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 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 . . . the 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.

(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.

(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) (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.

Toronto (North York) Registry No. C48668/09

DATE: 31·I·1012

CITATION: Jewish Family and Child Service of Greater Toronto v. M.J.P., 2012 ONCJ 66

ONTARIO COURT OF JUSTICE

B E T W E E N:

JEWISH FAMILY AND CHILD SERVICE OF GREATER TORONTO, Applicant

Sara M. Westreich, for the applicant society

— AND —

M.J.P., A.A. and P.P., Respondents

Lauren B. Israel, for the respondent mother, M.J.P. Lance Carey Talbot, for the respondent father, A.A. Paul S. Pellman, for the respondent maternal grandmother, P.P.

HEARD: 26 January 2012

JUSTICE S.B. SHERR (endorsement):—

1: INTRODUCTION

[1] The respondent, Ms. M.J.P. (the mother), has brought a motion (the extension motion) seeking leave to extend the time to file her Answer/Plan of Care to the amended status review application of the applicant, Jewish Family and Child Services of Greater Toronto (the society).

[2] The amended status review application seeks an order pursuant to section 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the Act), granting custody of J.S.P., born on […], 2009 (the child) to the respondent, P.P. (the grandmother), who is the child’s maternal grandmother, with access to the child’s parents to be in the grandmother’s discretion. The grandmother supports the society’s application.

[3] The respondent, Mr. A.A. (the father), is the child’s father. He also supports the society’s application.

[4] The extension motion is opposed by the society, the father and the grandmother.

2: BACKGROUND

[5] The court history is not contentious.

[6] The child was first apprehended at the hospital by the society on August 17, 2009, due to the society’s concerns regarding the volatile relationship between the child’s parents and how it placed her at risk of harm. The parents engaged in animated arguments in the child’s presence despite warnings from the society. On one occasion, security at the hospital was called due to the escalating conflict between the parents. The mother was a very young parent (18 years old at the time) with a troubled history. She had come into the care of the society when she was fourteen years old and was eventually made a Crown ward. As a teenager, her behaviour was too difficult to manage and included truancy and abuse of marijuana. She had been placed in the Youthdale Temporary Psychiatric Unit and then the Youthdale Re-Entry Program.[^1]

[7] On August 21, 2009, the child was placed in the temporary care of the society, with access to the parents in the discretion of the society.

[8] On September 22, 2009, the child was placed in the temporary care of the mother, subject to society supervision. The mother had moved into Massey House, a supportive maternity home for young mothers. She was taking steps to address the protection concerns.

[9] The child was re-apprehended on November 17, 2009 after another episode of conflict between the parents.

[10] On consent, the child was returned to the mother on November 23, 2009, with additional supervision terms. One of the terms was that she was to have no direct or indirect contact with the father.

[11] On June 21, 2010, the child was apprehended for the third time due to the mother’s continuing to engage in serious conflict with the father and not recognizing the risk to the child associated with such behaviour.[^2]

[12] On June 25, 2010, the child was placed in the temporary care of the society.

[13] On November 3, 2010, on consent, the child was found to be in need of protection pursuant to subclauses 37(2)(b)(i) and (ii), and clauses (g) and (g.1) of the Act. The child was made a society ward. Access between the child and the parents was ordered to be in the discretion of the society, including the level of supervision.

[14] On December 6, 2010, the child was placed with the grandmother. The child has resided with the grandmother since that time.

[15] On July 21, 2011, the society issued a status review application seeking an order that the child be placed with the grandmother for a further six months. Neither parent filed an Answer/Plan of Care although each was represented by counsel. The mother did not attend at the court appearances on August 22, 2011 and October 17, 2011.

[16] On December 7, 2011, the society issued the amended status review application. The mother was served with the application through her counsel on December 8, 2011. She did not serve and file her Answer/Plan of Care within the 30 days required by the Family Law Rules (the rules) and now seeks an extension order. She was only four days late when she made her extension request.

3: POSITIONS OF THE PARTIES

[17] The mother submits that it would be unjust to disentitle her from participating in this proceeding just because she was four days over the time limit prescribed for filing her Answer/Plan of Care and that important decisions, such as this, should not be based on technicalities. She says that she moved promptly to address her default and satisfactorily explained her delay. Her position is that it is in the child’s best interests to grant the requested extension since, as the child’s mother, her perspective and participation in the case are necessary. Her proposed Answer/Plan of Care asks the court to return the child to her subject to society supervision. In the alternative, she proposes that the child be placed with the grandmother for a further six months, pursuant to a supervision order. She asks for the opportunity to prove to the court that it will be in the child’s best interests to have her placed in her care at the end of the six months. The mother relied on her alternative plan during her submissions and indicated that she would consent to a six-month supervision order placing the child with the grandmother. The mother submits that this is a realistic plan for the court to consider and is the least intrusive alternative that is consistent with the child’s best interests. She believes that it is necessary for the society to remain involved with the family to ensure that her access takes place.

[18] The other parties take the position that it is not in the child’s best interests to grant the requested extension. They submit that there is no air of reality to the mother’s plan and that it is time to make a permanent order for the child.

4: REVIEW OF THE LAW

[19] Rule 10 of the rules requires that an Answer/Plan of Care is to be filed within 30 days of a party being served with the protection application. As a result of the mother’s failure to file an Answer/Plan of Care, the provisions of sub-ule 10(5) apply — she is not entitled to participate further in the case in any way, not entitled to notice of steps in the case and the court is permitted to proceed with the case in her absence.

[20] Subrule 33(1) of the rules sets out a timetable for child protection cases and confirms the 30-day filing requirement for the Answer/Plan of Care.

[21] The mother’s motion is brought under sub-rule 33(3)[^3] which states:

(3) Court may lengthen times only in best interests of child.— The court may lengthen a time shown in the timetable only if the best interests of the child require it.

[22] Subsection 37(3) of the Act sets out factors to be considered in determining the best interests of a child and I have considered those factors on this motion.

[23] In L.B. v. Children’s Aid Society of Toronto, (2004), 132 A.C.W.S. (3d) 509, [2004] W.D.F.L. 478, [2004] O.J. No. 2964, 2004 CarswellOnt 2869 (Ont. S.C.), the court heard an appeal of a decision by Justice Harvey Brownstone. Justice Brownstone had refused an extension request by grandparents to file an Answer/Plan of Care that had been served within the timelines, but not filed. Justice Brownstone wrote that the onus was on the grandparents to satisfy the court that the extension request was in the children’s best interests. In refusing the request, he emphasized that he was not refusing the request based on a technicality, but rather because there was no air of reality to the grandparents’ plan. They had not seen the children for over one year and the children had been in care for close to the statutory time limit set out in section 70 of the Act. The appeal court quoted the following statement from Justice Brownstone’s oral judgment:

Yes, they served a plan of care, just in the nick of time, but had the grandparents filed it in time and had the society brought a summary judgment motion seeking a final order on the basis of there being no genuine issue for trial, they would have succeeded. To allow the grandparents to file this plan late now would only lengthen the proceeding for nothing. The result is a foregone conclusion.

[24] The appeal court agreed that Justice Brownstone had carefully considered the merits of the grandparents’ plan and had not made his decision based on a technicality. It found he looked at the substance and the reality of the plan, and he did so from the correct perspective — the best interests of the children. It agreed with him that there was no air of reality to the plan and that the refusal to grant the extension was in the children’s best interests.

[25] In Children’s Aid Society of Lanark County and Town of Smith Falls v. D.S. (2007), 161 A.C.W.S. (3d) 440, [2007] W.D.F.L. 4898, [2007] O.J. No. 4203, 2007 CarswellOnt 7153 (Ont. Fam. Ct.), the mother sought an extension to file an Answer/Plan of Care to an amended status review application that had been served upon her three months before. Similar to this case, the mother had not responded to the original status review application and was represented by counsel throughout. The court denied the request, noting the length of time that the child had been in care and finding that there was nothing in the mother’s material that could support a conclusion that any further extensions in the case would be in the child’s best interests.

[26] Justice Alex Pazaratz has written three decisions related to the issue before me. In Catholic Children’s Aid Society v. S.M., 2007 CanLII 57461, 163 A.C.W.S. (3d) 264, [2008] W.D.F.L. 3317, [2007] O.J. No. 5087, 2007 CarswellOnt 8509 (Ont. Fam. Ct.), he dealt with the extension motion of a mother, who had been served with the protection application six months before. The court found that there was nothing in the mother’s material to support a conclusion that an extension of time would be in the child’s best interests. Further, the court found that the mother had provided no evidence that she had approached the matter with any diligence or that factors beyond her control prevented her from responding to the society’s application in a timely manner. The court found that permanency planning was in the child’s best interests and that the society’s position was entirely consistent with subsection 1(1) of the Act which states:

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

[27] In Catholic Children’s Aid Society of Hamilton v. K.K., 2010 ONSC 1100, [2010] W.D.F.L. 3949, [2010] O.J. No. 731, 2010 CarswellOnt 1041 (Ont. Fam. Ct.), Justice Pazaratz dismissed a mother’s motion to lengthen the timeline to file her Answer/Plan of Care. The mother had been served with the status review application in March of 2009 and had already been given two extensions to file materials. She did not meet either deadline and waited until January of 2010 to bring her extension motion. The court found that the mother did not provide a reasonable explanation for her delay and did not present a realistic plan of care. The child had been in care for 18 months (placed with the grandmother) and the child required permanency.

[28] In Catholic Children’s Aid Society of Hamilton v. K.K., the mother had argued that fairness and natural justice required that she be allowed to fully participate in the determination of such an important issue and relied on the primary objective of the rules — that cases be dealt with justly (rule 2). Justice Pazaratz dealt with this argument in paragraphs [67]-[68] of his decision as follows:

[67] I agree with Ms. Sullivan that perhaps no type of case is more important to the parties — or difficult for the court — than a society application for Crown wardship without access. I do not, however, agree that the objectives set out in rule 2, subsections (2) and (3) are intended to take priority over the timelines set out in the rules. Subrules 2(2) and 2(3) explain the purpose of the Family Law Rules — including the purpose of specified timelines.

[68] The court’s discretion to extend timelines is very specifically and narrowly prescribed in subrule 33(3). Subrules 2(2) and 2(3) provide assistance in interpreting subrule 33(3). But the “primary objective” provisions do not create a broader discretion to extend timelines for any reason other than “the best interests of the child require it.”

[29] Justice Pazaratz went on to write in paragraph [93]:

[93] Subrule 33(3) is not premised on a “what’s the harm?” test for late filing. Such a lax approach would undermine the child protection process, and render deadlines and default orders meaningless. The rule is clear: there is an affirmative onus to establish that departure from the timelines — in this case a significant departure, even after two consent extensions — will actually advantage or benefit the child.

[30] In Catholic Children’s Aid Society of Hamilton v. P.R., 2010 ONSC 6096, 1 R.F.L. (7th) 472, [2010] O.J. No. 4834, 2010 CarswellOnt 8497 Ont. Fam. Ct.), Justice Pazaratz dealt with the request of a mother to set aside an order that had been made noting her in default four months after she had been served with the status review application. The motion was brought over five months after she had been noted in default. Justice Pazaratz dismissed the motion, reiterating that the court could only lengthen time if the best interests of the child required it. He found that the mother had not adequately explained why she had not filed an answer and had not provided sufficient evidence to demonstrate that she had an arguable case on the merits.

[31] This issue was also considered by Justice Sharman S. Bondy in Windsor-Essex Children’s Aid Society v. Brandy B., 2008 ONCJ 191, 169 A.C.W.S. (3d) 1033, [2008] W.D.F.L. 3016, [2008] O.J. No. 1552, 2008 CarswellOnt 2298 (Ont. C.J.). The father was seeking an extension of time to file his Answer/Plan of Care. The society and every other party in the case, except one, agreed to the extension. Justice Bondy granted the extension and relied on the following factors:

(a)

The father had addressed a number of protection concerns and was presenting a viable plan.

(b)

The father was a necessary party as set out in sub-rule 7 (4) of the rules and section 39 of the Act.

(c)

She was satisfied with the father’s explanation for not filing an answer/plan of care in time.

(d)

The requested extension would not delay the case.

(e)

One of the important aspects in determining a child’s best interests is to assess the role and relationship of a child’s parent to the child.

(f)

Subsection 1(2) of the Act requires the court to consider, so long as it is consistent with the child’s best interests, that parents need help in caring for their children, and that help should give support to the autonomy and integrity of the family unit.

(g)

The court also referred to paragraph [73] of the decision of the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. J.G., [1999] 3 S.C.R. 46, 244 N.R. 276, 216 N.B.R. (2d) 25, 552 A.P.R. 25, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203, 1999 CanLII 653, [1999] S.C.J. No. 47, 1999 CarswellNB 305, where the court wrote:

[73] For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. Effective parental participation at the hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child. The best interests of the child are presumed to lie within the parental home. However, when the state makes an application for custody, it does so because there are grounds to believe it is not the case. A judge must then determine whether the parent should retain custody. In order to make this determination, the judge must be presented with evidence of the child’s home life and the quality of parenting it has been receiving and is expected to receive. The parent is in a unique position to provide this information to the court. If denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests. There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child’s best interests to remain in his or her care.

5: ADDITIONAL OBSERVATIONS

[32] I adopt the reasoning of my colleagues and add the following observations.

[33] In child protection cases, the court is often dealing with the most vulnerable people in our community. Many of the parents that the court sees have significant challenges in their lives. The involvement of the society is often a tremendous blow to their self-esteem. It is humiliating to be accused in their community of being either an abusive parent or so inadequate a parent that their children have to be removed from their care. Parents in these situations have to deal with difficult emotions such as anger and shame when they are often very ill-equipped to deal with them. They often become paralyzed in taking the positive steps necessary to achieve the return of their children and can be unfocused and disorganized. Quite often they do not proceed with a case or make progress in addressing the risk concerns in the linear fashion that professionals would prefer. This is particularly common in the earlier stages of child protection cases.

[34] I agree with the comments of Justice Heather L. Katarynych in paragraph [20] of her decision in Catholic Children’s Aid Society of Toronto v. Tenisha S., 2002 CanLII 53318, 112 A.C.W.S. (3d) 509, [2002] W.D.F.L. 169, [2002] O.J. No. 959, 2002 CarswellOnt 798 (Ont. C.J.), where she wrote:

[20] I also kept in mind the approach of the Newfoundland Court of Appeal in Lundrigan Group Ltd. v. Pilgrim (1989), 1989 CanLII 3952 (NL CA), 75 Nfld. & P.E.I.R. 217, 234 A.P.R. 217, [1989] N.J. No. 22, 1989 CarswellNfld 220 (Nfld. C.A.) — that rules governing practice and procedure in the courts are guidelines for action, to be used in the furtherance of procedural justice. They are not inflexible “iron rails”.

[35] It is particularly important in child protection matters that courts be flexible when dealing with timelines. The decisions made in these cases are arguably the most important decisions that our courts make. Courts need to be sensitive to the dynamics and challenges of the families that come before them. While subrule 33(3) sets out that the onus is on the parent seeking the extension order to show that the child’s best interests require the extension, in the overwhelming majority of cases, it will be in the child’s best interests to have the parents participate in the case and have their plans fully assessed.

[36] The threshold for establishing that it is in a child’s best interests to grant an extension order should be very low. If the parent can establish that there is, as Justice Brownstone wrote, “an air of reality to the plan”[^4], or another plan that they are supporting, then the parent will usually have established that it is in the child’s best interests to grant the extension order.

6: APPLICABILITY OF PRINCIPLES TO THIS CASE

6.1: Preamble

[37] The court had the advantage of experienced counsel arguing this motion and I thank them for their excellent submissions.

[38] I read and relied on the affidavits of the mother, sworn on January 18, 2012 (that attaches her proposed Answer/Plan of Care as an exhibit), Amy Zak (the society’s family service worker), sworn on January 23, 2012, the grandmother, sworn on January 23, 2012, the maternal great-grandfather, sworn on January 23, 2012 and the father, sworn on January 21, 2012. I also reviewed the court endorsements and the agreed statement of facts referred to above.

[39] I did not rely on facts that the mother contested with more than a bald denial. I gave her the benefit of the doubt, for the purpose of this motion, when a material fact was in dispute. The decision to refuse an extension motion that denies a parent the right to participate in a child protection case should not be made lightly. I see no reason why the procedural protections that are provided in summary judgment law should not apply to extension motions. Accordingly, there were a significant number of allegations made by the parties against the mother that I will not be including or relying upon in this decision.

[40] The facts that follow (in addition to the background facts set out in Part 2 of this decision) were not contested by the mother or were only baldly denied.

6.2: Material Facts for This Motion

[41] The child has been out of the mother’s care since June 21, 2010.

[42] The child had an unstable early childhood. She was exposed to domestic violence and parental instability and was apprehended three times from her mother’s care. She resided in two different foster homes.

[43] The child has been raised by the grandmother since December 6, 2010.

[44] The child has thrived in the grandmother’s care. She is happy and healthy. The grandmother has done an excellent job providing for all of the child’s physical and emotional needs. She has provided her with stability and continuity.

[45] The society has no protection concerns with respect to the grandmother.

[46] In the months leading up until August of 2011, the society had been working closely with the mother to address the identified concerns with respect to her mental health, her education and her ability to live independently. At the time, the society believed that the mother had made significant strides in her life[^5], but was not ready to assume the responsibility of caring for a child.

[47] The mother had unstable housing from June of 2010 until September of 2010, when she moved into the home of her maternal grandparents.

[48] The mother resided with her maternal grandparents until they asked her to leave on August 6, 2011 for breaking their house rules. Until then, the mother had exercised access to the child, supervised at the home of her maternal grandparents on Wednesdays, Friday nights and Sundays.

[49] The mother did not attend for her scheduled supervised visit on August 7, 2011.

[50] The mother did not attend an important Family Group Conference scheduled for August 17, 2011 to discuss planning for the child.

[51] The mother did not return any of the subsequent phone calls made by the society to her.

[52] The mother did not attend at court on the status review return date of August 22, 2011. Justice Geraldine F. Waldman suggested that the society should amend its status review application to seek the custody order with the grandmother pursuant to section 57.1 of the Act.

[53] Following the court date, the mother’s whereabouts were unknown. She did not call the society or the grandmother to inquire about the child’s well-being.

[54] The mother did not file an Answer/Plan of Care in response to the original status review application.

[55] The mother stopped attending school in September of 2011.

[56] The mother’s counsel described her client as “couch-surfing” during the fall of 2011. She lived in a hotel for a few days, at a shelter and at the homes of several friends.

[57] The mother did not attend at court on October 18, 2011.

[58] The society made numerous unsuccessful attempts to contact the mother.

[59] The mother did not call the society to ask about the child’s welfare for the remainder of 2011. The grandmother deposed that the mother last called her on October 31, 2011 and did not ask about the child.

[60] The mother deposed that she stopped communicating with her lawyer during this period.

[61] The mother attended at court on January 11, 2012 and orally sought the extension order. The request was adjourned for the purpose of a formal motion and the filing of materials.

[62] The society worker offered the mother, at court, the opportunity to start visits again with the child and asked the mother to call her to make arrangements.

[63] The mother called the worker five days after court and left her a message. The worker made several attempts to call the mother back, but her answering machine was always full.

[64] The mother made no other attempts to arrange an access visit with the child.

[65] The mother has still not contacted the society or the grandmother to inquire about the welfare of the child.

[66] It has now been five and one-half months since the mother last saw the child. This is a significant portion of the child’s life.

[67] The mother obtained a basement apartment at the end of November of 2011. She is in receipt of social assistance.

[68] The father’s access to the child has expanded during this period. He is working co-operatively with the society and the grandmother.

6.3: The Mother’s Reason for Delay

[69] The mother offered no real excuse for disappearing from the child’s life for the past five and one-half months. She did not adequately explain why she has not contacted the society or arranged to see the child, even after asking for the extension order on January 11, 2012. She did not address the society’s significant concern that she had not even inquired about the welfare of the child.

[70] The mother deposed that she was horribly embarrassed about her stupid behaviour and was determined to get her life together in order to be a responsible mother to her child. She did not provide specifics of the stupid behaviour.[^6] She wrote that, over the next four months, she just gave up. She said that she irregularly went to school and then stopped going altogether. She did not go to counselling and did not go to medical appointments. She described herself as being in crisis. She said that she contacted her lawyer in December of 2011, but missed her appointment to sign the Answer/Plan of Care. She explained that the holidays prevented her from setting up another appointment with her lawyer until the Answer/Plan of Care was overdue.

6.4: The mother’s Answer/Plan of Care

[71] The mother asks in her Answer/Plan of Care for the child to be returned to her care, subject to society supervision. In the alternative, she asks for a six-month supervision order, with the child being in the care of the grandmother. In her submissions, the mother said that she would only propose the alternative relief and would consent to an order in that form.

[72] The mother asks for six more months to prove herself to the court. She argues that everyone is entitled to a setback and that she has now turned a corner in her life. The mother proposes that she will live with the child at her current apartment. She intends to re-enrol in school and have the child attend at day care. She said that she has placed the child on a waitlist. The mother said that she was going to begin counselling again with the SHOUT program. She said that she is in receipt of social assistance and that this would be increased if the child was placed in her care. She said that she has the support of her sister and her maternal grandmother and hopes to mend her relationships with her family.

6.5: Analysis

[73] I find that the mother, in her material, has not met the very low threshold that I have set out for granting an extension motion. She has not provided sufficient evidence to show that the child’s best interests justify granting the extension order. She has not presented a realistic plan or established that there is a genuine issue for trial that should be considered further.

[74] I wish to make it perfectly clear that I am not making this decision on the basis of a technicality — the mother was only four days late in making her extension request.[^7] With such a short delay, the reason for the delay is not an important factor. I have given the mother the opportunity of presenting her plan and have examined it carefully. If she had provided the court with a realistic plan and established a genuine issue for consideration, I would have granted the extension motion. However her plan is entirely devoid of merit and not in the best interests of the child. Similar to L.B. v. Children’s Aid Society of Toronto, supra, the only conceivable outcome in permitting the mother to file her Answer/Plan of Care would be that the society would move for summary judgment. The result of such a motion would be a foregone conclusion. We would only be delaying inevitable permanency planning for the child and causing unnecessary expense to the parties.

[75] The mother has had many opportunities to prove to the court that she has the maturity and judgment to adequately parent the child. The child has been subject to court proceedings for two and one-half years and has been out of the care of her mother for over nineteen months. The mother has engaged in many services and acknowledges having received considerable support from the society. Unfortunately, the mother’s circumstances have only declined since the child was last removed from her care — she does not appear to be able to sustain any of the gains she achieves. Aside from her statement of good intentions, there is absolutely no evidence before the court that she has made the gains necessary to safely and responsibly parent the child in the near future.

[76] The behaviour, judgment and priorities of the mother are extremely troubling. She offers no viable excuse about why she dropped out of her child’s life for over five months. She does not offer an adequate explanation as to why she ceased contact with the society. She does not explain why she still has not arranged to see the child, even after being given the opportunity to do so this month.

[77] In her material, the mother demonstrates absolutely no insight into the child’s needs and how her behaviour might have affected her. She demonstrates no empathy about the loss or confusion that her daughter may have suffered by her absence. She just feels that she can pick up where she left off last summer.

[78] The mother demonstrated no understanding in her material of the child’s developmental needs — her need for stability, continuity and to be free of conflict. This gives the court no confidence that she will develop this necessary insight, knowledge and empathy (after having had over two years to establish it) in the foreseeable future.

[79] The failure of the mother to inquire about her daughter raises a significant concern about the degree of her connection to the child. Common sense dictates that her connection to the child has been damaged by her absence in this important time in the child’s development. This continues to place the child at risk of emotional harm.

[80] Children need continuity and stability to reach their potential. It is fundamental to their physical, mental and emotional needs and development. Sadly, the mother’s life has been unstable and chaotic. At times, she has taken steps to improve her life and made some progress, only to backslide. It is apparent that the mother’s emotional issues are deep-rooted. It is likely that she will require significant treatment, whether through specialized counselling or psychotherapy, before she will be able to stabilize her own life, let alone that of a child’s. This will likely be a long-term process — a process that the mother has not meaningfully begun.

[81] The mother’s plan amounted to a statement of intention. She provided no affidavit evidence from persons who would support her. She hopes to mend fences with her family, but there is no evidence that she has taken steps in that direction. She did not file any evidence confirming that she has started counselling or going to school, or that the child is on a day-care waitlist.[^8]

[82] Although it was a narrow window, the mother had the opportunity of demonstrating between her original extension request on January 11, 2012 and the hearing of this motion that she was serious about following through on her plan — that she had indeed turned a corner. She did not do this. She did not arrange to see the child despite the considerable efforts of the society to arrange this.

[83] The suggestion that the child should wait another six months to see whether the mother makes progress is unrealistic and unfair to the child. The court has no confidence, based on the history of this case, that the mother would be in a position to parent the child after six months. Although she has shown that she can make progress over short periods in her life, she would need to be able to establish stability for a much longer period than six months. The court would need to see her engaged in meaningful therapy and making real and sustained progress. The time has run out for her to do this. As was stated in Children’s Aid Society of Toronto v. Robin H. and Michael N., 2000 CanLII 3158, 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 CarswellOnt 6170 (Ont. C.J.):

[15] . . . A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent: . . .

[18] 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 discernible from the parent’s evidence that she faces some better prospects than 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. . . .

[84] The risks of harm to the child of being returned to the mother have not diminished since she was last removed from her mother’s care. The risks are still too significant to return the child to the mother in the foreseeable future.

[85] Any future legal issues with this family should be dealt with in the domestic court. This should no longer be a child protection case. There are no protection concerns about the grandmother. She is a good parent who can be trusted to protect the child from the mother. She has facilitated access for the mother.

[86] While the child’s residence will not be affected by this order, there are advantages to her in finalizing the child protection case. The grandmother will have the certainty that the child will be permanently living with her and be able to prepare for her long-term future. The grandmother will no longer have to arrange meetings with the society, accommodate its workers or be accountable to them. She will no longer need to incur the time and expense required for the child protection case. She can focus her attention on the child. The child will likely indirectly benefit by the elimination of these obligations and stressors from the grandmother’s life.

[87] There is also no genuine issue with respect to the mother’s access that requires further examination. The mother will have to be supervised for the foreseeable future. She will need to establish stability in her life and prove that she is taking meaningful steps to address her many personal issues before this is likely to change. The grandmother has always facilitated access and the mother did not provide evidence that the society needs to remain involved to mange this issue, although it appears they are willing to do so on a voluntary basis.

[88] The final orders in this court will be deemed to be orders under the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended. In the event that she disagrees with the grandmother in the future about the form or duration of her access, the mother can always bring a motion to change access under the Children’s Law Reform Act and demonstrate a material change in circumstance that affects the best interests of the child. The final order in this case will provide that access to the mother be supervised by someone approved of by the grandmother. These final orders will be the least intrusive orders consistent with the child’s best interests.

7: CONCLUSION

[89] The mother’s motion to extend the time to file her Answer/Plan of Care is dismissed.

[90] I appreciate that this decision will be disappointing to the mother and I know that written words are unlikely to ease that disappointment. She is fortunate that her mother came forward to parent the child — other parents in her circumstances, without this degree of family support, usually lose their children permanently. The mother will have the opportunity to have a relationship with her daughter. Hopefully, she will take advantage of that opportunity.

[91] However I wish to emphasize to the mother that the custody order will be a final one. The child is entitled to a permanent plan at this time. The placement with the grandmother is not intended to be a temporary solution until the mother is able to stabilize her life. It is not in the best interests of the child to set up a future competition between the mother and the grandmother.

[92] I hope that the mother is serious about changing her life. Good intentions are a start. However, she will need considerable help to become the parent that she wants to be. It would likely be helpful for her to obtain a psychological assessment in order to determine the appropriate therapeutic intervention. If she is willing to engage in this process, perhaps the society could assist her with this. The mother can still have an important role to the play in the child’s life if she takes these proactive steps.

[93] The parties (with the exception of the mother) are to contact the trial co-ordinator and arrange a return date before me in February to finalize the matter. If they execute a signed consent in advance of that date, then they can submit it by Form 14B to the trial co-ordinator’s office for my approval. I would rely upon the evidence and findings set out in this decision and any other evidence with respect to the father that the parties agree upon in making my final order.

Justice Stanley B. Sherr

Released: 31 January 2012

[^1]: These facts are contained in a statement of agreed facts executed by the parties. The mother executed the agreement on November 2, 2010. [^2]: These facts are also contained in the statement of agreed facts executed by the mother on November 2, 2010. [^3]: Subrule 3(5) also gives the court the authority to lengthen time, except that the court may lengthen a time set out in subrule 33(1) only if the best interests of the child require it. This sub-rule and subrule 33(3) set out the same test. [^4]: The case law uses different language to describe essentially the same principle. The phrases: no air of reality, no arguable case, no viable case on the evidence, foregone conclusion, no triable issue and no genuine issue for trial are all used. They are interchangeable terms and will be treated as such in this decision. [^5]: The grandmother and paternal grandfather strongly disagreed with this suggestion setting out several incidents of unstable behaviour by the mother and her boyfriends. Again, since this evidence was in conflict with that of the society’s perception of the mother’s progress, I am not relying upon their evidence for the purpose of this motion. [^6]: She did set out that the triggering incident for being asked to leave her grandparents’ home was that she had two friends visit her there, contrary to the rules of the home. [^7]: This is only relevant to the extent that it is a minor example of a pattern of having difficulty managing her life. [^8]: Even if she had filed these letters, it would still be insufficient to create a triable issue, due to the other reasons set out.