was willing to explore any family adoption plan.

2. APPLICABLE LEGAL PRINCIPLES

2.1 Legal Considerations on a Summary Judgment Motion

[12] 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.

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

[14] 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.

[15] 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.

[16] 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.

[17] 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.)).

[18] 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.)).

[19] 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.)).

[20] 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.)).

[21] 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.)).

[22] 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).

[23] 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.)).

[24] 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.)).

[25] 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.)).

[26] 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 the parent faces some better prospect that what existed at the time of the society's removal of the child from the care of the parent and that the parent 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 on a Protection Application

[27] As this is a protection application, the court must determine if the child is in need of protection pursuant to subsection 37(2) of the Act. In this case the society seeks a finding that the child is in need of protection pursuant to subsection 37(2)(b)(ii) namely, that the child is at risk of suffering physical harm from the mother and father by their failure to care for, provide for, supervise or protect the child adequately.

[28] Where the court makes a determination that the child is in need of protection and that court intervention is necessary, the court pursuant to subsection 57(1) of the Act can make one of several orders, namely, an order placing the child with the parent or another person subject to supervision, an order of society wardship or an order of crown wardship.

[29] 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.

[30] The court is also required to consider, pursuant to subsection 57(3) of the Act, the least disruptive alternatives than 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.

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

[32] As this child is under 6 years old, subsection 70(1)(a) of the Act requires that the court not make an order that results in the child being in the care of the society for more than 12 months.

[33] 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.

[34] 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.).

3. Summary of Material Facts

[35] The following material facts were either not disputed or there was a blanket denial by the parents.

3.1 Background of the Parents

[36] The mother is 26 years old and the father is 27 years old. They are the biological parents of the child.

[37] The mother was residing in Community Living assisted housing until about a year before the birth of the child. She discharged herself and moved from one friend's home to another. At the time of the child's birth, she had only limited income from the estate of her mother but has now, with the assistance of her community support worker, arranged for the receipt of Ontario Disability Support Assistance.

[38] The father resides with his mother and sister. The mother is currently residing with him and his family. The father was unemployed but has now found employment with the Salvation Army.

3.2 Findings of the Parent Capacity Assessment

[39] Dr. Milton Blake, a psychologist was retained to conduct a parent capacity assessment. Dr. Blake was requested to evaluate the capacity for the parents to meet the needs of their child and to manage the challenges of parenting him. In particular, he was requested to assess the child protection concerns involving the parents' coping strategies, their communication skills and their competence with respect to caring for a child independently on a full-time basis. Dr. Blake was asked to evaluate each parent's cognitive development, their auditory verbal skills and their visual motor skills.

[40] Dr. Blake reviewed the court documents, interviewed several society workers and the parents. He observed the parents with the child. He also reviewed a previous psychiatric assessment and psycho educational assessment of the mother, conducted psychological testing on both parents and reviewed hair follicle and drug test results.

[41] Dr. Blake outlined the following parental weaknesses:

1. The parents were unable to manage their personal affairs leading up to the birth of the child that included: failure to obtain pre-natal care, residential transience and lack of income on the part of the mother.

2. There was a recent history of drug misuse by both parents and despite their commitment to refrain from such behaviour as parents, they lacked the insight to understand the poor example this would set for a child.

3. Their plan of care was characterized by environmental and potential safety concerns as the parents reported that their basement apartment was cold and drafty and not suitable for an infant and the upstairs of the home was not safe due to the presence of dogs that were "not a 100% friendly". There were concerns about obtaining adequate childcare if their plans to obtain employment materialized.

4. Generally, Dr. Blake found that neither parent showed more than a limited appreciation for the specific child protection concerns that led to the apprehension. He opined that someone is less likely to change what they are unwilling or unable to acknowledge and therefore the probability of lasting improvements must be assumed to be low.

[42] The psychological testing of the mother indicated she had a limited understanding of the importance of and value of being emotionally supportive toward a child and the importance and knowledge of age appropriate expectations. The mother's understanding of the appropriate parent-child boundaries was also limited. Although the test results indicated that the father's results were better than the mother, he showed weaknesses with respect to child empathy and there was a concern about his ability to be an emotionally supportive father.

[43] With respect to the mother's intellectual cognitive abilities, she scored in the mildly disabled range of intelligence. Dr. Blake concluded that this would limit the mother's rational decision making, problem-solving and judgment in other than very basic childcare areas and situations. It would place her at a distinct disadvantage as her child's needs became more complex and multi-dimensional as he progressed developmentally. He concluded that the mother's intellectual limitations would inevitably make her a less than an adequate parent with respect to being able to read her child's signals and cues, effectively problem solving with her child as he gets older and be able and willing to respond to his developmental needs.

[44] Although the father's test results were higher than the mother's, he still scored in the range between "borderline" that is, between average intellectual ability and mild intellectual disability. As a result his planning, reasoning, judgment and problem-solving abilities would not be adequate to meet his child's needs on a consistent basis. Dr. Blake also raised concerns about the father's ability to engage with the child based on his observations session, in which a large portion of his time was taken up with picture taking as opposed to caring for or interacting with the child.

[45] With respect to the parents' mental health, the mother was found to exhibit avoidant and schizoid personality traits, as well as clinical symptoms of anxiety and mild depression. The father was found to be subject to a narcissistic personality features and anxiety symptoms which would compromise his ability to prioritize on the basis of his child's needs as opposed to his own. Overall, neither parent showed the personality and emotional make-up to care for their child in a manner that would meet his needs for an emotionally secure and stable upbringing.

[46] Concerning the likelihood of success of interventions or services for the observed problems and the global impairments in intelligence that the parents manifest, Dr. Blake concluded that they represent permanent conditions that are essentially not modifiable at the adult level.

[47] Dr. Blake noted a number of concerns regarding the quality of childcare and interaction that the parents' exhibited in the assessment observation. The most concerning observation was the father's lack of engagement and involvement with the child due to his excessive picture-taking and this was despite the fact that he had been advised of its inappropriateness by the society social workers who supervised the access. The mother was also observed to have difficulty feeding and changing the child. Dr. Blake stated that although some improvement may be possible in those areas with continued access visits and a teaching component, any possible gains would be limited due to the mother's intellectual limitations.

[48] Dr. Blake noted that both parents love their child, showed appropriate affection and emotional attachment and he had no doubt that they would try to be the best parents they can within the parental limitations they exhibit.

[49] However, Dr. Blake concluded that:

Neither parent has the intellectual capability nor the mental stable health to provide a quality of parenting that would meet their child's emotional, developmental and psychological needs beyond the provision of basic childcare, and it is difficult to conceive that G.D.R.M.'s best interests would be served if he were placed in their permanent care.

While there is no obvious indications of developmental delays based on observations of the child during the present assessment, more extensive pediatric assessments would be needed in the coming months and years in order to provide more definitive findings in this realm. Should a developmental delay, in fact, emerge, the shortcomings that the parents exhibit would place the child at even greater risk. The fact that G.D.R.M. does not show more than minimal attachment toward his parents at his still very early stage of life furthermore supports the view that a severing of the parent-child relationship would be unlikely to have emotionally detrimental consequences for him.

3.3 Facts Regarding Access Visits and the Parents' Co-operation with the Society

[50] The society worker, Amrita Kaur Shergill deposed that the parents have followed through with the expectations of the society. They have attended access visits consistently and worked co-operatively with the society. The parents ask for updates about the child's progress and advised her that they were readings books about a child's early years and parenting. The parents interact well with each other and the child.

[51] However, despite the parents having the assistance of society workers in the access visits, there continue to be concerns about the parents' ability to meet the needs of the child. The parents still require support and direction around feeding, how to properly hold the child to support his neck, head and back, what clothing is appropriate depending on the temperature and how to assess the child's needs when he is in distress and they struggle to read the child's cues.

3.4 Facts Regarding the Child and His Adoptability

[52] Susan Williamson is an adoption worker. In her affidavit sworn August 7, 2012, filed in support of this summary judgment motion, she deposed that as a result of the child's foster parents concerns regarding the child's development, a referral was made to a paediatrician and then a further referral was made for an assessment to a developmental consultant and an occupational therapist.

[53] The child has now been assessed as having delays in gross and fine motor skills, problem solving and personal social skills. It has been recommended that the child be monitored by an occupational therapist to provide suggestions and activities to strengthen his core muscles. A developmental consultant needs to be available to provide support in other areas of his development.

[54] Ms Williamson deposed that the child has a content personality, responds well and is easily soothed. She further deposed that stability and permanence with a caregiver who will support the development of a healthy attachment should be facilitated as soon as possible.

[55] Ms Williamson deposed that at present the society has 45 approved adoptive homes that would be appropriate for this child. If he is not assessed as having any significant developmental delays then a much broader range of homes would be available. She notes that despite the child's delays in development, she would expect a more positive outcome based on his young age and the availability of early interventions. She concluded that he has demonstrated behaviours which are indicative of an ability to form a healthy attachment to caregivers and that he is a highly adoptable young child.

3.5 Facts Regarding Services and Family Plans

[56] The society assisted the parents with respect to providing a family service worker. Society workers were present on the access visits to provide some teaching and assistance to the parents during the access visits. The society arranged for drug testing.

[57] The society arranged for a parent capacity assessment to determine what services could be provided to assist the parents in being able to parent their child. Based on the outcome of that parent capacity assessment, the society determined that there were no further services or programs that would enable the parents to develop the ability to care for their child.

[58] The mother has also had the support and assistance of her support worker from the Community Living Association.

[59] The father initially proposed that the paternal grandmother be considered as a placement. But the paternal grandmother has indicated that she is unable to care for the child and the society assessed that such a placement would not be suitable.

[60] No other extended family member has indicated an ability or interest in presenting a permanent plan for the child.

4. ANALYSIS

4.1 Is There Evidence to Support a Finding That the Child is in Need of Protection?

[61] The parents have not disputed that the child was in need of protection at the time of apprehension or at the present time.

[62] Based on the mother's presentation at the time of birth, her lack of stable housing or source of income, her lack of any supports and her intellectual and cognitive limitations, the evidence is overwhelming that the child was at risk of physical harm as alleged by the society.

[63] I appreciate that this is a speculative risk as the child was apprehended from the hospital within days of his birth and was never in the actual care of the mother. However, based on the evidence, in this case and based on the circumstances of these parents, I find that this is a realistic risk.

[64] Based on the parent capacity assessment of Dr. Blake and the observations of the access visits by the society workers, the child continues to be at risk of harm if he was placed in the care of the parents.

[65] I therefore find the society's motion for summary judgment on the issue of a finding is granted. There will be a finding that the child is in need of protection pursuant to subsection 37(2)(b)(i) of the Act.

4.2 What is the Appropriate Disposition?

[66] In support of the parents' request to dismiss the society's summary judgment, the parents state that they love their child and that they have co-operated with the society and will continue to co-operate. They would like a trial based on a plan of care that involves the child living with them.

[67] The father states that he does not have a substance abuse issue and does not suffer from any major psychiatric disorder. He believes he can overcome all of the limitations noted by Dr. Blake in his parent capacity assessment.

[68] The parents' plan of care indicates that the parents will continue to reside with the paternal grandmother in her home. They will be able to support the child from the father's earnings at the Salvation Army and from the ODSP benefits that the mother receives. They will co-operate with the society and take any counselling or parenting courses suggested by the society.

[69] The society has filed a Plan of Care that the child be made a Crown ward and placed for adoption. The society is prepared to provide annual letters and photos to the parents, if the adoptive family is willing to do so.

[70] Based on the evidence presented, I find that the society has met the onus of establishing that there is no genuine issue for trial on the issue of disposition and that the child should be made a Crown ward for the purpose of adoption.

[71] If there was a trial in this case, the outcome would be the same. Unfortunately the limitations of these parents are such that they cannot change over time or change with any conceivable services.

[72] The parents do not respond to the concerns raised in Dr. Blake's assessment as to the inadequacy of their living situation or address the other serious limitations and concerns about their parenting abilities raised in his assessment.

[73] Since the assessment of Dr. Blake, the child has been assessed with some developmental delays. It is therefore essential that the child is placed with caregivers who can understand his needs, advocate for supports for him and implement any therapy or activities so that he can reach his full potential.

[74] The parents' counsel made no submissions on the issue of access. I find, based on the evidence of both Dr. Blake and Ms Williamson that the parents have not met the onus of rebutting the presumption against access to a Crown ward, pursuant to subsection 59(2) of the Act.

[75] Despite the fact that the child has only been in care for six months, there is no basis to delay a decision in this case any further. A further delay will not change the parents' ability to care for this child but it will delay his prospects for reaching his full potential. It is in this child's best interests that a stable and permanent home be found as soon as possible.

[76] I know that this decision will be difficult for the parents as they love G.D.R.M. and have done their best to meet his needs. But I hope they can find some comfort in knowing that he will be placed with a family that love him and ensure that he obtains all the assistance he needs to grow to be a happy and productive member of society.

[77] The motion for summary judgment by the society is granted. There will be an order as follows:

(1) The statutory findings will be made namely: that the child, G.D.R.M. born […], 2012, is non-Roman Catholic (not designated), non-Native, his mother's name is R.M.R. and his father's name is W.M.;

(2) the child, G.D.R.M., born […], 2012, be found to be in need of protection, pursuant to section 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, as amended (hereinafter referred to as "the Act");

(3) the child, G.D.R.M., be made a Crown ward and be placed in the care and custody of the society, without access for the purpose of adoption; and

(4) the society have the right to consent to and authorize medical treatment for the child.

Released: October 18, 2012

Signed: "Justice R. Zisman"