WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) Prohibition: identifying child
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Idem: order re adult
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.—(3) Idem
A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Windsor Registry No.: 206/07
Date: 2012-04-30
Ontario Court of Justice
Between:
Windsor-Essex Children's Aid Society, Applicant
— And —
C.M. and W.A., Respondents
Before: Justice Barry M. Tobin
Heard on: 11 April 2012
Endorsement inscribed on: 30 April 2012
Statutes and Regulations Cited
Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 1(1), subclause 37(2)(b)(ii), section 58, subsection 59(2.1) and section 70.
Family Law Rules, O. Reg. 114/99 [as amended], rule 2, rule 16, subrule 16(1), subrule 16(4), subrule 16(4.1) and subrule 16(6).
Cases Cited
Counsel
Karen M. Robertson — counsel for the applicant society
James W. Oxley — duty counsel assisting the respondent mother C.M.
No appearance by or on behalf of the respondent father, W.A., even though served with notice
Endorsement
[1] Introduction
JUSTICE B.M. TOBIN (endorsement):— The society brings a motion (continuing record, volume 12, tab 14) pursuant to rule 16 of the Family Law Rules, O. Reg. 114/99, as amended, in which it seeks a finding that the child M.R.A., born on […] 2010, is a child in need of protection pursuant to subclause 37(2)(b)(ii) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, and for an order that the child be made a ward of the Crown and placed in the care and custody of the society without access to either of the respondent parents.
[2] The respondent mother, Ms. C.M., opposed the disposition sought by the society.
[3] The respondent father, Mr. W.A., filed an answer in this case, but did not appear on the motion.
[4] On consent, the statutory findings with respect to the child were made at the outset of argument on the motion.
[5] On consent, a finding was made that the child is in need of protection under subclause 37(2)(b)(ii) of the [Child and Family Services Act](https://www.ontario.ca/laws/statute/900011). The basis of this finding is set out below.
1: Legal Considerations — Summary Judgment
[6] Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment for a final order without a trial on all or part of a claim: See subrule 16(1).
[7] The party making the motion is required to serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: See subrule 16(4).
[8] In response to a moving party's evidence, the responding party may not rest on mere allegations or denials but must set out specific facts showing there is a genuine issue for trial: See subrule 16(4.1).
[9] If there is no genuine issue requiring a trial of a claim or defence, the court is required to make a final order accordingly: See subrule 16(6).
[10] 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: See [Children's Aid Society of Hamilton v. M.N.](https://www.canlii.org/en/on/oncj/doc/2007/2007canlii13503/2007canlii13503.html), 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 CarswellOnt 2453 (Ont. Fam. Ct.).
[11] A summary judgment motion should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure that 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: see [Jewish Family and Child Service of Toronto v. R.A. (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No. 47, 2001 CarswellOnt 73 (Ont. S.C.); affirming Jewish Family and Child Service of Toronto v. R.A.](https://www.canlii.org/en/on/oncj/doc/2000/2000canlii22546/2000canlii22546.html), [2000] O.J. No. 6045, 2000 CarswellOnt 5169 (Ont. C.J.).
[12] The test on a motion for summary judgment is whether there is a need for a trial to establish the material facts that are necessary to the determination of the application: See [Children's Aid Society of Waterloo Region v. C.A.D., 2011 ONCA 684](https://www.canlii.org/en/on/onca/doc/2011/2011onca684/2011onca684.html), 209 A.C.W.S. (3d) 337, [2012] W.D.F.L. 1609, [2011] O.J. No. 4891, 2011 CarswellOnt 11963 (Ont. C.A.).
[13] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showing there is a genuine issue for trial must be insufficient to defeat a claim for summary judgment: See [Children's Aid Society of Toronto v. M.A.](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii53975/2002canlii53975.html), 114 A.C.W.S. (3d) 676, [2002] O.J. No. 2371, 2002 CarswellOnt 1923 (Ont. C.J.).
[14] In interpreting rule 16, rule 2 of the Family Court Rules must be considered. As well, reference to subsection 1(1) of the [Child and Family Services Act](https://www.ontario.ca/laws/statute/900011) — which provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children — is necessary to the interpretation of the Act: See [Children's Aid Society of Hamilton v. Marilyn W.](https://www.canlii.org/en/on/oncj/doc/2003/2003canlii2309/2003canlii2309.html), 63 O.R. (3d) 512, [2003] O.J. No. 220, [2003] O.T.C. 51, 2003 CarswellOnt 200 (Ont. Fam. Ct.).
[15] No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant: See [Children's Aid Society of Niagara Region v. S.C.](https://www.canlii.org/en/on/oncj/doc/2008/2008canlii52309/2008canlii52309.html), 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5929 (Ont. Fam. Ct.), at paragraph [43].
2: Finding — Is There a Genuine Issue for Trial?
[16] The risk to the children arises from the historical and ongoing behaviour and circumstances of the respondents that have necessitated the involvement of the society with the respondents and four of their children. None of the children are in the care of the respondent parents because of a history of domestic violence, lack of parenting skills, anger management issues and, on the part of the mother, cognitive limitations.
[17] The society became involved with the respondents prior to the birth of their first child, N.D.J.A., born on […] 2006. Other than for a short period of time following the child's birth, the respondent mother has not had care of the child. His access with the respondent mother is supervised.
[18] The respondents' children, K.C.S.A. (born on […] 2008) and H.M.A.A. (born on […] 2009), have never resided in the care of either parent. They were both apprehended shortly after birth. Hope was the subject of a protection application. A finding of protection was made on consent of the respondent mother. The respondent father had withdrawn from the proceedings. The finding was pursuant to subclause 37(2)(b)(ii) of the [Child and Family Services Act](https://www.ontario.ca/laws/statute/900011). A Crown wardship order without access was made with respect to Kawlija following a lengthy hearing that will be considered below.
[19] The respondent mother gave birth to a fifth child, J.J.C.A., born on […] 2011. This child was apprehended shortly after birth and is in the temporary care and custody of the society. The order placing him in the temporary care and custody of the society was not opposed.
[20] On the basis of these facts, and the consent of the respondent mother, I find that there is no genuine need for a trial to establish the material facts necessary to the determination of the issue of finding the child in need of protection.
[21] For the reasons stated above, I find the child is in need of protection under subclause 37(2)(b)(ii) of the [Child and Family Services Act](https://www.ontario.ca/laws/statute/900011).
3: Disposition
3.1: Legal Considerations: Disposition
[22] In [Children's Aid Society of Toronto v. Leeann Alyssa C. and Darren Henry Grant C., 2011 ONCJ 849](https://www.canlii.org/en/on/oncj/doc/2011/2011oncj849/2011oncj849.html), 213 A.C.W.S. (3d) 366, [2011] O.J. No. 6312, 2011 CarswellOnt 15640 (Ont. C.J.), the court addressed the process and principles relevant to a determination of the proper disposition as follows:
[45] 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.
[46] Subsection 57(1) of the CFSA sets out the types of orders available to the court after a child is found to be in need of protection:
57. Order where child in need of protection.— (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 or an order under section 57.1, in the child's best interests:
Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
Society wardship — 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 — That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.
Consecutive orders of society wardship and supervision — That the child be made a ward of the society under paragraph 2 for 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.
[47] The decision process on a disposition hearing, following a finding that the children are in need of protection, has been set out recently by Justice Craig Perkins in [Children's Aid Society of Toronto v. Tracy L. and Evonne B., 2010 ONSC 1376](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc1376/2010onsc1376.html), [2010] W.D.F.L. 1957, [2010] O.J. No. 942, 2010 CarswellOnt 1343 (Ont. S.C.), paragraph [25], as follows:
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.)
If a society wardship order would be in the child's best interests, but the maximum time for society wardship under subsection 70(1) has expired, determine whether an extension under subsection 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.
[48] Subsection 57(1) is limited by section 70 of the CFSA, 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 subsection 70(4) of the CFSA . . . .
[50] Subsection 57(2) CFSA requires the court to inquire into what efforts the society has made to assist the child before intervention. . . .
[51] Subsection 57(3) of the CFSA 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. . . .
[52] Subsection 57(4) of the CFSA requires the court to look at community placements, including family members, before deciding to place a child in care. . . .
[53] In applying these provisions, the court must determine what is in the best interests of the child. The criteria to determine the child's best interests are set out in subsection 37(3) of the CFSA:
(3) Best interests of child.— 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:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
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.
The importance of continuity in the child's care and possible effect on the child of disruption of that continuity.
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's remaining with or returning to a parent.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
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.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[55] 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. Cidalia M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii83/1994canlii83.html), [1994] S.C.J. No. 37, 1994 CarswellOnt 376.
[56] 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 v. Redwood, (1980)](https://www.canlii.org/en/mb/mbca/doc/1980/1980canlii3654/1980canlii3654.html), 19 R.F.L. (2d) 232, [1980] M.J. No. 245, 1980 CarswellMan 44 (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), 104 A.C.W.S. (3d) 892, [2001] O.J. No. 1579, [2001] O.T.C. 287, 2001 CarswellOnt 1504 (Ont. Fam. Ct.).
[23] Section 50 of the Child and Family Services Act provides that a court may consider the past conduct of a person towards any child if that person is caring for or has access to or may care for or have access to a child who is the subject of a proceeding and any written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding, or the reasons for a decision in an earlier civil case, is admissible into evidence.
[24] A Crown wardship order as sought by the society is the most profound order that a court can make. To take someone's children from him or her is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of the alternative remedies: See [Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T. (1996), 90 O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 CarswellOnt 1428 (Ont. Div. Ct.)](https://www.canlii.org/en/on/onca/doc/1996/1996canlii7662/1996canlii7662.html).
3.2: Disposition: Is There a Genuine Issue for Trial?
3.2(a): Past Services
[25] The society has had extensive involvement with Ms. C.M., including making a number of recommendations with respect to services that would address the risk to children who might be placed in her care.
[26] In its statement of facts, the society summarized its evidence regarding past services provided as follows:
(a) two psychological parenting capacity assessments by Dr. J. Jay McGrory of the respondent mother. Such an assessment was to be conducted of the respondent father as well however he did not participate;
(b) following the receipt of the first assessment, a conference between counsel and Dr. McGrory as to what services could be introduced so as to address the deficiencies in the respondent mother's ability to parent;
(c) an ongoing family service worker;
(d) save and except with respect to [N.D.J.A.], a child's worker for the children;
(e) extensive access opportunities;
(f) a referral to the Healthy Baby Healthy Children Program;
(g) a referral for the respondent mother to participate in an in-home, hands-on parenting program — the Foster Parent as Teacher program. This would have been available to the respondent father too if he complied with services related to domestic violence counselling;
(h) domestic violence counselling;
(i) individual counselling;
(j) couple's counselling;
(k) an in-home Family Wellbeing Program;
(l) a referral for the mother to see a psychologist;
(m) services from the Teen Health Centre;
(n) referrals for each of the children other than [N.D.J.A.] for the mother to enter into a residential facility for new young mothers.
With respect to these services:
(a) Healthy Babies Healthy Children program
This referral was made prior to [N.D.J.A.'s] birth and to continue upon his birth. A report received from the Healthy Babies Healthy Children program for this time period indicated that the mother was disinterested in its services, unprepared for visits, forgot scheduled visits and deferred the care of the child to the grandmother.
A further referral was made with respect to [K.C.S.A.] for this service. This program ended its involvement with the mother prior to [K.C.S.A.'s] birth, however, due to the Public Health Nurse's and the Home Visitor's observations of environmental concerns in the home (safety hazards and an inappropriate level of cleanliness), the mother's inability to retain information taught by the Family Home Visitor and the inability of the mother to meet her own basic needs.
(b) Dr. J. Jay McGrory
The first assessment dated 14 September 2007 found the respondent mother was unable to meet the needs of the child and that a placement with her would likely create a significant risk of physical and emotional harm.
Dr. McGrory made several recommendations including for the mother to obtain and maintain stable and appropriate housing, that she participate in individual counselling in relation to her history of abuse, low self-esteem and vulnerability in relationships and that she participate in intensive parenting intervention.
(c) The Foster Parent as Teacher Program
The respondent father did not participate as he failed to attend to the other services first required of him. The initial program for the mother occurred from 15 September 2008 to 14 November 2008. The mother's attendance was extremely poor resulting in the suspension of the program on 15 October 2008. After securing the mother's recommitment to the program, the program began again on 3 November 2008. From its inception to just before Christmas 2008, the mother missed 20/33 scheduled teaching sessions. The program started back up on 12 January 2009. The program ended on 13 March 2009 by which date the mother had failed to attend one-half of the scheduled appointments.
(d) Plan of Care Meeting with Dr. McGrory
On 18 December 2008, a meeting was convened at the society with the mother's then counsel Lisa Labute, then counsel for the society Pamela Sasso and Marie Bondy the family service worker. Dr. McGrory recommended the mother receive concrete hands-on parenting instruction preferably in her home. Dr. McGrory did not recommend insight-oriented counselling as being beneficial for the mother. The Foster Parent Teaching Program was to address the concrete hands-on parenting recommendation and, upon its conclusion, an in-home program was implemented.
(e) Family Wellbeing Program
This program was introduced to provide hands on instruction in how to maintain and sustain a clean, safe home environment as well as to reinforce parenting skills. Over the course of the involvement of the worker Shannon Scott, the in-home access had to be suspended due to a bed-bug infestation, the parents could not consistently maintain a clean and safe home environment and there were ongoing issues with the care of the children.
(f) Teen Health Centre
This referral was made in the latter part of 2008 for the mother to receive weekly therapy from Dr. Andrew Taylor, a psychologist at the Centre. The mother did not attend scheduled weekly therapy although it was recommended. The mother missed the majority of scheduled appointments resulting in a report dated 27 April 2009 indicating there was no benefit to the mother of continued session due to her level of functioning, her lack of awareness of current emotional difficulties and her lack of sufficient stability to commit to weekly psychotherapy.
(g) Dr. J. Jay McGrory
An updated assessment was sought in early 2009 for the mother and an assessment for the father as well. The parents failed to attend for appointments scheduled for 6 April, 5 and 19 May 2009. Ultimately, the father did not complete a parenting capacity assessment. The mother's completion of the assessment did not occur until after the birth of the third child, [H.M.A.A.].
Dr. McGrory did not support a return of either of the child [K.C.S.A.] or [H.M.A.A.] to the mother's care and identified that the mother effectively did not have the capacity to parent any child.
(h) Financial Assistance
Throughout the course of the society's involvement there have been financial issues. The society attempted to address these by encouraging the parents to secure geared-to-income housing (they did not), secure a stable income (for the mother this meant an application for ODSP which she did not finalize until after [H.M.A.A.] and [K.C.S.A.] were made Crown wards and for the father to become re-instated on public assistance which was delayed due to lack of compliance). Food vouchers were provided from time to time as well as referrals to food banks.
(i) Couple's Counselling
The parents attended one counselling session only. The mother blamed the father for unwillingness to attend but nothing was done by either to follow up with the family service worker for an alternate referral or service.
(j) Access
Both parents were afforded significant access opportunities. The records of the society demonstrate a substantial number of missed appointments, even when, for a long time period, the access was afforded to them in their home.
Specifically: since the two older children were made Crown wards without access, the respondent mother has missed 71 out of a possible 118 visits to [M.R.A.] (1 May 2011 to 31 January 2012)
In this same time period, the respondent father has attended only two visits.
During the period in which visits were at the home, there were positive and negative reports. Of concern was the home environment, conflict between parents, the mother's need for basic instruction (such as not making formula in the coffee pot used to make coffee) and the father's general lack of engagement.
(k) Participation in Special Services for [K.C.S.A.]
The child [K.C.S.A.] has significant issues with respect to his vision. While the visits were in-home, both parents had the opportunity to have the child's worker from CNIB come into the home to work with them regarding the child's special needs. Due to the frequency for which the parents did not make themselves available for the home visits, this in-home service had to be terminated.
(l) Anger Management
A recommendation for both parents was made to the John Howard Society and Hiatus House for domestic violence counselling.
To date, the father has never completed a program.
The respondent mother completed a John Howard Society program Taking Charge on 20 July 2010. This related to family violence, anger management and self-esteem. It took the respondent mother from 14 September 2009 to do so and the program was only nine sessions.
The respondent mother indicates in her current materials yet a further plan to pursue the Hiatus House Fresh Start program.
(m) Provision of Family Service Worker
For a period in excess of five years, family service worker Marie Bondy has been assigned to the file. She has made repeated efforts by way of home visits, telephone calls, meetings at the society with and without counsel, court attendances and referrals to address the concerns related to both parents' ability to parent. In addition to the specific programs identified above, the worker has made referrals for other parents programs and to a residential program for the mother (where she could prepare for and reside following the birth of a child), sought out alternative placements for the children including opportunities for the mother to live with her own mother and one of the children and co-ordinated plan-of-care meetings for all of the children at which the parents generally did not attend.
(n) Court Plan of Care
From the birth of the very first child and ongoing, there have been a number of court plans of care developed by the society and reviewed with the parents. Such plans have included the services specifically referred to above. Overall, both parents demonstrated a lack of commitment to programming, follow through and addressing referrals in a timely fashion. With respect to the mother, ultimately it was Dr. McGrory's assessment that, due to her limited cognition, further programming would not be of benefit.
3.2(b): Prior Proceedings
[27] A hearing was held before Justice Douglas W. Phillips, over 15 days, between November 2010 and April 2011. A judgment was released on 20 April 2011. The hearing concerned the children K.C.S.A. and H.M.A.A. Within that proceeding, Ms. C.M. sought the return to her of the children subject to supervision. The court held that neither child could be adequately protected nor could their best interests be served by way of a supervision order.
[28] The court stated as follows:
[219] All of the evidence points up that the respondent mother lacks sufficient skills to parent the children on a long-term basis. While she may earnest want to care for her children and to have them returned to her care, the evidence supports the conclusion that she is unable (not unwilling) to care for her children given that she does not have the capacity to care for them.
[220] The evidence points up that the respondent mother does not understand or appreciate the poor judgment that she has historically and even more recently exercised relative to her choice of male partners. . . .
[221] On the eve of trial as the very future of her two children hung in the balance, she initiated another relationship with a male whom she hardly knew, and about whom she concluded suffered mental health difficulties whom she wanted to help. That relationship, though short lived, resulted (based on her allegations) in physical abuse being inflicted upon her. This evidence supports a conclusion that the respondent mother, despite her very best of intentions, is unable to protect herself. If that is the case, what does it say of her ability to protect her children from the poor judgment that she has exercised relative to male partners? . . .
[222] The respondent mother's plan for the care of her children is, to put it gently, not in readiness. She has not taken the steps and done the things that are in her power to do in order to prepare herself for the return of her children. . . .
[223] The respondent mother has not availed herself of the many opportunities that she has been given which would allow her to craft a plan that would permit her to provide for her children. Over the whole of the time that the children have been in society care, the respondent mother has had sufficient opportunity to address what had to be done by her to resume the care of her children. Regrettably but plainly, she has failed to take advantage of that time. It is clear, on the evidence that the society has taken great care to provide the mother with every available resource possible in order that she may make the gains in capacity to care for her children.
[224] . . . It appears by all accounts that [Ms. C.M.] is unable to help herself.
[225] [Ms. C.M.] has failed to attend a significant number of access visits with her children. Transportation to and from these visits has been provided by the society. A number of these access visits were at the teaching foster home, where the respondent mother could spend time with one of her children and learn the parenting skills that she would need in order to care for her children. She missed eight of 12 sessions during a period when she was not working and was not pregnant. All that [Ms. C.M.] had to do was make herself available at the designated time. . . .
[226] The evidence of Dr. McGrory supports a Crown wardship result. Dr. McGrory opined about the concerns having to do with the respondent mother's emotional functioning, cognitive limitations, parenting skills and vulnerability in relationships. The report supports the conclusion that [Ms. C.M.] makes poor choices that negatively impact her wellbeing and consequently (were the children placed with her) the wellbeing of her children.
[227] Crown wardship (without access) will serve the best interests of these two children. They will be protected from the risks associated with the notion of placement with the respondent mother. They will be safe from the harm that might arise in consequence of her poor choices in male companions. They will receive a level of parenting and care that neither would receive were they placed with the respondent mother. Their physical, mental and emotional needs would be met. With adoption as a plan, the important considerations having to do with their development of a positive relationship with a parent, within a secure family setting can be achieved. Avoiding future disruption that would likely come from their return to care (were they placed with the respondent mother) would be avoided. The plan of the society, given all of the evidence, is sound.
3.3: Section 70 Considerations
[29] The child has been in the care of the society for 18 months. It is not now open to the court to make a society wardship order. The only dispositions available are a supervision order or a Crown wardship order. See section 70.
3.4: Mother's Plan
[30] The mother's plan is to have the child placed in her care subject to society supervision.
[31] She argues that the risk of domestic violence has been ameliorated because it is her plan to remain separate and apart from the respondent father. Ms. C.M. appended, as an exhibit to her affidavit of 4 April 2012, a letter from Hiatus House, the admittance into evidence of which was not objected to by the society. This letter discloses that Ms. C.M. was seen for an intake assessment in the Hiatus House Fresh Start Women's Group program on 21 December 2011. She was admitted into the Introductory Women's Group program on 7 March 2012 and had completed two of the three sessions.
[32] She deposes that she has had counselling at the Teen Health Centre. This counselling occurred before the hearing before Justice Phillips, referred to above. Ms. C.M. attends counselling at Sandwich Community Health Centre with a person named Melanie Wydrzywski. Particulars of this counselling are lacking. Her evidence does not state what issues are being addressed, nor the qualifications of the individual who is providing the counselling. At the time the affidavit was sworn by Ms. C.M. (1 March 2012) her appointment was not scheduled until 6 March 2012. Ms. C.M. provided a letter dated 29 March 2012 from the Windsor Essex Community Health Centre (at the Sandwich Community Health site) the admission of which into evidence was not objected to by the society. The letter states that the anticipated goals of counselling are not known at this time as the first counselling session was dedicated to gathering a personal history and building a therapeutic alliance. It is anticipated that Ms. C.M. would be seen on a bi-weekly basis for counselling.
[33] As part of the mother's plan, she deposes that she has taken a parenting course. This course was taken prior to the hearing held before Justice Phillips and referred to above. There is no evidence that another parenting course was taken subsequent to the hearing held before Justice Phillips.
[34] Ms. C.M. deposes that she has a good apartment and is looking for a better accommodation. The society's evidence is that the mother's apartment has suffered from an infestation of bed bugs. Access to her children had been suspended due to that infestation. To date, Ms. C.M. has provided no evidence that the infestation has been addressed. No particulars of alternate premises were provided.
[35] Ms. C.M. has deposed that she visited regularly with the child. The society's record discloses otherwise. To 31 January 2012, she had missed 71 of 118 possible visits. From 9 February 2012 to 5 March 2012, she attended 10 of 12 visits.
[36] Ms. C.M. deposes that she is in good health both physically and mentally. However, on 6 February 2012, an access visit had to be cancelled because Ms. C.M. advised the society worker that she had an appointment to address her mental health. She advised that, in the prior month, she felt frustration with the society's involvement and with the fathers of her children and as a result engaged in cutting behaviour. She had been referred to the Mental Health Crisis Centre and had an appointment on 6 February 2012. A referral has been made to Family Service Windsor for an adult protection services worker for Ms. C.M. The purpose of this worker is to assist Ms. C.M. in handling her own affairs and has nothing to do with the provision of parenting skills.
[37] Ms. C.M. deposes that any risks of harm to the child could be alleviated by terms and conditions should she be placed in her care. As was stated by Justice Phillips, Ms. C.M. may have the best of intentions but is not able to follow through with terms of supervision such that she would be able to protect any child in her care. Dr. McGrory's findings remain relevant. There are concerns having to do with her emotional functioning, cognitive limitations, parenting skills and vulnerability in relationships. The mother's evidence does not raise a triable issue that she has overcome the risks posed to the child by reason of these concerns. The evidence does not support her contention that she has worked hard to learn parenting skills such that she has addressed the steps set out by Dr. McGrory.
[38] At this time, Ms. C.M. is being treated by Dr. Sabelli for depression with appropriate medication. The mother deposes that "this has helped me a great deal." The society obtained a letter from Windsor Essex Community Health Centre from Danielle Sabelli, Nurse Practitioner. The report from Ms. Sabelli states that,
according to the DSM-IV diagnostic criteria for depression, [Ms. C.M.] experiences many of the signs and symptoms. These include: depressed mood, loss of interest in everything, loss of appetite, insomnia, fatigue, feelings of worthlessness and guilt in relation to her children, diminished ability to think and concentrate; and recent thoughts of suicide. With this being said, [Ms. C.M.] is also grieving the loss of her child and therefore can only be diagnosed as situational depression at this time.
The treatment plan is to have Ms. C.M. take antidepressants and be seen by a social worker. She has missed two appointments with the social worker as of March 19, 2012. Follow-up appointments have been scheduled.
[39] A trial is not necessary to establish material facts in relation to the determination of the appropriateness of the mother's plan of care. Ms. C.M.'s circumstances, including her ability to care for the child, are substantially the same as they were when Justice Phillips rendered his decision. There has not been a significant improvement in her ability — as opposed to her desire — to protect the child from risk of harm even while subject to terms of supervision. The analysis of Justice Phillips remains appropriate with respect to Ms. C.M.'s plan of care for M.R.A.
[40] The best interests of M.R.A. require that her physical, mental and emotional needs be met by her caregiver. On the evidence, it is clear that Ms. C.M. will be unable to do so at this time. A trial is not needed to determine this issue. M.R.A.'s best interests require her to be taken care of within a plan that provides certainty and permanency in a safe and stable environment. Ms. C.M. at this time is not able to do so.
[41] There have been no other family or community plans put forward with respect to the care of M.R.A.
[42] The only disposition available to the court in the circumstances of this case is an order for Crown wardship. There is no need for a trial to establish material facts necessary to determine that issue. An order for Crown wardship will provide certainty and permanence for the child.
4: Access
4.1: Legal Considerations — Access
[43] Subsection 59(2.1) addresses access orders that may be made under section 58 in respect of a child who has been made a ward of the Crown. It is formulated as follows:
(2.1) Access: Crown ward.— 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.
[44] In [Children's Aid Society of Ottawa v. C.W. and P.W.](https://www.canlii.org/en/on/oncj/doc/2008/2008canlii13181/2008canlii13181.html), 166 A.C.W.S. (3d) 100, [2008] W.D.F.L. 4013, [2008] O.J. No. 1151, 2008 CarswellOnt 1762, at paragraph [99], Justice V. Jennifer Mackinnon quoted a passage from the Divisional Court in [Children's Aid Society of Niagara Region v. J.C., S.B and R.R.](https://www.canlii.org/en/on/onca/doc/2007/2007canlii8919/2007canlii8919.html), 223 O.A.C. 21, 281 D.L.R. (4th) 328, 36 R.F.L. (6th) 40, [2007] O.J. No. 1058, 2007 CarswellOnt 1680 (Ont. Div. Ct.):
[29] "Beneficial" has been held to mean "advantageous". "Meaningful" has been held to mean "significant" (Children's Aid Society of Niagara Region v. M.J., K.S. and S.S., supra, at para. [45]). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother's relationship with the children at the time of trial was that she loved the children, the children loved her and, through her access, she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of clause 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified.
[45] Justice Joseph W. Quinn dealt with the same issue in [Children's Aid Society of Niagara Region v. M.J., K.S. and S.S.](https://www.canlii.org/en/on/oncj/doc/2004/2004canlii2667/2004canlii2667.html), 4 R.F.L. (6th) 245, [2004] O.J. No. 2872, [2004] O.T.C. 634, 2004 CarswellOnt 2800 (Ont. Fam. Ct.), at paragraphs [45] through [47] as follows:
[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.
[46] The evidentiary onus is on the parent. The parent must show more than the child has a good time during visits. More is required than just a display of love between parent and child. The person seeking access must prove that his or her relationship with the child "brings a significant positive advantage to the child." See [Children's Aid Society of Niagara Region v. J.C., S.B and R.R., supra](https://www.canlii.org/en/on/onca/doc/2007/2007canlii8919/2007canlii8919.html).
[47] The rebuttable presumption under subsection 59(2.1) is conjunctive, that is, a parent must rebut both elements of the subsection or access cannot be ordered.
4.2: Access — Is There a Genuine Issue for Trial?
[48] The child was apprehended from Ms. C.M. following her birth. Ms. C.M. has missed a considerable amount of access. Many services have been provided to assist Ms. C.M. in developing parenting skills in the past. None have proved successful. I have no doubt that Ms. C.M. does love M.R.A. However, the evidence does not support a relationship between mother and daughter that meets the beneficial and meaningful test as contemplated in subsection 59(2.1) of the [Child and Family Services Act](https://www.ontario.ca/laws/statute/900011). That she has exercised access and that both mother and child enjoy the visits is insufficient to meet the onus required by the Act.
[49] The society's plan of care for M.R.A. is to seek out an adoptive home. The evidence discloses that there is a possibility that such a home will include M.R.A.'s siblings, H.M.A.A. and K.C.S.A. M.R.A. has not demonstrated any behaviour that would impair her chances to be adopted. She does not suffer from any health related or behavioural issues.
[50] Thus, and unfortunately, Ms. C.M. has not been able to meet the onus required under subsection 59(2.1) that a relationship with M.R.A. is beneficial and meaningful.
[51] Consequently, I find there is no need for a trial to establish material facts necessary for the determination of the issue of Ms. C.M.'s access to M.R.A.
5: Conclusion
[52] The statutory findings shall be as set out in paragraphs 8 to 14 of the affidavit of Marie Bondy, sworn on 9 February 2012 (continuing record, vol. 12, tab 15).
[53] M.R.A. shall be found in need of protection pursuant to the subclause 37(2)(b)(ii) of the [Child and Family Services Act](https://www.ontario.ca/laws/statute/900011).
[54] M.R.A. shall be made a ward of the Crown and placed in the care of the society without access to either of the respondents.
[55] Released: 30 April 2012
Justice Barry M. Tobin