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.: C242/08

Date: November 20, 2012

Ontario Court of Justice

Between:

The Children's Aid Society, Region of Halton Applicant,

— AND —

K.C.M. (Mother) N.J.M. (Father of L.M.) J.C.W. (Father of E.M.) Respondents

Before: Justice R. Zisman

Heard on: October 29, 2012

Reasons for Judgment released on: November 20, 2012

Counsel:

• Diane Skrow for the applicant society
• Lauren Speers for the respondent K.C.M. (mother)
• Darryl Hotz for the respondent N.J.M. (father of L.M.)
• No appearance by or on behalf of J.C.W. (W.), even though served with notice
• Kristen Knoepfli for the Office of the Children's Lawyer, legal representative for the children

ZISMAN, J.:

INTRODUCTION

[1] This is a summary judgment motion brought by the Children's Aid Society, Region of Halton ("the society") with respect to the children, L.M. ("L.M.") born […], 2010 and E.M. ("E.M.") born […], 2007, pursuant to subrule 16 (6) of the Family Law Rules O. Reg. 114/99, as amended for a final order that:

(a) the children, L.M. born […], 2010 and E.M. born […], 2007 are in need of protection pursuant to section 37 (2) (b) (i) of the Child and Family Services Act (" the Act ");

(b) the children, L.M. and E.M. be made Crown wards and placed in the care and custody of the society, without access for the purpose of adoption; and

(c) The society has the right to consent to and authorize medical treatment for the children.

[2] The mother opposes both the finding and the disposition although her position is confusing in that she agrees that there should be an order that the children be made Crown wards but with access, but then does not consent to a finding.

[3] Counsel for the children supports the society's position subject to the society's undertaking that L.M. and E.M. will be placed in the same adoptive home and that they will have ongoing access to their siblings, L.F. and T.M.

[4] On consent, the statutory findings with respect to the children were made at the outset of the hearing. The society arranged to register the children's birth after they were apprehended and Statements of Live Birth were filed as exhibits at the hearing.

[5] The summary judgment motion was originally returnable before the court on May 10, 2012 but was adjourned several times to enable the mother to obtain counsel.

[6] The society relied on the following documents:

• Amended Protection Application dated November 2, 2010
• Plan of Care dated May 4, 2012
• Affidavits of Catharine Wells sworn May 4, August 17, September 26 and October 4, 2012 and exhibits attached thereto
• Affidavits of Stephen Cross sworn September 7 and October 24, 2012
• Answer and Plan of Care of N.J.M. dated May 30, 2012

[7] The mother relied on the following documents:

• Answer and Plan of Care dated November 22, 2010
• Amended Answer and Plan of Care dated September 21 and October 18, 2012
• Affidavits of the mother sworn September 21 and October 18, 2012
• Affidavit of J.Y. sworn September 21, 2012
• Affidavit of S.L.C. sworn October 18, 2012

2. APPLICABLE LEGAL PRINCIPLES

2.1 Summary Judgment

[8] Rule 16 of the Family Law Rules allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

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

[10] Rule 16 (4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[11] Rule 16 (4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

[12] Rule 16 (6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[13] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the Society to show there is no genuine issue for trial. (Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (Ont. S.C.J.)).

[14] In assessing whether or not a society has met its obligation of showing there is no genuine issue for trial, courts have equated that phrase with "no chance of success", "when the outcome is a foregone conclusion", "plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome than that sought by the applicant". (Children's Aid Society of Oxford (County) v. J.J., [2003] O.J. No. 2208 (Ont. S.C.J.); Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), [1996] O.J. No. 3081, (Ont. G.D.)139 D.L.R. (4th) 534; Children's Aid Society of Simcoe v. C.S. [2001] O.J. No. 4915 (Ont. S.C.J.) and Children's Aid Society of Niagara Region v. S.C., [2008] O.J. No. 3969 (Ont. S.C.J.)).

[15] Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. Justice Hardman, in the case of Children's Aid Society of the Regional Municipality of Waterloo v. T.S., [1999] O.J. No. 5561 (Ont. C.J.), observed at paragraph 5 of that decision that because summary judgment is now explicitly contemplated by Rule 16, this may:

…broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment. (See also Jewish Child and Family Services of Toronto v. A.(R.), [2001] O.J. No. 47 (Ont. S.C.J.))

[16] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is no genuine issue for trial must be insufficient to defeat a claim for summary judgment. (Children's Aid Society of Toronto v. A. (M.), [2002] O.J. No. 2371 (Ont. C.J.)).

[17] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact. (Children's Aid Society of the District of Nipissing v. M.M., [2000] O.J. No. 2541 (Ont. S.C.J.); Children's Aid Society of Hamilton v. M.N, supra).

[18] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. (Children's Aid Society of Dufferin v. J.R., [2002] O.J. No. 4319(Ont. C.J.)).

[19] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits. (Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224, [2004] O.J. No. 4084 (Ont. C.J.); Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442)(Ont. S.C.J.)).

[20] In interpreting Rule 16, the court must also consider the strict timelines that govern child protection proceedings and subsection 1(1) of the Child and Family Services Act providing that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.

[21] It is also necessary to consider Rule 2 of the Family Law Rules to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that cases are dealt with in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking into consideration the need to give resources to other cases. (Children's Aid Society of Hamilton v. W.H., [2006] O.J. No. 1255 (Ont. S.C.J.)).

[22] 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 she faces some better prospect that what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent. (Children's Aid Society of Toronto v. R.H. and M.N., [2000] O. J. No. 5853 (C.J.)).

2.2 Legal Considerations in a Protection Hearing

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

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

[25] The court is required to consider, pursuant to subsection 57(2) of the Act, what efforts the society or other agency or person made to assist the child before intervention under Part III of the Act.

[26] The court is also required to consider, pursuant to subsection 57 (3) of the Act, the least disruptive alternatives than removing a child from the care of the care of the person who had charge of the child immediately before intervention unless the court determines that these alternatives would be inadequate to protect the child.

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

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

[29] In determining the proper disposition, the court must decide what is in the children's best interests in accordance with the criteria set out in subsection 37(3) of the Act.

[30] There is no order that is more profound than a Crown wardship order that permanently removes a child from the care of a parent. A court must exercise such a power only with the highest degree of caution and only on the basis of the most compelling evidence and only after a careful review of all other possible remedies. (Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T., [1996] O.J. No. 1394 (Div. Ct.)).

3. SUMMARY OF MATERIAL FACTS

3.1 Background of the Parties and the Children

[31] The mother has two other children, L.F. ("L.F.") born […], 2000 and T.M. ("T.M.") born […], 2002. The father of L.F. is D.F. The father of T.M. is J.C.W.

[32] L.F. and T.M. have been in the care of their paternal grandmother, C.C.[1] since March 2011 subject to a supervision order. There is an outstanding Status Review Application before the court in which the society seeks an order to terminate the supervision order and the children be placed in the custody of their paternal grandmother pursuant to section 57.1 of the Act.

[33] The father of L.M. is N.J.M.

[34] Until these proceedings N.J.M. was assumed to also be the biological father of E.M. but as a result of paternity tests, E.M.'s father was found to be J.C.W.

[35] N.J.M. was represented earlier in these proceedings but he was not present and did not file any materials on the summary judgment motion. He did file an Answer and Plan of Care.

[36] J.C.W. was noted in default.

[37] The mother is not currently in a relationship with either of the fathers.

3.2 History of Involvement with the Society

[38] The mother signed a Statement of Agreed Facts on March 15, 2012 with respect to her children L.F. and T.M. which was the basis for a finding that those children were in need of protection pursuant to section 37 (2) (b) (i) of the Act.

[39] The society relies on those facts, pursuant to section 50 of the Act, for both the historical concerns and the events leading up to the apprehension of the children.

[40] The mother and N.J.M. have been involved with child protection societies in Toronto, Hamilton and Halton since 2004 relating to concerns about domestic violence and drug and alcohol abuse. There have been numerous openings and closings.

[41] In June 2008 the society commenced a protection application, a finding was made pursuant to section 37 (2)(b)(i) of the Act. The children were placed in the care of the mother and N.J.M. pursuant to a supervision order. The parents worked co-operatively with the society and the supervision order was then terminated in February 2009.

[42] The file remained open until January 2010 due to N.J.M. being charged with an assault against a third party.

[43] The society opened their file again in August 2010 as a result of a police report regarding possible domestic violence in the children's presence, including the parents' new born child, L.M.

3.3 Events Leading Up to the Apprehension of the Children

[44] In early October 2010, as a result of the parents' lack of co-operation in investigating the police report of August 2010, the society commenced a protection application with respect to all of the children seeking to place them with the parents subject to a supervision order.

[45] On October 26, 2010, before the proceeding came before the court, the violence between the parties escalated. N.J.M. under the influence of drugs and or alcohol brandished a knife in the bedroom where the mother and the younger children, E.M. and L.M. were. Both the mother and N.J.M. sustained lacerations from the knife and there was blood splattered throughout the house. N.J.M. was arrested for assault with a weapon, possession of a dangerous weapon and breach of probation order. He was incarcerated pending a bail hearing.

[46] The society attempted to work with the mother to develop a safety plan due to concerns about N.J.M. returning to the home upon his release. The mother refused to co-operate and fled with the children.

[47] All of the children were apprehended the next day on October 27, 2010. E.M. and L.M. have remained in the care of the society since that date.

3.4 Evidence Regarding Mother's Relationship with Abusive Partners

[48] Shortly after the apprehension, the mother spoke to Catharine Wells, the society protection worker, about her relationships.

[49] She advised Ms Wells that she had left L.F.'s father D.F. when L.F. was only one month old as he was very violent and abusive towards her.

[50] She also reported that J.C.W., T.M.'s father was drunk and abusive to her and that she had not seen him for six years. However, given the results of the paternity test for E.M. who was born in 2007, that statement cannot have been true and she must have had a further relationship with him sometime in 2006.

[51] The mother was in a relationship with N.J.M. from 2007 to 2010. His extensive criminal record was filed in these proceedings. The record includes numerous assault convictions, breaches of court orders and various property offences. He was convicted of assaulting the mother in 2008 but they reconciled after this incident. There was also the incident on October 26, 2010 that led to the apprehension of the children.

[52] With respect to the October incident, on February 24, 2011 N.J.M. pleaded guilty to charges of possession of a dangerous weapon and breach of probation. The Crown attorney did not proceed with the assault charge as the mother refused to co-operate. The mother had written to the Crown attorney stating that N.J.M. had not tried to hurt her but was trying to hurt himself with the knife and recanting her original police report that he assaulted her.

[53] The society continued to have concerns about the mother reconciling with N.J.M. after he was released from jail as that had been her pattern in the past. The society provided evidence that the mother continued to correspond with N.J.M. while he was incarcerated. The society also relied on disclosures from the children, in June 2011, that the mother had permitted N.J.M. to have access to them during her visits that were at the time being exercised in the community.

[54] The mother did not deny that she communicated with N.J.M. while he was incarcerated but stated that it was only about the children. The mother did not address the issue of whether or not she permitted him to see the children during an access visit.

[55] Regarding N.J.M., the mother states that the society's characterization of him is "at times harsh, but basically accurate." The mother does not deny the abusive nature of her relationships with N.J.M. or her other partners.

[56] Regarding when their relationship ended, the mother provides two different time frames. In her affidavit sworn September 21, 2012 she deposes that she has not seen him since he was in court in October 2011 but in her affidavit sworn October 18, 2012 she deposes that she has not had any contact with him since the spring.

[57] The mother states that she has no desire to reconcile with N.J.M. and believes that he does not wish to reconcile with her and that he has moved on. She states that she heard from a mutual friend that he is in a new relationship and expecting another child.

[58] The mother blames N.J.M. for her problems with drugs and states that the society has conflated his anger issues and much greater addictions to include her.

3.5 Evidence Regarding Mother's Use of Alcohol and Drugs

[59] On November 5, 2010 the mother co-operated with a hair follicle test for drugs and alcohol. The test covered the period of August to October 2010 that is, during the time the children were in the care of the mother. The test results were positive for cocaine and benzoylecgonine at medium levels of use and positive for marijuana and carboxy THC at very high levels of use. The test was negative for alcohol.

[60] From February 3 to 25, 2011 the mother attended and successfully completed a residential drug treatment program at Hope Place Centre.

[61] On February 9, 2011 the mother co-operated with a hair follicle test that covered the time period from November 2010 to January 2011. The test result indicated very minimal use of marijuana which could have been residual. The test result supports the fact that the mother had stopped using drugs before entering the residential drug program.

[62] On July 25, 2011 the mother again co-operated with a hair follicle test for alcohol and drugs. The test was considered negative for alcohol meaning no excessive drinking. The test was also negative for cocaine, opioids and cannabinoids but positive for amphetamines and a trace amount of methamphetamine. The mother did not provide any explanation for this positive result.

[63] On November 16, 2011 the mother refused to co-operate with a drug test. She did not attend the next four access visits.

[64] On December 7, 2011 the mother co-operated with a random drug test and a hair follicle test for drugs and alcohol. The on-site drug test was positive for cannabinoids-THC and cocaine. The hair follicle test, covering the period from September to November, was positive for cocaine and metabolite at high levels and also positive for THC and THCA. The hair follicle test for alcohol was positive for extremely high levels indicative of frequent excessive use of alcohol over several months prior to the hair sample. The mother's only explanation for these results was that she was depressed that the children were not with her for Christmas although as noted that the test results cover a period of time from September to November.

[65] On March 20, 2012 the mother co-operated with a segmented hair follicle test that covered the time period from mid-December 2011 to mid-March 2012. The test was positive for cocaine and its metabolites but in low concentration. The test results showed "very very high" marijuana use and that its use had "increased tremendously" from 2011 to March 2012. Several hypotheses were suggested for the low levels of cocaine. Either the mother used the drug only occasionally in this time period, or this was residual cocaine from the previous three months or since the levels of marijuana were very high it could be that the marijuana was laced with cocaine or the mother was exposed continuously to large amounts of second hand cocaine so much that she inhaled some of it.

[66] The March test results also indicated a positive result for opiates, namely oxycodone. It was present at very low concentration suggesting the occasional use of oxycodone. As this drug is only available by prescription and is highly addictive, the report suggested that it was important to ascertain if the mother had a prescription. The mother did not provide any evidence to confirm she had been prescribed this drug.

[67] A further hair follicle test was conducted on June 12, 2012 which covered the timeframe from mid-March to mid-June 2012. It indicated only low concentrations of cocaine and its metabolites benzoylecgonine and cocaethylene and did not suggest excessive alcohol use. As the hair samples were not segmented the concentration of drugs is an average for the entire three month period.

[68] A random test for alcohol was conducted on July 10, 2012 that was negative for alcohol use.

[69] A further hair follicle test was conducted on September 12, 2012 that could not be segmented due to insufficient length. The test result was positive for marijuana and THC and indicated high levels of use.

[70] A further hair follicle test was conducted on October 16, 2012 that indicated very very high levels of use of marijuana but was negative for cocaine, opiates and amphetamines.

[71] When questioned about this positive result by Ms Wells, the society's protection worker, the mother replied that she would stop using drugs "in a heartbeat" if she believed that there was any hope the children would be returned to her care.

[72] But as deposed by Ms Wells the mother was aware that the society's hope had always been to re-integrate the children back to the mother's care since she completed her residential treatment in February 2011. The society had twice expanded the mother's access with the children to include overnight weekend access at her mother's home, only to have to return the visits to the society's office due to concerns regarding the mother not being properly supervised by her mother during the access, concerns about the mother seeing N.J.M., the mother's refusal to take a drug test in November 2011 and the mother's positive drug tests.

[73] The mother also blamed her use of drugs on her relationship with N.J.M. But since the mother deposed that she ended the relationship and had not seen N.J.M. since October 2011 (or perhaps the spring of 2012) this does not explain her positive drug and alcohol tests after that date.

[74] Regarding the latest drug results the mother deposes that it is clear that "she has consumed incrementally and exponentially less and less cocaine and alcohol over the last two years." She further explains that she had only one pre-Christmas relapse because she did not have her children with her and has not used cocaine since then. She further deposes that she uses marijuana occasionally to relieve her stress and does not believe that the occasional use of marijuana should be deemed a criminal offence.

[75] However, the last two test results indicate extremely high use of marijuana which the mother does not explain.

3.6 Evidence Regarding the Mother's Life Style

[76] The society submits that the mother has a transient life style and recent involvement with the criminal justice system.

[77] In July 2012, it came to the society's attention that there was an outstanding bench warrant for the mother's arrest regarding a drinking and driving offence that occurred on October 14, 2011 and that on February 28, 2012 the mother had been convicted for a theft under $5,000.00 and received a conditional discharge and was placed on probation for one year.

[78] The society learnt that the mother had been arrested on July 9, 2012 and then released. In a meeting with the mother on July 25th Ms Wells asked the mother about her criminal charges and the mother told her it was none of her business and refused to sign a consent for Ms Wells to speak to her probation officer.

[79] Although not clear from the affidavit of Ms Wells how she was able to find out further information about the mother's involvement with the criminal justice system, she was nevertheless able to determine that the mother had been convicted of the impaired driving charge on July 4, 2012 and that she received a fine and her driver's licence was suspended. Ms Wells also found out that the mother has a further court date in December 2012 regarding her suspended licence. Ms Wells was not aware of the resolution of the mother's fail to appear charge.

[80] The mother does not deny, explain or respond to any of the evidence presented regarding her involvement with the criminal justice system.

[81] Since May 2012 the mother has been residing with her friend J.Y. in a basement apartment of Ms J.Y.'s family home. However, the mother has never requested that the society attend to meet Ms J.Y. whom she proposes as a caregiver for the children or to assess the appropriateness of that home for the children.

[82] The mother deposes that she has made recent and positive changes in her lifestyle. Her current residence is drug-free and she no longer goes out, drinks or does drugs socially.

[83] She has been working for most of the summer for a call centre and now has a similar job for another company. She is hoping to earn enough money to enrol in some social work classes at Humber College in the winter.

[84] In the mother's affidavit sworn September 21, 2012 she deposes that she has made contact again with her counsellor from Hope Place. In her affidavit sworn October 18, 2012 she deposes that she will be commencing counselling at CAMH and has been volunteering for the last month at a church.

[85] For a variety of reasons outlined in both affidavits the mother was unable to provide any corroborating documentation.

3.7 Evidence Regarding N.J.M.

[86] Despite the fact that N.J.M. did not participate in this hearing, I will briefly outline his previous participation in these proceedings.

[87] N.J.M. filed an Answer and Plan of Care dated June 27, 2011 requesting access. He stated that he had completed a residential drug treatment program and was turning his life around.

[88] N.J.M. co-operated with a hair follicle test in April 2011 that was negative for all drugs tested. The society arranged supervised access visits for him which he exercised sporadically.

[89] The society attempted for several months in the winter and spring of 2012 to obtain a further hair follicle test from him. He finally agreed to a hair follicle test in April 2012 but he had cut his hair so short that a proper sample could not be taken.

[90] He filed a further Answer and Plan of Care dated May 30, 2012 stating that he agreed that it was in the best interests of E.M. and L.M. that they become Crown wards but he was seeking access.

[91] On July 18, 2012, N.J.M. agreed to a hair follicle test. The results were positive and at a high range for cocaine, methamphetamine and alcohol. The results indicated that he used cocaine while consuming alcohol. The high methamphetamine indicated regular use of crystal meth.

[92] Since that date, the society has not heard from him and he has not attended for any access visits with E.M. and L.M. since that date.

4. PLANS OF CARE

[93] The society proposes that E.M. and L.M. be made Crown wards for the purpose of adoption and that they be placed in the same home.

[94] The society has filed a written undertaking, addressed to counsel for the children, that it will seek an adoptive home that will agree to openness between all of the siblings; it will pursue a formal arrangement for openness by way of an openness agreement or order; the order or agreement will provide for direct face-to-face contact among the siblings at a minimum of four times per year, provided that the sibling contact does not result in E.M. and L.M. having contact with their biological parents.

[95] The society relies on the affidavits of Stephen Cross, an adoption worker. Mr. Cross deposes that the society has 45 approved adoptive families and that several of these families are interested in adopting a sibling group who are within the age group of E.M. and L.M. In the event the society cannot find a suitable family in this region, it can also search for families in other regions.

[96] E.M. is described as a healthy and happy child who is thriving in her current foster placement. E.M. is very protective of her younger sister and they have a strong bond to each other.

[97] L.M. has a speech delay but is otherwise meeting her milestones. She has difficulty being soothed and comforted and used to rock herself backwards and forwards while on her hands and knees. She is also prone to screaming fits if things do not go her way. She is making some good progress and does not rock herself anymore and her temper tantrums have decreased in intensity.

[98] Mr. Cross supports the opinion of the foster mother that it is very important that both E.M. and L.M. remain together.

[99] It is his opinion that they are well-adjusted children with the ability to attach to new caregivers. He believes they are very adoptable in view of their young age, attractive appearance, responsive personalities and most importantly their capacity to attach to an adoptive family.

[100] In response to the summary judgement motion, the mother filed an Answer and Plan of Care dated September 21, 2012 in which she proposed that the children be placed in the temporary care of her friend J.Y. while the mother worked to save money for an apartment for herself and the children, attended school and continued with treatment and counselling. The mother proposed that she spend every evening and week-end with the children.

[101] The mother then filed a further Answer and Amended Plan of Care dated October 18, 2012 stating that she recognizes the need for a plan of permanency for the children. She therefore now proposes that E.M. and L.M. be adopted by either her friend, J.Y. or by S.L.C., who is E.M.'s paternal aunt.

[102] The mother proposed that she spend time with the children every evening and weekend in a "supervised capacity". However, in submissions counsel for the mother indicated that the mother would be agreeable to any access deemed appropriate by the court.

[103] The mother indicates that the benefit of both Plans of Care that she is proposing is that E.M. and L.M. would not be adopted by strangers but would have a kinship or community placement available to them. She is further hoping that her other daughters, L.F. and T.M., will be placed with her mother and then if E.M. and L.M. are adopted by her friend Ms J.Y. all of the siblings can spend time together a few times a week. If E.M. and L.M. are adopted by S.L.C. then they would also have contact with their sisters who are currently in the care of S.C.'s mother.

5. SERVICES AND FAMILY PLANS

[104] The mother submits that the society had not followed through with their commitment to conduct a parent capacity assessment to which she and N.J.M. had both consented.

[105] The society had proposed such an assessment in October 2011, as although the mother had made significant progress in 2011 the society still had concerns about the mother's positive drug test in July 2011, concerns about her co-operation and compliance with society expectations and her ability to protect the children from further witnessing domestic violence. The society at that time was also concerned about N.J.M.'s past violent behaviour, his refusal to provide a copy of his criminal record and his refusal to permit the society worker to speak to his probation officer.

[106] The society decided not to follow through with the assessment as it determined it was no longer prepared to delay a permanent plan for the children in view of the mother's refusal to agree to a hair follicle test in November 2011, her non-attendance at four subsequent access visits and then the December 2011 hair follicle result that showed a significant relapse into drug and alcohol abuse. The society had also by January 2012 received a copy of N.J.M.'s criminal record that indicated he had been convicted of assaults in 2004, 2005, 2006, 2008 and 2009 and had been convicted of fail to comply or breach of his probation approximately ten times.

[107] The society offered the mother the assistance of both a family and child service worker.

[108] When the access visits became supervised, the society arranged a volunteer driver to assist the mother with attending her access visits as she indicated she did not have the money to arrange transportation.

[109] The mother indicates that she had problems working with Ms Wells and blames Ms Wells for having a negative attitude towards her since her positive drug test in December 2011. However, it is Ms Wells that was the worker that increased access to the mother and was working towards re-integrating the children back to the care of the mother.

[110] In May of 2011 the mother was exercising mid-week access and full day Saturday access at the home of C.C., the paternal grandmother. Due to concerns about N.J.M. being permitted to see the children the access was reduced but again increased in August 2011 to overnight access from Saturday to Sunday. The access was then returned to be supervised in the society offices as a result of the mother's positive drug tests.

[111] The mother also seems to ignore the positive drug and alcohol tests since December 2011 and takes no responsibility for the fact that it was her continued use of drugs and excess use of alcohol that resulted in her access to the children once again becoming supervised.

[112] The society arranged for drug and alcohol testing and except for refusing to take tests in November 2011, the mother co-operated.

[113] The society was never requested by the mother to assess her friend Ms J.Y. as a possible caregiver for the children. The society only became aware of this proposed plan in September 2012 when the mother's Answer and Plan of Care and affidavit were filed. None of the workers have ever met Ms J.Y. nor had she attended any visits since the visits became supervised in mid-November 2011. In that Plan of Care and in the affidavit sworn by Ms J.Y. on September 21, 2012 it is clear that she was proposing that she assume temporary custodial care of E.M. and L.M. with a view to the children returning to live with the mother in the future.

[114] At that time the society is not prepared to consider a temporary plan for the children. Based on the most recent affidavit of the mother she is now proposing Ms J.Y. adopt E.M. and L.M.

[115] The mother is also proposing as an alternative that the children be adopted by S.L.C. who has filed an affidavit setting out her adoption plan.

[116] Initially, the society had been told that S.L.C. was a possible kinship placement for E.M. and L.M. When the society was assessing a kinship plan for L.F. and T.M. by C.C. the society was told that her daughter, S.L.C. was not proposing a kinship plan for E.M. and L.M.

[117] S.L.C. filed an affidavit sworn October 24, 2012, on this motion, indicating that she approached the society with respect to adopting both children. However, in the email she sent to the society, which was attached to her affidavit, it is clear that she was only interested in obtaining custody of E.M. if her brother was found to be E.M.'s father. In any event, she is now proposing an adoption plan for both children.

[118] S.L.C. was referred to the adoption worker Mr. Cross to discuss her plan. The society has arranged a meeting with S.L.C. and her fiancé to discuss their proposed adoption plan, the specific needs of E.M. and L.M., the outstanding protection concerns regarding the children's parents and the adoption process. If S.L.C. and her fiancé are approved as adoption applicants, they would be considered along with other adoptive families.

6. ANALYSIS

6.1 Is There Evidence to Support a Finding That the Children Are in Need of Protection?

[119] The protection concerns that have required the involvement of several different societies since 2004 have continued to the present time.

[120] In 2008, there was a finding that the children were in need of protection pursuant to section 37 (2) (b) (i) of the Act, because of the exposure of the children to domestic violence and the use of drugs by the mother and N.J.M. As a result of the parents co-operating with the society, the society determined that there were no longer any protection concerns and terminated the supervision order.

[121] But the parents were not able to sustain a drug free environment or protect the children from exposure to domestic violence and the same concerns surfaced two years later when this protection application was commenced.

[122] The issues of drug and alcohol abuse and the children's exposure to domestic violence that required the apprehension of the children in October 2010 are still not resolved.

[123] Although the mother may no longer be involved in a relationship with N.J.M. there is no evidence that she has taken any steps to understand why she continued to be involved with abusive partners, exposed the children to such violence or the effects of domestic violence on children.

[124] There is no evidence that the mother has been in a healthy relationship void of drugs or domestic violence. She associated with partners who engaged in criminal conduct and she herself is now involved with the criminal justice system.

[125] The mother agreed to the Statement of Fact, based on the very same facts, for a finding that her two other children, L.F. and T.M., were in need of protection, pursuant to section 37 (2) (b) (i) based on a risk to their physical safety.

[126] The mother's counsel, despite agreeing to a Crown wardship order, then submitted that there was a triable issue regarding the finding of a need for protection. She submitted that at trial there would be evidence that the mother's role in the incident of October 26, 2010 has been mischaracterized. If I understood her position it was that the mother was also a victim of this incident as she and the children were all in the bedroom when N.J.M. entered the bedroom brandishing a knife. However, the finding of a need for protection is not just based on this particular incident but the pattern of risk that has continued both before and since the apprehension.

[127] It is abundantly clear that the mother did not protect these children from being exposed to domestic violence; she chose to protect N.J.M. instead of her children. In addition, to exposing the children to domestic violence there is uncontradicted evidence that the mother continues to abuse drugs and alcohol despite having attended residential treatment. Except for the negative test in February 2011, there has not been one test that was negative for both drugs and alcohol.

[128] N.J.M. has also continued to abuse drugs and alcohol despite the fact that he also attended a residential treatment program and he has now ceased all contact with the children.

[129] It is impossible to imagine what evidence could be presented at trial to come to any other conclusion than that E.M. and L.M. are in need to protection and are at risk of physical harm in the care of either parent.

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

6.2 What Is the Appropriate Disposition That Is in the Children's Best Interests?

[131] E.M. is now almost 5 years old and L.M. is just over 3 years old. Both children have been in the continuous care of the society since October 26, 2010. At the time of the apprehension E.M. was almost 3 years old and L.M. was only 3 months old.

[132] In view of the statutory timelines the only option for the court is to return the children to their mother with or without supervision or make an order for Crown wardship with or without access.

[133] Despite the mother's apparent agreement with a Crown wardship order and recognition that the children cannot be returned to her, I wish to address this issue briefly.

[134] In the two years this protection proceeding has been before the court, the mother has been unable to sustain a drug and alcohol free lifestyle. Although she was able to successfully complete a residential treatment program, she did not follow through with ongoing counselling which might have assisted her in remaining drug and alcohol free.

[135] Despite the society's plan and steps to re-integrate the children back into her care, the mother again began to use drugs and alcohol so that her visits had to revert to being supervised.

[136] The mother was unable to follow through with the terms of the outstanding supervision order with respect to L.F. and T.M. namely, to remain drug free, to continue contact with her counsellors at Hope Place, follow through with after-care treatment, continue to attend Narcotics Anonymous and follow through with individual counselling relating to being a victim of domestic violence.

[137] In the affidavits filed by the mother she continues to minimize her drug and alcohol abuse issues and blames the society or N.J.M. for her own shortcomings. She deposes that she has been overwhelmed in the last 18 months by the court proceedings and has complied with the terms of the supervision orders "for the most part" but now realizes that her efforts were not good enough. She blames the children being taken away on what happened between her and N.J.M. as a result of the incident on October 26, 2010 and states that she will never forgive him.

[138] She further states that it is her understanding that up until then the society considered that her parenting was adequate and that the safety concerns were mostly due to the society believing she was in denial of his domestic violence and that she is no longer in denial.

[139] It is tragic that the mother has not been able for the last almost two years to come to terms with the reasons for her dependency on drugs and alcohol, her inability to choose appropriate partners and her inability to protect her children from being exposed to domestic violence. One would have hoped that having her children removed from her care would have been a wake-up call that she needed to come to grips with changing her lifestyle.

[140] It is clear from the evidence, most of which is not disputed by the mother, that the children cannot be returned to her with or without a supervision order.

[141] The mother should be credited for acknowledging that she is not able to meet the needs of these young vulnerable children and that they require permanency and stability.

[142] The mother's materials filed in response to the summary judgment motion appear to be focused on the two proposed "adoption plans". However, a court only has the jurisdiction to make an order of Crown wardship with or without access and cannot determine an adoption placement.

[143] At some points in the submissions it was not clear to me if the mother was essentially proposing that children be placed with either her friend Ms J.Y. or S.L.C. as more of a custody arrangement rather than a permanent order. The concern that the mother has not actually accepted that a permanent plan is in the best interests of the children is heightened as the mother wishes access every evening and on weekends. There is overwhelming evidence that these children need and deserve a permanent and stable plan.

[144] The mother is clearly unable to care for the children and the evidence, even if the mother was not consenting, is overwhelming regarding her shortcomings. As these children have been in care for two years, which far exceeds that statutory limit, there is no other disposition than an order for Crown wardship. Accordingly, there is no genuine issue for trial that there be an order for Crown wardship and I find that the society has met its burden.

6.3 Should an Order for Crown Wardship With or Without Access Be Made?

[145] Having determined that an order of Crown wardship is the order that is the least disruptive order available and appropriate and consistent with the children's best interest, the next issue for the court to determine is whether there is a genuine issue for trial on the issue of an order of access.

[146] Once a disposition of Crown wardship is made, the Act provides for a presumption against access. The current test for access to Crown wards is set out in subsection 59 (2.1) of the Act, which reads as follows:

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.

[147] The onus to rebut the presumption against access to a Crown ward is on the person seeking access. (Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (Ont. C.A.)).

[148] Where a Crown wardship order has been made, there is no obligation on the society to prove that the children are adoptable, let alone that there is a prospective adoptive family. (Children's Aid Society of the Niagara Region v. J.C., [2007] O.J. No. 1058 (Ont. Div. Ct.)). Although in most cases, the society tenders such evidence, there is no statutory requirement to do so.

[149] Once an order for Crown wardship is made, the focus of the Act shifts to establishing a permanent and stable placement, preferably through adoption. The society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the children to develop a positive, secure and enduring relationship within a family though either adoption or a custody order.

[150] The process the court should follow once a decision has been made that the children should be made crown wards was recently set out by Justice Perkins in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376, 2010 O.J. No. 942 (S.C.J.) at para. 25, as follows:

[25] In a case such as this one (not involving a native child or a potential custody order), the decision process on a disposition hearing is as follows:

3. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1) (a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

4. Determine whether the access would impair the child's future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.

5. Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58.)

[151] The person seeking access, in this case the mother, therefore has the onus of establishing on a balance of probabilities both prongs of the test namely that,

1. The access is beneficial and meaningful to the children; and

2. The ordered access will not impair the children's future opportunities for adoption.

[152] 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.

(46) I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

(47) Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[153] In this case, the society agrees that generally the mother's access with the children has been enjoyable for them, that the mother interacts well with them and that aside from the mother on occasion being unable to control her emotions the visits are positive. The mother admits that sometimes she is short tempered at access visits.

[154] However, the onus is on the mother in this instance to satisfy the court that her access is beneficial and meaningful, not for herself, but for the children. As Justice Quinn remarked, in the case of M.J., supra, it is not enough that there are some positive aspects to the relationship.

[155] So that although, E.M. and L.M. may recognize the mother and call her "mom" and the visits are enjoyable that is not enough, there must be some significant advantage to the children. This view has been approved and adopted in several recent cases. (See C.A.S. of Algoma v. S.L., [2012] O.J. No. 3294; C.C.A.S. v. L.D.E. and D.S., [2012] ONCJ 530).

[156] In this case, the mother submits that the children are so young that it is not possible for them to express that the access visits are beneficial and meaningful to them. Although I agree that it is difficult for a parent to prove nevertheless the legislation has, for good reason in my view, required a parent to meet this test.

[157] In the case of Children's Aid Society of Toronto v. M.A., [2006] O.J. No. 254 (Ont. Sup. Ct.), the court found that even though the access visits were generally enjoyable for the child, it was open to the trial judge to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family.

[158] It is not disputed that the mother loves the children, that she tells the children that she loves them, that the visits are pleasant and enjoyable for the children and that the children know that the mother is their biological parent. However, those facts do not support a finding that ongoing access is beneficial and meaningful to the children as those concepts are defined by the case law.

[159] I wish to also consider that second prong of the test, although it is strictly not necessary in view of my finding on the first prong of the test, that is, would an order for ongoing access impair the children's opportunities for adoption.

[160] In view of the changes to the legislation in 2011, an access order will not automatically impair a child's future opportunities for adoption. The amended provisions of section 141.1.1 (1) of the Act, no longer prohibit a society from planning for the adoption of a Crown ward that has an access order. But the amendments did not change the onus on the person seeking access to a Crown ward.

[161] The mother must still satisfy the court that making an access order will not impair the future opportunities of E.M. and L.M. to be adopted. As was pointed out by Justice Kurkurin, in C.AS. of Algoma v. S.L., supra, it is always more difficult to prove a negative but that is what the Act requires. In my view this is the proper interpretation of the onus on the parent seeking access.[2]

[162] The society is opposed to the mother having access for the same reasons that the children cannot be returned to her care.

[163] The society also relies on the affidavit of the adoption worker, Steve Cross wherein he outlines his view that an order for ongoing access would impair their opportunity for adoption. Mr. Cross relies on the following factors:

1. These children have already experienced significant trauma in their lives being removed from their family of origin and then having been moved from their original foster home to their current foster home;

2. An order for access would create another step in the process of achieving permanency as there would be an automatic delay in their proposed adoption placement by the 30 day notice period that the society is required to give to persons entitled to access; there is the potential for a further lengthy delay if an openness application is then brought by persons entitled to access and the openness application is then litigated;

3. The existence of an access order and the resulting potential for an openness application may impede potential adoptive families from proceeding due to the uncertainty of the nature and extent of the contact to be imposed by the court, as their ability to comply with the arrangement is a consideration by the court but not determinative, pursuant to section 145.12(7) of the CFSA;

4. The fact that permanency has not yet been determined for the other siblings, L.F. and T.M., brings even more uncertainty with respect to the nature and extent of contact that would be appropriate for the siblings and consistent with the best interests of E.M. and L.M.;

5. As both parents having substance abuse issues, it is anticipated ongoing access with either of the parents would create a concern for potential adoptive families;

6. As the father in particular has an extensive criminal record for violence, it is anticipated this would also create a concern for adoptive parents; and

7. There is also a concern that neither parent may be unable to promote the adoption placement and as a result the children may experience a division of loyalty and feelings of uncertainty and anxiety and their placement could be destabilized. This is a particular concern with respect to the mother who is requesting extensive access to the children.

[164] It is not enough to raise a doubt that children are adoptable, or ask that access continue until a specific adoptive home is identified. The Ontario Court of Appeal in Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 terminated access, while acknowledging that the special needs of the children would pose problems in placing them for adoption. The court noted that if the children were not adopted within a reasonable time frame, a further application for access could be brought at that time.

[165] In my view, there is ample evidence to draw the reasonable inference that the pool of potential adoptive families is already narrowed in this case as the society has committed to finding a family that will adopt both E.M. and L.M. and also committed to contact between them and their siblings. To also require an agreement to direct contact with the mother will even further narrow the potential pool of adoptive families.

[166] Further, it is reasonable to infer that potential adoptive families would have concerns about contact with the mother due to her substance abuse issues. They would be told about the mother's history with violent partners and a pattern of reconciling with them, that N.J.M. has a lengthy and concerning criminal record for violence and that J.C.W. E.M.'s father was also in an abusive relationship with the mother.

[167] The background of both parents creates a further complication as the adoptive family would be required to negotiate and arrange visits on their own as the court, if an openness order is granted, cannot order the society to supervise or participate in such arrangements, without the society's consent.

6.4 Is the Issue of Access by the Mother a Genuine Issue That Requires a Trial?

[168] Counsel for the mother submits that at a trial, the mother would be able to provide evidence of her ongoing steps at rehabilitation, further drug tests and evidence that she has attended counselling.

[169] Despite any evidence of positive steps the mother may be able to adduce at trial, she has in the past also had periods of stability and been drug free only to relapse.

[170] A trial judge would not be in any different position than on this summary judgment motion in fact, there may be greater concern that the mother would undermine any adoption placement if an order of access was made as she would believe that she is stable and that the children should be returned to her care.

[171] I must also weigh the further delay a trial would entail to a permanent placement for these young children. I do not find that at a trial would change the outcome.

[172] I have concluded that proceeding with the adoption of these children is more important than continuing the mother's access or N.J.M.'s access should he decide to again become involved in the children's lives. Based on the history of these parents, an order of access would impair the ability of the children to be adopted and I find that the access is not meaningful or beneficial to the children.

7.0 CONCLUSION

[173] I therefore, find that the society has met its onus of proof and that the motion for summary judgment is granted.

[174] I recognize that this decision will be difficult for the mother and her family as there is no doubt that the mother and her extended family and friends love E.M. and L.M. However, in view of the length of time these children have been in the care of the society, it is in their best interests to be provided with the permanency and stability they deserve. Unfortunately despite the mother's current efforts to change her life, she has not yet been able to do so and a further delay is not in the children's best interests.

[175] The society has undertaken to ensure that E.M. and L.M. are placed in the same home and that they will have ongoing contact with their siblings. I am hopeful that the mother will not undermine the contact between the siblings and will have some comfort in knowing that the children will be able to maintain contact with each other.

[176] There will be an order as follows:

a. There will be the following statutory findings:

The child L.M. born […], 2010 is non-Roman Catholic (non-designated), non-Native, her mother's name is K.C.M. and her father's name is N.J.M.;

The child E.M. born […], 2007 is non-Roman Catholic (non-designated), non-Native, her mother's name is K.C.M. and her father's name is J.C.W.

b. The children, L.M. born […], 2010 and E.M. born […], 2007 are in need of protection pursuant to section 37 (2) (b) (i) of the Child and Family Services Act (" the Act ");

c. The children, L.M. and E.M. be made Crown wards and placed in the care and custody of the society, without access for the purpose of adoption; and

d. The society has the right to consent to and authorize medical treatment for the children.

Released: November 20, 2012

Signed: "Justice R. Zisman"

[1] C.C. is the paternal grandmother of T.M. but has always considered herself and treated L.F. as her granddaughter

[2] See Children's Aid Society of Toronto v. M.M., [2012] O.J. No. 3240 wherein Justice Murray declined to make a finding that an access order would impair the child's future opportunity for adoption as the society had not presented any evidence on the beliefs and attitudes of its pool of potential adoptive parents; in my view this appears to be reversing the onus of proof and with respect is not consistent with the interpretation of the statutory requirements.