WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Court File No.: Toronto C30028/04

Date: 2012-02-10

Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto, Applicant,

— AND —

S.W. and S.P. Respondents.

Before: Justice Geraldine Waldman

Heard on: November 29, 2011

Reasons for Decision on Motion released on: February 10, 2012

Counsel:

• Brian Downey, for the applicant society
• Marc Boissennault, for the respondent mother

WALDMAN J.:

[1] Motion for Summary Judgment

The Catholic Children's Aid Society (the Society) has brought a motion for summary judgment in this case. It is seeking a finding that the child M.C.P., born […], 1999, is a child in need of protection pursuant to section 37(2)(b)(i), (ii) and (g) of the Child and Family Services Act and a disposition of Crown Wardship with no access order. Mother opposes the motion for Summary Judgment. It is her position that there are issues which require a trial with respect to both the finding and the disposition and that, at the trial, she will be seeking the return of the child. Justice Brownstone made an order dispensing with service on father on June 14, 2011.

[2] Statutory Findings

There is no issue as to the particulars of name, age, etc. which are set out in paragraph 1 of the Notice of Motion, and I make the statutory findings as required by section 47(2) of the CFSA.

Background

[3] Family History and Prior Involvement

Mother has two children: M., who is 21 years old and a student at Seneca College, and M.C., who is the subject of this motion. The Society was previously involved with this family for the period from 2004 to 2007. Both children were in the care of the Society from January 2004 to April 2004 and from November 2004 until about March 2005, when they were returned to their mother subject to the supervision of the Society. This earlier involvement was the result of concerns about mother's mental health. The Society became involved with this family again in February 2010, as a result of contact by M.C.'s school with concerns about mother's mental health and about mother not meeting the child's educational needs. M.C. was apprehended on February 11, 2010. She has remained in care since the apprehension. M.C. has lived in the same foster home since shortly after the apprehension.

The Law

[4] Rule 16 – Summary Judgment

Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant to this case:

When Available

16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

Evidence Required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring trial.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

Evidence Not from Personal Knowledge

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

No Issue for Trial

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

[5] Genuine Issue for Trial

Rule 16(6) is mandatory. Therefore if the court concludes that there is no genuine issue requiring a trial the motion must be granted. There is no genuine issue for trial "where there is no realistic possibility of an outcome other than that as sought by the applicant." (Children's Aid Society of Niagara Region v. S.C., [2008] O.J. No. 3969 (Sup Ct.)) Not every disputed fact gives rise to a genuine issue for trial. In order for a trial to be necessary because there is a genuine issue for trial, the fact or facts in dispute must be material to the outcome of the case.

[6] Role of the Court on Summary Judgment

The role of the court on a motion for summary judgment is limited to determining the threshold issue of whether there is a genuine issue or material fact requiring a trial. (Children's Aid Society of the Regional Municipality of Waterloo v. T.S., [1990] O.J. No. 5561) The court cannot assess credibility, draw inferences from conflicting affidavits, or weigh evidence. (Children's Aid Society of the District of Nipissing v. M.M., [2000] O.J. 2541 (SCJ)) The court cannot speculate on possible evidence but is restricted to considering and evaluating the sufficiency of the evidence as contained in the affidavits before the court. (Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442)

[7] Interpretation of Rule 16 and the CFSA

The court's interpretation of Rule 16 must be made with reference to Rule 2 of the Family Law Rules. Rule 2 requires the court to deal with the case justly, ensuring that the procedure appropriately reflects the importance and complexity of the issues. Rule 16 must also be interpreted within the context of paragraph 1(1) of the CFSA which states that the paramount purpose of the Act is to promote the best interests and well-being of children. (Children's Aid Society of Hamilton v. M.W., [2003] O.J. No. 220)

[8] Cautious Approach to Summary Judgment

Therefore, while the court ought to take a cautious approach when determining whether to grant a motion for summary judgment, it is not limited to only the clearest of cases. If the evidence does not raise a triable issue as to the child's best interests, then the child's best interests themselves call for a resolution without the delay that a trial would cause. (Jewish Family and Child Service of Toronto v. R.A. and J.G., [2001] O.J. No. 47) The party answering the motion is required "to put his best foot forward." They cannot rely on bald denials but must provide responding material showing that there is a genuine issue for trial. (Children's Aid Society of Toronto v. Kathleen T. and Charles W.)

[9] Crown Wardship – Most Serious Order

The Society in this case is seeking an order of Crown Wardship with the intention of placing this child for adoption. A Crown Wardship order is the most serious order that a court can make. To take someone's child from him or her is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of the alternative remedies. See Children's Aid Society of Hamilton-Wentworth v. G.(J.), (1997) 23 R.F.L. (4th) 79 (SCJ).

[10] Affidavits Filed by the Society

The Society has filed the following affidavits in support of this motion:

1. Affidavit of Brenda Smith, intake worker, sworn October 17, 2011
2. Affidavit of Kate Blick, family service worker, sworn October 18, 2011
3. Affidavit of Sheri Macneall, social service assistant, sworn October 17, 2011
4. Affidavit of Lydia Piecyk, social service assistant, sworn October 14, 2011
5. Affidavit of Shelaigh Beatty, adoption worker, sworn October 14, 2011
6. Affidavit of Carolyn Golden, family service worker, sworn October 17, 2011

I was also provided with two updating affidavits on the date of the motion: an affidavit of Carolyn Golden, sworn November 24, 2011, and an affidavit of Kate Blick, sworn November 24, 2011. The mother did not have the opportunity to review these prior to the motion and to respond. I therefore have not relied on them for the purpose of this motion.

[11] Expert Reports and Other Evidence

The Society is also relying on the parenting capacity assessment of Dr. Graham Berman, done in this litigation pursuant to the order of Justice Spence; the report of Dr. Dief, dated June 22, 2010; the psychological assessment of Dr. Denise Vallance relating to M.C., dated August 2010; various reports relating to mother's hospital admissions in 2004 and 2005; and Statements of Agreed Facts dated April 2, 2004, October 1, 2004, December 21, 2005 and September 6, 2006.

[12] Mother's Response

Mother filed an affidavit sworn November 28, 2011, in response to the Society's materials. I also reviewed and considered mother's affidavit sworn May 11, 2010, which she filed in response to the Society's interim care motion.

Society's Position

[13] Society's Submissions

It is the Society's position that there is no triable issue relating to the finding and disposition. It is the Society's position that the uncontested evidence supports a finding that M.C. is in need of protection based on concerns about mother's mental health and the risk of harm that this creates for M.C. In relation to the disposition, it is the Society's position that the uncontested evidence supports ongoing concerns about the following:

• Mother's mental health
• The quality of the relationship between M.C. and mother
• Mother's ability to parent M.C., including her ability to meet the child's educational and emotional needs
• M.C.'s ongoing needs and mother's inability to meet those needs
• M.C.'s wish not to return to live with mother
• M.C.'s adoptability

[14] Society's Conclusion

It is the Society's position, therefore, that, based on the evidence, I ought to find that an order of Crown Wardship with no order as to access is in M.C.'s best interests. It is the Society's position, therefore, that I ought to grant the motion for Summary Judgment and make the orders sought.

Mother's Position

[15] Mother's Submissions

Mother opposes the motion. It is her position that she does not suffer from any mental illness, that there have not been longstanding concerns about her mental health and that she is able to parent M.C. It is her position that the motion ought to be dismissed and that the matter should proceed to trial.

Determination of Facts Not in Dispute

[16] School Concerns

The current involvement of the CCAS was the result of a contact by the child's teacher. The details of the concerns raised by the school are set out in the affidavit of Brenda Smith, the Intake worker, sworn October 17, 2010, and filed at Tab 8 of volume one of the Society's materials filed in support of the motion. According to the affidavit, M.C.'s teacher, Ms. Giansi, advised that mother's behaviour had become increasingly erratic. She described mother as being extremely unkempt, that her hair was wrapped up in a towel and that her nose was constantly running down her face unwiped. The teacher noted that the school had been waiting for years for the child to undergo an educational assessment but that mother appeared to be stalling. The principal expressed concern about mother's understanding of the child's special educational needs. They also told the worker that mother was observed talking to herself and engaging in compulsive behaviour of touching the wall with her thumb every few feet as she walked down the hall and touching every telephone pole with her thumb when she walked on the street. There were also concerns about absences and lateness and mother's inability to provide an explanation. They also observed that mother brought the child McDonald's food for lunch every day.

[17] Child's Confirmation of Diet

M.C. confirmed to the Society worker that her mother did not shop but that they ate fast food such as KFC and McDonald's every day.

[18] Mother's Response to School Concerns

Mother does not address these observations of the teacher or the principal in her materials.

[19] Condition of Mother's Apartment

Ms. Smith, the Intake worker from the Society, visited the family home on February 11, 2010. Mother advised that the house was in a mess because she was in the process of cleaning it. In fact, the worker observed many boxes around the house which was consistent with the explanation provided. Ms. Smith described the apartment. The details of her observations are set out in her affidavit sworn October 17, 2011, and filed at Tab 8 of volume 1 of the Society's motions brief. She noted that mother's room was filled with boxes and bags of clothing. The bed in one bedroom was covered with papers, clothes, bags and boxes. The hallway was covered with clothes and the laundry basket was overflowing with dirty laundry. There were no sheets on M.C.'s or her brother's beds. There were pots and plates on the dining room table, in the sink and on the countertops. Food was visible on the plates and in the pots with mould beginning to form on the food. There was very little food in the cupboards or in the refrigerator. Mother does not comment on these observations in her affidavit of November 28, 2011, and offers no evidence except the explanation for the boxes and clothes scattered around the apartment.

[20] Child's Behaviour Upon Coming into Care

According to the affidavit of Kate Blick, the children's service worker, sworn October 18, 2011, filed as Tab 9 of volume 1 of the Society's motion brief, M.C. had some unusual behaviours when she came into care. She initially walked an imaginary dog at school. She talked to herself and answered herself, did not make eye contact when she talked to people and stared at people. These behaviours disappeared after the first few months. M.C. had poor social skills but these have improved while in care.

[21] Child's Medical and Educational Needs

According to Ms. Blick's affidavit, M.C. had an articulation problem when she came into care. Her hearing was tested in July 2010 and she had mild hearing loss in her right ear and moderate hearing loss in her left ear. She had tubes inserted into her ears in February 2011 and has had medical follow-up to address her hearing loss. M.C. was to begin speech therapy but this has been delayed until her hearing improves. M.C. has received extra help at school since November 2010 to assist her with reading and math. She has had a math tutor and goes to an afterschool math club. M.C. has been referred for individual therapy to support her in dealing with issues related to her mother.

[22] Mother's Response to Concerns

Mother responded to these observations relating to school, the state of the apartment, the food provided for M.C., M.C.'s behaviour and M.C.'s medical needs with a bald denial, stating that the Society's concerns "about the past cleanliness of my house and M.C.'s attendance at school and her consumption of junk food have been significantly overstated. In any event, these are concerns that can be addressed and resolved without having to resort to a Crown wardship order."

[23] Psychological Assessment of Child

Dr. Denise Vallance, a psychologist, did an assessment of M.C. in September 2010. A copy of that report is included as exhibit A to Ms. Blick's affidavit. Dr. Vallance described M.C. as socially anxious and as presenting with a number of anxious preoccupations which "may be contributing to some of the concerns outlined by the foster mother, mainly her spacing or blanking out as M.C. tends to use dissociation. M.C. is feeling a sense of loss in relation to her mother and has feelings of sadness relating to this loss. She is also worried about her mother's condition. M.C. seems to see her mother as being scary at times. This was quite a consistent theme; she sometimes feels that her mother is attacking while other times she seems to be withdrawn and seems to stare blankly, which also may be perceived as rejecting to M.C."

[24] Mother's Response to Psychological Assessment

Mother did not respond to Dr. Vallance's report.

[25] Child's Expressed Wishes

M.C. has expressed the wish to remain in her foster placement. She expressed this wish to Dr. Berman and this is contained in the notes relating to his brief meeting with her.

Observations of the Access Visits

[26] Purpose of Access Observations

There are extensive observations of the access visits provided by various of the access supervisors. The observations are intended to support the Society's concerns about mother's mental health, her parenting ability, the quality of the relationship between mother and the child, and mother's ability to meet M.C.'s needs.

[27] Reduction of Access Visits

The access visits between mother and M.C. were originally twice per week for one hour each visit. The visits were reduced to once a week in or about February 2011. They were further reduced in May 2011 to a single one-hour visit every two weeks. This continues to be the schedule. The evidence before the court is that the child does not want to see her mother more often.

[28] Observations of Carolyn Golden

There are several affidavits from various social workers and social service assistants describing the access visits between mother and M.C. Dr. Berman, the psychiatrist who conducted a parenting capacity assessment pursuant to section 54 of the CFSA, also observed a visit and commented on his observations in his report. All of the Society staff who supervised access visits observed that there was little interaction between M.C. and mother during the access visits. Carolyn Golden, the family service worker, described the visits in her affidavit sworn October 17, 2011, which is in volume 2 of the Society's brief filed in this motion, as follows:

"The visits are extremely strained; there is little interaction between mother and daughter; Ms. W. tends to talk to herself and/or stare at objects instead of making eye contact with M.C.; she has difficulty making conversation with M.C. and engaging her in age-appropriate activities; Ms. W. struggles with reading and responding to M.C.'s cues."

She observed that mother does not talk much during the access visits and that M.C. is the one who tries to initiate conversation. She observed that M.C. often appears bored.

[29] Observations of Kate Blick

Kate Blick, the child service worker, supervised 17 visits. She summarized her observations of the access visits at paragraph 40 of her affidavit sworn October 16, 2011 as follows:

"My overall impression of access visits is that Ms. W. was quiet and withdrawn and did not initiate conversations with M.C. about any topic other than the food she brought or plans for her return home. Ms. W. did not ask M.C. about her day, her life, her school, her activities, her foster family (except once in February 25, 2010) or her feelings. Ms. W. avoided eye contact with M.C. and often sat away from her during visits and rarely focused her attention on M.C. At visits Ms. W. stared ahead, on the ground, stared at children's books, played with infant toys or Lego or coloured preschool colouring sheets even when M.C. was in a different part of the room. Ms. W. was emotionally flat during every access visit I supervised and was unable to respond to M.C.'s emotional needs. Any conversation during the visits was initiated by M.C. and this was very limited too."

[30] Observations of Sheri Macneall

Sheri Macneall, a social service assistant, supervised 29 access visits between M.C. and mother. Her observations are contained in her affidavit, sworn October 17, 2011 and filed at Tab 10 of volume 1 of the Society's brief. She observed that:

"There is very little interaction between M.C. and her mother during visits. I have intervened on an ongoing basis in an attempt to stimulate conversations and interaction and to suggest M.C. and Ms. W. sit together."

[31] Specific Example of Access Visit

Ms. Macneall described the visit of March 2, 2011, by way of example, as follows:

On March 2, 2011 Ms. W. arrived on time. M.C. and Ms. W. sat apart while M.C. ate the fast food her mother brought her. I attempted to initiate conversation between M.C. and Ms. W. Both were receptive and conversed with me but not with one another. I suggested to Ms. W. that she join M.C. at the table. Ms. W. complied; however, she remained silent. There was minimal eye contact, interaction or discussion between them during the visit. Ms. W. kept her jacket on for the duration of the visit and did not join M.C. for the meal. M.C. was offered a checkers game and craft activity. She approached me to say that checkers was too difficult for her mother so she would play alone instead. Ms. W. flipped through a children's book while M.C. did a paint activity by herself. They did not sit together at this time.

[32] Consistent Pattern of Observations

The observations of other access visits contained in Ms. Macneall's affidavit, sworn October 17, 2011, are consistent with these observations:

"There is little interaction between M.C. and mother. Mother does not make eye contact with M.C. There is very little conversation between M.C. and mother. There is no demonstration of affection or connection between M.C. and her mother. Mother has difficulty following simple rules in games such as Go Fish."

[33] Observations of Lydia Piecyk

Lydia Piecyk, a social services worker employed by the Society, supervised seven access visits between mother and M.C. Her observations of the visits are set out in her affidavit, sworn October 14, 2011, filed as Tab 11 of volume 1 of the Society's brief. Her observations of the visits that she supervised are consistent with the observations of the other supervisors. For example, Ms. Piecyk, when describing the visit of December 5, 2010, noted that they played a board game for a half hour engaging in conversation pertaining to the game:

"…M.C. sat beside Ms. W. attempting to engage Ms. W. in conversation. M.C. and Ms. W. moved to play a game. M.C. reminded Ms. W. of the rules if Ms. W. forgot them. They appeared to enjoy the game…. Ms. W. coloured independently at the table. M.C. looked through a selection of movies. When I asked if M.C. would like to watch a movie, Ms. W. responded for her. M.C. watched the movie on the couch as Ms. W. continued to colour."

[34] Observations of Dr. Berman

Dr. Berman, the assessor, observed two access visits. In his report, which is filed as exhibit O to the affidavit of Carolyn Golden, he described the visits. In the discussion portion of the report, he notes as follows:

"The interaction between mother and daughter is sparse and dead. M.C. tries occasionally to breathe life into the interaction but the lack of response and particularly the lack of empathy from her mother leave the child bored and frustrated, forced to make her own play, talking to herself, trying to create some activity to occupy her until the visit is over. Ms. W. engages in some independent activity, often child-like in content and usually not connecting with the activity of the child. When M.C. tries to engage her mother in a mutual activity, the mother takes over and M.C. is left to move toward some other independent activity."

[35] Reduction of Access Due to Quality

The reduction in access visits was due to the lack of quality of the visits and the stress they caused M.C. Mother has not applied to the court to have the visits increased since the last reduction in access.

[36] Mother's Response to Access Observations

Mother addresses the Society's concerns about the visits only in the broadest sense which amount to bare denials. She does not provide any evidence which disputes or contradicts the evidence of the access supervisors relating to the visits. She notes that the Society has reduced her access visits. She states:

"The CCAS alleges that the visits with M.C. were unsatisfying and 'strained'. I disagree. Most of the visits went well and M.C. was happy to see me. The visits were usually pleasant and relaxed despite the interferences of the CCAS workers and their generally negative attitude towards me."

Mother's Relationship with M.C. and Mother's Ability to Meet M.C.'s Emotional and Developmental Needs

[37] Dr. Berman's Assessment of Mother's Capabilities

In response to the question about mother's capabilities, skills and abilities most relevant to the child protection concerns, Dr. Berman wrote:

"…She (mother) does not represent physical danger to M.C. Nevertheless she lacks the sympathetic skills that would allow her to connect in a useful way with M.C. and to create a sense of security in the relationship. She cannot interact in a way that would advance her daughter's cognitive and emotional skills so if these deficits were not compensated through some other relationship M.C. would be left with a sparse home environment."

[38] Dr. Berman's Assessment of Attachment

He states further:

"It would seem that M.C. feels some sort of attachment to her mother but the nature of that attachment is not clear. M.C. has been quite disappointed in her mother for some time and seems no longer to want much of a relationship with her or to react with any comfort when she sees her. Ms. W. does not have the empathic relationship skills to encourage security and feelings of relationship in her daughter, leaving a sense of emptiness and disappointment in their interaction. This is clearly apparent in the reaction of M.C. to her mother as it contrasts with her reaction to anybody else in the environment. Ms. W., however, has no insight into this situation and believes that she has an excellent relationship with M.C."

[39] Consistency with Access Supervisor Observations

These conclusions are consistent with the observations of the access supervisors who noted the lack of interaction and communication between M.C. and mother.

[40] Mother's Failure to Provide Contradicting Evidence

Mother does not provide any evidence to contradict the observations of the access supervisors and the conclusions of Dr. Berman about mother's ability to meet M.C.'s emotional needs and her inability to act in a way that would advance M.C.'s cognitive and emotional development. She has not provided the court with any evidence to contradict the evidence before the court about her lack of emotional connection to M.C.

Mother's Mental Health

[41] Society's Evidence of Mental Health Concerns

The Society has submitted that there were concerns about mother's mental health at the time of the apprehension and that these concerns have continued throughout the period that the child has been in care. It is the Society's position that mother's mental health impacts adversely on her ability to parent M.C., such that returning M.C. to her mother would put the child at risk of harm. To support this, the Society relies on the following:

• Mother had two psychotic episodes that resulted in her being hospitalized in 2004, one in April and one in November. The children were apprehended as a result of both hospitalizations. M.C. was in the care of the Society as a result of the second hospitalization from November 2004 until March 2005. Mother appealed the involuntary hospitalization to the Mental Health Review Board and was successful. Mother signed Statements of Agreed Facts in which she admitted that she was taken to hospital as a result of her behaviour and protection findings were made. The children were in care for some months and were returned to mother's care subject to supervision. The supervision was terminated in 2006 and the file closed by the Society in March 2007.

• The opinion of Dr. Ng, psychiatrist, in the consultation report dated February 8, 2004, in which he notes that "Ms. W. experienced a brief psychotic episode in January of this year for the first time in her life. She appears to have returned to her baseline level of functioning pre-morbidity. At this point, she does not appear to have any ongoing psychiatric illness."

• The discharge report of Dr. Hudson, dated November 24, 2004, in which he reports: "Ms. W. was at first quite resistant to medication. She had symptoms consistent with schizophrenia, although one could construe her diagnosis as a delusional disorder." He states further: "Ms. W. suffers from a psychotic process. This is her second admission to hospital and she appears to respond well to Olanzapine treatment. Hopefully she will remain compliant with medication. If she remains compliant with Olanzapine, her long-term prognosis is excellent. If, however, she does not comply with medications than her long-term prognosis is guarded."

• The observations and concerns of the school about mother's mental health including her appearance, demeanour and behaviour

• The observations of the Intake worker about the condition of mother's apartment at the time of the apprehension

• The report from Dr. Dief, psychiatrist, dated June 22, 2010. He observed in his report that: "During the interview she wore sunglasses. She showed thought blocks. …She was very vague during the interview. I would recommend the Children's Lawyer to get parenting capacity assessment on the patient."

• The conclusion of Dr. Berman in the parenting capacity assessment in response to the question about mother's mental health: "Ms. W. has experienced brief psychotic breaks in the past but at present there is no obvious delusion or hallucination. Rather she has the characteristics of a chronic but no longer active schizophrenic patient with an impoverished affective and relational life relatively unresponsive to social cues and interaction. She might best be regarded as showing a mild chronic schizophrenia in remission but with widespread constriction of emotional and relational capacity severely impacting her ability to participate in normal social life. She shows no insight into her condition."

• The observations of the Society workers and case aides about her behaviour and appearance during the access visits and other contacts with the Society and the observations of her interaction with her daughter.

[42] Mother's Response to Mental Health Evidence

Mother in her affidavit denies both a significant mental illness and that her mental health puts the child at risk. She admits her two previous hospitalizations and the previous findings that the children were in need of protection but notes that the Society terminated their supervision order in 2006. It is her position that the Society would not have terminated its involvement in 2006 if there had been mental health concerns. She submits further that there is no evidence of any harm, physical or emotional to M.C. She submits that, given the Society's allegation of a long history of mental illness of a nature that creates risk of harm to the child, the child would have suffered harm. She disputes Dr. Berman's conclusions that she suffers from "mild chronic schizophrenia in remission" based on the brevity of his involvement and the lack of "specific reasons" for his conclusions.

[43] Mother's Counsel's Challenge to Dr. Berman's Diagnosis

Mother's counsel relies heavily on the fact that he disputes the diagnosis made by Dr. Berman of "mild chronic but no longer active schizophrenic patient with an impoverished affective and relational life relatively unresponsive to social cues and interaction. She might best be regarded as showing a mild chronic schizophrenia in remission but with widespread constriction of emotional and relational capacity severely impacting her ability to participate in normal social life. She shows no insight into her condition."

[44] Basis of Challenge to Dr. Berman's Report

The objection to the report and conclusion rests largely on the fact that, according to mother, Dr. Berman only met her once in a Tim Horton's for thirty minutes, that he observed only one access visit, that he did not conduct a complete psychiatric assessment, and that his conclusions are not consistent with that of the other mental health professionals who have been involved with mother over the years. He submits that the evidence before the court does not support the position of the Society that mother has a longstanding mental illness. It is the submission of mother's counsel that I ought not to accept the conclusion of Dr. Berman that mother suffers from schizophrenia in remission and that this diagnosis should be subjected to the test of cross examination.

[45] Dr. Berman's Methodology

Dr. Berman met with mother once or twice, observed one or two access visits between mother and M.C., met briefly with M.C., reviewed materials provided by the Society and spoke with the Society social workers. In his report he includes information about the meetings with mother, his meeting with M.C., his observations of the visits and the background and other information that he obtained from the Society. He provides his clinical observations as well as his analysis that supports his conclusions and opinion. Mother has not challenged his qualifications, the information that he relied on or his observations.

[46] Disputed Diagnosis

Given the submissions of mother's counsel, I agree that the diagnosis of mild chronic schizophrenia in remission and the specific conclusions that flow from same in Dr. Berman's report remain in dispute.

[47] Undisputed Observations

Mother does not dispute the observations of the teacher, the school principal, the various social workers and case aids or Dr. Berman about her behaviour, appearance, and the appearance of her house. She disagrees with the detailed and specific observations of the access supervisors and social workers about her lack of interaction with M.C. during visits and the poor quality of the visits but only with bald denials. She does not provide any particulars about any access visit which contradict the evidence provided by the Society.

[48] Finding on Mental Health

I find, based only on the undisputed evidence as set out above, and without including Dr. Berman's conclusions about mother's mental health and specifically his opinion that mother suffers from mild chronic schizophrenia in remission, but including his clinical observations of mother and the access visits, that mother has a significant mental illness which impacts on her ability to parent M.C. This finding is supported by mother's history as set out in the Statements of Agreed Facts, her previous hospitalizations, the evidence of the diagnosis of the previous psychiatrists, the report from Dr. Dief, the observations of the teacher and principal, the observations of the social workers and social service aids and of Dr. Berman about mother and her behaviour and interactions with M.C.

[49] Disputed Diagnosis Not Material

Given the above, the dispute about Dr. Berman's conclusions and diagnosis is not a material fact which requires a trial.

Analysis in Relation to the Finding

[50] Standard for Summary Judgment in Child Protection

Mother, when responding to the Society's motion for summary judgment, is required to put her best foot forward. Bald denials are not sufficient. Mother must put forward evidence which, when taken with the evidence presented by the Society, raises an issue which must be determined through a trial in order for the case to be determined. When considering a motion for summary judgment, the Court must then review all of the evidence as presented, without weighing evidence or determining issues of credibility, determine what material facts, if any, are in dispute and determine whether a trial is therefore necessary.

[51] Evidence Considered for the Finding

I have considered only evidence relating to the finding that M.C. is in need of protection. This includes evidence obtained after the apprehension including evidence about mother's presentation and interaction with M.C. during access visits. Mother received full and proper disclosure of this evidence and had an opportunity to respond in her affidavit materials. I therefore may include this evidence to support the finding. (CAS Brant v. T.(J.A.), 2005 ONCJ 302; also CAS of Hamilton-Wentworth v. K.R. and C.W., 2001 O.J. No. 5754)

[52] Finding of Mental Illness

I am satisfied, having considered the evidence and without weighing evidence, making determinations of credibility or drawing inferences, that the evidence supports the conclusion that mother has a significant mental illness. The observations of numerous witnesses and third parties, including the schoolteacher and principal, the various social workers and Dr. Berman, along with mother's history and the evidence of the various psychiatrists involved with her, all considered together support the finding that mother has a mental illness.

[53] Impact of Mental Health on Parenting

I find, in addition, having considered the undisputed evidence, that mother's mental health interferes with her ability to parent M.C. The observations of the access supervisors about the nature of the interaction between M.C. and her mother, along with the observations of Dr. Berman and Dr. Vallance, create a picture of a strained and poor relationship between Mother and M.C. Mother has demonstrated poor parenting skills during the access visits and an inability to connect with M.C. M.C. sees her mother once every two weeks for one hour and even this is strained and difficult for the child.

Finding

[54] Finding of Need for Protection

Having reviewed the evidence and without weighing evidence or determining issues of credibility, I find that the evidence before the court supports the finding that M.C. is a child in need of protection pursuant of sections 37(2)(b)(i) and (ii) and (g) of the CFSA. These sections are as follows:

(2) A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child.

[55] Evidence Supporting the Finding

I find that the following evidence supports the conclusion that M.C. is a child in need of protection by reason of the following:

Mother has a mental illness of such a nature as to impact on her ability to parent and which causes M.C. to be at risk of physical and emotional harm. The evidence which I rely on to support the finding of mother's mental health is:

• Mother's two previous hospital admissions, the diagnoses of the doctors on discharge, the circumstances that gave rise to those admissions, as contained the previous Statements of Agreed Facts, along with the previous findings that the children were in need of protection pursuant to section 37(2) of the CFSA.

• The observations of the school teacher and principal about mother's appearance and behaviour

• The observations of the worker about mother's apartment

• The observations of the access supervisors about mother's appearance and behaviour during the access visits.

[56] Impact of Mental Health on Parenting Ability

The impact of mother's mental health on her ability to parent is supported by the following:

• The evidence of the teacher and principal about mother not responding appropriately to M.C.'s special education needs, along with unexplained absences and lateness

• The observations of the foster mother about M.C.'s behaviour when she came into care

• The conclusions and opinion of Dr. Vallance contained in her psychological assessment

• The observations of the access supervisors about the lack of interaction between mother and child during the access visits, and mother's inability to respond appropriately to the child and engage the child during access visits.

[57] Consequences of Mother's Mental Illness

As a consequence of mother's mental illness, the child's educational, physical and emotional needs have not been met. M.C. is at risk of physical harm because of the dirty and unhygienic state of the apartment and because of her unhealthy diet which consisted largely of fast food.

Disposition

Analysis

[58] Evidentiary Standard for Disposition

In determining whether the motion for summary judgment in relation to the disposition should be granted I must consider all of the evidence to determine first what facts are not in dispute either because mother has not addressed them or because the response consists of bald denials and broad statements. Mother must put her best foot forward. She cannot rely on broad statements and bald denials. The court cannot weigh evidence, assess credibility or speculate.

[59] Evidentiary Path for Crown Wardship

The motion is seeking an order of Crown Wardship. Therefore, in order to determine if the evidence supports such a determination, the court must be satisfied that an order of Crown Wardship is the least intrusive disposition that is in M.C.'s best interests. I must follow the same evidentiary path or steps as set out by Justice Perkins in the case C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376:

1. The court must consider section 57 of the CFSA and determine whether the disposition which is in the child's best interests is the return to a party with or without supervision. Section 57(3) of the CFSA requires the court to look at less disruptive alternatives to removing the child from the care of the person who had charge of the child immediately before the intervention, unless the court finds that these alternatives would be inadequate to protect the child. Section 57(4) requires the court to look at community placements including family members before deciding to place a child in care.

2. If the court finds that the above is not in the child's best interests, then the court must decide whether a period of Society wardship or an order for Crown Wardship is in the child's best interests. Subsection 57(1) of the Act is limited by section 70, which provides that the court shall not make an order that results in a child aged younger than age six being a Society ward for a period exceeding twelve months and a child over age six being a Society ward for a period exceeding twenty-four months. This section informs the court as to what order it can make in cases in which the statutory time limits have been exceeded.

3. Section 70(4) of the Act allows for a single extension of the allowable period for Society wardship by a further six months, if such an extension is found to be in the child's best interests.

4. If an order of Crown Wardship is made, the court must consider section 59(2.1)(a) of the Act to determine whether an order of access should be made.

[60] Best Interests of the Child

The court must determine the appropriate disposition, having regard to the criteria set out in section 37(3) of the Child and Family Services Act and based on the child's perspective. (Catholic Children's Aid Society of Metropolitan Toronto v. C.M., 2 S.C.R. 165 (S.C.C.)). An order for Crown wardship is the most serious order a judge can make and the judge must therefore make such an order with caution, only on the basis of compelling evidence and after considering all other remedies. (Children's Aid Society of Hamilton-Wentworth v. G.(J.), (1997) 23 RFL 4th 79 (SCJ-Family Branch)).

[61] Minimum Standard of Parenting

The issue is not whether the children will be better off with parents other than the natural parents. If that were the criterion for a protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving a level of parenting care that is below the minimum standard tolerated in our community. (Saskatchewan Minister of Social Services v. E.(S.), [1992] 5 WWR 289 (Sask. QB)).

[62] Evidence Considered for Disposition

In determining the issue of disposition I have relied on the following evidence:

• The evidence of risk of harm that supported the finding that M.C. is a child in need of protection including the concerns about mother's mental health, the observations of the social workers and case aides, the observations of the teacher and principal

• The observations of the intake worker about mother's apartment, which also formed part of the evidence supporting the finding

• The observations of the access supervisors about the lack of interaction between M.C. and mother during access visits and the poor quality of the mother's parenting during the access visits

• Mother's refusal to acknowledge any concerns and refusal to take any steps to address the concerns of the Society which gave rise to the apprehension and the ongoing concerns of the Society about the access visits

• The ongoing concerns about mother's mental health based on her manner, demeanour, appearance and behaviour during the access visits

• The fact that the access visits have been reduced in frequency twice and now occur only once every two weeks and for one hour

• The expressed wish of M.C. to remain in care

• The evidence that the child has made progress in foster care

• The evidence of mother's plan

• The evidence of the Society's plan

[63] Section 37(3) Criteria

I have considered the criteria set out in section 37(3) of the CFSA.

Best Interests of Child

[64] Section 37(3) – Factors to Consider

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37(3); 2006, c. 5, s. 6(3).

[65] Application of Section 37(3) Criteria

Without weighing evidence or assessing credibility I have considered the evidence relating to disposition as follows:

• The undisputed evidence before the court is that M.C. has done well in care.

• The evidence before the court is that M.C. wishes to remain in the care of the Society and wishes to continue to reside in her current foster placement. Given M.C.'s age, the court must give weight to her wish to remain in care.

• There is no evidence presented by Mother or the Society that Mother has taken any steps in the period in which M.C. has been in care to address the issues which caused M.C. to be apprehended. Mother does not acknowledge that she has any mental illness or any mental health issues at all and, as a consequence, she has not sought treatment or taken any steps to ameliorate or reduce the risks which caused the apprehension and led to the finding that M.C. is a child in need of protection. Because of this lack of acknowledgment by mother, the risk of harm that mother's mental illness presented at the time of the apprehension continues.

• Mother is unable to connect with M.C. emotionally and is unable to meet the child's emotional and developmental needs. Mother does not acknowledge that there are any concerns about her relationship with M.C. or any concerns about the quality of the access visits. She is upset that the visits have been reduced but has no insight into the concerns of the Society which have caused the access visits to be reduced. There has been no change in the two years in which M.C. has been in care. In fact, the quality of the visits was so poor and the impact on the child such that the access visits have been reduced twice and now are short and only every second week. The last reduction was in May 2011. Mother has not taken any steps in the court to have the visits increased. The plan proposed by the Society would ensure that M.C.'s emotional and developmental needs were met.

• M.C. has not resided with mother since the apprehension and her access to mother has been reduced from two one-hour visits a week to one one-hour visit every two weeks. M.C. has very little contact with her mother. She has resided in the same foster placement since shortly after the apprehension and there is no plan to move her. Remaining in her current foster placement and school placement represents continuity of care for M.C.

• The Society's plan of M.C. remaining in her current foster placement as a Crown ward will allow her to move forward in her life with a permanent placement with a family that is able to meet her emotional, developmental and educational needs. Mother's plan of M.C. returning to reside with her without any change or any plan to address the issues which caused M.C. to come into care is not a plan which will meet this child's emotional, educational and developmental needs. The evidence before the court is that the school had concerns about mother not responding to M.C.'s special educational needs before and at the time of the apprehension and unexplained absences from school. Nothing has been done by mother to cause the court to believe that this will not continue to be an issue. Mother has demonstrated that she is unable to meet the child's emotional and developmental needs. Therefore the plan put forward by the Society is the better plan and is the plan which is most likely to ensure that M.C.'s immediate and long-term needs are met.

[66] Least Intrusive Disposition

Having considered all of the evidence and the criteria set out in section 37(3) of the CFSA I find that the least intrusive disposition that is in M.C.'s best interests is that she be made a ward of the Crown.

Crown Wardship – Access

Test

[67] Statutory Test for Access

The statute provides as follows:

[68] Section 59(2.1) – Access to Crown Wards

Section 59(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

[69] Onus on Parents

The onus to rebut the presumption against access to a Crown ward is on the parents. (Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (Ont. C.A.)). The parents have the difficult onus of establishing both portions of the test in subsection 59(2.1) of the Act. The Society does not have to prove that the child is adoptable. (Children's Aid Society of the Niagara Region v. J.C., [2007] O.J. No. 1058 (Ont. Div. Ct.)).

[70] Meaning of "Beneficial and Meaningful"

The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family) where he said:

(45) What is a "beneficial and meaningful" relationship in clause 59(2)(a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous." A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

[71] Current Relationship, Not Potential

It is not enough that the child enjoys the visits or that there are some positive aspects to the visits. The relationship as it exists at the time of the analysis and not potentially in the future must be advantageous and significant to the child. (CAS Niagara v. M.J., 2004 O.J. No. 2872 (SCJ)).

[72] Quality of Access Visits

Mother's access to M.C. has been reduced twice because of the poor quality of the visits. The evidence of the access supervisors and Dr. Berman is that the interaction between mother and M.C. is minimal. Dr. Berman described the interaction between mother and daughter during access visits as "sparse and dead." It was his observation that M.C. made efforts to "breathe life into the visits" but that mother's lack of response and lack of empathy left M.C. bored and frustrated. Carolyn Golden, the family service worker, described the visits as extremely strained, with little interaction between mother and daughter. She noted that mother talked to herself, did not make eye contact with M.C. and had difficulty making conversation with M.C. These observations are consistent with the observations of the other society social workers and access supervisors.

[73] No Beneficial and Meaningful Relationship

Given the undisputed evidence about the poor quality of the visits and the reduction of the frequency of the visits to one hour every two weeks I conclude that the test for meaningful and beneficial has not been met. I am not therefore required to consider the second part of the test or to consider the new amendments relating to access.

[74] Access to Sibling

There is no evidence before me to support an order of access to M., M.C.'s 21-year-old brother or about the quality of their relationship. I take no position as to whether an access order should be made and leave this to M.C.'s lawyer to determine whether this issue needs to be dealt with by me.

Extension of Time

[75] Section 70(4) – Extension of Society Wardship

Section 70(4) allows the court to extend the period of 24 months of society wardship set out in section 70(1) for a child over six by a period of up to six months if it is the child's best interests to do so.

[76] Extension Not Appropriate

I am satisfied that such an extension is not appropriate in this case. I find based on the undisputed evidence that Mother does not acknowledge that she has a mental illness; she does not acknowledge that there are any concerns or issues with the access visits. According to the undisputed evidence mother has not taken any steps to address any concerns. There has been no progress in the period in which this child has been in care. In fact, the contact between mother and daughter has been reduced. There is therefore no reason to assume that an extension of time would lead to any change.

Kin or Community Placement

[77] Alternative Placements

There is no evidence before the court of any other possible placement for this child.

Conclusion

[78] Summary Judgment Granted

I have reviewed the evidence presented on this motion. I have considered the test set out in Rule 16 of the Family Law Rules. Having considered the evidence and without weighing evidence or assessing credibility, I find that there is no genuine issue for trial relating to either the finding or disposition.

Order

[79] Order

An order will go in the following terms:

(a) The Society's motion for summary judgment is granted

(b) The child is found to be in need of protection pursuant to subclauses 37(2)(b)(i), (ii) and (g) of the CFSA.

(c) The child will be made a ward of the Crown and placed in the care and custody of the Catholic Children's Aid Society of Toronto.

Released: February 10, 2012

Signed: "Justice Waldman"