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 45 (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.

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

Court File and Parties

Court File No.: C53747/11

Ontario Court of Justice Toronto North Family Court

In the Matter of an Amended Protection Application Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of A.S., Born on […], 2011.

Between:

Children's Aid Society of Toronto Michelle Cheung, for the Applicant

Applicant

- and -

A.B. and An. S. Isaac Birenbaum, for the Respondent, A.B.

Respondents

The Respondent, An. S., acting in person

Heard: January 23, 2013

Justice S.B. Sherr

Reasons for Judgment

Part One - Introduction

[1] The Children's Aid Society of Toronto (the society) has brought a summary judgment motion pursuant to rule 16 of the Family Law Rules (the rules) requesting the following orders:

a) That the statutory findings pursuant to subsection 48 (3) of the Child and Family Services Act (the Act) be made as set out in the society's notice of motion.

b) That the child A.S. (the child), born on […], 2011, be found to be a child in need of protection pursuant to clause 37 (2) (b) of the Act.

c) That the child be made a crown ward without access for the purpose of adoption.

[2] The respondents, A.B. (the mother) and An. S. (the father), are the parents of A.S.

[3] The mother, in submissions on this motion, took no position on the society's request for summary judgment to find the child in need of protection. She submitted that there was a triable issue with respect to the disposition of the case and with respect to the issue of access. She asked that the summary judgment motion be dismissed on these issues. The mother also brought a cross-motion seeking an order that the child be placed in her temporary care and custody, subject to a supervision order. She made it clear to the court that she was planning for the child separately from the father.

[4] The father did not file any responding material to the summary judgment motion. He chose not to make submissions at the hearing. He had filed an Answer/Plan of Care on May 3, 2011 seeking an order that the child be placed with him and the mother. The court did not treat his silence on this motion as support for the society.

[5] Neither of the respondents opposed the statutory findings sought by the society and that order will be made.

[6] I reviewed the society's notice of motion and the affidavits of Claudia Spirito, sworn on December 19, 2012, Wanda Lynch, sworn on December 18, 2012, Shannon Deacon, sworn on December 17, 2012, Kim McLean, sworn on December 14, 2012, Michelle Henry Walsh, sworn on December 14, 2012, Maria Boholy, sworn on December 18, 2012, Nadia Iskander, sworn on December 18, 2012 and Joan Shaw, sworn on December 18, 2012 (all sworn on behalf of the society's case), the notice of motion and affidavit of the mother sworn on January 18, 2013, the Answer/Plans of Care of both parents and access observation notes provided by the mother at the hearing.

[7] This was an unusual summary judgment motion as the evidence adduced by the society was not really opposed by the parents. The mother only made a blanket denial about the detailed parenting concerns set out in the society's material, writing at paragraph 42 of her affidavit:

I believe that without going into detail to each and every allegation that they have been greatly exaggerated.

[8] The facts that will be set out in this decision were either provided, admitted, unopposed or only baldly denied (as just described) by the parents.

Part Two – Background Facts

[9] The mother is 32 years old. This is her first child.

[10] The mother deposed that she has a learning disability, but was still able to complete grade twelve.

[11] The mother has had a relationship with the father for seven years and continues in that relationship with him. They have maintained separate residences. At one time they were engaged to be married.

[12] Both parents have been involved with the Meta Centre in Toronto. This is an organization that provides programs to assist persons with disabilities.

[13] The mother made a self-referral to the society in January of 2011 for assistance in preparation for the birth of the child. At the time, both parents resided in a supportive housing complex through the Meta Centre.

[14] Both parents have some developmental delay and the father has been diagnosed with a bi-polar disorder.

[15] The mother dealt with her pregnancy responsibly. She attended a pre-natal program, attended her medical appointments and sought assistance.

[16] The child was discharged from the hospital about one week after his birth to the care of the mother.

[17] Many supports were put into place to assist the mother in parenting the child at this time.

[18] The child was apprehended from the mother's care on March 30, 2011. The protection concerns were the high level of conflict between the parents, the parenting ability of the parents and the mother's high stress level and inability to cope with the child.

[19] The child has remained in the care of the society since his apprehension (almost 22 months).

[20] On April 4, 2011, Justice Harvey Brownstone made an order placing the child in the temporary care and custody of the society with access to the parents three times each week for 1.5 hours each visit, supervised in the society's discretion.

[21] A temporary care and custody hearing was never held in this case. The parents never brought a motion to change the temporary access order.

[22] In May of 2011, the parents began their participation in the society's therapeutic access program. This is an intensive parenting program where the parents receive parenting instruction and feedback while visiting with the child. This program continued until August 29, 2011 (over 80 hours), at which time it was terminated by the society, as they determined that the parents were making insufficient progress and further instruction would not make a meaningful difference in their parenting abilities.

[23] On December 14, 2011, the society amended their protection application to seek a disposition of crown wardship for the child.

[24] The society brought a motion for summary judgment on all issues. On May 2, 2012, Justice Geraldine Waldman granted this motion.

[25] The mother appealed this order to the Superior Court of Justice. The mother did not obtain an order in the Superior Court of Justice restoring her access pending the hearing of her appeal and the parents were not seeing the child. The appeal was allowed on October 19, 2012 and the matter was returned to this court for a rehearing, including a summary judgment motion.

[26] The mother had no access to the child from May 2, 2012 until October 18, 2012. The father had no access to the child until November 23, 2012.

[27] On November 19, 2012, Justice Carole Curtis made a temporary order that the parents have access to the child once per week, for one hour, on separate days.

[28] The mother has consistently exercised access to the child, as ordered, since October 18, 2012 and the father has also consistently attended access since November 23, 2012. All of the visits are fully supervised at the society's office.

Part Three – The Law on Summary Judgment

[29] Rule 16 of the rules permits a party to make a motion for summary judgment. The following sub-rules in rule 16 are relevant to this case:

When Available

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

Evidence Required

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

Evidence of Responding Party

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

Evidence Not From Personal Knowledge

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

No Issue for Trial

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

[30] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged, the responding party must prove that its defense 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 that the parties would present at trial. Toronto-Dominion Bank v. Hylton, 2012 ONCA, par. 5.

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

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

[33] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion. Children's Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842.

[34] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact. Children's Aid Society of the District of Nipissing v. M.M., [2000] O.J. No. 2541 (SCJ); Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ).

[35] The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. Children's Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (Ont. C.J.); Children's Aid Society of the Regional Municipality of Waterloo v. H. (T.L.) 2005 ONCJ 194, [2005] O.J. No 2371 (Ont. C.J.).

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

Part Four – Finding in Need of Protection

4.1 The Law

[37] The society seeks a finding that the child is in need of protection pursuant to clause 37 (2) (b) of the Act. This clause reads as follows:

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

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

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

[38] The society has the onus, on a balance of probabilities, to establish that the child is at risk of physical harm.

[39] The risk of harm under clause 37 (2) (b) of the Act must be real and likely, not speculative: See: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[40] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See: Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754, (Ont. Fam. Ct.); Children's Aid Society of Brant v. James Albert T. and Melissa Marie S., 2005 ONCJ 302, (Ont. C.J.), at paragraphs: 13-26. The parties had disclosure of the relevant evidence in this case.

4.2 Analysis

[41] At the hearing of this motion, the parents offered no opposition to a finding that the child should be found in need of protection as requested by the society.

[42] The following evidence supports a finding that the child is in need of protection pursuant to clause 37 (2) (b) of the Act:

a) There was considerable conflict between the parents prior to the apprehension of the child. On March 23, 2011, the parents engaged in a heated argument at the society offices that escalated to the point that society workers needed to intervene.

b) On March 28, 2011, the father pushed the mother while she was holding the baby.

c) The mother acknowledged to the society that she frequently had heated arguments with the father in front of the child.

d) On April 16, 2011, the police attended at the mother's home due to conflict between the parents.

e) After the child was apprehended, several society workers noted a tense and conflictual relationship between the parents at access visits, in front of the child.

f) The mother attributed the problems in her interaction with the child, prior to October of 2012, to the father's presence at the access visits.

g) Despite referrals, the parties failed to follow through with services to address their relationship issues.

h) The child was at risk of harm due to being exposed to excessive conflict between parents who couldn't regulate their emotions in front of him.

i) Prior to the apprehension, the society received numerous calls from service providers expressing concern about the care that the child was receiving. Concerns were expressed about: the parents failing to support the child's head; the parents not comforting the child when he cried; the child's blankets smelling of smoke; the child's bottles often not being the right temperature; the mother's frustration with feeding the child; the parents forgetting parenting instruction; and the parents constantly yelling and swearing in front of the child.

j) The mother admitted to the society that she was very stressed because the child was fussy and admitted that, at times, she would let the child cry and not pick him up. She reported suffering from frequent migraines because of a lack of sleep.

k) The mother was resistant to the society's suggestion to seek family support prior to the apprehension.

l) Despite numerous interventions and supports, the parents demonstrated little improvement in their parenting ability from the time that the child was apprehended until the crown wardship order was made on May 2, 2012. The following access observations were made during this period:

i) The parents had difficulty reading the child's cues. They had difficulty determining when the child was hungry or not hungry, when he was tired and when he required a diaper change. They had difficulty responding to the child's need for comfort and responding to his cues as to when he wanted to or didn't want to play.

ii) The failure of the parents to read the child's cues often resulted in the child becoming frustrated and acting out. In turn, the mother would become frustrated and become too forceful with the child. The mother was observed to respond to the child's sounds in a reprimanding tone, suggesting that the child was being deliberately defiant to her. This would startle the child. Examples of this are set out in paragraph 24 of the affidavit of Shannon Deacon.

iii) The parents had difficulty understanding the child's appropriate developmental stage and needs. For example, in May of 2011, they had an expectation that the child should be walking and in August of 2011, the mother had an expectation that the child should be sitting independently and playing alone. They had difficulty choosing age-appropriate and safe toys for the child to play with.

iv) The parents had difficulty feeding the child. They would forget to test if bottles were too hot or too cold. They had difficulty deciding when they should keep feeding the child and had to be prompted to continue. At other times they would try to force-feed the child when he had clearly eaten enough. They would become frustrated when feeding the child.

v) The parents struggled with properly supervising the child, placing him at risk of harm from safety hazards and often had to be assisted by society staff. There were instances where they forgot to unplug a bottle warmer, left coffee within the child's reach, warmed up the bottle too long, making it too hot for the child to drink and attempting to feed the child anyway.

vi) The father was observed, at times, as not providing sufficient support for the child's head and playing with the child roughly.

vii) The mother often struggled with organizing the various aspects involved in caring for the child at visits and required the assistance of the access supervisors to care for him. This was more pronounced when the father was not present. For instance, she struggled to supervise the child while warming food or a bottle and it was observed that she would forget to bring necessary items close to her when she was changing the child's diaper on the change table.

viii) The parents were observed to struggle with providing the child with sufficient stimulation during visits and would have difficulties engaging with him verbally and physically. They would sometimes spend large portions of the visits silent, observing the child.

ix) At times, the parents had difficulty soothing the child when he was upset.

x) The parents had difficulty retaining parenting information and applying this information on visits. They were observed to have difficulty problem-solving for the child.

xi) The mother was often observed to become visibly emotional or withdrawn at visits. This impeded her ability to care physically or emotionally for the child. The child was observed to be uncomfortable, confused and with a blank stare on his face when his mother acted in this matter. A serious example was on June 3, 2011. The mother was upset about the child's care in the foster home and was demanding at the visit that the child not be returned there. She became confrontational and made threats to kidnap the child. The society was unable to de-escalate the mother and had to end the visit early.

xii) At some of the lengthier visits, the parents were observed to be falling asleep or drowsy and not responsive to the child's needs.

xiii) The mother's parenting struggles were observed to increase towards the end of her visits and she was often observed to be overwhelmed and exhausted.

[43] This evidence informs the court that the parents had (and have) profound and fundamental parenting challenges creating multiple risks to the child. There were risks that the child would not be kept safe and secure, that his basic physical, emotional and developmental needs would not be met and that he would be exposed to excessive domestic conflict in the care of his parents.

[44] There is no triable issue that the child is in need of protection pursuant to clause 37 (2) (b) of the Act.

Part Five – Disposition

5.1 Legal Considerations

[45] The court's disposition options in this case are set out in subsection 57 (1) of the Act. This subsection reads as follows:

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. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, s. 13 (1-3).

[46] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:

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

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

3. If a society wardship order is made determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests (section 58.)

[47] Subsection 57 (2) of the Act requires that I ask the parties what efforts the society or another agency or person made to assist the child before intervention under Part III of the Act.

[48] Subsection 57 (3) of the Act requires that I look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless I determine that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[49] Subsection 57 (4) of the Act requires me to look at community placements, including family members, before deciding to place a child in care.

[50] In determining the appropriate disposition, I must decide what is in the child's best interests. I have considered the criteria set out in subsection 37 (3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

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

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

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

40. The child's cultural background.

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

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

43. The child's relationships by blood or through an adoption order.

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

45. 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.

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

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

48. 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.

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

50. Any other relevant circumstance.

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

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

[53] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters should be child-focused. Children's Aid Society of Toronto v. D.S..

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

5.2 Services Provided

[55] The following services have been provided for the family by the society, or obtained by the parents on their own, both before and after the apprehension:

a) When the child was released from the hospital into the mother's care, the society provided a family service worker and infant nurse specialist to assist her. The mother also received support from a parenting aid from the Visiting Home Maker's Association 5 days a week for 4 hours each day and a homemaker from the Meta Centre. Public Health also provided the mother with the services of a nurse and family home visitor.

b) Prior to starting with the Therapeutic Access Program, the society arranged for a Family Support Worker to provide preliminary parenting teaching to the parents.

c) The parents were able to participate in the intensive Therapeutic Access Program.

d) The parents completed the COPE parenting program.

e) The father attended a parenting group offered through Unison Community Health Centre.

f) The parents have worked with their independent living workers through the Meta Centre.

g) The father sees a psychiatrist regarding his bi-polar disorder and to manage his medications.

h) A children's service worker was assigned for the child to ensure that his medical and developmental needs were properly addressed.

[56] The court is satisfied that reasonable efforts have been made by the society to assist the parents in parenting the child.

5.3 Community or Family Plans

[57] The society explored alternate family or community plans. The maternal grandmother of the child twice put forward and then withdrew plans. She has since passed away. The mother's cousin contacted the society in October of 2011, stating that she was interested in planning for the child. Subsequent attempts to contact her were unsuccessful. The mother then proposed her aunt as a potential caregiver. The aunt had a serious child protection history with respect to her parenting and did not follow through on presenting a plan for the child. Lastly, the mother proposed her sister-in-law as an alternative caregiver in January of 2013. The society spoke with the sister-in-law who advised them that she would not be submitting a plan to care for the child.

[58] No other plan was proposed by the parents. The court is satisfied that the society met its statutory mandate to seek alternative community or family plans for the child and that none are presently available.

5.4 The Plans of Care

[59] The society's plan is to make the child a crown ward without access for the purpose of adoption. It was not contested that the child is highly adoptable. The society is opposed to any order of access, as it would delay a permanent adoption placement for the child.

[60] When the court made a crown wardship order on May 2, 2012, the society began the process of finding an adoptive placement for the child. They were successful in doing this and have a potential placement available for the child if their motion is granted. If this placement is no longer viable, the society is confident that the child will be quickly placed for adoption.

[61] The mother's plan is that the child would live alone with her. She is prepared to agree to an order that the father only have supervised contact with the child, and that it be supervised by someone other than herself. She advised the court that she has new and appropriate housing set up for February 1, 2013 (a two-bedroom apartment). She has arranged for a family doctor for the child and intends to have the child attend at a daycare. She says that she will have the support of family members, friends and her workers from the Meta Centre, who will be able to refer her to counseling and other supportive resources. The mother says that she will be financially supported through the Ontario Disability Support Program, child tax credits and financial assistance from the father and other members of her family.

[62] The mother deposed that she will comply with any supervision order made by the court and use any services that the court feels are necessary.

5.5 The Child

[63] The child has been living in the same foster home since his apprehension. Due to the history of developmental delay in his family, the child was placed in a specialized foster home designed to adequately stimulate and promote his development.

[64] The child was described as healthy, happy, affectionate, active and energetic. He is meeting most of his developmental milestones, with the exception of speech. He is described as a curious child who likes to explore his environment. He plays well with his toys, has a good attention span and enjoys playing with people. He was also described as having a calm disposition, so long as his routine is not disrupted.

[65] The child's foster mother deposed that he is walking, running, eats well and was a good sleeper until access resumed with the parents in the fall of 2012. She deposed that the child will now wake up upset and crying in the middle of the night, particularly after access visits. She also deposed that the child's behaviour declined when the visits with his parents were restored and he would return from the visits acting aggressively. She said that this has improved, but that the child will still act aggressively from time to time.

[66] The foster mother deposed that in the past two or three visits (prior to Dec. 18, 2012) the child started hitting the side of his face when she corrected his behaviour. She said that he had never done this before.

5.6 Positive Aspects of the Parents' Plan

[67] I make the following positive findings about the parents and their plan of care:

a) The child would have the opportunity of living with her biological mother and have a relationship with his biological father.

b) The child would have the opportunity of having relationships with his own extended family members.

c) The mother has consistently come on time for all of her visits with the child. This demonstrates organization and commitment to the child.

d) The parents love the child and want to be very good parents for him.

e) The parents have tried very hard to be the best parents they can be for the child.

f) The parents, for the most part, have been cooperative with the society and have been receptive to accepting services.

g) The mother has been proactive in seeking services on her own.

h) There has been some improvement in the quality of the mother's visits with the child since they resumed in October of 2012.

i) The mother is prepared to address the domestic conflict concern with the father by agreeing that the father can only have contact with the child if he is supervised by someone other than herself.

j) The father continues to see his psychiatrist.

k) The parents have worked well with their workers from the Meta Centre.

5.7 Limitations of the Parents' Plan

[68] The child has now been in care for almost 22 months. This is far beyond the statutory time limit set out in subsection 70 (1) of the Act. This is not an exceptional case where the time limit could be extended under subsection 70 (4) of the Act. The child needs to have his future determined now. This court has the dispositional choices of returning the child to the mother under a supervision order or making him a crown ward.

[69] Despite the positive aspects of the mother's plan, the evidence was clear that there is no triable issue with respect to the disposition of this case. It is in the child's best interests to be made a crown ward.

[70] The mother argues that the quality of the access visits has improved to the point where there is a triable issue on the disposition issue. She attributes the problems she experienced on access visits prior to May 2, 2012 as being due to being distracted by the father's presence.

[71] The mother's theory about the father is simplistic and not supported by the evidence. Her parenting challenges have been profound. While they were exacerbated by her conflict with the father, they extended well beyond her relationship with him. Her challenges related to a lack of understanding of child development, inability to read the child's cues, inability to retain parenting instruction and an inability to effectively manage visits, problem-solve or create a safe environment for the child. The quality of her parenting was observed to significantly decline towards the last portion of the visits, indicating that she couldn't sustain her care of the child. This had little to do with the father. The mother's lack of insight into her parenting challenges only creates additional risk to the child. While the quality of her visits has improved without the father present, she still struggles to parent the child.

[72] I have reviewed in detail the observations of the access supervisors since the visits were restored for the mother in October of 2012, and a consistent pattern emerges in these observations.

[73] The family service worker, Claudia Spirito, deposed that large portions of the access visits are very positive. She said that the child enjoys the visits with both parents. She described them as mostly play time for him. He laughs and giggles when he is running around with his parents. The difficulty, she deposed, is that the parents cannot consistently maintain a safe environment for the child during the entirety of the visits. This is despite the fact that the visits are for only one hour in a highly structured environment.

[74] Ms. Spirito deposed that the mother often has difficulties fully supervising the child. On one occasion, the mother was distracted trying to find her phone to take a picture and the child ran into a different room and almost got his fingers caught in a door. Another time, while the mother was packing his bag, the child threw his cup to the ground, spilling milk, ran into another family's visit room, took someone's purse and threw it on the floor. He then took a toy away from another child. Ms. Spirito had to direct the mother to supervise the child. On another occasion, the child picked up a plastic bag that the mother left on the chair and was running down the hallway waving it around his head. The mother, it seemed to Ms. Spirito, was unconcerned about the bag and had to be warned that it was a choking concern.

[75] Ms. Spirito also observed that the mother would have difficulty soothing the child when he was upset. She described an incident on December 13, 2012, where the child kept running to the door wanting to go outside. The mother struggled to contain him, often dragging him by the arm away from the door. The child had a tantrum and the mother continued to pull the child's arm to pull him off of the floor. The child became increasingly upset and the mother couldn't settle him. The child went into Ms. Spirito's arms and settled immediately. The child refused to go for a while with the mother.

[76] Ms. Spirito deposed that the father's visits began on November 23, 2012. The father, she says, will play with the child on the floor, feeds him snacks and changes his diaper. She said that he needs assistance from the staff as he will often be uncertain what to do with the child.

[77] Maria Boholy, a society case aide, supervised a large portion of the mother's visit on December 13, 2012. For the most part, she deposed, it was a positive visit. The mother gave the child toys to play with and interacted affectionately with him. At one point, the mother put the child on her lap and tried to engage him in watching a movie. She observed that the child tried to wiggle out of her lap and the mother tried to restrain him. The child started hitting his face with his hand while she did this. The mother didn't respond to the child's cue to be let down. She misconstrued his behaviour as being tired, when it appeared that the child just wanted to be let down to play.

[78] Four of the visits were supervised by a society case aide, Ms. Crane. Her observation notes were filed with the court, and were the most positive evidence of the mother's visits.

[79] Ms. Crane observed the visit on November 22, 2012. The mother played well with the child and he laughed when he tickled her. She gave him milk, changed his diaper and gave him a snack. The child left in good spirits. No parenting concerns were noted by her.

[80] Ms. Crane observed the visit on November 29, 2012. She noted that the mother greeted the child enthusiastically. The mother brought him a new toy. She observed that the child kept trying to leave the room and the mother had some difficulty containing and redirecting him. The mother changed his diaper, played on the floor with him and was affectionate with him. They went outside and the worker needed to remind the child a few times to hold his mother's hand as he would let it go and wander.

[81] Ms. Crane observed the visit on December 28, 2012. The mother was able to utilize supplies provided by the foster mother. She was affectionate with the child. The pattern would continue where the child would run off and the mother would chase him down the hall of the society office. The mother eventually barricaded the door to keep the child in the room. The mother and the child had a fight over the remote control for the television and the child began screaming. The mother had difficulty redirecting him. Ms. Crane described how she had to provide considerable assistance for the mother during the visit. She reminded the mother about the need to be organized on visits.

[82] The last visit that Ms. Crane supervised was on January 3, 2013. The mother was affectionate with the child. The mother provided a selection of toys for the child to play with and they laughed together. The mother continued to have difficulty keeping the child in the room and eventually placed a rocking chair in front of the door.

[83] The evidence about the mother's access visits informs the court that there has been some improvement since the May 2, 2012 order. She no longer presents as tired and makes more effort to engage the child. For long portions of the visits she is able to maintain a positive visit. She is properly feeding and changing the child. She no longer emotionally withdraws from the child during the visits. She is better organized.

[84] However, the evidence reveals many of the same parenting deficits that existed prior to the May 2, 2012 order. The mother often struggles controlling the child's behaviour and redirecting him. She struggles at times to maintain a safe environment for him and can be distracted when forced to multi-task. There appears to be an improvement in her reading the child's cues, but she is still deficient in this area. She has difficulty comforting the child or redirecting him when he is upset. This is understandable given the limited contact they have had with one another. The evidence shows that the mother still requires reminders, assistance and intervention from the access supervisors in caring for the child. Even taking her case at its highest (the observations of Ms. Crane), her access still needs to be supervised at this time.

[85] If the child had only been in care for three months, the improvement in the mother's access would be enough to attempt a modest increase in supervised access. Given the fundamental parental challenges of the mother, the court would need to see how both she and the child responded to extended visits in a gradual and child-focused manner before contemplating placing the child in her care. The court would first need to see how the mother could manage the child for two hours instead of one hour, as her prior history showed that she and the child struggled with longer visits. If she could continue to make parenting gains and demonstrated an ability to manage the child for longer visits, the visits might then be increased gradually to a point where portions of the visits could be unsupervised. Then, if this was successful, the court would see how the mother could manage unsupervised day visits. If the mother demonstrated that she could safely manage the child on day visits, it would then attempt overnight visits, likely starting with a single overnight and then a full weekend. It is only at this point, and if the mother had been successful in parenting the child for these extended periods that the court could responsibly place the child in her care.

[86] In the best-case scenario for the mother, this process would need to take place for at least the rest of 2013 for the court to effectively evaluate if a return of the child to the mother was viable.

[87] However, we are not at the three-month mark of the child being in care. The child has been in care for almost 22 months – already far too long and well beyond the statutory time limit. It is potentially damaging to the child's development to delay his transition into a permanent home any further. The time to experiment with his life is over. The child's best interests require permanency planning now.

[88] At a summary judgment motion, the court must determine if there is a triable issue that it could be in the child's best interests to return him to the mother today, not at some unspecified time in the future. There is a huge difference between successfully parenting a child with supports in a supervised setting for one hour and meeting a child's needs, without the society support, on a full-time basis. It would be absolutely irresponsible for the court to return the child to the mother when she is still struggling at times with managing the child for one hour at supervised access visits in a highly structured setting.

[89] The analysis of this issue really ends here (as the fundamental issue is the mother's inability to adequately parent the child at this time), but there are other difficulties with the mother's plan that should be noted, including:

a) The mother claimed that she had family and friends that would provide her with support. However, she provided no real detail about what this support would be. Even more importantly, she provided no direct evidence from any of these persons. Difficulties with these proposed supports are set out in the affidavit of Ms. Spirito, sworn on January 17, 2013. These concerns were not contradicted.

b) The mother would require, at a minimum, a responsible adult who could be in the home with her on a full-time basis to assist her with the child. Unfortunately, no such person is available.

c) The mother has had difficulty budgeting and there have been times when she has run out of money mid-month. This raises a serious issue as to whether she would be able to budget appropriately to ensure that the child's basic needs are met.

d) The mother described her daily routine to Ms. Spirito on December 5, 2012 as not going to bed until 2 a.m. and sleeping in each day. This schedule is not appropriate for a young child. It raises a concern about whether she would be able to adapt her schedule to meet the child's needs.

[90] In addressing the relevant best interest clauses in subsection 37 (3) of the Act, the court finds that there is no triable issue that:

a) The society's plan will better meet the child's physical, mental and emotional needs.

b) The society's plan will better meet the child's physical, mental and emotional level of development.

c) The society's plan will better meet the child's needs for continuity and a stable place in a family through adoption.

d) The risk of placing the child with the mother remains unacceptably high.

e) The society's plan will better address the child's needs than the plans proposed by the parents.

f) This case cannot be delayed any further. The child should receive a permanent home as soon as possible.

[91] There is no triable issue that there is no less intrusive alternative, in the child's best interests, other than making him a crown ward.

Part Six – Access

6.1 The Law

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

Access: Crown ward

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

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

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

[93] The onus to rebut the presumption against access to a crown ward is on the parents. Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (Ont. C.A.). The parents have the onus of establishing both portions of the test in subsection 59 (2.1) of the Act. This is a very difficult test for them to meet. Where a crown wardship order has been made, there is no obligation on the society to prove that the children are adoptable, let alone that there is a prospective adoptive family. Children's Aid Society of the Niagara Region v. J.C., [2007] O.J. No. 1058 (Ont. Div. Ct.).

[94] In C.A.S. of Toronto v. T.L and E.B., supra, Justice Perkins described the two-part test as a gateway. He wrote in paragraphs 29 and 30 of his decision as follows:

[29] Section 59 (2.1) (b) operates even if there is no immediate prospect of an adoption: "A court shall not make or vary an access order … unless the court is satisfied that … access will not impair the child's future opportunities for adoption" (emphasis added). How much stronger still must the presumption be if, as in this case, there is evidence that there is an immediate, existing placement ready to adopt and there are two other placements waiting in the wings?

[30] Note as well that the focus of section 59 (2.1) is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child's wishes, are not mentioned. It is only when one gets through the narrow gateway of section 59 (2.1) that the wider best interests test of section 37 (3) becomes open for discussion. The new section 63.1 makes it clear the legislature has determined that the best interests of children who cannot return to a parent's care and who are adoptable lie in a permanent family placement by way of adoption or a custody order. Parents might be able to satisfy a court that future adoption opportunities for a child do not likely exist, either because the child's wishes to return to their care are so overwhelming that the child would not consent to a placement or because the child's special needs are so extreme that an adoption is not a realistic possibility. But that is far from this case, on the evidence.

[95] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family), where he said:

(45) What is a "beneficial and meaningful" relationship in clause 59(2) (a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

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

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

[97] Until recent amendments to the Act, a Society was unable to place a crown ward for adoption if there was an outstanding access order under Part III of the Act. Crown wards with access were not eligible for adoption. Section 141.1 of the Act has now been amended to allow Societies to place crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption. Section 141.1 opens the door slightly. But it does not change or even reduce either element of the conjunctive test in subsection 59 (2.1). The court must still be satisfied that "access will not impair the child's future opportunities for adoption. The operative words of clause 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. The onus on parents remains high. See: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850, [2011] O.J. No. 4512 (SCJ), paragraphs 419-421 and 427.

6.2 Analysis

[98] There is no triable issue as to whether either parent has met their onus with respect to either prong of the two-part test in subsection 59 (2.1) of the Act. They have not. I have no doubt that the visits with the child are beneficial and meaningful for the parents. They dearly love him. However, while the visits are generally enjoyable for the child, his relationship with his parents does not come close to rising to the level of being beneficial and meaningful for him as defined in the case law. The parents have been a very limited part of the child's life since May 2, 2012. They did not see him for over five months and now see him for only one hour each week. It is far too little time to establish a beneficial and meaningful relationship with him at his age and stage of development. It is understandable that the child exhibits some distress after the visits. This is not the parents' fault.

[99] There is no issue that the child is adoptable. He is young, healthy, friendly and mostly meeting his developmental milestones. The society had no difficulty finding an adoptive home for him when it appeared before that he could be adopted. His long-term placement has already been delayed for far too long. It is not in his best interests to place any impediments in the way of his obtaining a long-term placement. If this court made an access order, the society would then need to serve notice to terminate the order once they wish to make an adoption placement. The mother would then have the right to bring an application for an openness order. Assuming this application is brought, this would necessitate yet another hearing. This process, when one considers how much time has already passed, would create an unacceptable delay in settling the child's future and is not in his best interests.

Part Seven - Conclusion

[100] The evidence supports findings that there are no triable issues that: the child is in need of protection pursuant to clause 37 (2) (b) of the Act; the least intrusive alternative, consistent with the child's best interests, is to make him a crown ward, and that there should be an order for no access to the child. The mother has no realistic chance of success if any of these issues are sent for trial.

[101] An order will go on the following terms:

a) Statutory findings for the child, pursuant to subsection 48 (3) of the Act are made as follows:

1. Date of Birth: […], 2011
2. Religion: Not Catholic, Not Jewish
3. Native Status: Not Indian, not Native
4. The child was apprehended on March 30, 2011, in the City of Toronto, Ontario from the mother.
5. The parents' names are as set out in the amended protection application.

b) The child is found to be in need of protection pursuant to clause 37 (2) (b) of the Act.

c) The child shall be made a crown ward, with no access, for the purpose of adoption.

d) The mother's motion for the return of the child to her care is dismissed.

[102] I understand that this is a very painful decision for the parents. I admire their efforts to be the best parents they could be for the child, despite the challenges they have faced in their lives. I recognize that they tried the very best they could.

[103] If A.S. ever reads this decision, I want him to know that his parents loved him very much and tried very hard to be able to parent him. The challenges they faced were just too much. He will be fortunate if he has inherited their qualities of determination and selflessness.

[104] I thank counsel for their excellent presentation of this motion.

Date: January 28, 2013

Justice S.B. Sherr