WARNING

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

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

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Toronto Region: Court File No.: CFO Toronto C47321/09

Date: 2013-04-04

Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto, Applicant

— And —

L.T. and R.R., Respondents

Before: Justice E.B. Murray

Heard on: March 13, 2013

Judgement Released on: April 4, 2013

Counsel:

• Ms. Lynne Bonhomme for the applicant society
• Mr. Ed Rice for the respondent father
• Mr. Arthur Brown for respondent mother

Decision

MURRAY, E.J.:

[1] Introduction

[1] This is my decision on a summary judgment motion brought by the Catholic Children's Aid Society of Toronto with respect to the child W.R., born in 2012. The respondents are the mother and father of the child. He was found to be a child in need of protection pursuant to section 37(2)(l) of the Act on consent of the parties on March 27, 2012.

[2] The Society seeks a finding that there is no genuine issue for trial, and in addition an order that W.R. be made a Crown ward for the purpose of adoption. The respondents oppose the motion, and submit that there should be a trial. R.R. and L.T. present a plan that proposes W.R. be placed in their joint care, and alternatively, in each parent's sole care.

[3] W.R. has already been in the Society's care since apprehension, a period that exceeds the time limits set out in section 70 of the Act. He was apprehended in 2012 due to concerns about each parent's ability to care for a child; both parents have older children who were made Crown wards.

1. THE LAW - SUMMARY JUDGMENT

1.1 Rule 16

In Children's Aid Society of Toronto v. N.M., 2012 ONCJ 647, I set out the law with respect to summary judgment motions. I repeat my observations below.

Under Rule 16(4), the moving party on a motion for summary judgment has the onus of proving on a balance of probabilities that there is "no genuine issue requiring a trial." A "genuine issue" refers to a genuine issue of material fact — i.e., a fact relevant to the issues in the case.

The moving party on a motion for summary judgment should advance all the evidence that that party would present at a trial.

The responding party must "not rest on mere allegations or denials but shall set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial." It is not sufficient for that party to simply deny the allegations of the Society. Recent authority from the Ontario Court of Appeal holds that if a moving party discharges the burden of showing that there is no genuine issue for trial, that the responding party must prove that its defence has "a real chance of success." Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial.

A motions judge on a summary judgment motion should not resolve issues of credibility or draw inferences from conflicting evidence or from evidence that is not in conflict when more than one inference is reasonably available. Those functions are reserved for the trier of fact.

I have been guided by these principles in reaching my decision.

[4] The Society argued that in deciding this motion I should rely upon the expanded powers with respect to summary judgment motions set out in Rule 20.04(2.1) of the Rules of Civil Procedure, and cited recent caselaw which relied on Rule 1(7) of the Family Law Rules to justify this approach. Rule 1(7) provides that "if these Rules do not cover a matter adequately", that the court may give practice directions that shall be decided by analogy to the Rules, reference to the Courts of Justice Act and the act governing the case, and if appropriate, to the Rules of Civil Procedure. I agree with Justice Craig Perkins in Starr v. Gordon, 2010 ONSC 4167 that the fact that the Rules of Civil Procedure have different and more detailed provisions about summary judgment motions than the Family Law Rules is "not, of itself, proof that the Family Law Rules do not cover a matter adequately". I will not rely upon the new summary judgment provisions in the Rules of Civil Procedure in determining this motion.

1.2 Evidence Considered

[5] In reaching my decision on this motion, I have relied only upon facts alleged by the Society that are admitted, not contested, or simply met with a bald denial. I have considered the eight affidavits in the Society's motion record; the amended protection application and the answer and plan of care from each parent; the responding affidavit from each parent, one of which includes as an exhibit numerous notes made by Society workers who observed access visits; and the three affidavits in the Society's supplementary motion record, with the exception of paragraphs 13 and 14 of the affidavit of Paula Tavares, sworn March 8, 2013.

1.3 Reply Evidence Not Admitted

[6] Parents' counsel argued that I should not admit paragraphs 13 and 14 of Ms. Tavares' affidavit, as they did not constitute proper reply. These paragraphs were characterized by the Society as "updating evidence", and dealt with the parents' attendance on access visits since the date of delivery of the Society's motion material in the third week of February, and with an opinion recently provided by L.T.'s family doctor, Dr. Sakuls, on her ability to care for herself and for a child. The Society argued that, even if the material was not proper reply, the court should consider all material relevant to the child's best interests. The Society suggested an adjournment if the parents wished to respond to this new material, a suggestion rejected by the parents.

[7] I ruled that the two paragraphs in question should not be admitted. Rule 16 contains no provisions governing the sequence in which evidence must be served. Rule 14, which governs temporary motions, does contain provisions addressing this issue:

14(20) The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:

1. The party making the motion shall serve all the evidence in support of the motion with the notice of motion.

2. The party responding to the motion shall then serve all the evidence in response.

3. The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.

4. No other evidence may be used.

[8] In my view, it is just to follow Rule 14 in this respect, except as otherwise provided in Rule 16. I say this for two reasons.

[9] First, scrutiny of Rule 14 suggests that its drafters intended it to apply to summary judgment motions, with one specific exception. Rule 14(6) provides that Rule 14(4) (which deals with the necessity of a case conference before a motion) does not apply to a number of proceedings, including a motion for summary judgment and a child protection case. To my mind, this suggests an intent that the balance of Rule 14 should apply to all motions, including a motion for summary judgment.

[10] Second, consideration of the primary objective of the Rules set out in Rule 2 — "to deal with cases justly"…which includes "ensuring that the procedure is fair to all parties" — also suggests that the rules with respect to delivery of evidence on a summary judgment motion should be guided by the restrictions set out in Rule 14(20). The objective of Rule 14(20) is to insure that before serving responding material, responding parties have notice of all the allegations which they must answer, and the facts supporting those allegations. Surely parents facing a summary judgment motion seeking Crown wardship should receive the same procedural protections that respondents on routine temporary motions are accorded under the Rules.

[11] I acknowledge the Society's point that some evidence may be so crucial that its admission should be allowed even if Rule 14(20) has been breached. In such cases, an adjournment should be granted to allow reply. In this case, I considered the fact that the Society could have obtained evidence from Dr. Sakuls and presented such evidence in its initial affidavit material; the relative importance of that evidence, considering all the other evidence before the court on L.T.'s parenting capacity; and the fact that statutory timelines for W.R.'s permanent placement had already been breached before the hearing commenced. I decided that an adjournment should not be granted, and that the evidence should not be admitted.

1.4 Are There Triable Issues of Material Fact in This Case?

[12] Parents' counsel in this case did not argue that there were any significant factual conflicts in the evidence. They submit that a trial should be held because there are triable issues, which are:

1. Are the observations of some of the Society's workers "tainted" by their experience in dealing with L.T. with respect to protection proceedings for her three older children?

2. Does the parenting ability of L.T. and R.R. fall below a minimum acceptable standard?

3. If the answer to question two is "yes", could the parents meet a minimum standard with proper supports?

[13] In my view, a viva voce trial is not required in this case to give the parties the opportunity to argue what inferences should be drawn from the uncontested facts before me. Those facts do not reasonably allow for inferences other than those I have made.

[14] I have decided that there is no genuine issue of material fact requiring a trial with respect to the relief requested by the Society. My findings of fact and reasons for this decision follow.

2. EVIDENCE

2.1 Background Facts

[15] L.T. is 37 years old and R.R. is 47 years old. Each had a troubled childhood, and each spent time as a child in the care of a children's aid society. Reports from Surrey Place completed when L.T. was a child state that she demonstrated "brain dysfunction with retardation and deprivation". R.R. reported that he was in care because of his parents' alcoholism and transience.

[16] L.T. and R.R. have known each other for approximately ten years, and have been in an intimate relationship for approximately three years. They live in an apartment in Toronto.

[17] L.T. suffers from cognitive and developmental delays. Because of this, she receives a disability pension from the Ontario Disability Support Program (ODSP). She is qualified for assistance from an adult services protection worker, although she has not made much use of this assistance since she began living with R.R.

[18] R.R. has a history of alcohol abuse and transience, with spotty casual employment. Since living with L.T., he has maintained a more stable residence — at the Family Residence, and more recently in an apartment. R.R. says that he does not now abuse alcohol, and drinks only occasionally. A hair test he completed recently at the Society's request supports his statement. R.R. suffers from seasonal depression, but is in good health physically. The Society asked that R.R. undergo testing to establish if he met the provincial criteria for a developmentally disabled individual; if he qualified, he would also be entitled to the assistance of an adult services protection worker, and perhaps to ODSP payments. He delayed cooperating with the testing, but by October 2012 it was established that he does not meet the criteria. Other than odd jobs, R.R. has not been employed for several years, and is supported as L.T.'s dependent by her ODSP allotment.

[19] L.T.'s plan of care says that she expects to receive support in her plan from her mother. I received no other evidence that either party enjoyed family support in planning for W.R.

[20] Below I set out the evidence with respect to the parenting which L.T. and R.R. provided to their older children. In doing so, I note the caution of Justice Heather Katarynych in Children's Aid Society of the Regional Municipality of Waterloo v. R.C., (1994) O.J. 2995, that records of past inadequate parenting of other children are not determinative of a parent's ability to care for a child in a new case. Rather, past parenting sets a benchmark against which a court will measure any improvement in a party's parenting ability.

2.2 Past Parenting: L.T.

[21] L.T. has three children older than W.R., all of whom have been made Crown wards without access and been made available for adoption.

[22] G. was born in 2001, and made a Crown ward following a contested trial. A. was born in 2002; L.T. consented to an order of Crown wardship for A. Z. was born in 2008. He was made a Crown ward as a result of the Society motion for summary judgment that was not contested by L.T. or by the child's father, R.S.

[23] The record with respect to L.T. and these children demonstrates that she was always loving to them. She displayed affection towards them, talked to them, and played with them. However, in other respects, she was unable to parent adequately.

[24] The evidence with respect to her parenting ability of these children is set out below:

• An assessment conducted after G.'s birth by psychologist Dr. Howard Waiser on January 31, 2002 stated that L.T. "is unable to adequately parent a child". When given a standard intelligence test, L.T. tested at below the 1st percentile. She showed no appreciation of her limitations, or of any need she might have for assistance. She showed little understanding of child development, or of a child's needs.

• The Society attempted to have Erin Sclisizzi, its special needs worker, assess L.T. further, in order to gain information to allow work with her to improve her parenting skills. The assessment did not proceed, as L.T. could not understand the questions put to her.

• Ms. Tavares and other workers attempted to model basic skills for L.T. They found that she did not make progress, and that they had to continually monitor her time with G. to insure his safety.

• Justice Brian Weagant heard and accepted the evidence referred to above at a trial, at which L.T.'s plan was that she and her mother, M.T.1, would jointly care for G. Justice Weagant observed that M.T.1 did not perceive that her daughter had any significant parenting deficits. He held that "M.T.1's lack of insight, or denial of L.T.'s problems, makes her an inadequate supervisor". He did not approve L.T.'s plan.

• On the Society's motion with respect to A., L.T. signed an agreed statement of facts consenting to a finding that the child was in need of protection because she was "likely to suffer physical harm" if in her care, and agreeing that the child be made a Crown ward with no access for the purpose of adoption.

• Psychologist Dr. Shukri Amin conducted an assessment of L.T. after Z.'s birth, using intelligence and psychometric tests; he found that L.T. "is unable to parent her child". Her low scores on intelligence tests ("below the 1st percentile") were not the most important factor in his opinion. Dr. Amin found that the major stumbling block to adequate parenting for L.T. are neuro-cognitive deficits that are "essentially unmodifiable". Those deficits mean that "her inability to learn, not so much in terms of information but with respect to involvement in her environment, would prevent her from meeting her child's needs on an ongoing basis".

• Dr. Amin noted that L.T. has "little idea of cause and effect or logical thinking"; this would cause significant problems for any child in her care. Dr. Amin noted further that L.T. had difficulties with areas such as "impulse control, frustration tolerance, perseverance, social skills", areas in which she might improve upon if motivated, but that change would take a very long time.

• Dr. Amin's evidence was uncontested by L.T. and accepted by the court in ordering that Z. be made a Crown ward.

In her evidence now, L.T. states that she "disagrees" with the conclusions reached by Dr. Waiser and Dr. Amin in their assessments. I take this statement as nothing but a bald denial. She did not appeal the judgments which relied upon their opinions. She has not requested a new assessment as to her ability to parent W.R.

2.3 Past Parenting: R.R.

[25] R.R. is the father of the child A.S., born in 2007. He was in a relationship with the child's mother, M.S., for about eight years prior to the child's birth. M.S. suffers from schizo-affective disorder and developmental delay. She had two older children who were Crown wards, and did not plan to keep A.S. The child was apprehended at birth.

[26] R.R. appeared in court and indicated that he wished to plan for A.S. He started to visit the child, but was inconsistent in his attendance. At the time, R.R. was employed doing casual work and lived in a rooming house. Two extensions of time to serve and file and answer and plan of care were granted to R.R. at his request. However, he did not serve any documents, and ultimately was noted in default.

[27] A.S. was made a Crown ward without access for the purpose of adoption.

2.4 Current Parenting Ability

[28] L.T. says that she has changed since the courts concluded that she was unable to parent her three older children. She says that she is older, and now has a partner with whom she will "work as a team". Since W.R.'s birth, she has told workers a number of times that she thinks that she really has no difficulties that should prevent her from caring for the child.

[29] R.R. also says that his situation has changed since A.S.'s birth. He now has a stable residence and a supportive partner, L.T.

2.4.1 Efforts to Support Parenting

[30] The Society has maintained fully-supervised visits at its offices since W.R. came into care 13 months ago. Visits have been twice a week, for two hours, at times extended to three hours when the Society wished to have additional time to work with and observe R.R. and the child. Workers observing these visits provided some instruction to the parents on child care, including the modelling of correct behaviour for various tasks, such as feeding and diapering.

[31] The parents say that supervision of their visits has been unnecessary. However, they have not moved to have unsupervised or even semi-supervised visits during this time.

[32] L.T. and R.R. have received parenting education in addition to the instruction offered by workers during supervised visits. In the spring of 2012, shortly after W.R. was apprehended, they attended 8 out of 9 weeks of COPE, a program of Yorktown Family Services dealing with parenting children 0-6 years of age.

[33] The Society attempted, without success, to secure parenting supports for the parents from Surrey Place, a facility which offers services for cognitively limited individuals which had previously provided services for L.T. However, the parents were not eligible for the Surrey Place parenting program because W.R. was not living in their care. Surrey Place was willing to offer counselling for L.T., but she did not want to avail herself of this.

[34] When it became clear that Surrey Place programs would not be available, the Society arranged for its special needs worker Erin Sclisizzi to work with both parents, and particularly with R.R. More about this work is set out below.

2.4.2 Observations of Each Parent

[35] Set out below is a summary of evidence from Society workers about each parent's care of W.R. during visits. I note that these specific observations are not contested by either parent in his/her affidavit, with two exceptions:

1. L.T. disagrees with a statement of Pilar Hall that she "yelled" at W.R. on one occasion.

2. R.R. disagrees with workers' observations that he is "awkward" with W.R., and that he is continually checking his watch during visits.

2.4.3 Observations of L.T.

[36] Ms. Tavares, who worked with L.T. in the cases involving all her previous children, testifies that she has shown very limited improvement — she washes her hands more regularly before handling the baby without prompting, and diaper changes go more smoothly. Otherwise, L.T. "still needs constant reminders" about all basic safety issues regarding the child.

[37] Worker January Ryan's experience with L.T. is more recent, dating from Z.'s birth. In her supervision of L.T.'s visits with W.R., Ms. Ryan noted no "real improvement" in L.T.'s care, and no indication that she has benefitted from the instruction and modeling offered by Society workers during the 7 months she visited with Z., or during the 12 months she has visited with W.R.

[38] The observation notes and affidavits of the workers provide a running list of safety concerns noted in L.T.'s care of W.R., and note behaviours that have not improved despite continued warnings and modeling:

• L.T. does not recognize that W.R. must be secured when on the change table; the child has almost fallen several times while L.T. diapers him

• L.T. tries to force feed W.R. when he is not hungry

• L.T. gave W.R. a plastic bag to play with

• L.T. is rough with W.R. while changing him, and he bangs his head on the wall

• L.T. puts W.R. flat on his back to drink, despite warnings that this could lead to choking

• L.T. lets W.R. play with keys

• L.T. fails to recognize clearly dangerous situations; for example, on one occasion, she put her hand with the child's bottle into an electric kettle, and turned it on

[39] In the past the Society noted that L.T.'s residence was dirty and extremely cluttered. The fact that L.T. now shares a residence with R.R. does not seem to have assisted her in maintaining a residence that is safe for a child to occupy. Although a Society worker found the parties' apartment to be clean and tidy on a scheduled visit, on an unannounced visit the unit was extremely cluttered, dirty, and full of garbage. The parents do not contest this observation. Their response is that if they had W.R. with them, they would be more motivated to keep the apartment in a hygienic condition.

2.4.4 Observations of R.R.

[40] The Society provided the services of its special needs worker, Erin Sclisizzi, to assess R.R.'s ability to parent W.R., either working with L.T., or independently. For this purpose, visits were extended to three hours; during the first two hours of each visit, R.R. was to care for W.R. alone, and the last hour was to be occupied by R.R. and L.T. caring for the child. Ms. Sclisizzi began working with the family in October 2012, after the parents had already enjoyed seven months of visits with W.R. Of the six visits scheduled, R.R. did not attend three of them. On the visits that he did attend, Ms. Sclisizzi found that he demonstrated "flat effect", and did not engage verbally with the child. Suggestions she made about increasing interaction with W.R. or about better feeding methods were not followed up in subsequent visits.

[41] On the last visit Ms. Sclisizzi observed in December 2012, R.R. was attempting to change W.R.'s diaper on a change table. As L.T. entered the room, W.R. fell from the table. R.R.'s reaction was to blame L.T. for distracting him. Neither he nor L.T. moved to see if W.R. was hurt. Ms. Sclisizzi and another worker assessed the child; he was not injured.

[42] Observations of the Society workers are that R.R. is more capable than L.T. in providing instrumental care for the child, although he has had to be reminded about some safety issues, such as supporting the child's head, or insuring that he is restrained when on the change table. Workers note that R.R. has difficulty in reading W.R.'s cues; for example, he will stop feeding W.R. when it is clear that he is still hungry.

[43] The most significant concerns of Society workers about R.R.'s care, however, center on his failure to provide social stimulation for the child, and on a lack of commitment to fulfilling the role of W.R.'s primary parent.

[44] Observations of R.R. and W.R. frequently note that R.R. is not interacting verbally with the child, despite messages from the workers that this activity is important for the child's development.

[45] It is often noted that R.R. seeks a break from spending time with W.R., even within the confines of a 2-3 hour visit. When L.T. is in the room, he will generally turn care of the child over to her. He will frequently head for the door, taking "breaks" for 20 minutes to as long as 45 minutes of the hour remaining in the visit. On one occasion, when R.R. started to leave the visit early, both L.T. and the worker chided him. He replied: "I already spent two hours with him….I should have 20 minutes, at least twenty minutes".

[46] When R.R. does remain in the room with L.T. and the child, workers note that he frequently retires to read a newspaper or do a crossword puzzle. Often he gets W.R. ready to leave well before the visit is actually due to be over.

Missed Visits

[47] R.R. has missed over 50% of the visits scheduled since W.R. has come into care; L.T. has missed about one-third of the visits. Ms. Tavares several times stressed to the parents, and particularly to R.R., the importance of him attending visits regularly. She has explained that regular attendance is necessary in order to assess his ability not only to parent W.R. directly, but to supervise L.T.

[48] R.R.'s attendance did not improve despite these reminders. When visits were missed, it was L.T. who would usually call to cancel. She offered various reasons for the cancellations — illness, other appointments, or lack of funds for TTC fare. The parents were asked to provide doctor's notes to confirm any illness which prevented them from seeing their son; none were ever provided. OHIP records presented in evidence did not confirm that either parent sought medical attention at any time which coincided with or closely preceded a visit, except for two occasions. With respect to the parents' complaints about the cost of TTC fare to allow them to visit, the record indicates that the Society did provide the parents with TTC tickets from time to time, and that L.T. had significant funds for discretionary spending, resulting from a payment to her of some thousands of dollars from the Criminal Injuries Compensation Board with respect to an assault she suffered.

Understanding of Mother's Limitations

[49] The Society alleges that R.R. demonstrates little understanding or acceptance of L.T.'s cognitive limitations. Before W.R. was born, workers shared with him the prior assessments setting out the serious difficulties L.T. would have in parenting. R.R. said that he did not believe the assessments. Further, in R.R.'s answer and plan of care and in his affidavit filed on this motion, he does not address L.T.'s limitations, how those limitations might affect his role in parenting W.R., and how he will handle those challenges. R.R. simply says that he and L.T. will meet W.R.'s needs, and access appropriate resources.

[50] Observation notes, however, suggest that R.R. does have some understanding of L.T.'s limitations. He frequently corrects her when she, for example, doesn't follow proper hygiene when changing the child, or when she is having difficulty undressing W.R. to make a diaper change. His criticisms not infrequently lead to an argument with L.T.

2.5 W.R.

[51] W.R. is generally a healthy child, but he does suffer from hypotonia (poor muscle tone) and delays in developing gross motor skills. W.R. will need caregivers who are able to understand and apply professional recommendations in daily life.

3. ANALYSIS

3.1 Reliability of Evidence

[52] I will deal first with the submission of parents' counsel that the observations of the Society workers are "tainted" by prior experience with L.T. and her older children, and that there are questions of credibility which require a trial. In my view, more than a bald assertion is required to establish that there are real credibility issues in a case. I do not accept the submission of parents' counsel on this point for the following reasons:

1. If L.T. or R.R. disputed the many observations of their care of W.R. put before me on this motion, I would have expected to see a dispute as to the facts alleged in their affidavits. As noted above, they dispute only two of the facts alleged.

2. Visits have been supervised by workers such as Paula Tavares who had prior experience with supervising L.T.'s visits with older children, and by workers who did not have such experience, such as Pilar Hall. Their observations are consistent.

3. The parents did not choose to cross-examine any of the workers on their affidavits, despite the fact that these witnesses can be cross-examined as of right under the Rules.

4. The parents did not move to have their parenting ability assessed by an independent expert, despite the fact that it was open to them to request such an assessment pursuant to section 54 of the Act after March 27, 2012, when the protection finding was made.

5. Other than an unsuccessful attempt to have Native Child and Family Services (NC&FS) take carriage of the case, the parents did not ask that the Society cooperate in having any outside individual, professional or otherwise, observe them with W.R. or work with them in developing parenting skills. The Society has in other cases retained staff from outside agencies to observe visits.

[53] Counsel for L.T. and R.R. also complain that the "positives" of their care for W.R. — as opposed to the "negatives" — are not sufficiently noted in Society affidavits. R.R.'s counsel provided the court with pages of observation notes, and quoted several positive observations not included in the Society's affidavit material. The notes indicate that on most visits, although there were some positive behaviours, there were also concerning behaviours. This pattern did not change over time. The affidavits from the Society workers do include some of the "positives"; perhaps more "positives" could have been included, but in my view the affidavits do not present a biased picture. In any event, I have reviewed and taken into account all the observation notes proffered in reaching my decision.

3.2 Disposition

3.2.1 The Law

Section 57 of the Act, set out below, directs that in deciding W.R.'s placement, I must determine what order is in the child's best interests.

Order where child in need of protection

57.— (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

Supervision order

1. 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

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

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 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.

Court to inquire

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

Section 37(3) of the Act sets out what factors should be considered in assessing what is in the child's best interests.

Best interests of child

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

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

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

3. The child's cultural background.

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

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

6. 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.

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

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

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

10. The effects on the child of delay in the disposition of the case.

11. 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.

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

13. Any other relevant circumstance.

[54] Finally, section 70 of the Act restricts my choices to an order returning W.R. to the care of either or both of his parents or to an order making the child a ward of the Crown, unless I find that it is in his best interests to extend Society wardship.

3.2.2 The Parents' Plan for W.R.

[55] There are positives to a plan which would place W.R. with his parents. The Society observation records indicate that W.R. is often happy on visits with them. Both parents have demonstrated that they love the child, although L.T. is more able to express this affection openly. Such a plan would mean that W.R. would be raised as a member of a family, and would have relationships with extended family members.

[56] However, the degree of risk to the child if placed in either or both of his parents' care is simply too great for such a plan to be considered. Counsel emphasized that L.T. and R.R. were "a team", arguing that as a couple they had strengths that each alone did not possess.

[57] That argument ignores the undisputed evidence as to L.T.'s parenting deficits, deficits which are not remediable or which might only be remedied after concerted treatment in which she has not engaged. There is nothing in the evidence which indicates a significant change in L.T.'s ability to care for a child from when the assessments were made of her ability to care for G., A., and Z. L.T. will require not just assistance, but constant supervision.

[58] The joint plan is a plan that in reality depends solely on R.R. He must be able to either care for W.R. himself, or to provide supervision to L.T. when she cares for him. The evidence is overwhelming that he is either not able or not willing to assume such a responsibility.

[59] R.R. is 46 years old, and has had no prior experience caring for a child. It is clear that he has difficulty tolerating even a 2-3 hour visit with W.R., and that he has been unable or unwilling to attend those visits regularly. His behaviour on visits which he does attend shows that he lacks the stamina or the commitment required to parent W.R. for more than a very short period of time. Given this record, how can a court believe that R.R. would now be able to parent W.R. 24 hours a day?

[60] From at least June 2012, workers told R.R. that it was important for him to attend visits regularly, so that he could receive instruction as a caregiver and in order that his ability to care for W.R. and to supervise L.T. in her care of W.R. could be observed. R.R. was reminded of this by Ms. Tavares more than once, and also by Ms. Sclisizzi. Despite this, he failed to attend over 50% of the scheduled visits.

[61] Absenteeism at this rate must call into question either his commitment to the role of primary caregiver, or his ability to fulfill the role. The claim that illness accounts for most of the missed visits is not credible without some support from a physician, support which R.R. (and L.T.) were asked to provide and did not. The alternative explanation — that R.R. was actually so ill that he could not visit his child for many days in the past year — must lead to a question as to whether R.R. is sufficiently healthy to shoulder the responsibility of being primary parent to a young child.

[62] In assessing the viability of the parents' plan, I also take into account R.R.'s behaviour on the visits which he did attend, behaviour that does not indicate an appreciation of the need for L.T. to be constantly supervised.

[63] R.R. is more able than L.T. to understand risks to a child W.R.'s age. Despite Society submissions to the contrary, I find that he does have some understanding of L.T.'s deficits. However, R.R. has failed to demonstrate that he can adequately supervise L.T. even for a short period of time. Despite reminders from the Society staff, R.R. failed to consistently participate in the portion of each visit during which L.T. was present. R.R. might correct L.T. — e.g., when she positioned W.R. incorrectly — but then he would leave the visit — for periods of 20-45 minutes — leaving the monitoring of L.T. to others. This pattern of R.R. leaving visits for extended "breaks" has continued throughout the time that W.R. has been in care.

[64] If W.R. is returned to his parents' care now, there is no family or community support for the parents, except perhaps for L.T.'s mother, M.T.1. There was no affidavit presented from M.T.1 setting out specifically what support she could offer. In any event, I find that M.T.1 cannot be considered a beneficial support for the family. She was rejected by Justice Weagant as a joint caregiver for L.T.'s child G. nine years ago, because she demonstrated no appreciation of L.T.'s deficits as a parent. There is no evidence that M.T.1's views have changed in this respect.

[65] R.R. says that if W.R. is placed in his care, or in the care of himself and L.T., he intends to access "appropriate supports", including a daycare program for the child. None of those supports are now in place. Even if R.R. was successful in obtaining a daycare spot for W.R. in the future, he would still be responsible to care for the child the other 14-16 hours of each day. W.R. is at an age when a moment's inattention could mean that he is seriously injured. R.R. has not demonstrated that he can be relied upon to provide this constant attention.

[66] Up to this point, in assessing W.R.'s best interests I have focused on the issue of the immediate risk to the child if placed in his parents' care. There are other issues relevant to assessing W.R.'s best interests, such as each parent's ability to support the child's cognitive and emotional development and to work with doctors and therapists to deal with his hypotonia. The responsibility for the bulk of this work would fall on R.R. He has not demonstrated that he would be able to meet this responsibility; he is not even able to insure that he visits W.R. twice a week.

[67] All the concerns expressed above with respect to the joint plan apply equally to R.R.'s alternate plan, which would have him caring for W.R. alone. In addition, however, the absence of financial support from L.T.'s ODSP cheque would mean that R.R. would have difficulty providing adequate stable housing.

[68] Parents' counsel suggested that if the court believes that W.R. cannot be safely returned to his parents' care now, that the court should order a further period of the Society wardship under section 70(4) of the Act, to allow the parents to improve their situation. Section 70(1) limits the time which a child as young as W.R. can be in temporary Society care to 12 months. Section 70(4) allows an extension of the Society wardship of up to six months, but only if that extension is in the child's best interests. It can be in a child's best interests to grant such an extension if a parent's plan is promising, but requires a short period of time to arrange for a necessary element in the plan, such as a daycare spot.

[69] That is not the case here. L.T.'s parenting deficits are either not remediable, or will require very long term work. The problem of R.R.'s lack of ability or commitment to undertake the role of primary parent is not a short-term difficulty.

3.2.3 Society Plan

[70] The Society's plan for W.R. — to place him for adoption if he is made a Crown ward — will provide the child with a permanent home. W.R. is very young and is generally healthy, although his diagnosis of hypotonia means that he needs parents who can understand and consistently implement medical advice. There is no doubt that W.R. will find an adoptive home. The Society's plan is the only viable plan presented for W.R., and it is the plan which is in his best interests.

3.2.4 Conclusion

[71] Section 57(2) of the Act directs me to consider what efforts were made by the Society and other agencies to assist the family before proceedings were begun. L.T. has received services from an adult services protection worker, although she is not currently accessing that service. Surrey Place has assisted L.T. in the past, and she has chosen not to utilize counselling that that agency offers now. The Society also arranged for an assessment of R.R. at Surrey Place, to determine whether he would be eligible for their services. Yorktown Family Services provided a parenting program in which the parents participated. The Society has offered parenting supervision and instruction from its workers, including from Ms. Sclisizzi, its special needs worker.

[72] Although the parents are now critical of the support offered by the Society, the record does not indicate that during the course of this case they requested supports that were not provided. It may be that the Society could have provided more assistance to the parents, and particularly to R.R., in developing parenting skills. However, given the mandate in the Act to provide a permanent home for a child of W.R.'s age within a limited period of time, parents as well as the Society must move quickly after a child is apprehended to obtain the resources needed. Parents should not wait to complain of a lack of assistance until a trial. In this regard, it is relevant to cite an observation of Justice D.J. Gordon, from Children's Aid Society of Hamilton v. E.O. and S.H., in which he acknowledged that the society was at fault for failing to give the parents adequate assistance, but observed:

"Nevertheless, issues pertaining to services should not be left for trial. The Society and parents' counsel must review such matter early in the proceeding. Failing resolution, a motion would have been appropriate".

[73] There have been some cases in which a society is "blinded" because of a flawed parenting capacity assessment and has failed to fairly evaluate impressive efforts by parents in acquiring necessary parenting skills. This is not one of those cases. The assessments which L.T. now rejects were the subject of judicial consideration and approval, resulting in decisions which were not appealed by her. Efforts by the parents in this case to acquire the necessary parenting skills are not impressive. They have attended one parenting course for 8 sessions. They have failed to attend many visits scheduled between themselves and W.R., visits at which they could have received guidance.

[74] Section 57(4) of the Act directs me, before making an order of Crown wardship, to consider whether a family or community placement is available for W.R. There is no viable alternate placement for the child. L.T.'s brother M.T.2 and his partner D.T. came forward early in the case and presented a plan for W.R. L.T. did not support this plan. The Society began to assess this plan, but in December 2012, M.T.2 and D.T. withdrew. They cited concerns about L.T.'s "boundary issues" as part of the reason for their withdrawal.

[75] There is no triable issue as to what order is in W.R.'s best interests. I order that W.R. be made a ward of the Crown.

4. Access

[76] Neither parent requested in their answer and plan of care or in the affidavits prepared for this motion that he or she be granted access in the event that W.R. was made a Crown ward. The issue was not addressed in submissions from parents' counsel. It was raised by the Society counsel in its factum and in submissions. For the purpose of this motion, I will proceed on the assumption that L.T. and R.R. wish to have an order for access made.

[77] Section 59(2.1) provides that a court shall not make an order under section 58 for access to a child who is 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.

[78] The onus is on L.T. and R.R. to satisfy this test. In my view, they have not presented evidence that raises a triable issue as to whether they have met this onus.

4.1 Beneficial and Meaningful?

[79] Justice Joseph Quinn's interpretation of the first branch of this test in Children's Aid Society of Niagara v. M.J., (2004) O.J. 2872 is frequently cited:

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.

[80] Assessed in the light of the undisputed facts, it cannot be said that W.R.'s relationship with either parent is "significantly advantageous" to him. I accept that the visits are meaningful to the parents, and particularly to L.T. W.R. generally appears to enjoy his visits. As noted above, the parents have a very poor attendance record for visits. In my view, a failure to visit a young child consistently calls into question the strength of that parent's commitment to the child's emotional welfare. I have no evidence that there is an attachment that has formed between W.R. and either of his parents.

[81] I do not find that the evidence is sufficient to establish that W.R.'s relationship to his parents is "beneficial and meaningful" to the child.

4.2 Will an Access Order Impair W.R.'s Opportunities for Adoption?

[82] As discussed in other cases, the amendments made by Bill 179 to the Act now allow a society to proceed with adoption placement of a child who is a Crown ward and the subject of an access order. When notice of intent of such placement is served, the access order terminates, and the person who has the right of access may apply for an openness order. These changes allow a court in appropriate cases to make an order for access, even when the permanency plan approved by the court for the child is adoption.

[83] The test which the parents must meet continues to be onerous. As held by Justice Alex Pazaratz: "The operative words of s. 59(2.1)(b) — 'will not impair' — place an onus on the parents to satisfy the court that access to the Crown ward will not diminish, reduce, jeopardize, or interfere with the child's future opportunities for adoption".

[84] There is no onus on the Society to prove that it has already identified prospective adoptive parents for a child, or that a child is "adoptable".

[85] An access order may impair a child's future opportunities for adoption for a number of reasons.

[86] Potential difficulties with an access order may stem from a parent's personality or behaviour. Difficulties with an access order may have little to do with the parent, but relate to the prospective adoptive parents' attitudes towards any contact between the child and the biological parent.

[87] L.T. and R.R. have failed to present evidence that would allow me to assess whether an access order would not impair W.R.'s opportunities for adoption. There is some evidence that they did not engage in open conflict with Society workers, and that they complied (although not in a timely manner) with some Society requests. There is evidence that L.T.'s brother and sister-in-law did not proceed with planning for W.R. in part because they feared interference from L.T. There is no evidence from L.T. or R.R. about their attitudes towards placement of W.R. with an adoptive family.

[88] I decline to make an order for access.

April 4, 2013

Justice E.B. Murray