WARNING

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

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

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court File and Parties

Court File No.: Brantford C80/12 T

Date: 2012-11-20

Ontario Court of Justice

Between:

The Children's Aid Society of Brant Applicant

— And —

S-A. (A.) and A. (V.) Respondents

Before: Justice K.A. Sherwood

Heard on: August 29, 2012

Reasons for Judgment released on: November 20, 2012

Counsel:

Richard M. Cook — for the applicant society

David Maltby — for the respondent S-A. (A.)

Respondent A. (V.) — noted in default on April 23, 2012

Alan Giles — for the Office of the Children's Lawyer, legal representative for the child A.A.

SHERWOOD J.:

Background and Procedural History

[1] The respondents are the parents of the child A.A. born in 1997, who is the subject of these proceedings. They are also the parents of A.A.'s older brother S.A., who is not a subject of these proceedings as he was over the age of 16 when the application was commenced. S.A. presently resides with the mother A.S-A. The respondent father V.A. and the mother separated approximately twelve years ago; however, the father, who works in Toronto, often comes on weekends to stay in the mother's home in Brantford and visits with the children there.

[2] In March 2012 the Children's Aid Society of Brant (the Society) commenced an application under the Child and Family Services Act (the "Act") seeking protection findings under s. 37(2)(b)(i)(ii), and (g), and an order of Society wardship for a period of six months with access by the respondent parents at the discretion of the Society as to location, duration, frequency and supervision. The protection application was precipitated by historical and ongoing concerns that the Society has with the mother, by incidents that occurred on February 13-14, 2012, resulting in a fire at the mother's home in which she was severely burned and hospitalized, and her subsequently leaving the hospital to resume the care of the two children. The concerns of the Society included: mother's recurring history of alcohol and drug related problems, mental health issues, historical involvement with children's aid societies in several jurisdictions since 1997, domestic conflict and violence between the parents and between parents and children, father's failure to protect the child and his minimization of the risks posed by the mother, and the parents' failure to engage consistently and effectively in services to address such protection concerns.

[3] The child A.A. was apprehended by the Society on March 8, 2012 and on consent, a temporary without prejudice order was made on March 12, 2012 placing her in the temporary care of the Society. Following a contested hearing on April 23, 2012, Justice Thibideau made a temporary order placing the child A.A. in the temporary care and custody of kin, her step-aunt and uncle T.G. and W.G., under the supervision of the Society on specified terms and conditions and providing for access by the respondent parents at the discretion of the Society as to supervision, location, duration and frequency, and subject to specific terms and conditions concerning such access.

[4] Pursuant to the Society's Plan of Care, their intention is to work with the mother to ensure that she accesses alcohol/drug and mental health counselling, continues to comply with the treatment plans of her psychiatrist and family doctor, and monitor her compliance by random drug and/or alcohol testing. In the interim the Society will continue to supervise A.A.'s placement with kin, and facilitate access between A.A. and her parents. The respondent mother has filed an Answer and Plan of Care in which she disputes the Society's allegations, denies that she has abused alcohol and/or drugs, claims that she is dealing appropriately with any mental health issues, and seeks the return of the child to her care.

[5] The Society has brought a motion for summary judgment seeking identification findings pursuant to section 47(2), protection findings pursuant to section 37(2)(b)(i)(ii) and (g), and an order that the child be placed with kin, T.G. and W.G. for a period of six months subject to supervision by the Society and with access by the respondent parents at the discretion of the Society as to supervision, location, duration and frequency and subject to specific terms and conditions concerning such access. Contemporaneously the respondent mother has brought a motion seeking the temporary placement of the child in her care and custody subject to reasonable terms of supervision by the Society. On consent, these two motions proceeded by way of a blended hearing on August 29, 2012.

[6] The respondent father, V.A., was noted in default on April 23, 2012 and has not participated in these proceedings. V.A. was present at the hearing of these motions and with leave of the court briefly stated his position as supporting the relief sought by the mother.

[7] If the society is successful on all counts of its motion, then the respondent mother's motion is also adjudicated as the temporary relief she seeks would be supplanted by the final order requested. If the society's motion is unsuccessful, even if only on the issue of disposition, then the mother's motion must be considered and determined, as it seeks a variation of the existing temporary order.

[8] The following pleadings and evidence were reviewed in the determination of these issues:

• Society's Protection Application issued March 13, 2012
• Affidavit of Justine Wiebe (child protection worker), sworn March 12, 2012
• Affidavit of A.S-A. (respondent mother), sworn April 16, 2012
• Affidavit of Justine Wiebe (child protection worker), sworn April 23, 2012
• Reasons for Judgment on Temporary Care and Custody Hearing, dated April 23, 2012 (Justice Thibideau)
• Affidavit of Jackie Browning (child protection worker), sworn July 24, 2012
• Society's Plan of Care dated July 26, 2012
• Affidavit of A.S-A. (respondent mother), sworn August 20, 2012
• Affidavit of T.G. (kin placement), sworn August 20, 2012
• Affidavit of Jackie Browning (child protection worker), sworn August 24, 2012

Identification Findings Pursuant to Section 47(2)

[9] On consent, the section 47(2) identification findings with respect to the child were made during the hearing of the motions.

Society's Motion for Summary Judgment

Legal Framework for Summary Judgment

[10] In a child protection case a party may under Rule 16 of the Family Law Rules bring a motion for summary judgment for final order without a trial on all or part of any claim made or any defence presented in the case. The party making the motion must file affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. In response to the evidence served by the party making the motion the responding party may not rest on mere allegations or denials but shall set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial. If there is no genuine issue requiring a trial, the court shall make a final order. If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. If the court does not make a final order, or makes an order for the trial of an issue, the court may specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial, and impose conditions, such as security for costs, if appropriate.

[11] On a motion for summary judgment the onus is on the Society to show that there is no genuine issue for trial, and the court is required to take a hard look at the merits of the case to determine whether there is a genuine issue requiring a trial. See Children's Aid Society of Hamilton v. M.N..

[12] Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes a disagreement about a material fact, requiring a trial. See Children's Aid Society of the Regional Municipality of Waterloo v. T.L.H., 2005 ONCJ 194.

[13] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial must be insufficient to defeat a claim for summary judgment. See Children's Aid Society of Metropolitan Toronto v. A.(M.).

[14] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that he or she faces some better prospects than what existed at the time of the society's removal of a child from their care and has developed some new ability as a parent. See Children's Aid Society of Toronto v. R.H..

[15] Where the evidence demonstrates that the moving party would undoubtedly succeed in obtaining the order it seeks at trial, or where there is no realistic possibility of an outcome at trial other than that sought by the moving party, there is no genuine issue requiring a trial. See Children's Aid Society of Toronto v. E.L.L., Children's Aid Society of the Niagara Region v. S.C., and Children's Aid Society of Ottawa v. N.C..

Statutory Framework for Protection Applications

[16] Pursuant to Part III of the Act, a Society may apply to a court for an order that a child is in need of protection within the criteria enumerated in s. 37(2). Section 47 of the Act directs that where such an application has been brought, that the court shall hold a hearing to determine the issue of whether the child is in need of protection, and if the child is found to be in need of protection, make a dispositional order under s. 57 or s. 57.1, in the best interests of the child. The orders that may be made under s. 57 are limited to: (1) placement of the child in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than twelve months; (2) that the child be made a ward of the society and placed in its care and custody for a specified period not exceeding twelve months; (3) that the child be made a ward of the Crown and be placed in the care of the society; or (4) that the child be made a ward of the society for a specified period and then be returned to a parent or another person for a period or periods not exceeding an aggregate of twelve months. Under s. 57.1 the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. Section 37(3) sets out the circumstances to be taken into account in determining the best interests of a child. In determining which order to make the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under Part III of the Act [see section 57(2)], and the court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention unless the court is satisfied that alternatives that are less disruptive to the child, would be inadequate to protect the child [see section 57(3)]. Where the court determines that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention, the court shall, before making an order for society or Crown wardship, consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family [see section 57(4)]. Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under Part III of the Act [see section 57(9)].

Four-Stage Analysis for Protection Applications

[17] A protection application involves four stages, as follows:

1. The court is required to determine whether the child is in need of protection within the meaning of s. 37(2) of the Act.

2. If a protection finding is made, the court must determine if further intervention through a court order is necessary to protect the child in the future.

3. The court must then make a determination regarding the placement of the child.

4. Finally, the court must decide the issue of access to the child.

(See Catholic Children's Aid Society of Hamilton v. A.(M.), 2012 ONSC 267)

[18] To succeed in obtaining the final order that it is requesting the Society, on its evidence, must establish that there is no genuine issue requiring a trial with respect to the following determinations:

1. The child is in need of protection within the meaning of s. 37(2) of the Act;

2. Intervention through a court order is necessary to protect the child in the future;

3. That the order sought by the Society, being placement of the child with kin for a period of six months subject to supervision by the society, with access to the respondent parents on the terms and conditions specified, is the least disruptive course of action consistent with the best interests, protection and well being of the child.

[19] If the Society can make this prima facie case, then the mother must through her evidence set out specific facts showing that there is a genuine issue for trial. If the court is satisfied that there is a genuine issue or issues requiring a trial then it must direct a trial on those matters. If the court is satisfied that on all of the evidence that there is a basis for the relief sought by the Society and that there is no genuine issue requiring a trial then it must grant the summary judgment requested.

1. Protection Findings

Statutory Provisions

[20] The society is requesting protection findings under s. 37(2)(b)(i)(ii) and (g) which provide as follows:

s. 37(2) A child is in need of protection where,

(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.

For clarification, subclause (f) provides:

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results 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;

Analysis of Section 37(2)(b)(i) and (ii) Findings

[21] Protection findings under section 37(2)(b)(i) and (ii) were conceded by the respondent mother and OCL counsel, and I am satisfied that the evidence supports protection findings under those subsections, and that there is no triable issue with respect to this conclusion. Specifically these findings are based upon the evidence, as acknowledged by the mother, that: (i) she has had a long-standing problem with alcohol abuse that has caused damage to her family; (ii) there has been significant conflict within the home, particularly between her and the children's father when he is visiting, and between her and the older child, S.A., which have resulted in numerous police interventions; (iii) that on February 14, 2012 she had put herself in such a condition that she inadvertently set her home on fire endangering her own life and causing significant personal injuries to herself; (iv) she has longstanding mental health issues which will require ongoing treatment; (v) that her alcohol abuse and mental health issues will never be completely resolved; and (vi) that the respondent father, although he is in the home on a regular basis, has in the past been a participant in the conflict within the home, and has not put forward a plan to care for, and/or protect the child. On this undisputed evidence there is a real, not just speculative, risk that the child is likely to suffer physical harm inflicted by the mother or caused by or resulting from the mother's failure to adequately care for, provide for, supervise or protect the child, or from a pattern of neglect in caring for, providing for, supervising or protecting the child. Accordingly the child A.A. is a child in need of protection within the meaning of section 37(2)(b)(i) and (ii).

Analysis of Section 37(2)(g) Finding

[22] The respondent mother contests the requested finding under s. 37(2)(g) arguing that there is not sufficient evidence to support a finding that there is a risk that the child is likely to suffer emotional harm of the kind described in subsection (f). For a protection finding to be made under subsection 37(2)(g) there must be a real, not speculative, possibility that the child will suffer emotional harm demonstrated by the symptoms described in subsection (f). In this case there is no evidence before the court that the child is, or had been, exhibiting any symptoms of anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development. To the contrary, the child at age 15 is doing well at school, appears to be well-grounded, outgoing and engaged in appropriate extracurricular activities. Further, there is no expert evidence before the court to verify a link between the acknowledged issues of the mother and a conclusion that they cause the child to be at risk to likely suffer such emotional harm. While the evidence of the mother's long standing problem of alcohol abuse and the historical exposure of the child to adult to adult, and adult to child, conflict in the home, may raise a concern about what impact these issues may have on the child, there is no evidence, expert or otherwise, to sufficiently establish, beyond the realm of speculation, the necessary link to the risk of emotional harm. Accordingly on all of the evidence I am unable to conclude that the child is in need of protection under subsection 37(2)(g).

2. Is a Court Order Necessary?

[23] While the Society acknowledges that there have been some positive changes in the mother since the fire in February of 2012, it argues that her addictions, mental health issues and history of exposing the child to conflict within the home, are so significant and longstanding, and pose such a degree of risk to the child, that the child continues to be in need of protection and that a court order, specifically a period of kin placement subject to supervision by the Society, is necessary to adequately protect the child. It is the Society's position that the mother needs to demonstrate a longer period of stability, abstinence from alcohol, appropriate treatment of mental health issues, and co-operation with the Society before the child can safely be returned to her care.

[24] The respondent mother argues that the fire was a turning point for her, bringing to her the realization of her problems, particularly with alcohol abuse, and that accordingly there is a sharp contrast between her situation before February 14, 2012 and after. She notes that since the fire she has been abstaining from alcohol, accessing appropriate services to address her mental health issues and support her sobriety, and that there is no evidence of any alcohol abuse, or of continued conflict in the home since then. She points out that her son S.A., who has continued to reside with her, reports that she is a changed person, and does not disclose any further incidents of conflict in the home, or that any further police intervention has been required. On the basis of these significant changes the mother is requesting that the child be returned to her care. She does concede that the return of the child should be subject to supervision by the Society and as such is acknowledging that a court order is necessary to adequately ensure the protection of the child.

[25] The mother in her affidavit sworn August 20, 2012 acknowledges that her issue of alcohol abuse and her mental health problems will never be fully and completely resolved, and that she realizes her dealing with these issues is going to be a lifelong progression. The nature of the mother's longstanding problem with alcohol is such that there will continue to be a possibility that she may relapse and again pose a significant risk to the child. This speaks to the need for a court order to ensure the ongoing involvement of the Society to monitor the child's placement and to facilitate a safety plan for the child in such event. Even if the mother has made significant gains in dealing with her alcohol issue, is consistently maintaining appropriate treatment for her mental health issues, has now learned from the seriousness of the fire and her resulting injuries, and even if she has made significant gains in resolving issues of conflict within the home, these issues are significant enough, sufficiently longstanding, and of such a nature that a court order is necessary to protect the child for the foreseeable future, and likely until she is at least sixteen years old.

3. Disposition

[26] The Society is requesting an order placing the child in kin care for a period of six months subject to supervision by the Society, with access by the respondent parents on specified terms and at the discretion of the Society as to location, duration, frequency and supervision. In contrast the respondent mother is seeking the return of the child to her care subject to supervision by the Society.

[27] The Society maintains that the mother, in addition to her issue with alcohol, has a substance abuse problem. Specifically it alleges that the mother abuses prescription medication. The Society asserts that on March 1, 2011 the mother was taken to the hospital following a suicide attempt by alcohol and pills, and that she was admitted to the hospital under the Mental Health Act. It also relies on a verbal report from Dr. Sharma to the Society's worker, diagnosing the mother as having panic and anxiety disorder, benzodiazepam abuse and alcohol dependence, and that in the past, he would tightly regulate A.S-A.'s prescription for antidepressant medication, however she would often come up with various excuses as to why she needed more medication than she was prescribed.

[28] The Society acknowledges that the mother has made some gains since the fire in February 2012, but claims that she has not demonstrated sufficient progress in addressing her issues such that it would be in A.A.'s best interests to be returned to the care of the mother at this time. Specifically the Society wants a six month kin placement order and expects that within that period: (1) mother will attend regularly with her psychiatrist and have the psychiatrist, as opposed to her family doctor, administer her psychiatric medication; (2) mother will get off pain medication; (3) mother will continue her counselling with St. Leonard's and provide reports of same to the Society; (4) the Society will do drug and alcohol testing of random hair follicle samples of the mother and the results will be clean; (5) there will be no further family issues; (6) mother and father will take relationship counselling in recognition that to some extent they are still in a form of relationship; (7) there will be open communication between the Society and St. Leonard's to be aware of their concerns and concerning mother's progress; (8) there will be a demonstrated abstinence by mother from alcohol and substance abuse; and (9) the respondents will participate in a family planning meeting to affect a reintegration of the child to the mother's care.

[29] In answer to the Society's plan and the enumerated expectations to be achieved before the Society believes that the child could be adequately protected if returned to the care of the mother, the mother's position and evidence responds as follows:

(1) Mother is meeting with her family doctor, Dr. Trevor, consistently every two weeks, and has met with her psychiatrist Dr. Sharma on April 20, 2012 and again for follow up on June 1, 2012. There is nothing in Dr. Sharma's most recent letter dated June 13, 2012 indicating that he wishes or needs to meet with her more often, or that she has been missing any scheduled appointments. There is nothing in Dr. Sharma's letter to indicate that it is inappropriate for Dr. Trevor to be prescribing her mental health medication, that Dr. Trevor has inappropriately prescribed such medication, that mother has abused her prescribed medication, or that he would prefer to prescribe such medication himself. Counsel for the respondent mother urges the court to prefer, as best evidence, the correspondence of Drs. Trevor and Sharma over the hearsay report offered by the Society's worker as to conversations with the doctors.

(2) There is no evidence to substantiate the Society's position that mother should get off of pain medication. A.S-A. sustained serious injuries requiring ongoing medical treatment, and any decision regarding her required medication is better left to the expertise of her attending physicians. The Society has not put forward any evidence to indicate that it is the opinion of either of the mother's doctors that she should get off of her pain medication. If the medication is appropriately prescribed, and there is no evidence that she is using it other than according to her prescription, or that it is otherwise adversely affecting her ability to care for and protect the child, then this is a non-issue.

(3) Mother is continuing her counselling with St. Leonard's, has provided releases for the Society to exchange information with St. Leonard's, and reports are being provided by St. Leonard's as to her attendance and progress. A.S-A. has produced correspondence from Maria Garcia, her counsellor at St. Leonard's dated May 22, 2012 and August 8, 2012, describing the programs that she has engaged in with that agency and in particular her regular attendances for treatment and therapy since the fire. Ms. Garcia's reports confirm that she is not recommending that A.S-A. should attend group therapy, but does recommend that she continue with individual counselling.

(4) The mother has co-operated to date in providing urine samples for alcohol and drug screening. Since February she has provided three samples, one at the request of Dr. Trevor, one at the request of Dr. Sharma, and the third at the request of the Society, the results of which have all been negative for alcohol, or drugs other than those prescribed to her. Mother is consenting to provide hair follicle samples for testing if and when requested by the Society.

(5) The Society has not presented to the court evidence of any further family conflict or police involvement with the family since the fire in February 2012. The mother has provided her sworn affidavit that there has not been any such family issues, and this is corroborated by the letters that she has provided from the respondent father, her son S.A. and the child A.A.

(6) The respondent mother does not address in her evidence or in submissions the Society's expectations that she and the child's father take relationship counselling.

(7) St. Leonard's has provided reports and communication to the Society worker as noted above and accordingly there is a means for open communication with the Society so that they can be aware of St. Leonard's concerns and regarding the mother's progress in dealing with issues identified by the Society.

(8) The Society has not presented evidence to refute the mother's evidence that she has abstained completely from alcohol and/or drug abuse since the fire of February 2012. With respect to the Society's assertion that she abuses her prescribed medication, the mother disputes that she has ever abused her prescribed medication or that she has a substance abuse problem apart from her acknowledged issue with alcohol. She claims that she has only used her prescribed medications strictly in accordance with her prescriptions. On this point mother's counsel argues that the letters from Dr. Sharma and Dr. Trevor, which do not include the statements and conclusions attributed to them by the Society's worker's account of discussions with the doctors, ought to be preferred over the hearsay report of the Society's worker.

(9) The respondent mother has agreed to participate in a family planning meeting to affect a reintegration of the child to her care. The current kin care-givers are in support of returning the child to the mother's care, are in frequent contact with the mother, and could participate in the proposed family planning meeting and any safety plan to be developed for the child's return to the mother's care.

[30] Although the Society wants the mother to wean herself off of her prescribed medication, they have not put forward sufficient evidence to establish on the balance of probabilities that the mother has a drug abuse issue, and if so, how it has negatively affected her parenting ability or places the child at risk. The Society has not provided any expert evidence on this issue and accordingly the question of whether or not the mother should be on prescription medication for her mental health issues, pain or any other condition is better decided by her attending physician and/or psychiatrist. Further, neither Dr. Sharma nor Dr. Trevor confirms in their letters that the mother has a drug problem or that she is abusing her prescribed medication.

[31] There is a need on a summary judgment motion for the Society to put forward a full and complete evidentiary record. If the Society has not advanced evidence to prove its assertions that the mother has a substance abuse problem, that there is a need for the mother's psychiatrist to prescribe her mental health medications, or that she should be weaned off of her prescribed pain medication, or to contradict the mother's evidence that she has abstained absolutely from alcohol, then I must conclude that such evidence does not exist, and cannot on a summary judgment motion infer or speculate otherwise.

[32] Clearly the mother has already complied with much of the Society's plan and expectations. Further, since the temporary Order of April 23, 2012, she has demonstrated an ability and willingness to work co-operatively with the Society and has stated her commitment to continue to do so under a supervision order. What remains at issue is whether mother's compliance and cooperation with the Society has been sufficient and of such duration to support the return of the child at this time under an appropriate supervision order. On this basis the extent of mother's progress in finally coming to accept that she has an alcohol addictions problem and mental health issues, in engaging in appropriate counselling and ongoing treatment to address those problems, and in maintaining sobriety, apparently removing conflict from the home, and in exhibiting better parenting abilities, demonstrates that there is a genuine issue for trial with respect to whether an order for continued kin placement is necessary, or could the child be adequately protected under a supervision order if placed back in the care of the mother. As such the disposition relief sought by the Society is not a foregone conclusion as there is a genuine issue requiring a trial.

[33] Having taken the required good hard look at all of the admissible evidence, I am satisfied that there is no genuine issue requiring a trial with respect to a finding that the child is a child in need of protection pursuant to section 37(2)(b)(i) and (ii) of the Act, but that there is a triable issue with respect to the requested finding under section 37(2)(g). Further there is no triable issue with respect to whether the child currently remains a child in need of protection and that a court order is necessary to provide for the adequate protection of the child, but there is a triable issue with respect to the disposition of kin placement subject to Society supervision as proposed by the Society.

[34] As the Society has not been successful in all aspects of its summary judgment motion, I must now consider the mother's motion for a variation of the existing temporary order.

Respondent Mother's Motion for Variation of Temporary Order

Legal Framework for Variation of Temporary Orders

[35] The respondent mother's motion is brought under section 51(6) of the Act seeking a variation of the temporary order of Justice Thibideau dated April 23, 2012, to provide that the child be temporarily placed in her care and custody subject to supervision by the Society.

[36] Subsection 51(6) provides that the court may at any time vary or terminate an order made under subsection 51(2). A hearing conducted under section 51(6) involves a two-stage process. Firstly the moving party must establish that there has been a material change in circumstances. If there has not been a material change in circumstances then the application need not be considered further. If, however the moving party has established that threshold requirement, the court should then proceed to the second stage which involves considering whether there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by a supervision order. See Children's Aid Society of the County of Simcoe v. B.(B.J.). See also C.A.S. v. L.(E.).

Material Change in Circumstances

[37] With respect to the threshold question of whether or not there has been a material change in circumstances, the mother argues that the evidence establishes a number of material changes. She now recognizes her significant issue with alcohol and the harm that it has in the past occasioned to her and her children. The acceptance of this reality as stated in her affidavit sworn on August 20, 2012 is in sharp contrast to her earlier affidavit of April 23, 2012 in which she had stated that she did not have addictions issues, that she could control whether she drank or not, that alcohol had nothing to do with the February 14, 2012 fire, that she has never in her life been dependant on alcohol to get through the day, blamed the various family conflicts on the others involved, and generally denied that alcohol played any role in such conflicts and the resulting police interventions. Secondly, she has on all accounts abstained absolutely from alcohol since the fire of February 2012 and there is no evidence before the court to contradict this. Thirdly, there has been a significant reduction, if not eradication of the conflict in the home, and again there is no evidence before the court to contradict this. And finally, she is now accessing appropriate services and demonstrating a greater level of cooperation with the Society as evidenced in her compliance in submitting to drug/alcohol testing when requested and ensuring that the Society has the appropriate releases to engage in the exchange of information with her service providers and attending physicians.

[38] The Society, while acknowledging that the mother has made some progress in addressing the Society's concerns, takes the position that she has not done so for a sufficient period of time to constitute a material change in circumstances.

[39] The Society has not contradicted the evidence of the respondent mother as to her maintained abstinence from alcohol, significant reduction of conflict within the home environment, or that she is now accessing appropriate medical treatment and counselling services, and demonstrating a commitment to be more co-operative with the Society. These issues are at the core of the Society's protection concerns and were the basis for the decision of Justice Thibideau on April 23, 2012 when he concluded that the mother's abuse of alcohol, her minimalization of her alcoholism, and her inability to recognize her problem with alcohol and to deal with it, clearly placed the child at risk of physical harm, either from the conflict within the home, or the mother's alcohol induced neglect as exemplified by the fire in February 2012. I am satisfied that on all of the evidence the mother has met the threshold test of establishing that there has been a material change in circumstances sufficient to warrant the court reviewing the temporary care and custody order of April 23, 2012.

Best Interests of the Child and Disposition

[40] There having been a material change in circumstances, and having previously found that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm, I must now engage in a determination of the least disruptive temporary order that will be sufficient to ensure the adequate protection of the child pending a final determination of disposition, and is consistent with the best interests, protection and well-being of the child.

[41] The best interests of a child on a hearing under the Act are to be decided through a balancing of the considerations set out in section 37(3), including the child's physical, emotional and psychological needs and level of development, importance of developing a positive relationship with a parent and secure place in a family, continuity of care, the merits of proposed plans for the child's care, the child's views and wishes, and the potential risk of harm to the child.

[42] A.A. is now 15 years old. Despite the turmoil previously in her life arising from the effects of her mother's alcohol problem, mental health issues and the conflict within the home, A.A. has developed into a young lady who is somewhat mature for her age, excels in school, is accomplished in extra-curricular activities and appears to be reasonably well adjusted. A.A. has developed a good relationship with her current kin care providers, T.G. and W.G. and they maintain frequent and regular contact with A.S-A. and would be able to regularly monitor the ongoing family dynamics. A.A. has clearly and consistently reported to the Society's worker, her mother, her kin caregivers and to her counsel that she wishes to return to her mother's care as soon as possible, and it is clear that she has a strong emotional tie to her mother and brother and a desire to be part of that family unit. Soon, A.A. will be of an age when she can determine on her own where she will reside and given her present wishes it is likely, if not a certainty, that she will opt to return to her mother. Delay in allowing her to return home may well create in her a resentment of the Society and their intervention, and thus limit their ability to assist in and supervise that reintegration. Given A.A.'s age, level of development and maturity, and the safety net afforded by the proximity of the current kin care providers, the potential risks of returning her to her mother's care at this time, under appropriate terms of supervision, should be minimal. On these considerations I am satisfied that the child could be adequately protected by the terms and conditions of a supervision order if returned to the temporary care of the mother, and that it would be in the best interests of the child to do so.

[43] Effective supervision by the Society will require conditions that will compel the mother to continue to effectively engage in recommended support services, allow for the ready exchange of information between service providers and the Society, promote the mother's continued abstinence from alcohol, and provide effective means for the Society to monitor her continued progress and to detect any signs of relapse with respect to alcohol use and/or conflict within the home. The prospects of success will be enhanced by all parties, including the child's father, V.A. and the current kin care providers, participating in a family planning meeting to develop an appropriate safety plan in the event of any such relapse. Accordingly there should be a relatively short transition period to allow for a family planning meeting prior to the return of A.A. to her mother's care. During this transition period A.A.'s access with the mother should be increased to allow for a planned transition and to alleviate the stress of an immediate change in both of the mother's and daughter's routines.

Order

[44] Accordingly the temporary order of April 23, 2012 will be varied to provide for the placement of the child A.A. in the temporary care of the respondent mother, subject to the supervision of the Children's Aid Society of Brant, and with access by the respondent father at the discretion of the Society as to location, duration, frequency and supervision. In the circumstances, and to enhance the likelihood of success, the change in placement will not take place until December 7, 2012, and in the interim the child's unsupervised access with the mother, continuing on the same terms as the order of April 23, 2012, will be immediately expanded to include, as a minimum, overnight access each Friday from after school until Sunday evening, and the Society will facilitate and arrange a family planning meeting to plan for the return of the child to the mother's care and to develop a reasonable safety plan, should there be any recurrence of mother's alcohol problems or conflict within the home. In addition to the terms provided for in the April 23, 2012 order, the transitional period and the ensuing temporary placement of the child in mother's care will be subject to the following additional terms:

1. There will be no alcohol in the home of the mother;

2. The mother will abstain absolutely from the consumption of alcohol;

3. The mother will abstain absolutely from any controlled drugs and substances except strictly in accordance with a valid medical prescription;

4. The mother shall not engage in any adult to adult, or adult to child conflict in the presence of the child, or allow anyone else to do so;

5. The mother shall not engage in any physical discipline of the child;

6. The child shall be allowed to contact her step-aunt T.G. and/or step-uncle W.G. at any time that she wishes, and with the consent of the step-aunt and step-uncle shall be allowed to attend at their home, and if she wishes, to stay there for such extended period of time as may be necessary for the issue of the child's continued temporary placement to be returned to court;

7. The mother will remain under the care of her family physician and psychiatrist and will attend for any appointments as recommended by them, and comply with any treatment plans recommended by them;

8. The mother will ensure that she has provided sufficient consents to the release of information so that the Society may exchange information with her physician, psychiatrist, and counsellors to provide them with the Society's concerns and to verify their diagnoses, prognosis and her compliance with any recommended treatment programs;

9. The Society and OCL counsel may have announced and unannounced access to mother's home and the child. Such access to the child may occur at the mother's home, the child's school or elsewhere;

10. Any breach of this order will be sufficient cause for the Society to return the issue of temporary care and custody to the court on an emergent basis.

[45] The protection application will be adjourned to a date to be set by the Trial Co-ordinator for a Settlement Conference on the remaining issues: (1) whether the child is in need of protection within the meaning of section 37(2)(g); and (2) final disposition pursuant to section 57 or section 57.1, including access.

[46] There shall be no order as to costs.

Released: November 20, 2012

Signed: Justice K.A. Sherwood