WARNING

The court directs that the following notice shall 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.: Toronto C53859/11

Date: 2012-11-14

Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto, Applicant

— And —

N.P.B., A.K.F., D.B. Respondents

Before: Justice Curtis

Motion Heard on: 7 and 14 August 2012

Reasons for Judgment released on: 14 November 2012

Counsel:

• Shamshad Bee . . . for the applicant Catholic Children's Aid Society of Toronto
• Lorelee Messenger . . . . . . . . . . . . . . . . for the respondent N.P.B.
• Isaac Birenbaum . . . . . . . . . . . . . . . . . for the respondent A.K.F.
• Merrick Siegal . . . . . . . . . . . . . . . . . . for the respondent D.B.

CURTIS, J.:

Index

1. Over-view
2. Background
3. Litigation History
4. Positions of the Parties
5. The Law on Summary Judgment
6. The Protection Findings
7. Disposition
8. Access
9. Orders

Over-view

[1] This is the decision in a motion for summary judgment brought by the Catholic Children's Aid Society of Toronto ("CCAS") in a protection application, asking for a finding that the children R.A.N.B. and E.J.B. are in need of protection, and a disposition that they be made crown wards, without access.

[2] The issue for the court to determine is whether there is a triable issue with respect to the orders that CCAS seeks.

Background

[3] The mother is N.P.B., ("the mother"), born […] 1988, and 23 years old at the time of the summary judgment motion.

[4] The mother has two children who are the subject of this court case:

• R.A.N.B., born […] 2009, now 3 years old, and,
• E.J.B., born […] 2011, 17 months old at the time of the motion.

[5] R.A.N.B.'s father is A.K.F. ("R.A.N.B.'s father, Mr. A.K.F."), born […] 1984, now 28 years old.

[6] E.J.B.'s father is D.B. ("E.J.B.'s father, Mr. D.B."), born […], now 31 years old.

[7] The mother is not married to either of the two fathers, but has lived with each, from time to time, irregularly, over the period of the CCAS involvement. R.A.N.B.'s father, Mr. A.K.F., says that he lived with the mother from 2004 to 2010.

Litigation History

[8] Both children have been in the care of CCAS for more than one year. E.J.B. was apprehended from the mother on 13 April 2011. R.A.N.B. was apprehended from his father, Mr. A.K.F. on 20 May 2011.

[9] The original protection application regarding E.J.B. was started on 18 April 2011, asking for six months society wardship. The original protection application regarding R.A.N.B. was started on 25 May 2011, asking for six months society wardship. Both protection applications were amended on 13 March 2012 to seek crown wardship of both children, with no access, for the purposes of adoption.

Positions of the Parties at the Summary Judgment Motion

[10] CCAS is asking that the children be found in need of protection under ss. 37(2)(a) (the child has suffered physical harm resulting from failure to care for the child or a pattern of neglect in caring for the child) and 37(2)(b) (a risk of physical harm resulting from failure to care for the child or a pattern of neglect in caring for the child) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended ("C.F.S.A.").

[11] CCAS bases the protection findings on the actual harm to both children and the likely risk of harm to both children if placed alone, or together, with any of the three parents, individually or together, due to the parents' instability, substance abuse, lack of parenting skills, and conflict and violence in the mother's relationship with both of the two fathers.

[12] Regarding R.A.N.B.: the mother filed an Answer claiming the return of R.A.N.B. to her care. R.A.N.B.'s father, Mr. A.K.F., filed an Answer claiming the return of R.A.N.B. to his care. The mother responded to the motion for summary judgment regarding R.A.N.B.. It is unclear whether Mr. A.K.F. responded to the summary judgment motion, as there was no affidavit from Mr. A.K.F. in the continuing record, nor in a separate motion brief. There was an affidavit of R.A.N.B.'s father, Mr. A.K.F., loose in the court file, but it was not clear whether this affidavit was in response to the summary judgment motion or some other matter. Notwithstanding that uncertainty, the affidavit of Mr. A.K.F., sworn 30 July 2012, was read and taken into account in determining the summary judgment motion. The mother is consenting to a finding that R.A.N.B. is in need of protection under these sections. Mr. A.K.F., opposes the protection findings regarding R.A.N.B..

[13] Regarding E.J.B.: the mother filed an Answer claiming the return of E.J.B. to her care. E.J.B.'s father, Mr. D.B., filed an Answer claiming the placement of E.J.B. in his care, or in the alternative, the return of E.J.B. to the mother. The mother and Mr. D.B. both responded to the motion for summary judgment. Both the mother and Mr. D.B. are consenting to a finding that E.J.B. is in need of protection under these sections.

[14] No Confirmation Form was filed by any of the parties confirming that the summary judgment motion was proceeding and confirming what material the parties intended to rely on. All of the parties were represented by lawyers. The court should not be left guessing what evidence the parties are relying on in the summary judgment motion.

[15] Notwithstanding this confusing scenario regarding the rights of the parents to appear and to oppose the summary judgment motion, and the material to be relied on, the court heard argument from all the parents on the summary judgment motion and has determined the outcome on the basis that the summary judgment motion was opposed by all parents.

[16] CCAS is asking for a disposition of crown wardship no access, for the purposes of adoption. CCAS says that crown wardship without access is the right disposition as since the children came into care, the parents have not been able to demonstrate adequate parenting skills or stability in their lives that would ensure the children's physical and emotional health and well-being.

[17] The mother wants a trial regarding the disposition of crown wardship and argues that her plan presents a genuine issue for trial.

The Law on Summary Judgment

[18] A party may make a motion for summary judgment under Rule 16 of the Family Law Rules, O. Reg. 114/99, as amended ("the Rules"). These are the sub-rules in rule 16 that are relevant to this case:

When Available

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

Evidence Required

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

Evidence of Responding Party

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

Evidence Not From Personal Knowledge

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

No Issue for Trial

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

[19] The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court is required to make a final order and grant summary judgment: F.I. v. K.F., 2000 CarswellOnt 455 (Ont. Sup. Ct.).

[20] 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 that there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (Ont. Sup. Ct.).

[21] The court's role on a summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. 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." Children's Aid Society of the Regional Municipality of Waterloo v. T.S., [1999] O.J. No. 5561 (Ont. Ct.).

[22] When the court looks at whether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party's position, but rather whether the evidence is sufficient to require a trial: Children's Aid Society of the County of Dufferin v. J.R., (2002) 45515 (Ont. Sup. Ct.).

[23] Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future: Jewish Family and Child Services of Toronto v. A.(R.), 2001 O.J. No. 47 (Ont. Sup. Ct.).

[24] Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing there is a genuine issue for trial: Native Child and Family Services of Toronto and D.C., 2010 ONSC 1038 (Ont. Sup. Ct.), para. 6.

[25] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial: Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. Ct.).

[26] 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 disagreement about a material fact: Children's Aid Society of the Regional Municipality of Waterloo v. H. (T.L.), 2005 ONCJ 194, [2005] O.J. No 2371 (Ont. Ct.).

[27] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from the parent's evidence that she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent: Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. Ct.).

[28] No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant: Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (Ont. Sup. Ct.), para 43.

The Protection Findings

[29] CCAS is seeking protection findings pursuant to ss. 37(2) (a) and (b) of the C.F.S.A.:

Child in need of protection

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

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

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

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

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

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

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

Evidence Regarding the Protection Findings

[30] There is substantial evidence that was not contested, or only baldly denied, to support the protection findings sought by CCAS. Both children are found to be in need of protection under ss. 37(2) (a) and (b). The protection findings are made on consent of the mother and of E.J.B.'s father, Mr. D.B..

[31] CCAS has been involved with the mother since February 2009, before R.A.N.B. was born.

[32] The relationships the mother has with both R.A.N.B.'s father, Mr. A.K.F. and E.J.B.'s father, Mr. D.B. are high conflict, dysfunctional, and violent. In addition, the two fathers have repeatedly reported concerns to CCAS about the mother's parenting, drug use and instability, even during times when they were living with her.

[33] On 2 July 2010 CCAS learned that the mother had been assaulted by R.A.N.B.'s father, Mr. A.K.F., while she was living with E.J.B.'s father, Mr. D.B., and that E.J.B.'s father, Mr. D.B. had been arrested and charged. R.A.N.B. was then 14 months old and living with the mother.

[34] On 28 August 2010 E.J.B.'s father, Mr. D.B. reported to CCAS that:

a) The mother was pregnant (with E.J.B.);

b) He had concerns about her ability to care for R.A.N.B. (who was then 15 months old), and she was unable to keep R.A.N.B. clean; and,

c) the mother was taking and selling Percocet.

[35] On 12 April 2011, R.A.N.B.'s father, Mr. A.K.F. took R.A.N.B. (then nearly three) to stay with him in Orillia.

[36] On 13 April 2011, police went to the mother's home, had to break into the home, and found the mother unconscious, with the newborn baby E.J.B. with her. It took police a long time to revive the mother. E.J.B. was then apprehended.

[37] The mother admitted that she was unconscious when E.J.B. was apprehended, but denied using any drugs other than the prescribed methadone she was taking, and said that she had been taking methadone and took too much. She says that she was drugged by H a friend of R.A.N.B.'s father, Mr. A.K.F., who was staying at her place. Dr. Kalpin, who was running the methadone clinic, agreed to stay open late on 15 April 2011 to permit the mother to attend for a urine screen, but she did not attend.

[38] Between 20 April and 3 May 2011, the family services worker repeatedly asked R.A.N.B.'s father, Mr. A.K.F. to take R.A.N.B. to see the paediatrician for his immunization and to be assessed. The CCAS worker made an appointment for the child. When the paediatrician Dr. Perlmutter did see R.A.N.B. on 10 May 2011, he noted that he had not seen the child in more than one year, that R.A.N.B. was developmentally lagging, and that R.A.N.B. had not been brought in for the developmental assessment the doctor had recommended and had scheduled more than one year earlier.

[39] On 14 May 2011 E.J.B.'s father, Mr. D.B. was charged with threatening death and assault regarding the mother. On 15 May 2011, Mr. D.B. threatened to kill the mother and slapped her, and was charged with assault. On 16 May 2011, Mr. D.B. was convicted of assaulting the mother (regarding an earlier incident). However, by 6 July 2011, the mother was again living with Mr. D.B..

[40] On 20 May 2011 R.A.N.B. (when seen by a CCAS social worker) was dressed too warmly and in clothes that were dirty and too small for him. R.A.N.B.'s father, Mr. A.K.F. admitted that he and R.A.N.B. (then two years old) had been "couch surfing", that is, staying at different friend's homes. CCAS apprehended R.A.N.B. from Mr. A.K.F. that day.

[41] On 30 August 2011, R.A.N.B.'s father, Mr. A.K.F. tested positive for cocaine (trace), opioids and oxycodone. The CCAS social worker received these test results on 28 February 2012.

[42] On 21 November 2011, E.J.B.'s father, Mr. D.B. reported to CCAS that the mother was abusing drugs.

[43] On 7 December 2011 R.A.N.B.'s father, Mr. A.K.F. reported to CCAS that the mother was using cocaine, he had been staying with her for two weeks, she was behind on her rent, and he did not think she was fit to parent. At that time, her last five drug screens were positive for drug use.

[44] On 7 December 2011 the mother's landlord reported to CCAS that both R.A.N.B.'s father, Mr. A.K.F. and E.J.B.'s father, Mr. D.B. were receiving mail at the mother's address. Mr. D.B. was then seen to be living there, and the landlord was concerned about the possibility of conflict between the two men, and gave the mother an eviction notice. On 7 December 2011, the mother confirmed to CCAS that she had to move again, and that she was back with Mr. D.B..

[45] On 8 December 2011, the CCAS social worker received the test results for two urine screens regarding the mother, taken in early December 2011, which results were both positive for methadone. CCAS brought a motion on 22 December 2011 to vary access and the court ordered home visits terminated.

[46] The mother admits that the issues and conflict between herself and the two fathers at this time (December 2011 and January 2012) interfered with CCAS' plans then to consider returning the children to her care.

[47] On 15 January 2012 E.J.B.'s father, Mr. D.B. was charged with threatening death regarding the mother.

[48] On 19 January 2012, R.A.N.B.'s father, Mr. A.K.F. was charged with possession of cocaine, and marijuana.

[49] On 25 January 2012, E.J.B.'s father, Mr. D.B. told the CCAS social worker that he did not want his daughter placed with the mother and that she was on methadone.

[50] On 28 March 2012, R.A.N.B.'s father, Mr. A.K.F. was present at the CCAS offices, and was yelling and swearing at the mother in the lobby, in the presence of both children (then three and one years old). He told the CCAS social worker that the mother was then staying with him. Later that day the mother told the CCAS social worker that she was staying with Mr. A.K.F., and that he been using drugs.

[51] On 4 April 2012 the CCAS social worker learned that R.A.N.B.'s father, Mr. A.K.F. had been arrested.

[52] On 13 April 2012 the room-mate of R.A.N.B.'s father, Mr. A.K.F. was charged with assault regarding the mother. The mother was living with Mr. A.K.F. at the time. When the room-mate was arrested, the police found heroin on him.

[53] In May 2012 R.A.N.B.'s father, Mr. A.K.F. was charged with theft of a motor vehicle.

The Parents' Transience and Instability

[54] The mother has moved more than ten times since R.A.N.B. was born (a period of three years). She moved five times while R.A.N.B. was in her care (a period of two years). She moved three times from the time of E.J.B.'s birth to the summary judgment motion (a period of fifteen months). The mother did not dispute the number of moves, but said that she had a good reason for each move.

[55] The mother lived off and on with R.A.N.B.'s father, Mr. A.K.F. (in Toronto and Woodbridge) and with E.J.B.'s father, Mr. D.B. (in Toronto and Milton).

[56] In April 2011, when R.A.N.B.'s father, Mr. A.K.F. had R.A.N.B. in his care for about one month, he moved from place to place.

The Mother's Volatile and Unstable Relationships with the Two Fathers

[57] The mother has had on and off again relationships with both R.A.N.B.'s father, Mr. A.K.F. and E.J.B.'s father, Mr. D.B.. The mother was with Mr. A.K.F. when CCAS first became involved (in 2009). In summer 2011 the mother started seeing Mr. D.B., who then fathered E.J.B.. In August 2011, the mother resumed her relationship with Mr. A.K.F.. In November 2011, the mother was back with Mr. D.B.. The mother was with Mr. A.K.F. in May 2012, and then in June 2012 was with Mr. D.B..

[58] None of the three parents has been honest with CCAS about their circumstances or their contact with each other. All three of the parents have volatile relationships with each other and there continues to be potential for conflict and violence in their contact and in the presence of the children.

[59] The mother said that she has not always made the best decisions. The mother acknowledged that her relationships with R.A.N.B.'s father, Mr. A.K.F. and with E.J.B.'s father, Mr. D.B. have been difficult during the involvement of CCAS, that she is responsible for much of the confusion by having both men in her life, that there have been incidents between them, that she has been assaulted by both men, and that they have not been clear with CCAS about the status of their relationships at times.

Violence in the Mother's Relationships with the Two Fathers

[60] The mother moved back and forth in her relationships with the two fathers frequently. The mother's relationships with both R.A.N.B.'s father, Mr. A.K.F., and E.J.B.'s father, Mr. D.B. involved repeated assaults of her by the two men, repeated criminal arrests and charges, and repeated criminal convictions. The mother was also assaulted by the room-mate of Mr. A.K.F..

[61] R.A.N.B.'s father, Mr. A.K.F. was arrested and charged with assaulting the mother and E.J.B.'s father, Mr. D.B.. Mr. D.B. was arrested, charged and pled guilty on two separate occasions (May 2011 and January 2012) to assaulting and threatening the mother.

[62] None of the parents has participated in sufficient counselling to address the on-going instability and violence in their relationships. None of the parents acknowledged that this instability, conflict, and violence has consequences for the children, and is harmful to children.

The Parents' Drug and Substance Use

[63] There was ample evidence that all three of the parents have substance abuse and addiction problems, and that those problems have not been addressed.

[64] The mother admitted to problematic use of both marijuana and oxycodone in the past. She admitted problematic marijuana use for approximately two to three years, ending in about 2006. She admitted problematic use of oxycodone for two years, ending in 2007. She admitted that she drank alcohol from the age of 14, which drinking was problematic from the ages of 16 -17.

[65] Both R.A.N.B. and E.J.B. were treated at birth for withdrawal from methadone. Both children suffered actual physical harm due to the mother's behaviour and drug use. R.A.N.B. was started on morphine immediately after birth and was kept in the hospital for six weeks to be slowly weaned off the morphine. The mother acknowledged that her prenatal use of methadone may result in lifelong disabilities for her children. At another point in her evidence, the mother stated that she does not believe that R.A.N.B.'s developmental issues are a result of her methadone use, but are related to the learning disabilities and severe ADHD of R.A.N.B.'s father, Mr. A.K.F..

[66] There have been on-going disclosures about drug use and substance abuse, from the community about the parents, and from the parents about one another. In March and December 2010 the family of R.A.N.B.'s father, Mr. A.K.F. made disclosures about the mother's substance abuse. In August and November 2011 E.J.B.'s father, Mr. D.B. made disclosures about the mother's substance abuse. The mother reported that R.A.N.B.'s father, Mr. A.K.F. sells crack cocaine, and that E.J.B.'s father, Mr. D.B. drinks alcohol to the point of blacking out.

[67] Dr. Kalpin, who manages the methadone treatment for the mother and for R.A.N.B.'s father, Mr. A.K.F., reported that the mother tested positive for cocaine in 2011.

[68] In addition, the circumstances around E.J.B.'s apprehension from the mother (E.J.B. was then a newborn) are concerning, dramatic, and disturbing. The police knocked on the door of the mother's home for about 20 minutes without any response, and could hear a baby crying. The police found the mother unconscious, with the baby E.J.B. lying next to her on the bed. It took police about ten minutes to revive the mother. The mother admits that she was unconscious when E.J.B. was apprehended. There was white powder on the mother's nose, her pupils were dilated, and her heart rate was very elevated.

Disposition

Disposition Legal Principles

[69] Once a finding is made that the children are children in need of protection, the court must determine what order for their care is in their best interests.

[70] Section 57(1) of the C.F.S.A. sets out the types of orders available to the court after a child is found to be in need of protection:

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child's best interests:

Supervision order

1. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 or a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

[71] The decision process on a disposition hearing, following a finding that the children are in need of protection, has been set out by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 (Ont. Sup. Ct.), para. 25, as follows:

1. Determine whether the disposition that is in the child's best interests is a return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

[72] Section 57(1) is limited by section 70 of the C.F.S.A., which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, unless the time is extended as provided in section 70(4) of the C.F.S.A.. The children are both under six years old, and have both been in care for more than one year, longer than the time permitted by statute. An order for society wardship is not available for either of the children.

[73] A further order for society wardship is not available for these children, unless the court makes an order extending the time period allowable under s. 70 C.F.S.A.. That order was not sought in this case, nor is it appropriate for these children, as it would not be in their best interests for their status to continue to be unresolved. The only options now available for the children are to return to the care of one of their parents (or someone else's care) under a supervision order, or a crown wardship order.

[74] Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. Here CCAS has been involved since before R.A.N.B. was born. The society worker made efforts to refer the parents to programs to assist them (e.g., addiction counselling, drug testing, parenting programs, counselling for the mother about the relationships). The parents did not did not follow through with the referrals and did not adequately engage with the programs.

[75] Section 57(3) of the C.F.S.A. requires the court to consider less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For reasons articulated below, returning the children to the mother, or either of the fathers, even with a supervision order, would not be adequate to protect the children in this case and would not be safe.

[76] Section 57(4) of the C.F.S.A. requires the court to look at community placements, including family members, before deciding to place a child in care. No alternative plans were proposed at the motion for summary judgment.

[77] In applying these provisions, the court must determine what is in the best interests of the children. The criteria to determine the children's best interests are set out in s. 37(3) of the C.F.S.A.:

Best interests of child

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

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

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

c) The child's cultural background.

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

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

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

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

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

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

j) The effects on the child of delay in the disposition of the case.

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

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

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

[78] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J) (1997), 23 R.F.L. (4th) 79 (Ont. Ct. [Gen. Div., Div. Ct.]).

[79] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective: Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

[80] The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance: Children's Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety: Children's Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Ont. Sup. Ct.).

[81] An order for crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of the child who becomes a crown ward, and it changes forever the life of the parent. No one in the family is untouched by this order, and no one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all the options available for the child. Crown wardship is the capital punishment of family law. It is a decision that is the most serious and important decision any court can make.

Analysis re Disposition

[82] These are the options available regarding disposition for these children:

a) returned to the care of either of their parents, with or without a supervision order;

b) placed with other family or community members; or,

c) an order for crown wardship.

The Mother's Plan

[83] The mother's plan is for the children to be returned to her care. The mother has a grade eight education and supports herself with Ontario Works.

[84] The mother says that she has been attending the methadone clinic for the methadone maintenance program since 2007 and that she has not used oxycontin or other drugs since then.

The Plan of R.A.N.B.'s father, Mr. A.K.F.

[85] R.A.N.B.'s father, Mr. A.K.F.'s plan is to move from Toronto to live with R.A.N.B. in a four bedroom house on a large property in Denbigh, Ontario, near Bancroft. His job there would be to take care of the farm and in return for this, he would be provided the use of the property with no rent. The property is in a rural location, about 15-30 minutes drive to Bancroft. His present source of income is ODSP.

[86] At the summary judgment motion R.A.N.B.'s father, Mr. A.K.F. admitted that he was then enrolled in a methadone program. He admitted that he had only then been clean of drug use for five months. However, he produced evidence that showed clean test results only for a period of two months before the summary judgment motion.

The Plan of E.J.B.'s father, Mr. D.B.

[87] E.J.B. was apprehended from the mother in April 2011. Mr. D.B. wants her placed in his care, or in the alternative, returned to the care of the mother. He lives in a bachelor apartment in Toronto.

[88] As proof of his parenting abilities, Mr. D.B. says that he lived with each of his sisters and their children in the past (with his older sister Valerie and her husband and three children (ages seven, five and two) in 2003 for two years, and in 2009 for one year; and with his sister C.B. and her four year old in 2007 for seven months). He says that during these periods he cared for his nieces and nephews on his own extensively.

[89] There was no evidence of this caregiving presented, only a brief letter (four sentences) from his sister C.B., which contained no details. The rules require evidence on a motion to be presented by way of affidavit. A sworn statement could have and should have been obtained. Letters are a poor substitute for sworn evidence. In these circumstances, Mr. D.B. should have produced an affidavit from the paternal aunt, providing details about the proposed plan of care for R.A.N.B., her role in that plan and her commitment to that plan. In the absence of sworn evidence and the required detail, the court is entitled to draw an adverse inference about Mr. D.B.'s plan and the paternal aunt's involvement in and commitment to the plan.

[90] E.J.B.'s father, Mr. D.B. says that he and E.J.B. will live alone at his current apartment, or with his sister C.B. and her two children, in a townhouse she had not yet bought at the motion. The letter from C.B. did not refer to this plan for Mr. D.B. and E.J.B. to live with her and her two children.

[91] Mr. D.B. says that he is no longer in a relationship with the mother. At the time of the motion, he was still enrolled in the PARS program. He says that the issues that require a trial are his parenting ability, and the stability in his lifestyle currently.

The Mother's Lack of Judgment Regarding her Relationships with the Two Fathers

[92] The society worker recommended counselling for all of the parents to address the conflictual manner in which they relate to one another, and the violence in their various relationships, and as well recommended individual counselling for the mother regarding her experience of domestic violence. The parents have not engaged in any therapeutic interventions to address the dysfunction in their relationships.

[93] The mother has been consistent in pursuing her relationships with the two fathers, even pursuing both relationships at the same time, and even in the face of clear information from CCAS that there were serious concerns about the involvement of each of the two fathers in her life and in the lives of the children. The mother has repeatedly shown lack of judgment regarding her relationships with the two fathers. How can the court have any confidence in the mother's ability to protect the children when she has exercised such fundamentally poor judgment?

Services Offered to the Parents

[94] The mother completed the Mothers and Kids Too program through Jean Tweed in 2011. CCAS encouraged the mother to participate in the Ontario Early Years Programs with R.A.N.B. but she did not.

[95] R.A.N.B.'s father, Mr. A.K.F. completed the Right from the Start Parenting group (completed on 30 November 2011) with Aisling Discoveries Child and Family Centre, and an anger management course (completed 10 March 2011) offered by the Province of Ontario.

[96] E.J.B.'s father, Mr. D.B. completed the COPE parenting group.

[97] Both fathers spoke to CCAS of attending the CAMH 21 day rehabilitation program, but neither did.

R.A.N.B.

[98] R.A.N.B. (now three years old) was diagnosed in 2012 with Global Developmental Delay. At the time of the summary judgment motion there was no report or other evidence available with details of this diagnosis, a prognosis, or treatment recommendations.

[99] R.A.N.B. also has difficulties with impulsivity and behaviour regulation. The evidence of the CCAS workers is that he is a challenging child to parent. R.A.N.B. will require a very predictable, structured, consistent, and nurturing home with highly skilled parents. He will need a strong, patient, understanding and supportive family, who is resourceful, has many supports and can work with professionals to help him meet his fullest potential.

[100] The evidence about the children easily supports a finding that the children are in need of protection pursuant to both s. 37(2) (a) and (b) C.F.S.A., and that there is no triable issue in this regard.

Examination of the Disposition Options

[101] The evidence which supported the protection findings is also relevant and influential regarding disposition. The parent's parenting has been negatively affected by their substance abuse and addiction issues, and by the dysfunctional, high conflict and violent relationships between the three of them. Since the first involvement with CCAS in March 2009, the parents have had ample time and opportunity to work on these issues, but have not provided CCAS or the court with information related to the protection concerns, and have not addressed these serious protection concerns.

Why Not a Supervision Order?

[102] One option is to return the children to one or more of the parents, subject to a supervision order. That is not a suitable option as the children would not be safe with the mother under a supervision order. Nor would R.A.N.B. be safe with his father, Mr. A.K.F.. And E.J.B. would not be safe with her father, Mr. D.B..

[103] The mother has lied to the CCAS about her relationships with the two fathers, and about other things, and has not followed through with recommendations from CCAS that she needs to get counselling to assist her in dealing with the violent relationships she has with the two fathers.

[104] The plans proposed by E.J.B.'s father, Mr. D.B. and R.A.N.B.'s father, Mr. A.K.F., are also not suitable plans for their care, nor a suitable plan for a supervision order. Both fathers have a history of violence towards the mother, and have not participated in sufficient counselling on this issue. Both fathers have not acknowledged that the instability, conflict, and violence in their relationship with the mother has consequences for the children, and is harmful to children. The details of Mr. D.B.'s plan for E.J.B. are unclear and unsupported by his co-planner, the paternal aunt. It is not clear who, in fact, is planning for E.J.B..

[105] Any plan for the return of the children to the mother, R.A.N.B.'s father, Mr. A.K.F., or E.J.B.'s father, Mr. D.B. would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order. There is no foundation for a working relationship or a supervision order under the circumstances in this case. Any supervision order involving the children and the mother, or R.A.N.B. and Mr. A.K.F., or E.J.B. and Mr. D.B., would be an ineffective instrument for the protection and safety of the children. Neither the mother nor either of the two fathers is a suitable candidate for a supervision order, which requires a sense of co-operation and a willingness to work with CCAS.

[106] The children are entitled to certainty, finality and to grow up in a safe and stable family, where they are valued and protected from harm. They will not have this if they are returned to the mother, or to R.A.N.B.'s father, Mr. A.K.F. or to E.J.B.'s father, Mr. D.B..

The Summary Judgment Request

[107] The mother's evidence on the motion offered no details of the current status of any treatment or other program she may be in (other than the methadone program). She offered no explanation as to why she did not follow through with CCAS recommended programs. There is no evidence that she has received any counselling or therapy. The evidence of the two fathers has the same gaps in the information presented.

[108] The question for the court on a motion for summary judgment is not whether there is any evidence to support the mother's position, or the positions of either of the two fathers, but rather whether the evidence is sufficient to require a trial. There is not sufficient evidence to require a trial in this case.

[109] The court has all the necessary material facts to determine the disposition issue. There is very little dispute in this motion about the material facts. The mother, R.A.N.B.'s father, Mr. A.K.F., and E.J.B.'s father, Mr. D.B., instead, offer varying explanations for the material facts, most of which explanations are inadequate or not believable.

[110] The real issue is what decision the court should make based on the facts. This is a question of law. In such circumstances, rule 16(8) of the Rules applies: if the only genuine issue is a question of law, the court shall decide the issue.

[111] If the mother's evidence on the motion is her "best foot forward", (see Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. Ct.)), it discloses no genuine issue for trial. There is no realistic possibility of an outcome other than that sought by the CCAS (see Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (Ont. Sup. Ct.)). There is no need to have a trial judge decide this issue. The motion for summary judgment is granted.

[112] It is not in the best interests of R.A.N.B. and E.J.B. to delay their permanent placement any longer. The proper disposition for these children now is clear. The mother is not capable of caring for these children, nor are either of the two fathers, and they should not be returned to the care of any of the parents.

[113] It is not in the children's best interest, in these circumstances, for the court to choose a disposition that is in any way uncertain or not final. The only option that meets these criteria is crown wardship.

Access

Access Legal Principles

[114] The test for access to crown wards is set out in s. 59 (2.1) of the C.F.S.A.:

Access: Crown ward

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

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

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

[115] The process for a decision regarding access, following a decision that the children should be made crown wards, was set out by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., supra, 2010 (Ont. Sup. Ct.), para. 25, as follows:

1. 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.

2. 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.

3. 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).

[116] Once there has been an order for crown wardship, the legislation reflects an intention to shift the focus away from providing services to facilitate the re-integration of the child back to the natural family, towards a focus on long-term, permanent placement, preferably through adoption: Children's Aid Society of Ottawa v. R.L., 2004 CarswellOnt 3080, 132 A.C.W.S. (3d) 718, [2004] O.T.C. 665 (Ont. Sup. Ct.), para. 57; Children's Aid Society of Niagara Region v. C. (J.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

[117] There is a presumption against court ordered access for a crown ward in order to facilitate permanency planning: Children's Aid Society of Niagara Region v. C. (J.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

[118] Once the decision is made in favour of crown wardship, the burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is an extremely difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children's Aid Society of Toronto v. M.(C.), [1994] 2 S.C.R. 165 (S.C.C.), p. 50; Children's Aid Society of Toronto v. D.P., 2005 CarswellOnt 4579, [2005] W.D.F.L. 4375, [2005] W.D.F.L. 4373, 19 R.F.L. (6th) 267, 202 O.A.C. 7, 93 A.C.W.S. (3d) 853, [2005] O.J. No. 4075 (Ont. C.A.).

[119] Access is the exception and not the rule in the context of a crown wardship order. Section 59(2) of the C.F.S.A. creates a presumption that any right of access is revoked: Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. L. (M.), [1998] 2 S.C.R. 534, 230 N.R. 201, 204 N.B.R. (2d) 1, 520 A.P.R. 1, 165 D.L.R. (4th) 58, 41 R.F.L. (4th) 339, [1998] S.C.J. No. 52, 1998 CarswellNat 557 (S.C.C.), para. 44.

[120] The onus is on the persons seeking access to a crown ward to prove on a balance of probabilities that:

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

(2) the relationship between the person and the child is beneficial to the child; and,

(3) access will not impair the child's future opportunities for a permanent or stable placement.

[121] The parent has the onus of establishing all three portions of the test in section 59 (2.1) of the C.F.S.A.. This is a very difficult test for the parent to meet: Children's Aid Society of Niagara Region v. C. (J.), supra, 2007 (Ont. Div. Ct.).

[122] The meaning of the phrase "beneficial and meaningful" was considered in Children's Aid Society of the Niagara Region v. M.J., 2004 CarswellOnt 2800, [2004] W.D.F.L. 510, 4 R.F.L. (6th) 245, [2004] O.T.C. 634, [2004] O.J. No. 2872 (Ont. Sup. Ct.), para. 45-47:

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.

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.

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.

Access Analysis

The Parent's Access to the Children

[123] None of the three parents works or goes to school, or has any other responsibilities, including child-care responsibilities, which might interfere with their ability to attend visits consistently. However, access by the mother and by R.A.N.B.'s father, Mr. A.K.F. has been inconsistent.

[124] The frequency, duration, location and level of supervision of the mother's access has changed several times while the children were in care, due to the mother's progress, then regression, and her attendance at visits. The mother attended 80% of the scheduled visits available to her. However, she missed 30 visits (and called CCAS to cancel only eight of those), and was late for 43 visits, despite the fact that the CCAS social worker had prepared a detailed written calendar setting out the schedule of visits for the mother's use.

[125] R.A.N.B.'s father, Mr. A.K.F. attended 54% of the scheduled visits available to him. However, he missed 29 visits, and was late for 12 visits. Mr. A.K.F. said that he missed 12 visits because he was in jail for 2½ months.

[126] E.J.B.'s father, Mr. D.B. attended 92% of the scheduled visits available to him. He specifically asked for a visit on E.J.B.'s birthday, and then did not show up for this visit. He missed four visits (only two of which he called in advance to cancel), and he was late for five visits. Although D.B. was more consistent with his visits than the other parents, Mr. D.B. has spent no time in a care-giving role with E.J.B., other than these visits.

[127] There is no evidence that the mother's access, or the access of the two fathers, to the children is beneficial or meaningful from the children's perspective. While the access may be enjoyable, there is insufficient evidence that there is a bond between them that is important to the children. The access and the relationship to any of the three parents are not significantly advantageous to the children.

[128] Even if the access were beneficial and meaningful to the children, the court must be satisfied that access will not impair the child's future opportunities for a permanent placement. The children are adoptable. Given their ages, and their adoptability, the three parents cannot establish that access would not impede a permanent adoption plan for them.

[129] The mother and the two fathers have not met the onus on them to rebut the presumption against access to a crown ward outlined in subsection 59(2) of the C.F.S.A.. The parents cannot meet the onus in s. 59(2.1) C.F.S.A. regarding access to the child.

[130] The parents' claims for access to the children are dismissed. There shall be an order for no access to the children.

Orders

[131] These are the statutory findings regarding these children:

• R.A.N.B. is a male child who was born on 16 May 2009. N.P.B. is his mother. A.K.F. is his father. He is Catholic. He is not Indian and not Native. He was apprehended on 20 May 2011 in the City of Toronto; and,

• E.J.B. is a female child who was born on 6 March 2011. N.P.B. is her mother. D.B. is her father. She is Catholic. She is not Indian and not Native. She was apprehended on 13 April 2011 in the City of Toronto.

[132] The children are found to be in need of protection under ss. 37(2) (a) and (b) C.F.S.A..

[133] R.A.N.B. and E.J.B. shall be crown wards without access for the purposes of adoption.

Released: 14 November 2012

Justice Carole Curtis