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 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) 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 File and Parties

Court File No.: 261/05

Date: 2012-07-25

Sault Ste. Marie

Ontario Court of Justice

In the Matter of Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma Anthony Marrato, for the CAS

— And —

P.W. Murdoch Carter, for P.W. (father)

P.M. T[…] First Nation Eric McCooeye, For P.M. (mother) K. Lawson/A. Rasaiah, Office of the Children's Lawyer

Heard: April 19, 2012

Decision

Gregson J.:

Motion for Summary Judgment

[1] The Children's Aid Society of Algoma (hereinafter referred to as the Society) brought a motion for Summary Judgment pursuant to Rule 16 of the Family Law Rules O. Reg. 114/99 for:

1. A finding that the children D.W.1 born […], 1995, P.M-W. born […], 1998, S.W. born […], 2002 and Pr.W born […], 2005 are children in need of protection pursuant to section 37 (2) (b)(i) and (ii) of the Child and Family Services Act R.S.O. 1990, c. C.11; as well as

2. A finding/order that the children cannot be placed in the care and custody of the mother P.M. and that the mother P.M. is not an appropriate caregiver for the children.

[2] The biological mother of these children is P.M.

[3] The biological father of the children D.W.1 and P.M-W. is D.W.2. He has never filed an answer or participated in these court proceedings.

[4] The biological father of the children S.W. and Pr.W is P.W. These children are currently placed on an interim basis with their father and his partner Eve Nicholson subject to the Society's supervision.

[5] S.W. and Pr.W are Native children and are registered members of T[…] First Nation.

Society's Evidence

Mother's History with the Society as a Child

[6] There is an extensive history involving the mother's family with the Society when she was a child herself. I will not attempt to review same in its entirety. However, there is some merit in providing a summary to show how the mother's childhood has had a bearing on her ability to parent and ultimately, on this motion.

[7] The mother herself had a history with the Society as a child. The mother was subjected to neglect, physical abuse, sexual abuse and was witness to domestic violence between her parents. On December 5, 1980, Justice Holder made a finding that the mother was a child in need of protection and made her and her two siblings Wards of the Crown with access to the parents (hereinafter, for the sake of clarity, referred to as the "maternal grand-parents").

[8] According to the Society's evidence, a psychological assessment of the maternal grand-mother found an "enduring personality disturbance" and the maternal grand-parents were found to be emotionally unstable due to psychological impairment in their own childhood development. The maternal grand-parents were both institutionalized in psychiatric hospitals as teenagers. The maternal grand-father spent 1.5 years institutionalized at 15 years of age for an incestuous relationship with his female sibling while the maternal grand-mother spent most of 10 years institutionalized for mental health and developmental disabilities. The maternal grand-mother was also institutionalized as an adult in various mental health facilities on several occasions due to suicidal tendencies.

[9] It is not surprising the Society's evidence showed that although the maternal grand-parents received assistance from various services over the years, there was, according to Justice Holder in his Reasons for Judgment dated December 5, 1980, "no permanent change to the maternal grand-parents' parenting skills". In fact the mother and her siblings, as a result, were totally and absolutely beyond the control of their parents.

[10] According to a psychological assessment completed by Dr. Buttrum in September, 1980, the mother was found to be of low average intelligence, acted impulsively and lacked a system of values which would assist her in controlling her behaviour. The mother had an unsatisfactory relationship with her parents as she had not achieved a healthy emotional development.

[11] In his Reasons for Judgment, Justice Holder found there was no potential for improvement in the parenting skills on a permanent basis for the maternal grand-parents and the only reasonable alternative was one of Crown Wardship.

[12] Numerous reports regarding the mother as a child were filed by the Society. These included psychological assessments, educational evaluations, police records and predisposition reports.

[13] While the mother was in care from 1987 to 1991, numerous issues surfaced which included a disclosure the mother was sexually assaulted; physical aggression; becoming AWOL; truancy at school; abuse of alcohol and involvement with the criminal justice system. As a result, the mother was placed in both foster and group home settings as well as a detention centre for youths.

[14] In 1989, a psychological assessment by John Meissner was done through Algoma Child and Youth Services. The mother who was an adolescent at that time was reporting that she was drinking excessively and was in fact hospitalized as a result. The mother was not only drinking but consuming narcotics at the same time. The mother appeared to have conflict if she did not receive structure and support from her environment. The recommendations were for the mother to take a structured drug and alcohol day treatment program otherwise there was a strong likelihood that the mother would continue abusing alcohol and presented with the potential for lifelong problems.

[15] Further interviews with the mother later in 1989 revealed an adolescent who was depressed and unable to cope with the loss she had experienced. Various treatment recommendations were made.

[16] In 1991, the Society brought a Status Review Application to terminate the mother's Crown Wardship Order as she had been asked to leave the receiving and assessment home due to assaultive behaviour and failure to participate in programming. She was 17 at the time and the Society felt they had no other options for placement for her as she had exhausted all residential and group placements. On August 26, 1991, the court granted the termination.

Mother as a Parent

[17] The Society next became involved with the mother as a parent in 1995 due to issues concerning her alcohol consumption while caring for her children, domestic violence, criminal involvement, lack of parenting skills and lack of supervision.

[18] The Society became involved with the mother at her request prior to D.W.1's birth. The mother had requested assistance to prepare for her new child. According to the Society's evidence, despite the mother's request for assistance she was resistant to many suggestions such as attending pre-natal classes and attending mental health appointments.

[19] D.W.1 was born on […], 1995 and two days after the mother was discharged from hospital with her son, the mother called the Society and asked to have D.W.1 come into care. A temporary care agreement was arranged to have D.W.1 come into care for two days and he was then returned to his mother. On December 30, 1995, the mother asked again to have D.W.1 come into care and he remained in care until January 10, 1995.

[20] D.W.1 was first apprehended on May 3, 1996 while the mother and D.W.1's father, D.W.2 resided in Sarnia, Ontario. On August 1, 1996, D.W.1 was made a Ward of the Society for three months. Justice David Kent provided Reasons for his decision for doing so which suggested the mother had admitted to using ten different illegal drugs during her pregnancy; both parents had problems with domestic violence; both parents suffered from psychiatric problems; the mother did not take her medication and regardless, the parents requested their son be placed in foster care as the father was moving out and did not have a place to stay and the mother was admitting herself to the Sarnia General Hospital.

[21] The parents returned to this area in late summer and began to work with the Algoma Society. The mother informed her child protection worker that she had not met with her psychiatrist, not followed through with treatment recommendations for her alcohol and drug addiction and had not attended counselling to deal with anger management and domestic violence. The mother had however attended one parenting course while living in Sarnia.

[22] The protection proceedings were transferred to Algoma and on December 9, 1996, Justice Kukurin made an Order that D.W.1 remain in the care for the Society for a further four months.

[23] The mother attended for a Drug and Alcohol Assessment in November, 1996 which revealed she had problematic alcohol abuse. It was the drug and alcohol counsellor's recommendation to the mother that she remain abstinent. However, evidence suggested the mother was not able to do so.

[24] On March 17, 2007, the mother's psychiatrist Dr. Leung informed the Society it appeared to him the mother had improved since he last saw her two months earlier. Her diagnosis was major depression, borderline personality disorder and a history of alcohol and substance abuse.

[25] D.W.1 was returned to his mother's care on April 7, 1997 subject to Society supervision for a period of 12 months. This order was ultimately terminated on March 23, 1998.

[26] D.W.1 and his sister P.M-W. who was born on […], 1998 were apprehended and placed into foster care on June 20, 1999. The police had been called by a third party who had witnessed a male assaulting children in a truck. Upon arrival, police found the father D.W.2 to be intoxicated and the mother had fled in a vehicle. She was arrested on outstanding warrants and for driving with a suspended license. The parents admitted to drinking at the beach and engaging in a physical fight through the window of the vehicle. The children were returned to the care of the father two days later. The Society closed their file in July, 1999 as the mother had been released from jail and she refused to work voluntarily with the Society.

[27] In February, 2000, the children D.W.1 and P.M-W. were placed in care on a Temporary Care Agreement as the mother had received an intermittent 90-day weekend sentence for a theft charge. The mother was then arrested on several outstanding fines and remained incarcerated. As a result, the children remained in care until April 25, 2000.

[28] By February, 2001, the mother moved to T[…] First Nation to live with P.W.

[29] In April, 2001, the principal from the children's school contacted the Society to express his concern about appropriate lunches and as a result of one of the children disclosing being hit with a stick by the mother. The concerns were investigated with the parents and were not confirmed.

[30] However, around this same time period, reports from the community were being received by the Society that the children were not being supervised appropriately. Ongoing issues concerning the lack of supervision continued throughout 2001 despite repeated guidance from child protection workers. For example, the mother had to be told not to leave her children who were 5 and 3 to go to the park on their own. As a result of the mother's lack of recognition of safety risk issues to her children, the Society requested that she participate in the Family Preservation Program so she could get one-to-one parenting instruction for 8 to 10 hours per week. The mother refused to participate in the program. The Society had limited contact with the mother from August, 2001 to January, 2002.

[31] On January 8, 2002, the father was charged with assault against the mother for allegedly striking her in the arm and kicking her in the abdomen while P.M-W. was in the home. The father's charges were eventually dropped.

[32] On January 14, 2002, the mother contacted the Society as she had heard P.M-W. cry outside and some of her clothing was in disarray on her body. P.M-W. stated she had been picked on by some children and pushed in the snow and they had looked at her body. The mother was again reminded to supervise her children.

[33] The mother became reluctant in meeting with the Society for the balance of 2002, however, it was reported by a family worker with Nog Da Win Da Min that the mother was appropriately supervising the children and was doing very well.

[34] S.W. was born on […], 2002.

[35] On June 21, 2004, the mother asked the Society to care for her children D.W.1 and S.W. while she traveled to British Columbia to pick up P.M-W. from the paternal grand-parents. She stated she had no one to care for the children and she did not trust the father. They were placed in care pursuant to a Temporary Care Agreement from June 29, 2004 to July 15, 2004.

[36] The Society again became involved on June 20, 2005 and has been continuously involved ever since this date.

[37] On June 20, 2005, the mother contacted the Society to ask to have her three children placed into care as she had given birth prematurely to S.W. and had no one to care for the children and the father was not available. A Temporary Care Agreement was entered into on June 21, 2005.

[38] Thereafter, there were events that began occurring in July, 2005 raising concerns of serious mental health issues involving the mother and the father, domestic violence and drug and alcohol abuse.

[39] On August 10, 2005, the mother attended Sault Area Hospital. A psychiatric consultation indicated the mother was presenting as confused, paranoid and potentially delusional. The mother was refusing voluntary admission and Dr. Hopgood did not feel the mother was certifiable so she was released with anti-psychotic medication.

[40] On August 13, 2005, the father contacted police stating the mother attempted to run his vehicle off the road by grabbing the steering wheel. Both parents presented as paranoid and were transported to separate hospitals for psychiatric consultations.

[41] On August 13, 2005, the mother was committed to Riverview Centre under a Form 1 by Dr. McMichael. The mother left on August 16, 2005 without medical consent.

[42] On August 19, 2005, the mother advised the Society she had separated again from the father. On this same date, the father contacted the Society to report the mother had been abusing both drugs and alcohol and this may be part of why the mother was acting paranoid such as believing she was being drugged by him and that people were watching her.

[43] Reports continued to be made to the Society that the mother appeared to be on drugs. As a result, the Temporary Care Agreement was extended until the end of September, 2005.

[44] On September 8, 2005, the Society brought a Protection Application seeking the children be placed in their care and custody for a period of six months.

[45] Since 2005, there have been times when the children were returned to the mother's care, returned to foster care and two of the children were returned to the care of their father.

[46] The following is a synopsis of the issues relating to the mother's care of the children when they were in her care since 2005 and which led to the various apprehensions:

• a. lack of supervision (the mother often left the children unattended or to fend for themselves despite repeated reminders);
• b. domestic violence;
• c. mother's involvement with criminal justice system;
• d. housing issues – lack of housing and deplorable conditions;
• e. alcohol/drug issues;
• f. mental health issues; and
• g. physical discipline of the child D.W.1.

Parenting Capacity Assessment

[47] In early 2010, Dr. Andrew Hepburn completed a Parenting Capacity Assessment regarding the mother and the father. The assessment recommended placement of S.W. and Pr.W with the father. Dr. Hepburn concluded the mother demonstrated neither the ability nor the capacity to parent one or more of the children effectively and expressed the opinion the mother lacked the ability to acquire these skills. In fact, Dr. Hepburn believed the mother had not been able to take in and profit from the parenting instruction she has received from others despite being provided with a massive amount of help from professionals over the years.

[48] Dr. Hepburn went on to state the mother, for decades, has been provided with a huge amount of services however continues to demonstrate handicapped mental health and adjustment limitations which by their nature and severity preclude her from providing appropriate care for children. These limitations are almost certainly neurobiological and congenital in nature and are unlikely to be remediated in any time frame given her history.

[49] Dr. Hepburn stated the children were atypical of special needs children and as such would require more effective parenting than the average child. They will function best in families where the adult caregivers are capable of advocating on their behalf for specialized educational services, assure they receive recommended medical and other care and deal with them with intelligence, compassion and understanding.

[50] Lastly, Dr. Hepburn noted that if the mother were to relapse into a substance abuse lifestyle, her children would be at even more risk of being exposed to inept parenting with its concomitant risk of neglect and abuse. If one or more of the children were returned to the mother, it would almost certainly constitute a very significant stressor for the mother and would have the potential to lead to an addictions relapse.

The Child D.W.1

[51] D.W.1 has been in and out of the care of the mother since 2005 and was last apprehended from the mother on April 19, 2011. As of October 13, 2011, D.W.1 has been in the care of the Society for a cumulative period of time totalling approximately 4 years and 2 months.

[52] On occasion and especially since 2010, the Society could not maintain D.W.1 in a foster home as there were issues with his behaviour; involvement in criminal activities; he was often AWOL from his foster homes and was often attending at his mother's home despite the fact that he sometimes refused any access to his mother.

[53] As of the Fall, 2010, the mother's son D.W.1 indicated to the Society the mother had offered him alcohol and in fact the mother allowed him to hang out with his friends at her home.

[54] On September 25, 2010, the police attended at the mother's home as there was a report of a fire alarm being pulled. D.W.1 and his friends were drinking and the mother returned home intoxicated. This was observed by police. The mother advised the Society she was not at home when the fire alarm was pulled as she was at a stag and doe. Although she had a few drinks, she felt she was not intoxicated and she had made arrangements to have a friend stay to supervise her son. D.W.1 was 14 at the time and indicated he had a friend who came over with a case of beer so they drank. The mother was also allowing D.W.1 to have his girlfriend sleep over at her home.

[55] On January 24, 2011, D.W.1 reported that he was drinking alcohol at his mother's home in her presence. His girlfriend and another friend were present. An argument ensued between himself and his mother. She punched him on the side of the face so he punched her back and left the home. D.W.1 reported that every weekend he and his friends pooled their money and the mother would order alcohol for them which they would consume in her home. In fact in December, 2010 there had been reports from neighbours regarding teenagers drinking and loud music which the mother denied. In response to D.W.1's claim, the mother indicated she had never punched him and she felt he was having mental health issues and temper issues. The mother again denied there were teenagers drinking or that she purchased them alcohol.

[56] On January 26, 2011, Justice Villeneuve placed D.W.1 in the temporary care of the Society. However, he was returned to his mother's home on March 2, 2011 on an extended visit and was later placed with her on March 9, 2011 subject to Society supervision temporarily.

[57] However, on April 20, 2011 this court made an Order to place D.W.1 in the care and custody of the Society after his apprehension as he assaulted his mother. The police noted on April 16, 2011, the mother was under the influence of alcohol and had to be taken to the hospital. D.W.1 was arrested. The mother advised the Society she had been at a friend's drinking and returned home to find D.W.1 with friends in her home when an argument ensued. According to D.W.1, his mother was drinking with he and his friends. He reported his mother also abused drugs and smoked marijuana with the teens. The Society also became aware that D.W.1's girlfriend was now pregnant.

[58] After D.W.1 was charged with assault, there was a non-contact clause between D.W.1 and his mother. However, in December, 2011 after D.W.1 was AWOL, he was found at his mother's home and arrested. D.W.1 claimed he had been staying at his mother's home and had in fact been present while P.M-W. was having access with their mother. D.W.1 later revealed to a child protection worker on January 13, 2012 that prior to his arrest, he had been staying at his mother's home for about three weeks in contravention of his no-contact condition and would hide in order to avoid being seen by workers. The mother denied this report.

[59] Since this time, the Society has continued to work with D.W.1 however, he continues to be involved with the criminal justice system.

The Child P.M-W.

[60] P.M-W. has been in and out of the care of the mother since 2005 and was last apprehended from the mother on February 25, 2008. As of October 13, 2011, P.M-W. has been in the care of the Society for a cumulative period totalling approximately 4 years and 7.5 months.

[61] When P.M-W. was in care in 2005 at the age of 7, her foster mother reported that she appeared parentified. P.M-W. also had no boundaries as she would walk around the foster home naked in the presence of her brother D.W.1. The foster parents also stated P.M-W. had a difficult time following the rules of the home and was very independent.

[62] In 2006, after an apprehension, the foster parents reported P.M-W. was quite hyper and her behaviours were difficult due to her defiance. As a result, P.M-W. required ongoing supervision. A Residential Intervention Worker was assigned to work with P.M-W. to address some of these issues. P.M-W. made progress in these areas when a structured and consistent approach was used.

[63] However, as a result of P.M-W.'s difficult behaviours, which by 2007 included physically hurting other children in foster care, she had been moved to a third foster home.

[64] While P.M-W. was in her mother's care in mid-2007 through to early 2008, she and the mother were involved with the Clinical Resource Team to assist the mother in managing her daughter's behavioural issues. At the end of the CRT's involvement in February, 2008, they recommended P.M-W. have a consultation with a child psychiatrist among other recommendations.

[65] P.M-W. was brought back into care on February 25, 2008 since the mother was incarcerated. P.M-W.'s first foster placement broke down due to her defiance, stealing and damaging of property.

[66] P.M-W. was then placed in a residential intervention foster home. Despite the foster parents training with difficult children, this placement also broke down. P.M-W. was therefore moved to a home with Summit Human Services. Eventually, P.M-W. was moved from a foster home-type setting to a group home setting where P.M-W. remained until July, 2011. There were ongoing struggles with P.M-W. which included missed curfews, AWOL behaviours, smoking and aggression.

[67] Of interest was the Access Supervisor Jason Missere who reported the mother and P.M-W. had been smoking in the backyard of the Society's access building during an access visit on October 23, 2010 and this had been the third time they were caught smoking. The mother committed to not smoking during the visit and not providing P.M-W. with cigarettes in the future. It was the Society's evidence the mother had little insight into why it would be inappropriate for a parent to allow their 12-year-old to smoke.

[68] P.M-W. has been residing in an Algoma Family Service treatment foster home since July 27, 2011 after being on a waiting list for two years.

[69] From July 27, 2011 to October 6, 2011, P.M-W. demonstrated positive and stable behaviours within this new placement with improved behaviour. The foster mother reported P.M-W. did well with the one-on-one attention and seemed to be thriving. During this placement, P.M-W. spends three to six hours per week with her Algoma Family Services Skills Trainer.

[70] It was noted in the Society's evidence that P.M-W., for the most part, continues to behave appropriately within the foster home and community settings although she does require support and direction to complete expectations. She also requires reminders about her attitude, manners and bossiness. P.M-W.'s principal at S[…] School noted that P.M-W. has progressed very well within the school and noted no reports of detention or suspension.

[71] A letter dated January 20, 2012 from Treatment Foster Care Coordinator Barb McCarthy stated that P.M-W. required support and direction when completing expectations such as homework, cleaning up after herself, preparing for school on time, bedtime, wakeups etc. P.M-W. does not like to entertain herself and therefore requires constant attention from her foster parents and becomes agitated if it is not provided on her terms. Her concern if P.M-W. was returned to her mother's care is that historically, the mother has not been able to provide this kind of support and direction on a consistent basis and has not been successful in providing constant attention.

[72] It was unknown when P.M-W. would be discharged from the program. If she was to be discharged to her mother, they would need to work with the mother regarding parenting and structure before the mother would be able to effectively manage P.M-W. on a full-time basis. An increase in access would also be necessary for the staff to help the mother practice the required skills with P.M-W. in her home and support her. Ms. McCarthy anticipated this would be a very long process with no guarantee of success at the end.

The Children S.W. and Pr.W.

[73] S.W. has been in and out of the care of the mother between June, 2005 and January, 2009. S.W. has been in the care of the Society for a cumulative period of time totalling approximately 3 years and 7.5 months as of October 13, 2011.

[74] During her time in care from 2004 to 2009, S.W. presented as a well-behaved child with no delays and/or behavioural concerns. During the last two times in care from January 6, 2009 to August 12, 2010, there were some minor concerns including aggressive behaviour in particular towards other classmates. As a result, S.W. received counselling.

[75] Over the years, S.W. was referred for various assessments. These have noted minor concerns which are being addressed through therapy and medication. For example, on September 30, 2011, S.W. was referred for a psychological assessment. Dr. Ulzen diagnosed her with ADHD combined type and recommended medication.

[76] Pr.W has been in the care of the Society since she was released from hospital after her birth in September, 2005 and has never been in the care of her mother. Pr.W has been in the care of the Society for a cumulative period of time totalling approximately 5 years and 2 months as of October 13, 2011.

[77] Pr.W was born prematurely and weighed 2 lbs 6 oz at birth. As a result, she was transferred to the Children's Hospital of Eastern Ontario. Pr.W had significant medical issues including issues with her eyesight and brain bleed. Despite being discharged from hospital, she continued for quite some time to attend CHEO on a frequent basis for follow ups.

[78] Initially, Pr.W was placed in care under a Temporary Care Agreement as the mother anticipated having difficulty caring for Pr.W due to her special needs.

[79] Pr.W was referred to the Infant Development Program for support to monitor her development. Over the years, Pr.W received various services, including speech therapy, occupational therapy and physiotherapy. She also underwent a psychological and audiology assessment in 2009.

[80] Pr.W was in foster care from her birth until August, 2010. She also has been diagnosed as having ADHD. Pr.W is a high needs child who will require ongoing support for many years to come.

[81] The children S.W. and Pr.W were in the care of their father from August 12, 2010 and were apprehended from him on July 21, 2011. They have since resumed placement with their father.

[82] It should be noted that at the beginning of November, 2010, the mother advised her child protection worker that she felt S.W. and Pr.W were receiving good care from their father as she had ceased her access with her daughters. She did, however, see the children at the Society Christmas party that same year.

[83] About four months later, in April, 2011, the mother had P.M-W. call the children's foster home in an effort to speak with them. The mother was advised calls would have to be supervised therefore the mother stated she would not call them.

[84] The first time the mother contacted the Society to request access to Pr.W and S.W. after her was on June 13, 2011. The mother had not seen the children since November, 2010 and her access had actually been put on hold as she had missed 3 visits in a row. The mother was advised in July, 2011 that she would have to have access at the Society office. However, the mother refused as she had done so for three years. The mother next met with the child protection worker on August 31, 2011 to review some access options. The mother was to call the worker the following week to develop a plan.

[85] The mother contacted her worker on September 16, 2011 again seeking full day access. She was advised this was not possible considering she had not seen the children in 10 months.

[86] The mother had her first supervised visit with the children on October 30, 2011 which was supervised by her sister. There were no concerns.

[87] As of November 24, 2011, the mother has had supervised access to her daughters each Sunday from 1 to 4:00 p.m. supervised by an approved third party.

Evidence of the Mother

[88] The mother relied on the Affidavits filed over the last five years in response to the Society's motion for summary judgment.

[89] The mother noted that D.W.1 continues to struggle in Society care despite the fact he had the benefit of their services for years.

[90] Despite the fact D.W.1 is prohibited from communicating with her and despite all of their difficulties, D.W.1 has asked his probation officer to have contact with her. This clearly shows his attachment to her as do all of her children. Furthermore, the mother stated that she has always supported D.W.1 even after he was charged with assaulting her. She has not permitted contact save and except for telephone calls which are permissible.

[91] The mother also pointed out that D.W.1 has often made allegations against her which she has denied. One such example was the fact she had abused D.W.1 and he struck her in self-defence. However, D.W.1 did plead guilty to the assault which should be indicative of her credibility as compared to her son.

[92] P.M-W. wishes to live with her. In fact, she has access on alternate Friday evening to Sunday evening and on alternate weekends from Saturday at 9:00 a.m. to 8:00 p.m. These visits have been ongoing for quite some time and no issues have been raised.

[93] The mother questions why P.M-W. is being permitted to visit her extensively if the Society is relying on all of its evidence in support of the motion for summary judgment. The mother believes access has been successful as a result of the gains she has made in her own parenting.

[94] As such, the mother feels that if she can parent her daughter P.M-W., there is a reasonable possibility that she could parent S.W. and Pr.W and a trial to make this determination would be necessary.

[95] The mother does not understand why her access to Pr.W and S.W. is so restricted considering she is doing so well with P.M-W. Presently, the mother visits with them every second weekend for three hours at her sister's home. The mother indicated the visits have been positive and the children remain attached to her often wanting more access. P.M-W. also attends the access and therefore she is doing her part to maintain the sibling relationship.

[96] The mother stated that in the past 1.5 years she has had a change in attitude and lifestyle. She has been employed for the past year as a cleaning lady. She has unrestricted access to other people's homes as she is a trusted employee.

[97] She keeps her own home tidy and no longer has roommates. When she does have P.M-W. for access, it is rare a worker comes to her home which is indicative that her home is good. She is also taking care of a pet without issue.

[98] The mother stated that she no longer drinks alcohol and could abide by a condition that she abstain completely.

[99] In response to the mother's comments, the Society noted that on March 29, 2012, the mother's sister, Ms. Wh. reported the mother had dropped off a partially full case of beer at her home telling her she decided to quit. Ms. Wh. reported the mother regularly consumed alcohol a few times per month. Furthermore, on April 13, 2012 when the child protection worker suggested the mother provide a hair follicle sample to confirm her lack of alcohol use, the mother suggested she should not have to as she can consume alcohol as long as it was not within 24 hours of having an access visit.

[100] Furthermore, on April 18, 2012, the child protection worker spoke to C.W., who is the neighbour and cousin of the father. She had seen the mother on April 13, 2012 at 7:00 p.m. at the Sault Area Hospital and based on the mother's appearance and speech, Ms. W. suspected the mother was under the influence of alcohol and or drugs.

[101] The mother stated both her medical and mental health conditions have improved. She sees her doctor regularly and takes the required medication.

[102] The mother has a close association with the Metis Nation who can assist her with her mental health issues. The mother is also in close contact with the Indian Friendship Centre. Both these organizations have assisted her in obtaining various medical appointments and the Metis Nation especially has assisted the mother as her advocate.

[103] The mother has been also working with Algoma Family Services and has been receiving their assistance regarding proper discipline techniques which she is implementing during her access visits.

[104] The mother has attended numerous programs over the years and especially over these last 2 years. She is also attending counselling with Women in Crisis to deal with past issues as she is willing to do so and move on.

[105] The mother believes she is ready, able and willing to parent all of the children. In particular, she has learned to ask for help and then find the appropriate assistance and follow it through. It was the mother's believe there were no present concerns with her parenting.

[106] The mother felt the parenting capacity assessment was inaccurate. For example, Dr. Hepburn suggested the mother would not have the capacity to be able to obtain employment and this conclusion was obviously incorrect. It should also be noted the assessor has not been able to be cross-examined pursuant to a trial.

Finding in Need of Protection

[107] The onus is on the Society to show there is no genuine issue for trial as it relates to a finding in need of protection.

[108] There is a long-standing history with the mother's inability to parent her children which has either placed these children at risk or could potentially place them at risk.

[109] When the protection application was commenced in 2005, there were a number of concerns raised by the Society which would easily support a finding that these children were in need of protection. Over time, some of the concerns may have abated or improved however others have continued. In particular, the mother has continued to lack the insight to ensure the children were well supervised and/or to make good decisions to ensure the children were not placed in risky situations (for example, allowing D.W.1 to be at her home in breach of a court Order especially when P.M-W. was present for a visit).

[110] There was a risk of harm at the time of the apprehension over seven years ago and in my view the risk of harm has been ongoing until present.

[111] The protection concerns over the years have been:

1. inadequate supervision;
2. hygiene;
3. domestic violence;
4. conditions in the home;
5. physical discipline;
6. alcohol abuse;
7. mental health;
8. lack of appreciation or insight in/and placing the children in risky situations; and
9. lack of parenting skills.

[112] The Society seeks a final order finding the children to be in need of protection pursuant to subsection 37(2) (b)(i) and (ii) of the Child and Family Services Act which states the following:

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

(a) …

(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;

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

[113] In this case, the Society has demonstrated through their evidence the mother presents a risk to her children and the mother was not able to present a viable plan of care, which would address the child protection risks.

[114] I believe all counsel were in agreement to have the court make a finding in need of protection. Regardless, there is ample evidence to have the court make such a finding and there is absolutely no reason to have this issue determined at trial as the evidence is overwhelming and the outcome is inevitable.

[115] There is no genuine issue for trial as it relates to the finding in need of protection. Accordingly, I make a finding that D.W.1, P.M-W. and S.W. are children are in need of protection pursuant to s. 37(2)(b)(i)and (ii) of the CFSA and S.W. is a child in need of protection pursuant to s. 37(2)(b)(i) of the CFSA.

Finding That the Mother Is Unable to Care for Her Children or Be a Caregiver

[116] To determine whether a motion for summary judgment should succeed in a child protection matter, the onus lies with the Society to establish there is no genuine issue for trial. In other words, the Society must establish a prima facie case.

[117] Specifically in this case, the Society must adduce evidence which demonstrates that the mother does not have a viable plan of care for these children and that she is incapable of ever parenting her children.

[118] The granting of a summary judgment motion in child protection cases is only to be exercised in the clearest of cases. Accordingly, the court must review all of the evidence to determine whether there are specific facts (not simply mere denials) to support a triable issue.

[119] In Children's Aid Society of the County of Simcoe v. K.D., [2008] O.J. No. 763 (Ont. S.C.J.) Justice Olah at paragraph 38 provided a thorough review of the definition or interpretation of "no genuine issue for trial" as identified by other courts as follows:

1. F.B. v. S.G., [2001] O.J. No. 1586 (Ont. S.C.J.) Justice Himel states at paragraph 26: "A genuine issue" must be related to a material fact or facts. As was stated in Irving Ungerman Ltd. v. Galanis, supra: "If a fact is not material to an action, in the sense that the result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a genuine issue for trial" [emphasis added]

2. In Children's Aid Society of Hamilton v. M.W. et al., [2003] O.J. No. 220 (Ont. S.C.J.) Justice Fedak cites with approval the decision of Justice Hardman in Children's Aid Society of the Regional Municipality of Waterloo v. R.S., [2000] O.J. No. 4880 (Ont. Ct. J.), at paragraph 42: "…the courts must first review the entire evidence to evaluate the nature and strength of the society's case to determine if the evidence will support the final order sought…The court would next determine whether there were specific facts in that evidence to support a triable issue". [emphasis added]

3. In M.W., Fedak J. at paragraph 112 cites the decision of Justice Lane in R.A. v. Jewish Families and Child Services, [2001] O.J. No. 47 (Ont. S.C.J.) at paragraph 23, as follows:

The inherent logic of the rule imposes on the parents the task of responding to the evidence of the Society if they are to avoid an adverse decision…It could be done by showing that the Society's evidence does not address a material fact at all, so there is a gap in the proof. But if the defence is a different state of facts, mere denial cannot be enough to raise a triable issue of fact. [emphasis added]

4. Fedak J. at paragraph 110 states:

In Bruvels v. Guidon, [2000] O.J. No. 875, the test of putting the "best foot forward" was adopted, meaning that the parents cannot rest on a denial of fact, but must put their best foot forward to prove the existence of a genuine issue for trial. [emphasis added]

5. In Children's Aid Society of Toronto v. E.L.L., [2000] O.J. No. 5869 (Ont. Ct. J.) Justice Bean cited with approval, at paragraph 27, a decision of Justice Borins in Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 22 O.R. (3d) 25:

…I am entitled to assume, therefore, that the defendant has done so and that if this case were to go to trial it would present no additional evidence …The requirement that the parties put their "best foot forward" goes together with the requirement that the motions court judge "take a hard look at the merits of the action at this preliminary stage" to determine whether the moving party has succeeded in establishing that there is no genuine issue for trial. [emphasis added]

6. Justice Katarynych of the Ontario Court of Justice stated in Children's Aid of Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. Ct. J.) at paragraph 18 that:

The genuineness of an issue must arise from something more than a heartfelt expression of the parent's desire to resume care of the child. There must be an arguable motion discernible from the parent's evidence that she faces some better prospects that what existed at the time of the removal of the child from her care, and some new ability as a parent. [emphasis added]

7. Justice Thibideau of the Ontario Court of Justice in Children's Aid Society of Brant v. Mother B. on October 23, 2006 at paragraph 26 and 27 stated the following:

To succeed the Society must satisfy the onus placed upon it that mother's case is such that it is "plain and obvious that the Society must succeed" (CAS of Toronto v. E.L. and A.L. unreported, February 17, 2000, Justice Bean) or that the outcome must be "inevitable" (CAS of County of Dufferin v. SS (2003), O.J. 3716 (OCJ). The outcome at trial in favour of the Society and against a respondent parent must be a "foregone conclusion" (B.F.) v. (G.S.), 16 R.F.L. (5th) 237.

However having said this there must still be demonstrated by the responding party to the motion that there is a genuine issue for trial where the Society's case is made out. In addition that issue must be germane to the actual issues at trial and not be merely peripheral.

Mere factual conflict does not, in and of itself, lead to the necessity of trial.

[120] In making my decision in this matter, I kept in mind the above definitions as I reviewed the voluminous affidavit evidence and submissions made by all counsel, including OCL counsel for P.M-W. and OCL counsel for the other children.

[121] Both the mother and OCL counsel for P.M-W. opposed the order requested by the Society. In particular, counsel for P.M-W. believed the progress P.M-W. was making in combination with positive visits was enough of a material fact to suggest a triable issue.

[122] Clearly, the mother had poor parenting as a child and suffered some psychologically traumatic events. Ultimately, this in my view, has had a serious impact on her ability to parent her own children.

[123] The lack of parenting abilities has unfortunately transcended a number of generations. It was noted in 1980 that the maternal grand-parents were themselves emotionally unstable to parent their own children due to psychological impairment as a result of their own childhood development. Accordingly, this suggests poor parenting has been ongoing since at least the great grand-parents of these children or three generations.

[124] History is often the best predictor for the future. This statement is glaringly applicable to this family.

[125] For example, in 1980 when the mother became a Crown Ward herself, Justice Holder stated the maternal grand-parents had received assistance from various services over the years and despite same there was no permanent change to the maternal grand-parents' parenting skills. There was no potential for improvement of their parenting skills on a permanent basis.

[126] Similarly with the mother, a parental capacity assessment completed in 2010 came to the same conclusion. Despite the fact the mother has had a massive amount of services made available to her to improve her parenting skills, it cannot change her ability and as a result of her own negative role modeling for years, she does not have the capacity to ever learn to parent both safely and effectively.

[127] When the mother herself became a Crown Ward, her adolescence was fraught with difficulties which included out of control behaviour; being AWOL from her foster care; truancy; drinking; being involved with the criminal justice system and aggression.

[128] Her own son D.W.1, who is now 16 years of age, is mirroring these same non-productive attributes and he is now himself a father. P.M-W. was also on this same path if it were not for the stability she has found within the treatment foster care program.

[129] When you consider the dysfunctional parenting D.W.1 and P.M-W. both received during their early childhood, which was more than likely similar to what the mother received, it is not at all surprising to see the difficulties they have experienced since their births.

[130] Although the mother has tried to parent some of her children, each attempt to do so has failed. The mother never really stood a good chance to be an effective parent considering her own childhood and the fact she was left to fend for herself at the age of 17. Her relationships with the fathers of her children were also dysfunctional and included alcohol abuse and domestic violence.

[131] The mother never appeared to have the required insight to parent her children effectively. The evidence suggests the mother could not offer the required structure and guidance the children needed. For example, she often left the children unsupervised despite their young ages and it was noted P.M-W. at the age of seven was defiant and parentified. In fact, once these children reached adolescence, the mother was permitting P.M-W. to smoke at the age of 12 and was allowing D.W.1 at the age of 14 to have his girlfriend sleep over and have alcohol in her home. The mother cannot simply be a friend to her children she has to parent them which involves some tough choices on a daily and ongoing basis.

[132] I am frankly appalled that this matter has been ongoing since 2005, it has gone on way too long. The fact that these children have been in foster care for a period of over four years is simply unacceptable. These children should have had permanency planning long ago.

[133] The maternal grand-parents' mental health and inability to parent has left scars on all subsequent generations. The building blocks of healthy parenting have been non-existent.

[134] The damage to D.W.1, P.M-W. and S.W. as a result of their own mother's parenting which was influenced by her own parents is irreversible. There is no going back, only forward.

[135] It was apparent to me the Society and the Court kept believing this mother would get better over time to allow her to parent one or more of her children. The Society and the Court gave this mother the benefit of the doubt by not seeking to have any of these children be Crown Wards years ago but at what cost? We are now seeing the negative effects of having waited so long. These children have carried the burden of their mother's shortcomings over the years of being placed in and out of her care.

[136] In my view, there is no evidence to suggest the mother will ever get better to be in a position to parent. Things don't change when people don't have the building blocks or foundation for being a good parent save and except in some unique circumstances (ie. the assistance of a positive partner, intensive parenting training over an extended period of time). Unfortunately, in this case, the mother has not had these positive benefits. The fact that she may now be sober, keeping her home clean, working and attending counselling is not enough. There is no evidence that she has the ability to protect her children, provide them with positive values, a sense of security, consistency and guidance. The evidence is just not there. Regardless, these children have waited long enough and can wait no longer.

[137] Although the mother has been having some positive unsupervised access with P.M-W., this is the only thread of positive progress seen with this mother and one of her children in nearly seven years. However, in my view, based on the totality of the evidence produced, it is highly unlikely the mother will be able to sustain and manage more than access visits with her daughter. Having such access is far from being a parent day-in and day-out.

[138] Because of P.M-W.'s life circumstances and her already turbulent and dysfunctional upbringing, her only bright spot at the moment are her current circumstances in care. Although the mother is part of this plan, in my view, P.M-W. is doing well as a result of the structure, consistency and nurturing she is receiving in this home. She has finally found the stability she deserves and requires.

[139] I was under the impression from P.M-W.'s counsel that P.M-W. believed if she did well in this setting, the Society would allow her to return home to live with her mother. I do not know who ever suggested this possibility to her. Such a placement should not be contingent on P.M-W.'s behaviour but on her mother's ability to change and her capacity to parent. I strongly believe if P.M-W. were permitted to return to her mother's care, perhaps not immediately but over time, it would be disastrous as the mother would be unable to tow the line with her own parenting placing P.M-W. at continued risk of harm. The mother's poor choices over the past 16 years and the lack of guidance provided to her children, in particular D.W.1, does not convince me that she can now navigate the waters of adolescence with P.M-W. There are no court-ordered terms that I can imagine the mother following to provide this Court with a sense of comfort if P.M-W. or any other child was placed with the mother. In fact, the mother was provided chance after chance to do so in the past and failed on each occasion.

[140] Despite the fact P.M-W. is just now turning 14 and her wishes have much weight, in the end, the decision as to placement is predicated upon her best interests. Factors of "best interests" are statutorily outlined in s. 37(3) of the CFSA however, this is not an exhaustive list. The court must look at all relevant circumstances.

[141] There was absolutely no evidence presented at the motion to convince me the mother would be able to parent P.M-W. on a full-time basis. The mother had to put her best foot forward. Her current stability and P.M-W.'s current positive behaviours do not convince me that this is a material fact giving rise to a genuine issue for trial.

[142] The mother suggested she has now improved her life over the past two years and feels she somehow can now parent her children. Frankly, the mother's life has been in shambles for the past 37 years. If she is doing well at this time, meaning stabilizing, a large factor is as a result of her not having the full time care of any of her children. In fact, when she attempted to care for D.W.1 over the past two years it simply demonstrated an ongoing lack of judgment in her parenting. The mother has presented no evidence to suggest that she has herself changed her parenting. The mere intention to change or the fact she has received further parenting tips which has assisted her at access visits has not convinced me that she can sustain positive parenting for a prolonged period of time to ensure any of her children are not placed at risk of harm.

[143] The mother's youngest children both have special needs (as do D.W.1 and P.M-W.) and in particular Pr.W. They are even more vulnerable than their oldest siblings due to their ages. Their inability to self-protect themselves from harm is that much more profound.

[144] In my view, the only way P.M-W., S.W. and Pr.W have an opportunity at breaking the generational cycle of poor parenting so they can be taught core concepts, values and morals to be responsible citizens and parents themselves one day is to never be parented by their mother on a full-time basis.

[145] I realize this mother has made numerous attempts over the years to improve her situation. Her love for these children is not questioned. Unfortunately, waiting for her to get better cannot be at the cost of her children. It is not what is best for her but what is best for these children. I am not convinced there would be any further evidence presented at a trial which would have the court conclude the mother has the capacity to parent effectively and safely now or in the future. The outcome of any trial in this regard is plain and obvious.

[146] For this reason, the Society has met their onus to prove there is no genuine issue regarding the mother being in a position to parent her children. The children cannot be placed in her care full-time. However, this does not mean the mother should not be entitled to ongoing access to any of her children. The type and frequency of the mother's access remains an outstanding issue.

[147] Accordingly, there shall be an Order that the children cannot be placed in the mother's care and custody.

Released: July 25, 2012

Justice Nathalie Gregson, Ontario Court of Justice